Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue No. 44 - Evidence - May 2, 2019
OTTAWA, Thursday, May 2, 2019
The Standing Senate Committee on Fisheries and Oceans , to which was referred Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, met this day at 8:12 a.m. to give consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Good morning, senators. My name is Fabian Manning, a senator from Newfoundland and Labrador. I am chair of the Standing Senate Committee on Fisheries and Oceans.
Before I give the floor to our witnesses this morning, I would ask the members of the committee to introduce themselves.
Senator McInnis: Thomas McInnis, Nova Scotia.
[Translation]
Senator Poirier: Good morning and welcome. Rose-May Poirier from New Brunswick.
Senator Cormier: René Cormier from New Brunswick.
[English]
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Francis: Brian Francis, Prince Edward Island.
Senator Campbell: Larry Campbell, British Columbia.
Senator Gold: Marc Gold, Quebec.
The Chair: We may have some senators joining us. There are a couple of committees meeting at the present time.
I would like to ask our witnesses to introduce themselves and whom you represent, please.
Frank Annau, Environment and Science Policy Advisor, Canadian Federation of Agriculture: Frank Annau, Canadian Federation of Agriculture.
Erin K. Gowriluk, Executive Director, Grain Growers of Canada: Erin Gowriluk, Grain Growers of Canada.
Fawn Jackson, Senior Manager, Government and International Relations, Canadian Cattlemen’s Association: Fawn Jackson, Canadian Cattlemen’s Association.
The Chair: Thank you to our witnesses for joining us as we continue our study into Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence. We are pleased that you took your time to be here.
Ms. Jackson: Good morning. As I mentioned, I’m Fawn Jackson. I am the Senior Manager, Government and International Relations, Canadian Cattlemen’s Association, or the CCA. We are the voice of Canada’s 60,000 beef farmers and ranchers, most of which are small- to medium-sized, family-run operations. Thank you very much for the opportunity to present our concerns on Bill C-68.
First, farmers and ranchers are not against the protection of fish and fish habitat. Canadian beef producers take habitat stewardship very seriously and follow best-management practices related to water stewardship.
We are, however, concerned that the proposed changes to the act broaden the definition of fisheries habitat to a point that will place a crippling regulatory burden on family-owned operations in addition to the government staff that would be faced with implementation.
We are further concerned that this misplaced effort would not have a positive impact on fisheries.
We have three specific areas of concern regarding Bill C-68. First, the expansion of fish habitat through the deemed habitat provision. Second, the lack of exclusions for man-made agricultural structures. Third, the lack of progress on streamlined regulatory process for low-risk projects.
Primarily, we’re asking the Senate to amend Bill C-68 to remove subsection 2(2), the “Deeming — Habitat” provision.
How we would understand this deeming habitat provision would be that if the quantity, timing and quality of freshwater could sustain fish, it is fish habitat. When we combine this with the reintroduction of HADD — no harmful alteration, disruption or destruction — you have a situation where it’s virtually impossible for beef producers to be in compliance with the act.
I’m going to give you a few quick examples of how this would apply on a farm or ranch.
We understand that proposed changes would mean that not only are the lakes and rivers on farms and ranches subject to the Fisheries Act but so are the irrigation channels, dugouts — which is essentially a watering hole for cattle — floodwaters, standing water after rain, and run-off during rain.
Depending on interpretation and how that goes forward, or application, you could not change your irrigation channels, do routine maintenance to your watering holes or drain standing water after a heavy rain without a permit. In all these situations, although not connected to a fisheries, the water could have the characteristics of a potential fish habitat. As such, we recommend to repeal subclause 2(2).
Building on our first concern, our second is the lack of exclusion for man-made agricultural structures. As discussed, beef cattle farmers and ranchers have historically developed essential livestock watering and collection systems. These artificial structures are typically not of the scale that would impact fish habitat relevant to a fisheries or create an impact on fish populations but could be deemed habitat.
The CCA feels strongly that these vital agricultural structures should be exempt from prohibitions.
Lastly, the absence of progress for streamlined regulatory processes for small- and low-risk projects is concerning to the CCA. It is important the regulatory burden reflect the scope of the risk. We are eager to continue to work with DFO to determine whether a code of practice or other methods could be implemented to enable producers to be in compliance in addition to helping guide good practices on the working landscape.
