Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue No. 40 - Evidence - April 2, 2019
OTTAWA, Tuesday, April 2, 2019
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act; and Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, met this day at 5:05 p.m. to give consideration to the bills.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to this meeting where we will continue our work on Bill C-55. Before we do that, is it agreed that we authorize Senate Communications Directorate staff to take pictures and film excerpts during the meeting and publish them? Is everybody okay with that? It won’t be intrusive.
Hon. Senators: Agreed.
The Chair: Okay.
We are going to go to Senator McInnis. At our last meeting, we were finishing up on his amendment. I understand that he takes a different direction, but I will leave it to you, senator.
For those who are wondering where the minister is, there is a vote in the House of Commons at 5:45. The minister has to be there for the vote. In our discussion with him, we decided we would do Bill C-55 before the minister arrives. Hopefully, we will be finished with Bill C-55 by the time he arrives, and he should be here between 6 and 6:15, after the vote in the house. We felt it was best to do it that way. I hope you are all in agreement. If you are not, it is too late now, anyway.
Senator McInnis, please go ahead.
Senator McInnis: Thank you, Mr. Chair. I have a subamendment that I want to move to my amendment that I put in place at our last gathering. I listened to what the senators had to say around the table, so I’ve softened it quite a bit. I think this has been distributed.
I move:
That the motion in amendment moved by the Honourable Senator McInnis, in clause 5, on page 4, be not now adopted but that it be amended by replacing the proposed paragraph 4(a) contained in the amendment with the following:
“(a) is able to determine the approximate geographical location of the proposed marine protected area and make a preliminary assessment of any habitat or species in that area that is in need of protection;”
To refresh your memories, with my previous amendment, I was requesting the exact geographical location of the proposed marine protected area and to make a “precise” assessment of any habitat or species in that area. I’ve softened that considerably — determine “the approximate geographical location” and “make a preliminary assessment.”
I wanted something because it is important when these proposals are put forth to the public that they have an idea. I agree that it doesn’t necessarily have to be precise, but it must be an approximate geographical representation of what area they are going to be covering. There are a lot of stipulations that come in. Upfront before consultations and so on, it is considered possibly to be a no-take zone, which means all the fishers who fish lobster or other fish don’t know if they are going to be able to.
In any event, this will give the residents — not just the fishers but all of these communities, residents, small businesses and so on — an approximate geographical location and a preliminary assessment of the habitat. I don’t think that’s making it too onerous for the department and others to make a determination.
So I move that subamendment.
The Chair: Thank you, Senator McInnis.
Senator Gold: Thank you, Senator McInnis. I agree with you that it softens it considerably. Thank you for making the effort and listening, as you always do.
I have a question in order for me to understand the consequences. I want to make sure I understand what Bill C-55 envisages and then ask a question of the officials that are here. I’m not sure I heard you correctly, Senator McInnis, but I think you said that when something is designated, it could be a no-catch zone or something. Am I right in thinking that, in this temporary period before it might become permanent, we are freezing the footprint? So that whatever the people are doing in that area, if they are fishing for lobster or anything else, they would be entitled to carry on that activity even once it is designated as a temporary marine protected area. Is my understanding correct? That’s the first part of my question. The second part is if you could give your comments on what impact, if any, this would have on the process as it introduced an element that slows it down, changes it, and, if so, how material a change would it be?
The Chair: Senator Bovey, do you want Mr. MacDonald to speak before you ask your question?
Senator Bovey: Essentially that’s exactly my question. I wanted to know how it affects the purpose of the bill.
Jeff MacDonald, Director General, Oceans and Fisheries Policy, Fisheries and Oceans Canada: Thank you. With regard to the chapeau of the proposed language, it says “despite section 35.2.” We have to read all of this in the context of section 35.2 of the bill and, in the last meeting, we were talking about the precautionary approach. Section 35.2 talks about the lack of scientific certainty regarding the risks posed by any activity that might be carried out. Reading this language, it would say that regardless of what is in section 35.2, the minister may not make an order unless he is able to delineate the approximate location, make a preliminary assessment and then post the report of the information on the website. Administratively, it would mean that this is a prerequisite prior to the minister making any kind of ministerial order.
In terms of impact, in the Oceans Act, we would have the same type of procedure that we already need to do under the Cabinet Directive on Regulatory Management, which is an authority that comes through the Financial Administration Act and is articulated in the Treasury Board Secretariat’s policies. It’s making a duplication in the Oceans Act, what is already a legal requirement of all departments and agencies when we are making regulations.
Senator Gold: Does that include the requirement that is from the original motion and that is not changed by the sub-amendment that this information, in this case the approximate geographic location and preliminary assessment, be posted on the website?
Mr. MacDonald: This is something that we already do as a requirement under law. If you go to the website of Fisheries and Oceans Canada, you will see information about the Eastern Shore Islands AOI and other areas of interest that have been identified by the department. Over and above that, we are also required under regulations to publish a forward regulatory plan. In those circumstances, if we are planning to bring forward a marine protected area, we also have to publish that information.
Senator Gold: So the law already requires you to do this once you have designated it as an area of interest, pending the designation as a temporary marine protected area?
Mr. MacDonald: It is not a process of designating an area of interest —
Senator Gold: I’m sorry, identifying an area of interest.
Mr. MacDonald: Identifying, yes. When we publicly announce an area of interest, it doesn’t have any legal status. That is one of the issues for which this bill was proposed. It was felt that when we got to the moment when an area of interest has been identified and the conservation objectives are identified, there was a need to say that this is an important area for biodiversity and, if we don’t do anything, this area could be at risk because there could be an increase of activities that could affect what we are trying to protect. The idea of the bill is to say that at this stage in the process, we want to give the force of law in protecting this area so we can finalize our consultations and the management plan and afford some protection to an area identified as important for biodiversity.
Senator Gold: Thank you for that. Can you elaborate on the implications of the opening clause, what you called the chapeau, that this would operate despite section 35.2? I recall you spoke to that issue before, but how would that bear upon this proposed subamendment to the amendment?
Mr. MacDonald: When we read section 35.2, it essentially lays out the precautionary principle, which is that the minister or the Governor-in-Council, depending on who is making the regulation, shall not use the lack of scientific certainty regarding the risks posed by any activity that may be carried out in certain areas as a reason to postpone or refrain from exercising their powers or performing their duties and functions. If we read this amendment with that, it would mean that, regardless of whatever is in 35.2, the minister cannot make an order unless he is able to identify this information and make it public.
Senator Gold: I understand that, but you said that the provisions of (a) and (b) are already in the rules and practices.
Mr. MacDonald: That’s correct.
Senator Gold: The reference to section 35.2 — do you have a concern that means the minister could use the lack of scientific certainty to refuse to designate? I’m trying to understand from a narrow legal point of view why the “despite section 35.2.” Perhaps I could ask Senator McInnis to explain the purpose of that clause. Maybe I have misdirected my question and I can hold off on that and let others speak, but it’s still hanging in the air for me.
Senator McInnis: Could I ask the witness? I’m not a great fan of the precautionary principle at all because it’s an excuse for the science not to be done. That’s what it is. If you have five years to do the science, you should be able to carry it out within the five-year period. That’s all I’m saying. That’s why I disagree with that principle. It says if you can get it done, that’s great; but if you don’t, fine. That’s what the precautionary principle is. So they can go ahead.
Senator Gold: To designate as a temporary one. My question is simply in regard to the designation as a temporary. The precautionary principle is in the Oceans Act for the permanent, but here it’s an echo or it’s the equivalent of the precautionary principle, as I read it, saying that you can go ahead and designate something as a temporary one, which gives you five years to do more science, but you can do that even if there is some degree of scientific uncertainty. We’re talking about the front end of the designation of a temporary. We are not really talking about the precautionary principle at the tail end when you put into place through regulation a permanent marine protected area, but rather at the front end when you are trying to figure out, through the process of consultation and scientific inquiry, exactly what the plan should be around this particular area. I just don’t understand why your amendment required the phrase “despite section 35.2” and I worry about what that might mean in practice for the temporary marine protected area regime that we’re looking at today.
Senator McInnis: You could use the word “pursuant” as well. The word “despite” is perhaps throwing it off.
Let me explain what we are asking for here, and it is important. We are experiencing it now in Nova Scotia. I’m not going to repeat all of the things I’ve said in the past, but we’re looking for an approximate geographical area. You’re telling me that that is done and completed. It seems to me, and we can check the record, I understood you to say at the last meeting that those things have to be carried out over a period of five years. The other is a preliminary assessment of exactly what it is you are protecting, and I think the citizens, residents and the fishers have a right to know that.
