Fisheries Committee on March 22nd, 2010

[The Chair, Conservative, Rodney Weston]

We will call the meeting to order.

This morning I'd like to welcome Mr. Swerdfager, director general of fisheries and aquaculture management from DFO.

Mr. Sprout was supposed to be here with us today. I remember the request was made, but he is unable to be here today. He has left open the option of appearing before the committee on another date. We can possibly discuss that under committee business in the last ten minutes of the meeting today if that's acceptable to all members.

Mr. Swerdfager, we allow witnesses to have about a ten-minute presentation if you wish, and then we will proceed to questioning from members. Members are constrained by time limits, and you may end up hearing a little beeping noise when the time has expired for a certain party's line of questioning. Don't be alarmed by it, but it asks you to maybe start wrapping up your comments shortly thereafter.

I generally don't cut off our witnesses. Members understand the purpose of the timeframes. So if you have some opening comments, I'd ask you to proceed at this point in time.

[Trevor Swerdfager, Director General, Fisheries and Aquaculture Management, Aquaculture Management Directorate, Department of Fisheries and Oceans]

Thank you for the opportunity to be here today, Mr. Chair. As you said, my name is Trevor Swerdfager. I am the Director General of the Aquaculture Management Directorate at National Headquarters of the Department of Fisheries and Oceans here in Ottawa. My role in the department is to provide national level strategic guidance to the department's aquaculture programming. I have been leading the department's work to develop a new management regime of aquaculture activities in British Columbia.

My goal here today is to accomplish four things. First, I want to provide the committee with some background regarding the management of aquaculture. Second, I want to comment on the British Columbia Supreme Court decision in Morton. Third, I want to outline the department's work to respond to the decision and, finally, I want to respond to any questions committee members may have.

I'd like to note, though, as a preliminary point, that my remarks are made from the perspective of the Department of Fisheries and Oceans and are not presented today to you as legal opinions or legal advice to the committee. Discussion of the legal aspects of these issues is beyond my expertise and mandate.

To begin, I'll provide you with a bit of context with respect to aquaculture. It's a $2 billion industry in Canada now. It takes place in all ten provinces and in the Yukon, and it employs approximately 16,000 people nationally. It involves the cultivation of finfish, shellfish, and marine plants. Canada produces approximately 105,000 tonnes of farmed salmon annually, half of which is produced in British Columbia, with the remainder coming from New Brunswick, Nova Scotia, and Newfoundland--and not Labrador. Canada produces approximately 30,000 tonnes of mussels, oysters, and clams as well as a small but actually growing annual volume of freshwater species, such as trout. Aquaculture is a matter that is managed by both the federal and provincial governments in Canada. It generally involves management of a resource--fish--and takes place, often, in a federally managed area--oceans. Yet it involves the use of facilities and equipment anchored to the sea floor or other lands that are under provincial jurisdiction. As a result, its governance is shared by federal and provincial governments through a complex web of legislation, regulations, and operational policies.

Today the federal government, via the Fisheries Act, regulates the industry to ensure, among other things, the protection of fish and fish habitat and to control the introduction and transfer of fish and eggs from hatchery facilities to fish farms. Via the Navigable Waters Protection Act, it also issues approval of aquaculture operations affecting navigation, and it conducts environmental impact assessments of such approval decisions. Requirements under the Fisheries Act or the Navigable Waters Protection Act may trigger review under the Canadian Environmental Assessment Act. The federal government also addresses aspects of fish health, food safety, trade, and marketing issues facing the industry.

The provinces generally issue land tenders authorizing aquaculture operations to use the provincial land base, usually the sea floor itself. In so doing, they exercise primary control over where aquaculture takes place within a province. Provinces also regulate ongoing operations of aquaculture facilities through aquaculture licences. They address environmental impacts of those operations, production volumes, species to be produced, animal welfare, and aspects of fish health. In addition, the provinces address worker safety and general business aspects of the sector.

Aquaculture management in British Columbia has changed recently as a result of a British Columbia Supreme Court decision. In 2008, the Southern Area (E) Gillnetters Association, the British Columbia Wilderness Tourism Association, the Pacific Coast Wild Salmon Society, the Fishing Vessel Owners' Association of British Columbia, and Alexandra Morton filed suit in the British Columbia Supreme Court seeking a judicial review of a provincial government decision to renew an aquaculture licence for a farm owned and operated by Marine Harvest Canada. The Government of British Columbia and Marine Harvest were named as respondents in the suit. The Government of Canada was not a party to the litigation.

