What we heard report: The Eastern Canada communal commercial licensing policy review
Summer 2024

On this page

• Introduction
• Timeline
  • Fall 2022
  • Winter 2023 to Spring 2023
  • Fall 2023 to Spring 2024
• What we heard
  • Flexibility and autonomy
  • Designation of people
  • Designation of vessels / vessel length
  • Adjacency and residency
  • Communal commercial vs. commercial
  • Benefits to communities
  • Processing times
  • Corporate entities
  • Differences across regions
  • A new policy
• Additional feedback
  • Racism
  • Bias
  • Demographics
  • Native councils
  • Community dynamics
• Next Steps
• Annex: List of Engagement Sessions

Introduction

Communal commercial licences are very important to many Indigenous communities in Eastern Canada. These licences provide fisheries access, provide economic benefits, and create jobs. Often, Fisheries and Oceans Canada (DFO) provides communal commercial licences as part of negotiated agreements. In Eastern Canada, they are key to DFO’s approach to implementing the right to fish in pursuit of a moderate livelihood.

The communal commercial licensing system is made up of the Aboriginal Communal Fishing Licences Regulations (ACFLRs) and other national and regional policies and guidelines.

DFO has heard from Indigenous communities that:

• the reasons behind licensing decisions are not always clear,
• decisions can take too long,
• decisions are not always the same between DFO regions, and
• delays or problems related to licensing can have a big impact on them.

We have also heard that, in some cases, licensing policies and decisions have not kept up with changes in the fisheries. Changes are needed to better support the Government of Canada’s goals for reconciliation.

In 2021, DFO started the Eastern Canada Communal Commercial Licensing Policy Review. This Review includes five DFO Regions in Eastern Canada:

• Newfoundland and Labrador
• Maritimes
• Gulf
• Quebec
• Arctic

Our goal is to better understand the current situations and challenges related to communal commercial licensing. We want to work closely with Indigenous communities in Eastern Canada to develop policy options and recommendations to address these issues.

The Review aligns with DFO’s commitment to improving relationships with and outcomes for Indigenous peoples. This commitment is outlined in the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) Action Plan. The Review is also a key deliverable to support the commitment made in UNDA Action Plan Measure 36: “pursue amendments and reforms to fisheries legislation, regulation, or policies to support self-determination and the meaningful implementation and exercise of Indigenous fishing rights, including Aboriginal and treaty rights.”

This report is a summary of what we have heard from participants in the engagement sessions held between Fall 2022 and Spring 2024.

Timeline

To build trust and good working relationships, the Review was designed so that engagement would take place over several years.

Fall 2022

In the fall of 2022, we discussed the Review with three Indigenous Organizations:

• Assembly of First Nations (AFN),
• Atlantic Policy Congress of First Nations Chiefs Secretariat (APC), and
• Confederacy of Mainland Mi’kmaq (CMM).

The feedback we received from these organizations helped shape the design of the Review.

Winter 2023 to Spring 2023

Between the winter and spring of 2023, we met with fisheries coordinators from Indigenous communities and organizations who hold communal commercial licences in Eastern Canada.^{Footnote 1} There were six meetings between February and May 2023.

The first three sessions were done in partnership with Atlantic Policy Congress of First Nations Chiefs Secretariat and included two online sessions – one in English and one in French. We also held an in-person, bilingual meeting in Moncton, New Brunswick.

These meetings included fisheries coordinators and other representatives from:

• First Nations from Newfoundland and Labrador,
• First Nations from Nova Scotia,
• First Nations from New Brunswick,
• First Nations from Prince Edward Island,
• First Nations from Quebec, and
• The NunatuKavut Community Council.

In the last three sessions, we met with fisheries coordinators and other representatives from:

• Native Council of Nova Scotia,
• New Brunswick Aboriginal Peoples Council,
• Native Council of Prince Edward Island,
• Nunatsiavut Government, and
• Makivvik Corporation.

In Spring 2023, DFO staff from the Quebec region held 11 in-person sessions with communal commercial licence holders.

These meetings allowed fishery coordinators and other representatives to share their knowledge and experience in managing communal commercial licences.

We used the feedback provided during these sessions to write the materials for the engagement sessions held in 2024.

