TERMS OF REFERENCE

1)         Minutes of Proceedings, April 28, 2001 (No. 8)

It was agreed — That the Committee hear witnesses on the problems of the Fraser River — Adams River sockeye salmon at a date to be determined.

2)         Minutes of Proceedings, May 3, 2001 (No. 10)

Pursuant to Standing Order 108(2), the Committee proceeded to review the problems of the Adams River sockeye salmon.

3)         Minutes of Proceedings, September 25, 2001 (No. 20)

Second Report of the Subcommittee on Agenda and Procedure:

That the Committee hear departmental officials on the Fraser River salmon fishery on October 18, 2001.

4)         Minutes of Proceedings, January 31, 2002 (No. 36)

Third Report of the Subcommittee on Agenda and Procedure:

That the Committee hear witnesses from the Department of Fisheries and Oceans (DFO) and other stakeholders on the management of the Fraser River fisheries on February 5, 2002.

INTRODUCTION

Despite substantial runs of several species of salmon on the Fraser River, the B.C. commercial salmon fishing fleet was effectively shut out of the fishery in the 2001 fishing season. Some fleet sectors had minimal openings while others did not fish at all. In fact, over the period 1998-2001, the commercial fishery has been virtually shut down.

The impact on the lives of the fishermen and other workers who depend on the commercial fishery has been devastating. At the request of concerned fishermen the Standing Committee on Fisheries and Oceans has conducted a study to determine why this happened and what might be done to prevent such failures from recurring in the future.

The Committee met with representatives of the fishing industry over two separate days of hearings, the first in the fall of 2001 in Steveston, B.C. and the second in the spring of 2002 in Richmond, B.C. It also held a hearing with Department of Fisheries and Oceans (DFO) officials and a separate hearing with representatives of the B.C. Aboriginal Fisheries Commission, both by teleconference from Ottawa.

To appreciate the present day context in which the Fraser River salmon fishery operates, it is helpful to have an understanding of the evolution of DFO policies implemented over the last decade beginning in 1992 with the Aboriginal Fisheries Strategy (AFS), which came about as result of the Supreme Court of Canada Sparrow decision. Many of the witnesses who appeared before the Committee believe that the AFS played a large part in the inability of commercial fishermen to fish in 2001 and has contributed to the declining financial viability of the commercial fishery since 1992 when it was introduced. The Committee believes it would require more extensive hearings into this issue in order to determine the true impact of the AFS.

THE 1990 SPARROW DECISION

In 1990, the Supreme Court of Canada ruled in the case of Regina v. Sparrow that a lower Fraser River Band, the Musqueam, enjoyed an Aboriginal right to fish for salmon for food, social and ceremonial purposes.¹ The anthropological evidence relied on to establish the existence of the right suggested that, for the Musqueam, fishing for salmon had always constituted an integral part of their distinctive culture. Later, the Supreme Court of Canada, in the Van der Peet decision, clarified that participation in the salmon fishery was an Aboriginal right because it was an “integral part” of the “distinctive culture” of the Musqueam.²

The Supreme Court in Sparrow also found that the right to fish for salmon for food was second in priority only to conservation requirements.

In reaching its decision, however, the Supreme Court declined to consider whether there was also an Aboriginal right to fish for commercial purposes.

ABORIGINAL RIGHT TO FISH COMMERCIALLY

In June 1993, the B.C. Court of Appeal considered the issue of an Aboriginal right to sell salmon in R. v. Van der Peet and R. v. N.T.C. Smokehouse Ltd. The Court also considered the Aboriginal right to sell herring spawn on kelp in R. v. Gladstone. In each case, a majority of the Court ruled that the Aboriginal right did not include the right to sell. These cases were subsequently appealed to the Supreme Court of Canada, which considered them together to examine the question of a constitutionally protected Aboriginal right to sell.³, ⁴, ⁵

In the cases of Van der Peet and N.T.C. Smokehouse, a majority of the Court held that neither the Sto:lo, a lower Fraser River band, nor the Shesaht and Opetchesaht bands, Port Alberni bands, had an Aboriginal right to the sale of salmon.

In Van der Peet, the Court addressed the question of how Aboriginal rights should be defined as well as the purposes behind section 35 of the Constitution Act, 1982, recognizing and affirming those rights. The Court ruled that existing Aboriginal rights entitled to constitutional protection are practices, customs or traditions that were integral to the distinctive culture of the Aboriginal group claiming the right prior to contact with Europeans. The Court also held that Aboriginal rights are not universal in nature but are, rather, specific to individual Aboriginal communities. That is to say, their scope and content must be determined on a case-by-case basis.

In Van der Peet, the Court noted that “Claims to Aboriginal rights must be adjudicated on a specific rather than general basis”:

Courts considering a claim to the existence of an Aboriginal right must focus specifically on the practices, customs and traditions of the particular Aboriginal group claiming the right. In the case of Kruger, supra, this Court rejected the notion that claims to Aboriginal rights could be determined on a general basis. This position is correct; the existence of an Aboriginal right will depend entirely on the practices, customs and traditions of the particular Aboriginal community claiming the right. As has already been suggested, Aboriginal rights are constitutional rights, but that does not negate the central fact that the interests Aboriginal rights are intended to protect relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal; their scope and content must be determined on a case-by-case basis. The fact that one group of Aboriginal people has an Aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another Aboriginal community has the same Aboriginal right. The existence of the right will be specific to each Aboriginal community.⁶

In Gladstone, however, the Court allowed the appeal. The Court found that a commercial trade in herring spawn on kelp had been an integral part of the distinctive culture of the Heiltsuk prior to European contact.

In Gladstone, the Court noted two significant differences between the exercise of the Aboriginal right to fish for food, social and ceremonial purposes identified in Sparrow and the Aboriginal right to sell herring spawn on kelp commercially.  First, the Court noted that the right identified in Sparrow had an internal limitation and the right identified in Gladstone did not, and discussed the implications of this difference:

First, the right recognized and affirmed in this case — to sell herring spawn on kelp commercially — differs significantly from the right recognized and affirmed in Sparrow — the right to fish for food, social and ceremonial purposes. That difference lies in the fact that the right at issue in Sparrow has an inherent limitation which the right recognized and affirmed in this appeal lacks. The food, social and ceremonial needs for fish of any given band of Aboriginal people are internally limited — at a certain point the band will have sufficient fish to meet these needs. The commercial sale of the herring spawn on kelp, on the other hand, has no such internal limitation; the only limits on the Heiltsuk's need for herring spawn on kelp for commercial sale are the external constraints of the demand of the market and the availability of the resource.⁷ 

The significance of this difference for the Sparrow test relates to the position taken in that case that, subject to the limits of conservation, Aboriginal rights holders must be given priority in the fishery. In a situation where the Aboriginal right is internally limited, so that it is clear when that right has been satisfied and other users can be allowed to participate in the fishery, the notion of priority, as articulated in Sparrow, makes sense.⁸

Where the Aboriginal right has no internal limitation, however, what is described in Sparrow as an exceptional situation becomes the ordinary: in the circumstance where the Aboriginal right has no internal limitation, the notion of priority, as articulated in Sparrow, would mean that where an Aboriginal right is recognized and affirmed that right would become an exclusive one. Because the right to sell herring spawn on kelp to the commercial market can never be said to be satisfied while the resource is still available and the market is not sated, to give priority to that right in the manner suggested in Sparrow would be to give the right-holder exclusivity over any person not having an Aboriginal right to participate in the herring spawn on kelp fishery.⁹

Where the Aboriginal right is one that has no internal limitation then the doctrine of priority does not require that, after conservation goals have been met, the government allocate the fishery so that those holding an Aboriginal right to exploit that fishery on a commercial basis are given an exclusive right to do so. Instead, the doctrine of priority requires that the government demonstrate that, in allocating the resource, it has taken account of the existence of Aboriginal rights and allocated the resource in a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users.¹⁰

On this point the Court concluded by stating that:

under Sparrow's priority doctrine, where the Aboriginal right to be given priority is one without internal limitation, courts should assess the government's actions not to see whether the government has given exclusivity to that right (the least drastic means) but rather to determine whether the government has taken into account the existence and importance of such rights.¹¹

The existence of such difficult questions of resource allocation supports the position that, where a right has no adequate internal limitations, the notion of exclusivity of priority must be rejected.¹²

The second significant difference according to the Court was that conservation was the only objective that need be satisfied prior to the Aboriginal right as identified in Sparrow, whereas in the right identified in Gladstone other objectives in addition to conservation might be considered:

I now turn to the second significant difference between this case and Sparrow. In Sparrow, while the Court recognized at p. 1113 that, beyond conservation, there could be other "compelling and substantial" objectives pursuant to which the government could act in accordance with the first branch of the justification test, the Court was not required to delineate what those objectives might be. Further, in delineating the priority requirement, and the relationship between Aboriginal rights-holders and other users of the fishery, the only objective considered by the Court was conservation. This limited focus made sense in Sparrow because the net-length restriction at issue in that case was argued by the Crown to have been necessary as a conservation measure (whether it was necessary as such was not actually decided in that case); in this case, however, while some aspects of the government's regulatory scheme arguably relate to conservation — setting the total allowable catch at 20 per cent of the estimated herring stock, requiring the herring roe fishery to bear the brunt of variations in the herring stock because it is more environmentally destructive — other aspects of the government's regulatory scheme bear little or no relation to issues of conservation.

