Study on the Implementation of Mi’kmaq Treaty Fishing Rights to Support a Moderate Livelihood

House Standing Committee on Fisheries and Oceans

Briefing for the Minister of Fisheries and Oceans for her November 18, 2020 Appearance

Opening remarks

Mr. Chair and Committee Members,

Thank you for the invitation to speak today on this very important matter. I am accompanied by: my Deputy Minister, Timothy Sargent and x, x.

I understand that the study currently underway was put forward by MP Battiste and I appreciate the testimony that the committee has heard so far from First Nations leadership, industry representatives, and academics. All their voices are important in this discussion and this is a conversation that Canadians need to hear.

Since being appointed to the Fisheries, Oceans and Canadian Coast Guard portfolio in December of 2019, I have continued to build on the progress of my predecessors, Ministers Wilkinson and LeBlanc, and have been working with First Nations to further implement their treaty right to fish in pursuit of a moderate livelihood.

When Canadians elected a Liberal Government in 2015, after ten years of Harper Conservatives putting reconciliation on the backburner, our government took action and expanded the mandate for moderate livelihood negotiations. These changes led to two Rights and Reconciliation Agreements being signed in 2019 that further implemented their Treaty Right to fish, as affirmed by the Marshall decision.

And, while discussions on advancing this treaty right have been taking place regularly, recent events in Nova Scotia highlight the complex issues around the implementation of the Mi’kmaq, Maliseet and the Peskotomuhkati (Passamaquoddy) Nation at Skutik (Scoo-dik) historic Treaty right. They are a stark reminder that we must continue to do more and to work together.

Our government remains focused and committed as we work with First Nations to implement their constitutionally protected, Supreme Court affirmed right, while ensuring that fisheries remain safe, productive, and sustainable for all harvesters. But there are no quick and easy solutions. This takes time and patience – and there will be challenges along the way. However, that cannot deter us from moving forward.

We are also continuing our efforts to de-escalate the tensions on the ground by engaging all parties in constructive dialogue. On that front, I have met and will continue to meet regularly with both Indigenous leadership and commercial fishers.

During these discussions we have heard both parties’ frustrations. First Nations are frustrated that negotiations have taken too long and that there is a lack of “real” progress to implement their right. Non-indigenous harvesters are concerned about the future of the fishery and what that means for their livelihoods.

That is why, along with Minister Bennett, our Government recently appointed Federal Special Representative, Allister Surette. He is a neutral third party who is working to foster dialogue and help rebuild trust between Indigenous and commercial harvesters.

This is a structured forum for Mr. Surette to gather different perspectives and address real questions and concerns, with the goal of build greater understanding. He will provide recommendations to the Government on ways to move forward.

Commercial fishers and First Nations have fished side by side for generations, and communities need to come together again. We need to ensure that treaty rights are implemented and the fishery remains productive for all harvesters.

As the Representative undertakes his work, nation-to-nation discussions continue with First Nations on a path forward.

While I cannot speak to the details of these discussions, I can say that I believe there has been progress, and I am having productive conversations with many First Nations regarding proposed fishery plans in the short and longer-term.

I also want to touch on the issue of conservation as I understand it has been raised a few times at this committee.

I would like to say clearly, that conservation underpins everything we do. Lobster stocks are healthy and we will never move forward with a plan that threatens the health of this species – or any species.

I know that this approach is shared with the many First Nations leaders I speak with regularly. It is also shared very strongly by harvesters in the commercial industry, who have, over generations, worked in partnership with DFO to develop conservation practices and regulations that have helped build the stock to the healthy levels we have today. That progress is something we will not jeopardize.

I will continue to make every effort with industry to increase transparency, formalize the lines of communication, and ensure that industry has meaningful opportunities to share its concerns and express its views.

Myself, my Department and this Government remain committed to working with First Nations leaders to implement their Treaty right and I would be pleased to take your questions.

Background

Marshall decisions

In the September 1999 Marshall decision, the Supreme Court of Canada affirmed a treaty right to hunt, fish, and gather in pursuit of a moderate livelihood.
In November 1999, the Supreme Court of Canada clarified that the government can regulate the exercise of the treaty right if justified in accordance with constitutional requirements.
The court also noted the complexity of balancing competing interests and accommodating the treaty right, and encouraged the negotiation of agreements to accommodate the right.
As Minister, it is my duty to respect this right and take the appropriate action to balance the sustainability of the fishery with the protection of Treaty rights, as well as the needs of other Canadians who depend on this vital resource.
This is exactly what my Department and I have been doing. We remain committed to working with First Nations at the negotiation table to implement their Treaty right as affirmed by the Marshall decisions, and to ensuring that industry has meaningful opportunities to express its views.

Background

In August 1993, Donald Marshall, a Mi’kmaq and member of the Membertou Band in Cape Breton, Nova Scotia, was charged with fishing without a licence, fishing during the closed season with illegal nets, and selling eels without a licence contrary to the Fisheries Act and regulations. In his defence, Mr. Marshall argued that he had a treaty right to fish and sell (trade) fish.
In the September 1999 Supreme Court of Canada decision, a majority of the Court affirmed a Mi’kmaq treaty right to hunt, fish and gather and to trade the product of those activities for what in 1760 was termed as “necessaries”. The Court concluded that, in today’s terms, the concept of “necessaries” is equivalent to “a moderate livelihood”. This was interpreted to include basics such as food, clothing, and housing, supplemented by a few amenities—more than “bare subsistence” but not extend to the (open-ended) accumulation of wealth.
The Court found that the closed season, the imposition of a discretionary licensing scheme in the context of the “small-scale commercial eel fishery” in question, and the prohibition of sale, if enforced, would interfere with or infringe the treaty right. The Crown did not present any evidence to justify infringement of the right, and in the absence of any justification of the regulatory prohibitions, Mr. Marshall was entitled to an acquittal.
The Marshall decision affects Mi’kmaq and Maliseet First Nations in New Brunswick, Prince Edward Island, Nova Scotia, and the Gaspé region of Quebec, as well as the Peskotomuhkati Nation at Skutik.
Following an unsuccessful appeal by a fishing industry organization for a rehearing of the Donald Marshall case, the Supreme Court of Canada issued a rare clarification of its Marshall I decision in November 1999. The Marshall II decision clarified that federal and provincial governments within their respective legislative fields have the authority to regulate the exercise of the treaty right (subject to the constitutional requirement that restraints on the exercise of the right have to be justified). It also clarified that the treaty right is a collective right, emphasized the local nature of the treaties, and noted the complexity of balancing competing interests and accommodating the treaty right, and encouraged consultation and negotiation of a modern agreement to accommodate the right.

Marshall Response Initiative

Over the past 21 years, Fisheries and Oceans Canada has not been idle.
Since the 1999 Marshall decision, Fisheries and Oceans Canada has gone to great lengths to accommodate what the court found to be a communal right to pursue a moderate livelihood from hunting, gathering, and fishing, beginning with the Marshall Response Initiative.
From 2000 to 2007, Fisheries and Oceans Canada provided $354 million for communal commercial fishing licenses, fishing vessels and gear, and training for 32 First Nations affected by the Marshall decision.
When this program ended in 2007, it was replaced by the Atlantic Integrated Commercial Fisheries Initiative, which continues to support increased First Nations’ participation in the commercial fishery.

Background

In the days and weeks following the Marshall decision, there was much unrest in the fishery. Some First Nations had taken to the water and were fishing out of season. There was unrest among the non-Indigenous commercial harvesters who were uncertain about their future in the commercial fishery. Violence had erupted at some locations and confrontations were taking place between First Nations members, non-Indigenous commercial fishers, and DFO officials.
In 1999, the Minister of Fisheries and Oceans appointed a Chief Federal Representative (CFR) to work on behalf of the federal government to secure practical arrangements that would accommodate First Nations’ interests in the fishery, while ensuring its orderly management. The Minister also appointed an Assistant Federal Representative to support the CFR in discussions with commercial and other interests.
In 2000, the Initial Marshall Response Initiative was launched. This was a one-year program to sign Interim Fisheries Agreements (IFAs) that provided increased First Nations access to the commercial fishery on an immediate basis. Agreements were driven by the individual First Nations who submitted proposals outlining their requirements. The primary goal of the CFR was to enter into arrangements to ensure that an orderly fishery was established and maintained and to accommodate First Nations in the fishery in a manner that was sensitive to the interests of others who depended on the fishery. For the Initial Marshall Response Initiative, the CFR was successful in signing IFAs with 30 of the 34 eligible First Nations.
In 2001, DFO introduced the Longer-term Marshall Response Initiative (MRI) to build upon the IFAs signed under the Initial Marshall Response Initiative. The MRI process provided an opportunity for First Nations to actively articulate and develop their vision for their future participation in the fishery through Fisheries Agreements. This initiative was in place until March 31, 2007.
Through the MRI, and an investment of $354 million between 2000 and 2007, commercial fishing licenses, fishing vessels and gear, and training were provided to 32 of the 34 eligible First Nations through signed Fisheries Agreements. DFO was unable to reach agreements with the remaining two First Nations primarily because these First Nations did not wish to enter into arrangements that they believed may infringe on their treaty rights.
In the Marshall decision, the Supreme Court of Canada noted the process of determining what is required to implement the moderate livelihood right may best be resolved through negotiated agreements with affected First Nations. The Government of Canada is negotiating the further accommodation of the right, in addition to access provided through the MRI and other programs.

