FOPO Committee Meeting
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Standing Committee on Fisheries and Oceans
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EVIDENCE
Tuesday, December 9, 2025
[Recorded by Electronic Apparatus]
[English]
I call this meeting to order.
[Translation]
Welcome to meeting number 18 of the Standing Committee on Fisheries and Oceans.
[English]
I want to start by acknowledging that we are gathered on the ancestral and unceded territory of the Algonquin Anishinabe people and by expressing gratitude that we're able to do the important work of this committee on lands they've stewarded since time immemorial.
Pursuant to Standing Order 108(2), the committee is meeting to continue its study on the review of the Fisheries Act.
[Translation]
Today's meeting is taking place in a hybrid format. Pursuant to the Standing Orders, members may participate in person in the room and remotely using the Zoom application, but I think everyone is here in the room today.
[English]
Before we continue, I would like to ask all in-person participants to consult the guidelines written on the cards on the table. The measures are in place to help prevent audio and feedback incidents and to protect the health and safety of all participants, particularly the interpreters. You will also see a QR code on the card, which links to a short awareness video.
Pursuant to our routine motions, I would like to advise committee members that all witnesses appearing virtually today have successfully completed the required technical testing.
I would just like to make a few comments for the benefit of the witnesses and members.
Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mic and please mute yourself when you are not speaking.
[Translation]
Interpretation services are available. Those on Zoom have the choice, at the bottom of their screens, of either floor, English or French. Those in the room can insert their earpieces and choose the appropriate channel.
[English]
I remind you that all comments should be addressed through the chair.
[Translation]
Members in the room wishing to be recognized must raise their hands. The clerk and I will do our best to maintain a consolidated speaking order. Thank you for your patience.
[English]
With that, I would like to welcome the witnesses we have here today.
We have Kent Spencer, aboriginal affairs adviser, and Mr. Scott Coultish, who is appearing here as well.
We're going to start with opening statements from the witnesses for five minutes or less, starting with Scott Coultish.
Thank you, Mr. Chair.
My focus will be on the law enforcement barriers faced by fishery officers.
Thank you to all members of this committee for taking the time and having interest in improving the DFO, particularly the conservation and protection directorate, commonly known as C and P.
As we know, the DFO's mandate is large and complex, and it affects all Canadians in all regions of the country in one way or another. Hundreds of thousands of people in Canada participate in fishing and related cultural activities, and they depend on the DFO to properly manage, conserve and protect our fisheries resources.
Thousands of people across the country who work for the DFO share these same interests, values and goals each and every day they come to work. With regard to C and P—the face of the DFO to many fishers, first nations and the public at large—we are the uniformed law enforcement staff they see on the water, at the docks, on the riverbank, on the beach, at meetings and sometimes in court.
As with most law enforcement organizations in Canada, fishery officers garner—as do most police and other law enforcement officers—an increased level of respect because of their law enforcement mandate, profile and responsibility to treat everyone with respect and fairness. Unfortunately, the DFO as a whole has a lower level of trust because of what is seen as manipulation from high-profile politics, the ever-changing management at senior levels in the DFO, questionable science in the eyes of the public, exclusion from decision-making, backroom deals, and a lack of understanding and response to conflicting interests—first nations versus industry or recreational fisheries and so on. This has resulted in the erosion of trust and confidence in the DFO.
In my 32 years of service, I served under seven prime ministers and 18 ministers of Fisheries and Oceans. The changes and impacts that the DFO faces with each change of government and senior administration reverberate for months, if not years. These changes in leadership, staffing, policy directions, program funding, resource allocation, communication, priorities and settings can have and have had disruptive influences on the DFO and on C and P. Consistency is a pipe dream under these circumstances.
However, the compliance and enforcement expectations of the fishing public, first nations, stakeholders, and the fishing industry and the public at large haven't changed. They expect C and P to protect the fisheries resources, to act in a professional manner, to be free from political influence, to always be unbiased in compliance and enforcement actions, and to build and maintain trust with all. It significantly affects C and P's ability to provide compliance and enforcement in the field when confrontation and refusal to comply is now being seen as a rite of passage for many individuals and groups.
Fishery officers are the true face of the DFO. It is well known that police and law enforcement garner the highest level of trust and respect from the public when compared to government agencies. The DFO needs to capitalize on this trend and to have fishery officers engaging with the public and stakeholders at every opportunity. C and P needs to work and to be perceived to work at arm's length from the politics and decisions that are seen as being made by Ottawa behind closed doors and using flawed science. These are words that, if you look on the Internet, you will see a lot. C and P can have a functional relationship with fisheries planning and harvest while at the same time having a direct line report to the national C and P directorate, managed by law enforcement professionals.
There are several issues in particular. If asked, I have some advice on the idea of integrated resource management planning and fishery notices; on the national fisheries intelligence service, which I was involved in the development of back in 2011; and on major case management as an investigative tool in the DFO. Also, I believe that the undercover covert operations group that I managed in the Pacific region needs to be expanded. I can discuss that or go over it a bit if asked questions.
That's my presentation.
Thank you.
Thank you, folks.
Thank you, Mr. Chair
You have my background about who I am. My presentation today is going to talk specifically about the field officer and some of the issues that arise.
In my various positions, enforcement has been a significant part of my job in a lot of ways. Some of the people I used to deal with were first nations, with recreational and commercial fishermen. The issue, for a lot of the enforcement folks nowadays, is focused more on first nations fisheries simply because, in the other two fisheries, we have acts and regulations that govern the execution of those fisheries, that specifically lay out what a fisherman can and can't do.
When we get to the first nations fisheries, or the FSC—the food, social and ceremonial—fisheries, the legislation is more ambiguous, and implementations of any charges are based on legal opinion. First nations individuals are treated differently from recreational and commercial fishermen simply because of their right to fish for food.
The way the situation works now in the Pacific region and in the marine areas is that if a first nations individual is found in an investigation to have violated their communal licence, an investigation must be completed. This may take anywhere from 100 to maybe 1,000 hours of investigative time. This includes getting search warrants and accumulating statements—all those things put together. This is submitted to the Department of Justice for review. After that, it usually takes between four months and two years for a decision on whether charges will go ahead.
However, the key factor in moving ahead with charges is based on support from the first nations chief and council. If they support it, then the DFO will move forward on charges. If not, in most cases, charges are never put forward. As a consequence, fishery officers are not willing to put the time and effort into building a case for which charges won't be approved.
There are other instances in which we have pieces of legislation that are contrary to each other. We have the indigenous protected and conserved area, which is an ability of a first nation, of its own accord, to pick out a piece of territory within its area and make it a conserved area. What this means is that it now keeps out all fishing activity within the area. The DFO recognizes the IPCAs, but it does not make changes in its fishing plans to accommodate them. Therefore, we have situations in which commercial fishermen go into areas that have been declared IPCAs, and the first nations chase them out of the areas, claiming they're closed.
There's another incident I'm aware of in which the first nation went on its own authority, seized commercial crab gear in an area that was an FSC-only area and brought the gear back to its reserve. This occurrence is still under investigation.
I'd just like to go to the conclusion at this point. This is from the field personnel.
First nations fisheries are difficult for fishery officers to enforce for a number of reasons. The FSC regulations or the conditions of the communal licence are ambiguous. Placing an FSC charge requires an inordinate amount of work to develop a file to provide to the Department of Justice for approval to move forward. In most cases, charge approval is granted only if the chief and council will approve charges against their own members, but this does not happen often. Fishery officers are unlikely to start an investigation if support from the chief and council will not occur.
When there's a situation in which the IPCA and DFO programs clash, fishery officers are not likely to try to get involved, because there's no clear definition of what they should be doing. There's also a lack of resources, both monetarily and personnel-wise, to properly monitor FSC fisheries and off-loading sites. They need more funding and more personnel.
Finally, if some of these issues are not addressed, the department will lose complete control of the FSC fishery, which will lead to conflicts and violence with other user groups. More importantly, the lack of control will lead to significant negative impacts to the fisheries resource for all user groups, including first nations.
Thank you very much, Mr. Chair.
Thank you very much, Mr. Spencer.
That concludes our opening remarks.
We're going to go into the first round of questioning, the six-minute round, starting with Mr. Small.
Thank you, Mr. Chair, and I thank the witnesses for coming today.
