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Fisheries Act

Motion in Amendment

June 4, 2019


Hon. Rose-May Poirier
[15:30]

Therefore, honourable senators, in amendment, I move:

That Bill C-68, as amended, be not now read a third time, but that it be further amended in clause 3, on page 3, by replacing lines 22 to 26 with the following:

“2.1 The purpose of this Act is to provide a framework for the proper management and control of fisheries, with due consideration for the need for conservation and protection of fish and fish habitat, including by preventing pollution.”.

The Hon. the Speaker
[15:30]

In amendment, it was moved by the Honourable Senator Poirier, seconded by the Honourable Senator Wells that Bill C-68, as amended, be not now read a third time, but that it be further amended in clause 3, on page 3 —

May I dispense?

The Hon. the Speaker
[15:30]

Senator Wells, on debate.

Hon. David M. Wells
[15:30]

Honourable senators, I rise to speak in support of Senator Poirier’s amendment to Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence. At committee, we, alongside our colleagues representing all groups in the chamber, heard from stakeholders that modifying the wording of this bill’s purpose section would improve Bill C-68. Manitoba Hydro and the Canadian Electricity Association were the most vocal proponents for this amendment. Gary Swanson a senior environmental specialist at Manitoba Hydro clearly stated in committee that his organization would like to see:

. . . the purpose statement be revised into one that is coherent where it is clear that the protection of fish and fish habitat is part of Canada’s responsibility to ensure fisheries sustainability.

As the two separate sections are currently stated, we reasonably foresee they will create conflict and needless scope for legal challenges and are contrary to indications from DFO that the habitat provisions will be applied at fishery or fish population level.

As do Senator Poirier and these stakeholders, I view the amendment as a sensible attempt to prevent conflict between the purpose of the act and the reasonable authorization by DFO of productive activities that may incidentally harm fish or fish habitat, something that is provided and planned for in this bill.

As we heard in committee, the purpose section, as worded, needlessly creates scope for legal challenges. The actual purpose of the act is not problematic in the least. It is in the wording of the purpose section where we run into trouble. I think everyone can agree that the Fisheries Act should be about both the proper management and control of fisheries, and also about the conservation and protection of fish and fish habitat.

The purpose section currently has two stand-alone clauses representing these two laudable objectives. On the surface, if you have two objectives, it would make sense that they be separated into two distinct lines.

Proposed paragraph 2.1 (b) under the purpose section reads:

. . . the conservation and protection of fish and fish habitat, including by preventing pollution.

When you consider this purpose statement on its own, it is easy to understand stakeholder concern around scope for legal challenge. What will happen, colleagues, based simply on legislative oversight, are avoidable legal battles over whether legitimate mining, oil and gas, or other projects can go on when they may be in conflict with one of the two purpose statements in the Fisheries Act. A mining project that has been duly approved and provides for all necessary mitigation measures and offsets may still incidentally cause a degree of harm to fish or fish habitat. Such a project, it would appear, is in conflict with the stated intention of the bill as written in proposed paragraph (b) of the purpose section. On that basis, a project could be challenged, and subjected to unnecessary and unproductive delays.

This would be a disappointing situation considering the efforts of so many stakeholders and parliamentarians, from all sides, who have sought the proper balance between the environment and the economy in this bill.

By simply combining the two parts of the purpose section using the phrase “with due consideration,” we can avoid pointless legal challenges and keep the balance where it exists in this bill fully intact. The amended purpose section would read:

The purpose of this Act is to provide a framework for the proper management and control of fisheries, with due consideration for the need for conservation and protection of fish and fish habitat, including by preventing pollution.

Under this new wording, both objectives remain sound; they just no longer create the same potential for legal challenge. There is no legislative impact from this change whatsoever. In other words, no project would be approved that would have previously been rejected, and no project would be rejected that would have previously been approved. No mitigation measures change, no management or control procedures change, and no less consideration is afforded to environmental or economic factors. This amendment will simply ensure that the act is carried out as I assume it was intended, with both the environment and the economy in mind. The only real change as a result of this amendment is the potential for futile legal challenge.

I want to thank Senator Poirier for bringing this amendment forward, and I take this opportunity to congratulate her, as well, for shepherding two other positive amendments through the committee.

I hope all colleagues will provide due consideration to this amendment. Thank you.

Hon. Yuen Pau Woo
[15:35]

Would the honourable senator take a question?

Senator Wells
[15:35]

Yes.

