FOPO Committee Meeting

Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.

For an advanced search, use Publication Search tool.

If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.

Previous day publication Next day publication

37th PARLIAMENT, 3rd SESSION

Standing Committee on Fisheries and Oceans

EVIDENCE

CONTENTS

Thursday, April 29, 2004

1100

The Chair (Mr. Tom Wappel (Scarborough Southwest, Lib.))

Mr. Don Radford (Acting Regional Director, Pacific Region, Department of Fisheries and Oceans)

The Chair

1105

Mr. David Bevan (Acting Assistant Deputy Minister, Fisheries Management, Department of Fisheries and Oceans)

The Chair

Mr. John Cummins (Delta—South Richmond, CPC)

1110

The Chair

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. David Bevan

The Chair

Mr. David Bevan

The Chair

Mr. Don Radford

1115

The Chair

Mr. Don Radford

The Chair

Mr. John Cummins

The Chair

Mr. David Bevan

The Chair

Mr. David Bevan

The Chair

Mr. John Cummins

1120

The Chair

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. David Bevan

The Chair

Mr. David Bevan

The Chair

Mr. Don Radford

The Chair

Mr. David Bevan

The Chair

Mr. Bob Wood (Nipissing, Lib.)

Mr. David Bevan

1125

The Chair

Mr. Paul Ryall (Lead, Salmon Team, Pacific Region, Department of Fisheries and Oceans)

Mr. Bob Wood

Mr. David Bevan

The Chair

Mr. Don Radford

Mr. Bob Wood

Mr. David Bevan

Mr. Bob Wood

Mr. David Bevan

Mr. Bob Wood

The Chair

Mr. David Bevan

The Chair

Mr. Carmen Provenzano (Sault Ste. Marie, Lib.)

The Chair

Mr. Carmen Provenzano

Mr. David Bevan

1130

The Chair

Mr. Don Radford

Mr. Carmen Provenzano

Mr. David Bevan

The Chair

Mr. Carmen Provenzano

Mr. Don Radford

Mr. Carmen Provenzano

Mr. David Bevan

Mr. Carmen Provenzano

Mr. David Bevan

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. Carmen Provenzano

Mr. Don Radford

Mr. Carmen Provenzano

The Chair

1135

Mr. David Bevan

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. John Cummins

1140

The Chair

Mr. David Bevan

Mr. John Cummins

Mr. David Bevan

Mr. John Cummins

The Chair

Mr. David Bevan

1145

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

1150

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP)

Mr. Don Radford

Mr. Peter Stoffer

The Chair

Mr. Peter Stoffer

The Chair

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

Mr. David Bevan

1155

Mr. Peter Stoffer

The Chair

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

The Chair

Mr. Peter Stoffer

The Chair

Mr. Peter Stoffer

Mr. David Bevan

1200

The Chair

Mr. Carmen Provenzano

Mr. David Bevan

Mr. Carmen Provenzano

Mr. David Bevan

Mr. Carmen Provenzano

Mr. David Bevan

The Chair

Mr. David Bevan

Mr. Carmen Provenzano

Mr. David Bevan

The Chair

Mr. David Bevan

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

1205

Mr. David Bevan

The Chair

Mr. David Bevan

The Chair

Mr. John Cummins

Mr. David Bevan

Mr. John Cummins

Mr. David Bevan

Mr. John Cummins

Mr. David Bevan

The Chair

Mr. Don Radford

1210

The Chair

Mr. John Cummins

Mr. David Bevan

Mr. John Cummins

The Chair

Mr. Don Radford

The Chair

Mr. John Cummins

The Chair

Mr. Don Radford

Mr. John Cummins

The Chair

1215

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. John Cummins

The Chair

Mr. Carmen Provenzano

The Chair

Mr. Carmen Provenzano

Mr. David Bevan

Mr. Carmen Provenzano

Mr. David Bevan

1220

Mr. Carmen Provenzano

Mr. David Bevan

Mr. Carmen Provenzano

Mr. David Bevan

Mr. Carmen Provenzano

1225

Mr. David Bevan

The Chair

Mr. John Cummins

1230

The Chair

Mr. David Bevan

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. John Cummins

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

1235

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. John Cummins

The Chair

Mr. David Bevan

The Chair

Mr. David Bevan

The Chair

Mr. David Bevan

The Chair

Mr. David Bevan

The Chair

Mr. David Bevan

The Chair

Mr. David Bevan

1240

The Chair

Mr. David Bevan

The Chair

Mr. David Bevan

The Chair

Mr. John Cummins

Mr. David Bevan

The Chair

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

Mr. David Bevan

Mr. Peter Stoffer

1245

The Chair

Mr. Peter Stoffer

The Chair

Mr. David Bevan

The Chair

Mr. Peter Stoffer

Mr. David Bevan

The Chair

Mr. Don Radford

Mr. Peter Stoffer

The Chair

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. Peter Stoffer

Mr. Don Radford

The Chair

Mr. Don Radford

The Chair

Mr. Peter Stoffer

1250

The Chair

Mr. David Bevan

The Chair

Mr. Loyola Hearn (St. John's West, CPC)

Mr. David Bevan

Mr. Loyola Hearn

Mr. David Bevan

Mr. Loyola Hearn

Mr. David Bevan

Mr. Loyola Hearn

Mr. David Bevan

Mr. Loyola Hearn

1255

The Chair

Mr. Loyola Hearn

The Chair

Mr. David Bevan

The Chair

Mr. John Cummins

The Chair

Mr. David Bevan

Mr. John Cummins

Mr. David Bevan

Mr. John Cummins

The Chair

Mr. David Bevan

Mr. John Cummins

Mr. David Bevan

Mr. John Cummins

Mr. David Bevan

The Chair

Mr. David Bevan

1300

The Chair

CANADA

Standing Committee on Fisheries and Oceans

NUMBER 012

3rd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, April 29, 2004

[Recorded by Electronic Apparatus]

Á (1100)

[English]

The Chair (Mr. Tom Wappel (Scarborough Southwest, Lib.)): I call the meeting to order. Pursuant to Standing Order 108, we're continuing our study on the Fraser River, in particular the salmon fishery, but not necessarily, and more particularly on the government response to our unanimous report on the Fraser River salmon fishery.

We have four witnesses. Two of them are here in person: Mr. David Bevan, acting assistant deputy minister, fisheries management, and Max Stanfield, acting director general of resource management.

By telephone, not by video, we have Mr. Don Radford, acting regional director, Pacific region, and Paul Ryall, lead of the salmon team, Pacific region.

Welcome to everyone.

I have a couple of opening remarks. For those who we are hearing but not seeing, namely, Mr. Radford and Mr. Ryall, I would ask that you identify who is speaking each time you answer a question, so the people keeping the records of this meeting will know which one of the two is responding to a question. Obviously, it doesn't apply to the two gentlemen here, because our technical people will be able to see who is answering.

Secondly, because we have a couple of people on the telephone, obviously I'm going to ask members and our witnesses to try not to speak over each other, because it will be more difficult for us to hear the answers and to take a proper transcript.

As well, although a teleconference is much cheaper than a videoconference, it is, of course, not the ideal setting. We do want to take the opportunity to have as many questions and answers as possible. I would urge members to be very succinct in their questions and I would urge our witnesses to be very succinct in their answers.

I'll try to let the meeting go on, but if I find that people are going on a little too long, either members or witnesses, I'll have to remind them we're looking for succinctness.

Having said that, Mr. Radford and Mr. Ryall, can you hear me, and did you hear what I said?

Mr. Don Radford (Acting Regional Director, Pacific Region, Department of Fisheries and Oceans): Yes, we can hear you and we heard what you said. Thank you.

The Chair: Excellent. Thank you very much.

I guess we're ready to proceed. If either or both of our witnesses here today in front of us have opening statements, they can give them. Next I'll go to Mr. Radford and Mr. Ryall, if they have opening statements, and then I'll go to questions. I would ask that the opening statements be succinct.

Mr. Bevan.

Á (1105)

Mr. David Bevan (Acting Assistant Deputy Minister, Fisheries Management, Department of Fisheries and Oceans): Thank you, Mr. Chairman. I'll be making the opening statement on behalf of the Department of Fisheries and Oceans.

I want to thank the committee for its work on the Fraser River fishery and for its recommendations. Certainly, it has been a tremendously challenging decade, and perhaps more, for the Fraser River fisheries.

There have been challenges with respect to ocean survival as a result of changes in the ocean regimes. There have been challenges resulting from market shifts caused by aquaculture products and the challenges that has caused in terms of price. More recently, there have been challenges with respect to conservation issues. It's going to be something we will all have to face in terms of species at risk and our response to that. In addition, of course, starting in the early 1990s, there were changes with respect to some of the allocation issues around first nations. Those will, of course, continue with the treaty process.

As a result of all those challenges, there have been a number of initiatives and changes in the way we've managed the fishery and reviews in terms of the sockeye review that was conducted by the department in consultation with all stakeholders.

As well, we've also engaged with the province in a joint task force that will be making its report shortly. It is a report that will look at how fisheries will be managed post-treaty. What will they look like at the end of that process, taking into consideration all the stresses and strains the fishery has faced in terms of the adjustments through CFAR licence policy changes?

Yet, with all of those changes and all of the adaptations, there has been a problem with the ability of the fishery to remain viable economically, and it's facing continuous stresses, etc.

I hope we can help the committee in terms of providing you with information. There will be, obviously, a lot more happening once we've received the joint task force recommendations and report. We'll be looking at what that entails, as well as what this committee is bringing to the minister in terms of how we proceed from here.

Thank you.

The Chair: Thank you. That was succinct. And that's on behalf of all four of you.

We'll get right into questioning. I know members have their own questions, but our staff did provide us with briefing notes and suggested questions. I hope we'll be able to get to those because there are some good ones.

We'll go right to the vice-chair of the committee on the opposition side, Mr. Cummins.

Mr. John Cummins (Delta—South Richmond, CPC): Thank you, Mr. Chairman.

Mr. Chairman, the issue of importance here today is the government's response to the sixth report of the Standing Committee on Fisheries and Oceans on the 2001 Fraser River salmon fishery. The committee's report is one of two independent reviews that challenged the government's racially motivated policy on management of the Fraser River. The committee made its recommendations. Most significantly, it called for a return to a single fishery. The British Columbia provincial court heard testimony over six weeks and concurred with the finding of the committee and called on the government to shut down this commercial fishery.

It should be stated that DFO had the ability to bring forward in the court as many witnesses as it wished, including aboriginal witnesses, to bolster its claims. I think it should be noted that there were no time restrictions in the court. The hearings were in fact public. If the government does have a problem with that process, the problem is all theirs.

I want to address a couple of comments made by the department in its response to us. In paragraph 3 of the government's response to recommendation 1, it says, “They want to maintain a small boat commercial fishery in areas close to their communities.”