In the government response to the recommendations made by the standing committee, the government stated their support for provisions in the act that would act as safeguards for farmers and ranchers. They also supported the use of increased voluntary practices and stewardship. We ask that the Senate hold the government to this commitment, which would mean that farmers and ranchers have a means of compliance.
We understand that ECCC already considers highway ditches to be fish habitat for the purpose of section 36(3). Clearly we can’t afford to wait to see whether a farmer’s reservoir will be next with no suitable means of compliance.
In closing, I am sure that we all understand that all of Canada’s 60,000 beef farms and ranches interact with water on their operations. Some water sources exist because farmers and ranchers built them, and now these could be determined as fish habitat, even though they don’t contain fish. It is not feasible or justifiable to obtain authorizations for all of these water sources and interactions. It would place an unreasonable burden on both the farmers and ranchers as well as the government, who has to manage the implementation.
Furthermore, the enormous costs that could coincide with such a process would far outweigh the negligible benefits.
In the context of agriculture, fisheries would be far better off if we invested our limited funds in stewardship projects and programs that have shown time and time again the positive impact they can have on the working agriculture landscape.
As noted, there remains considerable concern amongst Canada’s farms and ranches over the detrimental impact Bill C-68 would have on their livelihood.
Respectfully, the Senate has the opportunity to quell those concerns by following the recommendations the CCA has outlined here today: Remove subclause 2(2), make exclusions for man-made agricultural structures and further progress streamlined regulatory processes for low-risk projects.
Thank you very much for the opportunity to explain our concerns and recommendations.
The Chair: Thank you, Ms. Jackson.
Ms. Gowriluk: Good morning. I would like to start by thanking the Senate committee for the opportunity to share the views of our members with you today on Bill C-68, An Act to amend the Fisheries Act.
The Grain Growers of Canada is a national organization that represents over 65,000 grains, pulse and oilseed farmers from every province across the country. Our members consist of provincial, regional and national farmer associations.
Grain farmers across Canada work to protect freshwater. It would be impossible to be a grain farmer without abundant and safe, clean water. Grain farmers also understand and support efforts to protect fish habitat. However, those efforts must be focused on actual fish habitat and should not, in our view, subject farmers to unnecessary regulatory burden or oversight.
When originally introduced, Bill C-68 struck a positive balance with a focus on fish habitat and the establishment of best management practices and codes of practice that would deliver meaningful protection for fish. However, at committee Bill C-68 was amended to include subclause 2(2), the deemed habitat provision. This provision states that the quantity, timing and quality of the water flow that are necessary to sustain the freshwater or estuarine ecosystems of a fish habitat are deemed to be a fish habitat.
Under this provision, almost all water that flows in Canada could be deemed fish habitat and would receive full protection under the Fisheries Act. Broadening the definition in this way suggests that any aquatic ecosystem that could sustain fish, but under natural circumstances would not, shall be deemed a protected fish habitat.
Our second area of concern relates to the proposed changes to section 35.(1) of the Fisheries Act which, in its current form, states that:
No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.
However, the proposed changes seek to lower the threshold of harm and expand the target of aquatic ecosystems requiring statutory or regulatory exemptions for associated work, undertaking or activities from fisheries to fish habitat.
They read:
No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.
To manage water on their operations, farmers may dig drainage ditches or establish reservoirs and channels for irrigation, all of which are already subject to provincial regulations that protect water flow. Under the expanded definition of fish habitat, these forms of artificially created infrastructure could be considered fish habitat. Therefore, any alteration or disruption would be prohibited. This means that a grain farmer would be prohibited from moving a drainage ditch or filling in a reservoir that is no longer needed even if there have never been fish in it.
The original version of Bill C-68 included provisions to establish codes of practice that would provide advice on how to avoid impacts on fish and fish habitat. Grain farmers support the concept and look forward to working with government as they are developed. However, as amended, Bill C-68 will add significant burden without benefiting fish habitat.
Existing provincial and territorial laws and regulations protect water flow. The existing Fisheries Act protects fish habitat. The amendment in subclause 2(2) does nothing, in our view, to protect fish. However, it does have the potential to subject farmers to burdensome and expensive permitting processes for changes that will never impact fish.
