Monthly Archives: February 2010

“Is this still necessary?”

“As a ship’s hull attracts barnacles, so all processes attract complications and additions which add little value.”

– Edward de Bono “Simplicity

When it comes to looking after wild salmon — there is a desperate need for questioning and thinking — and asking whether certain practices, policies, complications, etc. are really necessary.

The Cohen Commission looking into the Fraser River sockeye population crash will be conducting a “policy review”:

The commission is currently developing the policy review process. As outlined in the commission’s Terms of Reference, the focus of the review will be any previous examinations, investigations or reports that the Commissioner deems relevant to the inquiry and the Government’s responses to those examinations, investigations and reports.

It’s a long list.

In just the last two decades alone there have been numerous inquiries, reviews, negotiations, provincial, federal and United States government bickering. Including the 1994 Fraser Inquiry that found major problems in Fisheries and Oceans Canada such as:

  • estimating salmon runs;
  • dysfunction at the senior management level;
  • understaffing at the field level; and
  • a lot of illegal fishing or catch unchecked.

As pointed out in previous posts, Fisheries and Oceans costs, budgets, and subsidies compared to actual benefits from commercial salmon fishing represents a significant net-loss. Historically in British Columbia, commercial salmon fishing has accounted for approximately 90% of the total salmon catch.

Edward de Bono (Simplicity):

That some way of doing things has survived over time does not mean that it is the best way or the simplest way. It may only mean that no one has yet tried to find a better way.

As part of his book Simplicity de Bono suggests a tree as a metaphor for looking at things.

The trunk of the tree is the basic supporting purpose. What is this all about? Why are we doing this? What do we hope to achieve? What is the intention? What is the core purpose?

Sometimes things grow in such a messy fashion that eventually it becomes impossible to tell what the real purpose is. It is said that the purpose of many bureaucracies is to continue in existence. It can happen that something set up for one purpose continues only because its purpose has become that of survival. This is a legitimate enough purpose (everyone seeks to survive) provided other people do not think there should be a different purpose.

“Many things are there simply because they were good yesterday — and the day before. There may have been a good reason for them at one time but that reason may long since have disappeared. A historical review means looking at the whole operation and also parts of it, and asking: ‘Is this still necessary?’ “

this is your second disconnection notice.

In my post earlier today, I highlighted an article on Bloomberg.com (World Salmon Supply to Drop Most Since 1990 on Virus) regarding the declining world farmed supply due to a devastating outbreak of disease in Chilean salmon farms.

As mentioned there are some serious disconnects in this issue. Let me highlight this further by pointing to the Globe and Mail’s coverage of this issue yesterday:

Salmon virus tilts scales in favour of British Columbia

Globe and Mail article - Vancouver Is. salmon farm

First off, the Globe labeled the article as: “Fishing Industry“. Salmon farming is about as much a “fishing industry” as cattle farming is “cow hunting”.

Secondly, I am flummoxed by the various articles on this issue.

Chilean salmon farms — also largely owned by Norwegian companies — have a major breakout of infectious salmon anemia. This significantly drops world supply of farmed salmon and thus higher prices. According to the Bloomberg article this means higher revenues for salmon farming companies and higher returns for investors.

Market analysts are increasing ratings of companies like Marine Harvest (Norwegian company with huge operations in British Columbia) and Cermaq (Norwegian-based company specializing in fish feed and salmon farming). Profits are up.

This = good.

Bloomberg article:

Marine Harvest reported fourth-quarter net income of 520 million kroner on Feb. 10, compared with a year-earlier loss, and predicted a “good” first quarter. Cermaq last week posted a 141.1 million-krone fourth-quarter profit, beating analysts’ expectations.

Cermaq climbed 10 percent this year in Oslo trading after doubling last year. It fell 2.4 percent to 61.75 kroner in Oslo today. Marine Harvest advanced 22 percent after a fourfold surge in 2009 and dropped 5 percent to 5.15 kroner today after saying it intends to issue convertible bonds.

Meanwhile in Chile:

Farmers won’t release more young fish into ocean cages until congress legislates to improve industry practices, Cesar Barros, president of industry association SalmonChile, said last month.

Empresas AquaChile SA, Chile’s largest salmon producer, said in November that it was preparing for its “worst year” ever. Output will drop to less than 50,000 metric tons this year, compared with 150,000 tons last year, Chairman Victor Hugo Puchi said Nov. 10.

Oh, so what you’re saying is the locals are getting screwed while the foreigners are seeing 22 percent growth after a four-fold growth period last year.

Chilean locals are being laid off in droves, communities hammered, local companies gutted, and the multinationals are seeing increasing profits.

The Chilean government is trying to improve legislation so that this can’t happen again and the multinationals are looking to screw British Columbia waters, communities, and governments.

The Bloomberg article:

…according to a report in 2004 from the U.S. Geological Survey. The virus can kill fish but is not harmful to people, according to a 2002 report from the U.S. Department of Agriculture.

Well, gee, thank ghad it’s not harmful to humans but only kills fish.