Mr. Chairman, I'd like to pass around these photos. These photos were actually presented in evidence in the Kapp decision. I'd appreciate it if you'd give these to the witnesses first. On the first page is a photo of boats owned by the Tsawwassen Indian Band in Ladner Harbour. On the second page are photos of three vessels owned by members of the Musqueam Indian Band. This second collection of pictures, with the bright blue on the front, were taken during the protest fishery. That was before the Kapp decision. These are pictures of vessels belonging to the Musqueam Indian Band, plus there's a picture of a Fisheries patrol boat.

How can the department justify the separate program for aboriginals based on the notion that the aboriginal fishery is a small boat fishery?

Á (1110)

The Chair: Mr. Cummins, I want to point out that it took three minutes and forty-five seconds to get to your first question. I understand you had to have a preamble, but I'll be watching carefully for the next questions.

I want to make sure that the record reflects what you're referring to. I have in front of me four pages of photographs. Is that correct?

Mr. John Cummins: That's correct.

The Chair: That's all you've handed out.

Mr. John Cummins: No. The photos in the first section were taken in the Musqueam fishery.

The Chair: This is what I'm trying to get at. No one is going to be able to understand this transcript unless we specify what we're talking about.

The first set of photographs shows a lot of blue sky.

Mr. John Cummins: That's correct.

The Chair: There are four pages of them.

Mr. John Cummins: Yes.

The Chair: There's a second group of photographs that shows more white and more fishing vessels. Am I correct?

Mr. John Cummins: That's correct.

The Chair: There are two pages of that.

Mr. John Cummins: Yes.

The Chair: All right. So at least the record knows what we're referring to. We'll identify the first group of photographs as exhibit 1 and the second group of photographs as exhibit 2. So if we just refer to them as exhibit 1 and exhibit 2, if you're referring to them specifically, and then you can refer to the page numbers of those exhibits....

Who was your question addressed to?

Mr. John Cummins: Mr. Bevan will do.

The Chair: Thank you.

Mr. Bevan.

Mr. David Bevan: I presume the question I'm to answer is what is the justification for the term “small boat fishery” relevant to these vessels. Clearly I can't get into the Kapp decision; that is under appeal, etc. So I'll respond to that particular question and then perhaps turn it over to Mr. Radford for elaboration.

There are a number of Musqueam and Tsawwassen fishers who have licences and are able to fish in the gillnet fishery under the normal commercial openings. Those individuals also have access to pilot sales fisheries, and the vessels I see here would appear to be those types of vessels.

In openings under pilot sales in the past--and again, that is a practice in the past and it has been discontinued--we would observe that many of the vessels in use in those fisheries are not at all similar to these. They are small, open skiffs, and there are large numbers of participants who don't have this kind of equipment. So I'm not quite sure how representative of the fleet these are in particular.

I'll turn it over to Don Radford to perhaps elaborate on that.

The Chair: Mr. Radford, do you have a comment?

Obviously, you can't see the photographs.

Mr. David Bevan: They appear to be normal commercial fishing vessels in terms of size and configuration, troller and gillnet capacity.

The Chair: Mr. Radford, recognizing that you don't have the photographs in front of you, do you have any comments on the question?

Mr. Don Radford: I'm detecting that question was directed at me, but unfortunately I'm not receiving a translation.

Á (1115)

The Chair: Mr. Duncan, I won't take anything off your time.

Mr. Radford, just so we understand ourselves, you're not getting a transmission or you're getting it in French?

Mr. Don Radford: The question I'm hearing is entirely in French and I don't understand it well enough to be able to respond.

The Chair: That's understandable.

Obviously, I think this is what's called a technical difficulty. We'll try to solve it for you.

Mr. John Cummins: Mr. Chairman, if I could, under questioning, fisheries officer Herb Redekopp provided the court in Kapp with information. He said that on the night in question there were 240 gillnetters actively fishing the water at all times. Then he said he believed it was 234 vessels, to be precise.

He was questioned by the judge, who said there was a range of vessels involved in the aboriginal community fishing licence fishery, and they discussed the size of the vessels. Mr. Redekopp suggests that most of the vessels have hydraulic drums. In other words, they're fairly large vessels, as those pictured in the pictures, Mr. Chairman, and then he said, “...there's a couple of the small vessels, Your Honour....” So out of 234, he says “a couple of the small vessels”.

Mr. Chairman, there are small vessels in the commercial fishery as well. For example, Cape May II, Mr. Chairman, is only 18.01 feet long. For a number of years I fished a vessel in this fishery that was only 22 feet long.

So I'd like to know why the department is giving incorrect information in its response to the committee by stating that somehow this is a small boat fishery.

The Chair: Mr. Bevan.

Mr. David Bevan: I think it's important as well that Tsawwassen and Musqueam are fishing in one location and their fleet is one configuration, but we also have other first nations, Stó:lõ and those fishing on the Somass, that are fishing with other kinds of equipment. So it perhaps is a generalization to say either they're large or small. That is perhaps something to consider.

But the fact is in the other areas of the Fraser River the desire of the first nations was to use smaller vessels in the conduct of their fishery above Mission.

The Chair: You would agree that there were larger vessels as well, clearly.

Mr. David Bevan: Clearly, yes. There are larger vessels as well in the fisheries of the first nations lower in the river.

The Chair: Thank you.

Mr. Cummins.

Mr. John Cummins: As I suggested, Mr. Chairman, the small fish vessels, many of which are retired from the commercial fishery, some of which are double licensed, also fish set nets. So this has nothing to do with vessel size, Mr. Chairman.

The comment in this document, the government's response, in the second paragraph is that this fishery “improved economic benefits to First Nations who faced poor economic outlooks”.

Mr. Chairman, I want to read some of what Judge Kitchenfound on that, and there was plenty of evidence made available on this issue. The department had the ability to provide evidence to the contrary.

The judge said:

From the evidence that was led I conclude that the Musqueam Band is located on a well-situated urban reserve on the outskirts of Vancouver and controls relatively valuable property. This property and other business interests of the band produce a substantial income available to the band for the benefit of the band and its members. As a result, the real estate and personal possessions of the band members, described by the witnesses and evidenced by photographs, are at least of a standard and quality representative of the community at large.

He goes on:

The Tsawwassen Band has a reserve further from the Vancouver metropolitan centre, which is therefore less valuable. The band leases properties and has business ventures however, and there was similar evidence concerning quality of housing and the possessions of band members.

Then he goes on to say:

Even if financial disadvantage were an issue there was no economic study or assessment done prior to or during the pilot sales fishery concerning the economic need of the bands and the financial rewards the fishery would produce.

He continues:

Since financial disadvantage is not a consideration with these bands, and if the Department demonstrated no interest in the financial aspects of the pilot sales fishery, it is difficult to understand what other disadvantages the pilot sales program was intended to remedy.

So in short, Mr. Chairman, there is no economic necessity. There are no studies that show that this would improve the economic outlook for the band at the time of this trial.

I'd like to ask the witnesses, where are the studies that justify your conclusion that somehow this is to provide economic benefit? I'm not talking about macro-studies here, nationwide. I'm talking about studies relevant to the bands under question.

Á (1120)

The Chair: Before you answer, Mr. Bevan, just to be fair, if I read the government's response correctly, they aren't identifying two bands. They're talking in general about the first nations.

Does the judge talk in general about the first nations, or is he only talking about the two bands you mentioned?

Mr. John Cummins: We in fact are talking about these bands as well, the bands that are involved in the pilot sales fishery. That's what I'm talking about.

The Chair: All of them.

Mr. John Cummins: That's right.

The Chair: But the judge is not.

Mr. John Cummins: Yes, he is.

The Chair: He is talking two specific bands in what you read, as I understood it.

Mr. John Cummins: I gave evidence about those two bands. The third is the Stó:lõ. Their situation is similar, Mr. Chairman.

The Chair: So the question, Mr. Bevan, is simple: do you have studies that back up the statement in the government response that, in general, first nations on the west coast faced poor economic outlooks?

Mr. David Bevan: First off, again, there are a number of references to the Kapp decision. I can't really comment on that. That has been appealed, and I think it's not my place to retry the decision. So I won't want to comment on that.

I think it's clear as well that the Government of Canada's policy relevant to first nations is to endeavour to improve their situation. There have been numerous studies on the general well-being of first nations communities. The evidence from those studies is clear. In general, there are numerous problems in first nations communities, and that goes from one coast to the other, perhaps on the third coast as well.

The government's policy on making commercial access and making food, social, and ceremonial access available to first nations is absolutely clear, and it's based on those general policies. Relevant to the specifics of those bands, I can't answer the question. I don't know that there was any specific evaluation there, but I think it's pretty clear, however, on the broader issue that in terms of studies done by DIAND and others...it has been abundantly clear over the years that there are difficulties.

The Chair: Excuse me, Mr. Cummins, your time is over, but I will get back to you.

I will say this. The government's response made a statement of fact that first nations faced poor economic outlooks. We are well aware of policy. We understand what policy is, but the response stated that it improved economic benefits for first nations. Now, we're not talking about first nations in Ontario or the Atlantic. Clearly, we're referring to first nations in general on the west coast.

So the question was very specific, and I'd like a specific answer. Does the Department of Fisheries and Oceans have any studies of bands on the west coast that show, first, that they faced poor economic outlooks, and second, that their economic outlook improved because of the pilot sales fishery? That's a very specific question.

Mr. David Bevan: Yes, and I haven't got a specific answer. I'll have to ask Mr. Radford if he can provide one.

The Chair: Well, let's ask him.

Mr. Radford, I hope you can hear me in the English language. Did you hear my question, and can you answer it?

Mr. Don Radford: I did hear your question, and I cannot answer it directly. I'm not aware of any specific studies that pertain exclusively to the economic situation regarding the first nations on the west coast.

The Chair: Mr. Bevan, I'd like you to inquire from your department and find out if there are. If there are, would you provide them to our committee, and if there are not, would you state that clearly for us in a letter?

Mr. David Bevan: Yes.

The Chair: Thank you.

We go now to the Liberal side. Anybody over there?

Okay, Mr. Wood.

Mr. Bob Wood (Nipissing, Lib.): I wasn't around when all of this was taking place, but there are a couple of recommendations I would like to get some answers on.

One is recommendation 7, which says:

That DFO consider more flexible approaches to the management of fisheries along the lines proposed by the Area E Gillnetters Association.

Can you just tell us, Mr. Bevan, what the current state of that relationship is with the gillnet fleet?

Mr. David Bevan: Clearly, the way in which the fisheries have been run in the past will not be sustainable in the future, given the conservation concerns of a number of the stocks that are co-migrating with the stronger, more available stocks. What we were looking at was arrangements there with pooling and other types of methods that have been done by seiners in other areas and that we would like to explore with the gillnetters in that area to allow for openings when the strength of the stocks is not strong enough to sustain pressure from the entire fleet.

But perhaps Mr. Radford can elaborate on that.