That is why Grain Growers of Canada is calling on members of the committee to recommend the removal of subclause 2(2) and 35(1).
With that, I would like to thank the committee for the opportunity to appear today and share our views on this important piece of legislation.
The Chair: Thank you, Ms. Gowriluk.
Mr. Annau.
Mr. Annau: Mr. Chairman and committee members, thank you for this opportunity to speak. My name is Frank Annau, the Environment and Science Policy Advisor for the Canadian Federation of Agriculture. We are Canada’s largest general farm organization representing over 200,000 farmers nationwide.
First and foremost, we commend the government for the House of Commons Standing Committee’s 2017 recommendation that DFO set out provisions that safeguard farmers under the new Fisheries Act. We respectfully ask this to extend to exemptions for small and routine farm projects that are critical to producing food for Canadians.
Unfortunately, certain wording in the bill may be undermining these safeguards. Since the bill’s third reading, farmers have raised concern over subclause 2(2) dealing with fish habitat. It states the quantity, timing and quality of the water flow that are necessary to sustain the freshwater and estuarine ecosystems of a fish habitat are deemed to be a fish habitat. As the Grain Growers of Canada accurately put it, there is worry that this broadens the definition of fish habitat to include waters that consist of fish but do not under natural circumstances.
For example, were a farmer to drain pooling on his cropland that was caused by extreme rainfall, there is concern this pooling could be deemed fish habitat.
Similarly, structures, such as water supply ditches, may also be captured due to their function of directing water flow. This lowered threshold for harm may require farmers to seek permits to carry out small and routine projects, a regulatory burden that would hinder the safeguards recommended by the House Standing committee.
CFA recommended that government clarify subclause 2(2)’s interpretation during our consultations. Our Saskatchewan members were also told during a meeting with former Minister LeBlanc that regulations would clearly define agricultural exemptions. These clarifications have yet to occur. This leaves subclause 2(2)’s impact open to interpretation.
CFA also met with Tony Maas, Director of the Forum for Leadership on Water, to seek clarification on the meaning of water flow in the wording of subclause 2(2). Director Maas stated that this wording was derived from the definition of environmental flows provided by the 2007 Brisbane Declaration, which refers to the quantity, quality and timing of water flows required to sustain freshwater ecosystems and the human livelihoods that depend on them.
In this context, human livelihoods such as agricultural have a wider consideration, one that has been removed from subclause 2(2) in favour of a narrower ecosystem focus. It by no means breaks any rules to change this wording, but it does not appear to capture the spirit of the original definition’s intent.
The Chair: For interpretation, can you slow down a bit?
Mr. Annau: Sorry. I get excited when I talk.
The Chair: I am used to it, being from Newfoundland and Labrador.
Mr. Annau: I apologize. I’m from Yukon. We talk just as fast.
It by no means breaks any rules to change the wording, but it does not appear to capture the spirit of the original definition’s intent, which is to recognize the role of livelihoods in water flow management.
The Canadian government has made efforts to address the complexity of defining environmental flows.
In 2014, DFO released a Framework for Assessing Ecological Flow Requirements in Canada. The framework stated that holistic methods, which may include considerations of socio-economic objectives or in our case farm activities, are best suited to assess flows. These considerations are clearly missing from subclause 2(2).
The framework also stated that flow requirements are an emerging science requiring additional research. With regard to runoff or pooling, events triggered by precipitation, the report stated that its analysis did not directly consider these situations and that its advice was not necessarily intended for those flow events. As such, it was again recommended that additional research was required.
This framework was cited in a 2014 summary report on Environmental Flow Needs, which was submitted to the Canadian Council of Ministers of the Environment. The summary’s definition of environmental flows included the same consideration for human livelihoods omitted from subclause 2(2).
The summary identified a need for legislation that increases the understanding of what makes an effective environmental flow. Subclause 2(2) does not increase this understanding.
The summary also identifies common gaps in environmental flow assessments, including setting transparent thresholds and linking land use with water resource management. We believe that subclause 2(2) winds this gap by omitting this linkage and leaving the threshold for harm undefined and wide open for interpretation.