Oh wait, you mean those wild salmon that British Columbia has that Chile does not?

But wait… the Globe and Mail is suggesting that the “salmon virus tilts the scale in favour of British Columbia”.

Are you fricking kidding?!

Bloomberg article:

Infectious salmon anemia was first reported within Norwegian aquaculture facilities and has also been found in Canada, Scotland and the U.S.

Oh, you mean the same Norwegian companies that control over ninety percent of the British Columbia salmon farming industry?

Globe and Mail article opening:

A virus that devastated the Chilean salmon industry is driving up global prices, bringing an unintended boon to British Columbia’s embattled farmed-salmon business.

Salmon spot prices have nearly doubled in the past year, following a sharp drop in global supply because of the outbreak of infectious salmon anemia in Chile, the world’s second-biggest source.

But the benefits for British Columbia, the fourth-largest producer globally, will go only so far because of a recent moratorium on the expansion of fish farms in the province.

…a spokesman for Marine Harvest’s operations in British Columbia, said that while higher prices are good for profits, the business can only grow so much because of the provincial restrictions

Well, gee, stupid B.C.’ers!

Why can’t we see the boom here? Increased prices for farmed salmon, great local Norwegian companies providing all this work and benefits, why can’t we just loosen those provincial restrictions and lift the moratorium – and stop being so concerned about those silly wild fish and coastal ecosystems?

Yeah, gee, you know salmon farming has done wonders for wild salmon in Norway and Scotland and other places.

I don’t think I can even send another disconnection notice –because this is about as bad as it gets.

It seems that a much larger percentage of folks now recognize that slashing and burning the Amazon rainforest to raise cattle which is in turn ground into burgers for the voracious North American and European McMarkets — is not such a good idea.

So, why is it any better to put B.C. coastal ecosystems in jeopardy to feed farmed salmon to the Wal-Marts of the U.S. and supermarkets of Europe (like Asda’s in the U.K. — Wal-Mart’s European subsidiary)?

Yeah, I also hear the market for enriched plutonium is booming right now — shit, Vancouver Island you should get into that market… that’ll improve those coastal economies.

Disconnection notice sent.

this is your disconnection notice.

Yesterday, some headlines in various newspapers and media sites highlighted the recent jump in salmon prices. The main reason? — a drop in world supply. The reason for the drop in supply? A major outbreak of disease in Chilean salmon farms — infectious salmon anemia.

Bloomberg.com reported:

World Salmon Supply to Drop Most Since 1990 on Virus

Feb. 24 (Bloomberg) — Global supply of Atlantic salmon will decline the most in two decades this year after a virus decimated output in Chile, bolstering the steepest advance in Norwegian prices since at least 2000.

The harvest will drop 5 percent to 9 percent, the first “significant” decline since 1990, said Joergen Christiansen, a spokesman for Oslo-based Marine Harvest ASA, the world’s largest salmon farmer. Norwegian export prices for fresh salmon rose 14 percent to 34.88 kroner ($5.86) a kilogram (2.2 pounds) this year, according to Statistics Norway.

Salmon output in Chile, the second-biggest source, may slide 38 percent this year, the national industry association said last month. The volume of fish harvested in Chile plunged 65 percent in the fourth quarter, Marine Harvest said Feb. 10. Fish farms in the country have been hurt by outbreaks of infectious salmon anemia.

“The main explanation behind the strong salmon prices is the dramatic supply fall from Chile,” said Aslak Berge, an analyst at First Securities ASA in Oslo. “Given that Atlantic salmon is among the world’s most rapidly growing food industries, the fall has boosted prices.”

Right, so if you are one that subscribes to “supply and demand” theories then there seems to be a connection here. Supply drops, prices rise. If this is the case — could commercial fishermen see a rise in prices for wild-caught salmon in the upcoming season?

Most likely not.

Take a look at wild salmon prices for fishermen in Alaska over the last several years (from G. Knapp and co. – The Great Salmon Run).

As, Knapp and co. point out:

The salmon industry has experienced dramatic change over the past two decades. Two major trends gave rise to many of the issues discussed in this report. The first trend is the rapid and sustained growth in world farmed salmon and salmon trout production, from two percent of world supply in 1980 to 65 percent of world supply in 2004…

This development has fundamentally transformed world salmon markets—not only because of the dramatic growth in total supply, but also because of changes in the kinds of salmon products which are available, the timing of production, market quality standards and organization of the industry.

The curious part about this:

The second trend is a steep decline in the value of North American wild fisheries, as seen in the decline in the value of annual Alaska salmon catches from more than $800 million in the late 1980s to less than $300 million for the period 2000-04 expressed in 2005 dollars…

Most of this decline in value was due to a decline in prices (rather than catches), and much of the decline in prices was due to competition from farmed salmon.

However, it’s not just farmed salmon, as the text that accompanies the above graph points out:

…between 1988 and 2002 there was a steep decline in the real ex-vessel value of Alaska commercial salmon catches (“ex-vessel value” is the value paid to fishermen). British Columbia salmon fishermen have experienced an even more dramatic decline. More than half of this decline was in the value of sockeye salmon catches. The decline in value of sockeye catches resulted from a decline in both sockeye prices and sockeye catches. The modest rebound in value since 2002 has also resulted primarily from an increase in sockeye catches and prices.