Senator Woo
[15:35]

Thank you, Senator Wells, for your speech, and thank you, Senator Poirier, for introducing the amendment.

I understand this was an amendment that was raised in committee and defeated. Please, first of all, confirm if that was the case.

For those of us who are not on the committee, this is sprung upon us quite suddenly. Can you give us a flavour of the discussion in committee on this very issue and, in particular, what officials had to say in response to this amendment, leading to its defeat in the committee?

Senator Wells
[15:36]

Thank you for your question, Senator Woo. We had a discussion around it. The amendment that was defeated in committee is slightly different than the one we have in front of us.

It was the officials who did the original drafting of this section. With the addition of “with due consideration,” it combines the two. There was a fairly robust discussion around that. As currently written, the purpose statement of the bill establishes two different clauses when, really, they’re linked. It is with due consideration for conservation and protection of fish habitat. In the absence of “with due consideration,” the two would be looked at separately and independently — not just the framework for proper management and control of fisheries, and separately with conservation and protection.

We’re combining them, so one is considered in respect of conservation and protection. That was the essence of the discussion at committee.

Senator Woo
[15:37]

Senator Wells, thank you for that answer. It’s correct to say, then, that the original proposed amendment in committee was rejected, in part because of the response given by officials. You have modified the amendment. Of course, at this stage, we do not have any study and certainly no feedback from officials who might have views on this amended version. Would that be a fair statement to make?

Senator Wells
[15:37]

Again, thank you for your question. I’m trying to understand your question. First of all, we don’t have to seek the advice of officials when we consider amendments or any discussion at committee. They are there at our convenience.

With that, I don’t actually remember what they said. I know that this tightens up the bill. It makes it better; it makes this aspect better. One of the things we have to do as senators and as legislators is to make sure we cover the bases so that good laws can’t be challenged in our courts.

In this case, there’s an opening for that to happen. If the purpose is to gum up the process, then the current wording is correct. If the purpose is to make it better and clearer, then the proposed wording would be better.

Hon. Renée Dupuis
[15:38]

Would the Honourable Senator Wells take a question?

Senator Wells
[15:38]

Yes.

Senator Dupuis
[15:39]

You told us that this amendment is slightly different from the one rejected at committee. Could you please share with us the amendment that was rejected?

Senator Wells
[15:39]

Senator Dupuis, I wish my memory was that good. I know that it is slightly different. I think Senator Poirier is well aware of bringing in the exact same wording.

This is different in that it makes what’s proposed better. It draws a link between the proper management and control of fisheries, if a proponent is going to look at that, and puts that under the umbrella of conservation and protection. If looked at separately, there would be challenges.

Senator Dupuis
[15:39]

You referred to legal problems or challenges that could be raised by those opposed to the current wording of section 2.1. I would like to know what challenges you mentioned in your study of this bill. At first glance, I do not believe that the expression “with due consideration for the need” would solve anything. However, could you please speak more about the challenges to the current version of the bill.

Senator Wells
[15:40]

Sure. Of course, it wouldn’t fix the issue, but it certainly fixes the wording of the bill.

I’ll give you an example, Senator Dupuis. Manitoba Hydro suggested that the purpose statement be revised, as I said in my speech.

As the two separate sections are currently stated, we reasonably foresee they will create conflict and needless scope for legal challenges and are contrary to the indications from DFO that the habitat provisions will be applied at fishery or fish population level.

When the two are brought together —

The Hon. the Speaker
[15:41]

I should inform Senator Plett that your conversation is coming through the microphone.

Senator Plett
[15:41]

I apologize, Your Honour.

Senator Tkachuk
[15:41]

For what you’re saying?

Senator Wells
[15:41]

I thought you wanted to answer the question.

Senator Plett
[15:41]

We’re strategizing.

Senator Wells
[15:41]

Yes, we know.

Senator Dupuis, this really tightens it up, making one dependent on the other. Conservation and protection are now dependent on the proper management and control of fisheries. If they’re separate, then a proponent could look at the proper management and control with no regard for conservation and protection. But now they will be linked.

To me, it’s a friendly amendment. It makes entire sense to do it. It doesn’t separate it; in fact, it enhances it.

[15:42]

Would the honourable senator take a question?

Senator Wells
[15:42]

I will.

