Taykwa Tagamou Nation Written Brief on the 2016 Federal Review of the Fisheries Act. Submitted to the Parliament of Standing Committee on Fisheries and Oceans

Councillor Peter Archibald Sr. November 30, 2016

1.0 Introduction Taykwa Tagamou Nation (TTN) is a Mushkegowuk community whose traditional territory and Treaty lands are in the southern portion of the James Bay watershed in the Moose River basin in northern , within the area of . The general extent of our traditional territory and Treaty land-use area are shown in Figures 1 and 2. Pre-European contact, the Mushkegowuk Cree people lived off the land, hunting, trapping, gathering, and fishing for food and furs. The many rivers, streams, and lakes of what is now Northeastern Ontario provided canoe routes for travel and trade, and access to an abundance of fish. In particular, large rivers supported a rich diversity of food fish species including pickerel (also known as Walleye), lake sturgeon, lake whitefish, eastern brook trout, sea-going trout, and northern pike amongst others. Waterfowl were hunted in both the spring and the fall as the birds followed their annual north-south migration routes. The Cree traded amongst themselves and with other communities in Ontario and beyond. Our homelands have several archaeological sites and artifacts dating back 2,000 to 10,000 years indicating that our people were here from time immemorial and have exercised their Inherent rights over these lands long before treaties came into existence. As set out below, despite colonialization, we continue to practice traditional land-use and traditional livelihoods in our territory- hunting, fishing, trapping, and gathering.

The Fisheries Act must be revised to be consistent with the UN Declaration on the Rights of Indigenous Peoples, in particular as it relates to resources:

Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Our primary recommendation is that the Crown initiate a led process to determine the scope of, and protection of Indigenous Fisheries.

The time frame that has been provided for comment on the Act is inadequate to meaningfully consult First Nations and determine a First Nations approach.

Nonetheless, we have provided some comments and suggestions below for revisions to the Act.

2.0 TTN’s Use of its Territory Mushkegowuk Cree people, including former and living members of TTN, participated actively in the fur trade with Europe from the 1700s onward to the mid-20th century, and became associated with some of the important regional fur trading posts of this era including the Frederick House Post, Post, Island Falls Post, New Post, McInnis Post, Abitibi Post, and others downstream and on other

branches of the Moose and Abitibi Rivers . During this time period we travelled extensively within our territory in the pursuit of furs, travelling up even the smallest tributary waters by canoe during the ice free season to hunt and trap.

In the period since signing Treaty 9 with the Crown in 1905, our lands and our way of life have been under attack in the name of “development” and “progress”- a process which has been aided and abetted by the Crown. Mining and mine tailings effluent, forestry, hydroelectric and water control dams, untreated sewage from community sewer systems, effluent from pulp and paper mills and lumber mills, and many other developments have impacted the viability of our lands to produce abundant, safe and healthy food and furs, and maintain the animal populations that our traditional livelihood depends on and to which many of our inherent and Treaty rights are associated. The cumulative and legacy effects of this development and contamination continue to affect our First Nation members who hunt and fish for food in our homelands.

Nevertheless, we continue to practice traditional land-use and traditional livelihoods in our territory- hunting, fishing, trapping, and gathering. The viability and health of fish populations and aquatic ecosystems in our traditional territory and land-use area is critical both to the health and well-being of our community members, but also to our traditional knowledge and our culture. Conservation was a way of live for our people, preserving and protecting the environment to ensure the survival of future generations. The Circle of life was observed to perpetuate lasting existence of all species of life that lived in the water, and animals dependant on water for life.

We continue to take our stewardship responsibilities over our traditional territory and Treaty lands seriously. We participate in the Moose River Basin Custodial Body and the Detour Lake gold mine Regional Environmental Monitoring Board (REMB) with other First Nations. We have participated in forest management planning, harvest management planning processes for animals such as moose, and species-at-risk recovery planning. We have worked tirelessly to negotiate accommodation measures related to environmental protection in relation to hydroelectric, forestry, renewable energy, and mining projects. We have further negotiated related employment positions such as environmental monitors in association with these projects. We have developed a consultation and accommodation protocol to ensure all future project proponents in our territory understand their obligations with respect to engaging with TTN. We take these stewardship responsibilities for the health of our traditional territory very seriously, and expect the Crown to do the same.

Figure 1: Map of the core traditional territory of TTN (Source: TTN Consultation and Accommodation Protocol).

Figure 2: Map showing TTN land-use area (Source: TTN Consultation and Accommodation Protocol).

3.0 Comments on the Fisheries Act and Related Requests We have reviewed the Fisheries Act (2014) (“the Act”), and have made a number of comments and requested changes that reflect our rights and interests. These comments and requested changes are found below.