Now, if you’re telling me that that is in another act, whether it’s the rules or whatever and it automatically is done, well, they are not answering those questions. It’s not definitive and, in some respects, it’s not approximate. That’s all we’re asking. I’m not on for duplication, and the last thing we need is another regulation, but if that is the law now and it is being done, well, fine. But there are many people who are not aware that is, in fact, the case, because there is question after question after question at town hall meetings on this, and members of your department are there. If it is the case, let’s not pile on regulations.
Senator Bovey: Am I hearing correctly what you said, Mr. MacDonald, if I can cut to the chase, that this is redundant with what is already in the legislation?
Mr. MacDonald: It is redundant with what is already a legal requirement, yes.
Senator McInnis: If that is indeed the case, where is it exactly?
Mr. MacDonald: The statutory authority is under section 7(1) of the Financial Administration Act, which is what gives the Treasury Board the mandate to create directives on regulations. Then there is the Cabinet Directive on Regulations that requires departments and agencies to ensure that the process is open and transparent. There is also a directive on government communications.
This is a procedure that we follow at the earliest stages of MPA development. The town hall meetings we have had on the Eastern Shore, for example, would be the form of consultations that took place prior to the announcement of an area of interest. Once the area of interest was determined, it was announced publicly and the information is on our website, including the habitat that is being proposed to be protected, as well as an approximate geographical location. That is what we do. That is our normal practice for Marine Protected Areas, and it would be our practice as well for interim protection MPAs.
Senator Gold: Are you saying that what is going on offshore of Nova Scotia is a process that is actually prior to identifying it as an area of interest? In other words, it has not been identified as an area of interest, much less designated as temporary Marine Protected Area?
Mr. MacDonald: We are a little further along in our process on the Eastern Shore. We had a number of community meetings and consultations prior to its announcement as an area of interest. Since then, we have had further meetings because, once the study area was established, we have done overviews and presentations on the potential impact on fisheries, and we have presented at the most recent meetings the fact that there is no need for a no-take zone. A lobster fishery in that area is consistent with the conservation objectives we have been determining, and this is an iterative process. At each stage that we go through in that series of meetings, there are a lot of questions and some people need clarification and some people are not necessarily in favour of it. Others are. But the point is all of this is required on us to gather this information, and then it goes into what ultimately becomes the regulatory intent, and we’re obliged under the cabinet directive to articulate with whom we have met, what the feedback was, how the government responds to it and what the socio-economic impact of the proposed action is, and then we are required to publish that and respond to comments received subsequent to that.
Senator Gold: Thank you.
Senator McInnis: I’m sorry, I was listening to what you read there, and it does not precisely say that you have to do the approximate geographical location. It does not say that there specifically has to be a preliminary assessment. Did I hear those words? It calls on certain actions that have to be taken in a general form, but is it in there with what this amendment has?
Mr. MacDonald: There are two directives in play here, partly because what is being proposed will ultimately become a regulation. In that context, we need to follow the Cabinet Directive on Regulations , which stems from the Financial Administration Act. Further to that, we are also operating on the directive on open government, so we must be open and transparent with what we are proposing to do in terms of regulations, and that requires us to explain the regulation that we’re proposing — in this case, it would be to establish a Marine Protected Area — as well as to explain the objectives and, ultimately, what the socio-economic impacts of that would be.
The consultations and the meetings that we have had prior to the designation of an area of interest was precisely following the directive. We then need to publish the area of interest and, subsequent to that, we need to do this assessment in order to fulfill the requirements under the Cabinet Directive on Regulations . Given the nature of the regulation that we’re bringing forward, we would need to explain where, what the objectives are, what the activities are that are compatible with those objectives and the impact of restricting activities that may not be compatible. That is the way that we are administering the regulatory instrument under the Oceans Act.
The Chair: Are you done? Because you are getting close to it.
Senator McInnis: I didn’t come tonight to debate or argue, but I still haven’t heard that it’s mandatory to do this.
With respect, I was at the very first meeting with your employees. There were four of them. It was an area of interest. Carte blanche right from the beginning. That’s what it was designated as. That’s what happened, and what provoked me to come with an amendment was to stop that from happening.
In all similar situations, you are allegedly to go out and do all of what you say you’re supposed to do. But do you always follow that? If this amendment were in place, at least it would be in the Oceans Act and it would be up front and clear on these particular matters that come forth in putting Marine Protected Areas in place.
It is the utmost importance that the public is not afraid and not worried about their future. That’s what I’m saying. Where is the harm in specifically putting it here in this amendment? You’re off on rules and regulations. Is there a guarantee that it will be done? I’m not so sure about that.
The Chair: Want to try one more time, Mr. MacDonald?
Senator McInnis: He doesn’t have to.
Mr. MacDonald: I just explained to the committee members how the statutory requirement then flows into a regulatory authority that, in this case, the Treasury Board has. They issue directives that all departments and agencies must follow. We follow that when it comes to the designation of Marine Protected Areas, and we are obliged through those policies and through those regulations and, ultimately, through the law that is already in place to be transparent and open and explain to Canadians the outcomes of our deliberations.
Senator Campbell: Just to follow up, what would you say if we pointed out to you that this didn’t happen? That four of your employees were there and they show up but none of this happened? How do we deal with that? If I’m from the public, I don’t know any of this stuff and I expect you to be the arbiter of the legal end of it. We have now heard that they showed up and none of this was done. What do you do to make sure that doesn’t happen?
Mr. MacDonald: If we’re going to talk about how the program is administered instead of the bill, I can talk about —
Senator Campbell: No, I’m not trying to get into a big song and dance here. I’m just saying that you say “A.” We just heard that “A” doesn’t happen all the time. What is the process for dealing with that when it does not happen? You have just heard this. What is your position? Do you go back and find these four people that showed up and say, “Hey, you guys made a mistake under the open governance regime and all the rest of it”? I get what he’s saying. It’s all well and good to say, “It’s in there,” but when it doesn’t happen, what happens?
Mr. MacDonald: We have staff throughout the country. We are responsible for making sure that there is a common understanding of the basis for why we would be proposing an area for marine protection. Initial meetings are really important, because it’s an opportunity for us to share what we understand to be the important biodiversity in that part of the ocean, but it’s also an opportunity for us to get more information from communities, Indigenous groups, stakeholders, et cetera.
If the quality of the consultation is not acceptable, that’s something that we manage through the internal management of the public service. We certainly hear from parliamentarians if something hasn’t been going well, and we certainly hear from the general public, and we talk about this regularly in terms of the way we’re administering the program and the quality of the consultations. We also try to make sure that we faithfully document what people are saying. Not only is that good public administration, but it’s also a legal requirement when it ultimately comes to a point where we need to recommend something for protection.
Senator Christmas: I listened carefully to Mr. MacDonald describing the cabinet directives. I know I didn’t catch everything word for word, but I did hear that part of government’s obligation is to define the objectives, the socio-economic impacts and some of the restrictive impacts. Like Senator McInnis, I was looking for those words about geographic location and preliminary determination of a habitat or species, and I didn’t hear those words.
I hear Senator McInnis proposing basically two requirements. It strikes me that it’s reasonable for the general public to know the approximate geographic location of the interim MPA. “Where is it?” “It’s about here.” I didn’t agree with the previous amendment, because it talked about an exact geographic location, but this one talks about an approximate one, so I think that helps. Then the previous amendment talked about a precise determination of habitat and species. Senator McInnis is now talking about a preliminary determination. We’re not locking ourselves in, but it gives the general public some information that would be required. I appreciate that the other items should be disclosed — talking about the objectives and socio-economic impacts. I agree with that. But I think that these two pieces of information would be useful for the general public to know before a minister makes that order.
The logic hangs together for me. I do not see how that is inconsistent with what the cabinet directives are. It seems to me that we have to read into the cabinet directives some of this information. I like to go on the side of certainty and say, “Well, yes, that’s great. It’s good that we have it, but then why not define in legislation a requirement for these two particular pieces of information, the approximate location and preliminary determination?”
Mr. MacDonald: The way that we go from what the law says to the regulations and to the cabinet directive, below the cabinet directive, we get into the operational policies of a department or an agency. Every department and agency needs to follow the directives from the Treasury Board.
We then have our own policies within the Department of Fisheries and Oceans when it comes to being transparent in terms of particular matters. In this case, it is our policy within the oceans program that we do publish the information about an area of interest and consultations on the department website. For example, if we’re talking about the Eastern Shore Islands Area of Interest, we have published the approximate geographic location, and we have published the information on the environment and the ecology of the area. We have also published the information on the meetings that we have had up and down the Eastern Shore. So it is our current departmental policy and practice already.