Atlantic Integrated Commercial Fisheries Initiative

The Atlantic Integrated Commercial Fisheries Initiative, or AICFI, was created in 2007 to build on the progress made under the Marshall Response Initiative. It was a temporary program until this government made it permanent in Budget 2017.
AICFI provides funding and support to First Nations affected by the Marshall decision to build the capacity of their communal commercial fishing enterprises and to strengthen community economic self-sufficiency. Presently, 34 of 35 eligible First Nations participate in AICFI.
AIFCI and its predecessors, including the Marshall Response Initiative, represent a significant response to the Marshall decision. Over the past 21 years, these programs have provided $530 million dollars for licences, vessels and gear, and training in order to increase and diversify First Nations’ participation in the commercial fisheries and contribute to the pursuit of a moderate livelihood for their members.
These investments have resulted in meaningful economic benefits for First Nations communities and individuals participating in fisheries. For example, the value of First Nations’ communal commercial landings has increased in Atlantic Canada from $3 million in 1999 to over $120 million today.
The government has not ignored its responsibilities. We have made many important strides forward and built a firm foundation.
We recognize there are still income gaps between Indigenous and non-Indigenous communities in Atlantic Canada. This and the recent conflict are stark reminders that there is still more work to be done—work that we can do together as part of reconciliation.

Background

In 2007, following the conclusion of the Marshall Response Initiative, the Atlantic Integrated Commercial Fisheries Initiative (AICFI) was launched. AICFI provides funding and support to the First Nations affected by the Marshall decision to build the capacity of their communal commercial fishing enterprises (CFEs) and strengthen community economic self-sufficiency. AICFI, originally a temporary program, was made permanent in Budget 2017.
DFO, with the Atlantic Policy Congress of First Nations Chiefs and Ulnooweg Development group, works with AICFI participants to increase communal commercial fisheries access, provide business management capacity building support, and access training resources required to build self-sustaining First Nation-owned CFEs that meet long-term objectives, including horizontal expansion, the development of additional fisheries-related business opportunities, and increased community employment.
To date, including projected expenditures to the end of the 2020-21 fiscal year, AICFI has provided $97 million in direct funding to eligible First Nations to build CFE capacity, support harvester training, and expand and diversify CFE operations. Currently, 34 of 35 eligible communities participate in AICFI.
These investments have resulted in economic benefits for communities and individuals participating in fisheries:
- The value of Indigenous communal commercial landings has increased in Atlantic Canada, from $3 million in 1999 to over $120 million today.
- Employment in the sector has grown in conjunction with revenues: Mi’kmaq and Maliseet First Nations’ communal commercial fishing enterprises currently employ 1,669 people, of which 1,310 are fish harvesters and 358 are land-based employees.
- The Mi’kmaq and Maliseet’s share of the overall fishery in the Maritimes has grown from virtually nil at the time of the Marshall decision, to today where they have more than six percent of the landed value for the key species fished.

Marshall negotiations

a) History

Negotiations began with Nova Scotia Mi’kmaq in 2000 however, there was never a mandate to discuss fish in the context of the pursuit of a moderate livelihood.
Therefore, in 2015, Canada and the Nova Scotia Mi’kmaq began exploring a new approach together that would meet their vision of moderate livelihood in the fisheries context.
In 2017, Canada obtained a mandate to negotiate Rights Reconciliation Agreements with the Mi’kmaq, Maliseet and Peskotomuhkati across Atlantic Canada and the Gaspé region of Quebec.

b) Rights reconciliation agreements

These agreements recognize the rights and interests of Indigenous communities and advance their vision of self-determination and economic self-reliance for the benefit of their communities and Canada.
The objective is to provide greater clarity, stability and predictability in the short and medium-term as it related to First Nation participation in the Atlantic fisheries.
Negotiations are a lot of give and take, and an opportunity to build and strengthen relationships over time.
Two agreements were signed in 2019, one jointly with Elsipogtog and Esgenoôpetitj First Nations (two Mi’kmaq communities in New Brunswick) and the Wolastoqiyik Wahsipekuk (Wool-las-two-wi-ig Wa-shi-bê-gouk), a Maliseet community in Quebec.
By negotiating RRAs in the spirit of respect, cooperation and partnership to recognize First Nations’ right to pursue a moderate livelihood, Fisheries and Oceans Canada took the advice of the Supreme Court

Background

History

Although Canada and First Nations continued to negotiate through the comprehensive claim process from 2000 onwards, there was no mandate to negotiate this fundamental Treaty right through this process.
Canada has signed a number of agreements with the Mi’kmaq, Maliseet and Peskotomuhkati Nation at Skutik including Framework Agreements that frame areas of common interests as well as identify areas where more discussions are required in order to find common ground.
Over the years, it became clear that the existing federal comprehensive land claim policy which forms the basis for negotiations around the country and has led to several successful modern treaties, did not enable the parties to truly make progress on implementing existing Treaty rights to hunt fish and gather in pursuit of a moderate livelihood.
In 2015, Canada and the Nova Scotia Mi’kmaq began exploring incremental treaty agreements, referred to as Rights Reconciliation Agreements (RRA).
Canada obtained the authority to negotiate RRAs in 2017.

Rights reconciliation agreements

The concept of RRAs were developed jointly with the Nova Scotia Mi’kmaq in 2015 and negotiations began in 2017.
These are a type of time limited, incremental treaty agreements that would advance treaty-related benefits to an Indigenous group in the treaty process.
Negotiations will contribute to greater clarity, stability and predictability as it relates to First Nation participation in the Atlantic fisheries which would create a more stable environment for all harvesters and foster the conditions for a prosperous and sustainable fishery.

State of relationships (Indigenous-commercial fishing sector)

Tensions are high between Indigenous and non-Indigenous harvesters in parts of Nova Scotia; commercial harvesters continue to oppose the moderate livelihood fisheries that have recently been launched.
I know that fishery associations and the vast majority of non-Indigenous harvesters condemn the harassment, violence, and racism that has been witnessed, and that those who choose to engage in violence and express themselves in these reprehensible ways are not reflective of the industry as a whole.
While the relationship between Indigenous harvesters and the commercial sector has deteriorated in the last month, it is not reflective of the relationship overall or their shared history.
I know that Indigenous and non-Indigenous harvesters have the same priorities when it comes to the fishery: the long-term sustainability of the resource so that it is available for generations to come, and safe and orderly fisheries that are accessible to all harvesters.
These common objectives unite Indigenous and non-Indigenous harvesters, and it is through this lens that we will find common ground and re-establish a respectful dialogue.

Background

On October 23, 2020, the Minister of Fisheries, Oceans and the Canadian Coast Guard and Minister of Crown-Indigenous Relations appointed a Federal Special Representative to work towards facilitating dialogue to address the unrest.
On October 21, 2020, the Nova Scotia Supreme Court granted an injunction that prohibits anyone from trying to stop Sipekne’katik First Nation harvesters from accessing wharfs in Saulnierville and Weymouth, as well as a lobster pound in New Edinburgh.
Protests by non-Indigenous fish harvesters over Mi’kmaq fishing activity outside of the federally-mandated commercial season significantly intensified in September 2020 when Sipekne’katik First Nation launched their own self-regulated moderate livelihood fishery. Vandalism, threats, and acts of violence towards Mi’kmaq harvesters and their supporters have since ensued.
These incidents and threats of escalating actions by non-Indigenous harvesters against Indigenous harvesters, including illegal interference with Mi’kmaq harvesters’ gear, assault against Mi’kmaq leaders and harvesters, and destruction of Mi’kmaq-harvested lobsters, have been met with allegations of racism, discrimination, and colonialism by Indigenous harvesters and much of the public, and have escalated the nature and extent of the conflict.
Some commercial harvesters have commented in the media that they respect Indigenous and treaty rights, and have emphasized that their anger is instead directed at government and the absence of a definition of moderate livelihood.