Á (1125)

The Chair: Mr. Radford.

Mr. Paul Ryall (Lead, Salmon Team, Pacific Region, Department of Fisheries and Oceans): Perhaps I can address some of that.

In discussions we've had with the area E fleet, we've been looking at other ways to harvest if there are identified small surpluses of salmon. Some of those things include changes to gillnet size and duration of the fishery opening. In this way, if there's a small abundance, we could harvest that with the fleet.

We are exploring other options, but that's what was in place for 2002, for example.

Mr. Bob Wood: Another recommendation asked for more stable access to the resources for the commercial and recreational fisheries. Was that ever carried out?

Mr. David Bevan: The sockeye study in 2002 looked at some of those issues, but that is also a significant issue with respect to the joint task force being conducted by the Province of British Columbia and Canada, which will be reporting shortly.

The stabilization of access in the face of treaty negotiations and in the face of conservation concerns has been a significant challenge. There was an attempt made through some of the work done in the region to provide some framework for the access in terms of first nation, recreational, and commercial fishers, but that has to be revisited in light of further challenges.

So further work is being done on that, but again, I would turn to the region for further details.

The Chair: Any comments from the region?

Mr. Don Radford: I think in the 2003 fishery, when we had the findings and the advice from the standing committee plus the advice from the 2003 post-season review, we were able to work relatively closely with the commercial industry through the Fraser River panel as well as with the recreational fishery to provide a much more stable and predictable pattern of fishery openings within the constraints of meeting our conservation requirements. And I think the reports from the industry, as I understand them, were generally satisfactory with respect to the approach we took in 2003.

Mr. Bob Wood: Correct me if I'm wrong, but wasn't a federal-provincial joint task group set up to study the post-treaty fisheries? Has there been any response to that yet?

Mr. David Bevan: The report has yet to be released. It's done; it's in translation, and it should be released shortly. That will then help frame further debate and negotiation and consultation around the whole issue of what the fisheries will look like after treaties.

Mr. Bob Wood: So what's going to happen to that report? Is it going to be made public? Are people going to have access to it, or is it going to be just shelved somewhere?

Mr. David Bevan: It will be made public. The intention is to make it public shortly.

Mr. Bob Wood: Thank you, Mr. Chair.

The Chair: Mr. Bevan, you'll make sure we get a copy of it, please?

Mr. David Bevan: Yes, I will.

The Chair: Mr. Provenzano, there's time left, if you have some questions.

Mr. Carmen Provenzano (Sault Ste. Marie, Lib.): Well, I do. They relate to recommendation 6. I just wanted some clarification. I don't know how much time I have, Mr. Chair.

The Chair: Six minutes.

Mr. Carmen Provenzano: I'm looking for some clarification on the distinction between a guardian and a fisheries officer. In recommendation 6, the committee had asked that DFO fund and support activities of more fisheries officers, and there were a number of statements made under that particular recommendation.

I, personally, could use some clarification, based on the government's response, on the distinction between a guardian, the functions of a guardian, and those of a fisheries officer.

Mr. David Bevan: Thank you.

A fisheries officer is a fully trained individual meeting all the qualifications, one who has gone through the normal training process, which is significant, including spending time at the RCMP depot, passing through the series of training modules there and getting the qualifications. So that person is a fisheries officer under the law and meets all of the same qualifications as any other fisheries officer, whether the individual is aboriginal or not. They're the same.

A guardian is a person with less authority. In recent years they have been moving away from enforcement or monitoring and control into other types of activities such as habitat, monitoring of catch landings and those kinds of things, but not enforcing the Fisheries Act.

That's the distinction.

I'll just make sure I have that right, Don, if you have any further points to raise.

Á (1130)

The Chair: Mr. Radford.

Mr. Don Radford: No, I think that's an accurate portrayal, David. I don't have anything to add to that.

Mr. Carmen Provenzano: On the aboriginal fisheries, are you able to advise the committee how many people would be involved in the enforcement and conservation aspects?

Mr. David Bevan: I think Mr. Radford is better situated to answer that.

The Chair: Mr. Radford.

Mr. Carmen Provenzano: In comparison to the fisheries as a whole, Mr. Radford.

Mr. Don Radford: We have 170-odd fisheries officers in the Pacific region. They aren't specifically attached to aboriginal fisheries, commercial fisheries, or recreational fisheries. They're broadly based, situated in communities around the region, and they enforce all elements of the Fisheries Act and associated regulations.

I can't answer the question in terms of how many people are engaged at any specific time in enforcing the aboriginal fishery versus the recreational or commercial fishery, or looking at habitat violations. We assign work based on priorities and where the threats and risks to conservation are greatest, depending on the circumstances at any given point in time.

Mr. Carmen Provenzano: I understand we're recruiting fisheries officers from the aboriginal communities. Can you advise the committee whether those recruiting efforts are successful, and do you have the number of persons who have been recruited and how they're being deployed?

Mr. David Bevan: Is that question specific to the Pacific region or nationally?

Mr. Carmen Provenzano: To the Pacific region.

Mr. David Bevan: Do you have those numbers off the top of your head, Don?

Mr. Don Radford: Sorry, David. I don't have the precise numbers off the top of my head. I know we have recruited a number of aboriginal people who are now working as fisheries officers. I can determine the exact number and where they're deployed at the present time, and provide that information to the committee if that's desirable.

The Chair: Thank you, Mr. Radford, and it is desirable.

Mr. Don Radford: Very well.

The Chair: Mr. Provenzano.

Mr. Carmen Provenzano: I'm not sure I caught it in what you said, but in terms of the Pacific region, how many fisheries officers does DFO have performing conservation and protection branch functions?

Mr. Don Radford: I believe there are in the neighbourhood of 170. I don't have the precise number. It varies depending on attrition rates and staffing rates, things like that. But it's in the neighbourhood of 170. When I provide the information regarding the number of aboriginal fisheries officers, I'll provide the precise number of non-aboriginal fisheries officers as well.

Mr. Carmen Provenzano: Okay. Now that I look at my notes I see that figure there. You did provide it earlier.

Thank you, Mr. Radford.

Those are my questions, Mr. Chair.

The Chair: Thank you.

Just before I go to the next questioner, Mr. Bevan, the government response to recommendation 6 has some interesting wording, and I'd appreciate it if you could help me with it. In the second paragraph it says that DFO has a system in place to screen out any guardian candidate with a fisheries violation. Now, you can write that sentence as DFO having a system in place to screen any guardian candidate with a fisheries violation, or as you said, to screen out. That would imply that if they have a fisheries violation, they are out.

Shortly after that you say:

DFO does not designate any individual where the criminal history of the person, including violations of the Fisheries Act, is felt to compromise his or her ability to function effectively as a Fishery Guardian.

That, to me, indicates that if DFO feels that the ability is not compromised, then someone could be appointed a fisheries guardian, notwithstanding that they had fisheries violations. I therefore see a conflict between that sentence and the first sentence, and our recommendation was to say that nobody could be a guardian if they had a fisheries violation.

Can you help me as to what the precise current guidelines are with respect to that issue?

Á (1135)

Mr. David Bevan: Okay. Due to the changing role of the guardians, I'm going to have to see if the region can help me on that one.

As I mentioned, most guardians are no longer engaged in the enforcement--many are engaged in habitat or whatever. But I'll see if the region can provide a more complete answer to that specific question.

The Chair: Mr. Radford, do you have our recommendations and the government response in front of you?

Mr. Don Radford: I do, yes.

The Chair: You saw what I'm referring to, Mr. Radford?

Mr. Don Radford: Yes, and I think David is correct. Guardians are not engaged in direct enforcement activities. They're engaged in fishery monitoring activities. Notwithstanding that, we do have a screening process. If people show up as having had serious violations of the Fisheries Act or a record of that kind of activity, then we don't consider them any further. If there are violations of the Fisheries Act that may have been considered to be minor, then we would consider that imbalance with the other attributes of the individual.

The Fisheries Act is quite broad. Some of the violations in the past have been...analogies have been made to things like speeding tickets--minor over-possession or things like that.

So I think there is a bit of a grey area, but I appreciate the recommendation of the committee.

The Chair: Thank you, Mr. Radford. I understand there's a grey area, as there always is in these things, and the key is that we're not going to spend our time debating what is serious. What's important is that where there isn't grey, where it's black and white--and there is some part of the situation that is black and white--you in fact do screen out these people and not appoint them for any purpose as a guardian, because clearly they're not abiding by the provisions of the Fisheries Act.

But I understand your answer. We'll leave it at that. I don't want to monopolize the time.

We now go to Mr. Cummins again, for five minutes.

Mr. John Cummins: Just to conclude the previous discussion, Mr. Chairman, in talking about whether or not there were economic studies done of the benefit that the department would suggest accrued to the bands from this fishery, the judge said very clearly in the Kapp decision that it wasn't the case. He said:

This was the evidence of Michelle James who was an economist and Senior Policy Advisor for the Department of Fisheries and Oceans from 1982 until 1997. She was there during the time period when the pilot sales program was implemented. Ms. James was responsible for doing such studies.

So there were no studies, and Mr. Bevan is quite aware of that.

Mr. Chairman, what I would like to discuss now are some issues related to the management of the fishery. The Auditor General in 1999, and Mr. Pearse in 1992—and there was another report about unmonitored fisheries in the Fraser River—and John Fraser in 1994, have all commented that a separate commercial fishery is not functional. Fraser himself, in his report that came out in 1995, said that “to allow commercial sales in other areas now would simply add to the opportunity to poach like current pilot sales have done”. He was referring to the sales under study, the question of the fisheries in question.

Jordan Point, who is actually an aboriginal, a Musqueam, and a fisheries officer as well, talked about the improved management in the fisheries. He said:

I don't know how important this is to any of you, but if we went through the exercise of 4 months of negotiations and expect to pay out over $400,000.00 in contribution dollars to facilitate the agreed terms and conditions of the agreement...

—He's talking about the fisheries agreement with the Musqueam—

...I would expect that we would ensure that the bands are informed of the requirements and the expectations...from all indications it would appear that the bands are already in non-compliance with the agreements and the ink isn't even dry--and the fishery has even started.

In testimony, Herb Redekopp, the fisheries officer, said about an audit that he did in 1999 that, “todays audit confirms investigative data from previous weeks which indicates a discrepancy of around 300% overall”. Mr. Chairman, my question here is quite simple: does a 300% reporting discrepancy represent improved management and catch monitoring of first nations fisheries?

Á (1140)

The Chair: Mr. Bevan.

Mr. David Bevan: I think clearly not. That would be an incident or a situation where there is a problem. We have real problems in monitoring all commercial salmon fisheries, whether it's pilot sales or not. We need to improve that process and are working on that.

I can say from my own experience at the Fraser River in 1993, when we implemented mandatory landing sites and monitoring, etc., that compliance can be good sometimes and it can be poor at others. I think our challenge is to make sure that it is as good as it can be in all fisheries for most of the time. That is what is being worked on in terms of the salmon monitoring process for both pilot sales and other commercial fisheries.

