Submission to the Standing Committee on Fisheries & Oceans: Review of the Changes to the Fisheries Act

Executive Summary

The Fisheries Act, as both the primary law regulating fisheries across the country and a law of general application, interacts with the rights and jurisdiction of Tłı̨ chǫ Government (“TG”) in a myriad of ways. TG has chosen to participate in the Standing Committee on Fisheries & Oceans’ (the “Committee”) review of the Fisheries Act to highlight some of these interactions for the Committee. TG hopes that the following submissions and recommendations assist the Committee in building a fisheries protection regime that is more coordinated, inclusive, and respectful of Tłı̨ chǫ rights, jurisdiction, and laws.

The Tłı̨ chǫ have, since time immemorial, pursued their way of life in Mǫwhì Gogha Dè Nı̨ ı̨ tłèè, an area that is principally within what is now known as the Northwest Territories. In 2003, the Tłı̨ chǫ signed the constitutionally protected Tłı̨ chǫ Land Claims and Self Government Agreement with the Governments of Canada and the Northwest Territories (the “Tłı̨ chǫ Agreement”).1 The Tłı̨ chǫ Agreement codifies, inter alia, our rights related to fishing and our jurisdiction to make laws over certain aspects of fishing and fisheries on specified lands. The Tłı̨ chǫ Agreement also established a series of co-management bodies, one of which—the Wek’èezhı̀i Renewable Resources Board (“WRRB”)—has authority over aspects of fishing and fisheries. The Tłı̨ chǫ Agreement has constitutional status;2 as such, federal laws such as the Fisheries Act cannot be implemented in a way that conflicts with the provisions of the Agreement.

TG is troubled that neither the 2012 version of the Fisheries Act nor its current incarnation have provided for the respect, recognition, integration, and protection of constitutionally protected treaty rights, Tłı̨ chǫ jurisdiction, or harmonization with existing co-management bodies. This lack of recognition risks the creation of unnecessary tensions and confusion, as well as potential conflicts with the Tłı̨ chǫ Agreement or laws created thereunder.

TG sees this Fisheries Act review as providing an opportunity to ensure that Canada’s legislative and regulatory regime in relation to fisheries is constructed in a way that respects and enhances Tłı̨ chǫ rights and jurisdiction. Reconciliation requires the federal government’s diligence in purposefully implementing the Tłı̨ chǫ Agreement, which includes exercising due care when amending a critical piece of legislation of general application, such as the Fisheries Act, that

1 The Tłı̨ chǫ Agreement was implemented through federal and territorial settlement legislation, both of which came into force on August 4, 2015. These are the Tłı̨ chǫ Land Claims and Self- Government Act, S.C. 2005, c.1, and the Tłı̨ chǫ Land Claims and Self-Government Agreement Act, S.N.W.T., c. 28. 2 The Tłı̨ chǫ Agreement is a “land claims agreement” under s. 35(3) of the Constitution Act, 1982.

applies on Tłı̨ chǫ Lands and throughout Mǫwhì Gogha Dè Nı̨ ı̨ tłèè. TG is concerned that a key opportunity to both further the implementation of the Tłı̨ chǫ Agreement, and with it, reconciliation, will be missed if the Committee does not engage on the issues of treaty rights, jurisdiction, and co-management.

This brief will outline the key issues and recommendations of TG at this time. In addition, a “Next Steps” section is included at the end of this brief that outlines TG’s expectations moving forward.

