Cohen Commission: failing grades or room for improvement?

I had intended to continue on with some analysis, or synthesis, of Justice Cohen’s interim report regarding the Commission into the declines of Fraser sockeye — of which, I suppose I will… however, someone else with a propensity for ranting released his assessment of the interim report.

Unfortunately, Conservative MP John Cummins’ assessment/rant (“Cohen’s Interim Report Gets an “F”) does little in bridging gaping divides between various factions of the great salmon discussion — however, he has a history of this sort of fractious approach; lashing out at First Nation fisheries and other First Nation issues. Even more unfortunate, is that it simply seems to further cement the view of many folks, of what the federal Conservatives (or at least the good ‘ol Canadian Alliance) stand for…

The irony in this, as I’ve pointed out before, is that Mr. Cummins is a member of the governing party these days. When he lashes out at the failings of Justice Cohen , or at the failings of the Department of Fisheries and Oceans, or at the Fisheries Minister — he’s simply lashing out at himself and his political party. Yet, I suppose, one might suggest he’s standing up for his constituents in the Fraser Valley and their views.

hmmmm.

If that’s the case, then maybe the federal and provincial government need to do a better job of communicating what aboriginal rights and title are, what they mean, and how they continue to be further defined and recognized in both Canadian courts (e.g. case law) and in international statutes and courts — for example, the United Nations Declaration on the rights of Indigenous People.

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First off — what I find so ridiculous about rants on First Nation fisheries — not that there is much of one in Cummins’ latest news release, however, he certainly has slung no shortage of mud on the issue — is that if we start to look at the actual numbers, it’s not quite the great elephant some make it out to be.

Historically, over the last 50 years or so, the commercial (and to much smaller degree, the sport sector) have captured around 95% of the total salmon catch.

First Nation fisheries have captured 5% or less.

Compare this with our immediate neighbors to the south in Washington State — where the Boldt decision of the mid-70s where salmon fisheries were split 50/50 between aboriginal and non-aboriginal fisherfolks.

This year, in BC, would be a great exception to the rule — in the Fraser anyways. Commercial fisheries (largely non-aboriginal) caught about 11.5 million sockeye and First Nation fisheries about 1.5 million sockeye for a catch of about 13% of the total.

So really… the rants about the First Nation impact on commercial fisheries is rather misplaced.

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Cummins’ news release:

There are many references to the Supreme Court’s decision in Sparrow, but only one to the Van der Peet decision and it made no mention of the fact that the court rejected a Sto:lo claim to an aboriginal right to sell or trade salmon, an issue central to many of the fisheries management and enforcement problems on the Fraser.

From someone with a lot of knowledge of the Fraser fishery, this last sentence is sadly mistaken. I’d be curious to hear from Mr. Cummins how he figures that issues with the Sto:lo on the lower Fraser  “are central to many of the fisheries management and enforcement problems on the [entire] Fraser.”

Bit of a stretch I’d say…

There are probably over 100 separate First Nations in BC (some numbers suggest 150) that rely on Fraser salmon, especially sockeye — from approach areas along Vancouver Island and coastal areas, up the Fraser to headwaters north and east of Prince George.

If this wide ranging collection of communities relies on, and has relied on for eons, the annual return of salmon — generally catches less than 10% of the total, often less than 5% (and once caught 100% prior to contact) — and has rights to catch these fish as recognized by Canada’s Constitution and a growing collection of case law in Canada’s highest courts (far more than just the Sparrow and Van der Peet decisions) — and that must rally against well-funded lobby groups (and politicians) that represent commercial and sport fishing interests —

I do wonder, then, where are the actual “fisheries management and enforcement problems” on the Fraser?

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From reading Justice Cohen’s interim report, I found numerous suggestions that “the issue central to many of the fisheries management and enforcement problems on the Fraser” lies with the federal ministry – DFO – that is supposed to perform those two crucial functions: fisheries management and enforcement.

Cummins’ new release:

Instead of selecting investigations which were directly relevant to his inquiry, Cohen simply summarizes the recommendations of 22 different reports. Some were noteworthy but most were inconsequential.