[15:42]

Senator Wells, my memory is no better than yours, but I was at the committee, as you were, and I actually do recall the conversation because the thrust of Senator Poirier’s amendment is the same as it was before. We did get an answer from the officials. I wonder if this will help refresh your memory, and if you would comment on it.

When asked what they thought of combining it so that one was dependent on the other, as you just described, Mr. Nicholas Winfield, the Director General of Ecosystems Management, Fisheries and Oceans, said:

The proposed amendments in the Fisheries Act —

— that is, the ones to which this amendment would apply —

— are to recognize two distinct purposes of the act. One is to protect fisheries as a resource for extraction and exploitation purposes —

[15:42]

Yes, I’ve asked the question. I want to see whether he will comment on the answers we got from the officials, which were to the effect that, as designed, there were two separate purposes in the act. One was about the fishery and management of it; the other was to protect fisheries as “a public resource for conservation purposes.” That was the answer we got from the officials, as you will now recall.

Can you comment as to why this amendment is considered friendly when the official said that it contradicts the objective of the act?

Senator Wells
[15:44]

I don’t recall specifically him saying that, but I’m sure you’ve read from the transcripts.

On that, Senator Gold, the government sees this purpose clause as giving two distinct purposes to the act: one to protect fisheries as a resource and the second to protect fisheries as a public resource for conservation purposes. The concern is the second purpose, as it’s presently worded, could create an interpretation of protecting individual fish instead of fisheries as a whole.

If we look with due consideration at the proper management and control of fisheries, as in the wording proposed in the amendment, it requires linking conservation and protection to proper management and control. I think that’s a fairly straightforward response.

[15:44]

Thank you for that, Senator Wells. You will recall that the precise problem of worrying about the death or damage of one fish was addressed by amendments that were passed by the committee and around which we heard a great deal. The officials, you will recall as well, spoke to how the practices, policies and directives do very well focus on the importance of taking care of the fishery as a resource for exploitation, but that this was an independent and important objective of the Fisheries Act to which Bill C-68 introduced major amendments.

The Hon. the Speaker
[15:45]

Senator Wells, your time has expired. Are you asking for five more minutes? Besides Senator Gold, Senator Duncan and Senator Pratte wish to ask questions.

Senator Plett
[15:46]

Five minutes.

Senator Wells
[15:46]

I’d like to have five more minutes.

The Hon. the Speaker
[15:46]

Is leave granted, honourable senators?

Senator Wells
[15:46]

Senator Gold, you began your question with “you will recall.” I’m not sure if I do recall, because it was quite a lengthy statement you made.

All I can say is I think it’s a reasonable amendment, combining these, making one, the conservation and protection, dependent on the other, which is the control and management.

Hon. Pat Duncan
[15:46]

I appreciate the opportunity to ask a question of the mover of this amendment.

Bill C-68, the protection of fisheries and the Fisheries Act, has been very strongly supported by the Yukon Salmon Committee. They have lobbied me very strongly to have this passed and receive Royal Assent before the end of the session. I also heard the mover of the amendment address the issue of mining and its impact on fisheries and projects.

I’m not clear in this amendment, because you’ve linked these two, how the Yukon Environmental Socio-economic Assessment process interplays with that. For example, in doing my research on this bill, if a proponent — Placer mining, for example — were suggesting they were going to interrupt fish habitat, they would go first through YESAB, the Yukon Environmental Socio‑economic Assessment Board, which would make recommendations to the Minister of Fisheries regarding the licence. By going through the environmental and socio-economic process, Indigenous concerns are recognized, heritage concerns are recognized and protection of the fish and conservation are recognized. So I’m not clear of the necessity for this amendment, knowing that those processes are already in place.

Senator Wells
[15:48]

Thank you, Senator Duncan. I’m not at all familiar with the environmental process that the Yukon Territory has in that regard. But if your concern is for the conservation and protection, which I assume it is, then linking that with the management and control of fisheries, I could only support that. If you’re compelled by law to look at management and control through a conservation and protection lens, I would assume that would be a beneficial move towards the ecological aspect of the Fisheries Act.

The Hon. the Speaker
[15:49]

I’m sorry, Senator Duncan. We will only have time for one more question, so I’m going to go to Senator Pratte.

Hon. André Pratte
[15:49]

So this will be the last question.

I’m wondering, senator, whether the impact of the amendment is actually more serious than you’ve indicated, because it does give priority clearly to the first purpose, which is the proper management of control of fisheries, over the second purpose, which is conservation and consideration for the need for conservation. It’s even clearer in the French version, where it says:

La présente loi vise à encadrer la gestion et la surveillance judicieuses des pêches en tenant compte des besoins en matière de conservation . . . .