In summary, TG’s recommendations to the Committee are to:

1. Amend section 7 of the Fisheries Act to better guide the Minister’s discretion in issuing licences to recognize our concurrent and at times exclusive jurisdiction and rights; 2. Amend section 6 of the Fisheries Act to require the Minister to take our treaty rights, jurisdiction, and laws into account when recommending that regulations be made in respect of the sections enumerated therein, which deal with, for instance, exempting certain fisheries from the operation of section 35; 3. Amend the Northwest Territories Fishery Regulation to provide for the same recognition of the Tłı̨ chǫ Agreement as is given to the Inuvialuit Agreement, namely, that licences are not required for Tłı̨ chǫ Citizens harvesting fish in Mǫwhì Gogha Dè Nı̨ ı̨ tłèè; 4. Amend the Fisheries Act to recognize agreements between Indigenous groups and the Crown, allow for their implementation and provide for a harmonization of Crown/Indigenous jurisdiction and Crown/Indigenous laws under such agreements, and further provide that such agreements and laws may be given effect through regulation; and 5. Amend the Fisheries Act to enable regulations made thereunder to incorporate laws or recommendations made by “Aboriginal organizations”3 or co-management bodies by reference.

The Tłı̨ chǫ Way of Life – “Knowing the ways of animals and people and the land”4

We have always lived on and been a part of the land we call Mǫwhì Gogha Dè Nı̨ ı̨ tłèè.

In the words of John B. Zoe, senior policy advisor to Tłı̨ chǫ Government and the Chief Negotiator of the Tłı̨ chǫ Agreement:

This territory is our home. It is the Tłı̨ chǫ place in the world … It is the inheritance we must preserve for the generations of our people to come ... The heart of our territory— Wek’èezhıì —was exclusively ours and the Tłı̨ chǫ represented the overwhelming majority of people living throughout Wek’èezhıì , and still do to this day.5

We have always been deeply connected to the land:

3 This term is used because of its use in the Fisheries Act. 4 Affidavit of John B. Zoe para. 15, submitted by Tłı̨ chǫ Government in Tłı̨ chǫ Government v. Canada (Attorney General), [2015] NWTJ No 14. 5 Affidavit of John B. Zoe at paras 8 and 10, ibid. 2

Long before other people came to the area, our ancestors had developed the knowledge, skills and technology to sustain themselves by harvesting our territory’s resources for food, clothing and shelter. We had control over these lands, waters and resources and control over what happened within our territory. … Tłı̨ chǫ history is the story of how we have developed a relationship with the land and the animals that sustain us in the territory both they and we inhabit and share. The Tłı̨ chǫ have always co-existed with the animals, the lands and the waters. It is from this co- existence that we have derived many of our stories, wisdom and teachings.6

The Tłı̨ chǫ way of life is inextricably intertwined with the lands and waters of Mǫwhì Gogha Dè Nı̨ ı̨ tłèè. Our way of life has always included control and stewardship over the lands and waters; this is now codified through the Tłı̨ chǫ Agreement.

The Tłı̨ chǫ Agreement: Tłı̨ chǫ Rights, Jurisdiction and Co-Management

The Tłı̨ chǫ entered into land claims negotiations with Canada decades ago with the goal of protecting our way of life and Mǫwhì Gogha Dè Nı̨ ı̨ tłèè for future generations. To achieve this goal, three geographic areas are set out in the Tłı̨ chǫ Agreement. An understanding of these areas is critical to understanding our rights and jurisdiction, as well as the functioning of the WRRB. These areas are:

 Mǫwhì Gogha Dè Nı̨ ı̨ tłèè. This is our traditional territory. It spans approximately 205,000 square kilometers. We have harvesting rights, including fishing rights, in this entire area year-round.7 These rights include trading and gifting edible parts of wildlife, including fish, to other Tłı̨ chǫ citizens or members of another Aboriginal people of the Northwest Territories, Nunavut, or Alberta for their own consumption.8  Wek’èezhıi.̀ This is an area within Mǫwhì Gogha Dè Nı̨ ı̨ tłèè that spans approximately 160,000 square kilometers. Wek’èezhı̀i is “the heart of Tłı̨ chǫ traditional territory. It is an area of immense importance to us because the health, traditional pursuits and well- being of the Tłı̨ chǫ people are inextricably connected to Wek’èezhı̀i … ensuring that the Tłı̨ chǫ are co-managers with respect to the lands, waters, and wildlife in Wek’èezhı̀i, is key to the Tłı̨ chǫ Agreement.”9 The Tłı̨ chǫ Agreement recognizes as a principle that “the regulation of land and water in Wek’èezhı̀i and adjacent areas should be co-ordinated.”10 It also establishes the WRRB, a co-management board which implements this principle of coordination in regulation. The WRRB performs certain enumerated functions related