…

As such, it is necessary in this case to consider what, if any, objectives the government may pursue, other than conservation, which will be sufficient to satisfy the first branch of the Sparrow justification standard.¹³

Aboriginal rights are recognized and affirmed by s. 35(1) in order to reconcile the existence of distinctive Aboriginal societies prior to the arrival of Europeans in North America with the assertion of Crown sovereignty over that territory; they are the means by which the critical and integral aspects of those societies are maintained. Because, however, distinctive Aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that Aboriginal societies are a part of that community), some limitation of those rights will be justifiable. Aboriginal rights are a necessary part of the reconciliation of Aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation.¹⁴

Although by no means making a definitive statement on this issue, I would suggest that with regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-Aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of Aboriginal societies with the rest of Canadian society may well depend on their successful attainment.¹⁵

In addition, in Gladstone the Court discussed another factor that must be considered when managing a fishery that includes an Aboriginal commercial right to fish.  The Court stated:

It should also be noted that the Aboriginal rights recognized and affirmed by s. 35(1) exist within a legal context in which, since the time of the Magna Carta, there has been a common law right to fish in tidal waters that can only be abrogated by the enactment of competent legislation:

…the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike.

…

[I]t has been unquestioned law that since Magna Charta [sic] no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation.

(Attorney-General of British Columbia v. Attorney General of Canada, [1914] A.C. 153 (J.C.P.C.), at pp. 169-70, per Viscount Haldane.)

While the elevation of common law Aboriginal rights to constitutional status obviously has an impact on the public's common law rights to fish in tidal waters, it was surely not intended that, by the enactment of s. 35(1), those common law rights would be extinguished in cases where an Aboriginal right to harvest fish commercially existed. As was contemplated by Sparrow, in the occasional years where conservation concerns drastically limit the availability of fish, satisfying Aboriginal rights to fish for food, social and ceremonial purposes may involve, in that year, abrogating the common law right of public access to the fishery; however, it was not contemplated by Sparrow that the recognition and affirmation of Aboriginal rights should result in the common law right of public access in the fishery ceasing to exist with respect to all those fisheries in respect of which exist an Aboriginal right to sell fish commercially. As a common law, not constitutional, right, the right of public access to the fishery must clearly be second in priority to Aboriginal rights; however, the recognition of Aboriginal rights should not be interpreted as extinguishing the right of public access to the fishery.¹⁶

Thus, in summary, the legal principles that apply to the Fraser River sockeye fisheries are as follows:

a)	The Aboriginal right to harvest fish for food, social and ceremonial needs holds priority over the public commercial and recreational fisheries. The Department of Fisheries and Oceans has a constitutional obligation to ensure that these requirements are fulfilled.

b)	There is not a general constitutional right for Aboriginal Canadians to fish commercially and each claim must be decided on its merits.

c)	There is currently no Aboriginal right to engage in commercial salmon fishing on the Fraser River.

d)	There is a public right to engage in the Fraser River commercial and recreational salmon fisheries that is held equally by all Canadians.

THE ABORIGINAL FISHERIES STRATEGY

The Aboriginal Fisheries Strategy (AFS) was introduced in June 1992 by the Minister of Fisheries and Oceans at the time, the Honourable John Crosbie. Appearing before the Standing Committee on Forestry and Fisheries in May 1993, the Minister described the AFS as a “national program designed to implement the 1990 decision of the Supreme Court of Canada in the Sparrow case,” aimed to increase economic opportunities for native people while maintaining stability and profitability in the commercial and recreational fisheries.¹⁷

However, the Minister conceded that the pilot-sales component of the AFS did not stem directly from the Sparrow decision but was a policy response to an extensive problem of poaching and illegal sales. By providing a legitimate means for the sale of fish by Aboriginal people, DFO hoped to regain some control over an illicit Aboriginal commercial fishery.

It also appears that DFO was anticipating the possibility that pending court cases would find that Aboriginal people had a right to fish commercially:

So in the interest of the whole industry, the commercial and recreational, and stability, and to try to keep the industry profitable, we’re trying this as an experiment to see… Rather than wait for the courts to decide whether you can sell a fish or can’t sell a fish, wouldn’t it be better for governments and the groups involved to devise a system that satisfies everyone and that will be reasonable? That’s why we’re trying these experiments.¹⁸

In summary, the Minister’s statements make clear that the pilot sales component of the AFS was experimental, that it was intended to bring order to chaos with respect to illegal fishing and sales by Aboriginal people, and that it was intended to protect the stability and profitability of commercial and recreational fisheries.

Another element of the AFS was the Pacific Commercial Licence Retirement Program announced in December 1992¹⁹ as a pilot retirement program for Pacific commercial fishing licences. The purpose of this program was to test ways of reducing catching power in the commercial fleet so that fishing opportunities for commercial operators would not be affected when fishing opportunities were transferred to Aboriginal groups.

The AFS also established the Fisheries Guardian Programs.²⁰ The Guardian Programs were designed to enable native groups to participate in fisheries monitoring, stock management, fishery enhancement and assessment, habitat protection and enforcement. In addition to their other roles, it was envisaged that guardians would carry out law enforcement functions, but they would not be armed or authorized to use force.

These two programs did not yield the expected results.

THE 1996 MIFFLIN PLAN — FLEET RESTRUCTURING

In March 1996, DFO introduced a strategy to “revitalize” the Pacific salmon fishery. The strategy, which subsequently became known as the “Mifflin Plan,” had two principle objectives: to enhance conservation and sustainable use of the resource, and to provide the opportunity for the long-term economic viability and competitiveness of the commercial salmon industry. According to DFO, the strategy was drawn from the recommendations of the Pacific Policy Roundtable, a process convened with representatives from the commercial, recreational and Aboriginal fishing sectors as well as the Province of B.C. and DFO.

There were three main elements to the strategy:

·	A risk-averse fisheries management program that involved a cautious approach to setting harvest levels in general as well as harvest rate reductions in selected species and the adoption of more stock-selective fishing practices.

·	A 50% reduction in the commercial salmon fishing fleet to be achieved over several years. To initiate the process, an $80-million voluntary licence retirement program was offered in the first year.

·

A new approach to licensing that divided the B.C. coast into two areas for seiners and three areas for gillnetters and trollers. Licence holders would be given the choice of fishing one of these areas, using one type of gear. For those wanting to fish more than one area or more than one type of gear, additional licences would have to be obtained from other existing licence holders. The rationale was that this process of “licence stacking” would promote fleet rationalization.

This third element of the program was especially controversial. Whereas fishermen had previously been able to fish the length of the B.C. coast with one licence, stacking now forced them to have two or three, depending on the type of licence, in order to have the same fishing opportunities as previously. The alternative was to accept being restricted to one area and gear type and risk losing fishing opportunities.