CFA initially recommended that subclause 2(2)’s interpretation be clarified to determine its impact on agriculture. But given that clarification and guidance on environmental flows has yet to be provided and that the bill is now moved to Senate review, we have respectfully recommend removing this subsection.
We also encourage our government to fulfill its commitment to clearly define provisions for agricultural exemptions under the regulations and that these exemptions apply to small and routine farm projects.
It is important to state that farmers are stewards of the land and aspire to leave a healthy farming environment for future generations. We seek a Fisheries Act that supports farmers’ abilities to steward the land while remaining profitable and competitive. Subclause 2(2) unfortunately risks jeopardizing this ability by deeming common on-farm activities as threats to fish habitat.
Thank you for this opportunity to speak. I welcome any questions you have. Sorry for talking so fast.
The Chair: Thank you all for your opening remarks. As usual, we will go to our first questions from our deputy chair, Senator Gold.
Senator Gold: Thank you for your presentations.
I have a comment and then a question for the panel.
The comment is simply this: We heard indications from the Government Representative, and they were reflected in the minister’s comments when he appeared before us, that the government was open to amending the deeming provisions and generally the provisions dealing with fish habitat. Presumably, if they do that in the direction that you have recommended that would remove at least one concern from this bill. That’s the comment. I know that you have other concerns. I want to ask a more general question.
A number of you have suggested and underlined the importance of a more streamlined process and an approval exemption criteria for small- and low-risk activities. Can you clarify for us whether, in your mind, that means an exemption from the new approval process for designated projects or is that something else? That’s part one of my question.
It’s because of this: The minister, when he was here, said that the list of designated projects under Bill C-68 would be the same list that would apply to Bill C-69’s designated projects under the impact assessment act. Yesterday the government put up a project list for consultation of what would be the designated projects. At least, from the point of view of agricultural projects, there didn’t seem to be any on that list requiring a new permit.
Are you looking for exemption from designated projects? If not, can you give us some examples of what you are looking for and any comments on the absence of agriculture projects on the designated list?
Mr. Annau: I think what we’re looking for is a guided code of conduct, as Fawn was saying, just indicating the types of projects specific to farming that would be exempt from requirements for authorization. Of course, very clear wording specifically on how that does apply to agriculture to leave as little as open to interpretation as possible.
Ms. Jackson: I agree with Frank. I think something along the line of a standard or a code of practice would really offer a lot of clarification to producers as to when and how the different works they would be doing on their operations could be impacted by the Fisheries Act. Having an approval process that says essentially that if they fall within that scope of a code of practice, that they can carry on, I think that really offers guidance in how to do some of the works that they need to be doing and would help improve some of the working landscape operations. It also gives very clear clarification as to whether they would be doing something incorrectly, I suppose, on the landscape. It wouldn’t be falling within the lines of the act. I think that clarity would be valued.
Ms. Gowriluk: The only piece I would add to that is any opportunity for the government and stakeholders to work collaboratively in the development of those codes and practices, I think creates an opportunity for an increased awareness and understanding of the nature of the various types of activities and the processes that make most sense for agriculture while honouring the spirit and the intent of the legislation.
Senator Gold: Thank you for that last comment. I think that was a point also made by Mr. Annau before the committee in the other place, the importance of consultation.
When the minister was here, he told this committee:
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.
Are you aware of or have your members been involved in any processes towards the development of these rules or codes of practice?
Ms. Jackson: We’re aware of, but the outreach in developing them has not gotten to the next step. I think we’re hoping that’s going to be an opportunity in the future. There is certainly a lot of expertise in terms of the reality of how things happen out on the landscape. Also, there are a number of stewardship organizations that beef producers and a number of other agriculturalists work with that also have a lot of expertise and it would be excellent to combine that.
An example that comes to mind would be cows and fish. It’s a very successful program in Alberta that I think would offer a lot of insight as to how a code of practice could move forward.
Senator Gold: As the government is developing this, if they do in fact reach out appropriately to stakeholders like you and others, that would go some distance towards allaying your concerns about the impact of this on whether it’s beef producers or more generally the agricultural sector. I’m trying to get your sense of the bill as a whole outside the areas of legitimate concerns that you raise. If the government is open to dealing with the fish habitat issue and if they do, as they should, consult with stakeholders as they develop the rules of the game for codes of conduct and standards of practice, would that be satisfactory to you and your members?
