Review of Environmental and Regulatory Processes 2. Review of the Fisheries Act

Submission by the Essipit Innu and Nutashkuan Innu First Nation Concerning the Review of the Fisheries Act

Essipit Innu First Nation

Nutashkuan Innu First Nation

Presented to the House of Commons Standing Committee on Fisheries and Oceans

November 30, 2016

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Review of Environmental and Regulatory Processes 2. Review of the Fisheries Act

Preliminary Note for the Standing Committee on Fisheries and Oceans (FOPO)

Because of the deadline for this consultation, Mashteuiatsh First Nation did not have time to present and obtain authorization by resolution for the use of the name Pekuakamiulnuatsh Takuhikan in this brief despite the group’s significant participation in preparing it. If changes must be made once the brief is presented to elected officials, we will inform you and forward the resolution and the new version of the document.

1. Introduction1

1.1. Background The federal government launched a Review of Environmental and Regulatory Processes (hereinafter referred to as the “Review”), one component of which is a review of the Fisheries Act as amended in 2012 and 2013 (Bills C-38 and C-45). The amendments significantly reduced protection for several species of fish and their habitat. The two so- called “mammoth” bills replaced the section preventing “the harmful alteration, disruption or destruction of fish habitat” with measures to prevent “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or that support such a fishery”. Further changes were made by amendments to the Navigation Protection Act and the new Canadian Environmental Assessment Act, which made fish and their habitat even more vulnerable. The House of Commons Standing Committee on Fisheries and Oceans (FOPO) is charged with reviewing the Fisheries Act and ensuring that Aboriginal peoples are consulted and their rights, Aboriginal title, interests and concerns taken into account. That should be one of the guiding principles of this Review. 1.2. Interconnections among the four components of the Review

This Review is one of four components being studied separately by separate committees observing different deadlines. This approach limits the analytic scope by making it impossible to analyze the obvious interconnections suggested by the name of this extensive undertaking.

Nobody can deny that projects relating primarily to fisheries, navigation, federal environmental assessments or the activities of the National Energy Board (NEB) can have significant impacts on related areas. For example, if the Fisheries Act is not amended in parallel to and congruently with the Canadian Environmental Assessment Act, projects in or near aquatic environments could be implemented without due consideration for Aboriginal fishing rights or respect for the principles of sustainable development.

1 This submission was prepared in collaboration with the First Nations of Quebec and Labrador Sustainable Development Institute, an organization created by the Assembly of First Nations of Quebec and Labrador. Page 2 of 10

Review of Environmental and Regulatory Processes 2. Review of the Fisheries Act 2. Quality of consultation Although the government is committed and constitutionally bound to ensure the full participation of Aboriginal groups and the inclusion of their rights and interests in this Review process, we feel we must notify FOPO and the Minister of Fisheries and Oceans of certain deficiencies, such as significant time and funding constraints. The deadline for submissions to FOPO was November 30, 2016, even though FOPO itself only began its study on October 31. In addition, we received notice of funding on November 18, which was more than two months after we submitted our request for funding. Being unable to access financial support before then, we had to prepare our submission between November 18 and 30, 2016, which is utterly unrealistic and unacceptable.

It is difficult to understand why the committee acted this way, so we seek assurances that we will be consulted on all forthcoming bills and regulations that could have an adverse impact on our rights and interests regarding our traditional territories and the resources therein.