I'll start with Mr. Spencer.
You spoke of ambiguous regulations. Are C and P people familiar with all the rights and reconciliation agreements that have been formulated over the last few years and were supposed to have been gazetted, but oftentimes were not gazetted? Do you think officers have the familiarity with the RRAs that they should?
In most cases, yes, the people I know are familiar with what's going on with the reconciliation agreements.
The ambiguity arises.... Basically, there aren't too many reconciliation agreements on the west coast right now. There are a number ongoing, which have been worked through, but there's not a lot of detail in the aboriginal communal fishing licence regulations. It puts the emphasis back on the communal licence, and there's some ambiguity within the communal licences because of court cases that have happened and the changes to the communal licences.
More work has to be done with the communal licences. When I say “more work”, that basically means starting again and having a discussion with the groups about licensing, about all their activities and the whole nine yards. It's a big undertaking.
We've had C and P personnel tell us that their job has become really difficult over the last 10 years, and you spoke of the ambiguity in the regulations. Where does this leave the power of the Fisheries Act to carry out its number one mandate, which is conservation of the resource?
This is where it gets very difficult.
First nations have the first kick at the cat, if you will, or the first right to harvest fish for FSC. The issue then is when and how much they can harvest, especially if we have low runs. It's hard for C and P to enforce something when it's not specifically defined.
We can try to say, “You can harvest so many pieces of fish”, but if the person goes over that, it's difficult for us to charge, in the sense that maybe they'll make the argument that the extra fish is needed for additional people within the community and they need the food to survive.
I'm not disagreeing with any of that, but it makes it very difficult for a fishery officer, who needs to be able to know what is right and what is wrong in order to enforce the act.
If the act is not being enforced, there are ambiguous regulations and whatnot, and it's leading to the demise of the resource, it's going to affect first nations and non-first nations alike, isn't it?
At the end of the day, do you think we should somehow be having a collaborative approach, or should we have everything carved in stone and let the act do its work?
I think we need to have a lot more discussions with first nations to establish what their true requirements are and to know what they're going to want. They're not going to be able to get it all, because they have to share the resource with other nations as well.
Mr. Coultish, there seems to be a lack of enforcement of regulations over the last few years. Do you think there is politics at play? What's the effect on illegal, unreported and unregulated fishing?
In fact, I watched one of the previous sessions and your comment in particular about the Fisheries Act, whether it needed a lot of touching up and so on. My answer would probably be no.
The act and the regulations are pretty clear. Where it starts to get a little bit messy is with much of the first nations fisheries, but this applies to the commercial and recreational as well, when we negotiate and the department determines harvest limit levels and so on. Particularly with the aboriginal fishery, when the department wants to sit down and negotiate with individual bands and there has been a determination on harvest levels to ensure conservation—we'll call it salmon on the Pacific coast, where we are—they are the first group to get under food, social and ceremonial.
The idea is that we need to establish that under a harvest agreement, it includes a quota, it includes numbers. Every other fishery—recreational fishery, commercial fishery—is pretty stringent when it comes to allocation, and I would say pretty accurate.
When it comes to some of the first nations fisheries and some of the individual bands that look at it, I don't believe there's a whole lot of confidence in the organization on numbers. As for the allocation of, for instance, a catch on an aboriginal fisheries and communal licence, in which it says that the band is to harvest 35,000 pieces, the band.... Many of them have their own people out there, and they'll get numbers. However, there are a lot who don't. Those numbers that come back, or don't come back, constantly create a management issue when it comes down to it, and conservation is the number one concern.
From a law enforcement perspective, this was my comment about integrated resource fishery, or management fisheries. It doesn't matter whether it's a commercial, recreational or first nations fishery, C and P are the ones out there to enforce the closures. If we've got a band or individuals exceeding quotas, and we can prove it, we're going to be the ones out there enforcing that.
The people who we're going to be relying on are our managers, who are making the decisions that there is a harvestable amount and how much can be harvested. If we end up taking people to court, the managers have to come and be able to substantiate that, because the DOJ looks at them as being excellent witnesses.
Thank you, Chair, and thanks to the witnesses for being here.
Mr. Coultish, you talked about erosion and mistrust within the DFO after 18 ministers, I think you said, in I'm not sure how many years, but in a number of years.
Do you think the ministers have stayed within the Fisheries Act? Have they all followed the same direction, or were there discrepancies in how the ministers were dealing with the act?
Well, I would hope that anybody coming into the position has a genuine interest in the Department of Fisheries and the people who work for it—and ultimately the people in Canada who are associated would benefit from that.
I've never seen one that I would say didn't have an interest. Of course, out of the 18 ministers, I believe some were more efficient than others. At the end of the day, though, they rely a great deal on the people who work in DFO at senior levels to educate them and bring them up to speed. They also bring in their own people at senior levels, and those people bring an influence.
Let's face it: Every one of you represents a constituency, and some of them have greater interest in fishing activities than others. They will call you with interests within the fishery and will explain things that are going on. They influence, ultimately, some decisions and some things that occur within the management of that fishery.
What happens is that, when you see these things occur, it's kind of like walking on a fast treadmill going straight. At times it's great, but all of a sudden you get bounced. Decisions are made that reverberate all through your organization.
What we're truly looking for—and I said this back in 2012, when I testified at the Cohen commission—is some level of consistency within C and P. That's in DFO, absolutely, but within C and P, we have to be insulated from the politics. If we're going to be looked upon as accredited—and we want to be an accredited law enforcement organization—we have to be insulated from political decisions.
Ultimately, we see ourselves as the people who are out there. Decisions are made about closures and about other things, but we're protecting the resource and representing the organization to the public when it comes down to those decisions. We're the greatest communicators of DFO policy.
Okay. Thank you so much.
You also talked about backroom deals, and I'm wondering if you can give an example of what you've seen as backroom deals.
What I've seen personally, and certainly heard of, is that senior members of the fishing industry, as owners of large companies that control a large portion of the fishing activity and the vessels, have direct lines on their speed dial to senior management in the region and in Ottawa and can contact them directly to talk about activities and issues. That these things can then be reflected, or potentially reflected, does not bode well for making unbiased fishery decisions based on science. I think all of us who have worked within DFO, and I'm sure in other organizations, cringe at the thought that people can phone our senior people like that and have these conversations that are potentially not based on science.
Right now, all it takes is to look at the Internet, particularly on the east coast. If you were to talk to probably 10 people in any of those fishing communities and ask them what confidence they have in the science DFO is using, I would dare say that the majority of them will say they don't believe it. It's because the information is not correctly getting down to the people who see it affecting them, and that's what I've said.
I believe C and P can play a big role in that, because we're in the uniform and we're on the docks. We hear this, and we need to be able to give that to them, because they don't respect suits, sweaters and sandals. A lot of biologists wear suits, sweaters and sandals.
I'm not saying the people aren't good; I'm saying that the good information that they're making, and the reasons, are not getting to the very people who need it, and that's why I think we can play a big role in that.
Thank you.
Mr. Spencer, you talked about reconciliation on the west coast. It's an ongoing process. I'm wondering if you could talk a bit about how we can work on enhancing and furthering the reconciliation process.
Thank you very much for being brief.
Thank you very much, Mr. Klassen.
[Translation]
We now go to Mr. Deschênes.
You may go ahead for six minutes, Mr. Deschênes.
Thank you, Mr. Chair.
Good afternoon. I'm pleased to be with you today to discuss this important issue, the enforcement of the act.
Mr. Spencer, you spent 35 years working at DFO. In your opening remarks, you talked about laying charges against a member of a first nation. If they are fishing for food, social and ceremonial purposes, the activity is entirely legitimate. If the individual is engaging in inappropriate or illegal fishing activity, however, the chief and band council need to support charges being laid before they can be pursued. Is that what you said?
[English]
Yes. Basically, in most cases, before charges are approved, the Department of Justice needs approval from the chief and council to move forward on charges.
[Translation]
I gather that you witnessed cases where individuals were fishing illegally or violating certain rules. An investigation would be conducted, information would be gathered and even the prosecutor would support prosecuting the charge, but ultimately, the band council would not approve the charges. Do I understand that correctly?
[English]
Yes.
Charges were requested. This went to the Department of Justice. There was a note in there that the nation did not support the charges. After reviewing the file, the Department of Justice did not proceed.