Although the intent was to improve the financial performance of the fleet over time and to moderate fishing pressure, to some extent it had the opposite effect. By forcing fishermen to purchase additional licences to maintain their fishing options, stacking forced greater capitalization of the remaining fleet. For example, a gillnetter would require two additional licences to fish the whole coast and after the first buyback a gillnet licence was in the range of $75 thousand to $125 thousand.²¹

Commercial fishermen were repeatedly led to believe that they would benefit from fleet restructuring:

Licence retirement will significantly improve the financial viability of those who remain in the commercial fishery … the commercial sector is expected to be substantially better off following the current Licence Retirement Program… The remaining commercial fleet will be the primary beneficiary of these increased harvest levels.²²

Permanent change is necessary for the salmon fishery. We are working to achieve a future in which the fishery provides good incomes for fishermen, and contributes to local economies.²³

The Voluntary Commercial Salmon Licence Retirement Program is designed to meet conservation objectives through a substantial reduction in the number of licensed salmon vessels in the commercial fleet. This voluntary program is designed to reduce the level of dependence on a fluctuating resource. This will provide more opportunities for those fishermen who remain in the industry.²⁴

Fishermen throughout the coast will now have a better chance of making a sustainable living from this smaller stronger fleet. Combined with firm conservation objectives and risk-averse management, a more viable fishery is now possible.²⁵

I was there at the Delta Airport when Brian Tobin said, “The benefits of fleet rationalization will accrue to those who remain in the industry”. I’m still waiting; I haven’t seen them yet.²⁶

In addition to promises of better incomes and greater stability for the industry, fishermen were promised that fleet reduction resulting from the revitalization strategy would not be used to reallocate fish from the commercial to other sectors.²⁷

Commercial salmon licences were retired under two programs. The first of these, under the Pacific Salmon Revitalization Strategy, retired 797²⁸ licences out of an initial total of 4112 eligible in two rounds in 1996. A further series of three rounds from 1998 to 2000, under the Pacific Fisheries Adjustment and Restructuring Program, retired another 1404 licences, leaving 1898 eligible licences remaining. The total cost of licence retirements under the two programs was $275 million.²⁹

Table 1: Licences retired under restructuring of the Pacific salmon fleet

Gear type	Eligible for 1996 program	Licences remaining after 1996 program	Number of licences retired 1998-2000 program	Eligible licences remaining	Percentage retired since 1996
Seine	536	487	216	271	49%
Gillnet	2256	1825	628	1097	49%
Troll	1291	989	460	529	53%
Total	4112	3302	1404	1898*	54%
*     Does not include commercial salmon licences held by the Northern Native Fishing Corporation or communal licences, which are not eligible for retirement.

Source:      A Plan to Revitalize Canada’s Pacific Fisheries, Progress Report for Year Three, July 2000 to July 2001.

Because of area licensing, the number of vessels that remained eligible to fish Fraser River salmon is smaller than indicated by the overall reductions. In 2001 only 167 Area B seiners, 250 Area D and 407 Area E gillnetters, and 239 Area G and 157 Area H trollers were eligible to fish Fraser River salmon.³⁰

Conservation measures for the seine fleet, primarily the requirement to brail rather than ramp the catch, further reduced the fishing efficiency by approximately 30-50%. The effective reduction of potential fishing effort on Fraser River stocks from 1995 levels has been estimated to be in the range of 80% for the seine fleet to 85% for the troll fleet.³¹

Many of the fishermen who chose to remain in the fishery took DFO at its word and made significant investments in additional licences in order to continue being able to fish more than one area of the B.C. coast. As this report will later show, those fishermen appear to have been misled. Despite the massive reduction in the size of the fleet, fishing opportunities were minimal in 1998, 1999, 2000 and 2001. It should be noted that fleet restructuring has also hurt many Aboriginal fishermen who, it is estimated, made up 30% of the regular commercial fleet.

POTENTIAL PROBLEMS IN 2001 WITH THE LATE-RUN FRASER RIVER SOCKEYE

In the spring of 2001, the Committee’s attention was drawn to potential fisheries management difficulties on the Fraser River as a result of the progressively earlier return of late-run Fraser River sockeye stocks. The possible impacts of this change in behaviour included lost short-term production and long-term danger to stocks, and reduced commercial and recreational harvests.

There are four main components of the Fraser River sockeye, grouped by timing: early Stuart, early summer, summer and late run. Fisheries management and escapement targets are set separately for each of these four major stock aggregates.³² Nevertheless, mixed stock fisheries occur as the timing of the four runs overlaps.

Over the past six years, the late run has been returning to the Fraser River abnormally early. As a result the fish are spending more time in fresh water and suffer a high rate of pre-spawning mortality. These fish also suffer from a parasitic infection that contributes to their high mortality rate.³³ Because of the overlap in timing of the late run with that of the dominant summer run, conservation measures to protect the late run have reduced fishing opportunities on the main summer run. In 2000, Canada and the U.S. implemented measures to ensure spawning escapement targets that included closing commercial, Aboriginal and recreational fisheries in both countries. Despite these measures, escapement targets were not met in all cases.

The cause of the early migration of the late run is not yet fully understood. In February 2001, the Pacific Salmon Commission convened a panel of scientists to evaluate this problem and make recommendations as a result of which DFO scientists were to develop studies to research the causes of the early entry to the river and mortality.

Expectations for the 2001 season were that the run would be stronger than the previous few years. Estimates of total sockeye returns were in the range of 6.8 million to 12.8 million with a 75% probability that the run would exceed 6.8 million. A run of this strength should have allowed significant harvests for Canadian commercial fisheries. The summer-run component was expected to be strong compared to long-term averages; consequently, it was expected that surpluses to spawning requirements would provide for fishing opportunities for all sectors. This optimistic outlook, however, was qualified by the potential restriction of summer-run fishing opportunities because of the possible early entry of the weaker late-run stock, which could then overlap in timing with the much stronger summer-run.

As it turned out, fears that fishing opportunities would be reduced in 2001 were justified.

THE 2001 FRASER RIVER SOCKEYE FISHERY

DFO Overview

In February 2002, officials from the DFO appeared before the Committee to provide an account of the 2001 Fraser River sockeye fishery. According to the officials, the principal considerations influencing salmon fishing opportunities included:

·	conservation objectives;

·	in-season monitoring of catch to adjust opportunities for other fisheries further upstream;

·	allocation policy; and

·	a selective fishing policy.

For the 2001 Fraser River sockeye fishery, the Department’s conservation objectives were affected by:

·	the anticipated low runs of early Stuart and early summer sockeye stocks;

·	extreme conservation concerns for the late run; and

·	a targeted Thompson River coho exploitation rate of less than 3%.

As indicated above, the pre-season forecast was for 6.8 to 12.8 million Fraser River sockeye. Proposed commercial fisheries were planned for a three-week period from late July to mid-August in order to focus on the summer-run stocks and limit impact on stocks of concern.

At the end of July, the in-season estimate for the summer run was about 6 million, sufficient to allow commercial fisheries to proceed in Johnstone Strait and Juan de Fuca Strait. The Fraser River gillnet fisheries were also planned at this time but were scheduled to take place after the early summer runs had cleared the lower Fraser River fishing area.

In early August, the estimate of the summer stock was lowered to 5 million, which was large enough to proceed with modest “low impact” fishing opportunities, in other words recreational and AFS pilot sale fisheries. By August 8, the estimate of summer-run stocks had been further reduced to 4 million, leaving no remaining allowable commercial catch. On August 17, the estimate of the summer run was revised back up to 5 million, which would have permitted a commercial catch, but by this time the presence of late-run sockeye precluded any further commercial, recreational or pilot sales fisheries.

Commercial fleet fishing opportunities for sockeye in the 2001 season amounted to:

Seine, Juan de Fuca:	2 days
Seine, Johnstone Strait:	2 days
Gillnet, Johnstone Strait:	5 days
Gillnet, Fraser River:	0 days
Troll, West Coast Vancouver Island:	19 days
Troll, Johnstone Strait and Area 29:	9 days.

Harvests were also modest:

Area B Seine:	75,000
Area D Gillnet:	94,000
Area E Gillnet:	12,000*
Area G Troll:	18,000
Area H Troll:	61,000
Selective Fishing:	35,000
*     Unauthorized protest fishery, August 22, 2001
Source: DFO — preliminary catch data.34

 

Despite the limited fishing opportunities, licence fee rebates were rejected as, according to DFO officials, all commercial salmon licence categories had been provided fishing opportunities in 2001, including the Area E gillnet fleet, which was given the opportunity to fish chum salmon at Nitinat, in the mid-Vancouver Island area, and in Area 29 of the Fraser River.