As well, we have to work on the issue of recreational monitoring and how to get a handle on that.

Mr. John Cummins: I think we're talking about the pilot sales here, Mr. Bevan.

Mr. David Bevan: I think we're talking about a specific timeframe as well. That may be something that is not indicative of the overall...but I'll turn to my regional colleagues to perhaps comment more broadly on monitoring of salmon catches.

Mr. John Cummins: Before you do that, let me add this little bit, Mr. Bevan, because your response is not addressing the issue at all. There is a serious poaching problem. It has been recognized since the inception of this program that the fish aren't being counted and that there are violations of the regulations. Every fisheries officer I've ever met would tell me that.

You in the department had plenty of opportunity in Kapp to demonstrate to the judge that the fishery was well managed. In fact, the judge concluded that:

The literature from the Department expressed the hope that the pilot sales fishery would provide stability to the commercial fishery by improving Aboriginal catch data, increasing cooperation in enforcement, and reducing protests and confrontation. The weight of the evidence is that none of this has occurred and the program has been counterproductive in each of these areas.

Mr. Bevan, that is a conclusion of a judge of the provincial court of British Columbia. I think it's a conclusion of everyone who I have talked to who has observed the fishery, as a participant or not, and of others. The only people who seem to be in a state of denial here are the department. That certainly was the conclusion that this committee arrived at after its consultations.

So the court says there is a problem, the committee says there is a problem, and you're in a state of denial.

The Chair: Mr. Bevan, would you care to comment on that statement?

Mr. David Bevan: There are no pilot sales at this point. I think that's an issue we have to look at.

There are no pilot sales. We are looking, however, at alternatives in terms of commercial access for first nations. We have the allocation transfer program, to provide first nations with licences and commercial access, and we are in negotiations or consultations with first nations as to what kind of fishing opportunities could be put in place in lieu of pilot sales. We are not talking about bringing them back; we are talking about an alternative.

I think that is important for the committee to consider in view of the line of questioning right now, which seems to be focusing on pre-Kapp decision issues and on pilot sales, which are no more.

Á (1145)

The Chair: Mr. Bevan, thank you. I think that's a reasonable point to remind us about. The pilot sales have in fact been stopped, as you pointed out.

Does anybody over here have a question? If not, I have something I'd like to ask.

Actually, this is going to be addressed to Mr. Radford.

On this point about enforcement, the last couple of lines of the government's response to our recommendation 4 are “No fishery is without compliance issues. ” Who can disagree with that? “Where problems are identified, DFO initiates actions to provide proper control and monitoring of the fisheries.”

I have received a letter from the Sportfishing Defence Alliance. This was a letter sent to the current minister of fisheries. I'm only going to read you the first paragraph:

Dear Minister Regan:

Our members are reporting that the illegal drift gillnet fishery has once again started in the Fraser River upstream of the Agassiz-RosedaleBridge. In addition to the illegal drift gillnets there are numerous set gillnets operating seven days a week in defiance of the law. These operations are not being carried out clandestinely but in plain view of the public highway and your enforcement staff.

Our members have repeatedly reported these infractions to your Department through the Observe, Record and Report (ORR) Programme with no response action from your Department at all.

In view of the government's response that where problems are identified, DFO initiates actions to provide proper control and monitoring, what is DFO western region doing about the reported illegal drift gillnet fishery on the Agassiz-Rosedale Bridge area of the Fraser River?

Mr. Radford.

Mr. Don Radford: The fishing that has been identified in the letter from the Sportfishing Defence Alliance is related to a small group of Cheam First Nation participants. Action that we are taking is to work very closely with the majority of the Cheam Band, including the elected chief and council, to develop an agreed upon fishing plan for this year to provide us with a basis to have support from the band to address the illegal fishing that's happening in that area.

My understanding is that the fishing that is happening is by a very small group, a minority of band members, and it's our intent to establish a relationship with the Cheam Band that will facilitate enforcement of that kind of activity.

I have to note that the relationship with the Cheam Band has vastly improved in recent months over previous years with the election of a new chief and council, and we are making significant progress in our work with the band. The level of illegal activity that is occurring is much reduced, and we hope to reduce it even further to the point of being negligible.

The Chair: Good luck to you in that, Mr. Radford, but another paragraph goes on to read:

This is the fifth year in a row that this illegal, continuous and high impact illegal fishery has been allowed to go on unchecked by your Department. Not only that but it is the fifth year that such fisheries have gone on unchallenged during the migration period of stocks of high concern or “endangered” stocks.

Is that an accurate statement?

Mr. Radford.

Mr. Don Radford: I'm just trying to digest that.

Could you please read the statement again?

Á (1150)

The Chair: Yes.

This is the fifth year in a row that this illegal, continuous and high impact illegal fishery has been allowed to go on unchecked by your Department.

I'll stop there.

Is it true that for five years illegal fishing has been going on in this area while you talk to the band?

Mr. Don Radford: I would dispute that. I think we have not had a relationship that allowed us to talk to the band for the past five years. That relationship is very recent, perhaps within the last six to seven months.

It's true as far as I can determine, except that this year we are noting vast improvements over previous years.

The Chair: But DFO has continued to allow illegal fishing. Is that not correct?

Mr. Don Radford: There has been illegal fishing, and there have been enforcement actions and charges laid against Cheam Band members for most of the period of time in question.

The Chair: Are you doing something about it now?

Mr. Don Radford: Yes. We are working with the Cheam Band to try to develop a fishing plan to address this issue.

The Chair: While that's going on, are there still illegal drift gillnet fisheries going on in the bridge area of the Fraser River? Is it still happening?

Mr. Don Radford: I believe it is, yes.

The Chair: How about stopping it?

Mr. Don Radford: We are working to stop it. We are collecting information that will allow us to lay charges when the time is appropriate.

The Chair: Please do so. I would suggest that the time is now.

That's my questioning. Thank you.

Mr. Stoffer.

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP): And you want to know why fishermen get upset!

Mr. Chairman, thank you.

The question for Mr. Radford is, is that driftnet fishery that is or was going on illegal?

Mr. Don Radford: There are people who are fishing but they are not fishing under the authority of a fishing plan or a licence, so yes, it is illegal.

Mr. Peter Stoffer: When the sport advisory group wrote that letter and said that for five years this has been going on against the law, I want to make sure, to be very clear, is that activity, the fishing that the Cheam Band did, illegal? Is it against the law?

The Chair: Mr. Stoffer, he's already said yes, so don't push it. He's already agreed with you.

Mr. Peter Stoffer: Okay.

That's the point. If for five years that organization has told DFO this illegal activity is happening, and the words we get from Mr. Radford are “we're working with them”....

If I robbed a jewellery store, I can assure you the police wouldn't work with me to rob less. They would throw the book at me, and I would be confined and my activities of robbing a jewellery store would cease.

The Chair: You're an MP, so they might not throw the book at you.

Mr. Peter Stoffer: Maybe, yes. Maybe if I did something else....

The reality is that if it's illegal, you have to stop it. I put it to you that if those were non-aboriginal people doing it, you can be assured they would be forced to cease and desist immediately.

I've seen non-aboriginal fishermen who were illegally fishing treated heavy-handedly. I saw it on the east coast, Mr. Chairman. We had four fishermen of the South West Fishermen's Rights Association who put out a hook and line and they were arrested. These people were protesting; they said the DFO's actions were wrong. Their boats were hauled in, they were hauled in, and they were charged immediately.

Yet on the Fraser River, we have an aboriginal group participating in illegal activity, as per DFO, and the answer we get is “we're working with them”. I find that absolutely amazing.

My question, Mr. Chairman, is on the food, social, and ceremonial purpose, which is different from pilot sales, is that correct?

Mr. David Bevan: Yes.

Mr. Peter Stoffer: Thank you.

Who was managing and monitoring the food, ceremonial, and social fishery? Who monitors that?

Mr. David Bevan: The Department of Fisheries and Oceans has the ultimate responsibility. In some cases, there is an arrangement made with the bands that there is monitoring, and they provide the information to us and we do an audit function. In other cases, it's more direct fishery officer involvement.

Mr. Peter Stoffer: Is there a guardian, or is it a fisheries officer who actually monitors what goes on?

Mr. David Bevan: There may be a role for a guardian in terms of providing us with dockside information—not with respect to enforcement, as I said earlier, but with information about what's coming in at the dockside.

Those are subject to agreements under the aboriginal fisheries strategy, so they can vary depending on the circumstances. If you're talking specifically about the Fraser River, I'll turn it over to the region to provide more clarity.

In general, they are subject to agreements, and there can be different arrangements within those agreements depending on the circumstances, etc.

Á (1155)

Mr. Peter Stoffer: Mr. Bevan—

The Chair: I'm sorry, Mr. Stoffer. Did you want the region to answer the question?

Mr. Peter Stoffer: No, I have just a furtherance on this. In furtherance of that question on the food, social, and ceremonial fishery, is any band or any aboriginal group allowed to sell any of that fish?

Mr. David Bevan: No. Under the provision of the licences, they are not allowed to sell. It's not a commercial opportunity.

Mr. Peter Stoffer: Is there any evidence you have seen over the years that some fish for that purpose has been sold?

Mr. David Bevan: Yes, there is evidence. There have been charges laid. There have been fines levied. Obviously there's evidence, in that case, that people were selling fish that were originally designated for food, social, and ceremonial purposes.

Mr. Peter Stoffer: Mr. Bevan, my last point to you is that the Native Brotherhood of British Columbia, of which Chris Cook is the president, feels, at least when I spoke to him a while ago—and the union, the UFAWU-CAW, is very concerned—that what has happened along the Fraser River has pitted aboriginal people against aboriginal people. You have coastal commercial fishermen who are aboriginal waging disputes regarding quotas, and who can fish and what you can fish with, against inland fisheries among aboriginal people.

Has DFO at any time tried to bring those two groups of people together to reach some sort of compromise where people fish more or less under the same rules? Has that been attempted?

Mr. David Bevan: We have attempted that, as I think some will recall. Just after the aboriginal fishery strategy came into play, there were attempts to get watershed agreements in the Fraser River, bringing together commercial, recreational, and aboriginal fisheries from both the lower Fraser River bands and the upper Fraser River bands. We have been unable to broker a watershed agreement in the Fraser River, however. That's not to say it didn't occur in other locations. We had better success in the Skeena River.

Mr. Peter Stoffer: Just to clarify the beginning of my questioning, if DFO recognizes and notices that there is illegal fishing going on, should it not be DFO's responsibility to shut that fishery down immediately—not “work with”, but shut it down—regardless of who commits that illegal act? Is it not the DFO's responsibility to do that?

Mr. David Bevan: On a simplistic view I'd say that would be right, but I think it's more important to look at the broader issue here.