I’m a bit confused by all this…

When disease rips through salmon farms in Chile – the world price of farmed salmon goes up. But, when there is a decline in sockeye catches the price went down? And, then when the catch goes up there is a “modest rebound in value”?

Is this not the opposite of the typical supply and demand theory?

Maybe there’s a bit more light provided by G. Knapp and co.:

This role of sockeye salmon is important to emphasize, because until recently almost all Alaska sockeye salmon was either frozen and sold in Japan or canned. Only a very small share was sold in the U.S. fresh and frozen market. Thus much of the decline in sockeye catch value (and the total Alaska catch value) had very little to do with competition between farmed and wild salmon in the U.S. fresh and frozen salmon market—but resulted rather from changes in other markets. (my emphasis)

As pointed out in earlier posts (there is probably no connection…Wal-Mart, MSC, 2011…), there is a worrisome relationship between the Marine Stewardship Council and Wal-Mart.

The Marine Stewardship Council has “eco-certified” Alaskan salmon fisheries and is close to “eco-certifying” British Columbia sockeye fisheries as “well managed and sustainable” — despite the fact that there has been no sockeye fishery on the Fraser River for three years due to conservation concerns.

Wal-Mart has suggested all of their seafood products will be from “sustainable” sources by 2011 — one of their more popular products: frozen “Alaskan sockeye salmon”.(They also sell a lot of farmed salmon)

Yes, Wal-Mart — the basically glorified dollar store, the “low-cost” leader, the sultan of cheap. Do you think Wal-Mart is going to pay top-dollar for “wild” products that they’re going to turn around and try to sell cheap?

Highly doubtful.

If Wal-Mart could figure out a way to have wild Alaskan sockeye salmon “made in China” at the cheapest price — they would.

Added further to this equation — Target, another U.S. low cost seller with over 1700 retail outlets, has committed to no longer selling farmed salmon at of their stores. Gee… this will be a boom for commercial salmon fishermen in Alaska and British Columbia. Two major U.S. low-cost, super-retailers looking to buy wild salmon at the lowest possible price…

Yup — this is your disconnection notice.

There are some serious disconnects here… (look for more in upcoming posts).

too many inquiries… too few fish?

A pretty good article in the Victoria Times Colonist newspaper today.

Endless cycle of Fraser salmon inquiries

So far the storyline is a familiar one for most Canadians. A problem emerges. Perplexed government orders inquiry. Wise men gather to ponder the issue. Citizens await their deliberations.

But what’s striking is that this is the fifth time in 18 years some kind of urgent study has been commissioned by the government in response to a salmon emergency.

Not only that, it’s the fifth study of one specific run: The Fraser sockeye.

That’s a remarkable number of studies into the same problem.

- In 1992 about a half-million sockeye disappeared en route to Fraser spawning grounds. Then fisheries minister John Crosbie named two eminent scientists to investigate.

- In 1994, 1.3 million sockeye went missing. Then minister Brian Tobin appointed a panel to investigate and make recommendations.

- In 2002, sockeye conservation was challenged by a threefold increase in estimates of abundance, uncertainty over mortality rates and a huge fight over allocation. Then minister Robert Thibault named a panel to investigate and make recommendations.

- In 2004, 1.3 million sockeye went missing again, so then minister Gerald Regan named former judge Bryan Williams to head an investigatory panel.

Williams was struck by how much time has been spent investigating the problem. “The rather disturbing frequency of Fraser sockeye management reviews prompts numerous questions. Perhaps the most obvious one…. Why so many?”

…Peter Pearse’s royal commission into the fishing industry, where the phrase “too many boats chasing too few fish” gained currency. Substitute “inquiries” for “boats” and you’re right up to date.

fisheries crisis points and Public Inquiries

Stop me if you know this story… “Canada’s Pacific fisheries are at a crisis point.”

“This year, following two depressed years, the economic circumstances of the commercial fisheries are exceptionally bleak… Although aggravated by current conditions, the economic problems and other concerns are rooted in fundamental deficiencies in fisheries policy.”

These are the opening lines from “The Commission on Pacific Fisheries Policy” otherwise named: “Turning the Tide: A New Policy for Canada’s Pacific Fisheries“.

Commonly known as the Pearse Royal Commission — which was completed in 1982.

In my previous post I highlighted a paper “Some observations on Public Inquiries” by Associate Chief Justice Dennis R. O’Connor of the Court of Appeal of Ontario. O’Connor was the Commissioner of the Walkerton and Maher Arar Public Inquiries.

Justice O’Connor raises the issues of Commissioners:

There is some debate as to whether sitting judges should serve as commissioners of independent inquiries.  Conducting an inquiry is not part of the judicial role nor involves judicial duties.  The creation of an inquiry is an act of the executive.  A judge who serves as a commissioner is carrying out a function of the executive, not the judicial branch of government.  The judge as commissioner does not adjudicate on issues of civil or criminal liability.  The findings and recommendations in a report have no binding legal effect.  The judge fulfills the function frequently carried out by non-judicial investigators or committees.