[Translation]
[English]
[Translation]
[English]
No. In a number of cases, no.
What normally happens if you're going to charge a member is that, in a lot of cases, the band council will not support charges simply because they believe it's a member's right to fish as they feel they want to fish. If the Department of Justice doesn't get this approval, it's very difficult to get charges approved.
[Translation]
At what point in your career did DFO give the direction to ask band councils and chiefs for approval before charges could be laid? Where did the direction come from?
[English]
It is part of the requirement under the Department of Justice. The Department of Justice is looking for feedback from the nation on whether they should go ahead to approve the charges. It's a standard document that they need in the file to know if the band is going to approve the charges.
[Translation]
[English]
Mr. Chair, I can speak to some of that. I was the fishery officer in many locations in which we dealt with first nations, as well as an area chief in charge of a large geographical area. Historically—really, since the Sparrow decision in 1990, which was a key decision.... In fact, I was on the boat that arrested Mr. Sparrow when this occurred back in the early 1980s.
The organization has really moved to a collaborative approach—there's no question. It doesn't matter, again, whether it's commercial or recreational. However, particularly with regard to first nations, given the level of conflict we've had in the past in certain cases—I'm speaking about 11 years ago, when I was working—there's still an ongoing issue when it comes down to some first nations. They simply don't agree with science. They don't agree with the organization. They don't agree with our authority in that regard to manage the resource.
Now, more and more, the standard operating procedure would be that we want to have them on board, that we want to have an agreement with them. Then, pursuant to that agreement, we will issue either a communal licence simply for food, social and ceremonial purposes or one that also includes sale.
[Translation]
That agreement exists, and fishing for food, social and ceremonial purposes is entirely permitted. However, a member of a first nation may violate the agreement by harvesting a resource they are not allowed to harvest, and a fishery officer may find out about it. Are you telling us today that, in a similar situation, charges can be laid only with the band council's approval?
[English]
Well, I think I can clarify. In the past, when actions of a member were egregious to the intent of the agreement that the band had signed, they would often approve charges being laid because they didn't agree with those actions.
When politics start to become more involved, versus the rule of law, that's what we need to focus on: the rule of the law and how it's applied. If the DOJ is reluctant, then we have to make sure that our cases are firm, our decision-making is firm and our science is firm; then there's no reason not to charge, other than the agreement. If we can do that—although the constant updating of these agreements and negotiations has to occur—at the end of the day, the minister has the ability to issue a licence, and that's what is required for anybody who is fishing—
[Translation]
Thank you very much.
Your time is up, Mr. Deschênes.
[English]
That finishes the first round. We're going to move into the second round for five minutes.
Mr. Gunn, you have the floor.
Thank you, Chair, and thank you both for joining today.
Mr. Spencer, last week we heard from the national chief enforcement officer from DFO, Peter Lambertucci. He said that DFO and fishery officers always enforce to the letter of the law and that politics never gets involved in the decision-making process. Is that true?
I would say this applies more to FSC fishing, because of the ambiguity of the situations, court cases and current litigation, and a whole myriad of things.
Maybe you could be more specific. Did you witness the Department of Justice making decisions based on politics, and not on the letter of the law, that changed over time?
I've witnessed the Department of Justice making decisions based on new legislation or new court decisions that weren't necessarily in line with the letter of the law.
Earlier we were talking about indigenous protected and conserved areas. I asked the national chief enforcement officer about who is in charge of openings and closings, and he said it's DFO, the Department of Fisheries and Oceans. However, I've heard from fishermen that openings in many of these areas are declared unilaterally by various indigenous groups, and then fishermen go up and get chased out by indigenous groups.
I asked him if that was against the law. He said yes. Then I asked why there was no follow-up action from DFO, and he said they didn't have the resources to manage those areas.
Is this true, or is there a political decision being made not to deal with the situation?
I think it's a situation of first nations making a claim or a decision about their territory that is not in line with departmental fishing plans or departmental regulations, so there's.... They don't know what to do.
That's at this point.
I would just say that it's a decision being made because there's no clarity on the situation. If the first nation declares an area, and then it's supposed to be open but it's not, it's an area of ambiguity for the department.
Mr. Spencer—and Mr. Coultish, if you have an example, feel free to jump in as well—you mentioned examples of charges not being approved by the Department of Justice because the first nations band did not support the charges after extensive work was put in by fishery officers.
Do you have specific examples of the most egregious cases in which you thought charges should have been approved but weren't?
I have a couple of examples.
You first framed the question about politics being involved. From a C and P perspective, I have two examples of interference from non-C and P staff, senior staff, that had an effect on our operations.
They are earlier. One was, I believe, around the mid-2000s. The other one was in 2003. They both involved area directors making decisions that compromised C and P's ability to do the job. They were both brought up and raised. In fact, I was involved in one of them as acting director of C and P, and it went right to Larry Murray, who was our deputy minister at the time. He was very decisive. That decision was reversed, and it never happened again.
On the issue with regard to the politics, we've seen decisions that occurred. There's been a lot of activity happening on the east coast and potential confrontations that have been heard about. We've heard of vessels that have been burned. We've heard of assaults that have happened. We've heard of shots fired and things such as that going on.
From an organization point of view, much of that isn't under the Fisheries Act. That is civil disobedience and so on, situations that the RCMP and other policing agencies would get involved in, and I can tell you that they do not want to get involved in that kind of stuff. They see it as a fisheries thing.
At the end of the day, communication and talk are going to solve much of that, but—
I'm sorry, Mr. Coultish. We're well over time here, and I'm going to have to cut you off. If there's more that you want to share, please do so in writing. This is definitely very interesting testimony.
With that, I'll go to Mr. Morrissey for five minutes.
Thank you, Chair.
I have a question for the other gentlemen, and thank you for your testimony here.
I'd like to clarify your definition of politics being involved. Define the politics.
Okay. In my view, it's interference from another group or some other higher official that will affect the outcome—
Have you ever been aware of ministerial interference in a decision?
You're saying “politics”. The general public would look at politics as an elected official being involved. We had testimony from the director of public prosecutions who, on the record—and we will get a chance to go back—was very clear that they are independent of all elected officials or from senior people influencing their decisions.
I just want to be clear. There's a conflict between your perception, your terminology, and what the public may understand as it relates to politics.
In terms of, say, the Department of Justice, in my view, the changes that could be made are made basically from further court cases, further things coming down the line, where it—
You're referencing court cases. We live in a country that is under the rule of law in the courts. All charges must respect the court decisions, and courts tend to be precedent in their decisions.
I'm not insinuating that we shouldn't, because I believe, at the end of the day.... It's not that I “do believe”; it must be, for the overall good of the fishery and conservation, that the individuals involved in infractions that clearly undermine the conservation and protection of a resource should face the full weight of the law. That's what I want to be clear with at this committee, as it relates to the act and if we have to strengthen it.
However, intermingling the term “politics” is what I want to be clear on. Is it senior managers? Is it internal politics within the ministry? Is that what you're referencing?
When you hear that term.... In my career, I spent a lot of time in what I would refer to as “dock talk”. That is being down on the docks and down on the boats. One job I held was at the IVQ on the west coast in the early and mid-1990s. It was to be down on the boats every time they came in.
A lot of the people who are associated with the industry—vessel owners, lease owners and so on—see politics within the DFO organization and above, up to the minister's level. Personally, I've never encountered that, and I can't recite an issue in which I felt that the minister interfered. In fact, I've had ministers on board my boat out on patrols, chatting on different things.
However, the general public, the fishing industry and first nations see politics at the regional levels, sometimes as low as the area levels and certainly in Ottawa. There's often the idea that decisions made in Ottawa that affect the west coast and east coast don't reflect the interests of the local industry and their issues and concerns—
Yes, that's fine, but that's not where we're going. That's why I found some—I'll be candid—conflict in your testimony and the answers you've been giving here, in those specific areas in which the bill could be improved to ensure that this does not occur.
There will always be court decisions that will go in a particular direction and will then influence further action on infractions. That's just the way this country has always worked under the Supreme Court and the letter of the law. It concerns me when, without a lot of background reference, one keeps throwing in the terminology that politics—this kind of politics—was involved.
