House of Commons Hansard #115 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was tax.

Topics

1 p.m.

Liberal

The Speaker Peter Milliken

It being Wednesday, we will now have the singing of the national anthem led by the hon. member for Yukon.

[Members sang the national anthem]

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

February 21st, 2007 / 1 p.m.

Conservative

Rob Nicholson Niagara Falls, ON

moved:

That, given the importance of the fisheries in Ontario and the introduction of Bill C-45, An Act respecting the sustainable development of Canada's seacoast and inland fisheries, by the Minister of Fisheries and Oceans, which addresses the concerns of the Standing Joint Committee on Scrutiny of Regulations, and pursuant to Standing Order 124 and subsection 19.1(5) of the Statutory Instruments Act, the resolution of the Standing Joint Committee on Scrutiny of Regulations providing that subsection 36(2) of the Ontario Fishery Regulations, 1989, be revoked, presented to the House on February 7, 2007, in its Fourth Report (Report No. 78 — Disallowance), not be adopted and that the matter be referred back to the Standing Joint Committee on Scrutiny of Regulations for further review.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1 p.m.

Liberal

Paul Szabo Mississauga South, ON

Mr. Speaker, I rise on a point of order. The motion reads that Bill C-45 in fact addresses the concerns of the standing joint committee.

I would like to advise the House that today the Fisheries and Oceans department officials have confirmed that in fact Bill C-45 does not satisfy the concerns of the Standing Joint Committee on Scrutiny of Regulations, and accordingly, if the motion is not factually correct, the motion should be ruled out of order.

Mr. Speaker, should you rule that this is simply a matter of debate, I would then ask the government to immediately contact and confirm with Fisheries and Oceans officials that in fact Bill C-45 does not address the concerns raised by the scrutiny and regulations committee, that the motion be withdrawn, and that the government undertake to come forward with an appropriate bill to deal with this matter with the existing Fisheries Act.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1 p.m.

Liberal

The Speaker Peter Milliken

I do not think it is a matter for the Chair to decide whether Bill C-45 addresses the concerns of the standing joint committee. That is a matter for the House to decide. The minister has moved a motion saying so. The Chair does not decide on the truth or otherwise of motions, and I do not think I am going to get into that, despite the argument presented by the hon. member for Mississauga South.

I do think it is a matter for debate, and as he knows, this debate is a special one held under specific provisions with respect to the report from the committee. The committee is always free to submit another report if the hon. member does not like the result that is obtained in the House as a result of the decision on the motion, and of course the motion can be accepted or rejected. It is a matter for the House to decide and I will leave it to the House to do so after a debate on the matter, which we will proceed with now.

Debate on the motion, the hon. member for Pitt Meadows—Maple Ridge—Mission.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:05 p.m.

Pitt Meadows—Maple Ridge—Mission
B.C.

Conservative

Randy Kamp Parliamentary Secretary to the Minister of Fisheries and Oceans

Mr. Speaker, I am pleased to respond to the report tabled by the Standing Joint Committee on Scrutiny of Regulations.

First, let me thank the committee for its diligence on behalf of Canadians in overseeing the regulations that govern this country. I have served on that committee. I know that although the work can be tedious at times, it is very important.

Earlier this month the standing joint committee tabled a report that included a resolution to disallow subsection 36(2) of the Ontario fishery regulations under the Fisheries Act. The subsection in question states that:

No holder of a commercial fishing licence shall violate any of the terms or conditions of the licence.

The committee's view is that the Fisheries Act does not provide the authority to set out in a regulation the requirement to comply with licence conditions. The government is of the view that it does.

This has been a long standing issue between the government and the standing joint committee. Governments, long before ours, have always maintained that subsection 36(2) falls within the regulation making authority under section 43 of the Fisheries Act, that it is legally sound and that it is supported by court decisions.

Section 43 of the Fisheries Act is broad enough to include the requirement to comply with licence conditions. Among other things, section 43 provides the authority to make regulations: “for the proper management and control of the sea-coast and inland fisheries”.