Fall 2023 to Spring 2024

In July 2023, we wrote to the Chiefs and other leadership of communal commercial licence holders requesting to consult on the Review.

Throughout the fall of 2023, we worked with Indigenous partners to plan for the next engagement sessions, which began in January 2024. Between January and May, we held four in-person and two online sessions.

These sessions were developed in partnership with the following Indigenous organizations:

• Mi’kmaq Alsumk Mowimsikik Koqoey Association in Newfoundland and Labrador Region,
• the Wolastoqey Nation in New Brunswick and L’nuey in Gulf Region,
• Maritime Aboriginal Peoples Council in Maritimes Region, and
• Institut de développement durable des Premières Nations du Québec et du Labrador in Quebec Region. 

These sessions included participants from communities and organizations, including some Chiefs, councillors, scientists, and those who work in the fishery. Including a wider variety of community members in these sessions gave us a more complete understanding of the importance of communal commercial fishing to Indigenous communities in Eastern Canada.

Throughout Spring 2024, we also held engagement and information sessions with:

• Unama’ki Institute of Natural Resources and Cape Breton, Nova Scotia Fisheries Coordinators,
• Mi’gmawe’l Tplu’taqnn Incorporated,
• Peskotomuhkati Nation at Skutik,
• Confederacy of Mainland Mi’kmaq and Mainland Nova Scotia Fisheries Coordinators, and
• Makivvik Corporation.

In total, we have met with 39 communities, 10 organizations, and more than 170 individuals.^{Footnote 2} We appreciate everyone who took the time to attend these sessions and share their experiences, knowledge, and personal stories with us. We are grateful to our Indigenous partners who worked with us to help deliver these sessions.

What We Heard

Flexibility and autonomy

In all of the engagement sessions, we heard that communal commercial licence holders value the flexibility and autonomy the current system provides. Many participants told us that this flexibility is essential for their fisheries. Different communities and organizations across Eastern Canada have unique needs, and we heard that the flexibility allows licence holders make decisions that make sense for them.

One participant noted that because Indigenous communities think in the long term about their community needs, the flexibility allows them to adjust to changes in their communities and their fisheries. We heard from one participant that “at the end of the day, we want no more unnecessary bureaucracy and paperwork.”

Designation of people

DFO uses the term “designation” to mean who is allowed to fish a communal commercial licence. Across almost all our engagement sessions, we heard that licence holders would like to keep the current policies and practices around designation. Under the ACFLRs, the Minister of Fisheries, Oceans, and the Canadian Coast Guard has the authority to designate who may fish a communal commercial licence. However, this has generally not been the practice. Instead, it is the Aboriginal Organization who gives DFO the list of designated individuals.

We heard that communities have their own processes in place to decide who can be designated to fish. We also heard that communities take safety on the water seriously and make sure crew members have the right training to be on the vessels.

We heard that, in some cases, communities need to hire non-Indigenous harvesters as captains or crew members to manage their fisheries effectively and that non-Indigenous harvesters can play a significant role in training younger community members. As one participant shared, “the fishery resource pool has ebb and flow,” and there needs to be flexibility so communities can designate based on their immediate needs.

We heard that any change to the current designation practice would be viewed as DFO trying to exercise unnecessary control over the management of communal commercial fisheries.

Designation of vessels / vessel length

Currently, when it comes to vessels, communal commercial fisheries generally follow the policies used in the commercial sector. We heard general support for both the way that vessels are designated and practices related to vessel length, but participants noted that there are times when exceptions are needed. We also heard that communities put safety on the water first and want to follow policies and guidelines that keep their crews safe.

We heard from some participants in the Arctic region that the differences between the north and the south require more flexibility when it comes to vessel policies. Participants explained that many harvesters in the north do not own their own vessels and instead lease from harvesters in the south, as the fishing season is not long enough to make owning a vessel economically viable. Not having to maintain a vessel year-round allows them to live a traditional lifestyle, moving inland to live and hunt in the off-season.

Some participants noted that Newfoundland and Labrador region’s “12-Month Vessel Registration Rule,” applicable in the commercial sector, has caused challenges with leasing vessels, since the requirement to attach a vessel to a licence for 12 months can limit the number of vessels available for leasing to harvesters in northern Labrador.