For every other MPA, it’s the same thing; we have the same type of information on our website. It is normal that we do that.
Senator Poirier: This is more of a comment, and he can answer if he feels he wants to. From what I’m understanding, you feel that it’s already all covered, and you’re already all doing it. So if that’s the case, this is really not changing anything; it’s just restating the same thing you’re already doing. So what is the harm of putting it in, just to reassure people? I just wanted to put that on the record. It’s not enforcing anything more, so what is the harm of adding it in if it’s just repeating?
The Chair: I don’t want to stop discussion, but I think we have heard enough.
So everybody is aware, this is a subamendment to the amendment that Senator McInnis moved at an earlier meeting. I’m asking for acceptance of the subamendment first. If the subamendment is accepted, I will be asking for the motion in amendment to be accepted. That’s just to make sure everybody is aware of what we’re doing here. There is a subamendment and an amendment.
Is it the pleasure of the committee to accept —
Senator McInnis: Is this a general question you’re asking about the vote, or are we going to have a roll call vote?
The Chair: I am asking the question. Do you want a roll call vote?
Senator McInnis: Yes.
The Chair: I’m trying to get to the vote.
Senator McInnis: I understand.
The Chair: I was just trying to clarify the fact that there are two votes here. One is on the subamendment, and, if subamendment is accepted, it will be in motion as amended.
Okay, senators, we will now proceed to a roll call vote. The clerk of the committee will call members’ names, beginning with the chair and going through in alphabetical order. Senators should indicate whether they vote for, against or abstain.
Just to be sure everybody is aware, our first vote now is on the subamendment that Senator McInnis moved today.
Chantal Cardinal, Clerk of the Committee: The Honourable Senator Manning?
Senator Manning: Yes.
Ms. Cardinal: The Honourable Senator Bovey?
Senator Bovey: No.
Ms. Cardinal: The Honourable Senator Busson?
Senator Busson: Yes.
Ms. Cardinal: The Honourable Senator Campbell?
Senator Campbell: Yes.
Ms. Cardinal: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Cardinal: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Cardinal: The Honourable Senator Gold?
Senator Gold: No.
Ms. Cardinal: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Cardinal: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Cardinal: The Honourable Senator Petitclerc?
Senator Petitclerc: No.
Ms. Cardinal: The Honourable Senator Poirier?
Senator Poirier: Yes.
Ms. Cardinal: Abstentions, zero; yeas, eight; nays, two.
Senator Bovey: That’s not right.
Ms. Cardinal: Three. Sorry about that.
Senator Bovey: Does that mean yeas are seven?
Ms. Cardinal: No, it’s eight. We’re eleven.
The Chair: Okay.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
The Chair: On division? Okay. All right.
This is our last one. This is called TM4 on your papers. Senator McInnis, this is your motion.
Senator McInnis: Yes. I move that Bill C-55 be amended in clause 5 on page 4 by adding the following after line 32 —
The Chair: Senator McInnis, not to cut you off, but I will cut you off. We have seven minutes before our vote back in the chamber. You could do a Coles Notes version in a minute and a half. When we come back, we have to deal with the minister. I advise the committee that my plan is to finish Bill C-55 tonight. If we come back to deal with the minister for one hour, we will be continuing on with the amendment after the minister is here.
Senator Campbell: We could just stay here.
The Chair: No, we’ll go back for the vote. Don’t mind Senator Campbell; he is trying to get us all in trouble.
Senator McInnis, we will suspend the meeting now because we only have a few minutes to get back to the chamber. As soon as the vote is over, we’ll reconvene with the minister. As soon as the minister finishes, we will reconvene on Bill C-55. I apologize to our guests, but we need to spend a little time on our last amendment.
(The committee suspended.)
(The committee resumed.)
The Chair: Before we proceed to hear remarks from the minister, in consultation with Senator McInnis during our suspension, he has agreed to withdraw the last amendment that he was proposing. That’s the good news. We had a good chat.
With that, the staff doesn’t have to stay. If you want to stay for a while you can, but if you want to leave you can do that as well. We are finished with Bill C-55 with regard to the minister. We’ll finish clause-by-clause after we’re finished with the minister and we should be able to do up C-55 tonight.
I would like to welcome the minister. I’m going to ask the senators to introduce themselves around the table, and then we will have the minister introduce himself and his staff and give his opening remarks. As we all know, this is our first meeting to begin our study on Bill C-68, and we are certainly delighted the minister has found the time to join us this evening.
Senator McInnis: Tom McInnis, Nova Scotia.
[Translation]
Senator Poirier: Rose-May Poirier from New Brunswick.
[English]
Senator Christmas: Dan Christmas, from Nova Scotia.
Senator Francis: Brian Francis, from Prince Edward Island.
Senator Duffy: Mike Duffy, Prince Edward Island.
[Translation]
Senator Petitclerc: Chantal Petitclerc from Quebec.
[English]
Senator Busson: Bev Busson from British Columbia. Welcome.
Senator Campbell: Larry Campbell, British Columbia. Welcome, minister.
Senator Bovey: Patricia Bovey, from Manitoba.
[Translation]
Senator Gold: Marc Gold from Quebec.
[English]
The Chair: My name is Fabian Manning from Newfoundland and Labrador. I am certainly delighted to be able to chair the meeting this evening. The floor is yours, Mr. Minister.
Hon. Jonathan Wilkinson, P.C., M.P., Minister of Fisheries, Oceans and the Canadian Coast Guard: Thank you for the invitation to come and speak with you this evening. I was here a month or so ago to talk about Bill C-55. I’m pleased to be here in my role as Fisheries Minister. I’m here with my Deputy Minister, Timothy Sargent; Philippe Morel, Assistant Deputy Minister, Aquatic Ecosystems Sector; and Sylvie Lapointe, Assistant Deputy Minister, Fisheries and Harbour Management.
I would like to start by saying thank you to Senator Christmas, who is the sponsor of the bill here in the Senate and who has offered an important perspective on a range of issues, including in relation to reconciliation. Senator Christmas has indicated to me, as he has already done in the chamber during second reading, the need for improved relations between First Nations and the Department of Fisheries and Oceans, and I agree.
I believe that the amendments in this bill are a step in the right direction, but we clearly need to do more not just through this legislation but in our daily work across this country. I look forward to hearing your views and the robust discussions that I’m certain will take place in this committee in the coming weeks.
[Translation]
The Prime Minister gave me the mandate to continue to advance Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence. The bill brings forward important reforms to the Fisheries Act that will restore lost protections for fish and fish habitat, add modern safeguards and take early steps toward advancing reconciliation with Indigenous peoples.
[English]
As Canada’s population continues to grow, as does its economy, marine fisheries, freshwater and fish habitat need to be protected and conserved for future generations. This bill encourages the adoption of best practices to mitigate and manage negative impacts, which is fundamental to sustainable economic growth.
As you know, Bill C-68 has successfully passed a number of important steps, starting with very broad consultations with Canadians from coast to coast to coast. We received thousands of letters and emails and held hundreds of meetings with partners, stakeholders, Indigenous peoples and communities. Thousands of people also participated online through two phases of public consultation. We asked Canadians about what was important to them and we listened.
[Translation]
We also worked closely with our provincial and territorial partners and with Indigenous peoples to ensure their concerns were heard. Based on all the input, feedback and recommendations, we introduced legislation that will bring some much-needed changes to one of Canada’s oldest pieces of environmental legislation.
[English]
During the subsequent debates and committee hearings, we paid close attention to the concerns raised by members and stakeholders alike, particularly as they related to the perception of a heavier regulatory burden placed on industry and large natural resource development projects, the need to protect fish and fish habitat in our rivers, lakes, streams and oceans, the need for clarity about maintaining the sustainability of fish stocks and rebuilding depleted fish stocks and the need to strengthen safeguards on the disclosure of Indigenous knowledge in our care when communities share their sacred knowledge with us.
The bill has been refined to address some of the concerns that were raised, all while respecting the bill’s legislative intent. I am confident that the bill will better protect our natural resources for future generations while also maintaining cultural and economic opportunities for the people and the communities who depend on them.
I believe this bill also takes important steps to advancing reconciliation with Indigenous people and that these changes complement other policy and program changes being made in my department toward a renewed nation-to-nation relationship with Indigenous peoples.
I know there have been concerns raised regarding the potential for increased uncertainty from proponents of resource industries and the agricultural sector. The amendments made to Bill C-68 have always been done with the intent to provide more clarity. For instance, by outlining the types of large projects that would require a permit, we will ensure the proponents have the information they need to develop projects. And as indicated by Senator Harder at second reading, I am open to amendments that will further clarify the process for designated projects. With regard to small projects that are typically undertaken by farmers, for example, we are developing tools through codes of practice to lower the burden on proponents.
