Fisheries Committee on Nov. 20th, 2012

[Kevin Stringer]

That's the difference between the 8,000 projects...right now, we still review 8,000.

[Lawrence MacAulay, Liberal, Cardigan, PE]

I appreciate that. I think that streamlined it more, and it's very efficient.

Anyhow, thank you very much.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. MacAulay.

Mr. Chisholm.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Thank you, Mr. Chairman.

I want to go back a little bit to the whole question of the Environmental Damages Fund and the definition of serious harm. Again, I appreciate your assurance that we're going to get there in terms of clarity. This was certainly raised by our witnesses a couple of weeks ago, and by others. How many fish have to be destroyed to constitute serious harm or death to fish? What about the whole question of cumulative effects? How are those taken into account? Again, what are the clear legal and scientific underpinnings?

There's the definition of serious harm to get a conviction in court. But then there are all those people, all those bodies. Some of them are being consolidated in some offices, but not in P.E.I. There's been a huge reduction, and that's going to influence the ability to get convictions and the ability to enforce this act. That leads to my concern. I refer you to evidence we heard here a couple of weeks ago. In 2000, in the Pacific region, there were 1,800 habitat-related investigations, which led to 49 convictions. By 2010, the number of investigations was down to only 300, and the convictions under habitat provisions were down to one.

The science is essential. It's important. Clarity is essential in the rules and regulations. We have to have the bodies, the people on the ground, to enforce what it is we come up with in terms of regulations and in terms of backing up the science. Would you not agree?

[Kevin Stringer]

I would make a couple of comments. First, it is absolutely the case that what we have in Bill C-38, which has already passed, and in Bill C-45 is more complex than it was. It is more complex, because previously, section 32 said you can't kill fish by means other than fishing, period, unless the minister authorizes it. Section 35 said that you can't harmfully alter, destroy, or disrupt habitat, period, unless the minister authorizes it.

Is it easy? It's not easy, but it's straightforward in terms of being able to address.... The new regime is more complex, but it is what we've been trying to do with policy since 1986. If you look at—

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Stringer, I understand that. I've followed that history of the policy development and the consultations, the input of folks, and the need to clarify some of those issues. That's why, with the added complexity providing flexibility, it's so important to have people on the ground who can make sure that it's going to work. I can't see how it would do it. Either it will create unwieldy confusion or proponents are going to be able to run roughshod over the protections provided in the legislation.

[Kevin Stringer]

I'd say a couple of things in addition to what I've said. David has already spoken to the issue of the number of people on the ground. What I would also add, though, is that in terms of the legislative framework we now have, we now have regulatory tools to provide that clarity. We knew when we were coming up with these concepts that we'd certainly deal with the science folks, but also with others. This is what we're seeking to protect, and it is more complex. We've given ourselves the authority, given the minister the authority, to establish regulatory standards.

With respect to fish passage, here's what we will require. With respect to—

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

I'm sorry to interrupt you. I'm running out of time.

We had the conversation a few minutes ago about how difficult it is to clarify the regulations. You're trying to get the scientific data to discuss the implications in order to guide the regulations and the development of those regulations. That hasn't yet been done. There's been inadequate, if any, consultation. There has certainly not been enough consultation with the people directly affected.

I appreciate what you're saying about the will and the aspirations. But it's about getting there. I'm really concerned that in the final analysis we might end up with what you are trying to achieve but that the process we've followed will create an undue amount of confusion, and your ability, as a department, to enforce it and maintain it and protect fish and the fishery is going to be drastically affected in a negative way. That's obviously my concern.

[Kevin Stringer]

It's why we've provided the regulatory tools that we have. There is a transition period, which is a challenge, no question. That's partly what the calculation is. Do you implement it with guidance and direction, or do you put at least the first couple of regulations in place to ensure that you've got the regulatory clarity? Our view is that there is sufficient regulatory clarity in the legislation to be able to enforce it with guidance, with direction to our staff. We are hearing from stakeholders who are concerned about that. We need to address that.

