ESTUARY FILE CONSULTLATION PROCESS

Transcription

1 ESTUARY FILE CONSULTLATION PROCESS FACTSHEET The Council of the Micmacs of Gesgapegiag is holding a three-phase consultation process in order to inform community members and seek their input regarding the community s current fishing agreement with the government of Quebec relating to the Cascapedia and Little Cascapedia Rivers and their estuaries (the Estuary ) and fishing activities within Gesgapegiag territory and rivers. BACKGROUND Since the 1980s, the community of Gesgapegiag has been party to fishing agreements and protocols governing its members gillnet fishing practices with the government of Quebec. Between 2000 and 2008, five fishing protocols were signed with the government of Quebec, establishing fishing seasons, zones and quotas in the Cascapedia River and its estuaries, as well as an annual financial contribution provided to the Council to implement the protocols. In 2009, a new agreement was reached with Quebec for a period of 4 years ( ), in which the Micmacs of Gesgapegiag, represented by the former Council, accepted to suspend their ancestral and treaty fishing rights in the Estuary in exchange for a subsidy that almost doubled the financial contribution provided under the 2008 fishing protocol. Also, although all previous fishing protocols applied to the Cascapedia River only, the 2009 fishing agreement applied to both Cascapedia and Little Cascapedia Rivers. This new agreement was signed after a survey conducted among community members seeking their response to the following question: Would you agree to suspend your netting rights in the estuary of the Grand Cascapedia River for a period of four (4) years if the Band received monies from the government and other organizations that would be used for job creation and housing and to compensate each house old in the community and each fisherman/fisherwoman?. The results of the survey was a unanimous Yes. In August 2013, the agreement was renewed for a further term of 10 years. Under this agreement, the suspension of gillnet fishing rights continues to apply to the Cascapedia River and Little Cascapedia River. In addition, the Council undertakes not to support gillnet fishing activities of Gesgapegiag members in all other Gaspésie rivers. This agreement is in force until March 2023, but can be terminated at any time on April 1 st of any year. ELEMENTS OF CONCERN Since 2009, a decision was made at the Council level to distribute the amounts flowing from the fishing agreements among community members as a form of compensation. This decision was made despite the fact that both the 2009 and the 2013 agreements specify that the annual subsidy is provided to support Gesgapegiag s economic recovery plan, including support for community projects. Since 2009, the funds have been divided up and distributed directly to individual households and fishermen who respectively met the criteria of a) residing in a house in the community, and b) owning a fishing boat,

2 ESTUARY FILE CONSULTLATION PROCESS FACTSHEET a motor and nets. The decision-making process having led to the establishment of these eligibility criteria and the list of beneficiaries is not clear due to a lack of documentation and recordkeeping. Upon further consultation with representatives of the Quebec Ministry of Forests, Wildlife and Parks and a review of the Ministry s Atlantic Salmon Management Plan of , it is confirmed that there are not and have never been any underlying environmental, pollution or salmon conservation concerns for in the Estuary since As of this date, the true reasons and justifications of the decision to suspend Gesgapegiag members fishing rights in exchange for a monetary compensation remains unknown to the Council. According to legal counsel, there are no precedents of a long-term agreement that suspends the ancestral and treaty fishing or hunting rights of an Indigenous community in Canada, in absence of any environmental, pollution or conservation issues. There was no records found of any community consultation taking place for the renewal of the agreement in 2013 which not only extended the agreement for no less than a decade, but also prevented the Council from supporting gillnet fishing activities of Gesgapegiag members in all other salmon river in the Gaspésie region. POSITION OF THE COUNCIL The Council has some concerns with regards to the current fishing agreement with the government of Quebec which suspends the ancestral and treaty fishing rights of the Mi gmaq in the Estuary agreement. Considering that that the Council has a fiduciary obligation not only to ensure that these intergovernmental agreements are followed, but also that the ancestral and treaty rights of the Micmacs of Gesgapegiag are respected and protected. The Council needs to ensure that any distribution of funds among community members is made pursuant to clear, equitable and nondiscriminatory eligibility criteria. Before taking any action in this direction, the Council will be informing and consulting community members. The objective of the consultation process is for the community members to provide their point of view and make a decision together, so that the Council can take the necessary political action with the government of Quebec that reflects the wishes and best interests of the community as a whole. The Council of the Micmacs of Gesgapegiag is seeking input from the community and will take all points of view into consideration before proceeding any further with this case. If you have any questions in regards to the consultation process please info@gesgapegiag.ca with the subject labeled as Estuary File.

