Bill C-33 (Historical)

Species at Risk Act

An Act respecting the protection of wildlife species at risk in Canada

[Joshua McNeely, Ikanawtiket Regional Facilitator, Maritime Aboriginal Peoples Council]

Thank you, Mr. Chair, and thank you to the committee for allowing us to come and present on a very important matter to us.

The Maritime Aboriginal Peoples Council, MAPC, is the Maritimes region intergovernmental leaders forum of the New Brunswick Aboriginal Peoples Council, the Native Council of Nova Scotia, and the Native Council of Prince Edward Island, which represent aboriginal peoples who continue on traditional ancestral homelands--i.e., not displaced to Indian Act reserves. These are throughout New Brunswick, Nova Scotia, and Prince Edward Island, respectfully. MAPC and our partner native councils are affiliated nationally through the Congress of Aboriginal Peoples. I believe the committee is going to be hearing from the congress at a later date.

We've been around with the species at risk file since the early days in the nineties with Bill C-65, Bill C-33, and finally to Bill C-5, which was assented to in 2002. MAPC was a part of the first ministers round table on the Species at Risk Act in 2006. Through our Ikanawtiket aboriginal environmental respect organization, MAPC has also participated throughout the six main steps of the SARA process, commenting on numerous species assessments, proposed SARA listings, draft socio-economic impact statements, regulatory impact analysis statements, proposed recovery strategies, and proposed action plans.

We have also been directly involved in several recovery teams, as well as advanced the species at risk file in many various other activities of MAPC and our partner native councils, such as through our Maritime Aboriginal Aquatics Resources Secretariat and our aboriginal communal commercial fishing entities; as a regular topic of conversation when in consultations with federal or provincial governments on numerous natural resource issues, such as access, permits, proposed regulations, proposed management plans, and eco-certifications, to name a few; aboriginal community involvement in species at risk stewardship and education projects; and with our youth, who will be the leaders of the future, and preparing them through a species at risk workshop about how the process we currently have works.

MAPC also follows developments under the United Nations Convention on Biological Diversity with the intent to be more informed partners under the various aspects of the Canadian biodiversity strategy, such as our Species at Risk Act. MAPC follows, as best we can on our own, international and national developments on conservation, sustainable development, access and benefit sharing, and aboriginal people's involvement in these. MAPC promotes the convention and is a 2010 International Year of Biodiversity partner and an International Union for the Conservation of Nature Countdown 2010 partner.

In preparing this brief--I gave you the long version of the brief, it's only eight pages--I kept it very simple. It's from that we drew on this long history with the Species at Risk Act and our wide breadth of knowledge and involvement to highlight the importance of SARA to our Maritimes region aboriginal communities.

I make only a few recommendations on SARA itself, the majority of the recommendations being for a better implementation of SARA. These are centred on broader biodiversity discussions and actions on conservation, sustainable development, access and benefit sharing, and reconciliation with our aboriginal peoples.

As a whole, SARA is actually very well written, we find. But when viewed strictly from a legal point of view, SARA can seem quite daunting. SARA is unique among Canadian legislation, in that it requires rapid Governor in Council action on every species assessed by the independent scientific body, the Committee on the Status of Endangered Wildlife in Canada, and if no decision is made within the short prescribed time, then the act requires the minister to amend the SARA list in accordance with the species assessment.

This puts SARA outside of political timelines, and at the same time prioritizes SARA listing recommendations within the bureaucracy. Both have proven problematic, especially under the uncertainties typically generated in our minority government situation. Canada continues to face court challenges for missing SARA deadlines or leaving out important information in order to meet a SARA deadline.

However, MAPC views the Species at Risk Act as a prime opportunity to learn about our biodiversity and our cumulative human impacts, and foster a new ethic of respect for our natural world. That is what Elder Marcel was talking about: an ethic, a respect. Through several other actions, including reconciliation with aboriginal peoples, Canada can dramatically improve the implementation of the Species at Risk Act.