We wish to remind you that, in addition to Canada’s commitments regarding Aboriginal consultation (signature of the United Nations Declaration on the Rights of Indigenous Peoples, guidelines on Aboriginal consultation and accommodation), a number of Supreme Court decisions have also established the government’s obligation to consult us (Haïda, Tsilhqot’in, Mikisew). According to Canada’s guidelines on Aboriginal consultation and accommodation, consultation involves two phases: planning and consultation. Phase 1 involves (1) assembling the necessary information, (2) analyzing the information, (3) designing a consultation process, and (4) identifying and articulating our position. Phase 2, consultation, gives us an opportunity to (1) share and discuss our concerns, (2) negotiate accommodations, (3) implement accommodations, and (4) monitor accommodations and adjust them as necessary. 3. Our three First Nations As explained below, and subject to the preliminary note, our three First Nations are closely associated and connected through the negotiation of a treaty with Canada and Quebec. Because of our close association, we share our thoughts on a number of issues that affect us all, including issues related to Canada’s Review. 3.1. Pekuakamiulnuatsh First Nation2 Pekuakamiulnuatsh First Nation comprises 6,601 members, 2,074 of whom reside in the community of Mashteuiatsh. The name of our First Nation means “Innu of Pekuakami”, a reference to our homeland, the Pekuakami (Lac Saint-Jean) watershed. Known for its iconic species, the landlocked salmon, the Pekuakami is critical to the fish supply for members of the community of Mashteuiatsh. Many other bodies of water on family territory supply members who occupy and use the Nitassinan (ancestral territory). Our reserve is 15 km2, and our ancestral territory covers nearly 92,000 km2, excluding the southwest portion (21,000 km2), which is shared with the Mashteuiatsh, Essipit and Pessamit First Nations. 3.2. Essipit Innu First Nation

2 Subject to preliminary note. Page 3 of 10

Review of Environmental and Regulatory Processes 2. Review of the Fisheries Act Essipit Innu First Nation is located 40 km east of Tadoussac on the north shore of the St. Laurence estuary. As of October 31, 2016, the band comprised 745 members, 207 of them residing on reserve territory. Originally 0.4 km2, the reserve was expanded to 0.89 km2 in 1998. Approximately half of the 8,403 km2 Nitassinan is located within the Quebec administrative region of Saguenay—Lac-Saint-Jean, and the other half is located in the North Shore region. It derives much of its economic development from the river. In addition to traditional hunting and fishing activties within the territory, hunting and fishing for food (cod, rockfish, whelk, halibut, clam, seal, waterfowl, etc.) occurs in the northern part of the river. The community is also vertically integrated in commercial fishing activities including vessel operation, processing plants, retail and restaurant fish markets and a distribution network for sales in Quebec and seafood exports. 3.3. Nutashkuan First Nation Nutashkuan First Nation, located at the boundary of the Middle North Shore approximately 960 km from Quebec City has a population of more than 1,100. Its Nitassinan (ancestral territory) covers nearly 52,000 km2. Part of its Nitassinan straddles the Jacques Cartier Strait in the Gulf of St. Lawrence and includes a significant portion of Anticosti Island. Atlantic salmon often frequent its many rivers, such as the Natashquan and the Aguanish, and this vast territory supports the traditional fishery as well as commercial fishing in its marine environments (cod, halibut, lobster, crab and other groundfish). 3.4. Land claims Our three First Nations, Canada and Quebec have signed the Agreement-in-Principle of General Nature (APGN), which is the basis for a treaty that has been under negotiation for more than 10 years. This modern treaty will define the effects of our rights and our Aboriginal title on our respective ancestral territories. This negotiation with the Government of Canada fully informs this brief. 3.5. Water and Innu Aitun3 There can be no life without water. That is why water is of such great spiritual and physical importance to the Innu: the Innu belong to the world, not the other way around. We are an inseparable part of the environment, and water is therefore an integral part of Innu life. From time immemorial, we have been practicing Innu Aitun, our traditional activities, and using lakes and rivers to travel throughout our territory to reach family territory, feed ourselves, trade and meet with other First Nations. Summer gatherings were held at the mouths of major rivers or on the shores of big lakes. On these bodies of water and from their shores, we fished (salmon, landlocked salmon, walleye, trout, whitefish, burbot, pike, etc.) and hunted (migratory birds, beaver, caribou, moose, bear, seal, etc.). To this day, we often travel by water within our territory, and much of our food supply is drawn from the water all year round. The food fishery is still important for subsistence in our communities. Any obstacle to fishing or to the integrity of fish habitat will have an adverse effect on our subsistence activities.