6 Affidavit of John B. Zoe at para. 11 and 13, ibid. 7 Section 10.1.1 of the Tłı̨ chǫ Agreement states that the Tłı̨ chǫ ’s right to harvest all species of wildlife (including fish) throughout Mǫwhì Gogha Dè Nı̨ ı̨ tłèè throughout the year, “subject to any limitations prescribed by or in accordance with the Agreement.” 8 Tłı̨ chǫ Agreement, s.10.3.1. 9 Affidavit of John B. Zoe at para. 41, supra. 10 Tłı̨ chǫ Agreement, s. 22.1.1. 3

to wildlife (including fish) management within Wek’èezhı̀i. Half of the WRRB’s members are appointed by TG, and half by territorial/federal government.11  Tłı̨ chǫ Lands. This is an area approximately 39,000 square kilometers, where TG, on behalf of the Tłı̨ chǫ people, is vested with fee simple title and exercises exclusive jurisdiction as set out in the Tłı̨ chǫ Agreement. This exclusive jurisdiction is demonstrated, for instance, in section 10.7.3 of the Tłı̨ chǫ Agreement, which states that no person may harvest wildlife for commercial purposes on Tłı̨ chǫ Lands without the authorization of TG.

The Fisheries Act interacts with our rights and jurisdiction in different ways, depending on the geographic area that is at issue. Some of these potential interactions are explored below.

Current Issues with the Fisheries Act

Need for Recognition of Concurrent TG Jurisdiction

The Fisheries Act does not currently recognize the jurisdiction of Indigenous governments, including TG, over aspects of fishing or fisheries management.

As briefly raised above, the Minister’s ability to issue licenses under section 7(1) does not acknowledge that TG has spheres of jurisdiction regarding fishing and fisheries that are concurrent to the federal governments. The Fisheries Act does not recognize that TG also has, for instance, jurisdiction over commercial harvesting on Tłı̨ chǫ Lands that cannot be encroached on by government (i.e., the Minister cannot issue a valid licence for fishing on Tłı̨ chǫ lands without Tłı̨ chǫ consent). Recognition of this within the Fisheries Act is needed to ensure that it is implemented and applied in a way that respects the Tłı̨ chǫ Agreement.

TG has a wide scope of law making powers codified in the Tłı̨ chǫ Agreement, including, inter alia:  who may harvest fish in waters on Tłı̨ chǫ Lands;  which Tłı̨ chǫ Citizens may harvest fish in Mǫwhì Gogha Dè Nı̨ ı̨ tłèè;  limits on any species of stock of fish, applicable to any person on Tłı̨ chǫ Lands or by Tłı̨ chǫ Citizens in Mǫwhì Gogha Dè Nı̨ ı̨ tłèè  when harvesting may occur by any person on Tłı̨ chǫ Lands or by Tłı̨ chǫ Citizens in Mǫwhì Gogha Dè Nı̨ ı̨ tłèè; and  restrictions on gear or equipment used for harvesting, applicable to any person on Tłı̨ chǫ Lands or by Tłı̨ chǫ Citizens in Mǫwhì Gogha Dè Nı̨ ı̨ tłèè.12

As set out above, TG has the jurisdiction to make laws in relation to fishing Tłı̨ chǫ Lands or in relation to fishing by Tłı̨ chǫ Citizens in Mǫwhì Gogha Dè Nı̨ ı̨ tłèè. The federal government cannot legislate in such a way that TG is no longer able to also legislate in these areas; that is, federal legislation cannot be drafted or applied so as to render TG’s jurisdiction ineffective. This would be unconstitutional. And yet, the Fisheries Act contains no provision for concurrent areas

11 Tłı̨ chǫ Agreement, s. 10.2.2. 12 Tłı̨ chǫ Agreement, s. 7.4.3. 4

of jurisdiction and does not address or acknowledge TG’s law-making authority in relation to fishing.