Adjacency and residency

In almost all engagement sessions, there was a lot of conversation around the licensing topics of “adjacency” and “residency.”

Residency policies differ between the DFO regions in Eastern Canada. The Fisheries Licensing Policy Newfoundland and Labrador Region defines residency for “Aboriginal licences” as the “area of historical fishing, traditional territory or home port of Aboriginal organizations” (Section 22.1).

Other regions do not have residency policies in place, but usually, communal commercial licences are issued to Indigenous communities and organizations located within the DFO region closest to the fishing area.

We heard that residency is a challenging topic for many Indigenous communities because of the difficult history and cultural implications of residency policies. In many cases, a community’s residency is decided by considering the location of reserves. However, participants noted that historically, Indigenous communities were moved from their traditional lands and forced onto reserves. One participant explained that “these policies that were used to keep us in our place should not be continued to be used to keep us from growing [our fisheries], from holding us back.”

Some participants shared a strong belief that DFO should not limit where a community can acquire access with residency policies, which could “impede self-determination.” We heard that instead of DFO limiting where communities can fish, communities should be able to work out agreements between themselves without DFO’s involvement. One participant noted that a “lack of autonomy” in this area of licensing policy “is a sore spot for us.”

However, other participants were cautious about “opening up” residency policies. We heard that some communities are worried that if all Indigenous communities across Eastern Canada could access all fishing areas, there would be more competition for fishing access in preferred areas.

Participants from Labrador shared concerns that because of current residency requirements, their access is limited. The fishing seasons are shorter in the north, and harvesters must travel further distances from the shore to fish. Some participants explained that “opening up” residency policies could allow communities in different regions to gain access to fishing areas in Labrador, which would limit the ability of local communities to fish off their traditional lands.

Other participants noted that the policies around residency and adjacency are unclear and can cause problems. For example, one participant in Newfoundland and Labrador explained that their band office is located inland while their community members live across the province. This has caused challenges with getting fishing access in desired areas.

Another consideration we heard was related to the specifications about two fishing areas outlined in the Nunavik Inuit Land Claims Agreement (NILCA). Any changes to residency policies would need to align with the NILCA.

Some participants suggested that DFO write a clear policy on residency that applies across all regions in Eastern Canada.

Communal commercial vs. commercial

Under the ACFLRs, a communal commercial licence may be issued to an “aboriginal organization”, which is defined as “an Indian band, and Indian band council, a tribal council and an organization that represents a territorially based aboriginal community”.

We heard from participants about the benefits of communal commercial licences to communities. They include:

• no licensing fees,
• certain flexibilities, and
• the ability to support the community through job creation.

We also heard that communal commercial licences offer protections to the community that commercial licences do not, such as a process in place that is intended to protect the investments a community has made in its fishery. One participant noted: “I don't know why any community would not want to protect their licence under communal commercial.”

Commercial licences, on the other hand, are issued under different regulations and different policies apply. Individual harvesters, including Indigenous harvesters, can hold commercial licences. At one time, Indigenous communities could hold commercial licences in Eastern Canada in all fisheries. However, in 2020-21, DFO made changes to the commercial inshore regulations^{Footnote 3} to make sure small scale independent operators were able to operate their fisheries independently without being undermined by third parties. These changes make it an offence under the Fisheries Act to separate the title of the licence from the “rights and privileges” granted by the licence.

Because of these changes, Indigenous communities can no longer be issued certain inshore commercial licences in Eastern Canada. A few participants said that they would like DFO to change these regulations once again so that their communities could have the option of acquiring commercial licences because they can be used as collateral. Other participants said that commercial licences are easier to sell^{Footnote 4} because “selling” a communal commercial licence means following the steps outlined in the 2006 Policy Respecting Requests by Aboriginal Organizations for the Issuance of “Replacement” Licences for “Communal Commercial Licences.”^{Footnote 5}

In general, participants felt that there are more scrutiny and “checks and balances” from DFO on the communal commercial side compared to the commercial side, and they are therefore at a disadvantage while trying to manage their fisheries. We also heard a perception that DFO does not enforce the 2020-2021 changes to the inshore commercial regulations.