It also provides authority to make regulations:

(b) respecting the conservation and protection of fish;

(f) respecting the issue, suspension and cancellation of licences and leases;

(g) respecting the terms and conditions under which a licence and lease may be issued;

The Ontario fishery regulations provide clear guidance as to the conditions that could be attached to a commercial fishing licence in that province. Similar regulations exist for other fisheries. These conditions include the species, size and quantity of fish that may be taken, where and when fishing can occur, and the type of gear that may be used.

Fishing licences, their attached conditions and the requirement to comply with them, are fundamental to the proper management and control of the fishery. They are crucial to protecting and conserving our fishery resources.

In fact, in a fairly recent development, one of which the committee may not have been aware, Ontario is using licence conditions to address a significant threat to its $2.3 billion recreational fishery. The province has placed certain restrictions on the movement of bait fish to control the spread of viral hemorrhagic septicemia. VHS has been implicated in killing a large number of sport fish in the province.

Clearly, compliance with these conditions as required by subsection 36(2) is critical for the sake of Ontario's sport fishing industry.

Let me add that individuals who participate in the commercial fishery know they must comply with licence conditions or face consequences. The government has always argued that in addition to the authority to suspend or cancel licences, Parliament did make it an offence to contravene the Fisheries Act or regulations under it in section 78 of the act.

The courts have agreed with the government's position. They have ruled that regulations made under the Fisheries Act that require compliance with licence conditions fall within the scope of the act's regulation-making authority, and they found that contravening this requirement is an offence under section 78 of the act.

So, from a legal perspective, in my opinion, subsection 36(2) of the Ontario fishery regulations is on firm footing.

However, I would be the first to say that we are not asking for the status quo. We believe that in most cases the potential for jail time is not an appropriate penalty for such contraventions. Fortunately, the courts have imposed fines in cases involving contravention of subsection 36(2) rather than imprisonment, but I do agree that greater clarity could be provided for the requirement to comply with licence conditions.

We are doing something about that. It comes to us in Bill C-45, which the minister tabled in December. The bill resolves the standing joint committee's regulatory concern with subsection 36(2) and does much more.

Revoking subsection 36(2) is not the right course of action, given that a bill has been tabled that addresses the committee's concern. That is why the minister filed the motion before us today to oppose the committee's resolution for disallowance.

Disallowing subsection 36(2) would create a serious legal gap in Ontario's ability to enforce licence conditions on some 500 commercial fishing licences and about 1,400 commercial bait fish licences.

Furthermore, the standing joint committee has indicated that if its resolution to disallow is supported, the committee would expect similar provisions in other fisheries regulations to be revoked. This would create an enforcement vacuum that would threaten these natural resources in virtually all of Canada's fisheries. During this vacuum, all that would be left to punish lack of compliance with license conditions would be suspension or cancellation of licenses, and the courts have made that process very difficult indeed.

Disallowing this regulation would then compel our government to draw up a quick fix bill to plug this regulatory gap and then get it passed through both Houses. This is something that has not worked on no less than three occasions in the past, Bill C-33 in 2003; Bill C-43 in 2004, which died on the order paper; as did Bill C-52 in 2005.

In fact, I did not support Bill C-52 as a solution when I sat on the other side of the House because I believed then, as I do now, that we have much more to offer Canada's fishers.

As tempting as it may be to try to pass a simpler minor amendment to deal with the committee's issue, we owe Canadians that and much more. We owe them a renewed Fisheries Act, one that would resolve this regulatory issue and provide for more collaborative, accountable and transparent fisheries management, which is exactly what Bill C-45 does. It resolves the standing joint committee's concern with subsection 36(2) of the Ontario fishery regulations by clarifying that compliance with fishing license conditions is a requirement of the act.

As I mentioned, the new Fisheries Act does much more. It puts forth a new licensing framework and an administrative sanctioning regime for most breaches of license conditions instead of relying on the courts. It introduces an arm's-length fisheries tribunal to handle violations of the act or its regulations.

The standing joint committee has also expressed concern that because license conditions are administrative decisions, non-compliance with them should not carry potential jail time for violators. Bill C-45 address this concern.

In the sanctions regime, as mandated in the new act, penalties for contravening the requirement to comply with license conditions would no longer include the possibility of jail time. The bill also responds to issues the committee has raised in the past with variation orders, and I will not get into that at this time.