3 MICMACS OF GESGAPEGIAG QUEBEC FISHING AGREEMENTS: AN OVERVIEW OF LEGAL IMPLICATIONS Salmon fishing on Cascapedia River Albert Bierstadt Second half of 19 th century Presented by: Me Nadir André Gesgapegiag, March 27, 2018

4 Overview History of MOG-Quebec Fishing Agreements ( ) Current Fishing Agreement: Overview of Relevant Provisions Current Distribution Plan Validity of the Fishing Agreement Council s Authority Unclear Lack of Consultation with Membership Overarching principle: Council s Fiduciary Duties Recommendations

5 History of MOG-Quebec Fishing Agreements ( ) One to five-year fishing agreements since 1979 Creation of the Cascapedia Society in 1982: a joint corporation between the Micmacs of Gesgapegiag and the Municipality of Cascapedia-St-Jules, whose mandate is to carry out management duties for the purposes of development, conservation an harvest of aquatic wildlife in the Cascapedia River wildlife reserve From 2000 to 2008: five Protocols on Salmon Fishing in Cascapedia River, setting out a fishing season/duration, a quota, a fishing zone and a limit for gillnet length (106 meters or 350 feet) In 2009, the 2008 Protocol was cancelled and replaced by the Fishing Agreement, establishing a netting moratorium on Cascapedia and Little Cascapedia Rivers In 2013, the netting moratorium was renewed for a further ten-year term under the Fishing Agreement

6 MOG-Quebec Fishing Agreements at a Glance Term Fishing Season/Duration Quota Fishing Zone Financial Contribution days/year in June 1360 kg (3000 lbs) Cascapedia River: Zone extending from the point of the extreme eastern end of the northern limit of the Reserve in a southeasterly direction to a line at the centre of the River, then in a south-westernly direction to the aforementioned point, forming a 74 o angle with Point Kilmore on the west side and the old wharf at Point Duthie on the east side $ days/year in June 1360kg (3000 lbs) idem $ days/year in June 1360 kg (3000 lbs) idem $ : 16 days 2004: 15 days 2005: 14 days 2006: 13 days 2007: 12 days : 14 days 2009: 14 days 2010: 13 days 2011: 13 days 2012: 12 days 2003: 2500 kg 2004: 2150 kg 2005: 1900 kg 2006: 1550 kg 2007: 1200 kg Cascapedia River: Zone extending from the point of the extreme eastern end of the northern limit of the Reserve in a southeasterly direction to a line at the centre of the River, then in a south-westernly direction to the aforementioned point, forming a 74 o angle with Point Kilmore on the west side and the old wharf at Point Howatson on the east side 2003: $ : $ : $ : $ : $ unspecified idem 2008: $ : $ : $ : $ : $ : $ (Quebec MFFP) : $ (Quebec MFFP) : $ (Quebec MFFP) : $ (Quebec MFFP) + $ /year (Cascapedia Society) + $ /year (Cascapedia Club) See Next Slide

7 Current Fishing Agreement ( ): Overview of Relevant Provisions Re-establishes the total ban on gillnet fishing for a further 10-year term (item 1) In addition, provides that Gesgapegiag members fishing with gillnets in any other Gaspé salmon rivers will not be supported by the Council (item 4, para 1) Provides for the amount of the annual subsidy to be paid by Quebec, subject to renegotiation between the parties as of year (item 7) : $ : $ : $ : $ : $ : $ : $ : $ : $ : $ Contribution agreements made with the Cascapedia Club and the Cascapedia Society in 2009 were not renewed in 2013, but are negotiated on a per need basis with them and with the Micmac Club (also known as the First Nation s Camp) $ (Cascapedia Society) + $ (Cascapedia Club) + $ 0 (Micmac Club) = $1 315, $ (Cascapedia Society) + $ (Cascapedia Club) + $ 0 (Micmac Club) = $1 329, $ (Cascapedia Society) + $ (Cascapedia Club) + $ (Micmac Club) = $1 295, $ (Cascapedia Society) + $ (Cascapedia Club) + $ (Micmac Club) = $1 359,112 Provides that subsidies received from Quebec should be allocated to carrying out or supporting community projects (items 1 and 7), as was the case of the previous agreement Provides that the parties can terminate the agreement without motive upon a 60-day notice prior to April 1 of each year (item 8, para 4)

