UPDATE: Commissioner Cohen's office has responded to West Coast Environmental Law's letter discussed in this post.
People are expecting a lot from the Honourable Mr. Justice Bruce Cohen. Last November, Prime Minister Stephen Harper appointed Cohen J., a judge of the BC Supreme Court, as the Commissioner for a public inquiry into the causes of the collapse of the Fraser River sockeye runs.
There are, of course, countless issues that Commissioner Cohen will need to look at – did overfishing play a role in the collapse? What about destruction of fish habitat from urban development or logging? Perhaps increasing water temperatures from global warming?
But one major, and controversial, issue is fish farms and the impacts they have had on salmon runs – an issue that played a key role in prompting public calls for the inquiry in the first place. Despite the fact that the federal government avoided any mention of open net fish farms in the Terms of Reference for the salmon Commission, there is a growing body of evidence that sea lice from fish farms may have played a role in the collapse, and environmentalists will be pressing Commissioner Cohen to acknowledge this evidence and make recommendations on how to address these impacts on wild stocks. Of course, the BC Salmon Farmers Association will also be appearing before the Commission to make their case to Commissioner Cohen that the fish farms are not a major factor in the sockeye collapse.
The fish farm issue is one of the most adversarial and hard-fought of the many potential causes of the collapse that Commissioner Cohen will be examining. So it’s a good example to illustrate why West Coast Environmental Law is concerned that the Commission’s rules for “standing” (essentially who can participate in the Commission’s hearings), released this past Monday, seem to shut out public interest advocates. We’ve written to Commissioner Cohen asking him to clarify that public interest advocates will be fully included.
Documents posted on the Commission’s website last Monday invite interested members of the public to apply for participant status, and participant funding, before the Commission by March 3rd. If you’re interested in participating, better get those applications in fast. But those documents state that anyone seeking full participant status before the Commission must: “demonstrate that they have a substantial and direct interest in the subject matter of the inquiry.”
Exactly what the Commissioner thinks that this means is not clear from the documents, so West Coast Environmental Law has written to Commissioner Cohen requesting clarification. However, courts that have considered the phrase “substantial and direct interest” (albeit in the context of a coroner’s inquest) have explained:
Mere concern about the issues to be canvassed at the inquest, however deep and genuine, is not enough to constitute direct and substantial interest. Neither is expertise in the subject matter of the inquest or the particular issues of fact that will arise. It is not enough that an individual has a useful perspective that might assist the coroner. The interest of an applicant for standing in the recommendations of the jury must be so acute that the interest may be said to be not only substantial, but also direct.(Stanford v. Ontario (1989) (Ontario C.A.)
If we apply this interpretation to the issue of fish farms, there is no doubt that any recommendations that Commissioner Cohen makes concerning the regulation of fish farms will have a very real and direct commercial impact on those fish farms. Presumably the Commission will grant some level of participation rights to one or more representatives of that industry.
But what of critics of the fish farm industry? Any new regulations for fish farms resulting from the inquiry may have a substantial and direct benefit for the sockeye salmon, and will ultimately benefit the public at large would benefit from healthy salmon runs. But can, for example, the Coastal Alliance for Aquaculture Reform – a coalition of environmental groups “working to ensure salmon farming in British Columbia is safe for wild salmon, marine ecosystems, coastal communities and human health”– be said to have a “substantial and direct interest” beyond the interests of the rest of the public? That’s a lot less clear.
We’re hoping that Commissioner Cohen clarifies that critics of fish farms and other public interest organizations who can contribute knowledge and expertise about the reasons for the sockeye collapse will be given full participation rights before the Commission. The Cohen Commission cannot function properly if it is one-sided, with the fish farm industry represented but not industry critics ; balance requires that public interest advocates have an equal role.
Look at West Coast Environmental Law’s letter, sent yesterday to Commissioner Cohen, for more information and for our full legal analysis. However, in fairness to Commissioner Cohen and the Commission, we do want to make clear:
- Commissioner Cohen has NOT indicated that his interpretation of “substantial and direct interest” will exclude public interest advocates. We are concerned because of how this term has been interpreted in other contexts.
- Commissioner Cohen didn’t make up the “substantial and direct interest” test – it comes from the Terms of Reference that the federal government put in place when it created the Commission.
- Commissioner Cohen has made it clear that there will be more ways to make submissions and get involved other than by satisfying the “substantial and direct interest” test and becoming a full participant.
However, West Coast feels that it is critical for Commissioner Cohen to clarify the role of public interest advocates as participants, and to reject a narrow standing test that prevents public interest perspectives from participating in the process on the same footing as commercial and other interests. It is in this spirit that we have written our letter to Commissioner Cohen.
We will, of course, post any response from Commissioner Cohen and the Commission if and when we receive it.