Our primary recommendation is that the Crown support a First Nations-led process to determine the scope and protections for Indigenous Fisheries. Following that process, First Nations and the Crown should negotiate an agreement that sets out respective roles and responsibilities for the protection of Indigenous Fisheries.

Section 4.1 should be revised to provide for agreements with First Nations to further the purposes of the Act, including any and all items within the regulatory making powers of section 38(9) and for implementation of powers under section 39.

We remind the Crown that the purpose of the Act requires the Crown to exercise its powers consistent with:

 Inherent rights of Indigenous people

 Nation to Nation relationships

 Section 35, Constitution Act

 UNDRIP

 Fair dealing and reconciliation between Indigenous people and the Crown

 Free prior and informed consent

3.1 Regulatory Revision: Definition of “Serious Harm to Fish” Before the Act was amended, Section 35 (2) prohibited harmful alteration, disruption, or destruction of fish habitat (HADD). This prohibition did not allow for any disruption of fish habitat, whether the changes were temporary or permanent. The HADD prohibition was replaced with a prohibition against “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery” unless the project or activity has been authorized.

“Serious harm to fish” is defined as in “the death of fish or any permanent alteration to, or destruction of, fish habitat”. This change allows for alteration and disruption of fish habitat, provided it is not permanent. This is problematic, as the health of many species of fish can be compromised by temporary changes in their environment. An additional issue with this definition is that poor health and fitness of fish does not constitute “serious harm”, even though these kinds of changes can result in serious impacts on aquatic ecosystems and fisheries.

The Act is subjective in identifying which fish species are included as part of a 'commercial, recreational or Aboriginal' fishery. The current Act applies only to fish and habitat supporting active fisheries and no longer encompasses all fish and fish habitat. Therefore, species of fish and habitat may not be protected if the fish is not part of an active fishery, the impact to its habitat is not permanent or there is no direct mortality during activity. Furthermore, fish are not protected if they are not collected under a license for social or ceremonial purposes, or if it does not hold any economic value to aboriginal communities

We recommend that amendments to the Act reintroduce the prohibition against HADDs. We also recommend keeping the introduction of commercial, recreational, and Aboriginal fisheries.

Therefore, we recommend Section 35 (1) to prohibit any work that: a) results in the harmful alteration, disruption or destruction of fish habitat; or b) results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.”

3.2 Definition “commercial, recreational or Aboriginal fishery, or to fish that support such a fishery” Under Section 35(1) of the Fisheries Act, prohibited undertakings or activities are those that result in serious harm to “fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.”

This section does not clarify what is meant by “fish that support such a fishery” and therefore there is a significant degree of ministerial discretion regarding when it would apply.

Fish and fishing are culturally important to TTN. This goes beyond the recreational, economic and dietary aspects of fisheries that are typically considered. As stewards of the land we have emotional, cultural and spiritual connections to fish, and we value all species. Therefore, any impacts to these species will have consequences for our people’s culture, spiritual, and emotional health, and for our way of life.

The definition of commercial, recreational, and Aboriginal (CRA) fisheries and “fish that support such a fishery” should be expanded so that all fish are afforded protection. This should include forage fish and bait fish that ecologically support CRA fisheries, hold economic value to support CRA fisheries and species culturally significant to Aboriginal communities.

3.3 Definition of “Aboriginal Fisheries” The definition of “Aboriginal fishery” includes fish harvested for “the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Aboriginal organization”. Given the current use of the term Indigenous, the term Aboriginal should be revised.

Fisheries with economic value are not included. Fisheries that are protected under treaties or traditional fisheries but are not currently active are also not recognized according to the current definition.

It is not clear if fisheries that are not being harvested, as a result of conservation efforts or other reasons, are still considered to be part of CRA fisheries and protected from “serious harm”. It is unclear whether First Nation operated unlicensed commercial fisheries fit within the definition. It is also unclear what protection exists under the Act for fisheries that operate under First Nations granted licences.

We recommend that all the types of fisheries described above must be included in the definition of Aboriginal fishery.

The following are additional recommendations:

 That the Crown provides for a First Nations led process to define what constitutes Aboriginal Fisheries, for the purposes of the Act.

 That the Crown provides a First Nations led process to determine the protections afforded to Aboriginal Fisheries under this Act.  Section 38 (4) or regulations under this section should be amended to include notification of the impacted First Nation Nations where an Aboriginal fishery is or is threatened to be impacted  Section 38(5) or regulations under the Act should provide for notification of the impacted First Nation where deleterious substance threatens fish habitat or fish used by Aboriginal people  Section 38(7) should be amended to provide for a written report to the impacted First Nation about the occurrence  Section 38(7.1) be amended to provide that a First Nation who have been notified under section 38(4) or (5) may take corrective actions  Section 38(8) be amended to recognise access to a First Nation who has been notified and wishes to take corrective action under Section 38(7.1).