Peter Pearse who was the Commissioner of the “Commission on Canadian Fisheries Policy” was/is an economist. Honorable Bruce Cohen is the Commissioner of the Cohen Commission and a Justice in the Supreme Court of British Columbia.

It appears that maybe the approach utilized by Pearse in the 1980s commission and the approach that is being set up by the Cohen Commission might explain why a judge was appointed to the Fraser sockeye investigation.

Justice O’Connor points out:

… inquiries have, in my view, tended to overuse the evidentiary, adversarial type of hearing process suited for legal trials to gather information.  I think that we have yet to take full advantage of all of the possibilities for different processes that can be tailored to meet the need of investigating and reporting on the various types of matters set out in inquiry mandates.  I believe that greater creativity and flexibility in fact-determining processes will ultimately improve the inquiry process from the perspective of all participants, increasing responsiveness, decreasing cost, and ultimately improving the process and results of public inquiries.In my view, there is a real advantage to directly involving groups and individuals in the inquiry process, rather than having them participate only through lawyers.  This is particularly the case where the participants have experience, expertise and an understanding of issues under consideration.  From a cost perspective, minimizing the involvement of legal counsel, when not necessary, can result in a significant cost reduction.

Unlike criminal or civil trials, inquiries do not need to be conducted within the confines of the fixed rules of practice and procedures. Inquiries are not trials: they are investigations.  They do not result in the determination of rights or liabilities; they result in findings of fact and/or recommendations.

This goes back to my questions regarding the Cohen Commission website that currently only outlines the process for gaining “standing” which will require a lawyer and engage in the adversarial and procedure-filled process of the law.

It is not clear yet what the other methods of participation will be – and what weight other methods of participation will carry.

Justice O’Connor:

Traditionally, fact-finding inquiries have used public, evidentiary, court-like hearings to gather and test information.  Commission counsel collect and review relevant documents, interview witnesses and then introduce the relevant information through sworn testimony in a court-like setting.  Lawyers for parties with an interest in the inquiry are granted standing and are entitled to cross-examine witnesses, and make closing arguments.

These types of hearings can be very complex, time consuming and expensive.  When public inquiries are criticized, criticisms are frequently directed at the inefficiency of the process, the time involved, and the expense incurred.  Indeed, criticisms of this nature are sometimes used as arguments against holding an inquiry in circumstances which otherwise warrant an independent examination and report.

As Justice O’Connor suggests: “…The facts are the facts, and in many instances it is unnecessary to subject the facts to the adversarial process in order to ascertain the truth… There are alternatives to full blown evidentiary hearings, at least for some parts of the information gathering process.”

“Some observations on Public Inquiries”

Ontario’s Associate Chief Justice Dennis R. O’Connor gave a presentation to the Institute for the Administration of Justice conference in Halifax, Nova Scotia in October 2007. Justice O’Connor was the Commissioner for the Walkerton Inquiry in 2000 and the Arar Inquiry (investigation of Actions of Canadian Officials in Relation to Maher Arar) between 2004-2006.

Mr. Arar was the Canadian citizen detained on a flight in the U.S. in 2002 and then sent to a Syrian prison for almost a year and subjected to brutal torture — all on apparent accusations of terrorist links. Arar was cleared of all allegations in September 2006 by the public inquiry headed by Justice O’Connor.

O’Connor’s paper is called “Some Observations on Public Inquiries” (from Court of Appeals of Ontario website). Some highlights from the paper:

Public inquiries are episodic.  The issue, or the dispute, is bigger than who did what to whom, although that question may have to be addressed.  The crisis that leads to an inquiry often demands a response that is public, specific about the past, comprehensive about the future, and also cost-efficient and speedy.  A public inquiry commissioner may combine a number of roles:  that of a fact-finder, like a judge; a proposer for policy reform; a healer for traumatized communities; and a manager with responsibility for budgets and an administrative and legal staff.

Public inquiries, formerly known as Royal Commissions, essentially the same thing, have been with us for a long time.  As far back as the middle ages, the kings sometimes used their royal prerogative to appoint a commission to investigate and report on matters of public policy or public concern.

Broadly speaking, there are two types of independent inquiries: those that have a mandate to find and report on facts, and those with a mandate to make recommendations for the development of public policy.

The Cohen Commission into the crash of Fraser River sockeye stocks appears to be a “fact-finding” inquiry with the terms of reference stating: “to investigate and make independent findings of fact regarding the causes for the decline of Fraser River sockeye salmon…. and the current state of Fraser River sockeye salmon stocks.”

Justice O’Connor suggests:

Fact-finding public inquiries have been used in Canada to address a broad range of issues, ranging from a train derailment, a failed bank, abuse in women’s penitentiaries, deaths in a children’s hospital, wrongful convictions, a mining disaster, tainted drinking water, political scandals, and on and on it goes.