It’s surprising that a federal MP figures that reports by either provincial or federal Auditor Generals are “inconsequential”. (I certainly remember the Conservative Party of Canada riding the coattails of a significant Auditor General report right into power in Parliament).

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In Cohen’s interim report:

In 1997, the Auditor General of Canada examined DFO’s activities in conserving the Pacific salmon habitat… It concluded that DFO had not prepared an overview report on the status of fish habitat conservation in Canada, nor had it yet developed an acceptable, standardized measure of habitat productivity. The auditor general made a series of recommendations, including the following:

  • DFO should give the collection and management of information on Pacific salmon stocks and habitat a high priority in order to meet the needs of resource managers in the field and any reporting requirements on the status of the resource.
  • DFO should clarify the extent to which it intends to apply sustainability and genetic diversity practices to the management of individual salmon stocks and their habitats.

Ummm, yeah, that was 1997. It’s now 2010 — where is the clarity on how DFO intends to apply sustainability and genetic diversity practices?

Oh right, that was the DFO testimony the other day at the Cohen Commission — DFO is now ready to actually implement “ecosystem-based management”. Not bad, only 13 years later…

_ _ _ _ _ _

Cohen continues:

In 1999, the Auditor General of Canada concluded that, given the need to satisfy conservation requirements while optimizing fishing opportunities, a better understanding of the genetic diversity of stocks is essential. DFO’s Pacific Region office indicated that, to protect genetic diversity, it would manage salmon on the basis of Conservation Units – groupings of stocks with related genetic characteristics – similar to those adopted in the United States. The auditor general made several recommendations:

  • In order to protect the genetic diversity of salmon stocks, DFO should move quickly to determine Conservation Units for all five species.
  • DFO should produce comprehensive, integrated status reports on stocks and habitats based on the new Conservation Units for each salmon species. The report should be updated annually and used in developing, implementing, and evaluating fisheries management plans.

Response: DFO agreed that there was a need to improve the integration of information about stock and habitat assessment in order to help guide decisions about fisheries management. This process would be consistent with the ecological approach to fisheries management to which the department is committed and it would be implemented in a staged manner.

Sooo, in 1999, eleven years ago, the Auditor General suggested serious work needed to be done to “satisfy conservation” and “optimizing [sustainable] fishing opportunities.”

Wow, curious that… sure sounds similar to Justice Cohen’s terms of reference. I guess DFO missed the “move quickly” part of the Auditor General’s recommendations. But then “move quickly” and large federal bureaucracies is rather oxymoron-ish.

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And, in 1999, DFO suggested that it: “would be consistent with the ecological approach to fisheries management”?

And, yet, it stands before the Cohen Commission eleven years later saying virtually the same thing?

Come on…

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A big part of the problem here is the inherent problem with large federal bureaucracies that really know little of what is happening with the left hand, while the right hand gives the finger to over 20 previous reports.

Add in the Peter Principle — which suggests that people rise to their level of incompetence within hierarchical organizations (e.g. bureaucracies).

Add in a ministry with a large proportion of folks riding out the last few years to a decent pension (e.g. don’t rock the boat).

And, to be fair, a federal ministry that has to deal with a changing governing regime every couple years, a current minority regime, and the simple fact that the bulk of federal representatives in Canada come from two provinces (Ontario and Quebec – and a PM from the Prairies) that are as about as concerned with ‘ocean’ issues as outgoing Conservative MP, and Environment Minister, Jim Prentice will be about the environment in his new posting in the senior ranks of the Canadian Imperial Bank of Commerce (CIBC).

Salmon may be iconic — unfortunately, that status doesn’t stretch all that far east of the Rockies.

(those Pacific coho implanted in the Great Lakes don’t really count…)

As such, I hope that maybe Mr. Cummins and any others reconsider the opinion that the issue central to many of the fisheries management and enforcement problems on the Fraser is aboriginal fisheries and aboriginal rights to salmon.