Timeline of events (events, briefings, responses)

Non-Indigenous commercial harvesters have been very vocal about fishing outside the commercial season, claiming it poses a conservation concern. Harvesters staged a protest at my constituency office in August.
On September 17, Sipekne’katik First Nation began its expression of a “moderate livelihood” fishery in St. Mary’s Bay. Hundreds of non-Indigenous harvesters arrived in protest at the Saulnierville Wharf.
In the following days, non-Indigenous commercial harvesters travelled to St. Mary’s Bay, several of whom allegedly harassed Indigenous harvesters on the water and removed or interfered with traps.
The situation escalated in October: an Indigenous harvester’s vessel was burned, Indigenous-caught lobsters were destroyed, damage was done to two fish plants, and Chief Mike Sack was assaulted.
Other First Nations have announced intentions to, and have begun to, fish for a moderate livelihood and Allister Surette was appointed Federal Special Representative to foster dialogue between harvester groups.

Background

Sipekne’katik First Nation won an injunction against commercial harvesters in Southwest Nova Scotia on October 21, 2020.
Members of the Potlotek and Eskasoni First Nations demonstrated and called for the return of lobster traps that were removed from St. Peter’s Bay as part of enforcement operations on October 17, 2020.
Late in the night on October 16, 2020, the West Pubnico fish plant was set on fire and destroyed. One person sent to hospital with life-threatening injuries is a person of interest in the arson.
In 2020, many industry members across the Maritimes provinces demonstrated in solidarity with commercial harvesters in St. Mary’s Bay, and became very vocal on the topics of fishing during closed time and their desire for increased enforcement.
Ministerial briefings related to issues around moderate livelihood fishing began being developed in late November, 2019, as the situation currently unfolding has been developing for years. Examples included information on what DFO considered to be illegal fishing, how moderate livelihood is different than Food, Social and Ceremonial fishing, and how we would determine the appropriate number of traps.
In October of 2017, DFO received a mandate to begin Rights Reconciliation Agreement (RRA) negotiations with First Nations and Indigenous communities in the Atlantic. The Assembly of Nova Scotia Mi’kmaq Chiefs, along with other individual First Nations expressed displeasure with RRA negotiations in 2019 and stepped away in early summer. Following the federal election, DFO began reaching out to First Nations and aggregates to re-start the negotiation process. COVID-19 prevented face-to-face discussions, and Indigenous leaders were focused on keeping their communities safe. Negotiations mostly did not happen.

Industry engagement

I recognize that rights-based negotiations do not happen in a vacuum. Non-Indigenous commercial harvesters have a deep and longstanding connection to the fishery, and they want to be part of the discussion.
My Department frequently meets with industry representatives and harvesters. Their concerns around the implementation of the right to fish in pursuit of a moderate livelihood are well understood by DFO officials.
I want to reiterate that we need the time and space to negotiate rights-based agreements. It is through these negotiated agreements that we will bring clarity and stability to the implementation of the moderate livelihood right.
As we continue these Nation-to-Nation negotiations, we will be making every effort to increase transparency, formalize lines of communication, and ensure that commercial harvesters have meaningful opportunities to express their views.
The Government is committed to building awareness and understanding of the importance of reconciliation and Indigenous and treaty rights among all Canadians, including fisheries stakeholders.

Background

DFO officials communicate with commercial sector representatives and harvesters on a regular basis and through a variety of fora.
Despite DFO’s attempts to increase dialogue about Indigenous rights with the commercial sector, non-Indigenous harvesters continue to protest their lack of participation in Rights Reconciliation Agreement negotiations and express a number of concerns related to moderate livelihood fisheries. Concerns include potential/perceived impacts on: conservation, investment in the fishing industry, market conditions, and societal change in rural areas dependent on the fishery as a livelihood.
The commercial sector is seeking clarity and transparency around negotiations and the long-term goals of Canada with respect to the implementation of moderate livelihood fisheries, as well as direct inclusion in decision-making by way of a separate negotiation table where they can provide input to the lead negotiator.
DFO is in the process of developing a robust industry engagement strategy in response to the outlined concerns, demands, and protests from industry. This strategy will seek to address misperceptions and misinformation; build awareness of the reconciliation agenda and Indigenous and treaty rights; create DFO processes for ongoing exchange of views/information with industry; and enable Indigenous-industry dialogue and relationship-building.

Role of Federal Special Representative

The escalation of tensions has demonstrated that there is a need for direct discussions between First Nations and the commercial fishing sector in order to build understanding and trust.
With this in mind, on October 23, my colleague Minister Bennett and I announced the appointment of Allister Surette as Federal Special Representative to foster dialogue between First Nations and the commercial sector in Atlantic Canada.
Mr. Surette will act as a neutral facilitator. His mandate is to bring all sides of this dispute together and try to find common ground between the parties. He will ensure all voices have the opportunity to be heard and that all parties’ perspectives are objectively considered.
Our hope and belief is that Mr. Surette will help all parties gain a better understanding of the issues, and that the discussions he facilitates will help to rebuild trust and foster cooperation between the parties.
We understand the importance of ensuring that rights-based negotiations remain Nation-to-Nation, and we also recognize the need to bring all Canadians along the path of reconciliation. This is exactly what the discussions Mr. Surette facilitates will help to do.

Background

Due to rising tensions in the Nova Scotia lobster fishery, on October 23, 2020, the Government of Canada appointed a Federal Special Representative to work towards facilitating dialogue between Indigenous and non-Indigenous harvesters.
Mr. Surette’s mandate is to gather the different perspectives on the issues contributing to the current situation; seek to build understanding and find common ground that will reduce tensions between Indigenous and non-Indigenous harvesters; and identify opportunities to improve relationships and reach a lasting solution.
He will produce a public report that presents key findings from the dialogue processes and makes recommendations to the Ministers of Fisheries, Oceans and the Canadian Coast Guard, and of Crown-Indigenous Relations related to the Indigenous-commercial sector relationship in Atlantic Canada, and how best to move forward with the implementation of the right to fish in pursuit of a moderate livelihood for the Mi’kmaq, Wolastoqey (Maliseet), and Peskotomuhkati in the region.
Dialogue with the Federal Special Representative does not replace Nation-to-Nation negotiations or opportunities for Indigenous leaders or the commercial sector to meet with the Minister of Fisheries, Oceans, and the Canadian Coast Guard. The Department will continue to meet with Indigenous leaders and the commercial sector in parallel to the work of the Federal Special Representative.

Forward plan

The situation in Southwest Nova Scotia highlights issues around the implementation of First Nations’ right to fish in pursuit of a moderate livelihood.
My officials and I continue discussions with First Nations leadership and industry representatives to emphasize the need for safety, and the need to move forward with dialogue to achieve a peaceful solution.
The need for tangible progress through nation to nation negotiations has led me to seek increased flexibilities to our authorities based on items we heard were key to achieve negotiated agreements.
Concluding these agreements will help close economic gaps and increase Indigenous participation in fishing-related activities, while also increasing stability and predictability on the water.
In the short term we remain committed to working with First Nation leadership to operationalize their fishing plans within the regulatory framework, including within seasons.
I will be making every effort with industry to increase transparency, formalize the lines of communication, and ensure that industry has meaningful opportunities to share its concerns and express its views.

Background

Given the current events in Nova Scotia, there is a need to recognize and implement the Treaty right to fish in pursuit of a moderate livelihood, while also achieving longer-term stability and predictability in the fisheries sector, and improving relationships between Indigenous and non-Indigenous harvesters.
There needs to be a better balance between significantly moving the goalposts toward the implementation of the Treaty right while at the same time addressing the concerns expressed by commercial harvesters.
Moving forward, the following core principles will guide the departmental response:
- the recognition and implementation of rights;
- departmental right to regulate the fishery; and,
- no net increase in fishing capacity to ensure conservation and the proper management and control of the fishery.
Communities have expressed that the implementation of their right to fish in pursuit of a moderate livelihood does not need to occur within DFO’s regulations, including fishing and selling their catch within the authorized fishing season. While DFO will not authorize the sell of catches out of season, in the short term, the Department is working with communities to supporting an incremental, small-scale commercial fisheries approach to assess the operational feasibility and economic viability of moderate livelihood fishing. This will need to align with the regular commercial season and the integrated fishery in general.
Work is underway through nation to nation negotiations to accelerate and reach Rights Reconciliation Agreements.
A strategy is being developed by the department to enhance communication and engagement with industry on a bi-lateral basis and with First Nations to bring them along as we seek to implement the right. This is in parallel and complementary to the work of the Federal Special Representative.