I also know there has been a lot of concern in relation to the flow amendment in proposed section 2(2). That amendment was made in the house committee by MP Elizabeth May. Again, as indicated at second reading, we are open to amendments that will strengthen the bill to provide better certainty for proponents while also ensuring that fish and fish habitat are protected.
[Translation]
The bill also helps address the importance of restoring habitat by facilitating planning, sharing and collaboration with partners, including Indigenous communities. Measures included in the amended Fisheries Act support a modernized fish habitat program that, in itself, clarifies the role of Indigenous peoples in project reviews, monitoring and policy development. And where Indigenous knowledge has been shared with us in support of a habitat decision, this knowledge shall be considered. These measures, along with others in the bill, further reinforce the importance of strong relationships with Canada’s Indigenous peoples when making fisheries and fish habitat decisions.
[English]
We also recognize that some fisheries management measures needed to be strengthened to help ensure the long-term sustainability of our fisheries, and we have done this through Bill C-68. Proposed measures include new tools to conserve and protect important species and ecosystems; clarifying, strengthening and modernizing enforcement powers under the act, such as the inclusion of alternative measures agreements, which are formally recognized; cost effective resolution processes designed to address offending behaviour, conflict and contraventions; and requirements to maintain major fish stocks at levels necessary to promote sustainability and to develop and implement plans to rebuild depleted fish stocks, as well as new regulation-making authorities regarding rebuilding fish stocks.
The last point, the health of our fish stocks, is critical to the economic livelihood of our communities and the health of our oceans. That is why, in the fall economic statement, the Government of Canada announced an investment of $107.4 million over five years starting in 2019-20, and $17.6 million per year ongoing to support the implementation of stock assessment and rebuilding provisions in a renewed fisheries act.
[Translation]
This new funding will accelerate implementation of the Department of Fisheries and Oceans’ 2009 precautionary approach policy for Canada’s major fish stocks in order to meet the proposed fish stock provisions of Bill C-68 on an ongoing basis. This investment will help sustain Canada’s wild fish stocks and the communities that rely on them, and support efforts to rebuild depleted fish stocks.
[English]
On this point, I would again like to emphasize the importance of having a plan to rebuild our stocks from coast to coast to coast. We have seen a number of our stocks dwindle. When our stocks are low, we need a plan that will ensure they are healthy and abundant for the future.
The bill also includes measures that will clarify and strengthen authorities to implement regulations regarding owner-operator regulations, and fleet separation in Atlantic Canada and Quebec to support the independence of inshore harvesters. This is critical to their economic livelihood, as well as to the families and coastal communities who depend on them.
As minister, I believe it’s our collective responsibility to exercise our stewardship of Canada’s fisheries and the habitat on which they rely with care in a way that is practical, reasonable and sustainable. The proposed measures restore protections for fish and fish habitat while also ensuring modern mechanisms are in place to guide sustainable economic growth, job creation and resource development. Ultimately, this is the foundation upon which our government is built, creating maximum opportunity for all Canadians with respect to both the environment and the economy.
That brings us to today.
[Translation]
I know members of this committee are beginning to study the proposed amendments. I value the wealth of experience you bring to the table, your knowledge of these issues and, above all, your shared commitment to the protection of our rich resources for the benefit of all Canadians. I look forward to working with you to move this legislation forward and to enshrine these proposed measures into law.
[English]
I would be pleased to answer any questions you may have about Bill C-68.
The Chair: Thank you, minister. I would like to advise my colleagues that the minister is here for about an hour, so we will try to move the questions along and get to the point, and I would ask the same of the answers. Senator Gold, our deputy chair, will begin our questions.
Senator Gold: Welcome, minister. Thank you for being here, and your officials as well.
This is a question about the use of Indigenous knowledge in your decision-making. The bill imposes a duty on you when you are making a decision under the Fisheries Act to consider any adverse effects that your decision may have on the constitutional rights of Indigenous peoples of Canada, but amongst the list of things that you may consider, Indigenous knowledge is one, but it’s an optional consideration, not a mandatory one as it is in other bills, for example, Bill C-69. Could you help us understand why Indigenous knowledge on fisheries decisions is optional and not mandatory? Is that tied in some sense to the circumstances when it’s not always shared with you? We’d be interested in your response.
Mr. Wilkinson: I will say a couple of things and then ask my officials to supplement the answer.
I think there probably are a number of cases, such as what you have raised, where the knowledge may not be shared. There certainly are cases where there is not a desire to share that information. There also may be cases where we are making a decision about a particular fish stock or habitat where there are no relevant First Nations or Indigenous communities, so it may not be relevant to that particular discussion. Certainly, there is an intention in this bill, through the requirement to consider adverse effects, to consider the issues relating to Indigenous knowledge and the protection of confidentiality of Indigenous knowledge, the advisory panels, which may include Indigenous representation, the ability to enter into agreements with Indigenous governing bodies, to really ensure that there is strong Indigenous participation in issues and that affects them and their communities.
Philippe Morel, Assistant Deputy Minister, Aquatic Ecosystems Sector, Fisheries and Oceans Canada: Where Bill C-68 is aligned with Bill C-69, as you said in your example, is in the section for approval of Fisheries Act authorization. So on all the environmental protections related to major projects, the minister must consider Indigenous knowledge. There is a difference between what the minister explained for fisheries decisions where it is probably not always necessary or pertinent to take into consideration traditional knowledge, but the proposal in the bill is that it is mandatory for fisheries authorization or permit or other authorization under section 34 and subsequent.
Senator Gold: Thank you very much.
Senator Bovey: Thank you, minister, for being with us. I appreciate it very much.
I will go out to the West Coast with my question, if I may, and I think we’ve discussed this several ways before. As you know, I’m very concerned about the disease that has come out of the fish farms, particularly after the flooding in Oregon and Washington a couple of years ago. Being on that coast a fair bit and having lived there years ago, I have been up in the territories where you see the effects on the water. I was pleased that the need to protect fish and fish habitat is what you talked about and ensuring fish and fish habitat are protected. Can I ask you how this concern of disease from the net fish farms on the West Coast are included in your protection thoughts in this particular piece of legislation?
Mr. Wilkinson: Certainly. There is a relationship. Obviously, there are also stand-alone policies relating to aquaculture. If there was science that told us that there were disease issues associated with transfer from fish aquaculture farms to, for example, wild Pacific salmon, then there would be issues under the Fisheries Act in terms of causing harm to fish.
You are probably aware we have embarked on a new approach to aquaculture where we are focused on more fulsomely implementing the precautionary principle, moving towards area-based management and doing work with the Government of B.C. on evaluating technologies that may provide pathways for economic opportunities while further isolating any of the effects on the environment. We are also doing a tonne of scientific work, and there definitely are debates about some of the issues. Some are probably more settled than others, and there are people on all sides. That only underlines, where there is scientific uncertainty, the need to be thinking more about the precautionary principle going forward. We are certainly doing a lot of work on that, and I am happy to sit down and have a broader conversation about that issue.
Senator Bovey: I guess it comes back to the fact that fish know no international boundaries, and some of those issues have been imported as they have swum up from the West Coast. I have many friends in the business out there who are concerned. Thank you.
Senator Poirier: Thank you, minister, for being here. I have two questions and then I’ll leave it. If I have time for a second round, I go on the second round.
My first question, minister, concerns subclause 31(5) of the bill, modifying paragraph 43.1(g) of the act. I’m looking for clarification when it comes to the transfer of the licence, specifically the prohibition on the transfer of the licence as states in the new paragraph 43.1(g.01). Could you explain to us what you mean by “except under prescribed conditions” from the new 43.1(g.01)?
Mr. Wilkinson: I will probably, given the detailed nature of that question, turn to my officials to see if they can —
Mr. Morel: I think we can provide more detail.
Mr. Wilkinson: We can provide a detailed answer. That’s a pretty specific question.
Senator Poirier: We’ll follow up that, since I have time. I’ll give you the reason I’m asking it. I have heard from people in my area of the country, in New Brunswick, that under the circumstances where a licence-holder would pass away, the family could face the possibility of losing the licence, and the licence is therefore going out of the control of the community completely. Could you please give me some kind of a guarantee that Bill C-68 will not negatively impact families when the licence-holders pass away?
Right now, minister, when a fisher passes away, the wife and children can keep the licence. If I understand it right, they keep it until the child becomes old enough to be able to take on the licence and keep it within the community and family. From my understanding, there seems to be something in this bill that maybe would bring that to a time frame. I think I have five years in mind, if I am remembering. If the child would be, for example, only eight or nine, they used to be able to keep it until they became the age to fish. Now, under the new law, he would not because the age is too young. That’s just a concern.