Mr. Annau: I think very much so. Our stakeholders would love to be consulted, especially on development of regulations or exemptions.
The core issue we face, of course, is the bulk of these authorizations would provide exemptions from any activities that would cause alteration or destruction to fish habitat. Our root concern is if fish habitat was deemed to include on-farm activities based on the subsection, our concerns would be how that would impact the rest of the actual exemptions that would be required or take place.
Senator Gold: Thank you very much.
Senator Poirier: Thank you all for being here. We have also heard from other groups some of the concerns we’re hearing from you.
I have a couple of questions. If I go overboard, the chair will probably stop me, I’m assuming.
The Chair: Advise you.
Senator Poirier: Advise me.
My first question is for Ms. Jackson. In your brief you mention that the expansion of the definition of fish habitat was done without any consultations or engagement from stakeholders. Were you given a reason why you were not consulted or why they did not reach out to you to get your opinion on this section?
Ms. Jackson: I don’t think that I stated that we weren’t consulted.
Senator Poirier: I think it was more in the one you submitted that we received. I thought there was a place or comment that before the changes were made, before subclause 2(2) was added in, that you were not consulted. Maybe I misunderstood.
Ms. Jackson: I think there was a lack of opportunity to consult on subclause 2(2). I think that has left that to be quite open in terms of the scope of what the deeming habitat could be.
Senator Poirier: Bill C-68’s intent is clear that it wants to return to the pre-2012 model with the changes made back to HADD. If I’m hearing correct, it is a return to HADD but with more uncertainty and regulatory burdens. Am I right in hearing that?
Ms. Gowriluk: I would suggest that’s likely the case. Our concerns are primarily focused on subclause 2(2) where we would need to see increased clarity in particular with this particular piece, yes.
Senator Poirier: Any other comments from anybody else? Is that pretty well it?
Mr. Annau: I think Erin summed it up well.
Senator Poirier: I know you mentioned quite a lot in your presentation, specifically Ms. Jackson, on your day-to-day operations with your industry, the impact this would have. Could you elaborate a bit on how these changes would affect your industry in the bigger picture? What impacts would Bill C-68 have on the development if this stays as it is with the industry going forward?
Ms. Jackson: I think there would be a number of areas that it would impact.
First of all, if there was a requirement going forward to get approvals for the number of interactions that would now happen with fish habitat, I think that would be unrealistic. We were listing out the number of farmers that we all represent. That number would be extremely high, and I think would be a misplacement of limited funds that we have to undertake stewardship on the working landscape.
That would be an impact, but then also, as the definition would be worked out as to what the scope of it would be, there would be a lot of uncertainty. When you’re a business operation, uncertainty is not something that we like to welcome into business operations. Having it be very clear as to what is in scope and what is out of scope, I think, is extremely important.
Senator Poirier: Towards the end of your brief, you talked about the work that has to commence prior to the changes coming into force. Could you elaborate on the coming into force provision of the changes? In your opinion, does it need to be changed to have a smooth transition to the new regime?
Ms. Jackson: Sorry, could you clarify the question?
Senator Poirier: Yes. Towards the end of your brief — I’m talking about the brief that was submitted before — you talk about the work that has to commence prior to the changes coming into force. Can you elaborate on the coming into force provisions of the changes, and in your opinion, does it need to be changed in order to have a smooth transition to the regime?
Ms. Jackson: I think I’ll have to get back to you on that. Thanks.
Senator Poirier: You also mentioned the Canadian Council of Ministers of the Environment’s report on the environmental flows, where they didn’t even consider the federal regime. I’m curious as to why they wouldn’t consider the federal regime. Is it because it’s a provincial or territorial jurisdiction, in your opinion?
Ms. Jackson: I think there are a number of concerns in terms of overlap with provincial jurisdiction. If there is some scope placed on the deeming habitat provision, how that would add to what already exists in the act. I think those are two concerns.
Senator Poirier: Thank you.
Senator Christmas: Thank you for appearing this morning. I think you’ve done an excellent job at articulating your concerns about subclause 2(2). I think we received a number of submissions and comments. I think it’s quite clear that the definition of fish habitat including water flows is a problem.