Fact-finding inquiries are established to investigate and report upon a particular event or series of events.  Commonly, they are established in the aftermath of a tragedy or scandal usually with political implications, where the public’s confidence or trust in public institutions or officials has been shaken.  The normal public institutional responses are seen as inadequate, and governments respond to public pressure by creating an independent, ad hoc credible process to investigate and report on what happened and to make recommendations to prevent a reoccurrence.

So is the Cohen Commission investigating just the “particular events” of the past few seasons of limited sockeye fisheries?

For example the first “whereas” of the Terms of Reference: “Whereas the decline in sockeye salmon stocks in the Fraser River in British Columbia has necessitated the closure of the fishery for a third consecutive year, despite favourable pre-season estimates of the number of sockeye salmon expected to return to the Fraser River…”

On the other hand, Justice O’Connor suggests:

Policy-based inquiries are mandated to examine a particular area or issues of public policy and to make recommendations for future policy direction.  In Canada , some major public policies have resulted from these types of inquiries – Medicare originated from the inquiry conducted by Justice Emmett Hall, our bilingual and biculturalism policies emanated from a public inquiry and the MacDonald Report in the early 1980s led to the establishment of our current national security framework. The Berger Inquiry [Mackenzie Valley Pipeline] made important recommendations that guided development in the north in relation to the interests of aboriginal peoples.  These are just a few examples.

It appears the Cohen Commission also has a policy-based mandate as the terms of reference state:

B.  to consider the policies and practices of the Department of Fisheries and Oceans…

D.  to develop recommendations for improving the future sustainability of the sockeye salmon fishery in the Fraser River including, as required, any changes to the policies, practices and procedures of the Department in relation to the management of the Fraser River sockeye salmon fishery

As Justice O’Connor suggests, some public inquiries can be both fact finding and public policy focussed:

Some inquiries have both a fact-finding mandate as well as a separate policy-based mandate.  The two inquiries I conducted had both.  In Walkerton, I was directed to investigate and report on what happened to the drinking water system in Walkerton.  In addition, I was also directed to make recommendations to ensure the safety of drinking water in Ontario in the future.  The large majority of the issues in the second part of the mandate had nothing to do with what happened in Walkerton.

Similarly in Arar, I was asked to report on the actions of Canadian officials in relation to Mr. Arar.  Separately, I was directed to recommend an independent review process for the RCMP’s national security activities.  In each case, I developed two entirely different processes for the different mandates and delivered separate reports.

Might we see two separate reports evolving from the Cohen Commission?

  • One, on “independent findings of fact” and another that considers “the policies and practices of the Department of Fisheries and Oceans”; and
  • Two, a report that develops “recommendations for improving the future sustainability of the sockeye salmon fishery in the Fraser River including, as required, any changes to policies, practices, and procedures of the Department…”

If so, wow, this could take awhile. I’m not so sure the interim report by August 1, 2010 and final report by May 1, 2011 is all that realistic a timeline.

Justice O’Connor:

Traditionally, fact-finding inquiries have used public, evidentiary, court-like hearings to gather and test information.  Commission counsel collect and review relevant documents, interview witnesses and then introduce the relevant information through sworn testimony in a court-like setting.  Lawyers for parties with an interest in the inquiry are granted standing and are entitled to cross-examine witnesses, and make closing arguments.

These types of hearings can be very complex, time consuming and expensive.  When public inquiries are criticized, criticisms are frequently directed at the inefficiency of the process, the time involved, and the expense incurred.  Indeed, criticisms of this nature are sometimes used as arguments against holding an inquiry in circumstances which otherwise warrant an independent examination and report.

more Commission confusion?

There seems to be some potential confusion surrounding the Cohen Commission — the inquiry into the Fraser sockeye collapse. Another component that had me confused has been the constant use of “judicial inquiry” — you may even notice it’s one of my tags on this site.

However, the Cohen Commission is not a “judicial inquiry” — although almost any media leading up to and after the announcement in November has called it as such.

It’s a public inquiry; the commissioner just happens to be a judge. The Commissioner doesn’t necessarily have to be a judge though. It seems that maybe the title has been mixed up. There are judicial proceedings, which are conducted in a court of law. “The courts review cases and make findings of guilt (in criminal matters), liability (in civil matters), and legality (in constitutional cases).”

And then there are public inquiries, which are “official reviews, ordered by government, of important public events or issues. Its purpose is to establish the facts and causes of an event or issue, and then to make recommendations to the government. All levels of government (federal, provincial, and territorial) have the power to call public inquiries.”

… Public inquiries can often look like judicial proceedings. There may be a judge-like authority who oversees the inquiry and its day-to-day activities. There are often witnesses who give testimony and evidence to the inquiry. There may also be lawyers who make arguments and examine the evidence.

However, public inquiries are not courts of law. The purpose of a public inquiry is to establish the facts of a particular event or issue and make recommendations to the government. A public inquiry cannot make a legal finding of guilt or liability, nor can it force the government to act according to its advice. In contrast, judicial proceedings are legally binding. All parties to a court case are legally obliged to accept the decision of the court and whatever punishment or remedy it administers.