Co-management boards

DFO-Coast Guard has several examples of co-management processes in areas such as oceans management and fisheries that have been established with Indigenous partners.
These demonstrate our commitment to facilitating an enhanced role for Indigenous peoples through collaborative governance, collaborative management, and consensus-based decision-making.
Modern treaties in Canada are particularly good examples to look at when considering the use of co-management boards in renewable natural resource management, including fisheries.
These treaties often include provisions on self-government, participation in management over specific areas, and wildlife harvesting rights, that lend well to being jointly managed through treaty-established co-management boards.
At reconciliation negotiation tables across Canada, collaborative management is an integral part of discussions to articulate how Indigenous groups will enhance their participation in the decision-making process for their fisheries.

Background

Co-management arrangements are partnership agreements in which stakeholders, including local resource users, local governments, national governments, civil society, and others, share the responsibility and authority for the management of a particular resource, wherein the respective roles, responsibilities and rights in management are negotiated and implemented. The degrees of participation in decision-making, scope of authority and responsibilities, and functions mandated under co-management agreements can cover a wide spectrum, and may include establishing quotas, regulating commercial activities and making allocation decisions, enforcing regulations, implementing conservation plans, or administering rights and obligations pursuant to a self-government agreement.
A variety of types of co-management agreements currently exist with respect to fisheries management in Canada (or are contemplated), including:
- Stand-alone agreements with Indigenous partners to co-manage certain areas of fisheries through collaborative governance structures and guiding principles that increase the direct participation of Indigenous peoples in fisheries management. An example is the Fraser Salmon Collaborative Management Council.
- Integrated Fisheries Management Plans (IFMP), and the processes used to establish them, enable a collective articulation, including Indigenous views, of the overall management plan of a particular fishery (species and site specific). An example is the Razor Clam Joint Management Plan.
- Rights Reconciliation Agreements focus on the co-development, co-design, and co-delivery of resource management operational practices—a distinct approach from top-down management of fisheries. An example is the Coastal First Nations Fisheries Resources Reconciliation Agreement.
- In Canada’s North, notable land claims in the Northwest Territories (the Inuvialuit Final Agreement, 1984), Yukon (Yukon Umbrella Agreement, 1990), Nunavut (Nunavut Land Claims Agreement, 1993), and Newfoundland-Labrador (Labrador Inuit Land Claims Agreement, 2004), and in British Columbia, the Nisga’a Final Agreement, have each implemented the permanent establishment of co-management fisheries bodies. They are the most formal structures found among the suite of co-management structures.

Moderate livelihood – issues

Indigenous moderate livelihood fisheries

I am deeply concerned for the health and safety of all individuals given what is currently taking place in Nova Scotia.
We share the concerns of Canadians across the country when we say that we unequivocally condemn these acts in the strongest terms and that the threats, violence, and racism have to stop.
A lasting resolution can only be concluded if it is rooted in the recognition of treaty rights as well as respectful dialogue between everyone involved in the fishery.
We recognize the Treaty right to harvest in pursuit of a moderate livelihood as affirmed by the Supreme Court of Canada and DFO has been working with First Nations to advance this right including at current negotiation tables to implement the right in communities across the Atlantic and Quebec.
We remain committed to reconciliation and we need to continue to have meaningful conversations; that is why I have appointed a Special Representative to foster dialogue between Indigenous and non-Indigenous harvesters.

Background

Non-Indigenous stakeholders have expressed concerns over conservation, requests to be included at the negotiation table with First Nations, and calls for enforcement action against what they deem to be “illegal” fishing. Tensions have escalated significantly and have led to acts of vandalism, trap removal, and intimidation and bullying of Indigenous harvesters.
Progress has been made and benefits achieved, especially with the signing of two Rights Reconciliation Agreements (RRAs), however the pace of these negotiations has been criticized by the First Nations and some communities have begun developing and implementing moderate livelihood fish plans.
Through the Marshall Response Initiative, the Atlantic Integrated Commercial Fisheries Initiative, and more recently, through the RRA process, DFO is working with Mi’kmaq and Maliseet First Nations as well as the Peskotomuhkati Nation at Skutik, to implement the right to fish in pursuit of a moderate livelihood.
The right of Indigenous peoples in Atlantic Canada and the Gaspé region of Quebec to fish in pursuit of a Moderate Livelihood has been a significant issue since the Marshall decision in 1999. With the assistance of DFO programming, First Nations have gone from very limited participation in the commercial fishery in 1999, to the value of landings and earnings from band owned fisheries-related businesses, totaling over $170M per year and employing 1700 indigenous people in 2019.

The sale of Food, Social and Ceremonial (FSC) catches

First Nations have an Aboriginal right to fish for FSC purposes and that this right takes priority—after conservation—over other users of the resource.
The Department’s position is that FSC catches cannot be sold.
Through the Aboriginal Fishing Strategy, DFO and First Nations seek to negotiate mutually acceptable FSC fisheries agreements.
These agreements contain provisions related to amounts that may be fished for FSC purposes, species, gear, area, and other factors for the co-operative management of the FSC fishery.
During this pandemic, these fisheries are particularly important to address the challenge of food security for those communities who have few alternative food sources.

Background

The 1990 Sparrow Supreme Court of Canada decision was the first of several rulings finding that First Nations have an Aboriginal right to fish for FSC purposes and that this right takes priority—after conservation—over other users of the resource.
DFO introduced the Aboriginal Fisheries Strategy (AFS) to provide a framework for managing Indigenous fisheries in a manner consistent with the Sparrow decision. Through the AFS, DFO and First Nations seek to negotiate mutually acceptable and time-limited fisheries agreements. These agreements contain provisions related to amounts that may be fished for FSC purposes, species, gear, area, and other factors for the co-operative management of the FSC fishery.
Food security continues to be an issue in First Nation communities. Many Nations continue to stress that FSC allocations often do not meet their food security needs.
Food security concerns have been heightened during the Covid-19 crisis, particularly for those communities who are isolated and have few alternatives for protein, and for Elders and at risk populations.
FSC licences are developed following consultations with affected Indigenous groups and conditions of the licence are based on specific considerations present within each Indigenous community.

Indigenous fishing – illegal sales

Food, social and ceremonial allocations are based on consultations between DFO and individual Indigenous communities; are only for the Indigenous harvester and/or their communities; and are not intended for sale.
DFO is committed to working closely with all harvesters to ensure that the Fisheries Act is followed, and Indigenous fishing rights are respected. This includes observing fishing activities as DFO and harvesters share a common goal - that all fisheries be orderly, safe, and sustainable.
DFO monitors and supports food, social and ceremonial fisheries; enforcement actions are taken to address illegal fishing and buying of catches.
Since the beginning of summer, DFO patrols supported the inspection and seizure of a significant amount of unauthorized and illegal gear, over 800 lobster traps in St. Mary’s Bay, Nova Scotia alone.
Major investigations around illegal fisheries and trade have recently led to convictions and more investigations will lead to similar results in the near future.

Background

Fishery Officers in Nova Scotia conducted an investigation focusing on lobster caught in October 2017, under food, social and ceremonial licences, and sold. By regulation, these catches cannot be sold.
Fishery Officers traced lobster found inside Indigenous FSC traps to the nearby Guang Da International lobster pound, then to the Halifax International Airport. August 26th 2020, the owner of the plant was found guilty of selling FSC lobster. Sentencing is scheduled to occur on Nov 12, 2020.
The Department is currently in negotiations on Rights Reconciliation Agreements (RRA) with 34 Mi’kmaq and Maliseet First Nations, and the Peskotomuhkati Nation, with the objective of addressing and recognizing the historic treaty rights (Supreme Court of Canada Marshall Decision of 1999), including the right to fish for the purpose of pursuing a moderate livelihood, and to ensure a stable and predictable fishery for the benefit of all Canadians.
The Department continues to have Senior level departmental officials (including ADM, FHM) meeting with the Atlantic lobster industry to provide status of stepped-up enforcement of illegal sales, answer questions on moderate livelihood negotiations and provide industry an opportunity to share their views.