Benefits to communities

Participants shared their experiences and challenges related to the ‘flow of benefits’ of communal commercial licences. These conversations were often about the 2022 Policy Respecting Requests to Relinquish an Inshore Commercial Licence and Issue a Communal Commercial Licence in Eastern Canada (known informally as the “Flow of Benefits” policy).

After the changes to the inshore regulations mentioned above, there was concern that third parties in controlling agreements with commercial licence holders would try to get around these new rules and influence commercial licence holders to “sell” their licence to Indigenous communities, who would then be issued a communal commercial licence under the ACFLRs. As a result, DFO introduced the “Flow of Benefits” policy “to ensure that the Economic Benefits associated with the communal commercial licence flow to the Indigenous Community in a manner that contributes to the prosecution and development of one or more Fishing Enterprises Within the Community.”

While many participants agreed that the benefits of communal commercial licences should go to communities, we heard that the new policy is viewed as paternalistic and demeaning. Participants felt that making communities and organizations prove to DFO that the benefits of the licence will go to the community hinders self-determination and makes Indigenous people “feel like wards of the state.” Participants also felt that DFO should not be responsible for deciding what is beneficial to communities and that “this [requirement] is not an indicator of true reconciliation.”

We also heard that the “Flow of Benefits” policy involves a lot of paperwork for communities. One participant added that the relationship, rapport, and track record of the Indigenous organization within DFO should be taken into consideration before asking for the paperwork.

Processing times

We heard that communal commercial licence holders are frustrated with long wait times for processing licensing requests. We heard that these long wait times have made Indigenous harvesters and fishing coordinators feel “left behind,” and that their licensing requests feel less important to DFO than commercial harvesters’ requests. Participants shared their experiences submitting a request to DFO at the same time as a commercial harvester and having to wait longer for a decision than their commercial counterparts.

While there are standards in place for licensing services, in practice, because there is currently no overall policy in place, communal commercial licensing requests often require additional levels of approval, which cause delays and longer wait times. We heard that DFO should put service standards in place specifically for responding to communal commercial licensing requests. We also heard that DFO should consider adding a requirement to provide a reason or explanation when a licensing request is denied.

Corporate entities

As mentioned above, a communal commercial licence may only be issued to an “an Indian band, and Indian band council, a tribal council and an organization that represents a territorially based aboriginal community.”

We heard from several participants that this definition should be either expanded or clarified to include a corporate entity owned and operated by an Indigenous community. We heard it is often a challenge for band councils to manage fishing licences, as the work of the council is separate from the management of the fishery. Being able to manage licences under a corporate structure would maximize benefits to communities.

However, one participant explained that if licences are issued to corporate entities instead of the community itself, it might affect how the benefits of the licence flow to the community.

We also heard from some participants that the language used in this definition is outdated and offensive. Some participants wanted the text updated from “Aboriginal” to “Indigenous,” while others said they did not see a need to change the current language.

Differences across regions

A common frustration for participants was the feeling of inconsistencies in licensing decisions made across DFO regions in Eastern Canada, and even sometimes within the same region. Some participants noted that because there is no overarching communal commercial licensing policy in Eastern Canada, decisions cannot be made fairly and consistently across the region.

One participant noted that some decisions are made for DFO’s convenience rather than ensuring fairness for licence holders. Another participant whose community holds licences in two DFO regions noted frustrations in dealing with different decisions from each region.

With regards to designation, some participants reported the process to be smooth and efficient, and others noted it was slow and difficult, resulting in delayed timelines and a lot of paperwork.

We heard from participants that they perceive the problem of inconsistency in decision making exists because senior management at DFO does not know what is happening across all regions in Eastern Canada. We heard that licence holders would like to know which options for licence configurations, for example, were available to communal commercial licence holders, and that these should be available to licence holders in all regions.

At the same time, however, participants described situations where differences in licensing policies are important. For example, a participant noted that the geographic, political, and economic situations are vastly different between the southern regions and the Arctic region. We heard that it is necessary to allow variations in licensing policies to address these differences, while also providing clear direction to ensure fairness.