The new Fisheries Act also includes measures for shared stewardship of our fisheries. It allows those with a stake in the fishery to have a say and take a hand in how the resource is managed.

Bill C-45 would also put in place a clearer and more accountable framework for stable access to the fishery and allocation of fish shares.

The new act also clearly spells out the considerations that the minister must take into account when making licensing and allocation decisions, and those which he or she may choose to consider. In other words, all the cards are now on the table.

Protecting fish habitat and preventing pollution are inextricably linked to sound stewardship of our fishery resources. Bill C-45 would compel everyone who administers the act to consider principles of sustainable development, and take an ecosystems-based and precautionary approach to conserving and protecting fish and habitat.

Speaking of principles, passage of Bill C-45 would, for the first time, set out management principles for fisheries and fish habitat right in the act.

In short, Bill C-45 would remedy the standing joint committee's immediate concern with subsection 36(2) of the Ontario fishery regulations and it does so much more on behalf of Canadians who depend on the fishery.

We have an opportunity here to make a lasting difference in better managing our fisheries and oceans by providing Canadians with a modern and more effective Fisheries Act, an act that would help deliver the ultimate sustainable value to the public from Canada's fish and ocean resources for generations to come.

I believe that concentrating the House's efforts on passing Bill C-45 is the right approach. I oppose disallowance of subsection 36(2) of the Ontario fishery regulations and will be voting to return the report to the committee so it can ensure that its concerns are addressed in Bill C-45. I encourage all members to do likewise.

I again thank the committee for its thorough scrutiny of this country's regulations. I think its work in respect to subsection 36(2) of the Ontario fishery regulations highlights the importance of passing Bill C-45 through Parliament as quickly as possible. I hope members of the House will agree that the time for change in the fishery has come.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:15 p.m.

Liberal

Paul Szabo Mississauga South, ON

Mr. Speaker, I am rising as the Commons co-chair of the Standing Joint Committee on Scrutiny of Regulations. The committee has representation from all political parties. It has eminent members on it who have more than 10 years of experience. They have been there from the beginning. Since 1989 some of the Commons and Senate members have watched this file and have provided the committee with guidance.

The member should also know that the Standing Joint Committee on the Scrutiny of Regulations also has a team of legal counsel to guide us, to do the research and to provide us with the assistance that we need to do an appropriate review as authorized by Parliament.

I want to remind the House that the role of the Standing Joint Committee on Scrutiny of Regulations is to ensure that the regulations to any act of Parliament are enabled in the legislation. In other words, if the legislation does not permit it, a regulation cannot take the place. It cannot legislate. If there is a regulation that is not enabled by the act itself, that regulation is illegal and inoperative and will not stand up in the courts.

That is the problem. The intent is to do indirectly what cannot be done directly, namely to impose criminal liability for the breach of a term or condition of a licence which is not legislation.

In adopting the fourth report, the standing committee has concluded that the provision not only lacks legal authority, but also trespasses unduly on rights and liberties, represents an unusual and an unexpected use of the enabling authority and makes the rights and liberties of a person unduly dependent upon administrative discretion.

Regulations imposing sanctions or creating offences must be authorized by Parliament expressly or by necessary implication. No where in the Fisheries Act is the making of regulations creating offences expressly authorized.

There is a fundamental distinction in law between the exercise of legislative power and the exercise of administrative power. Under our system of law and government it is generally accepted that criminal sanctions attach only to the contraventions of the requirement that is established by legislation. A licence, however, is an administrative document. It is not legislation.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:15 p.m.

Some hon. members

Oh, oh!

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:15 p.m.

NDP

The Deputy Speaker Bill Blaikie

Order, please. There is a lot of conversation in the House that does get in the way of things. If people want to have meetings, please have them outside. That is why we have lobbies.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:15 p.m.

Conservative

Gerald Keddy South Shore—St. Margaret's, NS

Mr. Speaker, I rise on a point of order. Are we speaking to the bill, to the gist, to the thrust of Bill C-45, or are we speaking on debate about the ability of the bill to come to the House? My understanding is we are speaking to the bill.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:15 p.m.