3 See definition in APGN (p. 4). Page 4 of 10

Review of Environmental and Regulatory Processes 2. Review of the Fisheries Act Life within our territory (Nitassinan) and Innu Aitun, endure because they are heavily based on traditional knowledge, which is constantly being updated and modernized. Because of that knowledge, our understanding of the impact of projects on the environment differs from that of proponents, scientists and technicians. Our knowledge enables us to contribute to impact assessment and problem-solving when projects affect fish and fish habitat. For example, sampling plans can benefit from the knowledge of Aboriginal occupants of the territory.

To summarize, fish, fish habitat and fisheries are of vital environmental, social, cultural and economic interest to our three First Nations. As such, our identity, culture, economy and subsistence activities are linked to the statutory and regulatory framework of the new Fisheries Act.

3.6. Innu commercial fishing licence holders Alongside Innu Aitun, fishing constitutes a major economic activity, especially for two of our communities located on the shores of the estuary and the Gulf of St. Lawrence who have been fishing for a number of years on a commercial scale. This fishery itself constitutes an economic lever and contributes to creating other development opportunities such as in the product processing sector, creating jobs, and setting up training programs. 3.6.1. Jurisprudence Canadian jurisprudence has repeatedly affirmed First Nations’ right to fish (see Annex: R. v. Sparrow, [1990]; R. v. Jones, [1993] 3 CLNR 182 (Ont. Prov. Div.); and R. v. Marshall, [1999] 3 SCR 533). The importance of access to fishing activities has been confirmed in several legal cases involving First Nations fishing rights in conflict with the Fisheries Act. Canadian jurisprudence thus confirms the existence of collective Aboriginal fishing rights, reflecting fundamental needs such as subsistence and the maintenance of economic activities. It is therefore the duty of the Crown to ensure that the modernization of the Fisheries Act protects these rights. 3.6.2. Statutory constraints on Aboriginal fishing rights Our First Nations’ rights with respect to water and navigation are affected by the current Fisheries Act as follows: . The definition of “Aboriginal fishery” does not explicitly recognize Aboriginal fishing rights. In addition, the priority importance of Aboriginal fisheries (see Sparrow) is undermined by the appearance of the word “Aboriginal” after “commercial” and “recreational” in several provisions of the law. . The definition of “serious harm” (subsections 2(2) and 35(1)) allows the harmful alteration and disruption of fish habitat. This definition threatens Aboriginal fishing rights through complete disregard for an approach based on a holistic understanding of how fish interact with the physical, chemical and biological features of their ecosystems and enables projects to obtain approval by circumventing a number of environmental assessments.

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Review of Environmental and Regulatory Processes 2. Review of the Fisheries Act . The discretionary powers of the Minister and the Governor in Council (subsection 35(3) exacerbated by subsections 35(4), 43(1) and 43(5), etc.) are vast and could easily undermine Aboriginal fishing rights. . The factors that the Minister must take into account before recommending to the Governor in Council to make regulations or to exercise certain powers (section 6) do not take into account First Nations interests or their preponderance in such matters. . The project review process does not include potential impacts on Aboriginal fishing rights. Moreover, the transfer of project review responsibility to the proponent rather than Fisheries and Oceans Canada (DFO) is problematic. For example, since the proponent hires its own “experts”, the project review may be biased. 4. For a new act Here are the major elements we believe must inform the new Fisheries Act.

Basic premises . Loss of fish habitat (aquatic ecosystems) is one of the major factors contributing to the decline of a number of species in recent decades. . The courts have recognized Aboriginal fishing rights. It is regrettable that the definition does not specify communal commercial fishing licences under the Allocation Transfer Program (ATP), which is part of the Aboriginal Fisheries Strategy (AFS). Because this has been the subject of important rulings, the new version of the Fisheries Act must include the following:

“communal commercial fishing licences are an integral part of Aboriginal fishing rights”.