Banked licences

Available banked licences have been issued to Indigenous communities that have signed a Rights Reconciliation Agreement.
These banked licences are not new; they have not been active since the early-to-mid-2000s when they were purchased through various Indigenous programs such as the Marshall Response Initiative.
The banked licences represent a small fraction to the overall commercial fishery and do not pose a conservation concern.
This is an important step in moving forward in the spirit of respect and reconciliation.

Background

Industry have raised a number of issues regarding the banked licences (e.g. not be consulted, potential for conservation concerns) and the department continues to meet with the fishing industry to discuss their concerns and answer any questions that they may have regarding the banked licences.
After signing a Rights Reconciliation Agreement back in August 2019, Elsipogtog and Esgenoôpetitj became eligible to receive a portion of the banked licences. Elsipogtog received a portion of lobster licences in Lobster Fishing Area (LFA) 25 prior to the lobster season starting in August. Esgenoôpetitj indicated that they could not fish the LFA 25 licences they were offered as they were not given enough time to prepare for the fishery and that they would prefer to fish in LFA 23.
Two separate exercises were undertaken in May 2019 and February 2020 to gauge interest and obtain input on how the banked licences should be distributed with First Nations. Depending upon the group or community, views varied greatly and when the decision was communicated in July 2020 on how the banked licences were to be distributed, depending upon their position, the decision was either welcomed or criticized.

Central Coast crab Food, Social and Ceremonial needs

My Department and four BC Central Coast First Nations have been working together through the Central Coast Collaborative Crab Management Process to address concerns regarding food, social and ceremonial (FSC) fishing access to crab in traditional fishing areas.
Ensuring First Nations have access to fish for FSC purposes is our top priority, second only to conservation considerations.
The Department is currently reviewing a recommendation coming out of the collaborative management process to close certain fishing areas to commercial and recreational activities.
Both the recreational and commercial sectors participated in the process and will continue to be consulted on the proposed closures and future monitoring during the development of the 2021/22 Crab Integrated Fisheries Management Plan.

Background

The Central Coast Collaborative Crab Management Process (CCCMP) is a pilot that is part of a larger Fisheries Resources and Reconciliation Agreement (FRRA) process underway with Fisheries and Oceans Canada (DFO) by Coastal First Nations that will offer economic and governance opportunities to First Nation communities.
The CCCMP is governed by a letter of intent and a process and procedure agreement. The primary goals are (1) to maintain healthy crab populations and (2) ensure sufficient Food, Social and Ceremonial (FSC) access.
The collaborative First Nations/DFO steering committee is recommending a list of closures based on a joint review of information on local crab biology and First Nations’ FSC needs. The implementation of these closures has been delayed due to a need to further engage with the commercial and recreational sectors. As a result, the Central Cost Nations have called for a meeting of the Executive Committee for November 18 to discuss the overall collaborative process.
Since its inception in 2017, the process has focused on developing a joint understanding of crab on the Central Coast. The Dungeness crab fishery in BC is primarily managed by reducing fishing impacts on reproductive individuals. No crab fishing sector can legally keep crab smaller than 165 mm point-to-point carapace width (“legal male crab”).
First Nation FSC fishers on the Central Coast have reported declines in their catch rates of legal male crabs since the 1990s. They report that declines accelerated in the early 2000s as commercial fishing effort in the Central Coast increased, and as recreational fishers began to navigate through the smaller bays and inlets.
Commercial and recreational fishery representatives have stated that they have been insufficiently consulted and argued for alternative, less restrictive means of supporting FSC access.

Lobster fisheries management

History of the Canadian Lobster Management Regime

Lobster fishing in North America predates European contact. Post-Confederation, lobster fishery management practices date back almost 150 years, with the first known regulation occurring in 1873. Today, there are 41 lobster fishing areas, with many stocks at or near historic highs.
The roots of Canada’s current approach to lobster management can be traced back to the late 1960s when the Department implemented an important set of input controls, that is, constraints on fishing effort through various means.
Today such input controls include: limits on the number of licences issued and the number of traps that can be used per licence, season limitations, a minimum size for retention (carapace size), designated fishing areas, among others. These and other important management measures have been developed and refined over subsequent years.
The Government of Canada has worked closely with Indigenous and non-Indigenous harvesters to develop these measures and we will continue working together to ensure the long-term sustainability of the resource.

Background

The contours of the current management regime for lobster began to emerge in the late 1960s, when the Department began to roll out a limited entry licence policy. Prior to that, no restrictions were in place for acquisition of a lobster licence. Along with limiting the number of licences, the Department also introduced trap limits and defined boundaries for most of the modern day lobster fishing areas (LFAs).
In 1995, the Minister of Fisheries and Oceans requested that the Fisheries Resource Conservation Council (FRCC) review and provide recommendations on the lobster fishery. The FRCC was an arms-length, independent council; it was disbanded in 2011.
Flowing from FRCC’s work, a number of new management measures were introduced to sustain the lobster resource including: voluntary V-notching; closures in known lobster spawning areas; minimum carapace size increase; trap reductions; and season reductions.
Today, the Canadian lobster fishery is divided into 41 lobster fishing areas (LFAs) in Atlantic Canada and Quebec. Lobster stocks in Canada are doing well, with many at or near historic highs and are in the healthy zone of the precautionary approach framework.
Key management measures include:
- a limited number of licences issued, with limits on the number of traps, and clear border of the Lobster Fishing Area (LFA);
- time limits for fishing in the form of fishing seasons;
- protection of egg-bearing females. Females bearing eggs must be released back into the environment alive to ensure the reproductive cycle continues (harvesters may voluntarily cut a small v-shaped notch in the female’s tail prior to release to ensure it will be released in the future, even when not bearing eggs);
- minimum lobster size limits. This is a measure to increase the likelihood that lobsters reach full adult maturity and reproduce;
- trap designs that allow undersized lobsters to escape and that include biodegradable escape panels to ensure that if traps are lost at sea they will not continue catching lobsters and other species; and
- ongoing monitoring and enforcement of fishing regulations and licence conditions.

Landings and value – overall fishery

The commercial fishery is an important economic driver in the Maritimes Region.
The 2018 preliminary landed value of the Maritimes Region commercial fishery was approximately $1.4 billion. This represents 37 per cent of Canada’s total landed value.
There are 12,500 registered harvesters and 3,110 active vessels in the Maritimes Region commercial fishery. Vessels with a length of less than 45 feet landed 70 per cent of the total value of the fishery in that region.
There are 400 ports with landings in the Maritimes Region. 155 ports have landings worth at least $1 million, and 38 ports have landings worth at least $10 million, indicating a wide distribution of benefit.
Inshore lobster comprises most of the Region’s total landed value. Other molluscs and crustaceans have the second highest value, followed by pelagics and other, and finally groundfish.

Background

Maritimes Region Landed Value by Major Species, 1998-2018 (preliminary)
see description below

Description

This chart shows the landed value in DFO Maritimes Region by year for major commercial species. Landed value has reached record levels of $1.4 billion in 2017 and 2018 (preliminary). The inshore lobster fishery (red bars) generated the most revenue to harvesters, accounting for just over $850 million in 2018 or about 60% of regional landed value. Other shellfish and crustacean fisheries in Maritimes Region, particularly Scallop, Shrimp, and Snow Crab, generated about $385 million, or 27% of total landed value. Groundfish fisheries, particularly halibut and haddock, had $80 million in landed value in 2018, and Pelagic & Other Fisheries were $87 million.

Licences, landings, and value for inshore lobster

As of December 31, 2018, there were 2,979 lobster licences issued in the Maritimes Region-based area of Nova Scotia. 979 of those licences were in Lobster Fishing Area 34.
Although data is preliminary, the 2019-20 Maritimes Region inshore lobster landings are expected to be 43,000 to 44,000 tonnes. This would be the seventh or eighth highest value historically.
The 2019-20 season landed values are not yet available, but are estimated to exceed $700 million, or fifth highest historically.
In 2018, the commercial fishery landed value for DFO Atlantic regions totaled $3.17 billion. Lobster accounted for 45 per cent of this total landed value. Some logs are still outstanding for 2019.
The exchange rate with the USD has been a big driver of the strong wharf price. The inflation-adjusted and currency-adjusted lobster prices have averaged $5.57/lb in the Maritimes Region over the past 30 years.