We don't maintain compliance by running a police state. We need the cooperation of the communities and of the fishers. If we don't have most of them onside, then it becomes difficult. We are clearly unable to take on large groups of people; that's not what we do. We try to work with people to get compliance, in particular with licensed fishermen.

Yes, we do take tough action against individual poachers or individuals from.... You'll recall in your area that there have been strong actions taken against those individuals from first nations who have been trying to fish outside the provisions of the law. But when you are dealing with communities, it's better getting them onside. Getting more overall compliance is the better approach than conflict, confrontation, and violence.

Mr. Peter Stoffer: But Mr.—

The Chair: Mr. Stoffer, that's seven minutes. I want to thank both of you for your snappers: quick questions and quick answers. I appreciate it.

Mr. Peter Stoffer: I just have one little one and then that's it.

The Chair: One little one? I'm watching. Go ahead.

Mr. Peter Stoffer: Thank you.

Mr. Bevan, if it's the constitutional obligation of DFO to protect fish and fish habitat, and if somebody is committing an illegal act, the department, in my view, has the obligation to stop that illegal activity from happening. By not doing it, I say you abrogate your responsibility for protecting fish and fish habitat.

Mr. David Bevan: I can agree with you that we have to stop it, but I think what I'm going to disagree with you on is the methodology of stopping it.

Do you stop it right away by a heavy-handed approach every time and alienate communities—and I'm not just talking about first nations here—and alienate all groups of fishers, or do you have a situation where you try to get compliance by having the people understand the need for it and bring compliance on themselves?

I think it's not a matter of whether you should have compliance or whether the rules should be obeyed; it's a matter of how you achieve it and do so without the need for huge levels of resources and a very strong and sometimes violent confrontation with people who are Canadians. Is that the way we want to do it? Or do we want to find a better way to achieve compliance?

That's what we're trying to do in this situation.

Â (1200)

The Chair: We understand that. However, sometimes when ordinary Canadians observe illegal activities not being stopped, it encourages those ordinary Canadians to join in those illegal activities to make a point, and that too should not be encouraged. That's just an editorial. It's not a question.

Mr. Provenzano.

Mr. Carmen Provenzano: Certainly, there are tremendous complexities in developing positions on in-river fisheries, and I wouldn't pretend to know what they all are. I think the Fraser River is a good example of the myriad of complexities that might arise, especially with regard to the negotiation and implementation of treaties. Do you have any idea, Mr. Bevan, how many treaties might be eventually made along the Fraser River system?

Mr. David Bevan: That's a really significant challenge. There are a large number of bands, as you're aware, on that system. How the end point of the negotiations will be reflected in terms of treaties, I can't predict. That's a question best posed to the treaty negotiators themselves. But clearly there are going to be divergent interests in terms of those bands at the mouth of the Fraser, mid-river and upper river. We have not been able to bring them together. So I don't think we're going to see aggregates of communities subject to treaties covering the larger areas. If there are going to be treaties in that river system, I would suspect there would have to be a fairly large number. But perhaps the region could provide some better information regarding the treaty process that's underway right now.

Mr. Carmen Provenzano: I suppose the same might be said for what fraction of salmon production might be allocated to the treaties.

Mr. David Bevan: That question was provided to the joint task force for their consideration. As I said, their report will be coming out shortly. It can't be a definitive response. They don't have any magic ball that will allow them to see what the end result will be in terms of all the obligations that will be created through the treaty process. But they were charged with looking at fisheries after treaties, and to do that they would have to wrestle with that question. So we'll see what's in their report when it's made public.

Mr. Carmen Provenzano: I thought that joint task force had reported on post-treaty fisheries.

Mr. David Bevan: The report has yet to be made public. It had to be translated. It will be made public as soon as it can be.

The Chair: This is the same report you were talking to Mr. Wood about earlier.

Mr. David Bevan: That's correct.

Mr. Carmen Provenzano: When can we expect that?

Mr. David Bevan: I can only say as soon as possible. That would be, hopefully, within a matter of weeks, not longer.

The Chair: Just to bootleg under Mr. Provenzano's time, I have two quick questions. Can you tell us what is the current status of the Kapp appeal? Has the paperwork been filed? Are you waiting for a hearing date? Where is it?

Mr. David Bevan: It's likely to be heard this spring. I don't have the date. Perhaps the region does know the date. We'll have to get that to you following this session.

The Chair: Mr. Radford, do you know what's happening with the appeal?

Mr. Don Radford: The case has been appealed, and it's scheduled to be heard between May 31 and June 11.

The Chair: Of this year.

Mr. Don Radford: Yes.

The Chair: That's good for the court of appeal or whomever you're appealing to. Usually, the court takes a long time.

My second question has to do with the pilot sales program. Mr. Bevan, I fully appreciate that it has been stopped. What was the legislative authority for the pilot sales program?

Â (1205)

Mr. David Bevan: The Fisheries Act.

The Chair: What section?

Mr. David Bevan: Section 7 of the Fisheries Act provides the Minister of Fisheries with the absolute discretion to provide licences to whomever and to decide who gets the fish, where they fish, how long they fish, and with what kind of gear they fish.

The Chair: What a section.

Thank you for the answer.

Mr. Cummins, please.

Mr. John Cummins: Thank you.

I'll get back to the point on misinformation from Mr. Bevan in a second. This is the game these guys play; it's half answers and a lot of goodwill and nice-sounding stuff, but the reality is, when the rubber hits the road, these are the guys who have caused the demise of the Fraser River fishery. The Fraser River fishery was a healthy fishery until they started messing around in the late eighties and not enforcing the law. That's the problem here.

I'm just going to go back to the Cheam issue, which you raised so well, Mr. Chairman, because there are some problems that flow from that. I think the answers that were given by the department were simply self-serving. They tend to try to dismiss the legitimate concerns that are expressed with the notion that somehow they're doing something different, which they're not; they've been talking to these guys for a long time.

Let's go back to last June, Mr. Chairman. There were a couple of fisheries officers who went onto the reserve to take some enforcement action, and they got into a whole lot of difficulty. At the time the fishing was closed to the Cheam Band and fishing restrictions had been put in place to protect migrating chinook salmon. When these officers went onto the Cheam reserve to do the job, they were threatened with a club and later with a shovel. The band member also threatened to drive his grader machine into the DFO vehicle and push it into the Fraser River. Fisheries officers drew their side arms and used pepper spray to subdue the individual.

As an offshoot from that, the fisheries officers kind of gave up on monitoring in that area. They entered into an agreement whereby they were going to let the band know when they were going to come into their territory to investigate incidents and so on, but they backed off from monitoring the fishery and simply observed. They refused to take enforcement action, and that went on throughout the summer.

In fact, the fisheries officers who bravely went on the reserve to do their job were threatened, but these guys were sent home, Mr. Chairman. They were sent home, suspended from work for doing their job. So how, Mr. Bevan, can you tell us here with a straight face, without blushing in embarrassment, that somehow you're doing your job when you sent two fisheries officers--three fisheries officers, in fact--home from work last year who were simply attempting to enforce the law?

Mr. David Bevan: I'm going to let the region respond in more detail, but that's not the whole story, obviously. The agreement that was signed was altered later in the season to provide the fishery officers with the instructions to go back into the area and continue enforcement, and those fishery officers were reinstated quickly. They were never without pay, etc.; they were on administrative duties--

Mr. John Cummins: They were off till August.

Mr. David Bevan: They were on administrative leave until the--

Mr. John Cummins: For what?

Mr. David Bevan: There was a complaint against their actions, and that complaint had to be investigated as well.

That being said, they were put back on duty, and it was made clear as well that the agreement had to be altered in order for enforcement to be a little bit more readily implemented.

I'll turn to the region for some of those responses.

The Chair: Mr. Radford, could you respond specifically on the issue Mr. Cummins raised about the officers and what happened to them?

Mr. Don Radford: I think David answered accurately. The officers were on administrative leave pending the outcome of an RCMP investigation, and they were reinstated. They were never without pay and they were never in any way, shape, or form disciplined for the action they took. They were simply on administrative leave while an investigation was underway.

Â (1210)

The Chair: Thank you.

Mr. Cummins.

Mr. John Cummins: Mr. Chairman, in a note I have, a document I received under access to information, “Chilliwack Stats”, noted on June 8 that “As a Result Of confrontation Enforcement Actions are Suspended Against Cheam”.

In a note that was prepared for the minister for question period, it says:

The minister is advised that Fisheries officers are still refusing to do enforcement as they say it's not safe, following what happened in May and the subsequent enforcement agreement that DFO made with the Cheam.

It goes on to say:

Internal investigation has found the Fisheries officers behaved properly in the incident and that still no action has been taken against the Cheam leader, who threatened the officers with a shovel and a club and a road grader, or with those who fished illegally and continue to fish illegally.

In fact, there was no action taken against the guy who threatened the fisheries officers, was there?

Mr. David Bevan: I'm not familiar with the outcome of that particular case.

Mr. John Cummins: Well, it was in the news.

The Chair: Hold on. I'm sure Mr. Radford is. Mr. Radford, what happened to that gentleman?

Mr. Don Radford: The gentleman in question was also the subject of an RCMP investigation. At the conclusion of the RCMP investigation it was turned over to the provincial crown attorney to take action. Subsequent to a review of the case, I believe, it was determined that there was inadequate information and it was not in the public interest to proceed with charges, so that was the end of that. It was not a departmental investigation; it was an RCMP investigation, and it was handled by the provincial crown.

The Chair: Fascinating.

Mr. John Cummins: The fact is, Mr. Chairman, that this individual was preventing fisheries officers from doing their lawful duty. That's a clear--

The Chair: That may be, but if it is true that the RCMP investigated and did give its conclusions to the provincial crown attorney and if it is true that the provincial crown attorney chose not to prosecute, we can't yell at DFO for that, I think.

I take it that's Mr. Radford's evidence. Is that correct, sir?

Mr. Don Radford: It is.

Mr. John Cummins: Mr. Chairman, my understanding would be that it would be the federal government that would prosecute, that the fisheries officers should have been the ones laying the charge. They're the ones who went onto the reserve to enforce the law; that's why they were there. If the department had been backing them up, it would have encouraged them to lay the charges. It's not the job of the RCMP to come on after and treat as equals the fisheries officers and this individual who threatened them.

In fact, the fisheries officers were there enforcing the law with the full authority of the crown, and the RCMP showed up and started to negotiate. That is demeaning in itself to the fisheries officers, and I think the department in actual fact brokered a deal with the band to get its fisheries vehicle back, and public notice was given that these fisheries officers were actually sent home without pay. It only came out later that no, that wasn't the case, but that's the kind of bartering that was done with the band to ensure that the law was enforced.

The Chair: Mr. Cummins, with due respect, first of all--and I'm not a practising criminal lawyer--there is a difference between charges under the Fisheries Act and allegations of assault, which would come under the Criminal Code and would be investigated by the RCMP. We all know that for one reason or another crown attorneys in all provinces every day make decisions not to prosecute people who have been caught red-handed. It happens daily.

