Mr. Speaker, Bill C-62 turns Canadian fisheries law on its ear. As I indicated before the break, all fisheries law in tidal waters in British Columbia has so far proceeded on the principle that Canadians are to have equal access to the commercial licences governing the fishery.
Apart from a brief period during the war when Canadians of Japanese origin were denied this right it has prevailed without
question. The second exception is the recent incursion into public fishery affected by the AFS but that was not provided for in the act and is probably ultra vires the act. It would not be ultra vires Bill C-62.
Clause 17(2) is broadly worded. Fishing industries on both coasts which are based on security of fishing licences would be seriously destabilized by a whole new licensing regime. There is no restriction in clause 17(2) to existing licence holders. Existing licence holders in the fishery such as Pacific salmon or P.E.I. lobster could be completely bypassed by a new licensing regime pursuant to which new commercial harvesting licences are granted to others such as aboriginal organizations.
Clause 17(4) is garbled in its present form. Is it a condition of every commercial salmon licence that measures set out in the fisheries management agreement relating to the salmon fishery be complied with? Surely that is not intended. The wording should make that clear.
Clause 18(1) should provide that notice be given to all persons likely affected by the bill, so that all persons holding licences with respect to the fishery affected by the agreement are given notice.
Clause 19(1), publication in any manner the minister sees fit is not in accordance with the policy regarding publication of statutory instruments. The exception set out in clause 22 is not justified on the basis that those affected by it are to be given notice by some other means.
Clause 20 discloses the true purpose and intent of these agreements. They are in fact regulations but do not have all the safeguards, including prepublication, to which regulations are subject. Here we have a dispensing power which is something that was disallowed without express authority of Parliament by the Bill of Rights of 1689. It was disallowed then for the same reason that it should be disallowed now. It places too much power in the hands of the crown. The criminal law, of which all fisheries law is part, should be applied equally to all citizens. The crown should not be given power to dispense the law.
The right of equal access to the fishery or the public's right to fish is an issue and a guarantee which goes back to the Magna Carta. The Magna Carta prohibited the taking of this public right to fish without the expressed authorization of Parliament.
The Constitution Act of 1867 incorporates the English constitution into Canadian law. The Canadian courts, in a long series of cases, have based the public's right of access on the Magna Carta and the common law and have held that Parliament must expressly remove this right if it is to be a valid taking of the right. It cannot be done by the crown acting through cabinet, as was done with the native only commercial fishing regulations enacted in 1994.
The taking of the public's right to fish must be done through a specific act of Parliament. I quote from the Attorney General of British Columbia v. the Attorney General of Canada in 1913. It said:
It has been unquestioned law that since Magna Carta no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation.
That same term "competent legislation" was used by the Supreme Court in three decisions handed down this past August in which the justices noted that the public right to fish has existed since the Magna Carta and it can only be extinguished or taken away by competent legislation, in other words, by an act of Parliament. That has not happened.
If the government intends to proceed with these management agreements, and we think that there is a real danger in doing so because those major policy changes should be made only with the expressed consent of Parliament, I would recommend a caution be put in place with an amendment. I would suggest that what we should have here is a clause 17(5) which would state: "That with the exception of agreements pertaining to fishing for food, social and ceremonial purposes, pursuant to an aboriginal or treaty right, the class of persons or holders encompassed by an agreement shall not be determined on the basis of race, national or ethnic origin, colour, religion or sex".
It is worth noting that such wording conforms to section 15 of the charter. The point is that such agreements are now being made pursuant to the aboriginal fishing strategy and are having damaging consequences on the resource and on the industry. If an arrangement is to be established by law, Parliament should do it expressly so that the impacts are addressed and public input provided through the regulatory processes as required by the Statutory Instruments Act and by Treasury Board's federal regulatory review process.
We must ensure that the broad powers given to the minister in this bill do not amount to undermining the authority of Parliament.
The question must be asked again: Does Bill C-62 address the real problems of the fishery? There is a rule of statutory interpretation that states that any new statute or law is put by Parliament to remedy an outstanding problem, or in legal terms, to cure a mischief.
We know what the bill does, but does it remedy the problems we all know exist in the fishery? This is the most important question that can be asked in today's debate. Rather than rush to a quick answer, let us examine the facts that are on public record very carefully.
In the summer of 1994 the department's management of the Pacific salmon fishery was revealed to be in total chaos. The department's failures were not exposed by its critics in the fishing
or environment community. The department's failures were exposed in its own reports by DFO employees frustrated by the failures they saw around them. One of those reports came to my attention and I in turn brought the report to the attention of the House.
Let me remind members of some of the chaos identified by this DFO report. As we hear, let us ask if this new legislation will cure any of these problems. Steveston noted that the ability to manage the Fraser River aboriginal fishery has been seriously compromised. The report states that bands have not been able to abide by the terms of the AFS fishing agreement. It notes that the monitors at the landing sites are unable to properly count the fish as stipulated in the fishing agreement. This compromises the mandatory landing program agreement and creates inaccurate data. Does the new legislation cure any of these problems?
