A damning indictment

By Katherine Palmer Gordon, December 2012

The final report of the 3-year, $26-million Cohen Commission may signal the end of fish farming on BC’s coast.

In the summer of 2009, the number of Fraser River sockeye salmon reaching their spawning grounds could be counted in mere thousands rather than the ten million fish originally predicted to arrive in the river that year. 

By then, steadily declining returns had already led to closures of the fishery for three years in a row. Bowing to vociferous public demand for action, in December 2009 the federal government commissioned BC Supreme Court Judge Bruce Cohen to investigate what was happening to the wild fish. 

Cohen’s terms of reference required him to consider the Department of Fisheries and Oceans’ (DFO) policies and practices, investigate and make findings of fact on the state of the fishery, and make recommendations for improving its future sustainability. 

Cohen, a slender man with a neat head of silver-white hair and a penchant for dark suits, had the right credentials for the job: a West Coaster born and bred, he had more than 40 years’ legal experience, 22 of them as a judge. Cohen also had the necessary gravitas to keep a courtroom full of ardent and often angry people in check.

Both attributes were put to the test many times over the next three years, as Cohen listened to 900 public submissions and 160 witnesses, and analyzed 2100 exhibits, totalling 14,000 pages of evidence. The bill for the process was $26 million, not counting what other organizations and individuals had spent to participate in the proceedings.

In 2010 Fraser River sockeye returns hit the highest levels in decades. Sadly, scientists concluded it was merely an anomaly. By 2011, the numbers were back down to the levels of the last few years. Overall stock numbers—not just of Fraser River salmon, but of at least 45 other stocks—continued to steadily decline.

On October 31, 2012, Cohen held a press conference to release his findings. Thousands of NGO representatives, scientists, academics, First Nations and other British Columbians who had followed the three-year process were chewing their nails in anticipation. Hopes were high that he would direct the federal government to act without delay to mitigate potential risks to wild salmon posed by the fish farm industry. Many hoped Cohen would go further and order the industry right out of the water. 

While the latter outcome wasn’t likely, even the former was anything but a sure thing. Much of the evidence Cohen had heard on that subject had been contradictory. In just one of many examples, Raincoast Conservation Foundation biologist Michael Price had told Cohen that exposure to salmon farms has had a significant impact in spreading sea lice to juvenile wild salmon throughout Georgia Strait. Biologist Alexandra Morton too reported that sockeye running the gauntlet of Broughton Archipelago fish farms were heavily infested with sea lice. 

But the aquaculture industry disputed such findings, claiming they were based on misleading research, and in turn producing reports denying that sea lice from salmon farms were endangering wild fish. DFO also disputed the connection. In August 2009, in the same breath it admitted it didn’t know what had happened to the missing fish, DFO adamantly stated: “Sea lice from fish farms are not the explanation.” 

Confronted with such conflicting evidence, not just about sea lice but also about diseases and other risks associated with fish farms, what chance was there that Cohen would come down on the side of wild fish over the aquaculture industry? Even if he did make recommendations for action on salmon farms, would they go far enough? 

Perhaps most important of all, having heard repeatedly how strongly the government supports the aquaculture industry, would Cohen be prepared to hold the federal government to account for its failure to protect the wild fish?

 

A resounding victory for wild salmon

To the joy of wild fish advocates, Cohen exceeded all expectations. Making his view clear beyond any debate, Cohen stated unequivocally in his opening announcement: “I conclude that the potential harm posed by salmon farms to Fraser River sockeye salmon is serious or irreversible.” 

As Cohen continued speaking to his spellbound audience at the press conference, wild cheering was breaking out along BC’s entire coast. “It was like a thunderbolt!” recalls biologist Alexandra Morton. For Morton, who has devoted decades of unwavering effort to protecting wild salmon, it was a huge moment of vindication. Originally a whale researcher in the Broughton Archipelago, when orcas left the area in the early ’90s her work shifted towards protecting wild salmon and campaigning against proliferating fish farms. She has spent countless hours documenting sea lice on wild salmon and more recently has been spearheading efforts to get proper monitoring for the ISA virus in salmon.