So I can get some answers back in writing, it would be greatly appreciated.
Mr. Wilkinson: On that one, it’s an important concern you raise. Maybe I’ll ask Sylvie to respond specifically to that.
Sylvie Lapointe, Assistant Deputy Minister, Fisheries and Harbour Management, Fisheries and Oceans Canada: Yes. There is nothing in the bill that is so prescriptive that it would impact on any existing policies that we have with respect to licensing. Once the bill goes into effect, we would need to enter into a regulatory phase to implement some of the provisions. At that point, we’ll be out consulting broadly and getting feedback from folks across Atlantic Canada.
Senator Poirier: As it stands right now, you are telling me there is no part of the bill that addresses that concern they had.
Ms. Lapointe: That wouldn’t change any existing policy.
Senator Poirier: Apparently, it seems like there are groups that are buying licences, and there could be groups that are running fish plants and different things like that and are buying it. Some of them are not even from the community, and not even from the country at this point. The concern is the economy of the community. We just want to make sure that is kept in consideration.
Mr. Wilkinson: If you’ll permit me, if there are specific people or groups that are raising this as a concern and you could pass to us their names and contact information, we can certainly follow up with them and have that conversation.
Senator Poirier: All right. Thank you.
Senator Duffy: Minister, thanks for being here.
In your opening remarks, you referred to “new tools to conserve and protect important species and ecosystems.” How would that apply, for example, in the case of Northern Pulp in Pictou County, Nova Scotia? As I’m sure you know, Northern Pulp plans to dump over 80 million litres of undefined effluent daily into the waters of Northumberland Strait, which are fished by fishers from Nova Scotia, New Brunswick and Prince Edward Island. How would this change that you’re putting in protect those waters from that kind of a proposed project?
Mr. Wilkinson: There are a couple of things. First, when I referred to tools, I was referring more specifically to things like stock-rebuilding plans and those kinds of things. But to your question around Northern Pulp, under the existing Fisheries Act and the new Fisheries Act, there is obviously a requirement not to disturb fish or fish habitat. There is a requirement that if there is going to be a disturbance, it be mitigated and ultimately offset.
Northern Pulp is a project that, as I understand it, is going through at the present time a provincial environmental assessment. There have been requests from a number of different groups for a federal environmental assessment. If there were to be a federal environmental assessment, which is the decision of the Minister of the Environment and Climate Change, then Fisheries and Oceans would be absolutely directly involved in providing scientific advice with respect to the potential impacts on fish and fish habitat.
The other piece of it is that there is a marine refuge in that area, so Fisheries and Oceans has to opine on whether there is any impact on the marine refuge.
I would say, though, that in terms of pulp and paper effluent, there are other pulp and paper facilities that meet the pulp and paper effluent standards held by Environment and Climate Change Canada but are authorized under the Fisheries Act that discharge into an ocean environment. I have talked to many of the groups that are concerned about this, and I have said to them that it’s really about differences in the receiving environment and being able to demonstrate that there are scientific impacts in that particular receiving environment relating to, for instance, lobster larvae, which seems to be one of the big issues.
That is a conversation that is ongoing, and the Minister of Environment and Climate Change still has to make that determination. We are certainly providing scientific information to the province as well, though.
Senator Duffy: I think many people in our region would be surprised to hear that the Department of Fisheries and Oceans, which has been around for 100 years and has been looked to by people throughout the region for leadership on the fishery, would be taking a back seat to Environment and Climate Change Canada?
Mr. Wilkinson: No. I’m not sure that’s what I said. I said that we actually provide all of the scientific information relating to fish and fish habitat to Environment and Climate Change Canada, which has the formal responsibility to do environmental assessments. That’s how it works, but all of the issues relating to fish and fish habitat fall with us. That is true for pulp and paper regulations, that is true for metal mine effluent regulations and that is true for wastewater-related effluents. There are standards that are developed and applied, and the science behind the impacts on fish and fish habitat reside with us.
Senator Duffy: Do you feel their pain and their anxiety?
Mr. Wilkinson: I definitely feel their anxiety. Before I was the Minister of Fisheries and Oceans, I was the Parliamentary Secretary for Environment and Climate Change. I have seen this discussion, and I have had conversations with the same groups while wearing two different hats. I feel their concern. It’s very important that we are able to demonstrate from a scientific perspective that either there are specific concerns that should be addressed in a thoughtful way or the science tells us that this is not a significant issue. We need to make sure we’re doing the work to engage those conversations and being transparent about it.
Senator Duffy: Thank you very much.
Senator McInnis: That was not going to be my question, but I do hope — and I’m sure this will be the case — that any decision will be predicated on good science.
Mr. Wilkinson: Yes.
Senator McInnis: That’s important, because we’re talking about thousands and thousands of jobs here.
Mr. Wilkinson: Yes.
Senator McInnis: Emotions shouldn’t necessarily drive the decision. Thank you very much for being here. It’s nice to see you again.
I wanted to reference a study that was done and released in the fall of 2016 by the Commissioner of the Environment and Sustainable Development. You alluded to this, but it found that 12 of 15 major fish stocks require rebuilding plans. What surprised me was that DFO had neither plans nor timelines for developing the replenishment or the rebuilding of these stocks. That is not a shot; sometimes these things happen for whatever reason. In any event, this bill gives the Governor-in-Council the power to make regulations with respect to rebuilding. So these will be put in place. Perhaps you could give us an idea as to when. Second, how do you measure the effective way of rebuilding these depleted stocks?
I will just add on to that one of my favourite fish, the Atlantic salmon. The Atlantic Salmon Federation, in conjunction with the New England Salmon Association, has done a major job. They continue to do great work. That particular industry is worth, I think, in excess of $200 million a year, and it is suffering terribly. Now, they have recently negotiated a deal with the Faroe Islands and Greenland with respect to commercial, and they have just subsistence now, but the Atlantic salmon doesn’t get the notoriety that it deserves. I believe groups like the Atlantic Salmon Federation and the Miramichi Salmon Association deserve some help, sometimes financially, but they certainly deserve help from the Department of Fisheries and Oceans. Sorry to cloud that with that last issue, but it is an important entity in Atlantic Canada.
Mr. Wilkinson: Thank you for the question. Let me answer two sets of questions embedded in there.
The act will require that we actually have assessed all of the major fish stocks and, for those that are actually in need of rebuilding, that there is a rebuilding plan, to answer the concern of the commissioner.
Sylvie can correct me if I’m wrong, but I think there are 181 fish stocks. We have started by selecting 25 to do the work on as the first chunk. Some of them are in the healthy zone, and some of them are not and will require rebuilding plans. We have a fairly scientific process for assessing where they are in terms of healthy, cautious and critical. Those that require rebuilding plans are those that are not healthy or in the high part of cautious. Everything else will require a rebuilding plan. We were fortunate that the Minister of Finance was good to us in the Fall Economic Statement and provided us money to do work on stock assessment and stock rebuilding. That is absolutely a key part of this bill. It has been resourced so that we can actually start to move this forward and address some of the concerns that people have raised on these important issues.
With respect specifically to Atlantic salmon, yes, the Atlantic Salmon Federation does great work. I have met and had many conversations with them. I’m sure you know Robert Pace; I have known him for a long time and he has been involved in this for a long time. That is an important issue.
On Atlantic salmon, there are obviously a number of different elements to that. One is: how do we actually stop the destruction of habitat that exists today? Part of the answer to that is the new Fisheries Act. How do we enable the restoration of habitat that has been disturbed? One of the things that we have offered to the provinces in Atlantic Canada is a variation on what we have done in the Pacific region recently where we created a fund like the AFF in the Pacific region, but we broadened the terms of it to enable it to be used for restoration activities. We have offered the same thing to the provinces that are party to the AFF in terms of broadening that to be able to bring more resources to bear for restoration, particularly for Atlantic salmon.
There is obviously the management of the fishery. How do we do that prudently so that we are doing it in a way that is consistent with the sustainability and the recovery of those stocks? Then there is the science, and there are certainly questions that we do not fully understand. Some of the returns coming back from deep ocean for both Atlantic and Pacific salmon are very poor, poorer than they used to be.
Some of the investment in science to help us better understand what is happening relates to climate change. How do you adapt to some of those things? How do you think about adaptation in the context of rivers like the Miramichi? In some elements of the river, now that summers are going to be warmer going forward, how do we create cold water refuges and things for cold-water fish that require that?
It is an important piece, and there is a comprehensive package and approach we are taking with Atlantic salmon. We will be releasing the update on the implementation plan for Atlantic salmon within the next month or two, and it will try to respond to some of those issues.