Furthermore, Canadian courts enjoy a high level of independence from the government, whereas public inquiries do not. Court judges cannot be easily fired and generally serve for life. Public inquiry officials can be removed at any time. In addition, the courts (as a whole) have the power to review any civil, criminal, or constitutional issue that is brought before them. In contrast, public inquiries only have the power to review what the government allows.

- found online Mapleleafweb

Here is another curious point provided by the Mapleleafweb site regarding inquiry commissioners:

An important component of the Terms of Reference is the naming of the Commissioner or the person who will lead the inquiry. The Commissioner is one of the most important persons in the inquiry. S/he has influence over the format and schedule of the inquiry and leads its day-to-day activities. The Commissioner is often a former judge, senior politician, or some other professional held in high regard.

Normally one person heads a public inquiry and sits alone to hear witnesses. However, an inquiry looking into broad national issues may require several persons with expertise in different areas. These public inquiries may have several commissioners. For example, the government named Chief Justice Brian Dickson as Head Commissioner of the Royal Commission on Aboriginal Peoples, and Dickson chose 10 other individuals to sit on the Commission, including three Aboriginals.

That seems a pretty important point — as I’m quite surprised to look at the roster to the Cohen Commission and I do not see any First Nations individuals, or First Nation lawyers, or even lawyers specializing in aboriginal rights and title (although there may be). Yet, when it comes to Fraser River sockeye, I don’t know if becomes more fundamental, more life-altering, then the loss of sockeye to the many First Nation communities in the watershed.

Maybe this representation will come in days, weeks, months to come.

Regarding public participation:

The level of public involvement in the inquiry process will depend on whether the inquiry is primarily advisory or investigative. Commissions struck to advise the government on policy issues are more likely to solicit written or oral submissions from the general public…

Understandably, public interest in inquiries investigating possible wrongdoing by the government or other agencies is quite high. The level of direct public participation, however, is typically lower than for advisory inquiries. In order to testify or present a written submission, it is more likely that individuals will have to obtain standing by demonstrating to commissioners that they have a direct interest in the issue.

Benefits and dangers:

One of the most important benefits of any public inquiry is its public and open nature. Public inquiries represent an opportunity for the general public to get information on important issues and events of the day — information they might not otherwise receive through the media or their elected officials. This can lead to more knowledgeable citizens and better public debates, which are key to a strong democratic system.

It is important to remember, however, that public inquiries are also one way for the government to stifle public knowledge and debate. Governments could use public inquires to “bury” a controversial issue, hoping that it will have faded from the public’s memory by the time the inquiry releases its final report. Critics also frequently argue that public inquiries are simply a means for the government to give the appearance of responding to public concerns over an issue, without taking any concrete action.

“Public inquiries can also be important means for social or political reform. Public inquiries do much more than simply assign blame. They often attempt to find the underlying causes of an event or issue and to provide advice and recommendations for future action. If acted upon, the final report of a public inquiry can lead to important changes in government attitudes and practices.

It should be noted again here that governments are under no legal obligation to follow the recommendations of public inquiries. In many cases, in fact, the final report of a public inquiry often goes unheeded.”

It should also be remembered:

The findings of a public inquiry can be appealed. The Federal Court Act gives Canada’s Federal Court the authority to review decisions reached by public inquiries to decide whether errors were made, whether the inquiry failed to follow proper procedures, or went outside the scope of its mandate.

Thanks to Mapleleafweb for posting the information.

Commission confusion?

It may just be my younger-ish years, or maybe just general confusion. It started with trying to determine what “standing” meant — in regards to the Cohen Commission into the crash of Fraser River sockeye. And through seeking clarification on the initial news release from the Commission suggesting there would be a variety of ways for the public to participate in the Commission.

I’m still not clear — the Commission website has a page “How to Participate“. On that page, under “Public Submissions“:

Members of the public may participate in the inquiry by making public submissions. Beginning in March, submissions will be accepted through the commission’s website, as a medium for exchange of ideas and information. As the commission’s work progresses, other opportunities will be described on this website.

Yet further down the page under “Participants” it states:

A “participant” is a person whom the Commissioner is satisfied has a substantial and direct interest in the subject matter of the inquiry and to whom the Commissioner has formally granted standing.

So, am I to conclude that public submissions are simply a nice way to chat about the issue — not really “participate” as a participant is someone granted “standing”?

So will the public submissions be more like a wiki, or chat board, or like a comment section under an article — like on CBC?

As I’ve mentioned previously, any one salmon-related article on a media website can unleash a tense, slur-filled, tirade-laden blitz of comments, rants, and raves. Who will mediate this?

What sort of standing, or weight, will the public submissions have? If someone makes a strong, provocative submission could they then be subpoenaed to appear before the commission?

Without the information for understanding the nature of the “public submissions” and how they might be weighted or considered — as compared to someone granted “standing” with a “substantial and direct interest” suggests a lack of clarity around participation.

Added, there is no definition of what “substantial and direct interest” means.

