CP32-93-2012-3-eng.pdf

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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 or treaties that abrogate the ultimate decision-making 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
Cohen Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River • Volume 3 centralized management of the fisheries resource” to a “shared stewardship” model that includes the “devolution of certain fisheries management authorities to resource users.” 15 • In 2008, DFO established the Fraser River Salmon Roadmap, a forum where Aboriginal groups could meet with each other and with DFO staff to design a permanent co-management process for Fraser River salmon. In summary, previous reports on the Fraser River salmon fishery and judgments of the Supreme Court of Canada have supported maintaining the minister’s ultimate decision-making authority over fisheries management and conservation. The evidence before me also suggests that, although First Nations and stakeholders have an important role to play in informing fisheries management decisions, there are important reasons for maintaining the minister’s authority over the decisions ultimately made. In coming to this conclusion, I am aware that many Aboriginal groups assert an Aboriginal right to manage the fishery. However, it is not within my mandate to assess the merits of such claims. While I strongly encourage consultation, co-operation, and collaboration with First Nations and stakeholders, I find that DFO should consistently articulate in unambiguous terms its respect for the minister’s ultimate authority over Fraser River sockeye conservation and fisheries management decisions. The minister’s ultimate decision-making authority 1 In relation to Fraser River sockeye, the Department of Fisheries and Oceans should follow the principle that the minister is the ultimate authority in decisions about conservation, fisheries management (subject to the Pacific Salmon Treaty), and, within areas of federal juristiction, fish habitat. DFO should consistently reflect this principle in all its agreements and processes with First Nations and stakeholders. DFO’s responsibility to conserve wild sockeye salmon stocks DFO’s mandate in relation to wild fish Historically, DFO’s mandate in relation to Fraser River sockeye salmon has been twofold: to conserve the wild stocks and to ensure the future sustainability of the fishery. The goals of conservation and a sustainable wild fishery are complementary. Conservation measures are intended to promote abundant, healthy wild stocks that may in turn permit harvesting, while fisheries management activities regulate the catch so that future productivity is assured. There are checks and balances within the regulatory regime aimed at ensuring that harvesting activities do not threaten conservation, and except when low abundances threaten the health of stocks, conservation measures allow a measure of harvesting. In relation to fisheries, DFO’s paramount regulatory objective is the conservation of Fraser River sockeye salmon and other wild fish species. 16 DFO sets strict rules about who may fish for what species, and when and where they may fish for those species. In addition, Parliament has given DFO impressive statutory powers to protect the environment in which wild stocks live. For example, section 35 of the Fisheries Act makes it an offence to “carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.” Section 36 makes it an offence to “deposit or permit the deposit of a deleterious substance of any type in water frequented by fish.” These provisions acknowledge the importance of productive habitat for a sustainable fishery and comprise a core component of DFO’s mandate. They have, more recently, been affirmed in the Wild Salmon Policy. DFO’s conservation mandate extends to all fish habitat. It also extends to all fish, not just fish that are important to a fishery.* I accept that diversity in Fraser River sockeye stocks is * I note that on June 29, <strong>2012</strong>, Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, <strong>2012</strong> and other measures, received royal assent. It amends the habitat protection provisions in section 35 of the Fisheries Act. I will comment on this amendment in Chapter 3, Legislative amendments. 10
Page 1: The Uncertain Future of Fraser Rive
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APPENDICES
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Abbreviations and acronyms CFIA Can
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Abbreviations and acronyms Pre-amp
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Glossary brailing: using a long-han
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Glossary postsmolt: juvenile salmon
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Glossary 26 Exhibit 8, p. 38. 27 Ex
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" YUKON TERRITORY NORTHWEST TERRITO
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ISBN 978-0-660-20216-7 (v. 3).
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