In total, Cohen made 75 recommendations for action by the federal government to improve the chances of survival of wild fish, covering everything from climate change mitigation to enhanced habitat protection. He put clear deadlines on their implementation and fearlessly threw the gauntlet down to the federal government to publicly account for its actions in implementing the report. The first public report on progress is due by March 2014. 

Although he acknowledged that he can’t force the government to accept his recommendations, there is little doubt Cohen believes the government must do as he advises, and do it fast or our fish are doomed: “Fraser River sockeye face an uncertain future. If implementing [my] recommendations is delayed, ongoing threats to the stocks will make remedial action all the more challenging when it does begin.” 

“Overall, it’s a fabulous report,” says Craig Orr of Watershed Watch, still savouring the good news over a Sunday morning cup of coffee a few days after the report’s release. Orr, who holds a PhD in behavioural ecology from Simon Fraser University and who has been working to protect BC’s wild fish for 20 years, had followed every step of the Cohen process closely. He and his Watershed Watch colleagues had collectively devoted thousands of hours and extensive resources to providing evidence and issuing daily public updates as new information came to light in the hearings.

For Orr, Cohen’s report made it all worthwhile: “His finding that DFO is in a conflict of interest in promoting salmon farms is huge. Calling for immediate implementation of the 2005 Wild Salmon Policy, with conservation of wild fish as DFO’s primary mandate and confirming its obligation to take a precautionary approach to conservation—we’re very happy about that. Those two things alone are worth all the effort.”

 

Cohen’s findings: a damning indictment 

Cohen couldn’t have been any clearer about DFO’s responsibilities towards salmon: “In relation to wild fisheries, DFO’s paramount regulatory objective is the conservation of Fraser River sockeye salmon and other wild fish species…In my view, DFO should act at all times in accordance with [that objective].” 

Although he did it in more restrained terms than Orr might have used, Cohen also did make it crystal clear that DFO has been doing anything but acting in accordance with that objective. The report recites a damning litany of failures and omissions in DFO’s management of wild salmon. 

First and foremost, found Cohen, DFO has plainly and simply failed to act to conserve wild fish species. Its mandate to promote and support the aquaculture industry is in direct conflict with its responsibility for conservation of wild salmon, and may be responsible: “Promotion of salmon farms might prejudice the health of wild salmon stocks,” wrote Cohen. “As long as DFO has a mandate to promote salmon farming, there is a risk that it will act in a manner that favours the interests of the salmon-farming industry over the health of wild fish stocks.”

DFO has also failed to implement the 2005 Wild Salmon Policy (WSP), a detailed plan of action setting out the federal government’s responsibilities under the 1995 United Nations Agreement on Straddling and Highly Migratory Fish Stocks. Under that agreement DFO is required to apply a “precautionary approach” to its management of wild fisheries. When scientific information is “uncertain, unreliable, or inadequate,” the precautionary approach prohibits DFO from using the absence of adequate information as “a reason to postpone or fail to take action to avoid serious harm” to a fishery. 

Wild salmon advocates have been urging DFO for years to take a precautionary approach to minimizing potential risks from salmon farms. But their efforts have been fruitless to date, and Cohen pinpointed why: “Seven years [later], little progress has been made in implementing the WSP. The level and manner of funding for implementation [of the WSP] is inadequate and disappointing. The blunt truth is that, in terms of dollars, [DFO] attaches greater importance to programs such as promotion of salmon farming.”

This situation has been compounded by a dearth of meaningful research by DFO into the various stressors that affect wild salmon, including salmon farms, sea lice and infectious diseases: “DFO has not yet completed research into the effects of [these] diseases and pathogens [and] DFO’s lack of research into the stressors means that the department had no capacity to draw firm conclusions about the decline as the years unfolded and therefore was precluded from taking action in a timely manner.” 

Despite that, DFO has continued to make decisions supporting fish farms in the face of a real likelihood that wild fish are being exposed to diseases and pathogens spreading from fish farms: “The evidence before me,” wrote Cohen, “indicates several plausible mechanisms for harm.” 