Further, the Fisheries Act does not provide a means for TG to engage on a nation-to-nation basis with Canada about areas of concurrent jurisdiction. Such mechanism may mean, for instance, the negotiation of side agreements that provide greater clarity on the implementation of the Fisheries Act and Tłı̨ chǫ laws on certain territories, or that utilizes pre-existing, effective co- management bodies such as the WRRB to legislate, implement and regulate fishing in Wek’èezhı̀i or a wider area.

Further, if Canada and TG can continue to work together through the WRRB or other mechanisms, there is the potential for TG to take on greater stewardship for fishing in Wek’èezhı̀i. Expanding the scope of TG’s law-making authority is explicitly contemplated in the Tłı̨ chǫ Agreement, which provides that TG may make laws on “other items in regard to fish management as agreed to by [TG] and government and confirmed in legislation.”13 Both TG’s existing jurisdiction, and the potential for it to expand to include other areas by agreement, should be contemplated in the Fisheries Act.

Consideration by the Committee of the issue of the concurrent areas of jurisdiction and exclusive jurisdiction contained within the Tłı̨ chǫ Agreement should be at the core of the Committee’s review of the application of the Fisheries Act. It is also explicitly called for in the Prime Minister’s mandate letter to the Minister of Fisheries, Oceans and the Canadian Coast Guard which stated, “it is time for a renewed, nation-to-nation partnership … based on recognition of rights, respect, coordination, and partnership.”14 Having a nation-to-nation relationship means respecting, coordinating, and harmonizing the regulatory requirements of all relevant governments.

There are obvious advantages to regulatory coordination and harmonization. It lessens the prospects of future litigation over conflicting laws, it provides clarity for regulators and harvesters alike, and provides an opportunity for regionally tailored, sustainable fisheries management that respects our rights and the Tłı̨ chǫ Agreement. Considering these issues now will avoid needless confusion down the road when/if TG begins to draw down its law-making authority in the Tłı̨ chǫ Agreement.

Need for Consideration and Integration of Existing Co-Management Bodies

The Fisheries Act is currently silent on its interaction with existing co-management bodies such as the WRRB. A lack of respect for constitutionally protected co-management bodies has hindered federal legislative efforts in the past.15 Such conflicts do not further the goal of

13 Tłı̨ chǫ Agreement, s. 7.4.3. 14 Available online at: http://pm.gc.ca/eng/minister-fisheries-oceans-and-canadian-coast-guard- mandate-letter 15 In 2015, TG brought a successful injunction to prevent Canada from making unilateral amendments to the Mackenzie Valley Resource Management Act through the Devolution Act that would have destroyed another co-management body created under the Tłı̨ chǫ Agreement, the Wek’èezhı̀i Land and Water Board. See Tłı̨ chǫ Government v. Canada (Attorney General), [2015] N.W.T.J. No 14. 5

reconciliation or facilitate effective fisheries management. As stated above, a more streamlined approach that harmonizes existing regimes benefits both governments and harvesters.

TG recommends that the Fisheries Act provide a mechanism to recognize the jurisdiction and decisions of co-management bodies where the mandates of those bodies overlap with aspects of the Fisheries Act. For instance, TG’s jurisdiction to set harvesting limits are subject to the limits set by the WRRB, which may only set such limits for conservation purposes. The federal government also has jurisdiction in terms of setting harvesting limits, though it cannot infringe on a treaty right without justification (conservation or public health/safety).

Need for recognition of Treaty Rights Related to Fish in Mǫwhì Gogha Dè Nı̨ ı̨ tłèè

The Fisheries Act does not currently recognize, or mandate, that decision-makers such as the Minister consider or respect treaty rights related to fishing.