I'll close. I know I'm over time. I think you clarified that the politics you were referencing was internal within an organization, internal in the wharf talk and a whole host of areas.
Thank you very much, Mr. Morrissey.
[Translation]
Our last questioner is Mr. Deschênes.
You may go ahead for two and a half minutes, Mr. Deschênes.
Thank you, Mr. Chair.
Mr. Coultish, I'd like more information on two events you described in your written submission, one in 2006 and one in 2014. You say that, in 2006, you had some involvement in an investigation where 1.9 million pounds of salmon was discovered. Talk a bit about what happened, if you would. What happened in the end? Why weren't charges laid in that case?
[English]
This was probably one of the most identifiable cases. On the Fraser River and on the south coast of British Columbia, there is a large food, social and ceremonial fishery by first nations. In particular, on the Fraser River, from the mouth of the river and all the way up the river, a number of bands fish for food, social and ceremonial purposes—
[Translation]
[English]
We entered into an investigation to try to determine the amount of food, social and ceremonial salmon that was being kept in cold storage facilities. These are generally large facilities where commercial fishermen and companies will often store their fish as well.
We conducted this investigation over a number of months and found that there were about 1.9 million pounds, or approximately 358,000 pieces, in cold storage, kept in a variety of conditions, but mostly cut into small packages, vacuum packed and so on. Much of it was not marked. Some of it was. It was owned by a number of people, most of it by a small number of individuals. Most of them were first nations individuals, some owning thousands of pounds of this product.
Some individuals had a history with our organization, C and P, for suspected activity with the idea of sale, and this was the concern we had with this large volume of fish. It costs money to process this fish. Who's paying the money if this fish is actually food fish, if you want to call it FSC?
We asked senior management in the region for additional funding to track it the following year. We were denied. We were turned down. As a result, we were no longer able to continue the investigation to determine who owned the fish, where it went and, particularly, where it was going throughout these communities if it was FSC fish.
We did an audit in the summer of 2006. We found that 70% of this product had gone, with no way of tracking it.
I'll tie this in to major case management. If, at the time, we had had the ability to conduct these investigations with the use of major case management principles, and if funding had been provided to the region through the C and P directorate, we would probably have been able to continue this investigation.
Things may have changed. I'm hoping they have. In this particular case, because this very large investigation was turned down, it affected our ability and interest to do large-scale FSC investigations afterward.
Thank you very much, Mr. Coultish. We're well over time.
That finishes our time for today. Of course, if anything came up in questions today that you want to share and you weren't able to get to, please submit it in writing. I can tell that both Mr. Coultish and Mr. Spencer have a wealth of knowledge, so if there's anything we weren't able to speak to that you'd like to share with the committee, please do so in writing. This will be very helpful as we finalize our report and the recommendations that are going to flow from it.
With that, I want to thank you very much for appearing today. We're going to briefly suspend while we welcome our next panel.
I'm going to call this meeting back to order.
I want to start by making a few comments for the benefit of our new witnesses.
Please wait until I recognize you by name before speaking. For those participating by video conference, you can click on the microphone icon to activate your mic, and please be sure to mute yourself when you're not speaking.
[Translation]
Interpretation services are available. Those on Zoom have the choice, at the bottom of their screens, of either floor, English or French. Those in the room can insert their earpieces and select the appropriate channel.
[English]
This is a reminder that all comments will be addressed through the chair.
With that, I'd like to welcome our witnesses here today from the Department of Fisheries and Oceans.
We have Mr. Peter Lambertucci, national chief enforcement officer. Welcome back.
We have Paul Didham, supervisor, major case management, Newfoundland region, by video conference. We have Neil Jensen, chief of recruitment, training and standards, Pacific region, by video conference as well.
We have Trevor Lushington, fishery officer, and Rae McCleave, program officer and on-site training coordinator, also by video conference. We also have Mr. Geoff Thorburn, fishery officer and acting habitat coordinator, Vancouver Island and Sunshine Coast.
I understand that most of you would like to make a short opening statement. I will allow it with the understanding that we may extend this hour by about 10 to 15 minutes if members want to have their full questioning time.
We'll start with the opening statement from Mr. Lambertucci.
Thank you, Mr. Chair.
Good afternoon, committee members. I am pleased to be here today on the traditional territory of the Algonquin Anishinabe people. I would like to thank the committee for their interest in the work of conservation and protection and for inviting fishery officers to appear before you today.
I am incredibly proud of the work done by all our officers across this country, from coast to coast to coast. Recognizing that today is my third appearance before the committee in recent weeks, and the value in having frontline conservation and protection officers before you as witnesses, I will keep my opening remarks very brief. That will allow the officers more time to read their opening remarks. The committee can also maximize the time they have for officers' testimony.
Thank you.
Mr. Chair, thank you for the opportunity to speak here for the first time.
I'm Neil Jensen, the chief of recruitment, training and standards for the Pacific region. I've had a diverse and extensive career in the Pacific region, serving as a general duty officer and supervisor in the B.C. interior, the south coast and the lower Fraser, as well as in the B.C. aquaculture enforcement unit, before becoming a regional manager at headquarters.
Over that time span, I've seen a lot, including many ups and downs in the evolution of the conservation and protection program into what it is today. I've enjoyed many experiences and achievements over the years. I still love the job as much as when I first joined many years ago.
You'll hear many interesting insights from my colleagues today, and I look forward to answering questions, but I want to highlight two key topics of interest. First, in revising the Fisheries Act, a top priority should be to enable better traceability to prevent fish laundering. Currently, proving or getting charges approved for larger investigations into illegal fish sales is almost impossible. Stronger traceability would be a game-changer for officers and a major deterrent for fish trafficking. This is a significant issue in the Pacific region and needs to be urgently addressed.
My second point is about fishery officers in relation to their peace officer status. For many years, the Criminal Code's definition of fishery officers as peace officers has been unclear, creating confusion about when they hold that status while on duty. Recent opinions leave officers uncertain about liability coverage and legal authority. At times, they may be viewed as private citizens, despite being armed and in uniform. Other times, they're acknowledged as full peace officers. It's not something that can just be turned on and off with a switch. Officers do not feel supported in their authority and protections. Uncertainty could cause hesitation at critical moments, leading to harm or other negative outcomes. Clear, consistent peace officer status is essential for officer safety and public trust.
That concludes my brief statement, Mr. Chair.
Thank you.
Good afternoon. My name is Trevor Lushington. I've been a law enforcement officer for 32 years in total, 25 with the Department of Fisheries and Oceans. I'm here today to speak about barriers in law enforcement in regard to the Fisheries Act.
I'd like to share with the group that in the last five years, there have been significant barriers presented to us in law enforcement. Our work as fishery officers has gotten a lot more dangerous. Conflicts with fishery officers have increased in the work we're doing. Such conflict has resulted in our having less impact in protecting the resources.
We've looked at what has happened in the last five years. Now I would like to take a second to look at what's happened in the last five months. We've seen a significant change. We are able to demonstrate that now with the work that we've done and that's being posted and shared with you guys.
We have new communication lines with our enforcement chief that go directly to the Minister of Fisheries. We've seen a number of pieces of equipment that have been handed over to fishery officers to make our work much safer. These include drones and body-worn cameras. We have more operational vessels that we're able to use and put in key strategic areas, where they need to be and when they need to be.
In closing, I've been following the work this committee has done. Honestly, I'd like to say thank you to each and every one of you. You are making our job better. As for the boards you're trying to lift up to see what's underneath, we appreciate it. It is going to make our job better. We're protecting a resource, a resource that I honestly care a lot about.
I'd like to leave you with a short comment I remember from when I was a younger fishery officer. It was said by a judge in a courtroom in Shelburne: These fisheries are the lifeblood of our communities. They mean a lot to us.
I'll go right back to the beginning and say that I look forward to hearing some questions from you. I cut my five minutes down because I wanted to hear what you had for questions as we reach the end of your session.
Thank you for the opportunity to speak.
Thank you, Mr. Chair and members of the committee, for the opportunity to speak today.
I'm here to provide a frontline perspective on challenges fishery officers face in enforcing the Fisheries Act across Canada. My comments reflect daily operational realities for officers in the field.
