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cohen commission

Sockeye salmon.Globe files

After sitting for 125 days, listening to the testimony of 173 witnesses and receiving nearly 2,000 exhibits, the Cohen Commission has ended its evidentiary hearings in Vancouver on an ironic note – with the federal government refusing to release a key piece of evidence.

Wayne Wouters, Clerk of the Privy Council, has claimed cabinet privilege over three documents that Mr. Justice Bruce Cohen of the British Columbia Supreme Court had ordered released.

"I certify to this Commission of Inquiry … that all of the documents referred to … are, or contain, confidences of the Queen's Privy Council for Canada … and I object to the disclosure of these documents," Mr. Wouters states in his letter.

"If oral evidence were sought to be given on the contents of the documents to the disclosure of which I have in this letter objected, I would object to such evidence on the same grounds," he wrote.

In a decision earlier this month, Judge Cohen called for the government to provide some of the documents being sought by lawyers for several aboriginal participants in the hearings.

He said a government of Canada submission claiming privilege over the documents – which deal with aboriginal fisheries – could not stand because the government had "not provided a certification" showing that the documents were cabinet confidences.

But Carla Shore, director of communications for the Cohen Commission, said Wednesday that the letter from Mr. Wouters has now provided that certification, so the order to produce the material no longer stands.

The documents that had been sought included a 2009 memo to Gail Shea, who was then minister of fisheries; talking points for a cabinet presentation by Ms. Shea and Chuck Strahl, who was then minister of Indian affairs; and a chain of e-mails between several top officials about a presentation made for cabinet.

The Heiltsuk Tribal Council and others had sought the material because it deals with DFO's aboriginal fisheries strategy, or AFS. Under it, bands get annual authorizations to fish for food, social, ceremonial and commercial needs.

The government of Canada argued the material contained sensitive information, the release of which could damage its ability to negotiate future agreements.

"The most sensitive component of the … documents is the sets of instructions that are given to DFO negotiators, and in particular, the maximum numbers of fish and maximum funding amount that the DFO negotiators are permitted to agree to in FSC agreements," Judge Cohen states in his ruling.

One key piece of information contained in the documents is described as an "end-point outcome percentage," which refers to a secret number DFO negotiators were not to exceed, when negotiating catch limits with bands.

Judge Cohen ruled some of the documents being sought could be withheld, because releasing them would be damaging to the public interest. But he said "the end-point outcome percentage document" should be provided because it contained information that was key to his inquiry.

"Despite the finding that there may be harm to the public interest if that document is disclosed, I find that the harm to this inquiry's ability to carry out its mandate, without the information contained in that document, requires that it be disclosed," Judge Cohen wrote.

He left a way for the government to withhold the material, however, if it provided certification that the documents are cabinet confidences.

Mr. Wouters letter did that.

The Cohen Commission was appointed by Prime Minister Stephen Harper to investigate the decline of sockeye salmon after the 2009 run in the Fraser collapsed, when only one million of an anticipated 10 million fish returned.

The hearings will resume Nov. 4-10, for final oral submissions by the more than 20 lawyers that are representing various participant groups.