I'm not disputing your point, your outrage, or whatever it is, nor am I a defence lawyer for the DFO. But I do want to say that if the issue was pushing, shoving, stealing a vehicle, or preventing the vehicle from being driven, those could be Criminal Code offences that clearly would be investigated by the RCMP, not by the fisheries officers. If there were violations of the Fisheries Act, I would agree with you: those charges should have been laid by DFO and the officers should have been backed up.

Â (1215)

Mr. John Cummins: That's right, and they weren't; that's my point.

The Chair: The actual physical confrontation between the individuals--

Mr. John Cummins: That's another issue.

The Chair: --would have been a Criminal Code matter.

Mr. John Cummins: That's right, and my point is that these fisheries officers went on that land to do their job and weren't backed up by the department.

Mr. Chairman, there is a double standard in treatment here, and this is my point. As an example, on a commercial fishery in the last couple of years, an individual I know who'd never had a fisheries violation could not get his net aboard because it was loaded with fish. He should have done the best he could to pull it aboard whatever way he could, but he was unable to do so and he was charged because the fishery had closed. He was charged. He was trying to bring the net in, in full view of everyone, and they charged him. They took him to court.

That's the way it's treated. If there's a fishery and it closes at 8 o'clock and I don't have my net out of the water at 8 o'clock precisely, I'm charged. There is no discussion about those issues within the commercial fleet, but there is this double standard here, and that's why there's a problem; it's because there's a double standard. The native bands like the Cheam know the law is not going to be enforced; other bands know the law isn't being enforced against the Cheam and they're going to push as well, so you just create an escalating problem. That's the issue here.

The Chair: I think you've identified it from your point of view. Thank you.

Mr. Provenzano, do you have any questions?

Mr. Carmen Provenzano: Yes, I do.

The Chair: Please.

Mr. Carmen Provenzano: The jurisdictional aspects are very intriguing, and I suppose with respect to in-river fisheries, the Fraser River included, the complexities that we earlier referred to are manifest there as well, or particularly so.

We have shared jurisdiction between the province and the federal government. I'm not asking you to take us all back to school, but is there some thumbnail sketch that you can give the committee so that we can understand the nature and scope of that shared jurisdiction in terms of enforcement, protection policies, and so on? What's the interplay?

I know there's cooperation. Are there areas where there isn't cooperation? Are there areas where there's conflict?

Mr. David Bevan: Under the Constitution, the federal government is responsible for all the management of the habitat of fish and fisheries management. That has been delegated to a number of different jurisdictions.

Ontario, Manitoba, Saskatchewan, and Alberta are all delegated the authority to manage fisheries in their jurisdictions, as is Quebec, which has jurisdiction over salmon and all the freshwater fisheries.

It's not that way in Newfoundland, Nova Scotia, New Brunswick, and P.E.I. We have not delegated.

In B.C. it's a mixed bag. We have jurisdiction over salmon management, right to the spawning grounds. The province has jurisdiction over other freshwater fisheries and steelhead. That's how it was arranged, to manage the fishery. So the federal government has the responsibility for management of all aspects of the habitat and the salmon in the Fraser River watershed.

With respect to the law, we have the obligation and responsibility to enforce the Fisheries Act. The fisheries officers are peace officers with respect to the Fisheries Act. They are not peace officers with respect to the Criminal Code. That's why if there's an assault or whatever it's not something that is prosecuted under the Fisheries Act by fisheries officers. It would be referred to the RCMP under the Criminal Code and tried in a provincial court.

Mr. Carmen Provenzano: Are the lines clear as to who moves over when you have an enforcement situation? Is the protocol well established?

Mr. David Bevan: Yes.

There has been a good relationship between fisheries officers and the RCMP in British Columbia. There's a very clear understanding of who does what in terms of response to illegal activities and who would be responsible for investigation.

A number of times in the past there have been joint patrols both in terms of doing fisheries work....and not necessarily in British Columbia, but there have been times when fisheries officers have been asked by the RCMP to help out in some particular issues in certain parts of Atlantic Canada as a result of the Marshall decision, where fisheries officers aided the RCMP in controlling crowds. But they have to do that only at the request of the RCMP. They cannot do that on their own initiative. It has to be under the supervision of the RCMP if they're going to take a role outside of the enforcement of the Fisheries Act.

Â (1220)

Mr. Carmen Provenzano: As an unrelated question, one of the recommendations of the committee in the report that's being discussed was that the department make an annual report to Parliament respecting the Fraser River. The minister's answer was that...I forget the number, but over 100 different rivers were under the administration of DFO, and that to single out one specific river for an annual report wasn't feasible and just wasn't right, I guess.

But the Fraser River, perhaps you would agree, has some unique complexities. Is there something in between an annual report and no report at all that can be done so that Parliament can be informed on the important issues that relate to that fishery?

Mr. David Bevan: I think we have an obligation, obviously, to be transparent on how we're managing all of them. There are 175 or so fisheries in the country.

This is an important one in terms of public awareness and interest. We do have an obligation to make it public in such a way that it's available to all Canadians, as well as Parliament. It was our intention, in that particular response, to say we will be doing the post-season reviews and will provide them to the public, so everybody can see what is being done in terms of the performance measurement around the fisheries.

Mr. Carmen Provenzano: Some of the difficulties, apparently, seem to flow from the quality of information and the timing of that information. This committee has expressed an intense interest in what happens in the fisheries. Is there room for improvement? Can we address it?

Mr. David Bevan: There's room not only in this fishery, but there's room for improvement in many fisheries. We have a few, but unfortunately too few. There are important fisheries where we have extremely good information, real-time information coming in from the fleets, etc., and we have very good knowledge of what's going on. The larger the number of participants, the more the participants are divided into different fleets or communities, and the more marginal their earnings are, relevant to costs, the more difficult it becomes.

We have that not only in the Fraser River but in other areas. It is a real challenge to get good information, in real time or near real time, so that we can manage it. We had to make changes to a number of fisheries in British Columbia, such as the herring fishery, where we now have a better handle on it and don't see the overruns on quota that existed in the past. In this particular fishery, again, it's not only what happens in the river above Mission, it's what happens in the entire fishery that targets Fraser River salmon. We need to make further improvements.

Mr. Carmen Provenzano: There's an obvious tone expressed of mistrust of some of the information coming out of the department. Can we address that? Obviously, you're interested in doing your job, but the information provided isn't necessarily trusted to be accurate. How do we get over that hurdle?

Â (1225)

Mr. David Bevan: Again, it's a specific challenge that comes at us. In the fisheries where we have a number of participants, those are the good examples of the Fraser River fisheries. We also have fleets from different provinces prosecuting the same stocks, where you have in-shore, mid-shore, and those kinds of things. The only way you can get trust, with respect to the information, is to have the best quality information possible and to be able to demonstrate that it is accurate time and again.

That's not where we are at this point on the Fraser River. People are very attentive to minor amounts. You can have a small quota overrun by two or three times and it will be viewed as the demonstration that everything is out of control. It's not necessarily the case, but those issues are so closely monitored by stakeholders that unless we can improve our performance so we don't have any of those issues happening, we end up with a problem.

It's the challenge we are continuing to face. I think it's time to look at this whole thing in a more comprehensive way. That's what the joint task force is hopefully going to help provide guidance on.

If I can add, it's not only the information, but the challenge we have is that there are so many participants, so much intense fishing for the openings that happen, and so much concern. If you're on the beach and somebody else isn't, it causes great concern and people monitor what's happening at those openings. It's the kind of thing that has led to this mistrust.

We have to reconsider how we go about business with the stakeholders to see if we can rethink how the fisheries are managed. They can't sustain themselves, given the number of participants and the available harvest, etc. There's going to have to be a real look at how the fisheries are managed.

That was the role of the joint task force. It's not only what happens after treaties, but it's with us now.

The Chair: Needless to say, we're in fact getting some sort of report right now about the Fraser River. Certainly, the committee can very easily, on an annual basis if it so wishes, bring the officials back and get a further update, whether they want to give us an actual annual report or not. That's entirely up to the committee and any future committees. It's certainly possible. So theoretically we can get a report whether we get a report or not, if you know what I mean.

We'll go to Mr. Cummins again and then to Mr. Stoffer.

Mr. John Cummins: Thank you, Mr. Chairman.

I'm going to step away in a sense from the enforcement issues for a minute. Mr. Bevan talked about mistrust. I have to comment that there is mistrust of the department in British Columbia, and a large part of that is due to the double standard when it comes to enforcement. I think that's a key issue, and it shouldn't be underestimated, Mr. Chairman.

I want to go to recommendation 4, which says:

The Committee recommends that DFO establish realistic Aboriginal food fisheries and that the Department follow through on the commitment of the previous Minister to the Standing Committee on Fisheries and Oceans to ensure that food fishery access is not abused.

The government response is:

DFO implemented the Aboriginal Fisheries Strategy to facilitate the management of fisheries in a manner that is consistent with the 1990 Supreme Court of Canada Sparrow decision. The development of annual salmon harvest targets for First Nations is complex and there is no prescriptive formula. DFO provides food, social and ceremonial access to Aboriginal groups.

It goes on to say that they enter into negotiations to establish appropriate catch levels.

Mr. Chairman, let's have a look at that. I've observed this nonsense over the years. Basically, the department uses this food fishery allocation as an excuse for not enforcing the law. This past year, the Tsawwassen Indian Band harvested 37,000 salmon. That works out to over 1,000 pounds for every man, woman, and child on the reserve. That's under the food fishing allocations. How can these fellows from the department sit here and tell us they have the food fishery under control when those numbers are there? They're their numbers. I can't imagine anybody eating over 1,000 pounds.

Â (1230)

The Chair: Let's take it one step at a time.

Mr. Bevan, is what Mr. Cummins said true, that it's over 1,000 pounds of salmon per year for each man, woman, and child in the Tsawwassen Band?

Mr. David Bevan: I'm going to have to ask the region to confirm that.

We do have, shall we say, generous amounts for food, social, and ceremonial purposes. It is not just for dinner every night. There are also ceremonial and social issues, which make it much more complex. How much is enough for food is a question we've been wrestling with. When we get advice on how to handle this issue, we also have to consider the social and ceremonial aspects of these allocations, and that does make it complex. As suggested by the Supreme Court, it's something we should be negotiating, and we have been over the years. On the specific question on the actual allocation per capita, I don't have that number, but I believe it is quite generous.

I'll turn it over to the region.

The Chair: Mr. Radford, do you know the answer? Is the figure Mr. Cummins threw out accurate?

Mr. Don Radford: I believe the catch number is accurate. I'm not familiar with the total population of the Tsawwassen First Nation. I don't have any reason to dispute that number either.

The Chair: How was it arrived at?

Mr. Don Radford: How was what arrived at?