Area E Gillnet Fleet 2001 Season

The Area E gillnet fleet had no authorized opening for Fraser River sockeye in 2001. The explanation given by DFO was that, because this fleet is the last commercial fishery in line to fish Fraser River stocks, it is the one most affected by changes in the estimate of run strength. Thus, when the estimate of run size is downgraded, the opportunity of Area E gillnet fleet is reduced or eliminated as it was in 2001. Conversely, when the estimate of the run size is upgraded in season, it is the Area E gillnet fleet that benefits most. The catch reported for the Area E gillnetters was, in fact, taken during a protest fishery on the August 22, 2001.

Early in the season, the Area E gillnetters had been led to believe that they would have a substantial fishery, although some fishermen were sceptical:

In March or February this year, I attended a meeting on Vancouver Island with regard to the upcoming sockeye fishery. Basically what we were promised in area E was that we would catch so much fish that we wouldn’t know what to do with them. They were talking at that time of around 19 million fish. I said don’t be so sure of yourselves, because we’re at the back end of the buck. In front of us are the Johnstone Strait fisheries, the troll fisheries, the seine fisheries. Then there are the native fisheries, the American fisheries, and then we’re the last ones. The sport fisheries are even ahead of us. We’re the last. It came to pass that we didn’t fish.

Ken Connolly, Coordinator, Area E
Gillnetters Association

The Area E opening was cancelled at the last moment although a native food fishery for the same bands that had fished commercially in a pilot sales fishery the previous week was still allowed to proceed. It was this action that precipitated the protest fishery:

So they did say they were going to try to give us an opening. At the last second, they changed their minds, and we were allowed 50,000 pieces, and they allowed it and gave it to the natives, who went out and fished that day — the Tsawwassen, Sto:lo, Fort Langley, Katzie, and Musqueam bands. The Musqueam fishery was the last fishery. That was the straw that broke the camel’s back for the gillnetters in the Fraser River.

Ken Connolly, Coordinator, Area E
Gillnetters Association

When the estimate of the summer run was revised upward to 5 million on August 17, this should have been sufficient to allow a fishery for the Area E gillnet fleet; however, by this time conservation concerns for late-run sockeye prevented the fleet from fishing. The late-run fish are affected by a parasitic infection, that, combined with early arrival, results in a mortality rate of over 90% for some stock components. Because of the high mortality of this stock, the Area E gillnet fleet was, in effect, prevented from fishing to put perhaps 300 extra fish on the spawning beds. Thus, the gillnet fishery, which would have generated an economic benefit of around $5 million, was cancelled to put an additional 300 or so fish on the spawning grounds out of a total of 105,000 spawners.³⁵ In the view of the Committee, this was an unjustifiable decision.

DFO’s explanation of conservation for not allowing a commercial fishery for the Area E gillnet fleet was met with scepticism since it allowed extensive Aboriginal fishing:

And in 2001 we had zero fishery, while others alongside of us fished every weekend, April till August, at least two days a week. And we are told there’s a conservation problem and that’s the reason why we didn’t fish. … There isn’t a conservation problem. If someone’s fishing, there isn’t a conservation issue. Conservation comes first, before food, before allocation to others.

Mike Forrest, as individual

The commercial fishing fleet stood down all year to protect late-run fish. The Area E Gillnetters did not fish. The seine fleet fished one day, while we had abuse like that going on up the river. There don’t seem to be any rules or regulations on this.

Larry Wick, B.C. Vessel Owners’
Association

In order to avoid the “roadblocks” faced by Area E gillnetters in the 2001 season, the Area E Gillnetters Association proposed a plan for the 2002 fishery that emphasized flexibility and low-impact fishing. Elements of their plan included a reduced fleet size, smaller nets, shorter openings at short notice, real-time accurate catch reporting, high compliance, and selective fishing techniques.

Area B Seine Fleet 2001 Season

Based on pre-season estimates, 2001 would have been the first significant fishing opportunity in four years for the seine fleet. As it turned out, both fishing opportunities and harvest for the southern seine fleet were minimal. Because of early and late-run concerns, the potential fishing season was limited to a 7-to-10-day harvest window.

The south coast Area B seine fishery takes in statistical areas 11 to 29 and 121. This includes Queen Charlotte Strait, Johnstone Strait, the Strait of Georgia, Juan de Fuca Strait and the west coast of Vancouver Island. This section describes the fishery that took place in Juan de Fuca Strait (Area 20) in August 2001.

After extensive planning, DFO finally approved the fishery at the end of June; however, it adopted a cautious approach, which included not allowing the fleet to fish Juan de Fuca Strait unless the competitive nature of the fishery was eliminated.

DFO imposed a number of conditions on the fleet including:

·	A pooled catch instead of a competitive fishery;

·	On-board observers for monitoring and catch validation;

·	A demonstration of selectivity and mortality rates in south coast waters despite having already demonstrated the ability to fish selectively in the north coast waters;

·	A slow start to the fishery, with increasing effort provided interception was low and within limits and everyone was behaving according to the rules;

·	Specialized equipment on board to care for non-target species;

·	A $5,000 performance bond; and

·	A signed contract for each vessel binding it to specific fishing conditions and practices.

Fleet vessels, including those that did not participate, were required to put up $500 in non-refundable fees to cover vessel training and administrative fees. In total, $600,000 in “entry fees” was collected from the fleet.^{36, 37} In addition, the fleet provided DFO with the management vessel for the fishery.

Although about 130 vessels qualified for the fishery, only 73 out of the 165 licensed vessels participated. Fishing took place over two days in the week ending August 11. It began cautiously on the first day with 15 boats. Only by noon on the second day was the full fleet of 73 participating vessels fishing. Fishing continued until 7:00 p. m. when it closed for the rest of the year. The final tally was approximately 46,000 sockeye — about 4,000 pounds per boat. Vessels were required to hail in after every set.

The value of the catch was estimated at about $5,600 per boat, which was not enough to cover the cost of fuel for the boats that came down from the north. This amount is a low return on the annual cost of a licence, which costs $3,800, and is an extremely low return on the investment in a seine vessel, which in the south costs about $1 million.

Witnesses told the committee that DFO’s credibility would be eroded further as a result of its conduct of this fishery:

The failure of that fishery is going to make it extremely difficult to bring any kind of future initiative to the fleet and expect they’ll look at it with any kind of credibility. It was a long stretch to convince everybody to go to that fishery. That’s an entirely different method of fishing salmon. It was never done before, ever, on this coast. We agreed to it and we didn’t get the carrot at the end. There’s no more confidence that the department will keep its promises.

Bob Rezansoff, President, Fishing Vessel
Owners’ Association of British Columbia

The 2001 Fraser River Commercial Fishery in Summary

In the final tally, despite a substantial run of sockeye salmon in 2001 (and other species) there was virtually no commercial fishery on the Fraser River. The final outcome of the season was that, despite returns of 6.4 million sockeye to the Fraser River in 2001, the total public commercial harvest was only 295,000 pieces.³⁸ In 1987, where the run size was slightly larger, but comparable at 7.7 million, there were 1,200 seine-boat days on the Fraser and 10,000 gillnet-boat days. In 2001, on a run size just a little smaller than the 1987 run, there were only 40 seine-boat days and zero gillnet-boat days.

Table 2: Comparison of commercial fishing opportunities for sockeye on Fraser River stock in 2001 with those in 1987

Year	1987	2001
Fraser River Sockeye Run	7.7 million	6.4 million
Seine boat-days (Area 20)	1,200	40
Gillnet boat-days	10,000	Zero
Troll boat-days	No information	No information
Public Commercial Harvest	3,232,000	295,000
Aboriginal Harvest	508,000 (Aboriginal in river, 468,000; Aboriginal outside, 40,000)	831,000 (Fraser River, food, social and ceremonial, 482,000; marine areas, food, social and ceremonial, 174,000; pilot sales, 175,000)39

 

The 2001 fishing season was summed up thus by witnesses:

Another quantification you probably heard today, and just in case you haven’t, is that this season in excess of 30 million pink, sockeye, and chum salmon returned to the Fraser River. There was a commercial catch of only 1.5 million. There were only three years in the last century when escapements of that size occurred. Never has there been such a small catch. In general terms, I hope that can quantify the level of mismanagement. We might as well call it precisely what it is.

