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Biologist and eco-activist Alexandra Morton listens to the crowd of thousands of cheering supporters after her address during a massive rally at the BC Legislature in May 2010. (Deddeda Stemler/The Globe and Mail/Deddeda Stemler/The Globe and Mail)
Biologist and eco-activist Alexandra Morton listens to the crowd of thousands of cheering supporters after her address during a massive rally at the BC Legislature in May 2010. (Deddeda Stemler/The Globe and Mail/Deddeda Stemler/The Globe and Mail)

Mark Hume

Cohen commission's calm hides turmoil behind scenes Add to ...

In a spacious room in Federal Court in downtown Vancouver, the commission Prime Minister Stephen Harper appointed to inquire into the decline of sockeye salmon proceeds with judicial decorum.

Often, 20 or more lawyers are present, but the proceedings unfold with remarkably little legal conflict. Although there are occasional objections, for the most part the lawyers don't argue, even though they are representing groups that are at odds over fisheries management. This is in keeping with the collegial approach that British Columbia Supreme Court Justice Bruce Cohen urged at the start of the hearings.

But behind the scenes things have not been nearly so congenial.

For months, lawyers have been sparring over an issue that has caused heated debate, led to personal aspersions being cast, and raised doubts in some minds about where the commission is heading.

The argument, settled in a ruling by Judge Cohen last week, followed an application by lawyers representing Alexandra Morton, a participant in the inquiry, a salmon researcher and anti-fish farm activist, who sought to be released from an undertaking of confidentiality.

Before getting access to the tens of thousands of documents gathered by commission investigators, participants are required to sign a letter agreeing not to disclose "any document or information."

But in studying the vast file of documents, Ms. Morton came across what she alleges is information showing provincial inspectors found signs of a disease, infectious salmon anemia, or ISA, had been detected in British Columbia.

ISA can rip through salmon populations. It was found in salmon farms in Chile in 2007 - and within two years had gutted the industry, shutting down so many operations that 13,000 people had to be laid off. The industry is still recovering.

Ms. Morton's concern was that any information on the possible presence of ISA in B.C. had to be reported to the World Organisation for Animal Health.

But she couldn't do that because of the undertaking of confidentiality.

After a heated exchange of legal arguments behind the scenes, Ms. Morton got clearance to make that report. But she still can't talk about her concerns because of the undertaking. And none of the material her lawyer, Greg McDade, filed in support of her application can be released because it too is covered by the undertaking.

Mr. McDade and several other lawyers have been arguing that the undertaking is too restrictive and that it runs contrary to what a public inquiry should be about, which is informing the public.

But in counter submissions, the B.C. government and the B.C. Salmon Farmers Association argued that it is important for the commission to maintain confidentiality so that evidence can be presented fairly and in context during the hearings.

The BCSFA argued that releasing documents before they become exhibits "would promote a media trial that would distract the public from the commission's work."

And the BCSFA said if the undertaking were loosened, it would allow "Ms. Morton and other anti-aquaculture activists to selectively interpret the documents for the public, thereby placing a heavy burden on the aquaculture industry to attempt to correct false and misleading information in the media."

Judah Harrison, a lawyer the Conservation Coalition, supported Mr. McDade's view, arguing that participants should be able to release written submissions and affidavit evidence. He accepted the commission's ban on confidential documents, but said that "written submissions and affidavits are routinely public documents in Canadian courts."

And, giving a glimpse into the tenor of the debate, he chastised the BCSFA for "numerous personal attacks … on Ms. Alexandra Morton."

The comments by Mr. Harrison, Mr. McDade and the BCSFA are contained in partly redacted application materials released last week when Judge Cohen made his ruling.

His decision is that documents will remain confidential until filed as evidence, but that participants can release written submissions, "once commission counsel has reviewed them and has redacted any references to information drawn from compelled documents."

Affidavits and other supporting material remain secret.

Behind the scenes, the debate over how open the proceedings should be was fierce. One can only wonder how long it will be before those tensions erupt in Judge Cohen's tightly composed court room.

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