In February 2009 the British Columbia Supreme Court ruled that finfish aquaculture is a fishery and that the elements of the British Columbia aquaculture regulatory program, which addresses the fisheries aspects of finfish aquaculture, are beyond provincial jurisdiction. As a result, the court struck down the finfish aquaculture waste control regulation and directed that provisions of the British Columbia Fishery Act that deal with aquaculture be read down to apply only to marine plants.

The court also ruled that the provisions of the Farm Practices Protection Act that apply to fisheries aspects of aquaculture are invalid. The court upheld the province's authority to issue leases and tenures for aquaculture operations using these lands. In recognition that a new regulatory regime could not be developed overnight, the court suspended its decision for one year, to February 2010.

The net effect of the decision is that provincial regulations addressing finfish and shellfish operational matters, such as pollution controls, escape prevention, net strength, data management, reporting, and so forth have been struck down and must be replaced by the federal government if the industry is to continue in British Columbia. The Department of Fisheries and Oceans is responding to the decision.

In the months immediately following the release of it, the federal government carefully analyzed the decision and considered its options for responding. Following these deliberations, the Minister of Fisheries and Oceans was given a mandate to establish a new aquaculture management regime in British Columbia, and the department's work to establish this new regime has been proceeding along the following lines.

The government first sought an extension of the court's one-year suspension of its decision in order to afford the federal government sufficient time to develop a new regulatory regime in a manner featuring an appropriate public consultation and completion of the normal regulatory process and the establishment of a program for administering the new regime.

On January 26, 2010, the British Columbia Supreme Court issued a decision to extend its initial deadline to December 18, 2010, at which point the decision will take full effect and the provisions of the provincial regulatory regime will cease to have any effect.

In addition, on October 9, 2009, the Minister of Fisheries and Oceans formally announced the government's intent to develop a new regulation under the Fisheries Act and to consult Canadians regarding its scope and its content. Public consultations were launched in early December, and have focused on a discussion document produced by the department. Consultations are proceeding as we speak and are expected to wrap up within the next couple of weeks.

Information received via the consultations, coupled with the department's internal analysis, will be used to inform the drafting of a new regulation in April and early May, and the proposed regulation will be posted in the Canada Gazette in late spring, and will be available for public review and comment for 60 days.

While the regulation has not yet been drafted, it's expected that it will replace the existing provincial regime, establish a new federal aquaculture licence, and consolidate existing federal regulatory activities. It will likely also contain provisions designed to enhance the transparency of the industry and to ensure that the regulation is effectively enforced.

Finally, we're also developing the necessary program to administer the regulation itself.

Mr. Chairman, that briefly summarizes the work under way to establish a new program in B.C., as well as some of the backgrounds of that work. I realize it's a very quick overview of what is quite a complex issue, and I'd be happy to answer any questions that you or the committee members may have.

[The Chair, Conservative, Rodney Weston]

Thank you very much.

We're going to start off with Mr. Byrne.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Thank you, Mr. Chair.

The Department of Fisheries and Oceans describes the realignment of jurisdiction over aquaculture as “a fundamental redesign of the entire current-day aquaculture regulatory regime”. Budget 2010 identifies no additional funds for the Department of Fisheries and Oceans to meet these challenges. The decision itself was put into abeyance for a period of 12 months, and extended a second time. But the deadline is still, as I understand it, December 2010.

Deep within this fiscal year, you have to make all these changes. You've got a lot of work to do. Are you going to reach these challenges by simply redistributing funds from within the department to do what was formerly the jurisdiction of the Province of B.C.?

[Trevor Swerdfager]

I would answer that there are two components to that.

First, in budget 2008 the department received substantial new resources for the aquaculture program overall. Among the key priorities of that new resource package was regulatory reform. And much of the work required to do the preparation to respond to the Morton decision is being done by staff in the department who are using that initial set of resources we've received.

As part of the minister's mandate to develop a new regulation, budget resources have in fact been assigned to the department. They're incremental to its reference levels. The new program in British Columbia will not be funded as a result of reallocation from other sources, but rather as an addition to the department's resources through a budget in-year decision that was made in October of last year.

So those funds are booked in the fiscal framework, the funds are in place to implement the program, and they are incremental to the resource base of the department.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Let me just make sure; I want to understand this.

