CP32-93-2012-3-eng.pdf

Chapter 2 • Recommendations
of section 36 of the Fisheries Act to Environment
Canada. Despite a series of memoranda of understanding
and working agreements between the two
departments, uncertainty and public confusion
remain as to which responsibilities are held by
each one. In my view, maintaining the minister’s
ultimate authority over fisheries management also
serves to clarify the ultimate responsibility of the
minister for fisheries conservation.
Consideration of whom, exactly, fisheries
management is intended to serve also supports the
argument that the minister must have the ultimate
decision-making authority over the fisheries. The
Supreme Court of Canada has stated that “Canada’s
fisheries are a ‘common property resource’
belonging to all the people of Canada,” and that
the minister is to “manage, conserve and develop
the fishery on behalf of Canadians in the public
interest.” 9 While I recognize that constitutionally
protected Aboriginal and treaty rights carry unique
priorities in the fishery, the fishery overall should be
managed for the benefit of everyone.
Throughout the hearings, members of First
Nations, fishing sectors, environmental groups,
and the public have shared their concerns and
suggestions about the management of the Fraser
River sockeye salmon fishery. Each group carries
unique interests and ambitions. Although there
were some areas of agreement among the views
expressed, there were also many points of conflict.
In this situation, DFO must play a special and
necessary role. First, as Kaarina McGivney, former
regional director of the Treaty and Aboriginal
Policy Directorate, noted, “Ultimately, if there is a
broad range of interests in the fishery and different
views, there needs to be someone to make a final
decision to move things forward.” 10 Second, as the
only organization at the table that is accountable to
all Canadians, the Government of Canada, through
DFO, is tasked with making fisheries management
decisions that take into account the public interest.
In my view, while DFO should seek out and carefully
consider input from those groups most directly
involved in the fishery, it does not need to share
ultimate decision-making authority with them. No
matter how inclusive a shared-authority management
process may be, to the extent that it reduces
the minister’s ultimate authority over the fishery, it
may also reduce DFO’s ability to manage the fishery
in a manner that accounts for the interests of all
Canadians, including those not privy to the sharedauthority
management structure.
I conclude from Canada’s final submissions,
Ms. McGivney and from internal DFO documents
that DFO has no present intention to enter into
agreements that abrogate the ultimate decisionmaking
authority of the minister. 11 Moreover,
DFO’s Wild Salmon Policy clearly asserts that,
even in the context of a strategic and integrated
management process involving First Nations and
stakeholders, the minister “retains the authority
and accountability for the protection and
sustainable use of fisheries resources and their
habitat.” 12 However, I also note that several of the
department’s other policies and practices over the
years have created an expectation among some
First Nations and stakeholders that a management
process with shared ultimate authority over the
fisheries is possible. For example:
• Since 2004, DFO’s Aboriginal Aquatic Resource
and Oceans Management (AAROM) program
has provided Pacific Region Aboriginal fisheries
organizations with approximately $6 million
to $7 million per year to build their capacity to
participate in “co-management.”
• In 2005, DFO introduced Pacific Fisheries
Reform, which identified the sharing of fisheries
management responsibility and accountability
with First Nations, stakeholders, and others
as a key element. DFO envisioned that First
Nations and stakeholders would be “involved in
decision-making and share accountability for
the conduct of the fishery” and would assume
“a greater role in operational decision-making
and program delivery” through “effective
co-management processes.” 13 The Integrated
Harvest Planning Committee grew out of the
Pacific Fisheries Reform initiative.
• In 2006, the Integrated Aboriginal Policy
Framework set out seven strategies for the
management of Aboriginal fisheries,
including “increased Aboriginal participation
in co-management of aquatic resources.” 14
The framework defined co-management as
“the sharing of responsibility and accountability
for fisheries management” between DFO and
resource users, eventually encompassing the
sharing of authority. It also states that it is
DFO’s policy to shift away from its “top-down
9