Number one is the lack of charge approval for files involving indigenous harvesters. One of the most consistent obstacles is in obtaining charge approval for investigations involving unauthorized harvest by indigenous individuals or groups. While we respect treaties and rights-based fisheries, some activities clearly fall outside established agreements, jeopardizing the conservation and protection of fish for all Canadians, including other indigenous peoples. However, the threshold for prosecution is so high that many files do not receive charge approval despite months and years of effort by fishery officers. This creates inconsistent enforcement and undermines our officers' abilities to apply the law fairly and uniformly.
Number two is the lack of traceability in the supply chain. Canada does not have a full end-to-end traceability system for fish moving from harvest to market or for accurate reporting of food, social and ceremonial catch. As a result, illegally harvested fish, including non-saleable FSC product, continue to enter the commercial supply chain, but we have little ability to confirm origin. This harms legitimate harvesters, including indigenous, commercial and recreational fishermen; encourages black market activity; and increases food safety and export risk for Canadian markets.
Number three is organized crime exploiting fisheries, as well as the need for peace officer status. We see increased involvement of organized crime groups using indigenous harvesters and their rights as a means to launder illegal fish. Individuals from indigenous communities who participate in this laundering take food away from their own people and, in the long term, the necessary conservation and protection measures to ensure a moderate livelihood. Our officers often lack the investigative resources, the inter-agency communication and, most importantly, the support needed from indigenous communities to confront these networks.
To combat organized crime, fishery officers require peace officer status. This will allow us to enforce legislation outside the confines of the Fisheries Act, providing needed tools to meet organized crime head-on. Our current enforcement structure is not built to counter the sophistication and scale of our criminal groups active in the fisheries sector. Therefore, we need peace officer status to give us the tools to reach outside the authority of the Fisheries Act.
Number four is the insufficient number of officers, limited budget and chronic underpayment. Fishery officers cover a vast geographic area with staffing levels that have not kept pace with modern pressures, including rights-based fisheries, commercial expansion and habitat complexity. Many detachments operate with minimum staff, leaving capacity for proactive patrols or complex investigations difficult. In addition to being understaffed, fishery officers remain significantly underpaid relative to the risks and responsibilities of the job.
We work armed in remote locations and harsh conditions, and we frequently deal with organized crime, dangerous vessels and high-conflict encounters. However, compensation often aligns more closely with such trades as window cleaners or fish hatchery technicians, who face none of the statutory safety or enforcement responsibilities carried by fishery officers. For an officer to earn full field-level officer pay, it takes seven years. Fishery officer trainees require three years of training prior to graduating as full-fledged fishery officers and four more years to get paid a top-level GT-04 officer wage. This is the longest training period of any enforcement agency in Canada.
Number five is with regard to examples of setbacks when changes to the Fisheries Act are made without foresight and ideas for habitat compliance in the future. In 2012, changes to the Fisheries Act shifted protection from all fish and fish habitat to only those supporting economically viable fisheries, forcing fishery officers to prove both commercial value and serious harm to fish and leaving many species without protection. Recent revisions since 2019 have restored protections for all fish and introduced tools like corrective measure orders, which allow proponents the opportunity to fix non-compliant activities.
However, officers still lack a timely, impactful way to address minor violations. One proposal is a licensing system to ensure that the work around fish-bearing waters is being carried out responsibly. Each licence would come with conditions of licence, much like those of a commercial fishery, allowing fishery officers to issue tickets for less serious non-compliance issues while having a more immediate impact, ensuring that the conditions of licence are complied with in a more timely manner.
Number six is the lack of direct communication between management and frontline officers. Many policy and operational decisions are made without meaningful input from the officers tasked with implementing them. This disconnect leads to policies that cannot be practically enforced, unclear operational expectations and inconsistent application of the act across regions. Frontline enforcement and management insights should be built into decision-making rather than added after the fact. Incidents such as those in southwest Nova Scotia, where officers were suspended and persecuted after an arrest for illegal elver fishing, are stark reminders to officers that there are limited protections from the political will of the day should enforcement action garner negative media attention.
In closing, we need more officers and support staff, as well as a vastly improved pay structure, peace officer status and the legal support to keep pace with the pressures on the resource and the complexity of the enforcement environment.
Finally, our agency is the oldest enforcement agency in Canada. We stand on the backs of the fishery officers who came before us. We need the recognition that we duly deserve as frontline enforcement officers. In the past two years, our support networks have missed the opportunity to ensure that we are recognized as frontline enforcement officers. We need our government's support to ensure that this year will not be the third.
I thank you, and I look forward to your questions.
Mr. Chair and committee members, thank you for inviting us to testify today. It's my pleasure to be here to speak to the operational and legal challenges that fishery officers experience in enforcing the Fisheries Act.
My name is Rae McCleave. I have been a fishery officer with DFO for 25 years. Most of those years were spent as a frontline officer, field supervisor and, eventually, detachment supervisor in both the gulf and maritime regions. Prior to becoming a fishery officer, I was a deckhand on board a lobster fishing vessel in southwest Nova, in LFA 34, for five years. In addition to my current position, I'm on the national executive of the Union of Health and Environment Workers as regional vice-president for the Scotia-Fundy region.
Throughout this study, you've heard many allegations of fishery officers not enforcing the act. I hope my testimony can shed some light on the complexities of our work and balance your views.
First, let's face it: Doing more with less is not practical in our line of work. We used to have detachments with 10 or more officers. Now we try to operate with half that or less. Fishery officers cannot possibly respond to every complaint. We operate with limited resources, in terms of both finances and personnel, to protect Canada's fishery resources along the longest coastline in the world. The retention of personnel is an ongoing issue. It doesn't help matters that wages are based on a 1969 job description for glass-blowers. Once trained, new officers often decide to pursue alternative law enforcement careers with a federal or provincial law enforcement agency, which pays substantially more.
Fishery officers do not have a public safety mandate. While our uniform, duty belt and service weapon may lead the public to mistake us for police, fishery officers do not have the same powers as police. Our peace officer status is functionally limited to the performance of our duties under the act. We do not have the mandate, authorities or legal protections to act as peace officers in matters outside the Fisheries Act, such as physical altercations between harvesters on the water, possession of drugs or driving under the influence. Those are matters for the police of local jurisdiction to handle. If our conscience and personal morals bring us to act in a situation outside our mandate, we do so at our own risk—as simple citizens, with no guaranteed protection provided from DFO.
As fishery officers, we have vast inspection powers. Officers must apply these powers in a reasonable and lawful manner to ensure the integrity of the department and those who represent it. When we have reasonable grounds to believe that a violation has occurred, we investigate. As fishery officers, we use our discretion to decide the level of enforcement to engage in, ranging from education to warnings and full investigations, up to the laying of charges.
As Government of Canada law enforcement officers, we are bound by the strict authorities granted to us by the Fisheries Act and the Criminal Code. We must uphold the legal protections that are guaranteed by the Canadian Charter of Rights and Freedoms. To bring charges forward, we must show the Public Prosecution Service of Canada, first, that there is a reasonable prospect of conviction—meaning that we can prove beyond a reasonable doubt that the person committed the offence—and second, that it is in the public interest to prosecute. As you've already heard, PPSC determines this, not fishery officers.
This committee has heard allegations that fishery officers did not take action against potential illegal fish harvesting or that they failed to use information provided to them by members of the public, including industry. It needs to be clarified that although members of the public may not feel that the work is being done in relation to illegal fish harvesting, the actions that are taken cannot be shared with the public outside proceedings that have been put in front of the court. Doing so would be a severe violation of a person's charter rights, which we must uphold if there's to be any hope of achieving a successful prosecution.
Fishery officers enforce the act and the regulations. When it comes to licence conditions, they are imposed by DFO officials in the resource management branch. Insofar as those officials impose conditions that are within the legal authorities of section 22 of the fishery general regulations, and duly consult with impacted first nations when relevant, the licence conditions would be enforceable and actionable by fishery officers.
I hope this clarifies the operational and legal reality in which we operate. I would be happy to answer any questions.
Thank you.
Thank you very much, Mr. McCleave.
That concludes our opening remarks.
We'll jump into our first round of questioning.
Mr. Small, you have six minutes.
Generally, I am involved in investigations that are just a bit more complex. They require more resources and more time. They're more in-depth types of investigations that general duty frontline officers within our detachments would not have the resources or ability to do.
In relation to how it's been going, I guess if you have something more specific.... We've been conducting a number of investigations. We take complaints as they come in. Is there something specific?
