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Implementation of the Mi'kmaw and Maliseet Treaty Right to Fish In

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Implementation of the Mi'kmaw and Maliseet Treaty Right to Fish In IMPLEMENTATION OF THE MI’KMAW AND MALISEET TREATY RIGHT TO FISH IN PURSUIT OF A MODERATE LIVELIHOOD Report of the Standing Committee on Fisheries and Oceans Ken McDonald, Chair MAY 2021 43rd PARLIAMENT, 2nd SESSION Published under the authority of the Speaker of the House of Commons SPEAKER’S PERMISSION The proceedings of the House of Commons and its Committees are hereby made available to provide greater public access. The parliamentary privilege of the House of Commons to control the publication and broadcast of the proceedings of the House of Commons and its Committees is nonetheless reserved. All copyrights therein are also reserved. Reproduction of the proceedings of the House of Commons and its Committees, in whole or in part and in any medium, is hereby permitted provided that the reproduction is accurate and is not presented as official. This permission does not extend to reproduction, distribution or use for commercial purpose of financial gain. Reproduction or use outside this permission or without authorization may be treated as copyright infringement in accordance with the Copyright Act. Authorization may be obtained on written application to the Office of the Speaker of the House of Commons. Reproduction in accordance with this permission does not constitute publication under the authority of the House of Commons. The absolute privilege that applies to the proceedings of the House of Commons does not extend to these permitted reproductions. Where a reproduction includes briefs to a Standing Committee of the House of Commons, authorization for reproduction may be required from the authors in accordance with the Copyright Act. Nothing in this permission abrogates or derogates from the privileges, powers, immunities and rights of the House of Commons and its Committees. For greater certainty, this permission does not affect the prohibition against impeaching or questioning the proceedings of the House of Commons in courts or otherwise. The House of Commons retains the right and privilege to find users in contempt of Parliament if a reproduction or use is not in accordance with this permission. Also available on the House of Commons website at the following address: www.ourcommons.ca IMPLEMENTATION OF THE MI’KMAW AND MALISEET TREATY RIGHT TO FISH IN PURSUIT OF A MODERATE LIVELIHOOD Report of the Standing Committee on Fisheries and Oceans Ken McDonald Chair MAY 2021 43rd PARLIAMENT, 2nd SESSION NOTICE TO READER Reports from committee presented to the House of Commons Presenting a report to the House is the way a committee makes public its findings and recommendations on a particular topic. Substantive reports on a subject-matter study usually contain a synopsis of the testimony heard, the recommendations made by the committee, as well as the reasons for those recommendations. STANDING COMMITTEE ON FISHERIES AND OCEANS CHAIR Ken McDonald VICE-CHAIRS Richard Bragdon Marilène Gill MEMBERS Mel Arnold Jaime Battiste Terry Beech Blaine Calkins Serge Cormier Ken Hardie Gord Johns Dan Mazier Robert J. Morrissey OTHER MEMBERS OF PARLIAMENT WHO PARTICIPATED Taylor Bachrach Maxime Blanchette-Joncas Bob Bratina Chris d’Entremont Hon. Kirsty Duncan Greg Fergus Pat Finnigan Peter Fonseca Gudie Hutchings Mike Kelloway Elizabeth May iii Hon. Rob Moore Hon. Ginette Petipas Taylor Brenda Shanahan Tony Van Bynen John Williamson Lenore Zann Bob Zimmer CLERKS OF THE COMMITTEE Tina Miller Nancy Vohl LIBRARY OF PARLIAMENT Parliamentary Information, Education and Research Services Michael Chalupovitsch, Analyst Daniele Lafrance, Analyst Thai Nguyen, Analyst iv THE STANDING COMMITTEE ON FISHERIES AND OCEANS has the honour to present its FOURTH REPORT Pursuant to its mandate under Standing Order 108(2), the committee has studied the implementation of Mi’kmaq treaty fishing rights to support a moderate livelihood and has agreed to report the following: v TABLE OF CONTENTS LIST OF RECOMMENDATIONS .......................................................................................................... 1 IMPLEMENTATION OF THE MI’KMAW AND MALISEET TREATY RIGHT TO FISH IN PURSUIT OF A MODERATE LIVELIHOOD ................................................................................ 9 Introduction ....................................................................................................................................... 9 Background ..................................................................................................................................... 11 Peace and Friendship Treaties of 1760 and 1761 .................................................... 11 The Marshall Cases ............................................................................................................... 12 Marshall I ........................................................................................................................... 13 Marshall II.......................................................................................................................... 15 Previous Committee Report .............................................................................................. 16 Implementation of the Marshall Decisions ......................................................................... 17 Historical Mi’kmaw Involvement in Fisheries ........................................................... 17 Actions Taken by Fisheries and Oceans Canada Since the Marshall Decisions ............................................................................................................................ 18 Marshall Response Initiative and Atlantic Integrated Commercial Fisheries Initiative ......................................................................................................... 18 Rights Reconciliation Agreements ........................................................................... 20 Challenges in Defining the Concept of Moderate Livelihood ................................ 21 Moderate Livelihood Treaty Right and Fishery Governance................................ 24 Authority for Fishery Management ......................................................................... 24 Co-Management as a Potential Way Forward ..................................................... 26 Adjacency as an Access Criterion ............................................................................. 27 Conservation of Fishery Resources and Enforcement of Fishery Regulations ..... 28 Lobster Conservation ........................................................................................................... 29 DFO-Regulated Conservation Measures ................................................................ 29 Netukulimk and Mi’kmaw Conservation-Based Practices .............................. 32 Conservation as a Justified Ground for Treaty Right Restrictions ..................... 35 vii Monitoring of Fishery Activities and Enforcement of Fishery Regulations .... 37 Monitoring and Enforcement by Fisheries and Oceans Canada .................. 37 First Nation-Led Monitoring and Enforcement .................................................. 39 Opportunities for Monitoring and Enforcement Collaboration ................... 39 Fostering Communication and Treaty Education ............................................................ 41 Communication Needs ........................................................................................................ 41 Treaty Education and Addressing Systemic Racism ................................................ 44 Conclusion ....................................................................................................................................... 47 APPENDIX A LIST OF WITNESSES ................................................................................................ 49 APPENDIX B LIST OF BRIEFS .......................................................................................................... 53 REQUEST FOR GOVERNMENT RESPONSE ................................................................................ 55 DISSENTING OPINION OF THE CONSERVATIVE PARTY OF CANADA ............................ 57 DISSENTING OPINION OF THE BLOC QUÉBÉCOIS ................................................................. 67 viii LIST OF RECOMMENDATIONS As a result of their deliberations committees may make recommendations which they include in their reports for the consideration of the House of Commons or the Government. Recommendations related to this study are listed below. Recommendation 1 That the Government of Canada recognize the Mi'kmaw and Maliseet right to a moderate livelihood fishery as a foundation of the Government of Canada’s nation-to-nation relationship with the Mi’kmaq and Maliseet nations. ..................... 22 Recommendation 2 That the Government of Canada work in partnership with Mi’kmaq and Maliseet communities to help define a moderate livelihood in a manner that is consistent with its cultural significance and distinct needs of the Mi’kmaq and Maliseet, and within the Constitution and laws of Canada. ....................................... 22 Recommendation 3 That the implementation of a moderate livelihood fishery consider the evolution of Mi’kmaw and Maliseet participation in various lobster fisheries in the years since the Marshall decisions. ..................................................................... 22 Recommendation 4 That the federal government undertake discussions with all appropriate Mi’kmaw and Maliseet representatives to help determine
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