A guest post by Richard Overstall
The North Coast Steelhead Alliance – a BC sports fishing group – has been concerned for some time that the Canadian Department of Fisheries and Oceans (DFO) has not been enforcing rules requiring commercial salmon fishers to revive and return to the ocean certain species of fish taken as by-catch in the Skeena River sockeye fishery off BC’s north coast. But this past May an international body known as the Commission for Environmental Cooperation agreed to investigate the Alliance’s complaints.
Each year commercial fishers fishing for sockeye salmon catch steelhead, coho and Chinook salmon as well. Under their licences, the fishers are supposed to separate out the steelhead, coho and chinook, revive them in oxygenated tanks, and return them to the ocean. The Alliance’s complaint is that this is not happening, and DFO is doing nothing to enforce the terms of the licences. As a result, the numbers of by-catch species returning upriver may be insufficient to sustain the stocks.
It’s generally difficult to force the government to enforce the law – the courts leave it to the government to make the decision about when to lay charges. But a little-known side-agreement to the North American Free Trade Agreement (NAFTA) – the North American Agreement on Environmental Cooperation – offers a potentially powerful tool when it comes to non-enforcement of environmental laws. In essence it establishes a Commission for Environmental Cooperation (CEC) that, among other things, investigates citizen submissions alleging that any NAFTA signatory – Canada, the USA and Mexico – is failing to enforce their environmental laws.
For example, the NAFTA side-agreement clearly distinguishes between environmental laws (which the CEC will consider complaints about) from resource management laws (which it won’t). In the Skeena Fishery submission, this meant carefully characterising regulations that have as their stated purpose both “conservation and protection of fish” (an environmental law) and “the proper management and control of sea coast and inland fisheries” (a resource management law).
Another challenge in writing the complaint for the Alliance is the fact that the CEC limits these submissions to 15-pages – a real challenge when the laws at issue are complex. The Skeena Fishery submission required consideration not only of the Fisheries Act but of provisions in two of its regulations as well as the conditions of commercial salmon fishing licences and the fishery notices issued periodically by DFO throughout the fishing season.
In May the Alliance’s complaint overcame its first major hurdle when the CEC agreed that it had met the requirements under the NAFTA side-agreement and that the Canadian Government needs to respond to it.
Once the CEC has received a response from the Canadian government to the Alliance complaint, it will decide whether the matter warrants the publication of a factual record. These records are about the size of a paperback novel; the CEC is noted for the thoroughness of their inquiries.
A factual record from the CEC will not, of course, guarantee that the sockeye and other fish runs will be protected. The CEC, even if its investigation shows that the Alliance’s allegations are true, has no authority to enforce its findings against Canada. Rather, parties making complaints to the CEC hope that the factual record, once it is made public, will embarrass the government into action.
This process can effect change by, first, engaging the highest levels of government in the issue being raised, challenging them to respond to a rigorous and impartial procedure, and letting them know that the detailed results will be published. The Alliance hopes that the CEC will confirm that the failure to revive and release these salmon is a violation of the law and DFO is failing to enforce it. A factual record confirming those facts could be a politically powerful tool for the Alliance to pressure DFO to properly enforce the Fisheries Act and charge fishers that are not following their licence conditions.
Richard Overstall represented the North Coast Steelhead Alliance in its complaint to the Commission for Environmental Cooperation. Richard is on the Board of West Coast Environmental Law. The Complaint was also prepared with help from Christina Cook, who is currently a doctoral candidate at UBC’s Institute for Resources, Environment and Sustainability.