Background

Generally speaking, the price for lobster is fairly uniform, and tends to be higher due to better market conditions and/or a weaker Canadian dollar. In recent years, the exchange rate with the USD has been a big driver of the strong wharf price.
In 2019, there were 568 active lobster licenses in the Gulf Region-based area of Nova Scotia.
Each of the past six seasons (from 2013-14 to 2018-19) of landings reached over 50,000 tonnes. The 2019-20 season is not expected to reach 50,000 tonnes.
The 2007 lobster price of $6.94/lb was the highest annual average in the past 30 years. This is in inflation-adjusted, U.S. dollar terms.
Lobster landings (measured as landed weight) in the inshore lobster fishery in the Maritimes Region rose almost uniformly year after year from the 1995-96 season through to the 2015-16 season, increasing from just under 15,000 tonnes in 1995-96 to a record 60,822 tonnes in 2015-16.
Inshore lobster nominal landed value averaged about $350 million over a 15 year period through to the 2012-13 season. In just three years following the 2012-13 season, inshore lobster landed value more than doubled, rising dramatically from $383 million to $876 million.
Total inshore lobster values have increased from approximately $660 million in the 2014-15 season to $883 million in the 2018-19 season (based on preliminary data).
COVID-19 was presumably a driver for lower markets and prices near the end of the 2019-20 season.

Communal commercial landings and value

The 2018 preliminary value of communal commercial fisheries (the most recent year with complete data) in the Maritimes Region was $72.2 million. Lobster was the most valuable species, at $36.9 million.
Employment figures for Atlantic Canada First Nations members are estimated to be approximately 1,300 harvester positions, 110 land-based positions, and 250 other positions related to the fishing industry.
Indigenous communities may designate the captain, crew, and vessel that may be used to fish under the authority of the licence.
The vast majority of the licences held by Indigenous communities are fished by the communities themselves, using the approximately 320 community-owned vessels operated by community members.
Requests to permanently transfer quota or access can be made by First Nations in cases where they would like to relinquish access they currently hold to acquire access better suited to their fishing enterprise.

Background

Communal commercial licences are issued under the Aboriginal Communal Fishing Licences Regulations.
Requests by First Nations to permanently transfer quota or access is carried out through the Relinquishment and Replacement of Communal Commercial Access process, which was jointly developed by Indigenous partners and DFO. This process has been used a handful of times to-date. Temporary transfers generally take place under the standard rules for the fishery.
DFO sets commercial licence conditions on an industry-wide scale. For Indigenous communities involved in the commercial fishery, regulations flow from the Aboriginal Communal Fishing Licences Regulations, yet include similar regulatory requirements (e.g. conservation measures, gear marking and reporting requirements) as all other commercial fishing licences.
Communal commercial licences include: crab, lobster, scallop, sea urchins, groundfish, shrimp, swordfish, tuna, elver, clams, alewife/gaspereau, herring, and others.

Supplementary information related to lobster landings and value

Total inshore lobster values have increased from $383 million in 2012-13 to over $850 million in 2015-16, and averaged over $850 million from 2015-16 to 2018-19.
Total issued and active licences have remained stable during this time. There are generally between 250 and 290 more licenses registered than there are active licences.
In the 2018-19 fishing season, total landed value in St. Mary’s Bay and Lobster Fishing Area 34 were approximately $10.5 million and $342.5 million, respectively.
This represents a decline from recent years in St. Mary’s Bay, although it is still the fifth highest value from 2002 to 2019. The 2018-19 value of Lobster Fishing Area 34 was its second highest of the same time period.
In the 2018-19 season, 936 licences reported landings in Lobster Fishing Area 34 and 76 licences reported landings in St. Mary’s Bay. Approximately 85 licences have reported landings in St. Mary’s Bay from 2002-19.

Background

DFO Maritimes Region – LFA 34 & St. Mary’s Bay Lobster Landings by Season (2002-19)

St. Mary's Bay
Season	Licences - Active	Vessels - Active	Days Fished	Offload Sale Weight - In-Shell MT	Landed Value $000's
2002-2003	89	91	4,681	1,297	$19,908
2003-2004	88	89	4,242	1,102	$15,506
2004-2005	92	94	4,864	1,207	$16,900
2005-2006	97	98	4,565	1,107	$15,253
2006-2007	89	90	3,635	889	$10,807
2007-2008	97	97	4,767	957	$12,398
2008-2009	87	87	4,628	1,034	$10,910
2009-2010	81	82	4,475	1,139	$10,356
2010-2011	75	75	4,188	1,240	$12,238
2011-2012	79	84	4,279	1,638	$15,451
2012-2013	95	97	4,814	1,840	$15,960
2013-2014	88	88	4,066	1,310	$15,237
2014-2015	75	76	3,316	1,219	$15,522
2015-2016	84	85	4,156	1,591	$22,918
2016-2017	94	95	4,332	1,645	$24,896
2017-2018	88	91	4,050	1,329	$21,168
2018-2019	77	77	3,269	860	$15,359
2019-2020	65	66	2,232	613	$10,497

Total LFA
Season	Licences - Registered	Licences - Active	Vessels - Active	Days Fished	Offload Sale Weight - In-Shell MT	Landed Value $000's
2002-2003	985	930	963	58,894	17,613	$270,431
2003-2004	985	940	982	56,141	17,801	$250,454
2004-2005	985	970	1,003	63,593	17,250	$241,432
2005-2006	985	967	983	60,540	17,009	$234,351
2006-2007	985	935	959	56,236	16,583	$201,582
2007-2008	985	967	995	61,229	17,143	$222,078
2008-2009	985	972	989	60,362	17,262	$182,187
2009-2010	987	968	991	60,775	19,749	$179,557
2010-2011	986	954	968	56,550	20,401	$201,273
2011-2012	979	942	966	59,255	23,317	$219,942
2012-2013	979	923	947	51,586	22,770	$197,505
2013-2014	979	909	930	53,600	25,427	$295,854
2014-2015	979	911	942	50,215	24,150	$307,618
2015-2016	979	921	949	57,988	29,131	$419,669
2016-2017	979	928	960	54,383	22,684	$343,224
2017-2018	979	921	953	53,747	23,958	$381,573
2018-2019	978	935	964	52,486	20,363	$363,826
2019-2020	978	903	932	42,123	19,999	$342,480

Authorized lobster traps

In 2019, there were 1,976,395 lobster traps authorized to be deployed in Atlantic Canada and Quebec with an average of 280 traps per license.
Of the total traps authorized in 2019, 184,685 were for communal commercial fisheries.
In addition, the Department also authorizes First Nations to harvest lobster for food, social, and ceremonial purposes.
The Department issues harvesters with licence conditions along with their licences. These conditions stipulate, among other things, the number and size of traps that they are authorized to deploy.

Background

In 2019 there were 8,677 active commercial lobster licences in the provinces of Quebec, New Brunswick, Nova Scotia, Newfoundland and Labrador, and Prince Edward Island.
Through these licences, just slightly fewer than 2 million traps were authorized in 2019, including for commercial-Communal licences.
The Department also provides regulated access for First Nations to fish lobster for food, social, and ceremonial purposes. Levels of access vary and are developed between the Department and First Nations through the Aboriginal Fisheries Strategy program.

Community impact

Lobster harvesting in North America dates back millennia, when the ancestors of the Mi’kmaq settled in Mi’kma’ki, traditional Mi’kmaq territory.
Inshore lobster fishing represents a longstanding feature of social and economic life in rural communities in the Maritime Provinces. It is a key component of communal commercial fisheries in the region.
As an owner-operator fishery, lobster is an important contributor to the independence of the inshore fleet in Canada’s Atlantic fisheries.
The lobster fishery has long been the backbone of the inshore commercial fishery in the Maritimes Region. In recent years, the fishery generated direct fishing employment for approximately 7,500 people.
The inshore lobster fishery generates significant indirect economic benefits in the Region through investment in inputs, such as vessel construction and maintenance, gear manufacturing and maintenance, fuel, and bait.