8 Current Distribution Plan 1) Per capita distribution to on-reserve band members (on average 85% of the proceeds of the Fishing Agreement) - Fishermen: $8 000/year - Households: $4 000/year - Households in which a fisherman resides do not qualify 2) Partial investment in community projects (10% on average) 3) Payment in interest for previous bank loans (5% on average)

9 Validity of the Fishing Agreement Councils authority to deal with collective constitutional rights of the band is not entirely settled in case law Some cases suggest that a council does not have the authority to compromise or settle treaty land entitlements, while others suggest that a council can suspend treaty fishing rights by entering into fisheries agreements. At a minimum, a suspension of collective treaty rights requires a duly adopted BCR (s. 2(3) of the Indian Act) and evidence of informed consent on the part of all Council members Circumstances justifying a 14-year suspension of fishing rights: consultation with membership? Reasons justifying a long-term netting moratorium remain unclear No salmon conservation issues in Cascapedia and Little Cascapedia Rivers according to Quebec

10 Overarching principle: Band Council s Fiduciary Duties When dealing with community assets under its control, a council has a fiduciary duty towards: the community its membership Councils fiduciary duty includes: a duty to act honestly, faithfully, impartially and in the best interest of the community A duty to conduct meaningful consultations with the membership when making decisions relating to significant community assets and resources Was there sufficient consultation prior to the making of the 2009 and the 2013 Fishing Agreements? Were Council members who voted in favour of the Agreements sufficiently informed of their terms and implications?

11 Council s Fiduciary Duties (continued) Per capita distribution of settlement funds or other compensation amounts is reviewable by courts: Must be done in a fair, equitable (or in some cases, equal) and non-discriminatory manner Council s discretion depends on the nature and source of the funds: purely collective (e.g. land settlement) vs individual aspects (e.g. fishing rights) In any case, decisions should be made in the best interest of the band and not following arbitrary or discriminatory criteria of eligibility for compensation Issues for considerations: Unclear definition of fisherman : having a motor, a boat and nets in his possession? Equal distribution between households irrespective of the number of family members Discrimination against members of households in which a fisherman resides Unfounded and arbitrary entitlement amounts Exclusion of off-reserve members

12 Recommendations Re-assess the advantages and disadvantages of the current Fishing Agreement Consider other options, such as claiming the management of wildlife resources in the Cascapedia and Little Cascapedia rivers After consultation with membership, a decision should be made by Council as to whether to: (1) maintain the current Fishing Agreement Moratorium on gillnet fishing will remain in force until such time that the agreement is terminated Possibility to re-negotiate subsidies for years Strongly recommended that a new distribution plan with clear and justifiable eligibility criteria be adopted by the Band Council (2) terminate the Fishing Agreement, retroactively as of April 1 st, 2018 Gesgapegiag members will be able to fish with gillnets in Cascapedia, Little Cascapedia and other Gaspé salmon rivers Possibility to negotiate a fishing management agreement with Quebec with respect to the Cascapedia and the Little Cascapedia rivers : typically a subsidy is allocated by the province to support management, development and conservation-related activities Currently managed by the Cascapedia Society, jointly managed by the Micmacs of Gesgapegiag and the Municipality of Cascapedia-St-Jules

13 Other examples of First Nation-managed fisheries in Quebec Conseil des Montagnais de Natashquan Agreement for Conservation and Development of Atlantic Salmon in Natashquan River Term: Conseil des Montagnais de Unamen Shipu Agreement for Development and Management of Wildlife Resources in Etamamiou River Term: renewed automatically since 2016 Conseil de bande Innu Takuaikan Uashat mak Mani-Utenam Agreement for Protection, Biological Research and Management of Atlantic Salmon and Brook Trout in Moisie River Term: , then renewed for Since June 2017, the Innus of Uashat mak Mani-Utenam have refused to renew their agreement, asking Quebec to purchase the private outfitters and transfer their management to ITUM.

14 Q & A Questions? Thank You! Me Nadir André Nandre@blg.com