That might be a bit narrow…

In the meantime, if I was a grading-type individual I would pass along a passing mark to Cohen’s interim report. It’s a pretty thankless task that he is faced with — along with a ridiculous timeline to do the issue justice. As they say in the legal realm: the jury is still out…

I’m guessing that Justice Cohen in receiving a failing grade from one observer is not sitting at home feeling like a chastised child, grounded by his parents for failing the math exam.

Although, I do wonder about the wisdom of lashing out at the Commission when one represents the party that was automatically granted ‘standing’ in this process — the federal government…?

6 thoughts on “Cohen Commission: failing grades or room for improvement?

  1. salmon guy Post author

    Thanks for that.
    And, yes, familiar with the Williams reports.
    For example one of the earlier sections suggests:

    “To put it simply, the temperature researchers are quite convinced that much of the discrepancy (“missing fish”) in 2004 [1.3 million] can be attributed to mortalities associated with the high water temperatures.”

    “…Clearly both high temperature and unreported catch were factors accounting for the majority of the missing fish in 2004. Based on the information received by the Committee, it is not possible to quantify the contribution of either factor.” (pg 23)

    Oddly enough, after this quote, the report then launches into a fine medley of hearsay and innuendo in the “enforcement” section —

    Some aspects of this sort of activity are clearly illegal, but nothing has been done about it.

    concluding with:

    “From the evidence set forth above, it can be clearly seen that illegal activities along the South Coast, particularly in the lower Fraser River, were rampant in 2004 and that enforcement against these activities was lacking.”

    There’s then 14 recommendations which is about double any other section.

    The components of the “compliance and protection” section that suggest funding challenges — I can certainly agree with.

    The hearsay – diary entries of folks seeing apparent illegal activity… well… might be a bit early to call it “evidence” and “clearly illegal” and “rampant”. This is not to call into question the individuals characters that documented these activities — it’s more that without training and a full understanding of the complicated nature of aboriginal rights and title in relation to fisheries — I’m not so sure I can fully agree with some of the conclusions. Especially when the “evidence” starts contradicting itself.

    First the report suggests, as above, “Based on the information received by the Committee, it is not possible to quantify the contribution of either factor” and then in the “Enforcement” section it states:

    “In summary, this Committee is of the clear opinion that inadequate enforcement of the rules against illegal catch and sale of sockeye was a very significant factor with respect to the 1.3 million “missing” fish.”

    Which one is it? A contributing factor that no one can discern — or the single most contributing factor?

    Starts smelling fishy when reports such as these contradict themselves and suggest that there is “clear evidence” of wrongdoing, especially when the evidence at this point is hearsay.

    And just as I point out in the post — if, historically, the commercial share of the salmon catch has been 95% and the First Nation less than 5% — what really could the numbers be of “illegal” catch? Could they be say plus/minus 10% or plus/minus 20%.

    Say for example this year — if you doubt the aboriginal catch was 1.5 million (check Pacific Salmon Commission website for exact numbers) and believe that there’s a large “illegal” catch: is that catch 50% more, double, triple?

    Even if it was double – say add another 1.5 million, that means the aboriginal catch could hypothetically be 3 million. This compared to the 11.5 million of the commercial sector — that’s still only about 25% of the catch.

    Regardless of the theories of Williams and his Committee in 2005 — nobody has any numbers, or any specific charges to back up these claims of rampant “illegal” fishing; funding cutbacks or not.

    Might there be some “illegal” fishing out there… probably. However, this then enters a very complicated legal realm of ever-evolving case law on the issues surrounding aboriginal fishing rights. “Illegal” by what definitions and whom?

    Books such as those by Douglas Harris at UBC and Diane Newell: “Tangled Webs of History: Indians and the Law in Canada’s Pacific Coast Fisheries.” provide some excellent perspective on some of the historical issues. Many of the historical dealings are atrocious and shameful — and in many ways serve as the fundamental backdrop of treaty negotiations in many areas.

  2. Brian

    From that 1999 report:
    “DFO should produce comprehensive, integrated status reports on stocks and habitats based on the new Conservation Units for each salmon species. The report should be updated annually and used in developing, implementing, and evaluating fisheries management plans.”