Background

The fishing sector has an aging demographic, and many workers are retiring or likely will retire in the coming years. The declining recruitment of non-Indigenous harvesters and seafood workers into the sector will create succession issues in the commercial sector in small and rural communities.
The Canadian lobster fishery has provided a means of income for many in Atlantic Canada since the 1850s. Motorized boats and mechanized haulers were introduced around the turn of the 20th century. The lobster fishery has been essentially a small-boat inshore fishery for much of its history.
The lobster fishery has provided important economic benefits in coastal communities throughout the Region, including Indigenous communities. Lobster is landed at more than 300 communities in the Maritimes Region, providing for a broad distribution of associated revenues and profits for licence holders and wages for crew.
The inshore lobster fishery generates significant induced economic benefits in the Region as employment incomes and fishing business profits are spent and invested locally. Important economic benefits are also generated through the additional business activity that takes place post-landing, such as product handling and packaging, transportation, processing, marketing and exporting. All of these activities generate additional profits and employment in Nova Scotia and New Brunswick.
The landed value of the commercial fishery varies by county, as does the relative importance of lobster. For example, in 2018, Shelburne County lobster landed value was $205 million, or 72 per cent of the country’s commercial fishery landed value; for Yarmouth County, it was $184 million, with lobster contributing 75 per cent of the county total.

Market analysis

The value of Canada’s lobster exports reached a record $2.59 billion in 2019, which was more than three times the modern era lows of 2009, when total lobster exports were valued at $803 million.
The majority of lobster landed in the Maritimes Region is destined for market as live lobster. However, there is also a significant market for frozen/processed lobster.
For live lobster, traditionally the U.S. has been the main market, but Asian markets have been growing in recent years. Live exports were 53 per cent to U.S., 38 per cent to Asia, and 9 per cent to Europe in 2018.
Some domestic retailers and food service operators have expressed concern about sourcing lobster from the areas where conflict is occurring. This is expanding to the U.S. and potentially other markets.
When the Southwest Nova Scotia season is closed, significant lobster fishing occurs in Southwest New Brunswick, Eastern Nova Scotia, and the Gulf of St. Lawrence.

Background

In the early 2000s, the split for export value between live lobster and frozen/processed was approximately 50:50. By 2018, the frozen/processed product accounted for 56 per cent of Canadian lobster export value, with live lobster making up 44 per cent.
The Maritimes Region lobster fishery accounted for 60 per cent of Canadian lobster landings in 2018 and was, therefore, an important supplier for Canadian exporters.
In 2018, the commercial fishery landed value for DFO Atlantic regions (Maritimes, Gulf, Quebec, and Newfoundland & Labrador) totaled $3.17 billion. Maritimes Region accounted for 43 per cent of this total and lobster accounted for 45 per cent of the total landed value across all Atlantic regions. Within DFO Maritimes Region, lobster accounted for approximately 62 per cent of the total landed value.
Currently, 88 per cent of commercial value in the Maritimes Region is from fisheries certified by the Marine Stewardship Council (MSC), including the Maritimes Region lobster fisheries.

Lobster assessment and basis for season

The Department continues to regularly monitor and assess Canadian lobster stocks to support management decisions. The outcome of these assessments are shared publically on DFO’s website.
We also continue to increase the scientific monitoring of lobster in all four Atlantic regions to strengthen our understanding of this valuable resource.
Lobster fishing seasons vary by area. An important conservation consideration is seeking to minimize the interaction of the fishery with important life history stages, including mating and moulting.

Background

Assessment:

The inshore lobster fishery is an input control fishery managed using management measures that control effort, the size of animals at harvest and prohibit the landing of egg-bearing females. Total allowable catches (TAC) are not established. The offshore lobster fishery in Lobster Fishing Area (LFA) 41 is the only lobster area that is managed using a TAC, which has been set based on historical catches.
In most LFAs, lobster is primarily assessed using fishery-dependent landings and catch data. Unreported changes in level of effort may result in increased uncertainty in the assessment. Fishery-independent information is also used, when available, and includes trawl surveys, dive surveys, and recruitment surveys that monitor young lobster before they grow large enough to be harvested in the fishery.
In LFA 34, biomass indices from fisheries-independent trawl surveys are used as primary indicators to assess stock status. Secondary indicators, such as landings, effort and commercial catch rates, are also used to provide additional information.
The information collected, the analysis and the conclusions are subject to a scientific peer-review process. The resulting science advice on the status of the stock then guides fisheries management decisions.
The department is also initiating new fisheries independent surveys in some LFAs supported through the Fish Stock provisions funding from Budget 2019.

Seasonality of the fishery:

Lobster Fishing seasons vary by area and in part attempt to minimize interactions of the fishery with important life history stages, including egg hatching, lobster molting, egg laying and mating. In many areas, seasons are set to avoid these critical times.
Lobster growth occurs through moulting which takes place during summer to early fall. Following molt, lobsters are soft and their carapace hardens over the following weeks and months. Fishing while their carapace is not fully hardened increases injury and incidental mortality. In most lobster fishing areas, the current fishing season ends prior to this more vulnerable time.
Increases in cumulative effort or mortality rates resulting from a change to fishing seasons or fishing out of season can be a conservation concern depending on the specific timing, the scale of the fishery, and the characteristics of the LFA.

Impact of seasonal changes to fishery dates on Science advice:

In areas where Science advice largely depends on information from the fishery, changes to the timing of fishing and effort levels (e.g., seasonal changes, fishing out of season) would impact the advice, particularly without logbooks or other means of documenting these changes.

Lobster abundance and distribution

American lobster is distributed throughout the northwest Atlantic, from the coast of North Carolina to the waters of Newfoundland and Labrador.
Lobster are generally found in waters less than 50 metres in depth, but have been observed at depths greater than 500 metres. The largest populations are found in the Gulf of Maine and, in Canada, around Nova Scotia and the southern Gulf of St. Lawrence.
Over the past decade, lobster abundance and distribution in Canadian waters appears to have been positively affected by environmental conditions and management measures in place.

Background

The role of climate in affecting lobster abundance and distribution will likely continue to be important over the coming years. Decreases in lobster production have been observed at the southern extent of the species in New England, this has been tied to increasing temperature and disease. Whereas, in the northern Gulf of Maine and Atlantic Canada increases in lobster productivity and a range extension has been observed in most areas.
Size limits are a critical conservation measure for the lobster fishery. Size at maturity is known to be related to environmental conditions. Generally lobsters are smaller in warmer waters, this is one of the reasons minimum carapace lengths vary between lobster fishing areas (e.g. increasing the minimum carapace length increases the amount of lobster that can potentially spawn before being vulnerable to harvest).

Lobster – impacts of concentrated effort

Lobster stocks in Atlantic Canada are doing well; throughout the Maritimes Region, stocks are in the healthy zone with many near historic high levels.
While there is uncertainty around the impact – particularly over the longer-term – that a significant increase in effort could have on lobster populations, we know there are a number of risk factors that need to be considered (including level and timing of additional harvest, population size and the amount of lobster habitat available).
Additional science work is required to assess the impact of incremental and localized effort on lobster population health.

Background

Results from the most recent scientific assessments indicate the lobster stocks in the Maritimes Regions are in the healthy zone. Abundance indicators, where available, remain high relative to historic levels.
In Maritimes Region, lobster stock assessment and advice are provided at the scale of the LFA. While there are likely connections between LFAs, they are managed separately. However, in LFA 34 DFO conducts a fisheries-independent trawl survey and it is possible to look at data from stations in some smaller areas.
There is potential for localized depletion if a large number of traps or effort is concentrated in a small area. Localized depletion can have negative impacts to overall productivity in an LFA at small population sizes or in LFAs with limited areas of suitable lobster habitat.
Lobster just recruiting to the fishery makes up a large proportion of lobster landings on an annual basis. With additional, unreported fishing pressure, it may take a number of years to detect any impacts to the lobster population.
In many LFAs, including LFA 29, the assessment relies on commercial catch information relative to previous years. As a result, changes to the fishery such as changes to the season and/or unreported landings and effort may impact our ability to track changes in lobster indices. This may increase uncertainty in our assessments.

Purchase of Clearwater by a coalition of Atlantic First Nations and Premium Brands

The Government of Canada supports collaboration amongst First Nations and non-Indigenous harvesters and efforts to create partnerships. Working together towards mutually beneficial outcomes is the practice of reconciliation.
Details of the arrangement will need to be discussed further with Clearwater and the First Nation coalition.
If we understand Clearwater’s intentions correctly, the company will need to submit reissuance requests to Fisheries and Oceans Canada for all licences that are to be transferred to a new entity – in this case to the First Nations Coalition.
My department and I are looking forward to learning more details about this complex transaction and will review the relevant licensing requests, as required.