If I may, Ms. Gowriluk, I would like to refer to your submitted comments. I’m interested in exploring your views about subsection 35(1). About two thirds of the way down in your comments, you mentioned that:
Our second area of concern relates to proposed changes to section 35(1) of the Fisheries Act, which, in its current form, states that:
No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.
That’s the current law and what was instated in 2012.
What Bill C-68 proposes — and you also referred to it in your comments — is:
No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.
That would reinstate the HADD provision.
What I’m trying to figure out is that in between those two sections, you mention in your comments that the proposed changes seek to lower the threshold of harm. Could you explain that comment? How would this new section lower the threshold?
Ms. Gowriluk: I think it comes back to subclause 2(2) and the definition of fish habitat. Our focus is primarily around alteration or disruption. I mentioned, as I think all of us did, the various ways farmers and ranchers manage water on their operations. If that particular body of water, be it a drainage ditch or an irrigation channel, was deemed to be a fish habitat, under the new provision in section 35(1), our concern is farmers would not be able to make any alterations to that particular habitat. That’s the area of concern for us. Does that answer your question?
Senator Christmas: Yes. I wasn’t reading them together, but now that I have, I understand. Your comment about lowering the threshold of harm is that if ponds or drainage ditches were considered fish habitat, then, under this provision, obviously cattlemen, farmers or anyone in the agricultural sector wouldn’t be able to make any changes or alterations because of this section.
Ms. Gowriluk: In our view, that is correct and accurate. Even if it was a constructed or a man-made body of water that they created, they wouldn’t be able to alter that. It’s our belief under section 35(1) that alterations would not be permitted.
Senator Christmas: I notice in your comments that you refer to the difference, I think, between artificial, man-made and naturally occurring waterways. If the definition of fish habitat was restricted to natural waterways and not applied to man-made or artificial waterways, would that alleviate some of the concerns?
Ms. Gowriluk: I think it would absolutely alleviate some of the concerns. Unfortunately, I can’t speak as much as I’d like to be able to speak to what is happening at the provincial and territorial level. When we look at laws governing bodies of water within those jurisdictions, our members — farmers across the country — made it clear to me that there is a permitting process they have to undertake on their own operation when they want to manage or divert land on their own property.
They were of the view that those provincial laws covered that piece and that this would add an additional layer, primarily, to your point, with respect to those bodies of water that were constructed on their own properties.
Senator Christmas: Any other comments before I go on to the next speaker?
Ms. Jackson: I suppose that in terms of limiting the deeming habitat provision, while that would alleviate some of our concerns around it, I think there would still be concerns in terms of overlap with jurisdictions and how it adds to the current definition of habitat combined with HADD in the act and how that would differentiate.
In our view, we would still like to see 2(2) removed — not slightly changed.
Senator Christmas: Thank you very much.
[Translation]
Senator Cormier: I will ask my question in French. It is for Ms. Jackson.
[English]
I’m not on this committee. I’m replacing Senator Busson, in case my question has already been asked.
[Translation]
I want to understand the issue of habitats and waterways. In a brief you presented here — and you reminded us of it this morning — man-made agricultural structures should be excluded as habitat for fish. The Dene Nation appeared here on April 9, and said the following, and I quote:
There are places we have to remember that people are living off those fish and ducks that are on the side of the sloughs on the farms. We can’t presume that they shouldn’t be protected.
In your experience, can certain man-made agricultural structures become fish habitat? If so, who deems them fish habitat? Are they deemed fish habitat year-round or only for a portion of the year? I would like to understand the issue better. I don’t understand territory organization and I am not familiar with the difference in terms of vision between your members and First Nations members. Can you enlighten me on this matter? Thank you.
[English]
Ms. Jackson: I think you raise a really good point in terms of what should be excluded, included and the potential confusion that can go along with that. I think you also raised a good point in terms of habitat stewardship. Doing things correctly on the working landscape is extremely important to a number of stakeholders that interact on that landscape.
That emphasizes the point that having a confusing definition such as 2(2) would only exacerbate that problem. Utilizing things such as stewardship programming or codes of practice which really add clarity would be a much better use of resources.