However, SARA will fail if it is considered to be a stand-alone act or not considered to be in the forefront in all government departments, industry business plans, educational strategies, consumer purchases, and international negotiations. SARA is as much about a beginning for Canadians to understand and respect biodiversity as it is an act to save a portion of that most critically endangered biodiversity.

SARA must be considered and implemented in the context of the Convention on Biological Diversity and Canada’s response, the Canadian biodiversity strategy. SARA can be both a learning tool and a point of entry for Canadians to address broader biodiversity issues, and doing so will lessen our need for a Species at Risk Act.

A meaningful SARA is an act that, through its prohibitions and its tight timelines, forces all levels and all sectors to be:

Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components....Affirming that the conservation of biological diversity is a common concern of humankind,

That's taken right from our convention.

Through its inclusion of aboriginal peoples, industry, academics, all levels of government, and the public, and its flexibility to use new ideas and partnerships to address biodiversity issues, SARA can foster:

a society that lives and develops as part of nature, values the diversity of life, takes no more than can be replenished and leaves to future generations a nurturing and dynamic world, rich in biodiversity

That's taken from our Canadian biodiversity strategy.

With one eye, we see that SARA is only a small part to meet Canada’s commitments under the convention. But with the other eye, we see that SARA, as a strong piece of national legislation integrated into all other manifestations of law, policy, and decision-making, can be a banner under which Canada implements the convention. With both eyes open, we see that SARA is a powerful tool for average Canadians to begin to understand biodiversity and our cumulative impacts, and to work together toward a new and better future.

The question being asked by the standing committee is how do we improve SARA? MAPC maintains that the answer is not in rewriting sections. MAPC respectfully recommends to the standing committee that the best way to improve SARA is to improve the conditions under which SARA is implemented.

For example--I have seven recommendations--first would be the adoption of the Declaration on the Rights of Indigenous Peoples. I was very happy to hear that in the throne speech. I'm happy that Canada is moving in that direction.

Next is to adopt a national policy on sustainable development, not just a handful of departmental strategies on sustainable development but a national policy--a way to rethink how we conduct our business in Canada.

Canada should begin more detailed discussions, and in some cases begin discussions, with aboriginal peoples on access and benefit sharing. This idea of access and benefit sharing of genetic resources and traditional knowledge is one of the main pillars of the Convention on Biological Diversity. Those discussions are very limited so far in Canada, and we border on bio-piracy if we do not sit down and address the issues.

Develop, with other levels of government, national, regional, and local forums to broadly discuss biodiversity with all sectors. One such opportunity in our region would be the eastern Scotian Shelf integrated management plan.

Support an aboriginal review of the Convention on Biological Diversity and directly input into its implementation. This was something that was talked about in our biodiversity strategy. We've yet to see, since 1996, any movement whatsoever on this.

Actively encourage broader participation in the Species at Risk Act at all levels, including in assessments, consultations, socio-economic impact analyses, regulatory impact analysis statements, recovery strategies, and action plans. Aside from needing more aboriginal peoples participation, SARA desperately needs sociologists, marketing professionals, economists, and others who can better relate the public and industry to the Species At Risk Act.

Address the conclusions and recommendations of the 2006 Stratos formative evaluation of federal species at risk programs and the 2005 report of the Commissioner of the Environment and Sustainable Development regarding the Canadian biodiversity strategy.

With regard to the wording of SARA, MAPC maintains and is adamant that SARA must retain section 8.1, regarding the National Aboriginal Council on Species at Risk, and subsection 18(1), regarding the aboriginal traditional knowledge subcommittee of the Committee on the Status of Endangered Wildlife in Canada, as well as sections relevant to the need to consult with aboriginal peoples affected during the various stages of the SARA process.

The breadth and intent of the SARA preamble should be maintained as integral to the implementation of the act.

Thank you very much.

Ontario Fishery Regulations, 1989

[Randy Kamp, Conservative, 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.