Fisheries Committee on June 1st, 2006

[The Chair, Conservative, Gerald Keddy]

Gentlemen, subject to Standing Order 108(2), we are studying gravel extraction enforcement in the Fraser River.

I'd like to welcome our witnesses, Frank Kwak and Marvin Rosenau. I would also like to mention that both of these gentlemen have gone to a fair amount of trouble and effort. They have an excellent presentation here, so the clerk tells me. So we'll proceed right along.

You have ten minutes each, gentlemen.

[Dr. Marvin Rosenau, As an Individual]

Thank you, Mr. Chair.

Thank you, members of the committee, for inviting us here. I'd like to talk to you for a few minutes about the Fraser River and gravel removal situations that are occurring there currently. In major part, I would like to discuss what I feel is DFO's inability to meet its statutory obligations in regard to the Canada Fisheries Act, and specifically section 35 of the Canada Fisheries Act with regard to habitat, and the Canadian Environmental Assessment Act.

I'll just give you a brief overview. I've had extensive experience with regard to gravel removal, both on and off the Fraser River, mostly gravel removal in streams for flood protection. I'm a fisheries biologist with 25 years of experience, and I did work on the Fraser River in a variety of different capacities for about ten years, until the committee dealing with gravel removal was disbanded and I was sent elsewhere. Right now I'm a fisheries instructor at the British Columbia Institute of Technology.

What I'd like to do for a few minutes today is to give you an overview of something that happened this winter, to provide you with an example of how I feel the Department of Fisheries and Oceans is not meeting its statutory obligations. It regards a fish kill associated with the gravel removal project in the gravel reach of the Fraser River.

The gravel reach of the Fraser River, as you can see on the first slide, is in the southwestern part of British Columbia. It's 100 to 150 kilometres long, just between Hope and Mission. The Fraser is 1370 kilometres long, from Mount Robson to the Gulf of Georgia. This is a very short section but an extraordinarily productive section. It's very fish-rich. It's the most fish-species-rich freshwater environment in British Columbia, with about 30 species. It has the largest sturgeon population in all of British Columbia. I worked extensively on sturgeon in my capacity as a Ministry of Environment employee up until three years ago. The largest salmon run in British Columbia spawn in the gravel reach. Sometimes there are in excess of ten million fish. At least five listed species at risk are contained in that gravel reach.

This is an aerial photograph of the gravel reach. This is a chunk of river between roughly Laidlaw and Chilliwack, the confluence with the Harrison. It's a very braided section, a very habitat-rich section. You can see the large islands and the large gravel bars between the green lines, which are the diked areas.

There is an idea--and there's an element of truth to it--that there is sedimentation, in other words, aggregation of gravel and sand in this area, causing flood profile difficulties, possibly requiring that sand and gravel be moved out, at least in some locations. There's a lot of equivocal science in regard to that, in terms of how much, when, and where.

This leads us to the agreement the Department of Fisheries and Oceans made with Land and Water B.C. two or three years ago with regard to removing 500,000 cubic metres of gravel for flood protection. I maintain that while gravel may need to come out, what Land and Water B.C. and Department of Fisheries and Oceans have agreed to is simply a gravel grab. It has nothing to do with flood protection. The situation we saw here in March of 2006, which we in effect audited, exemplifies that this and other projects that DFO has authorized do not meet those objectives.

Here, some time in early March, a causeway was put across a large side channel of the Fraser to an island, a bar, where gravel was to be removed. I'd point out that this gravel bar where the removal took place is probably one of the better places to remove gravel for flood protection, in my opinion. A number of other spots, the one immediately upstream, at Popkum, for instance, simply presented an opportunity for the local interests to get gravel. They had nothing to do with flood protection.

DFO's decision to authorize these folks to take gravel out at this particular location, Big Bar, was very egregious because of its implications for habitat. They cut off this large side channel; the large side channel was probably larger in flow than 95% of the streams at this time of year, in all of British Columbia, so it was a very large channel. And as you can see from the yellow line, as the channel was cut off, there was a residual flow through the rip-rap berm. Most of the river was cut off on this side channel, and up to 40 metres in a lineal distance was de-watered. Multiple hectares were de-watered. This slide is the close-up of the causeway where gravel was taken across.