There have been no charges laid since the 2019 act came into law. Is the act protecting the owner-operator from controlling agreements, do you think?
In terms of the act and the regulations in particular, regarding the concept of controlling agreements or a transfer of use, rights and privileges as assigned to licences, I think the wording has some good strengths in there. The application of the regulations, or what I've been part of over the last couple of years in relation to some investigations, has not been successful. They've not worked out well.
Have you had any investigations in which you felt that you had the evidence to move forward and prosecute?
Yes. I have had investigations in which I felt that there was sufficient evidence, certainly, to move forward with an investigation. Whether we got to a prosecution phase...but certainly to move forward with an investigation, yes.
Have you ever had any of these cases in which you've asked for fishing licences to be suspended during investigations?
I've had to request, on several occasions, that licences be suspended pending the outcome of the investigation. Initially, the licences were suspended. The activities of the licence were suspended. Subsequent to that, the licences were.... The suspension on the licence and the activities related to them were then put back in place and things were allowed to move along with the licensing process.
I don't know who would...what I would consider overruling. I know there are lots of activities going on in relation to other pressures for licensing and requirements, but as for the decisions, I don't know who would have made those decisions.
Do you believe there was a controlling agreement in place? Was there evidence that in the case of Jimmy Lee Foss, there was a controlling agreement in place?
Were there others with similar evidence that you've dealt with over the years?
Yes, in relation to Mr. Foss's matters, I believe there was evidence that supported our belief that there was a controlling agreement in place. We didn't get to the final conclusion on that, but certainly initially, and moving through our investigation, the information led me to believe that there were issues with the control of his licence.
Has the Public Prosecution Service been involved in any of these controlling agreement investigations? Have you had evidence for which you would have taken it to the next step before charges were laid?
Yes. As part of our investigations and the gathering of the information, I was in a place in the spring of 2024 in which our investigative team prepared a brief, which was submitted to the Public Prosecution Service of Canada. We requested advice on those files.
We had the Public Prosecution Service here a few days ago. Basically, they said that if it wasn't in the public's interest to prosecute, then they wouldn't. Where does that leave the power of the Fisheries Act—and all the various clauses that are in the act—to protect the fishery if we have a Public Prosecution Service that decides it has to be in the public's best interest?
I'm afraid I'm going to have to jump in here. We're over time.
Mr. Didham, if you'd like to provide a response in writing, it would be appreciated.
At this point, we will go to Mr. Cormier for six minutes.
Thank you, Mr. Chair.
I'll ask some questions in French and English.
First of all, thank you all for the work you are doing for the protection of the fisheries and our oceans in this country. Thank you very much for all of that.
My first question is for you, Mr. Lushington. You said in your statement that in the last five months there were some significant changes. You saw more charges being put in front of the court. You had new lines of communication with the minister's office and the deputy minister, with new equipment and more operational vessels.
My question is this: Why have there been those changes lately? Why do you see all those changes happening?
I don't know why it happened, but it did, and I'm glad it did. Prior to the last five months, it was a real challenge for us. We were asking for equipment. Our work became more dangerous.
I feel that it has a lot to do with the closer relationship with our national chief of enforcement...having faster communication with the Minister of Fisheries and more direct communication with the fisheries. That results in the faster reaction to current situations that we need as boots on the ground. When we finally got body cameras and drones in the air, that made our work significantly safer, which is what we needed to carry on and do our work.
I have just one point of clarification. We enjoy law enforcement independence. Although I am new to the role, we have enjoyed that law enforcement independence.
I mean no disrespect to my colleague Mr. Lushington. I just wanted to point out that the minister doesn't control our operations, our operational tempo or tactical operations.
We know that it's challenging sometimes when it comes to dealing with issues with first nations or even commercial fishers. On the water, things can happen. People have a tendency to have a certain view of how the law is enforced, for example.
Do you think that with first nations, there's enough in the law to make arrests when it comes to first nations not respecting the law? For example, under the law, selling food, social and ceremonial catches is not allowed. Do you feel that there's enough in the law for you to make those arrests, for example?
I certainly get your point. I'd go back a bit. Let's go back to 2020, 2021 and 2022. Fishery officers were doing their job. We were actively enforcing the acts and the regulations. Because the matter was coming in, first nations were trying to get a position in a fishery that was fully subscribed. We had to look at our files through a very strict lens to make sure we were not committing any infringements on their constitutional rights.
Going forward, where are we today? We really haven't received a lot of guidance or directions from lawmakers, from the Department of Justice. We would like to see more files progress through the system for two reasons. A file that progresses through the system and is found guilty will help us design our law enforcement operations, and we want those operations to be parallel to people's constitutional rights. If we're a long time getting those directions—if we can call them directions—from the court, in fact, we could be repeatedly infringing on their rights.
To me, your question is very important. Where are we today? We certainly could use more direction. The licence conditions are getting better.
[Translation]
I've asked this question before, but I'd like to put it to you as well. Do you think the fines are high enough?
Sometimes, we see cases where an individual is charged, they go to court and they're fined, say $250, for the offence. The next day, they commit the same offence, poaching, they get a small fine of $500, and on it goes.
Would it help you in your role as a fishery officer if the fines were higher? Should revoking an individual's licence be an option, to make your job a bit easier, so you wouldn't have to arrest the same people for the same offences day after day, month after month, year after year?
[English]
You're hitting the nail on the head. We have a lot of repeat offenders. This tells us that we are out there doing our job, but the fact is they're coming back to break the law again, even sometimes during a time of arrest. They're making statements to us such as that they'll see us tomorrow night. It's frustrating for the officers. It's not providing the protection to the resource that we want.
We have to look at the rights for our first nations. If the resources are damaged, so are their rights. We need higher fines and more of a deterrent, and we need to be having conversations about more suspensions and having a conversation about where we could release with restrictions, just so we don't see them there the next night when there is a delay before they get through the court system. In that way, we won't be dealing with multiple repeat offenders.
Thank you very much, Mr. Cormier.
[Translation]
Now I'll turn the floor over to Mr. Deschênes for six minutes.
Thank you, Mr. Chair.
I have a question for Mr. Lushington and Mr. Thorburn.
Can you hear me clearly, Mr. Lushington?
[English]
[Translation]
[English]
That is a good question. Honesty is what leads me.
I was asked to testify before this committee on December 2. I recall the chief of enforcement offering us an opportunity to testify. In a conversation as a law enforcement officer, when we speak about immunities and testifying, I've learned that I'm a bit of a deer on ice when it comes to being in this room, as opposed to being in a courtroom. I'm just being honest with you.
If I could go forward, I'll say that I learned about the duty to be loyal. As a civil servant, I learned about other things that I was not always thinking about when I was first asked to testify. That was a real challenge for me. In all honesty, it really was.
It's not that I wouldn't extend loyalty to our current minister. I probably would, but when I got myself into a conversation, it was honestly troubling for me. When we began to talk about testifying and the discovery of the need to pay your bills... How would you pay your bills if you had no job? That does worry me.
[Translation]
[English]
[Translation]
You just talked about how important it is to be able to pay your bills. Who said that to you? What was the context of the discussion?
[English]
The context of the question was helping me. Whether it was out of context or in context, it provided me with what I believed was my responsibility to review my obligations as a civil servant. In coming here today, when I said that I agreed to testify, I put the truth, the whole truth and nothing but the truth at the top of the line. Again, I'm being honest. It was a challenge for me because this other matter that I was unaware of became—
[Translation]
I don't have much time left, Mr. Lushington, but I just want to be sure I understand correctly. Someone said to you that what matters is having a job so you can pay your bills. Who exactly said that to you?
[English]
Yes, I understand.
It was parliamentary affairs that reached out to us. While I was actually getting on the plane, I read an email. Usually when you have an email from the Government of Canada, it's sent out with a signature. The first email I got had no signature. I didn't give it much credit. Then, when I was getting on the airplane, on December 1, it was a new discovery to me. These new things apply. It's a challenge to want to come and speak openly.
[Translation]
Someone in the minister's office, then, pointed out that you needed to have a job in order to pay your bills. Do I understand that correctly?
[English]
What I got from the conversation I had was that my employment would be affected if I testified as an individual on that day.