Senator Campbell: Thank you, minister. Certainly, from the West Coast, we support the Atlantic salmon in all of its forms.
My question is with regards to the PIIFCAF. This only applies to the East Coast, and my question is: why does it only apply to the East Coast? If it’s just because everybody fishes differently, I’m okay with that. I’m from the West Coast. But I wonder why we have a different regime on the East Coast versus the West Coast.
Mr. Wilkinson: As with many things in this federation, a lot of this actually has to do with historical evolution. This was the way the industry evolved on the East Coast where there was a very strong attachment to ensuring owner/operator and that the benefits stayed in the local community. That is not the way that the industry started nor evolved on the West Coast. So you have quite a different situation where, for example, you can have quotas and licences being held by folks who are dentists in Point Grey and who essentially rent them out to harvesters. There is a concern in terms of the economic harms to harvesters because of the structure of the industry. It’s definitely something the Canadian Independent Fish Harvesters Federation has raised with me very strongly.
We recognize there are challenges. I think, though, that even the folks in the Canadian Independent Fish Harvesters would recognize it’s not likely you can fully unscramble an omelette that is fully baked, but there are probably things we can look at to help think more about the position that harvesters are in on the West Coast. The house committee is actually studying this issue right now, and we have said that we’re quite anxious to see the results of that study. I think it is something that we will have to think about very carefully because there certainly are some challenges on the West Coast that do not exist on the East Coast.
Senator Campbell: Would I be right in saying this is socio-economic versus, for instance, environmental? Is the East Coast doing better environmentally with their fish stocks than the West Coast? Is it because of that, or am I to understand it is just socio-economic and the way things grew up?
Mr. Wilkinson: I think it’s the way things grew up more than anything else, yes.
Senator Campbell: Thank you, minister.
Senator Andreychuk: Thank you, minister, for coming.
I want to go back to many of the statements that you have made that give me concern. Everything seems to be coming in regulations. I have already spoken to your officials about this. It is very worrying that we have broad definitions, broad objectives and broad discretions for you, minister. The devil is always in the details, as we find out around these tables. Everything is going to be in regulation. For example, should a family worry about licences? Well, it will be in regulations to come. We’re going to talk about the impact on the environment as well as the industries. Which will win, and where?
My concern with this legislation is that if we really wanted to give assurance to Canada, we would have the regulations in place and the consultations done, not saying, “Here are the broad references, and then we’ll get into the details,” because it is the detail that gives certainty. The track record of the department has not been great because of the discrepancies from place to place and officer to officer, which has been a great burden for many people who have to deal with the department.
When will we see the regulations? Why would you not have put more into the bill? I see areas of more discretion rather than less discretion, and therefore less certainty and more angst for the public. We have been hearing a lot of it.
Mr. Wilkinson: Thank you for your question. I guess I would say a couple of things, and then I will ask my officials to supplement.
First of all, I’m actually not sure I agree with you with respect to more discretion. I actually think that in this new Fisheries Act, I, as the minister, probably have less discretion than I would under the 2012 Fisheries Act.
In the context of the Fisheries Act, we have put quite a lot into the act that heretofore actually had been done through regulation. I would tell you that you know, because you’re a legislator, it’s not unusual to have legislation pass and then have regulations put into place following that. We are doing work on some of the regulatory aspects, and we have processes in place to ensure there is broad consultation with respect to all of the regulatory pieces that will come.
But in terms of supplementing and talking a little about the timeline with respect to regulations, maybe I can turn to you, Philip.
Mr. Morel: For regulations, it all depends. There are several regulations that are already in place that will remain in place under the new Fisheries Act.
The first one that will need to be amended is the one for the application process for Fisheries Act authorization, because we’re implementing new regimes of permitting and cost of practice.
The application to explain the new provision to protect fish and fish habitat, so the addition under section 35, will be supported by a new regulation that we are in the process of consulting. We already consulted last summer. We will consult again pretty soon on that, and that’s also a regulatory process where Canadians will be able to review, comment and for us to adapt over the next several months. The regulation will have to come into force after the act has received Royal Assent. We anticipate that’s the first part of the regulation that will be put in place.
I don’t know, Sylvie, if you have anything from your fisheries management perspective.
Ms. Lapointe: We are currently consulting on the rebuilding provisions, consulting on regulations across the country, so that when the act comes into force, we’ll be ready to go with the regulations.
Senator Andreychuk: So the last answer is that when the act passes, the regulations will be ready to go? Is that what I heard you say? If that is the case, when will we be able to see them as parliamentarians?
Ms. Lapointe: We will have to finish our consultations, and then they will be going through the gazetting process.
Mr. Wilkinson: In terms of what is already out for consultation, that would be public.
Ms. Lapointe: We can share that with you.
Mr. Wilkinson: We can certainly share that, yes.
Senator Andreychuk: Coming back to my area, Saskatchewan and the West, there is a real concern of farmers when they want to keep upgrading their properties. With all of the climatic changes, water diverts in strange ways at different times. We were told there was a great confusion in the monitoring and compliance, and bureaucratic nightmares. In 2012, there were changes made that relieve some of that. You have moved to erase those and put in new terms. Would you be amenable to tightening those descriptions more like the ones from 2012 so there is some assurance and not the delays? In this very fragile economy that my province is living through, we don’t need impediments that are unnecessary. We need to deal with real impediments rather than bureaucratic tape. The stories are of one officer to another, the lack of training in some of them, the lack of understanding of what agriculture is, and in some cases a lack of understanding what the fisheries are all about. Is there any wish or hope we can have that we can look again at those provisions so that they don’t unduly harm agriculture?
Mr. Wilkinson: Thank you for the question.
Senator Andreychuk: And Aboriginal groups, by the way, have come up to say the same thing.
Mr. Wilkinson: Thank you for the question. I am very sensitive to the issues of the agricultural community. I grew up in Saskatchewan. I went to university in Saskatchewan. I worked for the Government of Saskatchewan. I worked for a Premier of Saskatchewan.
Senator Andreychuk: I’m well aware of that. That’s why I’m putting it down here.
Mr. Wilkinson: I’m quite familiar. I would say a couple of things in terms of that.
There is no intent to impose significant regulatory barriers for farmers. For that specific reason, we have outlined the need to develop codes of practice that essentially provide the tools for farmers to know what needs to be done with respect to issues that may affect fish and fish habitat. Those are codes of practice that will be developed in consultation with farmers. I met today with SARM to have this conversation. We are certainly sensitive to that. We are going to work to ensure that is the case.
With respect to the issue around enforcement and people not necessarily having the appropriate training, we need to ensure that people have the appropriate training, and we are also working with the provinces to ensure that we are cross-training between provincial and federal enforcement officers so that we’re not duplicating the work that needs to be done. There may be cases where it’s the provincial government’s enforcement officers that do the work with the farmers. Those are things that we are working on with Saskatchewan and other provinces as we go forward.
Senator Andreychuk: That doesn’t answer the question of the amendments. I’ll leave that for later.
The Chair: Thank you, Senator Andreychuk.
Senator Busson: Thank you, minister, and your colleagues for being here.
I have another question about salmon, but West Coast salmon for a change. I’m seeing in the new proposals that there is a new section that talks about setting what is called “limit reference points” when it comes to conservation issues and how much harvesters might take, et cetera.
I have just a two-part question. One, would you be including considerations of Indigenous people and communities on the West Coast generally when you’re setting these reference points? What would you use for part of your consideration? Two, once you set your reference point — of course, in British Columbia, there is the fishery that is called commercial and the other one is a sports fishery, which is probably as commercial as the commercial fishery. There is uncertainty around reference points and changes to those reference points. How often do you envision revisiting of those reference points and the changes in the measures in order to re-establish new reference points or put together another plan to deal with that stock issue?
Mr. Wilkinson: It’s an important question. Let me say a few things and then I’ll ask Sylvie to supplement.
The utilization of limit reference points is in the context of assessing the health of every stock — various stocks on the East Coast, on the West Coast, and in the North. It is something that is part of a whole system of decision rules that we are working to ensure that we have in place with respect to various stocks.
I would say that the allocation of fish to be caught, whether that’s by recreational fishers, Indigenous communities or commercial fishers, is an output of the assessment of the health of the stock. If the stocks are in poor shape, then there is probably no fishery, or it will be a very limited one. If the stocks are in better shape, then obviously there is more available to release for harvest.
In the context of priority, constitutionally, food and ceremonial allocations get priority. That is a constitutional issue and one that the courts have opined on. Then after that, it’s a question of what is available and what are the appropriate decisions to be made in terms of how to allocate that. That is, for better or for worse, one of the jobs of the Minister of Fisheries and Oceans.