The Tłı̨ chǫ Agreement provides clearly that, regarding the exercise of Tłı̨ chǫ rights, including the Tłı̨ chǫ ’s treaty right to harvest fish, “limits may not be prescribed under legislation … except for the purposes of conservation, public health or public safety.”16 The Tłı̨ chǫ Agreement clearly states that “a Tłı̨ chǫ Citizen does not have to obtain a licence from government to exercise rights under 10.1.1 or 10.3.” Section 10.1.1 protects our right to harvest all species of wildlife, including fish, throughout Mǫwhì Gogha Dè Nı̨ ı̨ tłèè year-round, and section 10.3 protects our right to trade with and make gifts of wildlife to our kin and other Aboriginal peoples.

The current Fisheries Act gives the Minister “absolute discretion” in determining when to issue licenses for fishing in section 7(1). This section does not call the Minister’s attention to existing treaty rights to fish that cannot be subject to a licence. Similarly, it does not call the Minister’s attention to situations in which the Minister cannot issue a licence because another government must consent to any fishing; such is the case on Tłı̨ chǫ Lands. Guidance should be included in section 7 to clarify that the Minister’s discretion is not, in fact, unfettered, to avoid potential tensions or conflicts with the rights contained in Tłı̨ chǫ Agreement. Specific language to this effect is included in the “Recommendations” section below.

In addition, the Northwest Territories Fishery Regulation17 (“NWT Fishery Regulation”) provides that no person may fish in Canadian fisheries waters in and adjacent to the NWT without either a licence under that regulation or under the Aboriginal Communal Fishing Licence Regulations.18 The NWT Fishery Regulation currently recognizes only one exception to this general requirement; it provides that beneficiaries of the Western Arctic (Inuvialuit) Claims Settlement Act may fish in the Inuvialuit Settlement Region without a licence. No similar provision is made for Tłı̨ chǫ Citizens fishing in Mǫwhì Gogha Dè Nı̨ ı̨ tłèè.

In order to provide legislative consistency and clarity, as well as ensure that effect is given to the Tłı̨ chǫ Agreement, similar provisions that recognize the rights of Tłı̨ chǫ Citizens to fish without a licence, as well as to make gifts of fish and barter with other Aboriginal peoples, should be

16 Tłı̨ chǫ Agreement, s. 12.6.2. 17 CRC, c. 847. 18 SOR 93/332, NWT Fishery Regulations, s. 5(1). 6

included in the NWT Fishery Regulation. In addition, fees should also be waived for Tłı̨ chǫ Citizens applying for licences for kinds of fishing not protected under the Tłı̨ chǫ Agreement, as they are for Inuvialuit Agreement beneficiaries.19

Lack of a Meaningful Consultation Process

TG has not had the opportunity to engage in a meaningful consultation process regarding the Fisheries Act review. TG received a presentation on the Committee’s review process in October of 2016. TG had applied for funding in September 2016, in compliance with the Committee’s timeline. TG received confirmation of funding on November 7, 2016. This gave TG less than one month to prepare its submissions for this process. Given the complexity of fisheries regulation, including the concurrent jurisdiction of TG and the plethora of regulations that accompany the Fisheries Act, undertaking an in-depth review was simply not feasible with the time and funding provided. Because of this, it is TG’s position that engagement on additional modifications to the Fisheries Act and some of its accompanying regulations continue after this review process concludes. This review has the potential to impact the Tłı̨ chǫ Agreement and, as such, engagement is mandated by the on-going process of treaty implementation and reconciliation, which “continues beyond the formal claims process. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982.”20

Recommendations for the Fisheries Act

TG makes the following recommendations for consideration by the Committee in its review of the Fisheries Act:

1. Amend section 7 of the Fisheries Act to better guide the Minister’s discretion, recognizing the concurrent and at times exclusive jurisdiction and rights of Indigenous governments such as TG:

Section 7(1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on, subject to the rights, co-management body decisions, and jurisdiction of Aboriginal government as set out in land claims and self-government agreements.