    DFO probably agreed with this recommendation, but like many things in the interim report you need dollars to complete the job – not just the direction from senior beaurocrats (term used for anyone basically working for DFO in Ottawa). The people that do this work would dearly love to put out more of these reports and show what they do, but when the demands are clearly operational and the number of bodies to write reports is slim the result is obvious. This is never mentioned in this interim report; however, I don’t blame Cohen because he will slowly be finding this out soon enough in the next little while.

    In addition, you are dealing with consecutive federal governments that have put….what focus in fisheries? I can tell you how much focus…lol. One of the big problems is that senior people “over there” don’t really know what we do out here….plus add in changing Deputy Ministers over the years who are likely not big fish people. Unfortunately, the nature of the work gets lost, but the folks on the ground know how important it is. Again, look no further than the last federal budget and the thone speech to see where the priorities are. Hey, I have no doubt that there are some slack asses as every profession has them, but before people start grabbing the rope and swinging it over the tree limb to hang someone please keep in mind that there are likely some things that do not get mentioned in these reports.

    Quote: “Add in a ministry with a large proportion of folks riding out the last few years to a decent pension (e.g. don’t rock the boat).”

    This sort of implies that they do not care which is kind of big leap given the fact that you may not know these individuals like you think you do. Perhaps they could be trying to do the best job they can. Perhaps they deal with certain frustrations on the job on a daily basis that others would see as “those lazy employees are just waiting to get their pension”. It is easy for someone on the outside to tell these people to rock the boat. If it were their job on the line I tend to think they would choose their battles carefully.

    Quote: “I find it difficult to believe the native sockeye catch was only 1.5 million.”

    Hello Joe,

    First Nations were being made the scape goat on this. Are there First Nations that were likely involved in these “illeagal fisheries”? Very likely….BUT I find it hard to believe they were a significant factor as mentioned in the Williams Report. With bands being as diverse as they are you are bound to have certain individuals that have their own ideas about certain fisheries practices, but the vast majority (…and I have worked with quite a few First Nations people) are as conservation minded as anyone. Look no further than the Upper Fraser bands. Ask them how many fish they have been catching lately as compared to those big seine boats in the chuck. Unfortunately, some of these occurances get blown up and are seen as rampant events. Meanwhile while we expend our energy beating up the “bad Indian” once again the real issues get missed.

    Some may laugh at this, but I would rather have a First Nations fishery than the obsolete, prehistoric, non-aboriginal mixed-stock commercial fisheries which have caused much more havoc than any band could ever do. Instead we basically pay people to fish (EI) and we have depressed stocks as a result of the practice of catching stocks indiscriminately. Great payback. Also, the federal government needs to start dealing with treaties because aboriginals and non-aboriginals (especially fisheries officers) would like a little more certainty in their daily lives. Clearly, we need to get with the times with this issue. Treaties do not necessarily mean that First Nations will get their own way on everything, but they need to be give the opportunity to negotiate with a government that that is finally willing to do just that.

    In my opinion, the difference (1.5 Million) was a result of discrepancies at Mission and test fisheries…and to a smaller extent on the spawning grounds. Mission uses split beam hydroacoustics which is has it’s drawbacks as compared to newer hydroacoustic technology (such as DIDSON). I realize this not seen as a factor in the report, but you look into this more you will see why. Since then, I believe things have improved, but I generally believe there is no subsitute for actually seeing the fish on the spawning grounds. I concede on certain years and habitats (i.e. lakes, glacial systems) certain populations could very well be underestimated. In 2010, we saw that decrepancy with estimating the late run component inseason. Are the First Nations and high water temperatures to blame? Well, we have a pretty good idea of the FN catch (with improvements made to monitoring following the William’s Report) and water conditions were generally favourable this season. This should put to rest that First Nations are a significant part of the problem.

    Lastly, I seriously doubt that 1.5 Million fish died enroute in the river between Mission and the spawning grounds. That type of mortality just does not go unnoticed. Of course fish will died enroute, but a massive kill doesn’t just shuffled under some boulder.