In Fraser Valley East and Fraser Valley West noted reduced capabilities to maintain proper control and accountability of the fishery and a breakdown of effective management of the native fishery on the Fraser River.
It notes that it was not possible to enforce the regulations pertaining to this fishery. The following issues were not addressed adequately: closure of the fisheries; mesh size restrictions; limited mandatory landing site enforcement; and early sets. There is very little effort directed toward enforcement of the terms and conditions of the fisheries. Figures gathered to date for catch in these fisheries should be given a very low confidence level.
In Fraser Valley East and Fraser Valley West licences were being abused and in fact there was no catch monitoring enforcement done on this fishery by DFO officers.
Bill C-62 will not address these problems.
Summary comments in that DFO document state that issues that have received reduced coverage and in some cases no coverage at all include: monitoring and enforcement of ceremonial licences; illegal fishing and illegal sales activities; monitoring and enforcement of the mandatory landing program, and providing coverage to ensure the integrity of the program is maintained; licensing, participant and gear restrictions verification checks. It is impossible to effectively control this fishery.
Does the new legislation address these rather fundamental problems identified by the department itself? The answer is a resounding no.
After these and other reports publicly exposed the department's mismanagement, the Minister of Fisheries and Oceans went to Vancouver to meet with his own staff. Here is what they told him:
The only thing conserving and protecting the fisheries is the Fisheries Act. If the act is not enforced, there will not be any more fish put on the spawning grounds than what is being put there now.
It is becoming obvious in this region that information on critical conservation and protection issues are not being received at the highest levels of the department-it seems as though the only issues that are dealt with are those that are politically sensitive and receive much media attention.
Most major undercover investigations being conducted into illegal fishing and illegal sales have come to an abrupt end.
Complete habitat investigations and large scale poaching investigations are not being done.
These revelations led to a major review of the department's management of the fishery in 1994. It was conducted by a former Speaker of this House, a British Columbian of whom we are immensely proud. I would like to quote some of Mr. Fraser's comments.
Mr. Fraser noted:
That message is simple: if something like the 1994 situation happens again, the door to disaster will be wide open. According to what the board found, one more 12-hour opening could have virtually eliminated the late run of sockeye in the Adams River. Such an occurrence would have devastating consequences for the Pacific fishery, delaying stock rebuilding efforts by years and bringing dire economic consequences to the province. The board believes that the solution to this problem lies in fixing the system. Unless all parties work together and manage much more competently, the tragedy that befell the Atlantic cod fishery will repeat itself on the west coast.
What brought us so close to disaster's door? The scenario has its roots in the 1992-93 DFO Pacific region reorganization. Cutbacks and budget reductions were made to the extent that the department was left in charge without the clear lines of accountability or necessary tools to enforce its regulations with any credibility. In the midst of this confusion, the aboriginal fisheries strategy was beginning to take hold and the early evidence suggests that it too was not working as intended. Once again, there was confusion as to who was in charge, obviating effective enforcement.
Mr. Fraser notes that the board makes a number of recommendations for improving the system in the area of management. We urge DFO to exercise its constitutional conservation responsibilities and not abrogate its stewardship of resources under federal jurisdiction, something which this act will allow for.
At page 63 Mr. Fraser notes: "But to allow commercial sales in other areas now would simply add to the opportunity to poach like current pilot sales have done". He confirms as well that these pilot projects proceeded as a matter of policy but without any judicial authority. Mr. Fraser recognized that these fisheries were taking place without proper legislative authority.
On page 64 he says: "There is no question that the introduction of pilot sales under the AFS cause many problems and great consternation among stakeholders".
On page 65 he notes: "Several persons appearing before us pointed out there were no problems of missing fish before these programs were implemented". He suggested that the solution was to abolish the pilot sales.
On page 66 he states:
Mindful of the Sparrow decision, DFO must negotiate with First Nations on the basis of mutual respect, always considering traditional native rights and customs. Consultation and co-operation among First Nations should be facilitated through the watershed process and in other ways. However, DFO has no right to transfer Canada's constitutional responsibilities to protect the resource to anyone, native or otherwise. This responsibility must be retained always by the Government of Canada.
The government committed to accepting all of Mr. Fraser's recommendations. There were no exceptions; it committed to accepting all of them. Let us look at the government's record in living up to its commitment to abide by Mr. Fraser's recommendations.
I refer now to a DFO document which was a response to the Fraser River Sockeye Public Review Board. It was a critique by the department on whether or not it actually lived up to the requirements of Mr. Fraser.