The Chair: The amount that was allowed for food, social, and ceremonial purposes. How would that decision have been made by the department? Walk us through how the department comes up with what they consider to be a reasonable allocation for food, social, and ceremonial purposes, using the Tsawwassen Band and the 1,000 pounds per person as an example of how you came up with that figure for that band. Can you do that?

Mr. Don Radford: First of all, we don't consider the per capita number in negotiating food, social, and ceremonial fisheries allocations with first nations.

The Chair: Why?

Mr. Don Radford: We use historical catch information and we negotiate based on the needs the band identifies to us, together with the historical performance and the anticipated run size. So it's a negotiation process with those three key elements involved, and it's not the department's place, in my understanding, to dictate our values and our interpretation of what's acceptable, a specific number of fish for food. We have to consider the societal and ceremonial elements of the fishery as well.

The Chair: Yes, I understand that as a bureaucratic answer, but a decision has to be made. You said you look at the historical references. Are you talking about long-time historical references, which I would presume would show that a band over a historical period has taken 37,000 pounds or...what was it?

Mr. John Cummins: It was 37,000 fish. I'm just concluding that they're sockeye. They could be spring salmon, which are 30-pounders, so the number would even be higher.

The Chair: Well, 37,000 fish...are you saying the Department of Fisheries and Oceans has the historical evidence that the Tsawwassen Band has taken 37,000 fish yearly over a historical period?

Mr. Don Radford: For the period of the aboriginal fisheries program during which we've been negotiating these agreements, yes.

The Chair: Yes, but history and historical period don't refer to three, four, five years.

Mr. Don Radford: Well, the aboriginal fisheries program has been around for over 10 years.

Â (1235)

The Chair: Okay, but the aboriginals have been around for 10,000 years. What's their historical fish take, salmon take per year?

Mr. Don Radford: I don't have that information at my fingertips. I'm sorry.

The Chair: All right. But presumably that is one of the pieces of information that you would look at when allocating the reasonable allocation of salmon for food, social, and ceremonial purposes--not what a band wanted for the last decade, but what a band has used for the last hundred or two hundred years. That's what historical evidence indicates to me.

Wouldn't you agree?

Mr. Don Radford: I don't think our historical records go back a hundred years, certainly not two hundred years, but that's part of a complex formula that we use in the negotiation process to arrive at an agreed upon number.

The Chair: All right.

Mr. Cummins.

Mr. John Cummins: The issue here, I guess, is that if you say you don't take into consideration per capita data, you're talking abut historical catch info, which is not really historical, it's just the catch over the last 10 years, some of which is commercial, and the anticipated run size.... I guess if the run size goes up, folks eat more.

The issue here really is that this fish that's caught for food, social, and ceremonial purposes is not to be sold, but it's being caught in quantities that make it obvious that it is being sold.

So is the department then not complicit in or at least aiding and abetting illegal activities?

The Chair: Mr. Bevan.

Mr. David Bevan: Clearly, we've laid charges against people for selling fish when they're not supposed to. I think it was difficult for us, as noted by Mr. Radford, to dictate what is needed for ceremonial and social purposes. As you're aware, there are festivals, etc., ceremonies around the arrival of the salmon, and we were unable under the interpretation we have of the Sparrow decision and other case law to dictate what was needed. We had to negotiate what was needed, and the result has been evidenced since the start of the AFS program.

The Chair: Mr. Bevan, in an earlier answer to me, you said, and eloquently so, that the minister can do anything he wants under section 7. You quoted the section.

Mr. David Bevan: That was relevant to the pilot sales. That's a commercial fishery. This is a response to a Supreme Court decision. Yes, he can allocate what he wants to. But in this case it's supposed to be for food, social, and ceremonial, which has a specific priority under the law, after conservation.

So the minister has that authority under the Fisheries Act, but he is obviously guided by other law as well--and case law.

The Chair: Thank you. I understand that.

Now, what happens to a salmon in social and ceremonial purposes—other than being eaten?

Mr. David Bevan: It's going to be eaten, but not necessarily by the band members.

The Chair: So is there a big hootenanny and the entire village is called in?

Mr. David Bevan: I think that would be a rather disrespectful way to put it, but there would be potlatches and other kinds of ceremonies possibly.

The Chair: For who? For Vancouver, or for the band itself, or other bands?

Mr. David Bevan: Whenever the bands wish to celebrate the arrival of the salmon, or whatever the occasion is, it's whoever they wish to invite. It's not our case to say that only certain people can be invited by a band to celebrate, or for ceremonial purposes.

The Chair: But it is your case.

And there's no disrespect meant here. I don't know the terminology, but you do.

But it is your job to determine whether or not the alleged social and ceremonial purposes to which the salmon is to be put have an historical basis beyond a decade.

Mr. David Bevan: I think it's our responsibility to make sure they're not sold; that's our obligation, and we have to put in place the measures and the monitoring to discourage that practice. That's what we have to do.

And in the negotiations, we hear from them what their needs are, and we are obliged to negotiate with them to satisfy their needs in as reasonable a limit as we can possibly come up with.

But we don't do a per capita consumption limit, because that means it's for food and not for social and ceremonial use. How we define social and ceremonial in another culture is something we've done through the negotiation process.

Â (1240)

The Chair: I understand that. But surely you could agree that you could do a per capita count to determine a reasonable food portion, and then you would negotiate, along with that per capita amount, the social and ceremonial on top of that.

Mr. David Bevan: Obviously, that is a method we haven't followed, because for food, social, and ceremonial, it's all the same in terms of priority access, and we just looked at it as one allocation.

So it does lead to the kinds of arithmetic that can be done. It's 1,000 pounds, or whatever, per man, woman, and child, but that's not taking into consideration any other ceremonies—

The Chair: Yes, we understand that.

So there are ways of looking at this beyond the ways the department is currently looking at them.

Mr. David Bevan: Yes.

Having said that, it does create a continuous issue in terms of making sure we have the enforcement on the sale issue. That is not something that's specific to the Fraser River, but it's an issue that we encounter in all of these allocations.

The Chair: Yes, thank you. I appreciate the answer.

Mr. Stoffer.

Mr. John Cummins: Just quickly on that, Mr. Chairman, if Mr. Stoffer wouldn't mind, but I think it's relevant.

What Mr. Bevan seems to be suggesting is that there is no internal limitation on what's needed for food. That's entirely contrary to what the Supreme Court has found. In Gladstone the court noted—and in Sparrow—that with fish for food, social, and ceremonial purposes, there was an internal limitation. It suggested that in a commercial fishery there is no limitation, that the desire for fish is unquenchable in a commercial situation. But with fish for food, social, and ceremonial purposes, the Supreme Court of Canada has itself acknowledged that an internal limitation exists.

What you're telling us, Mr. Bevan, is that in the eyes of the department there is no internal limitation.

Mr. David Bevan: I don't think it's quite fair to characterize it that way. There's an historical, ceremonial attachment of the first nations people to salmon. Presumably, that doesn't have an open end to it; it doesn't involve putting the product on an open global market, which has an appetite that can consume any amount of resources. It has a link to a ceremonial past and present, which the first nations have and which is relevant to the salmon. That would create, one presumes, a limit, not necessarily one restricted to the size of the population of the band, but one that is limited by the ceremonial needs of the band.

The Chair: Thank you, Mr. Cummins.

Thank you, Mr. Bevan.

I've been very lenient. We've departed from my strictness, and I apologize for that, so I'll be very lenient with you, too, Mr. Stoffer.

Go ahead.

Mr. Peter Stoffer: Sir, when a Mr. Kapp and another person were charged with unlawfully fishing for salmon on approximately August 20, 1998, who would have brought forward those charges?

Mr. David Bevan: It would have been fisheries officers.

Mr. Peter Stoffer: So it would have been on behalf of DFO that this person would have been charged.

Mr. David Bevan: Yes, it would be the fisheries officer acting as an agent of the department, enforcing the Fisheries Act.

Mr. Peter Stoffer: Very good. So this person, this officer, in his decision, assumed there was an unlawful act and charged the person, and the person went to court.

Mr. David Bevan: Not quite that. What the fisheries officer does is observe the violation and gather the evidence. The evidence is then provided to the Department of Justice in terms of deciding whether or not to proceed with charges.

Mr. Peter Stoffer: Okay, so then it goes to court, the judge makes a decision, and the federal government appeals. Which branch of the federal government would have appealed?

Mr. David Bevan: That would be a decision made by the Department of Justice or by the Minister of Justice.

Mr. Peter Stoffer: So in essence the federal government charges and then the federal government appeals.

Mr. David Bevan: That's correct.

By the way, the defendant can do the same thing, if charged. Or if somebody is making a civil suit, there are appeals, obviously.

Mr. Peter Stoffer: I'm not a lawyer by any means. I look at this in an objective manner, as a layperson looking at this. The federal government, though its agency, takes an individual to court because of unlawful fishing, or alleged unlawful fishing. The person is found guilty, and then the same government ends up appealing that decision.

Â (1245)

The Chair: No, that's if a person were found innocent. If the person were found guilty, then there would be nothing for the federal government to appeal, because that's the result they wanted. If the person is found not guilty because the judge found that the pilot sales project was unconstitutional, then the federal government would appeal, saying the judge's reason for acquitting the person was incorrect in law.

Was that about it, Mr. Bevan?

Mr. Peter Stoffer: In this case, did the judge find Mr. Kapp guilty?

The Chair: No, he was acquitted, because I believe--and Mr. Cummins and Mr. Bevan can let me know if I'm wrong--the pilot sales project was unconstitutional in the opinion of the provincial court judge. So the legal issue on appeal is whether or not the judge was correct in finding that the pilot sales project was unconstitutional.

Am I more or less correct? Jump in if I'm wrong.

Mr. David Bevan: I'm really not sure of the exact reason for the appeal. It could have been that they would appeal based on the fact that Mr. Kapp was accused of illegally fishing, and that may be the issue, but I'm not sure whether it's a pilot sales question or whether it's the illegal fishing.

The Chair: But in any event, if Mr. Kapp had been convicted, there would be no purpose in the crown appealing what it wanted, which was a conviction.

Mr. Peter Stoffer: In 2002 there was a protest fishery done by commercial fishermen and aboriginal fishermen near the Adams River, and the government at the time shut them down. They said it was illegal, and they were all charged. The case went to court and the judge threw it out--from my understanding, because of a double standard of enforcement.

Correct me if I'm wrong, but has the government appealed that judge's decision, and is that still pending before the courts?

Mr. David Bevan: I'm going to have to see if the region knows anything about that specific situation.

The Chair: Mr. Radford, do you know anything about that?

Mr. Don Radford: I'm not familiar with any fishing or any protest fishery near the Adams River. The Adams River is in the interior of British Columbia.

Mr. Peter Stoffer: This was in August 2002.

The Chair: Does that ring a bell--Johnstone Strait?