[The Chair, Conservative, Rodney Weston]

Mr. Chisholm—

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

On that point, just one real quick—

[The Chair, Conservative, Rodney Weston]

No. We've gone over by a considerable amount.

Thank you very much.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, and welcome to the witnesses.

By the way, I sympathize with Mr. Chisholm. I find these time limits are very difficult.

First of all, I have learned a lot from your presentation today. I appreciate it.

I want to start with something and make sure I understand it correctly.

Mr. Stuart Wuttke, the general counsel of the Assembly of First Nations, on November 8 made a statement, which the Library of Parliament has reported for us as follows, with regard to clause 173:

...the prohibition against seines, nets, weirs, or other fish appliances that obstruct “more than two thirds of the width of any river or stream or more than one third of the width of the main channel at low tide of any tidal stream”, may result in the infringement of first nation rights.

I was quite concerned about that because I thought he was saying that the amendment in clause 173 might result in the infringement of first nations rights. Now what I've heard you say this morning is that in fact the prohibition against blocking more than two-thirds of a river has been in place since the 1920s. Is that correct? When I heard you say that, I looked it up. Section 26 of the act before the 2012 amendments contains exactly that prohibition.

I have to conclude that either Mr. Wuttke didn't know about that or else maybe he didn't realize that we were here to just talk about what the amendment in clause 173 was doing. But I found his comment to be very misleading in light of what you've opened my eyes to this morning. I want to thank you for that.

I want to pursue it a little further. As a non-fisheries person, I've been trying to understand the complexities of this. I think I'm getting it now. First of all, the amendment in clause 173 seems to combine the previous prohibition in section 26, against blocking one-third, with section 29, against unduly obstructing the passage of fish. Now we have combined in section 29 both of those ideas. Is that fair enough to say for a start? I know it does other things too.

[Kevin Stringer]

Yes. Let me just provide a very brief explanation of why we've got changes in 176.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Clauses 173 and 176.

[Kevin Stringer]

When Bill C-38 was under way, we heard from some stakeholders. I think I mentioned this last time. The Hydropower Association and the Electricity Association were concerned because the new section 20, which is the old 26, said that you can't obstruct more than two-thirds of the water course or the river. You can't do that. They said they were concerned that there wasn't a clear authorization scheme. We said that the authorization scheme is in section 35, this prohibition thing, serious harm, etc. They said it's not clear. We said, why don't we remove that section. Our fish manager said, but we use that when somebody puts a net across the river. So we kept the fish management pieces and made it into its own section, section 29.

It's now clear that the authorization scheme for putting logs in the river or a barrier or a dam is section 35 and not the old 20. We just removed those sections but kept it for fish management.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Exactly.

That's the other point I discerned. We are now limiting those prohibitions to fish management, but we are still keeping, for non-fish management purposes, section 35, prohibition against harmful disruption of habitat; section 36, prohibition against putting deleterious substances into rivers; and section 32, prohibition against killing fish. Those things will all apply generally, but the prohibition against fishing appliances that disrupt fish passage or more than two-thirds or three-quarters of a river will apply to fishing management and appliances.

Is that correct?

[Kevin Stringer]

That is correct.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

In addition to that, these amendments also make explicit that the fishing appliances include seines rather than just logs. You've been a little more specific about that.

Have I correctly apprised myself of what the amendment in clause 173 is about?

[Kevin Stringer]

You have correctly divined what the purpose behind it was. It is a challenge to figure out and you've certainly done it. The objective is to clarify that the prohibition for dams and other types of obstruction is section 35. It was confusing because it was in section 20.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

That's what I thought, but I wanted to be sure. I must confess, I was misled by Mr. Wuttke's evidence originally.

[The Chair, Conservative, Rodney Weston]

Thank you very much, Mr. Woodworth.

I want to take this opportunity to thank our witnesses for appearing before our committee a second time and for clarifying some of the points that were raised in further testimony. I certainly appreciate your taking time out of your busy schedules to be here this morning.

This committee will now take a brief recess to move in camera to go further on this report.

[Proceedings continue in camera]