Feds a billion dollars in on moderate livelihood rights and resolution remains elusive

Since 2019, DFO has spent $400 million on providing fishery access to First Nations and indigenous co-management initiatives.

It wants to spend another $133.3 million more by the end of this fiscal year.

That’s on top of $543 million spent prior to 2019 buying up commercial fishery access and transferring it along with training, boats and gear to Atlantic Canadian First Nations.

According to a written response from DFO, the $133.3 million is not new funding, but rather a “repurposing” of budgeted funding it did not spend on other programs last year.

“The amount includes planned spending to implement recently concluded Rights Reconciliation Agreements with First Nations in Atlantic Canada, as well as planned spending to implement modern treaties and reconciliation agreements in British Columbia,” reads a written response to The Chronicle Herald from Fisheries and Oceans Canada, regarding the additional $133.3 million.

“Funding under these agreements includes funding to support collaborative fisheries management, as well as funding to support the acquisition of commercial fisheries access, vessels and gear.”

The reconciliation funding is part of a request by DFO for an additional $340 million in spending on top of their $4.5 billion budget to get them through to the end of the fiscal year.

It’s raising questions in the House of Commons and the commercial fishing industry.

‘No budget for overtime’

According to Clifford Small, Newfoundland and Labrador MP for Coast of Bays-Central-Notre Dame, it comes as DFO was refusing overtime-pay for its conservation and protection officers last year.

“It has been reported that guardians were observing illegal nets, and when they came to the end of their shift they were told to go home because there was no budget for overtime. If the budget’s not going to provide for these (conservation and protection officers), these individuals, to carry out their duties and have successful outcomes, what’s the point of it all?” Small asked DFO deputy minister Annette Gibbons as she defended her department’s budgetary request at the House of Commons Standing Committee on Fisheries and Oceans earlier this month.

Gibbons responded, “We have all of our activities planned out over a year, and as we see the need to make changes within a year, we’ll make changes. At any given point in time, each program activity has its budget, and they work within the budget they have. That’s how the money gets allocated to us.”

DFO refused to provide a detailed breakdown of how it proposes to spend the additional $133.3 million.

However, Gibbons warned during her testimony that the money, which is on top of $56 million already spent on indigenous fisheries reconciliation initiatives this year, is for commitments already made.

“The biggest item in the supplementary estimates is funding for various treaties and reconciliation agreements that we have,” said Gibbons.

“Those are on the East Coast, on the West Coast and in different parts of the country. Certainly, being able to make good on the commitments in those areas this fiscal year would be a big challenge for us. Given the timing of supplementary estimates, being December, with four months left in the fiscal year, we would just be in a bit of a crisis mode, actually trying to figure out what we’d stop doing between now and then, because we’ve made commitments in various areas.”

‘Why can their people still not fish’

The more-than-half-billion dollars that the budgetary request results in having been spent on fisheries rights reconciliation would be on top of $543 million spent buying up licences and providing them, along with training, boats and gear to Atlantic Canadian First Nations between the Supreme Court’s 1999 R vs. Marshall decision and 2016.

“Given over a billion dollars has already been delivered to the First Nations providing access, why can their people still not fish?” said Colin Sproul, head of the Bay of Fundy Fishermen’s Association.

“With 5 per cent of lobster licences in the Maritimes for two per cent of the population, why are First Nations people still not able to access their rights? At some point First Nations fishers need to look inwards to First Nations governments for (the) answer to that question.”

According to a 2019 report by the MacDonald-Laurier Institute, The Marshall Decision at 20: Two decades of Commercial Re-Empowerment of the Mi’kmaq and Maliseet, six per cent of all commercial licences in Atlantic Canada had been bought and transferred to First Nations by 2016.

Commercial landings of Mi’kmaq- and Maliseet-owned licences were worth $122 million that year.

Those were largely under commercial licences bought up by DFO and transferred to the bands by DFO as communal commercial licences.

Since then, a coalition of First Nations led by Membertou in Cape Breton has purchased Clearwater’s offshore licences and the federal government has continued buying up inshore commercial licences.

Since 2020 DFO has been distributing this access in the form of “Rights Reconciliation Agreements” and “interim understandings” with First Nations.

According to copies of previous agreements (dubbed Marshall Response Initiatives) with First Nations obtained by The Chronicle Herald, bands could lease their communal commercial licenses to non-aboriginal commercial fishermen.

The terms of the “Rights Reconciliation Agreements,” along with what additional access and money is being transferred,  now being negotiated are known only to DFO and First Nations.

Under the “interim understandings” First Nations are provided access to the lobster fishery via a set number of traps – they can then redistribute the ability to fish these traps to their membership. This fishery is subject to monitoring and enforcement by DFO and the catch can be sold commercially by First Nations members.

But two decades of Marshall Response Initiatives, Rights Reconciliation Agreements and Interim Understandings and over a billion dollars haven’t ended the conflict in the fishery.

This summer First Nations were accused of operating a commercial scale lobster fishery on St. Mary’s Bay while the commercial season was closed. Provincial Liberal leader Zach Churchill called on the federal government to “enforce the law” on the water.

Just before the normally lucrative LFA 33, 34 and 35 lobster fisheries opened this fall, arguments over the Rights Reconciliation Agreements spilled over into the public sphere.

“DFO is not working nation-to-nation,” said Annapolis First Nation Chief Gerald Toney in a written statement at the time. “There need to be opportunities to discuss and resolve the issues we face with our Treaty Right Protected fisheries. Our Treaty Rights to harvest and sell are a constitutional priority. The courts said that DFO is to work with us on the implementation of the Right, not have DFO just dictate to us what they want.”

After last-minute negotiations between DFO and the Annapolis, Glooscap, Bear River and Wasoqopa’q (Acadia) First Nations, on December 1 they adjusted the “interim understanding” to allow the First Nations to distribute 6,300 traps to their members.

Meanwhile, commercial fishermen’s associations, which had initially supported the Rights Reconciliation Agreements, alleged First Nations were violating the terms and withdrew their support.

The Assembly of Nova Scotia Mi’kmaq Chiefs offices are closed for the holidays and could not be reached for a response.