 

Obfuscation and obliquity

These are just some of the formidable list of DFO’s shortcomings described in the Cohen report. Unfortunately, the list doesn’t end with the report itself. Interwoven through the dense stack of Commission transcripts of evidence are page after page of DFO and federal government cover-ups, obfuscation and evasion.

Cohen was specifically directed in his terms of reference not to find fault on anyone’s part. That must have been remarkably challenging. Browsing the transcripts is akin to turning the pages of a conspiracy thriller: there are shonky alibis, security goons with earpieces, muzzled scientists, blatant political interference, questionable financial transactions, secrecy, and denial. It’s a plot any novelist might envy. Here’s just a tiny smattering of what transpired.

On March 17, 2011, Dr Laura Richards, DFO’s regional director of science, was on the stand responding to questions regarding several revealing departmental emails and documents. It quickly became clear that even though staff had prepared ministerial briefing notes admitting plainly that sea lice and disease were possible causes of the decline of wild fish, DFO had continued to publicly dismiss sea lice as a factor rather than taking the precaution of investigating the potential link further. 

It was evident that federal government communications staff in Ottawa had control over what could be said publicly, rather than DFO scientists, who had received written instructions on what could and couldn’t be included in any news releases or ministerial speeches and correspondence on the subject. Denial of the possible existence of disease such as infectious salmon anaemia (ISA) in BC’s farmed fish, particularly in correspondence to potential United States buyers, was routine. 

Ottawa’s unequivocal support for salmon farming was clear in DFO’s communications plan, the goal of which is to convince an “uninformed” and “confused” public of the merits of fish farming. The plan was clearly unsuccessful: on August 31, 2011, the Commission heard that Trevor Swerdfager, director general of aquaculture for DFO, eventually instructed his staff to simply ignore numerous letters that DFO was receiving from the public expressing concerns over salmon farming. 

Other documents submitted to the Commission the previous day revealed that DFO had developed a marketing strategy to counter NGO campaigns against aquaculture. It also had a budget to send senior management staff, including Swerdfager, on several trips to the US to promote Canadian farmed salmon. These travel expenses were just a small portion of a $70 million federal budget for aquaculture promotion, large chunks of which were doled out directly to private aquaculture companies undertaking research and development projects. 

At the same time Ottawa was subsidizing the industry, it was threatening to cut funding to its own scientists—at least the ones doing work that might prove detrimental to the fish farm industry. 

In January 2011 Dr Kristi Miller, DFO’s head of molecular genetics, co-published a paper in the prestigious journal Science hypothesizing that a virus could be responsible for the dying wild salmon. While the breaking news electrified the West Coast, and anti-salmon farm activists immediately connected the potential virus to salmon farms, Ottawa also moved immediately, forbidding Miller to talk about her discovery. 

When Miller appeared before the Commission in 2011, she alone of numerous DFO staff was accompanied by a burly security guard, ostensibly there to protect her but clearly under instructions to ensure she didn’t speak to the media. Miller needed no such “protection,” however. The scientist proved unafraid to speak candidly to the Commission about events that had unfolded after the publication of her team’s hypothesis. Once on the stand and under oath, the evidence she provided was nothing short of explosive. 

After publication of her paper, testified Miller, her department’s funding came under immediate threat from senior DFO management. She was also extremely worried that her extensive body of research materials might be taken away. She had been quarantined within her own organization, admitting to the Commission: “I’m pretty alienated in the department at the moment, so I’m not included in any conversations about disease. Once I reported the information, nobody in the department talked to me about disease after that.”

Since publication of the first results, continued Miller, she and her team had discovered yet another virus, this time a parvovirus never before seen in fish and one she believed could be the “smoking gun” responsible for the 2009 sockeye collapse. This astounding discovery complemented other research results going back several years that identified a number of diseases and viruses discovered in BC hatcheries and net pens with potential to have caused harm to Fraser River sockeye, including ISA. 