A New Policy

When asked about the potential of introducing a new Communal Commercial Licensing Policy in Eastern Canada, we heard different views. Some participants emphasized that a new policy was the only way forward but added that the policy must retain flexibility while also providing enough direction to reduce decision wait times.

Other participants were more cautious about a new policy, expressing worry that any updates would be impossible to reverse or change if they do not work in practice. Some participants feared a new policy would restrict current flexibilities.

Across the board, we heard that it is important for DFO to maintain clear communication, engagement, and consultation with Indigenous communities and organizations before introducing any changes to the communal commercial licensing system. We heard that communities value early and consistent engagement in policy development.

Additional feedback

In addition to the questions we asked, participants shared feedback related to other topics and issues. These insights are captured here, as they are valuable to ongoing work related to Indigenous fisheries.

Racism

At several sessions, we heard that racism against Indigenous harvesters is still an unfortunate reality. Participants shared experiences where racism has led to dangerous situations on the wharf and has affected safety on the water. Some participants explained that some commercial harvesters feel threatened when Indigenous communities and organizations acquire new access. Many participants felt that DFO should be doing more to educate non-Indigenous licence holders on Indigenous fishing to reduce tensions and encourage a more peaceful environment for all harvesters.

Some participants said that they are hopeful about the relationship between Indigenous and non-Indigenous harvesters. One participant explained that younger non-Indigenous harvesters seem more supportive of Indigenous fisheries and want to improve cooperation between all harvesters.

Bias

Throughout the sessions, we heard that Indigenous communities and organizations have experienced structural biases that they believe affect DFO policies in general.

Some participants were concerned that the design of and questions within the Review had been influenced by non-Indigenous harvesters. Some participants noted that non-Indigenous harvesters want to retain control over fisheries in Eastern Canada, and, as such, there is a desire to limit access and licensing flexibilities for Indigenous harvesters.

Some participants were also frustrated with enforcement on the water and participants noted witnessing unauthorized fishing activity on the water by commercial harvesters with no consequences.

Demographics

We heard that changing demographics are creating concerns for the future of fishing in some Indigenous communities. This was a particular concern voiced by participants from Labrador where communities fear that there are not enough younger people entering the fisheries to replace the current harvesters who are retiring.

We also heard concerns from several participants that young people do not take up fishing due to the high price of “buying” a licence or because it can be difficult to find one.

Native councils

We spoke to the members of the Native Councils of Nova Scotia, New Brunswick, and Prince Edward Island as part of the Review. We heard that the Native Councils do not feel that their needs and fishing realities are reflected in the communal commercial licensing system. For example, several participants voiced frustration that the Native Councils, given the position of the Government of Canada that these Councils are not the modern-day collectives understood to be the successors of signatories to the historic Peace and Friendship Treaties of 1760–1761, have not been issued moderate livelihood fishing plan authorizations. There was a request that DFO make a note in this report that the Native Councils will not participate in any further engagement or consultation with DFO with respect to this Review until the Chiefs have a meeting with DFO senior managers on the topic of rights recognition.

Community dynamics

At one session, some participants voiced concerns with how their Chief and council were managing their community’s communal commercial fisheries. They noted that their Chief and council were not making fair decisions about the designation of community members and were limiting access to a small number of community members.

Next steps

As mentioned, participants expressed different opinions on introducing a new Communal Commercial Licensing Policy in Eastern Canada.  However, as discussed in this report, we heard frustration with delays and long wait times for licensing decisions. We also heard that it is difficult to make decisions around managing fisheries when the policy is not clear.

A written policy, published on the DFO web site, will increase transparency and will help DFO make licensing decisions more quickly. So, to address these concerns, we are beginning work on a draft communal commercial licensing policy for Eastern Canada.

This new policy will respond to the feedback we heard in the engagement sessions. We will keep in mind the concerns expressed that a new policy must not limit community flexibility and autonomy or add unnecessary bureaucratic or administrative processes for communities.

Once we have prepared a draft of the policy, we aim to share it with communities and organizations for consultation throughout the fall of 2024 and the early winter 2025.

Meaningful engagement with Indigenous communities is important to reconciliation. We are grateful to all community members and representatives who shared their knowledge, experience, and time with us.

Annex: List of engagement sessions