So it’s clear that this amendment changes substantially the purpose clause to give priority to proper management and control of fisheries, isn’t it?

Senator Wells
[15:49]

Thank you for your question. I would disagree with that because with the addition of “with due consideration,” that’s as flexible as it needs to be. It requires it. It’s not a “may”; it’s a “shall.” It must be given due consideration. If you’re looking at the proper management and control, it means there’s a compulsion to look at it with the consideration and not absent of it or as a choice.

The Hon. the Speaker
[15:50]

Senator Wells, your time has expired. I know Senator McCoy would like to ask a question. Are you asking for more time?

Senator Wells
[15:50]

I will take Senator McCoy’s question.

The Hon. the Speaker
[15:50]

Is leave granted, honourable senators?

The Hon. the Speaker
[15:50]

I hear a “no.” I’m sorry, Senator McCoy.

Hon. Elaine McCoy
[15:50]

On debate.

Honourable senators, I want to bring to your attention the report we were all sent yesterday by CPAWS, the Canadian Parks and Wilderness Society. In their annual report they congratulated Canada, and rightly so, moving quickly in four years from 1 per cent of the ocean as marine protected areas to 7 per cent, and recognizing the current goal is 10 per cent, an international goal which the previous government agreed to.

They also indicated they are beginning to advocate for a larger target. They and others like them are now indicating they believe that 30 per cent of the world’s oceans should be protected. That’s going to have a major impact, I should think, on some of the commercial, not to mention recreational, but primarily commercial activities that we enjoy now in our territorial waters.

I would have asked somebody who knows much more about this subject than I, had I had time on the record, if this would help, because it’s going to become a far larger question in the future. But I will pursue the question privately. Thank you very much.

The Hon. the Speaker
[15:52]

Are honourable senators ready for the question?

Hon. Leo Housakos
[15:52]

Your Honour, I would like to take the adjournment of the debate in my name.

The Hon. the Speaker
[15:52]

It was moved by the Honourable Senator Housakos, seconded by the Honourable Senator Frum, that further debate be adjourned until the next sitting of the Senate. Is it your pleasure, honourable senators, to adopt the motion?

The Hon. the Speaker
[15:53]

All those in favour of the motion will please say “yea.”

The Hon. the Speaker
[15:53]

All those opposed to the motion will please say “nay.”

The Hon. the Speaker
[15:53]

In my opinion, the “nays” have it.

The Hon. the Speaker
[15:53]

I see two senators rising. Do we have an agreement on the bell?

Senator Plett
[15:53]

One hour.

The Hon. the Speaker
[15:53]

The vote will take place at 4:53 p.m.

Call in the senators.

Senator Plett
[16:53]

Your Honour, Senator Mitchell, Senator Gold and Senator Downe and I talked and we are okay with withdrawing our adjournment motion. We will continue with debate if everyone agrees.

The Hon. the Speaker
[16:54]

Is it agreed, honourable senators?

The Hon. the Speaker
[16:54]

Resuming debate. Are honourable senators ready for the question?

The Hon. the Speaker
[16:54]

In amendment: It was moved by the Honourable Senator Poirier, seconded by the Honourable Senator Wells, that Bill C-68 be not now read the third time but that it be amended in clause 3 — may I dispense?

The Hon. the Speaker
[16:54]

Is it your pleasure, honourable senators, to adopt the motion?

Senator Campbell
[16:55]

Welcome to the ISG.

The Hon. the Speaker
[16:55]

All those in favour of the motion will please say “yea.”

The Hon. the Speaker
[16:55]

All those opposed to the motion will please say “nay.”

The Hon. the Speaker
[16:55]

In my opinion, the nays have it.

The Hon. the Speaker
[16:55]

I see two senators rising. We have an agreement on a one-hour bell. The vote will take place at 5:55 p.m.

Call in the senators.

The Hon. the Speaker
[18:01]

Honourable senators, it being past 6:00, pursuant to rule 3-3(1), I’m required to leave the chair until 8 p.m. unless there’s an agreement not to see the clock.

Is there agreement?

The Hon. the Speaker
[18:01]

I hear a no. The sitting is suspended until 8 p.m.

The Hon. the Speaker
[20:00]

Resuming debate on Bill C-68, as amended.