John Sutcliffe, Vice-President, United
Fishermen and Allied Workers Union

DFO has countless reasons for why those opportunities were not there, but it’s inexcusable that a run size of that magnitude could not produce a commercial fishery in the Fraser River.

Richard Nomura, as individual

Impact on the Public Fishery and Processing Economy

The Fraser River salmon fishery used to account for 80% of the value of the B.C. salmon fishery, and sockeye alone made up 60% of the Fraser River salmon fishery. Prior to 1992, the Fraser River fishery produced about $150 million a year. Historically the B.C. fishery earned about $1 billion in a normal year, about $800 million of which was generated from export markets. For the past three years, however, the Fraser River fishery has been virtually closed.

In 2001, the Fraser River commercial sockeye fishery produced only 295,000 sockeye salmon with a value of about $2.5 million. The seine fleet fished only 40 boat-days in Area 20 and the Area E gillnet fleet did not fish at all. (This was the second time in recent years. In 1999, the Fraser gillnet fleet did not fish for the first time in history.) The impact of the loss of the Fraser River fishery on the lives of commercial fishers and plant workers has been devastating. Even if landings recover, the virtual closure of the Fraser River salmon may have a longer lasting impact in export markets such as Japan where the credibility of exporters has been damaged.

There appear to be two factors primarily responsible: the adoption by DFO of a highly “precautionary approach” to the management of Fraser River sockeye stocks and additional complexities introduced by separate Aboriginal commercial fisheries under the AFS.

AFS ISSUES

Aboriginal Harvest and the Commercial Harvest

According to DFO officials, the estimate of the total Aboriginal catch of Fraser River sockeye was 672,000 fish, comprising 190,000 pilot sales harvest and 482,000 for food, social and ceremonial purposes on the Fraser River itself.^{40, 41} Other witnesses, however, estimated the total Aboriginal harvest of Fraser River sockeye significantly higher at about 1.5 million, including 269,000 pilot sales harvest fish.⁴²

For example, during the period that DFO shut down the public commercial fleet, it authorized an Aboriginal seine fishery for food, social and ceremonial purposes on the Fraser River for 30 days, starting on August 1, 2001. The target catch for this fishery was 80,000 pieces.

DFO’s estimate of the total Aboriginal food, social and ceremonial fishery for Area 29 (Fraser River area), including the harvest by the six purse seiners was 69,807 fish.⁴³ In the view of the Committee, this estimate is implausible. Given that the effort, in terms of boat-days, in the Aboriginal seine fishery amounted to four and a half times that of the entire public commercial fleet in Area 20 (Juan de Fuca Strait), the Committee believes that the catch by the six seine vessels was likely much higher.

According to the B.C. Fisheries Survival Coalition, Musqueam, Tsawwassen and Sto:lo bands alone caught more [Fraser River] sockeye (396,683) in 2001 than the entire B.C. public seine, troll and gillnet fleets (295,000).⁴⁴

AFS — Pilot Sales Program

Of all elements of DFO policy and management of the Fraser River fishery, the Pilot Sales Program was the most criticized. Priority and monitoring were identified as key flaws in the pilot sales programs. Witnesses contended that if there are to be separate Aboriginal commercial fisheries, they should not have priority over public commercial fisheries but should instead have simultaneous openings and similar triggering mechanisms.

Mr. Arnie Narcisse of the B.C. Aboriginal Fisheries Commission (BCAFC) explained that the role of the pilot sales program was to deliver a more orderly fishery, reduce uncertainty and provide for more certainty for non-Aboriginal fisheries. Noting that most First Nations want to expand pilot sales in order to normalize their relationship with Canada on the issue of sales of fish, he said:

If anything, the pilot sales should be expanded. They should be taken out of pilot sales mode. They should say here’s a recognition of your Aboriginal right and some cognizance of the throne speech objective, which basically says we want to make lives better for our Indian people here in Canada. What better way than that to use the resource?

Mr. Narcisse asserted the right of First Nations to a commercial fishery:

It is based on the assertion of the Aboriginal right and the title that goes along with that right, sir. All you have to do is look at the history books. You look at the Wells Fargo records and the Hudson’s Bay records; look at the transactions that took place there. It’s written in the bloody history books, for Chrissake. It’s only the actions of the cannery people in 1888 that pushed us off the river. We’ve come full circle in 114 short years. We’re now seeing a similar effort here to keep us off the river and away from the economic benefits that go along with this fisheries resource. Basically, it goes with the fact that my skin is brown and that there is an Aboriginal right and title to that fisheries resource.

Under DFO policy, however, the Pilot Sales Program of the AFS does not have priority over the public commercial fishery.⁴⁵ In principle, it is supposed to be distributed, regulated the same way as any other commercial fishery. According to witnesses, this is not the case in practice; DFO delivers the pilot sales fishery before the public fishery, with different, lax or even without regulations:

They fish first; we fish second — if we fish. In this case, they fished three times this year and we didn’t fish at all. No priority?

Mike Forrest, as individual

We were also told that the pilot sales program, since it was a commercial fishery, would be treated like a fourth gear type and have no priority over other years. The problem was that DFO interpreted that in the broadest possible terms and allowed pilot sales to commence as soon as there was a non-native commercial harvest of Fraser River sockeye anywhere on the coast. Although we were all managed as an area, what it did was allow the natives to leap right to the front of the line while we sat on the dock.

Richard Nomura, as individual

Witnesses described the way DFO handled harvest (pilot sales) agreements as contractual obligations that guaranteed a fishery:

There’s one thing I would like to say, and this is probably in defence of the minister. The minister had the impression that pilot sales, which was a harvest agreement, was on the same plane as the commercial fisheries. That is not the case. The pilot sales fishery this year was treated as a contractual arrangement and was given priority, just as if it had some constitutional justification too.

Mike Griswold, President, Gulf Trollers
Association

Witnesses argued that it would be more fair to base the size of the pilot sales fishery on the run size, since is not known beforehand whether there are going to be sufficient numbers of fish to provide for both a guaranteed pilot sales fishery and a commercial fishery.

Some witnesses suggested that the real purpose of AFS pilot sales was to relieve the federal government of obligations associated with land claims and that in doing so it was placing the burden on the backs of one segment of society, namely the commercial fishing industry and the people who depend on it for their livelihood:

I’m Canadian too. I want to be treated fairly, not with ...  all the native fishing. I’m a human. I want to share everything fairly. I have a family. I have kids. I have a sick husband. No fish — without the money I can’t live. It’s really tough for me.

Kim Nguyen, Spokesperson, B.C.
Vietnamese Fishermen’s Association

The real problem is the direction this government is taking this country and its citizens. They are trying to solve social and economic problems by displacing an industry and transferring those privileges to a preferred group of people.

Richard Nomura, as individual

If Canada wants to settle the Aboriginal issue, then don’t take my business away from me. Come forward, stand up and pay me, and I’ll get out. But I think it’s wrong to come in and take the business away from the lady who just left here and other people, to settle something that happened years ago that none of these people are responsible for. We have done nothing wrong. We fished when it was open. We went by the promises, rules, and regulations, and now we’re being stripped of our privileges. I’ll stop there.

Larry Wick, B.C. Vessel Owners
Association

Witnesses described the pilot sales program as ill-conceived, working only marginally to serve the interests of First Nations people but at huge cost to the people in the commercial fishing industry. They argued that it contributes to poverty and economic disparity in both Aboriginal and non-Aboriginal coastal communities particularly north of Campbell River and they claimed that Aboriginal fishermen, who make up about 30% of the commercial fleet, are also being hurt:

I’m very good friends with a lot of natives, who are in the business, as I am. They’re very frustrated, along with us, especially those of us in the commercial sector. A lot of them feel it’s wrong.