New funds were identified in 2008 to implement a national aquaculture strategy or a regulatory strategy. This decision did not come down until February 2009, initially. So what you're saying is the department actually anticipated that the court would move jurisdiction from the province to the feds, so that's why you put the money in place in 2008. Because if you're not saying that, were the original intentions of the 2008 aquaculture strategy and its funding...what's being taken away from that original intent to be able to meet these current-day challenges?

[Trevor Swerdfager]

Mr. Byrne, I apologize, I misspoke. On the budget 2008 figures, I wish we could say we had predicted what was coming in the Morton decision, but that would not be so.

Budget 2008 put in place what we call the sustainable aquaculture program. It has four planks to it, and we could talk about those if you wish. I'd be happy to talk about that. Those are incremental resources to the department's base to deal with aquaculture. Within that, there's a program around regulatory reform. So the people who were retained to advance a regulatory reform agenda in general, as opposed to just for British Columbia, are the people who were using this fiscal year—what I responded to your comments—to actually do the work that we're undertaking now to develop the regulations and so on. Separate and apart from the initial budget allocation is a further increment to the department's A-base specifically to deliver the program in B.C.

So we are not going to do any reallocation from anywhere in the department to the new B.C. aquaculture program. The resources coming into the department starting next fiscal year, two weeks or so from now, will be incremental to the department's base to deliver this program.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

What's the source of those funds? I haven't seen anything either in the main estimates or in the budget documents identifying them. So where is that money coming from?

[Trevor Swerdfager]

I confess I don't understand the intricacies of how they're actually booked into the fiscal framework. They are in there for five years. The Treasury Board submission is not yet finished. It will go forward approximately six or eight weeks from now. The resources are, as I say, incremental to the department's base and are in place.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Presumably if the department has accepted that this is good law, that this is proper constitutional law, the government has accepted that decision, because they're not filing any further appeals and they're not asking this to be raised to the Supreme Court of Canada. They're content with it and they're prepared to implement this in B.C.

Presumably, and obviously, this decision could equally be rendered to the Province of New Brunswick as well. Should an environmental activist organization seek to challenge the jurisdiction of the Province of New Brunswick to regulate salmon aquaculture in the province of New Brunswick, presumably this good law would stick and we would have a similar change in jurisdiction in the province of New Brunswick. Are we prepared for that? Is the national aquaculture strategy preparing for that inevitability?

[Trevor Swerdfager]

I guess at this point we're very much focused on responding to the decision in British Columbia based on the facts in British Columbia and the current circumstance there. If an environmental group or any other organization were to move forward with a suit in other provinces that resulted in a similar result, we'd respond to it at that time. At this point we're certainly aware that what we do in British Columbia has potential implications elsewhere, but we are not at this point planning to develop a “British Columbia model”, if you will, and just plunk that down elsewhere. If the courts take us there, then government will have to respond.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Since we're eight months away from the actual shift in jurisdiction, how many new person-years of employment are you bringing into the department as new resources, new assets, to actually do this? What I'd like to know is this. How many incrementally increasing additional positions are anticipated to come into the DFO B.C. region as a result to implement this? Can you give us an assurance that there are new positions and not reshuffled positions from within the department, not taking someone from fish management and now applying them exclusively to aquaculture? Are you advertising for those positions yet?

[Trevor Swerdfager]

I'll answer your last question first. No, we're not at the stage yet of advertising for those positions.

There will be approximately 50 to 55 new positions established. They will not be moved from column A to column B in an internal reshuffle. They will be incremental over and above....

The location of those positions has not been determined yet, other than that the vast majority of them, all but maybe two or three, will be in British Columbia. This program will not live here in the national capital region. There will be more transaction time associated with B.C. issues here in Ottawa. We'll probably have one or two people based in the national capital region, but the rest of the program will live in British Columbia, probably on Vancouver Island. Again, we haven't got down to booking office space and so on.

Quite frankly, at this point our focus has been let's get the court extension, let's get the regulation up and running, do the consultations and so on. Designing the program is moving in parallel, but we're not yet in the position where we can expect to advertise for positions. We expect--touch wood--that would occur sometime in mid-summer.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

We understand that 50 to 55 incremental new positions will be created within the DFO B.C. region for this decision. How many people would have done the job for the province? It seems to me this is a pretty intense inspection regime. The regulatory regime is just as much about inspection as it is about actually formulating the regulations. What would be the complement that did the job formerly for the province?