Salmon are considered a public resource — so wouldn’t anyone living on the Fraser have a direct interest? Salmon are the central component of the Fraser watershed — they don’t just feed people and fisheries; they feed bears, eagles, marten, wolves, and so on, and so on.

For example, no salmon, or few salmon, in the Fraser River means more “problem” bears in communities. Does this not comprise a direct interest?

On the website “How to Participate” it states at the beginning of the document:

The commission will facilitate public input and discussion, and as its work progresses, specific opportunities for involvement will be described on this website.

The commission’s mandate will be of interest to many in the scientific and fisheries communities.

So what about the 40-50 First Nations living on the Fraser that have depended on salmon from eons? Many of these communities now relying on salmon being trucked from other areas.

My guess is that First Nations living on the Fraser would fit under the definition of “substantial and direct interest”. This then begins a potential wrangle of aboriginal rights and title. And yet, there is not even a mention (that I’ve seen) of First Nations on the website. If some apply for “standing” and others don’t — will this mean ‘too-bad’ for those that don’t apply.

However, there is no legal obligation for the government or Fisheries and Oceans to implement the Commission’s recommendations.

Lots of questions… is it just me?

achieving the impossible? (Part II)

Analysis is a process of looking at something;  information. Generally analysis involves, or is defined by, breaking things down, and then looking at them in relation to the whole — or vice-versa. In business, we analyze financial statements — looking at the separate pieces (revenue, sales, expenses, taxes, etc.)  that comprise the whole; and the whole as comprised of the separate pieces.

A business is largely a closed system. To a certain degree anyways — as the analysis of an individual business still requires analysis of the surrounding market, competitors, and so on. The more “closed” one keeps the system — the easier the analysis.

As many businesses learned over the last year or two — sometimes things in the larger system are completely unaccounted for and unforeseen. Say for example, someone heavily involved in providing services or supplies to Iceland. When the Icelandic economy imploded — many people were left holding an empty bag. Or folks that realized they were holding investments that were largely sub-prime mortgages or other air-pie investments.

The problem with analysis is that it only really works in closed systems. However, how many systems are truly “closed”? And, where does one draw the line.

Edward de Bono in his early 90s book I am Right – You are Wrong: From this to the New Renaissance: from rock logic to water logic talks about analysis and its limits.

There is a story about a supermarket operator in New Jersey who found that his wastage (losses from theft) amounted to a staggering twenty per cent. He set about a thorough programme of investigation. All the figures were examined carefully. Each check-out operator was watched intently to see that all purchases were correctly recorded. Detectives mingled with shoppers to observe any large-scale shoplifting. Nothing could be found. The system was operating without any fraud. But the losses continued.

One day the owner visited the supermarket. He had an uneasy feeling that things were not quite right. But he could not put his finger on what was wrong — just a general sense of unease. Suddenly it hit him. He had installed just four check out points but now there were five. The staff had got together and installed a fifth check out point from which they took all proceeds. So at every point the system was working perfectly — but it was not the same system.

As de Bono points out — it’s easy in hindsight to say that the analysis of the supermarket fraud should have checked the number of check-out points — everything is easy in hindsight. “In our tradition of analysis we behave in much the same way. Draw the line to enclose what is relevant: how much of the world are we going to include in our system? Then we analyze the factors and inter-relationships.”

The question is: do we really have a closed system? And: where do we draw the line to get a closed system? “Obviously the answers to these questions depend very heavily on perception. We may include things we perceive might be relevant — but we need perception first.”

Analysis is a traditional and potentially powerful tool for thinking for many valuable reasons. For example, we may not recognize a complex whole, so we break it down into recognizable patterns and then we may know what to do. In order to understand the system involved we analyze something into the parts and their relationships. This the essence of applied mathematics. “If we seek to understand a phenomenon, we analyze the situation to get our explanation.”

A growing objection to this traditional process of analysis is that, in a complex system, when you have the parts you no longer have the whole. And the whole cannot be reconstituted from the parts… an even more serious defect is that we have grown up with the tradition that if you want to know what is happening and if you want new ideas you should analyze the data available, or collect more data through experiments or surveys. Computers have enabled us to collect and sort data in a remarkably efficient way. So we have been able to pursue this data analysis tradition with much greater effectiveness. We believe, or many believe, that the analysis of data is enough and is the basis of rational behavior. There is, unfortunately, a serious flaw in this tradition.”

The flaw is that we can never really analyze data. We have all sorts of tools for the analysis: mathematics, logical analysis, computer modeling, etc. Unfortunately, “at best we can check out a hypothesis we have or see whether any of our limited repertoire of relationships can be found in the data… data analysis will confirm or reject a hypothesis but will not itself generate new concepts… If data analysis could have directly given new ideas they would have become visible a long time ago… we can see only what we are prepared to see.”

de Bono explains how:

We have been obsessed with analysis but paid very little attention to design. To be sure we have designed temples, textiles, furniture, and space rockets, but design has always been considered a part of craftsman’s activity compared to the intellectual excellence of analysis. Partly this is the result of our search for truth, which (possibly mistakenly) we believe to be more likely to come from analysis than from design. Possibly it is another aspect of the influence of theological reasoning on our education.