Larry Wick, B.C. Vessel Owners
Association

Witnesses criticized the AFS for being racially based and divisive:

The AFS program they have in place is so wrong. It is racially based, and it can’t continue. I can’t see any reason for it. Look at it in a different way. What if you weren’t allowed into the Government of Canada, into your caucus or into the main area, for the simple reason that you didn’t belong to a native band, if you were not allowed to debate any issues or anything, and if it were based only on race? Would that be fair? It’s the same thing in our industry. We’re being segregated solely on the basis of race.

Gary Sonnenberg, as individual

I won’t say any more about the AFS, other than that it’s completely out of control. It is tearing apart an industry and it’s unjust and unfair.

Larry Wick, B.C. Vessel Owners
Association

Witnesses called for a return for a single commercial fishery for everyone, native and non-native — what used to be called the “industrial solution.” For example:

You need to have one commercial fishery for all, not based on race but based for everybody under one set of rules and regulations. That’s the only way you’ll be able to continue a viable commercial fishery on this coast.

Gary Sonnenberg, as individual

Mr. Narcisse of the B.C. Aboriginal Fisheries Commission appeared to send a mixed message regarding fishing under the same rules and regulations as the commercial fishery:

We say that, time and again, and we live by those same rules and regulations. There are no special rules for us here.

From my perspective, DFO has no business telling us where we can fish and how much we can fish for.

Mr. Narcisse explained from his point of view that:

The rules and regulations are still subject to Aboriginal right and title. There’s a misperception or misconception by certain people that it’s the other way around.

He added that there had to be cognizance of the priority of access and that First Nations were having a lot of difficulty with this. He cited, as an example, the sport fishery continuing 365 days a year, while some native fisheries had not lasted 14 days in total in the previous year.

Mixing of Food and Sales Fisheries

A troubling aspect of the pilot sales program for many witnesses was the blurring of the distinction between food fish and sales fish. One reason for this was the reclassification by DFO in 2001 of sales fish to food fish and back again as a result of changing estimates of the run size.

So when those regulations and changes are coming in and they’re flip-flopping that easily... really there is no difference between pilot sales and food fish. It’s all basically the same fish.

Richard Nomura, as individual

According to witnesses, the lack of clear distinction between food and sales fish is problematic for two reasons. First, by reclassifying a food fishery to pilot sales, the Aboriginal fishery in effect is always able to gain priority over the commercial fleet and, second, there is little control over the illegal sale of food fish:

It’s blurring; it’s becoming Aboriginal fisheries. We’re mixing the two. And when one has a priority — food — and the other doesn’t, all they have to do is show that it really wasn’t for the other, it was for food, and it’s there they have a priority. They can always go fishing before the commercial guys as long as they can show that it is for food, not for pilot sales; and that’s where the trouble is.

Mike Forrest, as individual

Right now it’s getting all juggled together — is it food, or sale, or we don’t
know — so it’s all sold. And there’s no enforcement, so it might all be in a freezer storage plant; it’s supposed to be for food, but it’s in a freezer storage plant, and maybe next year it will be sold. Well, unless you follow it from point to point to point, you can’t make a case out of it.

Mike Forrest, as individual

Comments by representatives of the B.C. Aboriginal Fisheries Commission also suggest a blurring of the distinction between fish for food, social and ceremonial purposes and fish for commercial purposes. For example, with respect to the AFS Agreement with the Tl’etinqox-t’in (Ts’ilhquot’in national government) (which expressly forbids the sale of food fish), Mr. Narcisse said:

What I can tell you, though, is that the allocation contained within the AFS agreements merely gives 16.6 fish per person to the Tl’etinqox-t’in Nation. A nation of 6,000 people have an allocation of 110,000 pieces. This has not gone up once since the original agreement was signed. So you tell me how the hell the Indian is going to live on 16.6 fish per year when that’s his only economic livelihood.

Mr. Narcisse also proposed, as a reasonable food fish requirement:

I’ll give you a thousand pieces per Indian. Let’s start with that. That may give us an opportunity to get a benefit from some of the economics of the fisheries.

Sale of Food Fish

Witnesses complained that not only were there no controls on the illegal sale of food fish but that those sales were blatant:

Now, I’m not denying the fact that they have a right to fish for food, ceremonial, and social purposes, but all through the summer, when I’m sitting there waiting to fish and they’re constantly fishing, you can go anywhere and there are phone numbers posted. You can phone and have fish delivered to your house. The illegal sale of that fish is rampant. It’s not being controlled, and that’s the problem. When you guide it under an AFS fishery or a food fishery, it all gets bunched up together. You don’t know what’s what, and you can’t do it. It’s completely impossible to control. That’s the problem we’ve been having for years.

Gary Sonnenberg, as individual

The reason, witnesses believe, is that DFO either lacks the capacity to enforce the rules or is turning a blind eye:

Reality-wise, the enforcement area is undermanned. I’m not sure whether it’s the direction from the people in charge; they just put blinders on and ignore it. There was a policy of “observe, record, and report”, and that was it — that’s where it ended. You’d see an infraction happen, and you’d report it, and that would be the end of it. It would get reported and nothing would be done about it. That’s been going on for years.

Gary Sonnenberg, as individual

The Public Commercial and Aboriginal Fisheries

Non-Aboriginal witness criticized the application of different standards to Aboriginal and the public commercial fisheries.

One example was the lack of enforcement and monitoring. For example, DFO authorized an Aboriginal seine fishery in the mouth of the Fraser River during the month of August 2001. According to witnesses, this fishery proceeded without DFO monitoring or enforcement, and with self-reporting rather than independent counting of the catch. This occurred at the same time the Area E gillnet fleet was prevented from fishing to protect late-run sockeye.

However, according to Mr. Narcisse of the B.C. Aboriginal Fisheries Commission, pilot sales fisheries on the lower Fraser River are the most closely monitored and enforced fisheries on the coast; no other salmon fishery has a mandatory landing program; DFO expends a disproportionate amount of enforcement effort on these fisheries compared to their other duties; and compliance during these arrangements is extremely high. Ms. Roxanna Laviolette added that, with respect to pilot sales fisheries:

It is one of the most regulated fisheries. I know, because I’m there working on those fisheries in particular. Every fish is counted. There is nothing that escapes the Aboriginal fisheries officers. Musqueam has four of them, and Tsawwassen has two, under their signed agreements. We’ve been out there since 1993. We’ve been executing pilot sales fisheries in an orderly fashion to ensure there is accountability and credibility with respect to monitoring Aboriginal fisheries.

Another example of preferential treatment, according to witnesses, was the “Excess Salmon to Spawning Requirement” (ESSR) fisheries, which have become native-only “private” allocations to which the commercial fishery does not have access.⁴⁶ According to witnesses, the original concept of an ESSR fishery was that it would be open to all non-fishery-involved groups such as rod and gun clubs, conservation clubs, or other organizations interested in conservation or enhancement of stocks, and revenues from ESSR fisheries were originally intended to benefit the fishery.

During the 2001 fishing season, two seine vessels harvested 150,000 chum salmon in an ESSR fishery in Saanich Inlet, while the entire commercial seine fleet caught just 155,000 chum in Johnstone Strait. Witnesses told the Committee that this was contrary to the original intention that ESSR fisheries should take place only after there have been adequate opportunities for the commercial fleet to have access to the fish.

Another example of preferential treatment, according to the Area E Gillnetters Association, is that access to early Stuart sockeye has become an Aboriginal right only. The Association explained that this has happened because rules applied to the commercial are based on rebuilding the stock while those applying to the Aboriginal fisheries are based on conservation goals. This means that the commercial fisheries are not allowed on early Stuart stocks because of higher escapements needed to rebuild the stock, while Aboriginal fisheries proceed based on lower conservation requirements just to maintain the stock.

Witnesses also claimed that different standards were being applied to the MTB/Sto:lo⁴⁷ commercial fishery and the public fishery. Differences include:

·	The managers of the public fishery, i.e. DFO, are accountable to Parliament while the managers of the MTB/Sto:lo are not. That fishery operates as a private operation although it is managing a public resource.

·	The General Fishery Regulations and the Pacific Fishery Regulations apply to the public commercial fishery, but rules and regulations can be bypassed through the negotiation of an AFS agreement.

·	Convicted poachers are involved in the management of the MTB fishery. There are also native guardians who are convicted poachers and are still managing the fishery. DFO fishery officers are required to sign sworn affidavits saying they have no financial interest in the fishery.