Miller’s testimony about being alienated, was dramatically illustrated when fellow DFO scientist Kyle Garver, who followed her onto the stand, attacked her findings on the new parvovirus. Garver dismissed her conclusion as pure speculation, saying far more research was required before a connection could be made between the parvovirus and the collapse. 

Miller had in fact tried to get more research done, only to be stymied yet again by her own department. Her requests to get farmed salmon samples for testing for the parvovirus were repeatedly ignored. Miller persisted, sending an email to her colleagues in July 2011 asking them to elaborate on “their reasoning for not initiating any testing of [farmed] Atlantic salmon for the parvovirus we have recently identified in high prevalence in wild sockeye populations.”

She not only received no response, she was actively obstructed in her efforts to get further samples for parvovirus testing. The samples were sent to her, but in a thawed state: “Anyone who knows anything about molecular biology,” said Miller, “knows you cannot send tissue samples that aren’t kept frozen or they degrade very, very rapidly. By the time they got to our lab, they were no use.”

Miller wasn’t the only scientist attacked by DFO for her findings. Dr Fred Kibenge, an ISA specialist at the University of PEI and an independent and credible scientist, had also been examining the presence of ISA in BC under the supervision of DFO scientist Simon Jones. When Kibenge confirmed ISA may be present, Jones refused to publish his report. 

Under questioning, Kibenge confirmed that he had been heavily criticized for his findings, something he found incomprehensible: “I can’t understand where the government is coming from. I mean, that’s my view.” Legal counsel asked Kibenge if he thought he would have experienced the same kind of pressure had he found no evidence of ISA; Kibenge unequivocally said no.

 

What Cohen recommended

After everything he’d heard, it’s little wonder that Cohen hit hard when he made his recommendations. In addition to immediate implementation of the Wild Salmon Policy, they include immediately relieving DFO of its responsibility for aquaculture to allow it to focus 100 percent on wild fish. 

He also advised the government to undertake properly funded and extensive research into wild fish health, and supported much greater transparency of data and data-sharing with independent scientists, including health data from salmon farms. He recommended development of new farm siting criteria by March 2013, building in protection of wild salmon migration routes. Farms that don’t meet the criteria, he stated, should be shut down without delay. 

He called for immediate implementation of a policy limiting licences to one-year terms in the Discovery Islands, where a high density of farms and a narrow passage for Fraser sockeye to pass through puts the wild fish particularly at risk, and recommended an immediate freeze on any expansion to fish farm activities in that area.

Perhaps most fundamental of Cohen’s recommendations is to shift the onus of proof as to whether harm is being done to wild salmon back to DFO and the industry, where it should have been all along. “Until now,” says Alexandra Morton, “as a scientist you’ve had to prove some impact has happened to the wild population because of farms. Well, the trouble with that is by then it may be too late to prevent permanent damage.”

Now, thanks to Cohen, the shoe is finally on the other foot. In the face of the uncertain science and real potential for risk to wild salmon from fish farming, Cohen gave DFO a maximum of eight years to do research into diseases and pathogens affecting wild fish. If by then DFO “cannot confidently say the risk of serious harm is minimal, it should prohibit all net-pen salmon farms from operating in the Discovery Islands. If DFO is satisfied before then that the risk is more than minimal, it should,” wrote Cohen, “put an immediate stop to operations.” 

 

The industry response

Mary Ellen Walling, executive director of the BC Salmon Farmers Association, thinks no one should be holding their breath that the industry is about to vanish from BC’s coast as a result of Cohen’s report: “We have an important role to play in the economies of the small coastal communities of BC in which we operate,” says Walling firmly. “We provide employment in those communities and we’re working hard to make sure they understand we’re going to be here for a long time to come.”

Walling, a self-described “long term resident of the BC coast,” has an applied communications Masters degree from Royal Roads. On her website, maryellenwalling.com, she highlights her expertise in applied marketing, public relations and promotion, with a “particular focus on risk communications.”