Mainly it is the result of our erroneous belief that if analysis lays bare the components and systems then design is a very simply matter of putting these elements together in order to achieve some purpose.

The traditional concept is that “knowledge is all” and, once you have knowledge, things like taking action and design are minor intellectual operations.

Aristotle said that all new knowledge comes from existing knowledge. There may be some truth in this if we accept that we cannot see new knowledge except through existing perceptions. It might, however, be equally true to say that much new knowledge is prevented by old knowledge. This is because existing perceptions must be unpicked in order that we may see things differently.

The Cohen Commission website lays out the two phase approach that will be taken to investigate the decline of Sockeye Salmon in the Fraser River. “During the first phase, the Commissioner will review and assess any previous examinations, investigations or reports that he deems relevant to the inquiry and the Government’s responses to those examinations, investigations and reports.”

Phase two will investigate and make independent findings of fact regarding:

  • “the causes for the decline of Fraser River sockeye salmon…”;
  • “the current state of Fraser River sockeye salmon stocks…”; and
  • “develop recommendations for improving the future sustainability of the sockeye salmon fishery in the Fraser River…”

This means a whole lot more analysis… breaking down the pieces… looking for all the check-out counters… and so on. However, wild salmon do not exist in a closed-system — about as far from it as it comes. That’s part of the problem… folks have tried to manage salmon as if they exist in a closed system – as if they were migrating from our toilet to our bathtub back to our toilet; in our bathroom where we know all the factors…

The irony in this whole situation is that the “whereas’s” of the Commission state that: “the Government of Canada wishes to take all feasible steps to identify the reasons for decline and the long term prospects for Fraser River sockeye salmon stocks and to determine whether changes need to be made…”

But, hasn’t the federal Department of Fisheries and Oceans been specifically tasked with this as one of its modus operandi for somewhere near one hundred years?

So, if Fisheries and Oceans – with it’s $1.8 billion annual budget, and over 10,000 employees – can’t do the job properly  — then how is a legal investigative team and about $20 million going to do it? Especially after several other Commissions, federal government Plans, and Auditor General reports were unable to do it?

Well… several of those identified some issues; it’s just that no one enforced the recommendations.

Maybe less analysis and more design.

More creative thinking.

…Explanation looks backwards and design looks forward.

achieving the impossible?

As another multi-million dollar inquiry begins on “missing” wild salmon — the Cohen Commission into “Decline of Sockeye Salmon in the Fraser River” — I do wonder if one of the first terms of reference could have parallels with another multi-million dollar government initiative: Canada’s  “Own the Podium” initiative at the Vancouver 2010 Olympics.

Over the last fiver years, almost $120 million (most of it taxpayer input) has been funneled into a sport-support program who’s main goal is to: “Place first in the total medal count at the 2010 Olympic Winter Games.”

Attainable goal? Wise use of funding?

The first term of reference for the Cohen Commission suggests the Commissioner shall:

conduct the Inquiry without seeking to find fault on the part of any individual, community, or organization, and with the overall aim of respecting conservation of the sockeye salmon stock and encouraging broad cooperation among stakeholders. (my emphasis)

This initially raises questions of “conservation” by what definition? See several earlier posts on this site for some of that discussion — in essence “conservation” for what and for whom?

And, “encouraging broad cooperation among stakeholders”?

This is about as realistic as expecting that Canada would lead the medal count at the end of the Winter Olympics.

The debate surrounding wild salmon, salmon conservation, salmon fishing, Fisheries and Oceans Canada management (or mis-management), and so on — is far hotter than even the debates that started in Canadian pubs and living rooms last night about who should play in goal for Team Canada in the next Olympic hockey game.

Go read the comments on any article related to salmon on CBC’s website. One article that mentions the announcement of the Commission has almost 200 comments. On other media websites, comments on salmon-related articles explode into searing racial slurs, personal attacks sillier than boxers before a fight, and school yard bickering worse than Canada’s Parliament (even days with more hot air flying around than a Namibian trading post on the edge of the Sahara).

“Encouraging broad cooperation”….? hmmmm.

Now, OK, if Commissioner Cohen could in fact have the magical powers to encourage “broad cooperation” — hopefully he and his team of lawyers can stick around to implement the recommendations of the inquiry.

And after that… go pay a visit to our overly collaborative & cooperative Parliament… (when it re-opens anyways).

Hey, I’m all for big goals. Aim high.

Just be prepared for the tears and apologies and lots of kleenex — similar to Canadian athletes that got boosted on to the “owning the podium”  stump in the stratosphere then come crashing to earth under the pressure of a nation and a $120 million investment with one goal in mind…

Collaboration and cooperation are vitally key when it comes to salmon conservation.

However, collaboration and conservation means opening up the books to everyone; opening up the networks to everyone; and especially opening up the “science” to everyone.

Is the federal government prepared to do this? And does it really have to wait until it’s under oath at a judicial inquiry?