NDP

The Deputy Speaker Bill Blaikie

The hon. member is free to debate whether he thinks the bill should be before the House. That is quite in order.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:15 p.m.

Liberal

Paul Szabo Mississauga South, ON

Mr. Speaker, we are debating the motion tabled by the government.

In short, the exercise of an administrative discretion by individual officials is enforced as if it were law.

The government has agreed to amend the Fisheries Act, and indeed tabled Bill C-45. However, as I mentioned in my point of order at the beginning of debate, fisheries officials have confirmed that Bill C-45 does not address the problem, the illegality of subsection 36(2) of the Ontario fisheries regulations, because it empowers federal officials. It does not impact provincial officials.

The problem raised by the Standing Joint Committee on the Scrutiny of Regulations is that we are talking about provincial officials. The motion is factually incorrect. I believe it is out of order.

However, if the members want to argue—

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:20 p.m.

Conservative

Loyola Hearn St. John's South—Mount Pearl, NL

Mr. Speaker, I rise on a point of order. I cannot let this stand on the record because the member is not being factual. The department of fisheries officials have been clear. They are out in the lobby, if he wants to talk to them. It is quite clear the new act will address this. It is clear in the act, if he would read it. It is clear for anybody who wants to pursue it.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:20 p.m.

NDP

The Deputy Speaker Bill Blaikie

I am sure the minister of fisheries and the member for Mississauga South can continue this debate as they each take their turn, but it is in fact a matter of debate and not a point of order.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:20 p.m.

Liberal

Paul Szabo Mississauga South, ON

Mr. Speaker, contrary to what has been said by federal and provincial authorities, while the disallowance of subsection 36(2) may change the manner of enforcing complaints with terms and conditions of licences, it would not affect the ability to impose them.

The authority to issue licences and impose terms and conditions in the licence would remain, as would the ability to enforce them through licence suspensions or cancellations. The imposition of a fine or jail term for breach of a licence condition, as opposed to suspending or cancelling the same licence, has nothing to do with the sustainability of the fishery resource or conservation.

It is not unusual for licensing schemes to be established by federal legislation under which suspension or cancellation is the sole means of enforcing licences. While the enactment of new fisheries legislation may resolve this concern, given the substantive nature of the objection as well as the similar section of other regulations, the committee considers a resolution of this issue should not be delayed any further. It has been going on since 1989.

It is not acceptable that the requirements a citizen must obey upon pain of criminal prosecution be determined by a single official who decides what will or will not include the terms and conditions of a licence. That is the issue.

If I can put on my other hat as a member of Parliament and someone who has deep respect for this place, I believe there is time. This matter is very straightforward. The government could bring forward another piece of legislation to put the enabling clause in the existing Fisheries Act. It could come to the House and I am sure it would get unanimous consent to pass all stages at one sitting. The government has the tools to do it.

Bill C-45, even if it is amended to take into account provincial licensing officials, will not happen for a long period of time. In fact, parties are already clamouring for Bill C-45 to be referred to committee before second reading because they have so many problems with it.

After all this time and delay, it is clear the tools are available to the Department of Fisheries and Oceans to address this item, which has been illegal under the laws of Canada because the regulation is not enabled in the legislation. That is the legal opinion of the lawyers from the Parliament of Canada who have been assigned to our committee.

The committee's fourth report, which calls for this disallowance, was unanimously approved. This matter must be dealt with because the regulation is illegal. That is our role.

I believe the Standing Joint Committee on the Scrutiny of Regulations has done its job. It has shown good faith and given the department every opportunity to correct this error, this illegality. The government now shows that it wants more time. We will have another bill which will totally rewrite the Fisheries Act. It will take many months if not years before the bill ever gets through all the stages of the legislative process. We will be back again asking for the same disallowance.

Now is the time. I ask particularly the Bloc Québécois to consider the concerns that have been raised with regard to whether Bill C-45 addresses this matter. It is the opinion of our officials and of the officials of fisheries that Bill C-45 does not address what the committee has brought to the House. I am pleased the committee has taken this important step again.