4.1. Wording Subsections 32(1) and 35(1) of the previous version of the Fisheries Act (before 2012) did far more to protect fish habitat. The prohibition on destruction of fish (subsection 32(1) before 2012) and the prohibition on harmfully altering, disrupting or destroying fish habitat (subsection 35(1) before 2012) did more to protect habitat than the current version, which merely prohibits activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery or to fish that support such a fishery. Serious harm is defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat”.

We want the wording used in subsections 32(1) and 35(1) prior to the 2012 amendments to be restored in the next version of the act. 4.2. Minister’s discretionary powers Subsection 35(3) grants the minister several powers relating to approval of projects in fish habitat. Moreover, paragraph 35(2)(c) states that “A person may carry on a work, undertaking or activity if authorized by a prescribed person or entity”. We consider these discretionary powers far too broad because they relieve the department of its responsibility to protect fish, fish habitat and fisheries. The minister’s discretionary power should be severely curtailed or even eliminated. 4.3. Project authorization process Page 6 of 10

Review of Environmental and Regulatory Processes 2. Review of the Fisheries Act In the past, all work carried out in fish habitat was subject to a DFO assessment to determine whether it would cause harmful alteration, disruption or destruction of fish habitat. Following the assessment, the department either provided advice to the proponent or determined that the project required authorization, thus triggering an environmental assessment. Currently, proponents self-assess their projects to determine whether they could damage fish or fish habitat. If the initial analysis indicates that no serious damage will occur, DFO does not require an assessment. This initial step does not include Aboriginal consultation. If not, the proponent must submit the project to the department, which determines whether the project requires authorization. Here again, Aboriginal consultation can be circumvented. However, if DFO determines that an assessment is necessary, its biologists decide whether or not to authorize the project based on fishery productivity, measures to avoid, mitigate or offset damage, and the public interest. Without prejudice to the professionalism and integrity of DFO officials, we see a need for a proper environmental assessment consistent with the Environmental Assessment Act. Although DFO must consult Aboriginal peoples during this final assessment phase, it is our view that the Canadian Environmental Assessment Agency’s (CEAA) Aboriginal consultation model is much more credible than DFO’s. This brings us to our next point. 4.4. Consultation The current version of the Fisheries Act does not mention either the United Nations Declaration on the Rights of Indigenous Peoples or the principle of free, prior and informed consent (FPIC). Now that the declaration has been signed, we hope that the new version of the act—and all other acts—will be informed by its spirit and honour its letter in accordance with recent jurisprudence (Haida Nation v, British Columbia (Minister of Forests), [2004] 3 SCR 511; Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 256; and Courtoreille v. Canada, [2014] FC 1244). The latter decision determined that the Crown should have consulted with the Mikisew Cree First Nation before Bill C-38 and Bill C-45, which had significant impacts on all of the acts currently subject to this Review, were introduced. The current form of the Fisheries Act affects in various ways First Nations’ right to be consulted and accommodated, including: . The absence of provisions on First Nations consultation and accommodation; . Transferring responsibility for project review to the proponent limits the number of projects in which the Crown is involved. This seems to be a way for the Crown to bypass its constitutional duty to consult and accommodate First Nations. 4.5. Recommendations for changes to the Fisheries Act New provisions should be integrated into the modernized version of the Fisheries Act in order to respond to the Crown’s duty in terms of consultation and accommodation. 4.5.1. Adequate consultation . Explicit recognition of the rights of First Nations, including fishing rights; . Introduction of provisions on consultation and, when necessary, accommodation of First Nations; . Project reviews should be conducted by the CEAA or should follow the CEAA’s review protocol, with any necessary adaptations.