·

Different conservation rules are applied.  For example the commercial fleet is required to have “live boxes” to revive coho and steelhead while the Native fleet is not; the commercial fleet is prohibited from retaining certain species (coho and steelhead), the Native fleet is not; the commercial fleet is required to brail their catch (resulting in lower efficiency), while the Native fleet can ramp their catch.

DFO officials and representatives of the B.C. Aboriginal Fisheries Commission disputed some of these allegations. With regard to counting of Aboriginal harvests, DFO officials told the Committee that the Department obtains its figures from a variety of sources including observers and First Nations fishery guardians. DFO officials told the Committee that there were Aboriginal guardians were on board the vessels, tracking the catches from the seine fishery.

With respect to the Auditor General’s observation that only 15% of the data required by AFS Agreements had been submitted,⁴⁸ Ms. Laviolette from the B.C. Aboriginal Fisheries Commission stated:

I can tell you very clearly that we are providing information to the Department of Fisheries and Oceans on the data that comes from our fisheries, even during the course of the fishery. While the fishery is underway, they can contact us at any given time and ask us. And in particular if we’re talking about a food, social, and ceremonial fishery, where we’re just tasked with a hailing system, not unlike the commercial sector has a hailing system, we give the information. We tell them exactly.

Mr. Mike Staley added that the Auditor General’s report did not accurately characterize catch reporting and other information required for fisheries management for major species such as salmon:

But in terms of salmon fishing, salmon fisheries data, catch, effort, and so on of the major fisheries that take most of the catch of the Aboriginal fisheries, it’s my experience that those are reported in a timely manner and in an accurate and usable form for the fisheries managers, both in the Department of Fisheries and Oceans and in the Pacific Salmon Commission.

Contrary to the allegation that band members charged or convicted with fisheries infractions are allowed to continue in positions of authority, in at least one case, a First Nations fisheries official charged with poaching and illegal sales was removed from his position by the community shortly after charges were laid.

DFO officials conceded that guardians are not full-fledged fishery officers, that they do not have the same level of training as fisheries officers, and that they are not required to take the same type of oath as fisheries officers, who are required to declare that they have no interest in a commercial fishery.

Some of the deficiencies in the status of Aboriginal guardians can be attributed to DFO. Representatives of the B.C. Aboriginal Fisheries Commission described DFO’s training program for guardians as “substandard.” Aboriginal guardians have not yet had the full extent of training that was promised by the Department (phase 3, which involves field training with an experienced fisheries officer). One of the problems highlighted was the lack of continuous funding for Aboriginal guardians because AFS agreements are signed on a year-to-year basis. This, it was proposed, might be remedied by separating the Guardian Program from AFS agreements and by providing continuity for the program.

Mr. Narcisse referred to a guardian review that had been ongoing for about three years. The BCAFC had advocated a return to the old generalist model where guardians would deal with habitat issues, education and awareness, as well as enforcement.

John Fraser, in his report on the management of the Fraser River sockeye fishery in 1994, recommended that Aboriginal guardians report to fisheries officers:

… that DFO fisheries officers and Aboriginal fishery officers be responsible to and directed by a DFO official.⁴⁹

He saw a need for the Aboriginal fishery guardian to be independent from those who are engaged in the fishery.

Reciprocal Monitoring

Ms. Laviolette stated that First Nations had demonstrated their ability over the years to monitor all fisheries, not just Aboriginal fisheries, and went on to say:

We would like to be able to monitor commercial fisheries, and not just on salmon either; we’re talking about all kinds of other fisheries. As the salmon stocks start to dwindle, there are other fisheries that are starting to come about. The Aboriginal people are concerned about those other species as well — underutilized species.

Mr. Narcisse proposed reciprocal monitoring between the Aboriginal fisheries and commercial fisheries:

I reviewed the minutes of the May 6 presentation, where somebody had suggested having various sectors observe each other. We’re all for that. Our hands are clean. We’d be all for having our guys monitor other fisheries and having other fisheries monitor ours. We have nothing to hide.

Cheam Safety Protocol

DFO’s arrangement with the Cheam Band was criticized by a number of witnesses. Under a “safety protocol” with the Band, DFO would not enter areas where the Cheam were fishing without prior notice. In addition, DFO would not remove gear from the water unless it was unattended.

Although the purpose of this arrangement was to lower the level of conflict and protest fishing in the area, some interpreted the protocol to mean that “under a threat of violence, DFO goes easy on one group of fishers.” Mr. Narcisse, however, thought it only good manners that visitors announce their presence when they come onto First Nations territories. In his view:

The initiative was a safety protocol that did what it was intended to do. There was no violence on the river; nobody was hurt. There was none of the bullshit swamping by the commercial fleet that’s been taking place in recent years. So it did what it was supposed to do. It was a safety protocol and it carried out its intended activity.

According to Mr. Narcisse, the community had been put under a “magnifying glass” because it would not re-sign its AFS agreement and consequently had received a disproportionate number of charges.

The Committee finds that it is unacceptable under any circumstances for there to be a policy that DFO fisheries officers must give notice before performing their duties under the Fisheries Act.

Reallocation of the Resource

Before 1992, the government increased Aboriginal participation in the fishery by buying boats and licences to transfer Native bands. In 1992 it created a separate Aboriginal fishery. Witnesses believe that this has effectively led to a redistribution of the resource from non-native to native users.

Witnesses indicated that, after the introduction of the AFS in 1992, it has become more difficult for commercial fishermen to make an adequate income in the fishery:

We made quite a lot of money before 1992. After 1992, we didn’t make any money at all, because the fishery was divided.

Kim Nguyen, Spokesperson, B.C. Vietnamese Fishermen’s Association

The Area E Gillnetters Association explained that pilot sales were the reason for their aversion to downsizing the fleet. Their concern was that if the extra fish were to be allocated to another new user group — namely pilot sales — and the fleet would not be better off after, there was no point to the downsizing. Despite assurances that the fleet would be the beneficiary of downsizing, this is not what transpired:

The problem for all of the fishing community in the Fraser River is that we got exactly what we expected to get, which was nothing. We were told we would get delivery of economic viability. Economic viability in the year 2001 was zero fishing for us while we watched other people taking the same stock that we hadn’t been able to take before in a non-priority fishery.

Mike Forrest, as individual

In the opinion of Mr. Forrest, it was the Aboriginal pilot sales fishery that received the benefits of downsizing the fishery. On the other hand, Mr. Narcisse stated that the economic benefits of the pilot sales program extended beyond the reserves into the non-native communities.

Non-Aboriginal witnesses asked for a return to the pre-1992 goal of increasing Aboriginal participation in the fishery “in an honourable and fair way for everybody” by having everyone in one commercial fishery fishing under the same rules.

Review of the AFS

Ms. Laviolette proposed that the Aboriginal Fisheries Strategy and the pilot sales program in particular undergo a proper review:

Not just a review by other people making comments as to what they think that is, but really take a good look at what this program is, the benefits to all British Columbians and people across Canada, and the benefits to the resource. It will be a win-win situation, if we stop the “them and us” — really.

OTHER DFO MANAGEMENT ISSUES

Witnesses were very critical of DFO’s management of the salmon fishery. The most radical view the Committee heard was that it was DFO’s intention to destroy the public commercial fishery.

So after the industry’s tumultuous and terrible time, the fleet reduction, and the fights between friends who had been friends for a hundred years over whether this was a good thing or not, you have to think, given DFO’s actions, that they’re engaged in a deliberate plan to destroy and decimate the commercial fishery in B.C.

Phil Eidsvik, Spokesperson, B.C. Fisheries Survival Coalition

Others were not prepared to go so far but nevertheless thought that DFO no longer considered commercial fishing an “appropriate business.”

You could conclude that the destruction of the public commercial salmon fishery is an objective, but I’m one who’s like Mike. I don’t think the department’s that smart or has that kind of a devious plan.

Glenn Budden, Fishing Vessel Owners’
Association of British Columbia

Some of the factors that, in the view of witnesses, contribute to DFO’s management difficulties are outlined below.