What was most disturbing was that very large spawning beds were dewatered. You could see that these were spawning beds.

Pink salmon, as I indicated earlier, spawn in the main stem of the Fraser River. The bar and spawning beds I'm pointing out were de-watered. Several million fish were killed as a function of this, in our estimation.

I teach at the British Columbia Institute of Technology, and my students went out and did physical surveys. This picture shows the ultimate objective for gravel removal: to take large amounts of gravel out of the river. We had our students out there digging up redds, doing surveys, transects, elevations, and so on. In pretty well every redd we dug into, we found dead fish. As I say, we used biostandards to determine that several million fish were killed.

Just to give you a sense, the DFO manager suggested this was a natural event caused by low water. Well, the before side, the left-hand side of the slide, is the de-watered area. At the end of March the causeway was pulled out. Instantaneously this area was re-watered, and we surveyed it. So we have very good, concrete data to show this.

Here I am showing the surveyed area of the redds. The red line is the outer perimeter of the de-watered redds. What we ended up with was about three-quarters of a hectare. If we add up all the other sites on the island and downstream and upstream, we figure we had a whole hectare of de-watered redds. Some fish were pulled out right at the water's edge, so it wasn't just up at the outer perimeter; mortality occurred right down close to the water.

The upper figure in the slide shows our zero point, when the causeway was in. You can see that the staff gauge, which is basically a stick but was pretty accurate, shows the zero point with the causeway in. With the causeway out, which is shown in the lower picture, the water surface elevation of the side channel went up almost a metre. At the point depicted, it was 0.84 metres.

This figure shows the Water Survey of Canada gauge. The black line is the gauge at Hope and right about where the red line takes off.... The red line shows the elevation of the channel, so rather than de-watering, what it shows is the re-watering of the channel at various intervals of the channel's being re-watered. In effect the elevation was again almost a metre.

Our transit surveys.... You can't see the little numbers, but if you go horizontally from the blue line to the red line, again the re-watering of the channel, using a transit, was about a metre.

DFO said they were going to put some culverts in to allow flow-through in the area I am showing. Directors ordered this, and you can see how absurd the direction was from the area director. The actual installation of those culverts was very messy—a lot of silt went into the river—and the monitor basically pooh-poohed the notion that this would have any impact. The area habitat chief said, “Well, you know, we're really lucky. The fish had probably all emerged, or close to all emerged.” The red line shows, at the beginning of March, the out-migration of pink salmon at Mission—these are data from DFO—and it shows that in the Fraser River watershed, the pink salmon juvenile out-migration had barely started. So again, the area habitat chief was way out to lunch. He either didn't know what he was talking about or was basically making up stories.

To get to the final point, DFO suggested it was an inordinately low-water year. In fact it wasn't a low-water year if you look at the percentiles above and below normal flows. Our green star shows exactly where the flows were during this time period, and it was a very normal year. There was nothing environmentally, in a natural sense, unusual about this. The mortalities were clearly a result of a DFO-authorized incident.

DFO understands how to get gravel out. As I said, I was part of the Fraser gravel committee up until 2003. Here is a picture showing how gravel was taken out from Harrison Bar in 2000 and into a channel. You can do it cleanly and without impact. What I would say is that the Department of Fisheries and Oceans has turned around, and instead of protecting the environment the authorizations have become political; they have become politicized. Executives and the senior managers are making decisions, and the local biologists and engineers are basically being cut out of the decision-making process. What you have is extreme habitat damage as a result.

Thank you, Mr. Chair.

[The Chair, Conservative, Gerald Keddy]

Thank you very much, and thank you for staying on time.

Mr. Kwak, do we have another ten minutes? Go ahead, please.

[Frank Kwak, As an Individual]

Mr. Chairman and honourable members, my name is Frank Kwak, and on behalf of myself and my members I wish to express thanks for providing us with the opportunity to meet with you today to discuss this important issue.