The industry, continues Walling, “fully supports” the Cohen report. Pressed as to whether the industry has plans to take mitigative steps on a voluntary basis to address the concerns identified in the report—or indeed to prepare to exit the coast if further research doesn’t support their case—Walling is evasive, however. “We are confident in the health of our fish,” she insists. She then changes the subject: “We’ve proven we’re prepared to be transparent with information. We provided unprecedented amounts of raw data to the Commission and we’ll continue to provide it to DFO.”

The industry continues to look at options for closed containment but the technology remains expensive and small-scale in nature. More likely to be on the radar are innovative new vaccines: “That’s at the forefront of our management approach. We use very few antibiotics compared to other farming sectors, so vaccinating at smolt stage against the risks of disease is a good form of protection.”

But Walling is talking about protecting farmed fish, not wild salmon. She agrees that further research into the health of wild fish is required, but for a different reason than folks like Orr and Morton: “We know our fish are brought into the pens healthy, so we’re very concerned to protect them. What we’ve been saying for a long time is that more information is needed about wild fish, because our fish are vulnerable to the diseases that wild fish carry.”

That’s quite the “risk communication” spin on Cohen’s findings: the research needs to be done in order to protect the farmed fish, rather than the wild fish. Unsurprisingly, Alex Morton is derisive when she is presented with these perspectives. “Well, finally we agree on something!” she scoffs. “That’s easy to fix. If you want to protect your fish, get them out of the ocean, Ms Walling!”

Morton also disputes Walling’s assertions about the industry’s contribution to coastal communities, and speaks from personal experience. “My community had about 200 people in it when the industry moved in here in the late eighties. They told us they would be good for the community and, naively, I believed them. Today, we have 27 Norwegian feedlots, and about 8 people left in the community. They don’t hire locals, they don’t buy gas from us. As far as I’m concerned, they’ve destroyed us.”

 

What else has been happening in the meantime?

In 2010, authority for the management and regulation of fish farms was transferred to DFO from the provincial government after the BC Supreme Court decided in 2009 (in a lawsuit brought by Alexandra Morton against the province) that finfish aquaculture is a federal government responsibility.

DFO’s official policy since then has been to hold off making any decisions on applications for new fish farm sites, or for amendments to existing licences where there is “potential for a significant increase in the environmental footprint,” until DFO has had time to consider the Commission’s recommendations.

But even as the release of the Cohen report was imminent, DFO’s actions spoke louder than its words. In October it gave clearance to a new farm site at Meares Island, near Tofino—only a few kilometres away from another farm at Millar Channel, where earlier this year all stock was destroyed after an outbreak of IHN virus. 

The rationale for the exception is that the new site replaces an existing one with a higher environmental impact. The provincial government, which retained the authority to issue and manage fish farm tenures, approved a licence for the new site, agreeing that no “significant” environmental impacts had been identified with that location. 

In 2008, the Province placed a moratorium on fish farm applications on the north coast. Apart from that, there have been no limitations on the issue of tenures for fish farm sites pending Cohen’s report. According to BC’s Ministry of Forests, Lands and Natural Resource Operations (FLNRO), the Ministry of Agriculture is in the process of reviewing Cohen’s findings and will be communicating its response directly to the federal government in due course. 

In the meantime, FLNRO communications staff report that there are seven outstanding applications for tenure replacements in the Discovery Islands, all of which are currently operating under month-to-month tenancies and “under review,” along with one tenure amendment application.

It’s not much information on which to base any sense of where the provincial government’s going to land on the Cohen report. But in mid-2012, the government introduced Bill 37, an apparent attempt to override freedom of information legislation and severely constrain whistle-blowers from publicizing reportable diseases (read salmon farm outbreaks) by the threat of severe criminal penalties. It was only withdrawn after legislators were bombarded by public protests.

In the absence of any indication to the contrary, the message seems clear: far from constraining any further activity, let alone shutting it down, both governments are still backing the industry over wild fish and the environment. In fact the environment, as much as the fish, appears to be the victim in this story.