Senator Busson: Thank you.
Ms. Lapointe: I’d like to say a couple of things to supplement. The bulk of the funding that we received to maintain fish stocks and rebuild them is for science so that they can do more stock assessments and accelerate the work of developing limit reference points for fisheries. In some cases, we just don’t have the scientific information available to be able to do that. That is where traditional knowledge would be included in providing that advice. They will be regularly reviewed as part of the ongoing science work.
Senator Busson: Thank you.
Senator Gold: I would like to ask you a relatively narrow question about the new provision 34.4, which is a prohibition from carrying on any work, undertaking or activity, other than fishing, that results in the death of fish unless otherwise authorized. Concerns have been expressed in various quarters about the possibility that some activity might kill a fish without otherwise harming the population of the fish as a whole and their ability to survive. Could you speak to that concern and whether the definition of “death of fish” in the act might be clarified in some way? How open would you be for clarification if it came from this place?
Mr. Wilkinson: A couple of things: The prohibition is important because it requires that folks who are planning to do activities or projects, particularly projects beyond a certain level — the codes of practice apply to very small projects — that they receive an authorization or a permit to cause harm and that they have gone through a process to try to mitigate that harm and, in some cases, to try to compensate for that harm. It is also a prohibition that relates to negligence, where people cause harm by doing things that they shouldn’t be doing. That is an important piece. Probably what you’re referring to is accidental, where somebody accidentally has an impact on fish through opening a hydro dam too quickly or those kinds of things.
Maybe I can actually ask for you to give a bit of a supplement.
Mr. Morel: The definition of “death of fish” could be interpreted by some as “one fish is illegal,” but the approach we have is based on the population of the fish. For species at risk, for which we know there are very few species, we will put in the Fisheries Act authorization for more mitigation measures to make sure those fish are not harmed. We’ll take that into consideration. For larger populations, we also ask for mitigation measures, but the analysis of the impact on the population of fish is different. Our approach is a population-level approach and the impact it has on the population, not necessarily just on one fish.
Senator Gold: Thank you. To follow up briefly, it has been many, many months since I had representations in my office from folks from hydroelectric. You’ve heard from them more frequently than I. But I think if I understand the technology and the science correctly, there are inevitable deaths that arise from certain activities. They are not accidental; they are foreseeable and unavoidable to some extent. Are their concerns, in your opinion, adequately addressed in the bill and in the processes that are envisaged, or are there tweaks that could allay their concerns?
Mr. Wilkinson: I think that goes to the point about authorizations and the authorization to cause harm that is mitigated.
Mr. Morel: Every Fisheries Act authorization has a series of conditions to mitigate or offset some of the impacts on the habitat or death of fish. That’s how we manage the fish. There is a clear understanding between the proponent of a project or the manager of a dam, for example, of what they are supposed to do and the potential impact it may have on the population of fish or fish habitat. If that’s not followed according to the authorization, they are violating the authorization itself, and then we have recourse for that.
Senator Gold: Thank you.
Senator Andreychuk: Just following up on what Senator Gold said, there is a provision for designated projects. There will be a list somewhere, I understand. Are these going to be similar, equal to or different from the impact assessment act? Companies want to know what that means to them — “designated project.” The existing rules on designated projects take out in-place maintenance and continued work part of the project. Are they trapped under that, or will that be a separate issue?
Mr. Wilkinson: The intent is actually to align designated projects as they relate to both Bill C-68 and Bill C-69. Essentially, the project list for C-69 would be the same list that we would be utilizing under Bill C-68.
The Fisheries Act permitting process would relate only to those pieces of a designated project that actually relate to fish and fish habitat. It wouldn’t necessarily be the entire project; it would be those aspects that actually relate to fish and fish habitat.
As you know, there is a designated project list that is out for consultation under Bill C-69. The intent is very much to ensure that there is harmonization. That’s both to ensure there are not, inadvertently, different things being done, but also to try to harmonize and align the work that gets done under an impact assessment. One of the complaints that many an industry has had in the past is that you have a whole environmental assessment run by the Canadian Environmental Assessment Agency. Then, once it’s done, we start the Fisheries Act piece of it, so that’s a second whole review that may result in a different answer and that takes additional time. The intention is to actually start to run these things more in parallel, to make them more efficient and to ensure that we are addressing some of the concerns raised by industry.
Senator Andreychuk: If there is a difference of opinion between ministries — and there often are — what will take precedence, Environment and Climate Change Canada or Fisheries? Is there some arbitrator between the two ministries?
Mr. Wilkinson: No. It depends on the issues. On issues relating to fish and fish habitat, we are the ultimate authority. For issues relating to the broader series of environmental impacts, which the new impact assessment agency will be responsible for, they will be the arbiter of impacts relating to all of the other things. But on fish and fish habitat, it’s the Department of Fisheries and Oceans. Neither the impact assessment agency nor Environment and Climate Change Canada have the requisite scientific capacity to opine on fish and fish habitat. That is what our job is.
Senator Andreychuk: That doesn’t answer the question. Inevitably, there will be some differences of opinion of what is environment and an impact on environment, and what is an impact on fish. Which will rule? That’s really part of the questions that have been put to me. When there is a dispute, because different people look at the environment differently and see impacts differently, where will the buck stop?
Mr. Wilkinson: I’m not sure I actually agree with you. Ultimately, if there are significant issues with respect to fish and fish habitat, any proponent will have to satisfy the Department of Fisheries and Oceans that those issues can be addressed in substantive ways in order to proceed. That can be through mitigation, offsetting or through a range of different things. It will be different in different cases. If you’re talking about a project that may affect the Chilcotin steelhead run where there are 15 fish left, that may be a different answer than when you’re talking about a stock that is very abundant. If there is some minor impact, it’s not as significant.
If the decision of Fisheries and Oceans is that a project can’t proceed because the impacts will be too significant, then it won’t proceed. If the impact assessment agency, in the areas that it has responsibility for, determines that the impacts from an environmental perspective are too significant, then a project wouldn’t proceed. Obviously, we would both be working together with the proponent to try to find pathways to ensure that projects can be built in a manner that accommodates environmental concerns.
Sometimes people have the belief about the Canadian Environmental Assessment Agency and the environmental assessment project that it’s about stopping projects. It’s actually not; it’s about finding ways to ensure that projects are actually addressing some of the issues that are of concern from an environmental perspective so, at the end of the day, they actually can be built. If you look at a project that goes into the pipeline right now and what comes out, they are very, very different. That’s actually as it should be.
Senator McInnis: Very quickly, last year, this committee was told by senior officials that there would be a new aquaculture act — a national act. I would like to have an update on that, if I may.
Second, Minister LeBlanc would have been given a mandate letter. Then you became minister. Were you given a mandate letter as well? I’m presuming, from literature I’ve read — and nothing specifically that this is factual — that the direction was to move back pre-2012 with respect to habitat, fishery policy and so on. Was that in the mandate letter as well? I take it they gave you a new one?
Mr. Wilkinson: With respect to aquaculture, as you will be aware, aquaculture is a funny beast in the sense that it is different in terms of how it’s managed across the country, from a jurisdictional perspective. I would say the federal government has primary responsibility in British Columbia and Prince Edward Island. In the other parts of Atlantic Canada, typically it’s the provinces that have primary responsibility, although the federal government is involved.
There has been a long series of conversations amongst the provinces and the federal government about the development of a national aquaculture act that would allow us to establish a greater degree of national standards and transparency for business in terms of how aquaculture will be managed from coast to coast to coast. It’s something to which there has been some resistance in the past on the part of some provinces, particularly those with primary responsibility for aquaculture who have probably been keen to avoid the federal government taking more responsibility.
We have had many conversations about this over the course of the last eight or nine months that I’ve been the minister, and I’m pleased to say that at the meeting of the Council of Fisheries and Aquaculture Ministers a couple of months ago, we got unanimous agreement to move forward with the development of a new national aquaculture act, one that will address and accommodate provincial concerns but do so in a way that we will have a national framework. We are beginning that work with the provinces, and we will be working through that over the course of coming months.
Yes, I did get a mandate letter. It was similar to Minister LeBlanc’s mandate letter, with a couple of things added, and the Fisheries Act was in that. I think it’s fair to say that there are some elements of the new Fisheries Act that hearken back to pre-2012, particularly around the definition of fish and fish habitat and what is covered by the Fisheries Act. In 2012, the decision was made to focus only on stocks that were really commercial and not all fish and fish habitat, and that was something that many — in particular, the Indigenous communities and the environmental community — felt was a significant limitation on the act, and that was something that this government had committed to changing.