In addition to serving as president of the Fraser Valley Salmon Society, I also serve as the chairman of the Upper Fraser Valley Sport Fishing Advisory Committee, which is part of the SFAB. I am also privileged to serve as a director of the B.C. Federation of Drift Fishers, and the Sportfishing Defence Alliance. I also currently sit on the first nations fisheries dialogue sessions. Both the Fraser Valley Salmon Society and the B.C. Federation of Drift Fishers are active members of the Sport Fishing Defence Alliance, and all these organizations have interest and concern in the issues that we are to discuss today.

With regard to enforcement on the Fraser in the Chilliwack area, first and foremost I wish to say to the members present that my experience with the DFO enforcement staff in that area has for the most part been very productive, and I have found the staff to be cooperative and professional. I have also found them to be frustrated at times at their inability to do the job they were hired and trained to do.

The fact is that for six or more years prior to the Williams review, and before some changes were made in 2005, the enforcement staff were being expressly directed to avoid any enforcement action against members of the Cheam Band, and by default they were therefore forced to avoid many actions against other bands. This lack of action was and is dictated by the fact that you cannot, under law, have selective enforcement of the law on an ongoing basis. Therefore if the Cheam were absolved of their prosecution, so then must be all other users.

The enforcement situation has improved following the Williams review, but it's still not satisfactory. In 2005 we had improved coverage in the Chilliwack area, with the infusion of enforcement staff from other parts of Canada and the Pacific region. While this was certainly an improvement over recent years, it still fell far short of what was and is required. For one thing, using temporary staff, particularly those unfamiliar with the area and issues, for a short time period on an ongoing basis is simply not productive or cost-effective.

Officers were brought in from all over who had no knowledge of the area or the issues, so the local staff ended up spending their time educating the new officers about the area and issues. By the time the new officers had a grasp of what they had do to, they had to return to their regular positions. This system continued throughout the summer. It looked good on paper, but was not very effective in the real operations.

I am told that for 2006 there has been a change in the system. Outside officers will be brought in for a minimum of three weeks, and the majority of officers will come from our region. It needs to be recognized that while this current plan will improve the situation somewhat in Chilliwack, it will raise havoc in other parts of our region. We submit that moving staff from other areas on a temporary basis is workable in dealing with short-term issues, but it is neither practical nor productive over the long term.

We understand that representatives from regional C&P recommended hiring retired fishery officers under contract for the summer, who are familiar with the area and the issues and live in the lower mainland, eliminating the need for payment for accommodation, meals, and familiarity training. The Sport Fishing Advisory Board also made a similar recommendation, and this would still be our strong recommendation.

Another major enforcement issue on the Fraser is the incredible number of ceremonial permits issued on an almost continuous basis by DFO in our area. I understand that there are more ceremonial permits issued from Hope to Mission than for all the rest of the first nations bands in the Pacific region. In 2006 DFO reached a special deal, a pilot project, with the Cheam Band, and is now allowing them to fish with drift nets for their food, social, and ceremonial fisheries five days a week. The only requirements are that they advise DFO 24 hours in advance of when they are going to fish for ceremonial purposes, keep nets out of the river two days a week, and fish to a number. However, who monitors 24 hours a day? Certainly not DFO.

The end result is that we have net fisheries--many now drift gillnets--going on in the river seven days a week. The public has no knowledge of what is legal and what is illegal, and often when we phone to check, the local enforcement staff has no knowledge of whether the permits were even issued.

Speaking personally, I can advise you that this system is most frustrating. People in the community tend to call me regarding fisheries, to see if they are legal or not. I have not been able to get the information from DFO on when and where these extended fisheries are taking place, so I cannot advise the public of the facts. The upshot is that they give up in frustration and no longer report illegal fisheries, as they cannot tell which is which. We thus lose an important enforcement tool on the river.

We would also remind members of the recommendation from the Williams review regarding enforcement to the effect that the people heading up this division should have an extensive enforcement background. The Pacific region still has no one with enforcement experience in the senior position in Ottawa heading up the conservation and protection division.