Mr. Don Radford: In Johnstone Strait, indeed there was a protest fishery. That's quite removed from the Adams River, unfortunately.

The Chair: Mr. Stoffer might have been wrong on the geography, but--

Mr. Don Radford: I'm sorry, I understand the situation. Now what was the question again, please?

The Chair: Mr. Stoffer.

Mr. Peter Stoffer: The government or the department charged them, they've gone to court, and the judge threw the case out of court and acquitted all of them, I assume on the basis of some sort of a double standard on enforcement policy. I'm just assuming that.

But has the government appealed that decision, and if they have, is that decision still pending before the courts?

Mr. Don Radford: I don't know the answer to that question. I'd have to refer that to my colleagues at the Department of Justice.

The Chair: Maybe you could find that out for us in due course and send us an answer.

Mr. Don Radford: Absolutely.

The Chair: Mr. Cummins, I'm so sorry, but I notice that we have only 11 minutes, and all of a sudden Mr. Hearn's and Mr. Burton's hands went up. I promised Mr. Stoffer some latitude, so I'm going to have to let the department get back to us on it and carry on with Mr. Stoffer. Then we'll go to these two and that will be the end of it.

Mr. Stoffer.

Mr. Peter Stoffer: Mr. Chairman and the gentlemen who are here, I guess the problem I'm having is with the rules of enforcement. When somebody commits an illegal fishing activity, I suspect they would be charged if it is correct that indeed their actions are illegal, and under the proper rules—every case has its merits—it goes to court and the judge does whatever.

On the east coast we had four or five fishermen, hook and line guys, the Southwest Nova Fishermen's Rights Association, represented by Don Grady. These are four or five guys who went out with a hook and line to fish. It was a protest fishery. They came back, and, Mr. Chairman, the law of the land was heavy. It went hard after these guys, and these guys don't have anything, just the shirts on their backs. That's basically it. The government went hard after them, in their words, to prove a point.

Yet with what we just heard today, there are some aboriginal people who were illegally fishing. It's noted that the activity was illegal and we get the word that they want to work with them.

I guess my point is, Mr. Bevan, and the chairman said it as well—I don't really have a question—if you're going to enforce the law, the law must, in my opinion, be enforced equally among everyone. If you're upset or worried that a particular band may rise up in protest and get very angry and make threats against you, that would be no different from, say, a bunch of non-aboriginal fishermen doing the same thing.

If the government is going to enforce fisheries regulations on one group of people, my point, quite simply, is that you enforce those same regulations or rules on everybody regardless of their activity. If it's illegal, it's illegal. It doesn't matter who does that illegal act. That's my point.

Â (1250)

The Chair: You've made your point. We don't have to have Mr. Bevan agree or disagree, and if he wants to make a comment, please; if not, we can move on.

Mr. David Bevan: No, I think my previous comments reflect my response to that.

The Chair: Yes, and I think it is the unanimous belief of the committee, for your information, that the laws of Canada should apply equally to all and should be enforced equally to all.

Mr. Hearn.

Mr. Loyola Hearn (St. John's West, CPC): Thank you, Mr. Chair.

I'll be very brief. I think the last statement sums it up. We're all supposed to be equal under the eyes of the law, but we also understand that certain groups in the country have treaties and so on that predate many of our laws. Maybe it's time the whole thing was looked at, because we're getting into more and more trouble on these issues.

I want to come back to guardians. We talked about fisheries officers and guardians, and I'm well aware of the difference in definition. However, I presume the fisheries officers are direct employees of the department. But are the guardians employed directly by the department, or do you contract out for the services?

Mr. David Bevan: I think the use of the term “guardian” is not always consistent across the country. As you're aware, in Newfoundland there are contracted-out guardians who do enforcement actions on the inland rivers.

The aboriginal guardians that we're talking about are employees of bands as a result of agreements between the federal government and the community. They don't do the same kind of work that is done by the guardians supplied by contractors to do work—

Mr. Loyola Hearn: Similar to the fisheries officers.

Mr. David Bevan: That's correct. So it's a totally different circumstance.

Mr. Loyola Hearn: You don't have a contracting-out program as such. Your fisheries officers are direct employees of the department.

Mr. David Bevan: That's correct.

Mr. Loyola Hearn: All right.

With the funding you've received for protection, have you also seen a reduction or is it remaining fairly constant? On the east coast we have certainly seen a reduction in funding for protection, whether it be fisheries officers or guardians.

Mr. David Bevan: For guardians, we've had reasonably constant funding, if I can put it that way. It's somewhat complex, because we have more people now in the central part of the country than we had before. The total number of fisheries officers in the country is higher than it once was—in the vicinity of almost 700. But it goes up and down, depending on attrition rates and recruitment, etc.

We're looking at the overall best way to get compliance in Canada. We need to have fisheries officers to deal with flat-out illegal activity. It's unfortunate Mr. Stoffer's not here, but we are trying to work with fleets, with communities, etc., to find a better way to get compliance without having the need to have regular reactive enforcement.

How do we work with these organizations, groups of people, to get them more lined up to have the processes so that they can make sure their members are in compliance? We'd like to have the roles of fisheries officers reviewed in terms of possible changes to the way we manage the fishery, looking at their obligations under the habitat provisions and a whole series of other means by which we can get better compliance within the limited resources we have.

In terms of aboriginal guardians, it's not at all similar to that which you're familiar with.

Mr. Loyola Hearn: Mr. Chair, I have just a brief comment and one last question.

Back home, again, there is a major effort to try to get general community buy-in. People were seeing the resource destroyed through poaching in particular, but there's some difference when we talk about the Trepassey River or the Gander River or the Fraser River. It's not apples and apples. But community buy-in and support and people keeping their eyes open and pressing for charges certainly, I think, is important.

The question I want to ask is when we had Mr. Adams and Mr. Da Pont and Ms. Watson-Wright last week, I asked a question that's not directly connected to this, but certainly is indirectly because of the effect on overall fishers. That was about the older worker retirement plan. They said they couldn't answer the question because you weren't here. Is there any talk or thought within the department of developing a plan for older workers, many of whom were bypassed in the original buyout because of the specific rules? We had people who worked only a few years who were old enough to receive benefits, as you know, and others who worked a lifetime and missed it by weeks and got nothing. There are many more in the field right now with declining resources—people who are probably between 55 and 65 who would like some way out of the workforce to open it up for some young people so we'd have a continuous supply of labour down the road. These people are really in limbo. Is there any discussion taking place to assist them?

Â (1255)

The Chair: That's totally and completely unrelated to what we're talking about.

Mr. Loyola Hearn: Some of them will be involved, and because it was deferred to Mr. Bevan last week and he's here, I'd just like to--

The Chair: I'll ask Mr. Bevan if he can answer quickly.

Mr. David Bevan: With respect to the licence holders—I can't talk about what might be going on with respect to employees of plants—clearly fishermen as a group are getting older. We have a big issue with intergenerational transfer of licences—licences are not property in any way so how do you get collateral for them, etc. That's an issue that has been subject to discussion in terms of the AFPR and now the policy framework in the Atlantic. It is something that is probably going to be dealt with in terms of the Pacific through the joint task force report. There are going to be some suggestions perhaps on how that might happen, but there won't be, I don't think, federal government buyouts. At least I have no indication at this point of any programs in the wings.

The Chair: Thank you so much, Mr. Bevan.

We have two quick questions from Mr. Cummins.

We are rapidly running out of time, Mr. Cummins.

Mr. John Cummins: Mr. Chairman, in the government's response they suggest that the integration of the pilot sales into the commercial fishery isn't acceptable to first nations because they view it as a traditional fishery and claim it as an aboriginal right. The Supreme Court of Canada in Vanderpeet and in NTC Smokehouse, in particular, rejected the notion of an aboriginal right to a commercial fishery in the salmon area and the very areas we discussed, so it would seem to me that the department, in this issue, is all about creating an aboriginal right, not recognizing one.

The second point I want to make is that Kapp struck down racial preferences in the commercial fishery. The government claims it's in compliance with Kapp because it has shut down pilot sales, yet it's working to re-establish pilot sales under different names—issuing licences for scientific and experimental purposes, ESSR, and so on. I suggest, Mr. Bevan, that you're bringing the department into disrepute. I do not think it appropriate for the department to be seen trying to circumvent the rule of law while the decision is under appeal.

I have those two comments, Mr. Bevan.

The Chair: Mr. Bevan, I will give you the last word.

Mr. David Bevan: I think it's important to recognize that the Supreme Court has made more than one decision, not just the NTC Smokehouse one, etc., but also Gladstone and others where it is recognizing commercial rights in other fisheries, so there has been—

Mr. John Cummins: I'm talking about the pilot sales and those referred to these fisheries. There is no right.

Mr. David Bevan: In terms of the Supreme Court of Canada, it made it clear it was going to be a case-by-case evaluation of the—

Mr. John Cummins: And you're in violation of the issue on this.

The Chair: Mr. Cummins, you've made your points. They're clear. Let Mr. Bevan answer and then we can adjourn.

Mr. David Bevan: There's a case-by-case evaluation of it. I think one set of decisions should not be extrapolated to every one where there have not been tests.

Mr. John Cummins: You're the guy doing that.

Mr. David Bevan: The other issue is it's pretty clear what the policy of the federal government is relevant to first nations and relevant to trying to improve their economic situation. That is clear.

We also retired licences, as you recall, from 1992 in terms of the original pilot sales. We don't want to lose that investment. That was several millions of dollars in licence retirements.

Mr. John Cummins: Representing about 1% of the fishery.

Mr. David Bevan: And the pilot sales are also fairly small--

The Chair: John, don't interrupt him.

Mr. David Bevan: --throughout their inception.

So those are issues that are at play in this policy decision. I don't think you can limit the federal government's reaction just to the most narrow interpretation of a case or several cases. You have to look at it in terms of a broader policy. The federal government has made it pretty clear that it wants to have a relationship that's different with the aboriginal communities and first nations, and this is a manifestation of it.

We are looking at a way to have a fishery for first nations that is of a commercial nature. We are looking at that in terms of there being treaties, that there are going to be fish involved in those treaties, and we are going to have to look at how to make that transformation in a way that's fair to all the players.

· (1300)

The Chair: Thank you, Mr. Bevan.

I want to thank Mr. Bevan, Mr. Stanfield, Mr. Radford, and Mr. Ryall for answering our questions and for being here today. Obviously, this is not the end of the issue.

Mr. Bevan, of course, we realize that the matter is very complex, and I think you're absolutely right. We realize what the federal government policy is. On many issues we'll have to agree to disagree, but at least you have some idea of where we're coming from--and the committee is not going away. So we wish you well in the continued negotiations and in the continued equal and unbiased enforcement of the Fisheries Act.

I want to make it crystal clear to anybody who's listening that at no time in the choice of any words that I use at any of these hearings do I intend any disrespect to anybody.

Thank you very much.

I adjourn the meeting.