It is the sixth time this matter has come before Parliament to be resolved. The Department of Fisheries and Oceans has not shown good faith over all this period of time. It is time for the House of Commons to vote on this matter to ensure that if it does not take the time to fix it now, the regulation be disallowed.

Ontario Fishery Regulations, 1989
Delegated Legislation
Orders of the Day

1:25 p.m.

Bloc

Raynald Blais Gaspésie—Îles-de-la-Madeleine, QC

Mr. Speaker, I am pleased to rise to speak to this matter. I should perhaps summarize the ideas expressed to this point since we are going in different directions. We are presently debating the delegated legislation and discussing Bill C-45 and fisheries management in general.

In its 4th report, the Standing Joint Committee on the Scrutiny of Regulations asked that a part of the Ontario Fishery Regulations be revoked. Although I do not disagree entirely, the committee's conclusions state that the regulation adopted exceeds the authority set out in the act. That is true; however, we must look at the overall picture. A legal void is unacceptable. Consequently, we will support the government's motion to deal with this situation.

A remedy has been presented. However, I feel that the remedy threatens to give rise to more problems than the solution presently provided. At some point we will find ourselves in a legal vacuum.

Although I am not familiar with the Great Lakes fisheries, I do know that they are an immense expanse of water with commercial fishing activities and, primarily, recreational or sport fishing.

I do not feel it would be responsible to say no and just cause problems for the current government on the pretext that there is a problem. There is a legal problem. We have a duty to act responsibly.

That is what the Bloc Québécois has always done and will continue to do. The Bloc will therefore support the motion we are debating.

Given what has been said by the parliamentary secretary, the minister and my Liberal colleague, I do not believe that Bill C-45 has solutions to all the problems with fisheries management.

In my opinion, here again, we have to act responsibly and describe what is really going on. I do not believe that, in its current form, Bill C-45 is really the answer. That is why we are asking to amend the bill and hold public consultations. By meeting with people, stakeholders, fishers from across Canada and Quebec, we will have a more complete picture of the problems with fisheries management.

I would therefore invite the minister to agree to have the committee look at Bill C-45, not to completely change it, but to improve it in order to address the various crises.

The fishing season is about to begin in Quebec and other parts of Atlantic Canada. There are questions that need answers. I believe that, once amended or improved, Bill C-45 will provide some answers. At most, we are talking about next year. We are not talking about this year.

This year, the minister has responsibilities with regard to the season that will be starting for shrimp, crab, lobster and groundfish fishers. He currently has a responsibility regarding other species.

Unfortunately, in my opinion, the government is taking too much time to act. I hope that, in the next few hours, the minister will be able to make announcements that will give shrimp fishers, for example, a good idea of what to expect. Shrimpers from New Brunswick and Quebec were here yesterday. I believe that they will be meeting with the minister today. The message is simple.

Last year, I delivered the very same message about how important it is to be able to take serious, meaningful action to help relieve the burden on shrimp boat operators everywhere, and especially in Quebec. This is basically a matter of survival for fishers, for fish plant workers and for coastal communities.

This all leads up to our position. This is about being as responsible and rigorous as always. We realize that the Standing Committee on Procedure and House Affairs came to a certain conclusion. We might agree with that conclusion, but in the end, we do not believe it is the best way to solve the problem. We do not expect to find an ideal solution, but this is not the kind of solution we are looking for.

I would go so far as to say that the proposed cure could be worse than the disease. We would end up in a legal void. Fishers would automatically find themselves in situations where they might commit offences. I do not think they would make that kind of mistake, but offences may occur.

Nevertheless, we would end up in a legal void. That means that the responsible thing to do would be to support the motion before us.

Today, the government has put forward an extraordinary measure that we support. That said, we must not make a bad habit of this over the years.

It seems to me that the new Fisheries Act, which is to be passed shortly, should improve the situation. Nevertheless I would once again urge the minister—I am told he is listening—to accept the invitation of the opposition—the New Democratic Party, the Bloc Québécois, and the Liberal Party—to send it all to the Standing Committee on Fisheries and Oceans immediately, not to drag it out, but to act responsibly and broaden the scope.

I believe this situation calls for everyone's cooperation. If we all row together, we will reach our destination and produce good results. I would urge the minister to give it serious consideration.