On a final note on enforcement, we would like to point out that having a never-ending supply of enforcement people is of little use if those apprehended are not facing some form of punishment when breaking the law. The simple fact is that under the current legal system, there is no real requirement for anyone to pay their imposed fine if they do not choose to do so.

We are informed that if the outstanding penalty is more than $100,000, Justice Canada will look into taking action to collect it, but for amounts less than this, they do not. Just this last February, one of my organizations, the SDA, was informed, as a result of a specific request, that there is currently in excess of $1 million in outstanding fines for offences committed in fisheries in the Pacific region. This amount is up from $500,000 reported in 2003, and has more than doubled in two years. The fines go back to 1994 and range from $100 to $20,000.

Simply put, it makes little sense to employ an enforcement staff who quite often put their lives on the line to locate, apprehend, and charge violators if the end result is that when the violators are convicted there is no real penalty. Respect for neither the law nor the resource is maintained under this type of system. We feel that we need to see a real commitment by the department and the government to a long-term enforcement program, one that is properly staffed, and a legal system that ensures those who broke the law will in fact see real punishment.

With regard to the gravel issue, Mr. Chairman, I feel it is critical, as an on-site witness to the gravel removal activity, that I give you some of my impressions as well. First and foremost, I would advise you that the issue currently at hand, and at hand at the time of the extraction of this gravel, was not the removal of the gravel itself but the impact of the construction of the causeway to allow the removal of the gravel.

I saw the water completely blocked off to the side channel from the construction of a dike across this arm of the river. I saw the water level decline by over three feet in depth, and for hundreds of feet many salmon reds were exposed and allowed to dry up. I saw the dead alevins and fry; they were not dead prior to the construction of the dike.

I have brought along some photographs, which I have given you, of what I saw and what really went on at this site. I can tell you also that I witnessed the river being three feet higher on the upstream side of the dike than on the downstream side.

Given these facts, I was truly disappointed when the area director for the lower Fraser River, Mr. Jim Wild, made a public statement to the effect that the dike had not reduced the water flow and caused the death of these alevins and fry. I cannot understand why Mr. Wild would and did make such statements. Those of us on site could clearly see, yet neither Mr. Wild nor anyone in DFO has yet to retract their claim that the dike did not cause the loss of these fish.

I must say also that I was upset when Mr. Wild stated publicly that people such as me and others in my organizations who are opposing the destruction of the salmon resource were doing so for racial reasons. He stated that our reason for such action was that we did not like the first nations.

Mr. Chairman, committee members, I wish to categorically tell you that nothing could be further from the truth. Our concern in this instance was due solely to our concern over the loss of those salmon and the fact that DFO was not carrying out its responsibilities properly. I would say also, on behalf of all those involved, that we have yet to receive an apology, never mind a public one, from either Mr. Wild or anyone else in DFO for the racist remarks Mr. Wild made as the area manager in DFO. We find this action, or lack of it, appalling.

In conclusion, Mr. Chairman, members of the committee, I would also like to say that in my experience with the Pacific region DFO staff, there is a host of very competent, dedicated, and committed individuals working in the field. I have to say, however, that their current leadership, particularly at the senior level--Vancouver headquarters and above--leaves much to be desired.

Again, thank you for the opportunity to appear before you today. Hopefully I have added something to your understanding of the problems in British Columbia, especially as they relate to the lower Fraser River.

Thank you very much.

[The Chair, Conservative, Gerald Keddy]

Thank you very much, gentlemen, and thank you for staying within your timeframes. You were both excellent and stayed directly there.

For the sake of our committee, obviously we have two important issues here: the gravel extraction and the enforcement issue.

We'll go to our first questioner, Mr. Byrne, for ten minutes.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Thank you very much, Mr. Chair.

I live close to the banks of another great salmon river, the Humber River in Newfoundland. I'm not as familiar with the Fraser, although I have spent some time there. But obviously members from B.C. and western Canada will be more familiar with this particular issue. I think you've made interventions on them in the past.

For my sake, I would like to ask a couple of quick questions on background. I want to dig in on—pardon the pun—the gravel issue. What was the purpose of this construction to begin with? What was the objective?