One of many things Cohen criticizes the federal government for in his report is its performance on climate change, including its withdrawal from the Kyoto Protocol. In recommendation 74, he urges the federal government to reverse that direction by “championing” reasonable steps to address warming waters and their effects on fish.

Cohen is also critical of the federal government’s failure to implement DFO’s long-standing habitat protection policy, premised on a principle of no net loss to vital fish habitat. In fact, as it did with Kyoto, the government has yet again been going in exactly the opposite direction.

On June 29, 2012, the Orwellian Jobs, Growth and Long-term Prosperity Act, also known as Bill C-38, amended both federal fisheries and environmental assessment legislation by emasculating environmental assessment processes and fisheries habitat protection. Notwithstanding roars of outrage from the public, both vital processes were effectively made secondary to economic interests. 

Read the section of Cohen’s report covering this issue and it’s impossible to conclude that he is also anything but utterly outraged. Not only did the government fail to alert him to the changes coming down the pipe—changes that he notes would have a “significant impact” on his findings—but they chose to introduce the legislation when his draft report was nearly complete. “The federal government’s tabling of Bill C-38 is disappointing,” fumes Cohen. “It is regrettable that [these] legislative amendments could not have waited until the Government of Canada had the opportunity to consider this report.”

Someone with lesser integrity or courage may not have done what Cohen did, which was to go back to all the Commission participants and invite them to make submissions on the changes. After he analyzed the results, he concluded unequivocally: “Bill C-38 reverses the explicit approach to fish protection set out in the Wild Salmon Policy.” 

He also found that the combined effect of the legislation means that “it is likely DFO will be less involved in assessing the impacts of projects on Fraser River sockeye and sockeye habitat. Expanding the circumstances in which harm to fish habitat may be authorized concerns me. Based on the evidence I heard, this shift could harm the long-term sustainability of the [fish].”

 

What happens now?

“The only thing Cohen could have done better is ask for permanent removal of fish farms right now,” says Craig Orr of Watershed Watch. “But he’s done the next best thing. He’s said the precautionary principle has to be applied to all decision-making about wild fish from now on. So it’s still a whole new ballgame for fish farms.”

But will Cohen’s report simply fade into oblivion like so many of the other reports that have preceded it. Orr feels that won’t happen. Besides going so much further than any previous review of these issues, he says, “It’s very powerful. It captures so much testimony and evidence and information that might never have seen the light of day otherwise, especially the evidence that DFO staff were required to give under oath, which includes some very honest and compelling testimony. That’s permanently on the record now, whatever happens.”

Alexandra Morton, too, is optimistic: “The industry’s on the way out the door. There’s no question. We’ve already seen that wild salmon bounce back when they’re relieved from the risks posed by salmon farms. There’s tremendous potential in our wild salmon stocks, and coastal communities should be preparing to get ready to take advantage of that when the industry moves on. Because believe me, it will.”

Still, she’s not relaxing her efforts. Morton is now undertaking research in collaboration with independent international scientists to track and verify the existence of ISA in BC. “Given the type of tests we’re doing, tests undertaken by internationally respected and credible scientific institutions, it’s impossible to say ISA is not here,” says Morton. “The results are already demonstrating that there is more than a minimal impact from these farms on the wild fish. It’s more than time to act on this.”

The data Morton and her colleagues are collecting will be vital in the battle to save BC’s wild fish, but at times it feels like she is fighting a lonely and financially challenging war: “We’re working to track three potentially deadly European viruses here. This work has to be funded. The fish farms have to go. But it’s not just up to me. I am really trying to wake British Columbians up to the need to be proactive and tell our politicians that they have to do something now. Nothing will happen if we don’t all rise up and take action.”

Otherwise, ultimately, the fate of the wild fish will be left in the hands of the federal government. Bruce Cohen may not have had the authority to find fault with anyone in his report, but there’s no question that if his recommendations aren’t implemented, at least we know squarely who is to blame.

Katherine Palmer Gordon is an author and freelance writer based on Gabriola Island. Her sixth book, We Are Born with the Songs Inside Us, is scheduled for publication by Harbour in December 2013.