[Trevor Swerdfager]

It's 46 people. There are three in the provincial Ministry of Environment to do the ministry's inspection duties; and the province has approximately 43 people in the Ministry of Agriculture and Lands, seven of whom are in Victoria and the remainder are in Comox, Courtenay, Tofino, and two, I believe, in Bamfield. I may be wrong on that final location.

In our program, essentially we said that it costs x number of people to deliver the regulatory regime in British Columbia. We did something of a forensic accounting. We went through their books. We had people go out there, literally from door-to-door, asking, “What do you do, sir or ma'am?” and so on. So we had a very good understanding of the size of that program.

Essentially we said that we would replace—not just simply replicate but replace—that suite of functions that are undertaken by the province to deliver their regime, at least the part that has been struck down.

The province retained some significant responsibilities around aquaculture, for leases and so on, so their staff complement will not go from 46 people to zero. I don't know the number by which they will reduce.

In essence, we have said that it will take this many units of labour, equipment, office space, and so on to replace that program, and we've designed ours around that scale. We have secured resources to augment the program in two areas: one with respect to data management, where we feel that the province's ability to store, collect, and manage their data is not adequate to the management task that we foresee; and two, to put some substantial resources into the whole area of compliance and enforcement. So it will be slightly incremental to their program base.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

This decision dramatically reshuffles the deck. What do you anticipate will be the biggest public policy challenge that now is thrust upon the federal government, DFO, in relation to aquaculture?

Trevor, we know there are many forces there that support aquaculture, and there are many forces there that don't support salmonid cage culture in the maritime environment. What significant new challenge does this create for you from public policy and public communications perspective? What does this mean for you on the ground?

[Trevor Swerdfager]

I'd be hard pressed, frankly, to pick a single biggest challenge, because the number of issues for us to consider is so large. The initial challenge for the department is to put in place a regulation, and that's no small task. The public consultations that we have engaged in have been heavily attended. They have been very emotional and very dynamic. We have had not quite 20, but a good number of sessions, and several of them had over 200 people at them. So there is a lot of energy around this issue in British Columbia.

Certainly as we move forward in terms of the management of the industry in B.C., collectively, not just DFO but ourselves, the province, and the industry have work to do to improve environmental performance in the industry. The industry is on a good track in that regard; we need to just continue along that line.

Certainly when you look at the communications environment on aquaculture in British Columbia, there is plenty of opportunity to provide greater clarity to the debate and a firmer and more pointed grasp of the science of the issue and trying to introduce much more of that. I think that will be among our key challenges.

We're hoping that a big part of the solution to that will be to make the industry far more transparent than it is today. As I mentioned earlier, the regulation is not written, so I can't say the regulation will say blah, blah, blah, but our expectation is that among the things it will do is make the information around the management of the industry far more publicly available and much, much more transparent. We think that will, among other things, ground the debate in reality far more than it is today.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Swerdfager.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

On a point of order, Mr. Chair, I didn't want to interrupt the very excellent line of questioning—I thought it was really interesting—but our witness did say at the very beginning that he didn't want to be put in the awkward position of making interpretations of the law.

Mr. Byrne didn't go there, but there was some movement towards what would happen if it came up in another province. I just want to make sure that our witness isn't put in an awkward position of having to make legal extrapolations that would be very difficult for even a constitutional lawyer to do.

Thank you.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Weston.

Monsieur Blais.

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

Good afternoon, Mr. Swerdfager. In a way, you have replaced or succeeded Yves Bastien. Do you have the same responsibilities?

[Trevor Swerdfager]

Yes, I am the “new Yves Bastien“. From time to time, I use another term, but that is fine.

Is the simultaneous interpretation working?

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

It is on number 2.

[Trevor Swerdfager]

I have it now. Merci.

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

Thank you very much. Of course, we will be adding a few seconds because of the technical problem and because of the point of order.

My first question is because of who I am, a member of the Bloc Québécois, and therefore, from Quebec. As to the involvement of the federal government, I know very well that the reality of aquaculture in Quebec is different from the situation in British Columbia.

Keeping in mind your answers to my colleague's questions, I would like to better understand the options. I do not think we could be in the same situation as New Brunswick, but I would still like you to clarify the Quebec situation in relation to what is happening in British Columbia and to what could happen in New Brunswick.