[Translation]
Senator Cormier: Thank you. I want to make sure I understand. What regulatory process do farmers have to follow currently to maintain man-made agricultural structures deemed to be fish habitat? What regulatory process do you have to follow?
[English]
Ms. Jackson: Farmers follow the provincial as well as the federal acts and regulations that apply to them. The Fisheries Act currently, in some cases, applies to farmers as well as the provincial jurisdiction.
Senator McInnis: Thank you very much. It’s nice to see you all from the West.
I looked at this. You represent something like 325,000 either beef farmers or grain, pulse and farmers’ organizations. That’s a chunk of the agricultural industry in this country. You would think — and you’re going to answer this question, if you will — that any government that is putting legislation through that would have a potentially injurious effect on your industry would have consulted you. They would have come out and talked to you. It strikes me that governments, in developing legislation, have to be prompted by someone. I fail to see how they would miss the potential effect on the agricultural industry of this magnitude.
Did they actually come and talk to any of you at the time? Where do you believe the motivation for the definition of fish habitat came from?
Mr. Annau: I can definitely speak to motivation for the definition. As I mentioned, it was the Brisbane Declaration, which was a document in 2007. I believe it was the International Environmental Flows Conference that devised it. As I mentioned, the original definition made mention of human livelihoods that also depend on fresh water flows and ecosystems. It’s those types of considerations that would provide for a more open conversation with agriculture in terms of what those human livelihoods may entail and what their impacts might be —
Senator McInnis: Could you slow down?
Mr. Annau: Yes. The definition itself was narrower to be more ecosystem-focused with the deeming fish habitat. Unfortunately, the actual consultations took place before I was with CFA. I can’t speak to the depth of the consultations that took place with my predecessor. However, it was mentioned when we met with Tony Maas when he was the director of the forum on water leadership. He had originally proposed the wording on flows to the Canadian government, he was one of the people who advocated for discussing its opportunities, and this was specific to the original definition that made mention of human livelihoods. It was apparently made clear to him there was no interest at that point, after the first reading, of making any changes to the definition of fish habitat. However, he said he was quite surprised when he saw at third reading the finding that the deeming clause had been put in. I believe it was a last-minute addition which was proposed — I think it was Elizabeth May, MP May, who proposed the wording. The main concern would be whether this wording was put in place without consideration for impacts on farming operations and without consideration of whether there was sufficient guidance on how to administer compliance under that subsection with regards to flows.
Ms. Gowriluk: I wouldn’t have anything to add with respect to Mr. Annau’s comments. Those are accurate in our view. Our members support, like I’ve mentioned before, the spirit and intent of this bill. This one provision is the piece where we see misalignment, if you will, with respect to what the bill is trying to achieve and what it will practically achieve.
Senator McInnis: Give me an example of a man-made structure that would have an injurious effect on the estuary. It must touch a stream, I take it. You just couldn’t have still water. Is that what you’re suggesting, that is in fact the case? Are we talking about ponds? What are we talking about here?
Ms. Gowriluk: I think that is a very good question and I think there is a lack of clarity with respect to exactly what we’re speaking about on the way in which farmers and ranchers manage water on their operations, whether it’s a pond, a reservoir, a drainage ditch, or an irrigation channel. Some of those bodies flow, others do not. There is a lack of clarity with respect to what would be deemed fish habitat. It is our understanding that all of those examples have the potential to be deemed as fish habitat.
Ms. Jackson: A dugout, would be a good example. It’s called a dugout. Essentially, you would be in a pasture, you dig a hole and it refills and it’s not connected to fish habitat. That’s for watering cattle. That could be an example that is not connected and really should not fall under the Fisheries Act.
Senator McInnis: I think the intent of the bill in mentioning that — I mentioned this the other night when we had some people in from hydroelectricity. I think what they meant was if you have dams leading into a hydro facility, the quality and flow of water in the river that is controlled by the dams and the power company, I think that must be what they meant. I honestly can’t believe they meant that there would be still water on a farm for watering animals. I think it’s clarification that is required.
I know it’s possible that it could be deemed that, and you’re right to point it out. I think there’s some confusion here.