I would also say that in developing the new Fisheries Act, it was not just about going back to the old definition. It was about modernizing the act and doing a whole range of things that would allow us to think about doing better on a go-forward basis. A lot of the provisions relating to things like stock rebuilding are new. The requirements on the department to do that work are, in some senses, new, and some of the resources we are getting to ensure we are doing that are new.
Senator McInnis: So the Prime Minister signs the letter. Obviously parties have policies and you bring them forward and want them implemented because you campaigned on them, but I would presume that they would discuss, as well, with senior officials in the Department of Fisheries and Oceans in establishing that. If they did that in 2015, one would presume that the same officials would advise the previous government. Where did we go astray here? What happened? Now we are going back pre-2012, and yet in 2012 they were told something different. How do you distinguish that?
Mr. Wilkinson: I would say a couple of things. I don’t think we can lay this on the officials. There was a deliberate decision in the 2012 period to confine the application of the act. That was a decision taken by the previous government. Some agree with that and some don’t. The current government doesn’t agree with that, and I’m sure that some of you around this table agree with it and some of you don’t. Our view was that the definition of fish and fish habitat should apply to all fish and fish habitat. I think there was a pretty broad consensus in the environmental community that that should be the case, and we campaigned on that.
But the specific content of the commitment in the platform was that we would restore the lost protections in the Fisheries Act and we would modernize the Fisheries Act. When we came to power, we looked to restore the lost protections, but we also asked officials to help us with how we could best modernize the act. What came out of that is the bill that we have before us, but that was the product of discussions with officials, with their best advice as professional public servants, but also the product of extensive consultations with Canadians over the course of two years.
Senator McInnis: Thank you.
Senator Christmas: I want to thank you, minister, for sharing your views and comments about Bill C-68. I also want to thank your officials. Over the course of looking at Bill C-68, they have been very informed and very open, and we discussed a number of different questions to it. I’m excited about several parts of this bill. The stock rebuilding parts excite me, and that represents a significant change. Of course, as an Indigenous person, a lot of the Indigenous sections included in the bill are also very significant. We have taken the time to look at those closely, to study them, and I’m sure we’ll work through those questions as time goes along. Finally, I want to thank you for being open to further amendments that this committee and other senators would like to discuss and bring forward. I just want to share my appreciation with you personally for the work that you have done on this bill and for being very open and very forward on its provisions. I also want to thank your officials. I really appreciated their cooperation and openness.
Mr. Wilkinson: Thank you very much. That’s much appreciated.
The Chair: That’s a nice way to end.
Mr. Wilkinson: Thank you. Thank you all for your time. I look forward to hearing of the continuing conversations and some of the amendments that you will be looking at. It’s an important part of the legislative process, and I’m always available if there are questions.
The Chair: Thank you, minister.
We are now back to Bill C-55, and, as advised earlier, Senator McInnis has gracefully withdrawn his amendment. He will not be bringing it back now.
Shall clause 5, as amended, carry?
Hon. Senators: Agreed.
The Chair: You had me worried there for a few seconds.
Senator Gold: Can we put it on division?
The Chair: Shall clause 5 carry?
Senator Gold: On division.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 18 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 19 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 20 carry?
Hon. Senators: Agreed.
The Chair: Before we go any further, I’m not sure everybody received the letter from the Qikiqtani Inuit Association in regards to the amendment that was proposed and passed by Senator Patterson. I had a call today from Senator Campbell, who had spoken to this group, so I will give a couple of minutes for Senator Campbell to comment on this, as well as Senator Patterson, if he wants to — just a couple of minutes to explain — just to clear the air.
Senator Campbell: Basically we got an email from the QIA and it said they asked me to call them, so I did. I had quite a long conversation with them. I told them that I would get back to them. They were flying down to Ottawa for the next couple of days. Subsequently, I had a conversation with Senator Patterson, because this is his precinct and this is his bailiwick. We had a discussion on this, and I think there is a misunderstanding between this bill and other things that are going on. I asked Senator Patterson if he would get in touch with them and speak with them. He agreed to do that. I think that once everybody has the opportunity to talk with Senator Patterson, they will understand better where we are. I just wanted you to know that, because we all got that letter, and I want you to know we have responded to it. Senator Patterson will then carry on from there.
Senator Patterson: I appreciate the opportunity to speak to this letter. Yes, indeed, it is in my precinct, and I know the players. Actually, I was with them last week in other connections.
Let me just say first of all, that I’m arranging to sit down with them and have reached out to their legal counsel to discuss their concerns. First, I will do that. I will also write to them and copy you once I have done that.
As I understand it — and this came up in our discussions on the bill — there is a very large marine conservation area being negotiated as we speak under the authority of Environment and Climate Change Canada. It’s in the so-called Tallurutiup Imanga, the Lancaster Sound area. It’s 109,000 square kilometres, and the Inuit association has been very well involved in consultations with the federal government and are on the verge of negotiating an impact and benefit agreement with the Government of Canada for this marine conservation area. But that process falls under a different department and different legislation than Bill C-55. They had expressed concern that the amendment might jeopardize their negotiations. I want to very clearly disabuse them of that threat.
They also referred to a future large protected area that they are in early discussions about. It’s called the High Arctic Basin, this area of the polynya. Everyone agrees it’s at early stages, although it might become an MPA. It might fall under Bill C-55 in the future.
As far as the rights of Inuit are concerned, and this letter was written as Inuit rights holders, we heard from the Inuvialuit Regional Corporation president Duane Smith, as you’ll recall. That was a much earlier land claim in 1984 that does not have the same safeguards as far as the requirement for consultation on federal policy or legislative initiatives that the Qikiqtani Inuit Association has under the Nunavut land claim agreement, which was passed in 1993. It was a much more comprehensive land claim agreement. It respected their rights more than the earlier comprehensive land claim agreement for Inuit in James Bay and in the Inuvialuit region.
I’m going to be explaining to the QIA how the amendment referring to Indigenous rights holders was inspired by the clear plea that came to us from Mr. Smith on behalf of the Inuvialuit. I’m quite optimistic that I’ll be able to sort this out and report back to you, chair, the deputy chair, and other senators who I know have been copied in this legislation. You would have some time to make sure that’s done before the bill gets to third reading, I would hope. I’m going to deal with that as expeditiously as I can and hopefully assure them that this bill is not against their interests. Thanks for the opportunity to comment on that, and I will report back.
The Chair: Thank you, Senator Patterson and Senator Campbell. I will leave that for you to get straightened out. Like I say, the amendment has passed, and I’m sure you’ll work with the group to ensure that all is in order.
With that, I’ll continue on my questions. Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill as amended carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Senator Campbell: No.
Senator McInnis: People were very reasonable.
The Chair: Senator Campbell speaks for everybody.
Is it agreed that the law clerk be authorized to make any consequential changes to the numbering of provisions and cross references as a result of the amendments to the bill?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill as amended to the Senate?
Hon. Senators: Agreed.
The Chair: I just want to thank everybody for their work on Bill C-55. I want to thank Senator Bovey as sponsor of the bill who joined us here on kind of a temporary basis. I know she would love to stay as a member of the committee, but that’s not up to us. You have to discuss that with your leadership. I want to thank the senator for her work on the bill. Certainly, I want to thank all senators. C-55 took a little bit longer than anticipated because we had some great interest in the bill itself. I want to thank senators for their work on the amendments and the great discussion that we have had. I look forward to where we’re going to go with bill C-68.
Just to give you some idea, we had a plan at steering — I stress had — in regard to how to deal with Bill C-68, but due to the motion put forward today in the Senate by Senator Harder, that plan may be out the window. We have to rejig it. Senator Gold and I went to Senator Harder and had a chat, and so we need to see what we can do.
We need a little more time. The list of people that have requested to speak on Bill C-68 is long. We will try our best to accommodate everybody. I am just putting this out because our time is limited, much more than what we anticipated, so we may have to compromise and to have a little chit-chat in camera some day about how we need to deal with this because of time constraints that may be given to us. I just want to make sure everybody is aware of what is going on. We had 60 or so witnesses in the beginning. We whittled that down, but we will still end up with 30 or so. We may end up having to deal with all that next week. As you will say in Newfoundland, pack your lunch if we’re going to deal with this next week. We will work on that. I am going to give Senator Bovey the floor before we finish up.
Senator Bovey: I want to thank you, chair, and thank all of you. It has been a real pleasure to be on this committee for these last number of weeks and months. I really do admire the depth of consideration that went into not only every page of this bill, but every clause of the bill. I really respect the multiple viewpoints that the discussions reflected and I want to thank you. I think the discussion was very rich as a result. Mr. Chair, you’re a great chair.
The Chair: Thank you.
(The committee adjourned.)