The first recommendation of Mr. Fraser was: "We recommend that DFO retain and exercise its constitutional responsibilities and not in any abrogate its stewardship of resources under federal jurisdiction. Conservation must be the primary objective of both fisheries managers and all others participating in the fishery. The conservation ethic must prevail throughout and be adhered to by all".
The reported noted: "Retaining and not abrogating: DFO officials do not believe they have in any way abrogated their responsibilities, but recognize there is a perception of this particularly in commercial and recreational fisheries. DFO did not directly respond to this part of the recommendation or the perceptions or concerns that underlie it". Mr. Fraser's first recommendation in my view was probably the most important and DFO just ignored it.
On the notion that conservation be a primary objective: "Again, from DFO's point of view, this is a problem of perception, not substance". I will deal more with that problem later. In fact, I dealt with it earlier when I referred to the number of runs of sockeye salmon which have been extinguished in this century.
The report with comment on Mr. Fraser's recommendation noted that DFO did not achieve its escapement targets for Fraser sockeye in 1995. It notes that there can be no conservation of Fraser River sockeye salmon in the long run without equivalent care and protection for the habitat on which fish stocks rely. In this light, the pending expiration of key programs as the Fraser River action plan and the funding base that has supported it in recent years is of utmost concern.
Again, the government's response to these conservation concerns is not to do something about them but to turn responsibility for conservation over to the very people who are the root of the problem, that being the provincial governments. The provincial governments are responsible for urban development. The provincial governments are responsible for roadways which damage the fisheries habitat. They are responsible for poor forestry practices which again damage fish habitat. The government's response is to turn the responsibility for conservation over to the provincial governments.
The second recommendation of Mr. Fraser was: "We recommend that DFO take immediate steps to initiate a process of planning for the future of the fishery, addressing all critical problems affecting conservation and sustainability through an ongoing consultative forum. Among the problems to be considered would be overcapitalization, user group allocation and ensuring equitable treatment under law".
DFO's own people in reviewing their progress in addressing the recommendations of Mr. Fraser noted: "To date, DFO has not established a broad multi-stakeholder consultative process to plan for the future and address critical problems affecting conservation and sustainability. DFO has not identified the responsibilities and composition it should have nor its relationship to existing processes".
Recommendation number three: "We recommend that DFO and the Pacific Salmon Commission adopt a risk aversion management strategy because of the great uncertainty on stock estimates, in-season catch estimates and environmental problems. Conservation goals must be achieved before any other priorities are addressed".
The government's own people note that a risk aversion strategy has not yet been developed. They say: "We found in our evaluation that DFO's actions were not the result of an explicit, well-defined risk averse management strategy but rather were a response to the unprecedented events of the 1995 fishery". They note that DFO's actions "were not based on a well-defined risk averse management strategy". They state: "The question of how DFO defines risk averse and how risk averse is expected to promote conservation must be addressed. Without this clarity, there is no way to test if DFO's activities are in fact guided by well-conceived and well-defined strategy or whether their activities in themselves define what DFO means by risk averse".
That statement is critical. It clearly demonstrates to the public and to any reader just how clear it is that the department is not operating from a clear set of principles, but rather making it up as it goes along.
Recommendation number four: "We recommend that DFO in conjunction with provincial authorities, First Nations, commercial and recreational fishery groups, implements, both in marine and in-river areas, a revised system to ensure that catch information is
timely and reliable given that accurate counting and timely reporting of catch are fundamental to conservation. The system must also include a more stringent paper trail wherein there must be stricter control of landing and sales slips and a mandatory retention of sales slips with fish through to retail sale or export".
The government's own report notes: "It is not clear to what extent measures taken by DFO provide more reliable and timely information and how much closer it brought DFO to the realization of its data collection goals. The mandatory hail data still suffer from reliability concerns. And while the landings and fish tracking plan will improve the reliability, it will not address timeliness. Overall, a fundamental problem is that DFO has not defined what information it needs or more to the point, how much it is willing to invest or demand others invest to get that information". Again, this act does not address this concern. It is not addressing the real issues facing the fishery at this time.
Recommendation number five from Mr. Fraser: "We recommend that DFO explore the application of new technology to collect information on stock levels and ocean areas in order to supplement catch statistics".
It says again:
As with measures taken in response to recommendation 4, it is not clear whether and to what extent these measures have brought DFO closer to the achievement of its data collection goals. The problem is that these goals are not well-defined.
That leads us to the difficulties. The department in this bill has not clearly defined the difficulties which it faces.
In conclusion, Bill C-62 gives sweeping powers to the minister to manage the fishery through ministerial orders, to enter into private fishery agreements and to transfer authority vested in the federal government by the Constitution to the provinces. This bill should be quietly withdrawn, pulled off the parliamentary agenda in the dark of night. Then, in the light of day, in full view of all Canadians, discussion should begin to establish the principles on which our fisheries resource will be managed.