[Translation]
I want to use the last few seconds we have left, Mr. Lushington. Were you, as a fishery officer, ever pressured by management or your superiors to not intervene in a case where there was a failure to enforce the act?
[English]
I just want to go back to the last part, where you finished. Have I ever been told not to intervene when there was an infraction out there? I would say no to that question.
My leadership, in the area where I work, always directed us to deal with any matter in relation to a conservation issue. If we were able to conduct enforcement operations that were within the regulatory framework, we were always encouraged to do so.
[Translation]
[English]
No. I am testifying today about what I do in my area. We've never been told not to intervene. There were times when we had experiences in which we had weakly worded license conditions, which were license conditions brought into our regulations despite C and P's opposing them, and they were brought in. They never met the standard of the court system, and it was a failed prosecution.
In that matter, for many of our seizures.... In particular, at the Halifax airport, we seized 113,000 dollars' worth of illegal product that we had to give back because the wording was weak. It didn't stand up to the scrutiny of the court systems.
This creates officer frustration. It also breaks a bit of trust in what we're trying to accomplish. It doesn't provide any shield for protection of the resources.
[Translation]
In your written submission, you say that unauthorized fishing is on the rise. How do you explain that?
[English]
I'd be glad to respond in writing. It's not something that I can do briefly. There are many elements in why that is occurring. I thank you for the question, and I will respond in writing if you want.
[Translation]
Thank you, Mr. Deschênes.
[English]
That completes our first round of questioning.
Moving into the second round, Mr. Arnold, you have the floor for five minutes.
Thank you, Mr. Chair.
I want to start off by asking Mr. Lushington.... Actually, I'd like to move a motion because of the testimony we just heard. It's a motion to request Mr. Lushington to provide the email exchange that he spoke about in his testimony to the committee. I'd like to move that motion.
I will pause your time for this, Mr. Arnold. Do we have the unanimous consent of the committee for the production of this email?
Some hon. members: Agreed.
Thank you, Mr. Chair.
I should pause for a moment and thank all of you, as conservation officers, and you, Mr. Lambertucci, as the head of that department, for all the work you do. Sometimes it's thankless work, protecting the resource, and I believe that's why every last one of you initially signed up. Thank you.
I'll turn my question to Mr. Lambertucci.
On October 9, Minister Thompson told this committee that the Minister of Fisheries is ultimately responsible for managing Canada's fisheries resources. Mr. Lambertucci, who is actually responsible for enforcement of the Fisheries Act and associated regulations?
C and P, conservation and protection, enjoys that law enforcement independence to enforce the Fisheries Act. The Department of Fisheries and Oceans has a regulation side that writes the regulations.
When C and P personnel are assessing the legality of activities in and around fisheries, do you determine whether the activities are legal or illegal by measuring the activities in question against the laws and regulations that you're entrusted to uphold?
Just for clarity, to make sure I understand the question.... We have conditions of licence that frame part of the regulations. We benchmark against those conditions of licence when we approach an incident.
Mr. Lambertucci, are you familiar with the Fisheries Act's definition of the word “laws”? The reason I ask is that, in 2019, the Liberal government amended the Fisheries Act to establish a new definition for the word “laws” that “includes the by-laws made by an Indigenous governing body”. Are you aware of that?
Thank you for the question, Mr. Chair, in relation to the nation-to-nation and first nations fisheries management plans.
I mentioned this because, on November 20, you testified that it is the Public Prosecution Service of Canada that determines whether charges are pursued. The director of the Public Prosecution Service of Canada was here recently, and she stated that she was not aware and not familiar with what the Fisheries Act deemed to be law.
Mr. Lambertucci, is your office in possession of every fisheries-related agreement that the Minister of Fisheries has finalized with indigenous governing bodies, including those that would be bylaws?
I would have to take that question away, Mr. Arnold, to see what we are in possession of and to make sure that we are in possession of those laws and agreements.
We would be very aware of the regulations and the laws that are created, because we are enforcing those conditions of licence. In terms of where those agreements are housed, I would have to check in DFO.
You may not know, then, the bylaws that could be out there that your officers would be expected to understand in order to either enforce or recognize an authorized activity under a different bylaw than the Fisheries Act.
Mr. Arnold, I would not couch it in that manner. We are very aware of the laws and bylaws that exist around the conditions of licence and the regulations that we enforce.
Are you able to provide this committee with the bylaws you are enforcing that are in these agreements?
I have just one point to clarify the question. There are nation-to-nation agreements that take place between resource management and our first nations communities. I don't want to speak for resource management.
As lawmakers, we have a responsibility to understand what laws are being made in Canada that affect the resources that we, along with you and your officers, are expected to serve and protect.
Thank you.
I'm going to share my time with my colleague Mr. Connors.
Mr. Lushington, I want to give you a minute to clarify something, even though we've talked about the email you received. Was this email you received from parliamentary affairs from Minister Thompson's office and staff? Answer yes or no.
It was not from Minister Thompson.
Thank you.
I'm going to Mr. Didham for a few questions.
Mr. Didham, you're retired from the Royal Newfoundland Constabulary. Is that right? You were involved with the charges moving forward with the constabulary.
Yes, that's correct, Mr. Connors. I was in policing with the Royal Newfoundland Constabulary for 26 years.
We're doing a review of the act to make recommendations, and amendments as required, to improve it. A number of witnesses have stated that laws under the act are good, but there are challenges with enforcement and getting to charge approvals.
From your experience and your 26 years with the constabulary, working with the Department of Justice, is there much difference between how charge approvals are done at the DFO and at the RNC? Are there any changes we could make to improve the process?
Mr. Connors, there are certainly some differences in the charge approval process within DFO and the policing side in becoming aware that there are reasonable grounds to lay a charge and moving things forward. I am aware that there are processes within DFO, particularly here in the Newfoundland and Labrador region, in which we have investigations that are ongoing and we review a file before it moves to the Public Prosecution Service of Canada for prosecutions. That's different from what occurs in most police agencies—and I've worked for several—where the agency decides whether or not there are reasonable grounds to believe an offence has occurred. Charges are then laid, and then the appropriate prosecuting agency—whether it be provincial or federal—takes up the prosecution piece. That's where there are differences.
Personally, I think DFO would be better served—and this is just my own opinion, based on experience—if we had a process similar to the one police agencies use. We could determine the viability of a case based on the evidence and the information and then move forward with our investigation package to the Crown prosecutor for the prosecution piece.
We've talked about peace officers. A number of people have mentioned them here today. There have also been witnesses previously who said they needed to be insulated or at arm's length. What are your thoughts on this?
What would they be insulated and at arm's length from, Mr. Connors? This is so I'm aware and answer your question appropriately.
Okay. Thank you for your question.
This is my personal view again. I've been with Fisheries and Oceans now for four and a half years, and I haven't seen incidents where there's been an overbearing piece that affected my ability to be a peace officer and do my work.
With some decisions in relation to activities, yes, I may have had differences of opinion, but I'd have to give myself more time to think about the arm's-length piece. I don't really have much of a good answer to give you on that.
Okay. If you could provide something in writing, it would be greatly appreciated.
Mr. Lambertucci, it was stated in previous testimony today that first nations would have to give consent in order for charges to be laid. Is that a reality?
That is not a reality.
Mr. Chair, thank you for the question.
That goes back to “unauthorized” is “unauthorized”. When our case packaging goes forward, we do not seek consent. It goes to PPSC, which makes that assessment.
The chief, or someone with a band or anything like that, has no authority to say charges cannot be laid or should not be laid?
Thank you very much, Mr. Connors.
[Translation]
Mr. Deschênes, you may go ahead for two and a half minutes.
Thank you, Mr. Chair.
Mr. Thorburn, in carrying out your duties, have you been told that when an investigation involves a first nation, you need to have the band council's approval before moving forward with charges?
[English]
Thank you for your question.
The answer is yes. For the most part, for each indigenous area that a local—
I'm sorry. I'm afraid that I'm going to have to briefly stop here.
We see that the bells are going off right now. Given that they are ringing—
I know.
What I'm saying is this: Pursuant to Standing Order 115(5), is there unanimous consent to continue to sit for an additional 15 minutes?
Some hon. members: Agreed.
Yes, and 15 minutes would give you another 15 minutes to get there.
It looks as though we have unanimous consent.