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Review of Environmental and Regulatory Processes 2. Review of the Fisheries Act 4.5.2. Adopting an ecosystem-based approach An ecosystem-based approach to legislation is critical to protecting fish habitat. Scientists generally speak in terms of ecosystems, not habitats. While “fish habitat” may be one way to describe an aquatic ecosystem, the fauna and flora within that ecosystem are part of its dynamics and its evolving nature. This approach is especially important for hydrological ecosystems, which are very dynamic and have very strong upstream-downstream relationships. That is why we included point 1.2 at the beginning of this brief and will continue to include it in all of our briefs. 4.5.3. Integration of the traditional and contemporary Aboriginal knowledge Though often dismissed by scientific “authorities” and inadequately expressed by First Nations themselves, their intimate knowledge of the ecosystems, hydrological systems and biological world within their territory and their traditional and contemporary knowledge should never be ignored when infrastructure projects and other economic activities could change or threaten a specific environment well known to the Aboriginal peoples who have been a part of it for so long. Their knowledge must be integrated into environmental and social assessments.

4.5.4. Harmonize and mesh federal and provincial governmental jurisdiction When First Nations are consulted, they often have to go through the process twice because of shared jurisdiction or the transfer of certain responsibilities, such as wildlife management issues. This duplication results in more work, conflicting deadlines and lack of consistency in consultations. The new act should take this issue into consideration. 4.5.5. Improved monitoring of projects Typically, once authorizations and permits are granted, projects are considered to be in good hands. It is no longer considered necessary to maintain relationships among the project, the proponent, the department or departments, and the First Nations that participated in impact assessment. We believe that this aspect—along with many others, such as the cumulative and residual effects of projects within a given territory—should be regulated to ensure that First Nations are included in the process. 5. Conclusion Fisheries are a central aspect of the diverse interests of First Nations, including their specific way of life and their substantial relationship to the territory and its resources. The importance of accessibility to fishing activities is an integral part of Canadian jurisprudence and is supported by the right of First Nations to be consulted and accommodated in relation to projects affecting fish and their habitats. This brief is but the first step in restoring the confidence that was undermined when these acts were eviscerated in 2012-13. This Review seeks to restore that confidence by restoring the best parts of previous versions of the acts and modernizing them. That is why we, the Essipit Innu, the Nutashkuan Innu and the Pekuakamiulnuatsh, request to be consulted during the next steps of this Review and during the drafting of the new Fisheries Act bill.

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Review of Environmental and Regulatory Processes 2. Review of the Fisheries Act We also request that the new version of the Fisheries Act be drafted in accordance with our recommendations regarding the Environmental Assessment Act, the Navigation Protection Act, and the National Energy Board modernization.

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Review of Environmental and Regulatory Processes 2. Review of the Fisheries Act Annex. Three decisions concerning Aboriginal fishing rights

. R. v. Sparrow, [1990]. The Supreme Court of Canada established that Aboriginal people have the right to fish for food, social and ceremonial purposes, whether or not they had signed treaties. Furthermore, the Court noted in that case that “section 35 of the Constitution Act, 1982 stated that Aboriginal people's right to fish for subsistence purposes should from then on have priority over the interests of other fishing groups.” . R. v. Jones, [1993] 3 CLNR 182 (Ont. Prov. Div.). Judge Fairgrieve of the Court of Ontario ruled in favor of two Cape Croker Ojibway arguing that the restrictions imposed by the department on the commercial operating license of their band constituted an unjustified infringement on the exercise of their aboriginal or treaty rights to fish for commercial purposes. In this case the judge confirmed that the band's collective right to meet its needs through fishing had always formed an integral part of its economy. . R. v. Marshall, [1999] 3 RCS 533 : The Supreme Court of Canada recognized that under treaties of peace and friendship signed between 1760 and 1761 and still in force, the Mi'gmaq, Maliseet and Passamaquoddy of the Atlantic provinces and Quebec have the right to participate in the commercial fishery in order to produce a moderate livelihood.

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