3.4 Ministerial Authorization under Section 35 (2) The Act’s prohibition against placing obstructions in rivers has been changed in ways that shift the focus of the prohibition and render some things unclear. DFO’s authorization process for the use of some weirs and seines for monitoring purposes and the impact on First Nations that use these methods as their preferred means to exercise their fisheries rights is unclear.

In addition, the previous prohibition addressed the obstruction of a main channel, and the intent of the prohibition seemed to be about ensuring unimpeded navigation. The current prohibition addresses the obstruction of fish, suggesting its intent is to prohibit the harvesting fish instead of ensuring navigation.

A mechanism is needed in the Act for TTM and other Indigenous communities to comment to the Minister about whether authorization may be granted for First Nations to use seines and weirs for fishing and fish stock monitoring purposes, provided suitable notices and measures are put in place to ensure safe navigation.

3.5 Section 29: Obstructing passage of fish or waters Amendments to the Act restructure an existing prohibition against placing obstructions in rivers. It is unclear how these amendments will affect DFO’s ability to authorize or permit the use of some weirs and seines for monitoring purposes and the impact on TTN members that use these methods as preferred means to exercise their fishing rights.

In addition, the previous prohibition was listed in reference to the obstruction of a main channel. The prohibition is now placed in reference to obstruction of fish or waters, suggesting its intent is the prohibition on the act of harvesting fish instead of ensuring navigation.

A mechanism is needed in the Act for TTN to comment to the Minister about whether authorization may be granted for TTN members to use seines and weirs for fishing purposes as well as to count and monitor fish stocks, provided suitable notices and measures are put in place to ensure safe navigation.

3.6 Regulatory Addition: Restore policy goals of “Net Gain” and “No Net Loss” of habitat The previous Act had a “no net loss" habitat policy. The overall goal was an eventual net gain of habitat. The old policy helped protect habitat that could not be replicated and supported the reclamation and restoration of lost habitat.

Due to lack of monitoring and enforcement, it is unclear how successful activities aimed at creating net gain and ensuring no net loss have been. In addition to reinstating this policy a provision should be included for ensuring that effectiveness monitoring is in in place and net gains are realized.

The policy goal of net gain and no net loss of fish habitat should be restored. Consultation with TTN and other indigenous communities should be carried out in order to gather insight on how to frame and implement this policy goal.

Where there are potential impacts to TTN and its members, they should be included in decisions related to mitigation, offsetting, and monitoring. This would allow them to be involved in decisions regarding target species and habitat types that should be protected, rehabilitated and created. Moreover, by requiring monitoring, those responsible for projects which require offsetting are more likely to be held accountable when net gains are not realized.

Furthermore, such monitoring has long-term benefits for the effectiveness of fish habitat compensation efforts in general, much the way that follow-up programs in federal environmental assessments are intended to further long-term learning and adaptation of practices. 3.7 Regulatory Addition: Cumulative Effects to Fish and Fish Habitat. Indigenous Habitat Monitoring and Enforcement The current Act does not allow for rejection of proposed works based on cumulative effects. A watershed approach should be used to consider proposed works alongside all existing impacts in the area, and determine whether authorizations are appropriate. This will help determine whether all effects in the area, taken together, have the potential to harm fish and fish habitat within the area. In order to adequately assess cumulative effects within a given area, environmental assessment legislation should include triggers for assessments whenever authorizations are required under the Fisheries Act.

TTN and other indigenous communities should be involved in follow-up monitoring and enforcement when authorizations are granted. This will help to understand and assess cumulative effects, inform mitigation or offset measures, and provide important data for the assessment of future proposed projects. This will also help to assess the effectiveness of mitigation and compensation efforts, and provide direction if any changes to these efforts are needed.

3.8 Regulatory Jurisdiction: Memorandum of Understanding between DFO and the NEB On December 16, 2013, DFO signed a Memorandum of Understanding (MOU) with the National Energy Board (NEB), which makes the NEB responsible for the assessment of impacts to fish from energy projects such as pipelines and transmission lines. The NEB is now responsible for determining if there are impacts to fish and whether an authorization is required under the Fisheries Act and the Species at

Risk Act. If they determine that impacts of a project require authorization or a permit, then the DFO is contacted and becomes responsible for issuing these. There are several problems associated with this change but the two most important are: 1) the NEB has no mandate for protection of fish or aquatic habitats, and; 2) they lack the key capacity, experience and expertise to be able to competently assess them. Under the MOU, effects on TTN rights or interests related to the Fisheries Act that used to be handled by the DFO, are now to be dealt with by the NEB, an organization with a poor history of consultation with First Nations people. Beyond the direct impacts of poor consultation, this change serves to undermine trust in decisions made by government. As the Department with the mandate to protect Canada’s fisheries and support sustainable aquatic ecosystems, jurisdiction for assessing impacts to fish and fish habitat from energy projects should be restored to the DFO.