[Translation]
Mr. Deschênes, you still have two minutes.
Mr. Thorburn, I'm going to ask my question again, so you can answer. You said that before you can move forward with a charge or prosecution involving a member of a first nation, you have to have the band council's approval. Is that correct?
[English]
There's support from the band, but ultimately it comes down to support from the first nation whose member we are charging. That's a common theme. We've been in many situations in which we have found illegal harvesting taking place and have not been able to get the appropriate approvals from a local first nation.
When it comes to charge approval, because anything.... For an indigenous person, when we're charging them, it has to go through the charge approval process. On that requirement, they usually come back to us and ask, “Do you have the support of the person whose member this is?” That's usually where we get push-back.
[Translation]
[English]
This has been taking place for the last six or seven years, I would say. I can't say this is taking place across Canada, just that our Public Prosecution Service is coming back to us and saying that we need to consult with a first nation and that they need to approve the charges against their individual.
[Translation]
Thank you.
Mr. Lushington, in the maritime provinces, is it necessary to have the band council's support before moving forward with a prosecution against a member of that first nation?
[English]
No, we don't. There's a difference. We investigate the matter completely. The file process is that we investigate the matter completely, draw it to a conclusion, do an in-house review of the file and then put that file forward to PPSC for their review. They ultimately decide whether the file proceeds or not.
[Translation]
Thank you, Mr. Deschênes.
If any of the witnesses would like to provide more information, please send it to the committee in writing.
[English]
Next, we'll go to Mr. Gunn for five minutes.
Thank you, Mr. Chair.
We have a contradiction that I think requires some further questioning and investigation.
Mr. Lambertucci, I asked you at a previous hearing if fisheries officers would be discouraged...well, first of all, if the Department of Justice was weighing whether an indigenous band supported a charge when deciding whether to proceed with the prosecution. It is my understanding that you said this was not the case.
I also asked you if fisheries officers were less likely to investigate or pursue certain crimes if they knew it would be less likely for the charge to be laid, because there was no support from the band. You said that was not the case. I mentioned to you that I had heard from fisheries officers in my riding and across British Columbia that this was happening. You said you hadn't heard that.
I feel as though you could at least now acknowledge that you have heard the opposite. Can you shed some clarity on this? First and foremost, is the Department of Justice weighing whether a band's elected chief and council support charges being laid when deciding on whether to file those charges, yes or no?
I'll respectfully disagree with that. PPSC is independent in how they approach this situation. Fishery officers—
Then are they weighing it? We were told by another witness that there is a form to fill out in which they are asked whether the local band—the chief and the council—support charges being laid against the individual. Is that true? Does the form exist?
Why would they require the form if they were not weighing it as a factor in whether to pursue prosecution? Why do you have your own fishery officers literally saying, right in front of you, that charges are then sent back and that they're not proceeding because of that fact?
I'm not questioning what Mr. Thorburn is saying, Mr. Gunn. I will take this back, and we will have it looked at.
Okay. We're all learning things here today.
For the record, it wasn't just Mr. Thorburn. This has been coming up repeatedly, including in the session that happened just before this one.
There's another question, while we're at it. For indigenous protected and conserved areas, when they're declared unilaterally by indigenous groups, does DFO consider that area closed or open to fishing?
I have just recently started to learn about this issue. This is an issue in which it is sometimes closed to commercial fishing, but it is enforced as an open fishing area as well. I would have to take that away and seek some clarification on it.
If you could provide the clarification in writing, I'd appreciate that. I would like to say that I appreciate your spending so much time here and answering difficult questions.
I appreciate as well that a lot of these issues—it seems to me—are originating in the Department of Justice, and DFO officials are left to try to explain away what's actually going on.
Mr. Thorburn, you gave examples of having issues with charge approval when it came to FSC fisheries because there was no support from the elected chief and council in the band. Do you have a specific example of this happening? Can you think of a specific violation that occurred in which charges were not brought because of a lack of support from the band? Of course, you can speak in general terms.
As for charging those who are first nations, I don't have any good examples to provide to you as far as successes are concerned because usually, if we don't have—
Do you have failures, though, in which the charge approval isn't given? You brought up in your testimony that it was happening.
I'm assuming that the members of the committee would like to hear an example of when that would happen.
Agreed. Yes.
We had a case in which a first nation fisherman was outside his territory and fishing in another's territory, for example. Since he was fishing outside his territory, we were able to get confirmation from the band whose area he was fishing in that we should pursue charges against this individual. In this particular case, we knew this because, when it comes to local first nations, it's difficult to get that confirmation from those first nations to allow them to support us when it comes to charges against their members.
I don't have any examples because we've been trying this for literally the last, probably, eight to 10 years, and we've seen a significant change in our ability now to charge individuals who are first nations. I don't have any examples, but if you give me some time, I could find some to provide to you.
Thank you very much, Mr. Gunn.
We're going to complete the round with Mr. Klassen for five minutes, sir.
Thank you very much.
I'm going to share my time with Mr. Morrissey.
I just want to thank all of you for your work. You've shed a lot of light on the dangers in the responsibilities that you carry. We've heard, from the Minister and from Mr. Lambertucci, the statement that illegal fishing will not be tolerated.
As for your comment, Mr. Lushington, about how things have changed in the last five months, I appreciate hearing that. Would you say the entire industry is aware of things changing? Could you expand on that a bit?
I think industries learn most often from what they receive in media. As we move forward with our operations, it's important that we provide media lines that are timely so that commercial fisheries and first nations can understand what the objectives are that we're trying to do or what has been done. For example, if somebody reported illegal fishing, we conducted an operation and we apprehended the individual. We can't say names; we're limited in what we can say. However, when we can start putting that in the media, it kind of eases the conscience of the public. That way they don't take it into their own hands.
We are doing better. I can only say, just look at what we've done in the last three or four months. The files we've put up since March are serious files. Officers have been assaulted with weapons. We've put them up. We've put up a lot of files in a short window. These files aren't small anymore. They're thick. The burden is shifting to the officers in more detail. As we have a file with a possible infringement on a constitutional right, the file is thicker. The burdens are elevated.
Thank you.
I would ask if you could provide to the committee some direction on what would be required to strengthen the term “peace officer”. I'm impressed with the testimony that was given with regard to how you are being limited or restricted in that you are not adequately “termed”, if I can use that word. It limits your ability to fully enforce the law. I would ask the chief to provide some clarification to the committee, if he could, on the peace officer restriction that is limiting the ability of very important DFO protection people to fully enforce the law.
Is this something that could be provided, Chief Lambertucci? There was a reference made to peace officers that's not really clear. What I'm interpreting is that it's leaving confusion in the mind of the officer in the field and could actually put them in harm's way. This is something very important that the committee could act on.
If I have time to reply verbally—I can also reply in writing—yes, fishery officers are limited as peace officers restricted to the Fisheries Act. For anything to do with public safety or other Criminal Code offences that fall beyond the Fisheries Act, they do not have peace officer powers.
In addition, they do have the ability, for obstruction or assault, to take actions with peace officer powers if such things occur, but there is still a referral for investigation to a peace officer of the law enforcement of jurisdiction.
Okay.
There's been reference to how better traceability would be a game-changer on fish laundering. In the bit of time I have left, could you provide advice, either in testimony or writing, on how this committee could recommend improvements that would make better traceability and begin to act on fish laundering, where fish are being used to launder money?
Briefly speaking, yes, traceability would enhance our abilities and fisheries officers' abilities in enforcement. I will provide extra information in writing.
Traceability is in place in the elver enforcement continuum. Those conditions of licence and traceability have been helpful.
Thank you very much, Mr. Morrissey.
That concludes our second panel.
I want to thank our witnesses for being here and for their testimony and their service.
Your testimony is certainly going to be very helpful as we finalize the report and the recommendations that are going to flow from it. Of course, if anything came up today or otherwise that you would like to share with the committee to help in this work, please make sure you do so in writing.
With this, we'll conclude the meeting. The next meeting is not going to be until the end of January, when we're going to review the first draft of the redfish report. I'll just remind you to send in all of your recommendations, additional thoughts and instructions for the review of the Fisheries Act no later than Friday. If all goes well, we can have that completed by the end of February.
With that, I want to wish everybody a merry Christmas and happy holidays.
The meeting is adjourned.
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