With respect to — as Senator Poirier had started to talk about — the enforcement if this bill is passed, most of it, when it gets Royal Assent, is law. Some sections in the proclamation clause specifically say it will be at a later time, but predominantly this bill will become law. Mind you, there will have to be regulations. You say codes will be presented. This should take a period of time because all of the enforcement officers are going to have to be educated in all of this. This is not something that’s going to happen immediately. We’ll be looking at amendments and we’ll see where it goes. Thank you.
Senator Campbell: Thank you for coming today. Do you suppose that under any circumstances the Minister of Agriculture would have actually met with the minister of fisheries and discussed how their portfolios may come together at some point? Do you think that ever happens?
Mr. Annau: I can’t say offhand myself.
Ms. Gowriluk: I don’t know, but one would hope.
Senator Campbell: For 20 years I planted and harvested on the prairies. I can tell you I never saw a fisheries officer, ever. I’m shocked at this inclusion here because it goes further than — you say a dugout is for animals. I lived on a farm where the dugout was for the family. Behind the house you dug a hole, rain went into it and that’s what you would use because you were dry-land farming. Most farmers are so happy to have a slough, which means there’s still water on their land. It’s all still. There are no streams running through it. It’s not on a river. I simply don’t know how this got in here and if it was through my member of Parliament, Elizabeth May, I’d be more than happy to speak to her about this because this isn’t enforceable. First of all, it’s not enforceable. What are we going to do, have a bunch of guys running around looking at sloughs, dugouts and puddles that happen to form when there’s a decent rain?
I think this is one of the sections in this bill that has to be looked at. We need to consider amending it because it’s nonsense. It makes no sense whatsoever to anybody who knows anything, even a little bit, about farming.
We’re not talking about streams running through your property. I understand that. I wouldn’t want somebody digging around in a stream that has fish in it, whatever the fish may be. You describe them as “agricultural structures.” That’s pretty good. I’m going to take that back to the farm because we just called them sloughs. Something has to be done about this. This is not right. I thank you.
The Chair: We’re waiting with bated breath, Senator Campbell.
Senator Campbell: I wanted you to breathe again. I was worried.
The Chair: It must have ended up in the slough.
Senator Gold: Thank you. This is really a comment more than a question. To clarify, for those who may be watching or following us online. As I mentioned in my opening comment, we’ve already heard from the Government Representative, and the minister echoed the Government Representative in the Senate’s comment that they were open to dealing with and amending this.
Indeed, as was suggested, my understanding is this was not in the bill at all when it was first introduced at first reading; it was not in the bill when it was approved in the other place in second reading. Therefore, we should not be surprised there wasn’t consultation between the Minister of Agriculture and the Minister of Fisheries on this because it wasn’t in the government’s intention to introduce this deeming provision. It was introduced at committee by Elizabeth May and it was passed.
We’re now seized with this issue which you and many others have pointed out causes unintended problems for your sector.
All I would say to members on the committee is that we’re seized with this issue as well and encouraged by the openness of the government to reconsider this provision. To say “leave with us” or “trust us” sounds too much like Richard Nixon. I shall not comment on where he stands in my lexicon of favourite presidents, or least favourite presidents. We are seized with this issue and thank you for reinforcing it today.
Ms. Jackson: I agree very much with the lack of consultation on the addition of the “deeming habitat” provision.
I would say there was consultation on the other parts that were reintroduced — HADD, for example. I think there is a lot of strength in the Fisheries Act and a lot of guidance that can come out of the codes of practice that could be new.
I would recommend that we explore that well-researched, well-consulted material and where that will take us in terms of protecting fish habitat rather than adding in something that is only going to make it more confusing and less productive in terms of preserving fish and fish habitat.
The Chair: Thank you.
Senator Gold says to leave it with us and trust us. We’re not seeking votes, so that means more at this table.
I want to thank our witnesses for coming this morning and reiterating your concerns with Bill C-68. We’ve heard from others along the same lines. We will be continuing our work over the next few weeks and certainly taking into consideration the issues and the concerns you have raised with us here this morning.
As I say to all witnesses that come before us, you may think of something you wish you had said or provided to us. Please feel free to contact the clerk with any additional information after our meeting today that you think will be worthy in our deliberations.
With that, I’ll adjourn the meeting. I’ll see you next Tuesday.
(The committee adjourned.)