Risk Aversion

Witnesses suggested that the cumulative effect of incremental changes over a long period of time has brought about a mindset within DFO that precludes fishing. Although managing risk is inherent in managing a fishery, witnesses believe that the current managers at DFO are now so risk-averse that they find it easier to have no fishing at all than to attempt to manage the risks:

There are risks involved in managing a fishery. No matter what you do there are risks. And right now we have a department totally unwilling to accept risks.

Bob Rezansoff, President, Fishing Vessel
Owners’ Association of British Columbia

They have abdicated their responsibility to mount fisheries. I always thought they were there to manage fisheries. Right now, it seems they’re there to manage not fishing, and that ain’t very hard.

Mike Griswold, President, Gulf Trollers
Association

Lack of Fisheries Experience at Senior Levels

Witnesses also identified a lack of knowledge and experience amongst senior DFO managers, most of whom had not come up through the ranks of the Department and had limited experience with the Department as an issue. The Fishing Vessel Owners’ Association, for example, expressed its concern thus:

We would surely like some help from your committee perhaps in suggesting the management system has to be somewhat restructured. I’ve been at this for 39 years — you’d know we did have career management people at senior staff levels, people who had hands-on knowledge and experience of running the fishery. I don’t see those people now.

Bob Rezansoff, President, Fishing Vessel
Owners’ Association of British Columbia

The United Fishermen and Allied Workers Union argued that a combination of inexperience and increasing complexity of the rules contributed to the almost complete failure to mount a commercial fishery in 2001 despite substantial runs of salmon:

The new rules — conservation rules, allocation rules, wild salmon rules, selectivity rules — that DFO has developed with a helter-skelter process didn’t really show up for the implementation problem until this year because there really weren’t significant abundances available for harvest. But this year we see just how incredibly inept the managers are and the incredible difficulty they have implementing those rules, howsoever valid they might be.

John Sutcliffe, Vice-President, United
Fishermen and Allied Workers Union

Loss of Flexibility

According to witnesses, DFO has lost the flexibility needed to manage the fishery, because of its current policies. For example, under departmental policy, a commercial allocation in one location can trigger a pilot sales fishery on entirely different stocks in the Fraser River. The Department is unwilling, for this reason, to allow commercial fisheries for fear of overfishing different stocks that cannot withstand fishing effort. This has in turn hampered the Department’s ability to assess run sizes by conducting commercial fisheries:

One thing leads to another. It has hamstrung us. We cannot manage the fishery any more. We have no flexibility, and flexibility is absolutely necessary in order to run this fishery. All of a sudden we’ve put ourselves into this very narrow little box and are trying to provide opportunities, and we have no room to move.

Mike Griswold, President, Gulf Trollers
Association

The result is that DFO is now totally dependent upon using test fisheries, which have a limited ability to provide information:

So there are a whole number of contributing factors and they work on each other. So with the increased uncertainty they have without fisheries, and the increased uncertainty around numbers taken in pilot sales fishery, the intention to have fisheries is lowered, and then of course uncertainty becomes greater and it’s a completely untenable management regime.

John Sutcliffe, Vice-President, United
Fishermen and Allied Workers Union

Escapement Policy

According to witnesses, the school of thought among new managers at DFO management is that the more fish are put on the spawning grounds, the more fish will return. But this is not necessarily so. In reality, say witnesses, there is no direct correlation between escapement and returns, and optimal returns are often produced from smaller escapements:

There’s a high correlation between over-escapement and poor return, particularly for sockeye. Every major over-escapement event since 1956 has resulted in a near-collapse in the Skeena, in Rivers Inlet, and in the Fraser River. But our managers go on dumping more and more fish on the spawning grounds.

John Sutcliffe, Vice-President, United
Fishermen and Allied Workers Union

One of the theoretical models that describe this phenomenon is known as the Ricker curve.⁵⁰ This model predicts that the maximum number of recruits is produced at a specific escapement level; beyond which the number of recruits decreases as a result of what is called “compensation.” In practical terms, compensation results from effects such as overcrowding, disruption of spawning sites and a greater risk of disease as the number of spawners increases.⁵¹ According to the Ricker curve, the number of recruits approaches zero at very high levels of escapement.

River systems said to be at risk from overescapement included the Chilko and Horsefly. Limited fishing opportunities on the 2001 run of 20 million pink salmon in the Fraser River to protect the late run of sockeye may have resulted in an overescapement.

It was suggested to the Committee that DFO is setting excessive “escapement targets” as a means of delivering fish to Native bands fishing up river.

CONCLUSION AND RECOMMENDATIONS

Earlier in this report, the Committee noted that the pilot sales program was an experiment intended to bring order with respect to illegal fishing and sales by Aboriginal people and to protect the stability and the profitability of commercial fishery.  This decade-old trial has failed, at least in its current form.  It has not brought order to Aboriginal fisheries; rather it has provided further opportunities for illegal fishing and sales.  It has not protected the stability and profitability of the commercial fisheries; instead, it has added another layer of complexity to the fishery, making it almost unmanageable.  As a consequence, the livelihoods of Canadians involved in the commercial salmon fishery have been threatened despite the availability of a substantial resource that could have been harvested in a more equitable way.

In response to the 1999 Supreme Court of Canada Marshall decision, the Standing Committee on Fisheries and Oceans, in its December 1999 Marshall report, recommended that the transfer of access to fisheries resources to First Nations communities be accomplished through a voluntary buyback of existing commercial licences and that commercial fisheries for both Aboriginals and non-Aboriginals be conducted under one set of rules and regulations for all participants in a particular fishery. We believe this approach is still sound and should be applied consistently.

On the Fraser River, where there is at present no constitutionally protected Aboriginal right to engage in commercial fishing on the Fraser River, there is less justification for establishing separate Aboriginal commercial fisheries. The Committee strongly supports the active participation of First Nations in commercial fisheries, but it believes that an integrated commercial fishery best serves the interests of conservation, the commercial fishing sector and First Nations themselves.

Therefore the Committee recommends:

RECOMMENDATION 1

That DFO return to a single commercial fishery for all Canadians, in which all participants in a particular fishery would be subject to the same rules and regulations. Consequently DFO should bring to an end the pilot sales projects and convert current opportunities under the pilot sales program into comparable opportunities in the regular commercial fishery.

The Committee recommends:

RECOMMENDATION 2

That the government ensure that DFO respects the “public right to fish,” and that the Minister of Fisheries and Oceans reassert his authority to manage the fishery.

The Committee recommends:

RECOMMENDATION 3

That, as long as pilot sales agreements continue, food and sale fisheries on the Fraser River and elsewhere on the coast of British Columbia be kept completely separate; and

That equal priority of access to the resource be provided to all commercial fisheries whether public or AFS pilot sales fisheries and that all measures required for conservation purposes be applied equally to both fisheries.

The Committee recommends:

RECOMMENDATION 4

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 being abused.⁵²

The Committee recommends:

RECOMMENDATION 5

That funding be restored to DFO at levels adequate to the tasks of restoring science and enforcement programs critical to the conservation of the resource, habitat protection, enhancement and recruitment of professional fisheries managers and prosecution of commercial and recreational fisheries.

The Committee recommends:

RECOMMENDATION 6

That DFO fund and support activities of more fisheries officers;

That any person who has been convicted of a fisheries violation, not be designated as guardian;

That DFO provide the resources for guardians to complete all phases of their training;

That the monitoring and enforcement component be separated out of AFS agreements and that the guardian program be funded directly to ensure stability of the program and to provide autonomy to Aboriginal fisheries officers and guardians; and

That, to provide greater independence for Aboriginal fisheries officers and guardians, they, together with DFO fisheries officers, be responsible to the head of DFO enforcement.

The Committee recommends:

RECOMMENDATION 7

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

The Committee recommends:

RECOMMENDATION 8

That DFO provide more stable access to the resource for the commercial and recreational fisheries.

The Committee recommends:

RECOMMENDATION 9

That DFO invest in more research to improve the run forecast system, including improving the test fishing system; and

That DFO give high priority to research to determine the reason for the earlier than normal return of the late-run sockeye.

The Committee recommends:

RECOMMENDATION 10

That the Department of Fisheries and Oceans make a report to the Standing Committee on Fisheries and Oceans on an annual basis on the progress made in dealing with the issues and problems raised concerning the Fraser River salmon fishery, and that the report also be tabled in Parliament.