[Dr. Marvin Rosenau]

There is this perspective or view that the Fraser River is aggrading. In other words, there is sediment from upstream areas filling up the river and causing dike deficiencies. The view is that sediment has to be removed to lower the river bottom in order to increase the flow-away capacity.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

So the causeway was constructed as a dike?

[Dr. Marvin Rosenau]

No, the causeway was constructed to get the vehicles across to a bar from which gravel was being extracted. In effect, this gravel is being taken out for aggregate.

The aggregate companies are very anxious to get their hands on as much gravel as possible in the eastern Fraser Valley, because of the extreme development that's going on there now. Ten or fifteen years ago, there was not the push for this from the development industry. Aggregate companies are more than happy to take out whatever gravel they can handle economically.

In this particular case, it was not economical to simply put in a large conveyor belt, as I showed in one picture. So the provincial government, through Land and Water B.C. and the provincial emergency program, said, hey, we'll give you $150,000, and you can build this causeway that will get your gravel trucks across to the site where gravel removal was going to take place.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

So was it DFO that paid for the causeway, as part of their contract?

[Dr. Marvin Rosenau]

No. There are two levels of government working here. Land and Water B.C. is part of the provincial government, and the Department of Fisheries and Oceans is the overseer of habitat issues. They authorized it through section 35 of the Fisheries Act of Canada. Through the provincial emergency program, Land and Water B.C. paid to have this causeway put in. The causeway was simply to get the vehicles across to a gravel bar that was authorized for extraction.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

So the issue here then is that....

I'm sorry, Frank, do you have a—

[Frank Kwak]

If you look at that picture you can see it's just like a road. They built a road right out into the middle of the river where there's a gravel bar. And that road—

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Was it the whole Fraser River or a tributary?

[Frank Kwak]

No, it was a large side channel.

[Dr. Marvin Rosenau]

A large channel.

[Frank Kwak]

The road has been violated now. They've dug it out and the water is coming back in. But you can see what's left, which is the main part of it. So it's a road that goes right out into the middle of the Fraser River onto a gravel bar.

[The Chair, Conservative, Gerald Keddy]

Where is the other picture, if I can put it up for a second, Gerry, where they had a Bailey bridge built, so there was no loss of water?

[Dr. Marvin Rosenau]

This was a 2000 extraction about the same size as one that occurred in a channel downstream. It was about a quarter of the total Fraser River flow, and the DFO authorization included a requirement to have a flow-through. What we would suggest is that even a bridge, which was originally suggested for this particular causeway—and a bridge would have gone in a hole of about that size—still would not have met the obligations to protect fish habitat, because the channel is so large, so wide, and the discharge was so immense that a small cut through like this didn't meet the grade.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

If I'm understanding you correctly, Marvin, basically your charge is that this was all perfectly legal from the point of view that DFO gave an authorization, which was obviously below standard. DFO actually allowed this, but under the habitat protection agreements, if you're going to cause destruction to habitat, you have to have a mitigative plan to create an equal amount of habitat, versus what you destroyed.

Regarding this process, you are making two charges: one is that irreparable damage was done in the conduct of the project, and two is that habitat was not fully restored post-project. Would that be correct?

[Dr. Marvin Rosenau]

The habitat component.... This particular site was more along the lines of unauthorized destruction of fish.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

So DFO never gave an authorization?

[Dr. Marvin Rosenau]

DFO never authorized the destruction of fish. They authorized the causeway construction, and my understanding is that there is a requirement for an authorization under the Navigable Waters Protection Act as well, which was never authorized. The real key on this particular site was that a huge number of fish were destroyed through de-watering, and that was never authorized.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

I don't want to be prejudicial to anything. With DFO normally, the hoops and barriers you have to go through to put so much as one rock out of a very unproductive stream is amazing. It's amazing what regulatory hoops you have to jump through, and to do this to a major highly productive salmon river with not a huge plan in place as to what the consequences are going to be just seems incredible.

[Frank Kwak]

In my documentation I have included the terms of reference, and if you go through the terms of reference you will see that all kinds of things were violated. They never did them or did them improperly.