2. Amend section 6 of the Fisheries Act to require the Minister to take treaty rights, Indigenous jurisdiction and laws into account when recommending that regulations be made in respect of the sections enumerated therein, which deal with, for instance, exempting certain fisheries from the operation of section 35:

Before recommending to the Governor in Council that a regulation be made in respect of section 35 or under paragraph 37(3)(c) or 43(1)(i.01) or subsection

19 NWT Fishery Regulations, see Schedule IV. 20 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 32. 7

43(5), and before exercising any power under subsection 20(2) or (3) or 21(2), paragraph 35(2)(b) or (c) or subsection 35(3), or under subsection 37(2) with regard to an offence under subsection 40(1) or with regard to harm to fish, the Minister shall consider the following factors: … (e) Aboriginal rights and treaty rights, all agreements, including land claims and self-government agreements with Aboriginal organizations, and the jurisdictions conveyed by those agreements and laws made pursuant to them.

3. Amend the NWT Fishery Regulation to provide for the same recognition of the Tłı̨ chǫ Agreement as is given to the Inuvialuit Agreement, namely, that licences are not required for Tłı̨ chǫ Citizens harvesting fish in Mǫwhì Gogha Dè Nı̨ ı̨ tłèè.

4. Amend the Fisheries Act to recognize existing and future agreements between Indigenous groups and the Crown, allow for their implementation and provide for a harmonization of Crown/Indigenous jurisdiction and Crown/Indigenous laws under such agreements:21

4.5(1) The Minister may enter into an agreement with an Aboriginal organization regarding the conduct of an Aboriginal fishery or laws developed by Aboriginal organizations regulating the conduct of the fisheries.

(2) “An agreement” includes an existing or future land claims and/or self- government agreement, if designated as such by mutual agreement of the Minister and the Aboriginal organization.

(3) If an Aboriginal organization with whom an agreement has been entered into under section 4.5(1) allows for the development of laws by an Aboriginal organization in relation to an Aboriginal fishery, or, under section 4.5(2), allows for the development of laws in relation to settlement land, the Governor in Council may, by order, declare that certain provisions of this Act or of the regulations do not apply to the Aboriginal fishery or settlement lands with respect to the subject matter of the laws of the Aboriginal organization.

(4) Except with respect to Her Majesty in right of Canada, the provisions of this Act or of the regulations that are set out in the order do not apply within that province or territory with respect to the subject matter of the provision under the laws of the province or territory.

And further provide that such agreements and laws be given effect through regulation:

43(1) The Governor in Council may make regulations for the carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations

21 This was contemplated in the 2012 Fisheries Act amendments, regarding agreements between Canada and the provinces. 8

… (q) recognizing and giving effect to any agreement with an Aboriginal organization or laws developed by an Aboriginal organization as contemplated under s. 4.5, regarding the conduct of an Aboriginal fishery or on lands over which the Aboriginal organization has jurisdiction by virtue of any agreement under s. 4.5

5. Regulations under the statute should be enabled to incorporate laws or recommendations made by Aboriginal organization or co-management bodies by reference:

89(1) A regulation made under this Act may incorporate by reference material produced by a person or body other than the Minister, including by an Aboriginal organization or a co-management body, a government, a government agency or an international body

(2) A regulation made under this Act may incorporate by reference material produced jointly by the Minister and an Aboriginal organization or a co- management body, a government or government agency for the purpose of harmonizing the regulation with other laws.

Next Steps:

The federal government made much of its intention to consult with Indigenous peoples as an integral aspect of the review of the Fisheries Act and other core environmental legislation. Thus far, TG’s experience of consultation has been brief and perfunctory. TG has submitted this brief not as a conclusion to a fulsome consultation process, but rather as a preliminary issue identification exercise. TG expects that the Committee will continue to engage with TG on its recommendations contained herein, and TG reserves the ability to make further recommendations as necessary, until the Committee and TG are both confident that Tłı̨ chǫ rights, jurisdiction and law-making powers under the Tłı̨ chǫ Agreement have been acknowledged, respected, and enhanced.

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