If asked about the Marshall Decision, moderate livelihood and/or treaty rights:

The Government of Canada remains committed to implementing the treaty right to fish in pursuit of a moderate livelihood.
Canada stands ready to work with First Nations to explore and discuss how to implement this right, while supporting a safe and orderly fishery.

Background

On November 9, 2020, Clearwater Seafood Inc. announced the results of the company’s strategic review. While the details of the arrangement are still uncertain, at least seven Atlantic Mi’kmaq First Nations (and possibly up to 14), led by Membertou First Nation, are understood to be purchasing a 50 per cent share in the Clearwater Seafood company. The remaining 50 per cent share would be purchased by Premium Brands, a private sector company based in British Columbia, Canada.
The Mi’kmaq First Nations are borrowing $250 million from the First Nations Finance Authority (FNFA) in order to finance the purchase. All of Clearwater’s Canadian fishing licences are expected to be re-issued to a 100 per cent First Nations owned corporation.
There may be other Indigenous groups that have an interest in becoming involved in the current deal. [Information was severed in accordance with the Access to Information Act.]
With regard to the East Coast fishing industry, the November 9 announcement is seen as a “transformational moment”, since Clearwater is North America’s largest producer of shellfish. DFO continues to monitor stakeholder reactions.
Clearwater shareholders are expected to vote on the proposed sale agreement in early January 2021.

Other Indigenous issues

Ahousaht (Five Nuu-chah-nulth) First Nations

The Government of Canada is working collaboratively with the five Nuu-chah-nulth First Nations to advance reconciliation in the areas of collaborative governance, increased fishing access and a community fishery that builds on their right to fish and sell fish.
An Incremental Reconciliation Agreement for Fisheries Resources was concluded on September 10, 2019. Currently negotiations are underway towards collaboratively developing a comprehensive reconciliation agreement for fisheries resources.
DFO consulted with the Five Nations and others on their second right-based multi-species fishery management plan for 2020-21 which came into effect in April 2020.

Background

In its decision dated November 3, 2009, the Supreme Court of British Columbia (BCSC) found that the Plaintiffs, five Nuu-chah-nulth First Nations on the West Coast of Vancouver Island, have a right to fish and sell fish (excluding geoduck) within their court-defined fishing territories [which extend offshore 9 miles].
The Five Nuu-chah-nulth First Nations are: Ahousaht, Ehattesaht, Hesquiaht, Mowachaht/Muchalaht and Tla-o-qui-aht. They have an interest to create economic fisheries that work for First Nations and coastal communities.
Canada signed the Incremental Reconciliation Agreement for Fisheries Resources in September 2019 to provide additional access, flexibility and capacity to support participation by members of the Five Nations in the establishment of a community fishery that respects their way of life and their Aboriginal rights.
In March 2019, DFO issued the 2019-20 Five Nations Multi-Species Fishery Management Plan (FMP) for salmon, groundfish, crab and prawn in accordance with the November 1, 2018 court order issued the BCSC; the Five Nations challenged aspects of this Plan through a new civil claim with the BCSC.
The 2020-21 Multi-species FMP is now in place and right-based sale fisheries have been initiated.
Canada and the Five Nations are currently meeting on a regular basis to negotiate a comprehensive reconciliation agreement for fisheries resources that includes but is not limited to increasing fishery access and collaborative governance.

Reconciliation with Indigenous Peoples

Fisheries, oceans, aquatic habitat, and marine waterways are economically, socially, and culturally vital for Indigenous peoples.
The sustainable use of the fishery resource, the protection of fish and fish habitat, the conservation and management of our oceans, and the safety of those on the water are priorities for my department—priorities held in common with Indigenous peoples in Canada.
My department is committed to working in partnership with Indigenous peoples not only to advance these shared priorities, but to advance reconciliation through strengthening Indigenous-Crown relationships, recognizing and respecting Indigenous rights and self-determination, improving service delivery and reducing unacceptable socio-economic gaps.
I am fully committed to implementing the Treaty right to fish in pursuit of a moderate livelihood as it is critical to the work of reconciliation and is a top priority of mine, my department and the Government of Canada.
All Canadians have a stake in advancing reconciliation across Canada. My department is dedicated to working with all concerned to move forward on reconciliation and we will stay this course.

Background

Fisheries and Oceans Canada (DFO) has longstanding and complex relationships with Indigenous peoples and, as such, has a key role in advancing the reconciliation agenda. Like the rest of the Government of Canada, DFO is working to transform the colonial relationship with Indigenous peoples to one that recognizes and respects Indigenous rights and interests.
Through policies, programs, treaty tools, and reconciliation agreements, DFO strives to maintain strong relationships by managing fisheries, oceans, aquatic habitat, and marine waterways in a manner that respects Indigenous rights and interests, meets legal obligations, and reconciles Indigenous rights and interests with the interests of all harvesters.
The DFO-Canadian Coast Guard Reconciliation Strategy was publicly released on September 6, 2019. It is an evergreen internal guidance document intended to promote greater reconciliation literacy within the Department, hold the Department accountable for reconciliation results and actions, and enable collaboration with Indigenous peoples.

United Nations Declaration on the Rights of Indigenous Peoples

Fisheries, oceans, aquatic habitat, and marine waterways are economically, socially, and culturally vital for Indigenous peoples.
First Nation, Inuit, and Métis peoples have unique rights that are recognized and protected by section 35 of the Constitution Act, 1982, and we are committed to supporting the exercise of those rights in fisheries, oceans, aquatic habitat, and marine waterways.
Our government has committed to tabling legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples by the end of 2020.
My department continues to work with Indigenous peoples to advance relationships, agreements and arrangements that are based on the recognition of rights and that foster collaborative approaches to governance, decision-making, and operations.
As with reconciliation, all of us will need to work together to implement and breathe life into the United Nations Declaration in Canada.

Background

The Government of Canada committed to introduce legislation co-developed with Indigenous peoples to implement the United Nations (UN) Declaration by the end of 2020.
Your mandate letter includes several commitments (e.g., blue economy strategy, co-management of oceans, marine conservation targets, new aquaculture legislation, management of aquatic ecosystems and fish stocks) that reference the inclusion of Indigenous peoples and Indigenous Knowledge in the management of fisheries, oceans, and freshwater resources.
Fisheries and Oceans Canada (DFO)-Canadian Coast Guard’s Reconciliation Strategy, released on the DFO website on September 6, 2019, commits the Department to recognizing and implementing Indigenous and treaty rights in fisheries, oceans, aquatic habitat, and marine waterways in a manner consistent with, among other things, the UN Declaration.

Date modified:: 2021-03-18

Study on the Implementation of Mi’kmaq Treaty Fishing Rights to Support a Moderate Livelihood

House Standing Committee on Fisheries and Oceans

Briefing for the Minister of Fisheries and Oceans for her November 18, 2020 Appearance

Table of contents

Opening remarks

Background

Marshall decisions

Background

Marshall Response Initiative

Background

Atlantic Integrated Commercial Fisheries Initiative

Background

Marshall negotiations

Background

State of relationships (Indigenous-commercial fishing sector)

Background

Timeline of events (events, briefings, responses)

Background

Industry engagement

Background

Role of Federal Special Representative

Background

Forward plan

Background

Co-management boards

Background

Moderate livelihood – issues

Indigenous moderate livelihood fisheries

Background

The sale of Food, Social and Ceremonial (FSC) catches

Background

Indigenous fishing – illegal sales

Background

Banked licences

Background

Central Coast crab Food, Social and Ceremonial needs

Background

Lobster fisheries management

History of the Canadian Lobster Management Regime

Background

Landings and value – overall fishery

Background

Licences, landings, and value for inshore lobster

Background

Communal commercial landings and value

Background

Supplementary information related to lobster landings and value

Background

Authorized lobster traps

Background

Community impact

Background

Market analysis

Background

Lobster assessment and basis for season

Background

Assessment:

Seasonality of the fishery:

Impact of seasonal changes to fishery dates on Science advice:

Lobster abundance and distribution

Background

Lobster – impacts of concentrated effort

Background

Purchase of Clearwater by a coalition of Atlantic First Nations and Premium Brands

Background

Other Indigenous issues

Ahousaht (Five Nuu-chah-nulth) First Nations

Background

Reconciliation with Indigenous Peoples

Background

United Nations Declaration on the Rights of Indigenous Peoples

Background