  3. joe

    Hello Brian,
    A misunderstanding I think, when I referred to the 1.5 million catch, I was referring to the 2010 sockeye catch.
    Aren’t most of the native fisheries mostly mixed stock fisheries ?
    I don’t really follow you on the EI thing, is something illegal being done? I thought there was a “claw back”, through income tax, of EI funds paid out after the taxable income reached $20,000.00, but maybe the figure has been raised.
    Weren’t the commercial fishermen told they would catch more fish after the latest buyback, Mufflin Plan ? Or did gov’t change the rules again ? Actually, there hasn’t been any commercial sockeye fisheries for some years and many of the runs still aren’t increasing. Commercial fishing used to open in February or March and it seems their closure certainly didn’t seem to help rebuild the steelhead and chinook stocks. Wonder why not ?
    Yes, it must be quite an undertaking to accurately count the fish on the grounds. Hopefully there is a good hatch and they have enough feed in the systems to grow to a decent size before they enter the ocean.

  4. Brian

    Definitely a question for fisheries management, but I believe First Nations undertake more alternative methods to reduce by-catch. When you look at the interior demonstration fisheries this season. First Nations target fish closer to the terminal areas where stock identification (or destination) is more certain. When you think of it, this is how it was done long ago with weirs, but canneries really didn’t appreciate the competition from First Nations so they basically wanted them to work for them (Dave might know a little more about this.). In recent years, I believe the goal was to buy back fishing licences from non-aboriginal commercial fisherman and transfer them to aboriginal fisherman who wanted to undertake commercial operations in addition to ceremonial and food fish reasons. Probably irritates some people, but it is providing First Nations the opportunity to make a go of it if that is their goal. I would prefer to see a much scaled back commercial fishery with only so many involved and their opportunity would be dependant on their use of methods to reduce bycatch.

    My point was not that I thought anything illegal was being done with EI. I was wondering about the cost/benefit of having a commercial fishery to our economy when you think that these individuals are only fishing so long each season – sometimes not at all. Are we (Canadians as whole) paying more money for EI benefits than what is being caught? I haven’t been the only one that has questioned this. On the other hand, a fish caught recreationally probably is worth quite a bit more when you take in all the businesses involved (i.e. lodging, gas, tackle, licences, guiding services, groceries, restaurants, etc.). However, sometimes it is not about the money as First Nations culture is heavily linked to salmon so their rights have to be respected.

    Presently, I don’t believe the present fleet really wants to change as was evident when John Cummins wanted to keep fishing for sockeye while coho and steelhead were migrating up the Fraser. His solution was a revival box, but when you are talking about 10s and 100s every fish is vital. Lucky for Canadians that Cummins is not the Minister in charge. I believe First Nations have shown this interest to do a better job and the department is starting to recognize this despite what some may think.

    Personally, I don’t think that commercial fishing is sole cause of what we are seeing right now as guys have not been fishing much (if at all) since 2006, but it certaintly has not helped when it was going full bore. I like an approach that looks at more than just on thing, but specifically closing the “holes” in our knowledge between the time juveniles leave to the time the adults come home. Some issues are getting way too much attention and are destined to bog down the inquiry into further mud. Unfortunately, the commission is finding out that opinions are like @$%holes – everyone has one.

  5. salmon guy Post author

    thanks Brian and Joe, always appreciative of a discussion breaking out separate from the posts — and some good points in this one.
    Brian, you raise some good points on the EI cost/benefit. And exactly right on the fishing weir issues — in essence they were outlawed during the building of cannery craziness. The policies that guided this were part of much larger policies that were meant to disenfranchise First Nations on many fronts — establishing the reserve system, outlawing potlatches, outlawing First Nations from hiring lawyers, no voting rights (women were given the right to vote before First Nations), etc.

    This in light of the federal Government deciding on Friday to finally ratify the United Nations Declaration of Indigenous Rights (initially there were four hold outs on ratificaiton — Canada, US, New Zealand and Australia). Seems all four are reversing their positions now.
    Times are-a-changin’

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