Bill C-45 (Historical)

Fisheries Act, 2007

An Act respecting the sustainable development of Canada's seacoast and inland fisheries

This enactment repeals and replaces the Fisheries Act. It seeks to provide for the sustainable development of Canadian fisheries and fish habitat in collaboration with fishers, the provinces, aboriginal groups and other Canadians.
It sets out management principles governing the exercise of responsibilities under the Act, and provides tools and authorities to improve the ability of the Minister of Fisheries and Oceans to properly manage fisheries and fish habitat.
Part 1 establishes a regime for the proper management and control of fisheries. It allows the Minister to stabilize access and allocation in fisheries, issue fishing licences, conclude agreements with groups that participate in a fishery and issue fisheries management orders.
Part 2 provides for the conservation and protection of fish and fish habitat.
Part 3 provides for the control and management of aquatic invasive species.
Part 4 provides the necessary powers to administer and enforce the Act.
Part 5 establishes the Canada Fisheries Tribunal and sets out a system of licence sanctions for fisheries violations to be administered by that Tribunal, which will also consider appeals of licence decisions.
Part 6 provides for regulations and other related matters required for the administration of the Act.
Part 7 sets out transitional provisions, consequential amendments and coordinating amendments and repeals certain other Acts.

Fisheries Act, 2007

[Randy Kamp, Conservative, Parliamentary Secretary to the Minister of Fisheries and Oceans]

Mr. Speaker, my colleague and I continue to disagree on some issues, particularly what the committee can do with this piece of legislation. Obviously, it has to do with the scope and principles of the bill. The scope refers to the schemes or mechanisms by which the principle, purpose or objective of the bill is realized. We think that significant changes can be made to those mechanisms.

We agree on the principle of the bill, that it has to do with providing for a sustainable fishery, but the member has been around a fairly long time, so I can ask him this question. As has been pointed out earlier in debate, there have been a couple of other major amendments to the Fisheries Act that were proposed in the mid-nineties, Bill C-62 and Bill C-115, neither of which made it very far. There are some similarities to those bills that were presented by a Liberal government, and to this one, although we have made some very significant and substantive changes, but there are some similarities.

Does the hon. member recall the kind of consultation that the Liberals went through, both the government and perhaps the Department of Fisheries and Oceans, before they presented those two bills, the renewed Fisheries Act? If he could just enlighten us on that, I would appreciate it.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the member is right, there have been some attempts to address the needs of updating the Fisheries Act, and that is why all the members who have spoken have made it clear that there are substantial areas of concurrence, but there are some that are not.

The member will know that I brought before the House a disallowance motion with regard to an aspect of the current Fisheries Act with regard to basically law made through a regulation.

I can read into the record the quotes from the current Minister of Fisheries and Oceans who berated the then government for breaking the law, but when the legislation came back again in this Parliament, the same person, now the fisheries minister, argued totally on the other side, saying that the government will take care of everything, but there is some disagreement there.

When the Fisheries Minister came before the joint Commons-Senate scrutiny of regulations committee, he promised that we would deal with this stuff.

The bill is already in difficulty. I am hoping that the minister will recognize that he still has an existing Fisheries Act which is in violation of the laws because it makes laws through the regulations and it should not. It is a simple amendment. A two line amendment to the existing Fisheries Act would solve it, but it has significant implications to licensing.

The minister has had different positions, depending on where he is at the time of day. He will tell us one thing, but is not afraid to tell us a different thing if he happens to be in government or in opposition. He will tell us that it is okay to send a bill to committee before second reading if it suits his purpose. This one does not suit his purpose and he is not afraid to say that right here, even though Bill C-30 goes to committee.

The minister needs to come clean. The minister has to understand that there are significant areas of question and possible weakness in the bill that members would like to have resolved. Those things may have to be resolved prior to a second reading vote.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, the bill before us has not only not gone through any consultations prior to being tabled in the House but many environmental groups and people are concerned about clean water and about our various lakes and oceans. Whether it be Lake Ontario or Lake Superior, people are very concerned about the bill.

In Lake Superior, for example, there have been U.S. companies trying to mine the quarries all along the lake area. If the bill proceeds to second reading, there will be quite a few clauses that cannot be amended because they will probably be ruled out of order.

What are some of the concerns of the hon. member? If he wants to have an amendment at second reading, why would it not be possible? Why would corporate polluters not be fined and that could go toward an alternate mechanism? Is that a concern that he also has regarding the bill?

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I will not have an opportunity to give my full list but I will be working with my colleagues to ensure that no matter how we deal with this question, that all of the questions that we can raise, on which we could use additional information and guidance so we can make an informed decision, will be raised.

The member talked about Lake Ontario or Lake Superior. I mentioned the alien invasive species. Asian carp is another one. It is a very serious problem in our inland fisheries.

However, with regard to what could not be changed, as an example, the whole tribunal mechanism is now a significant change in the way that matters are handled. How about the transfer of licences on retirement? This is now becoming a little bit more complicated and it has significant influence on the lives of people and their families.

If it can be demonstrated that these changes will not seriously impact or even change the bill at all, as long as those undertakings are made and as long as there is an opinion, but I must say that the minister says that he does not want change. I have heard him say different things at different times. He contradicts himself as it suits his purpose. I would like to hear the answers to some of our questions from officials, not just from the minister.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Mr. Speaker, I am sure anybody following the debate at home today is happy to see the member stand up and represent the viewpoint of the fleet from Mississauga South. However, I think the member's intervention today is probably one of the most important of all the speakers who have voiced their concerns because there is nobody in the chamber who is more respected when it comes to procedure and House affairs than the member. He lives it.

The concerns that he has expressed in his intervention today are very important. I have tried to equate it to something similar to the replacement worker legislation that came forward where substantive amendments were made in committee but were ruled out of order by the chair. Are we looking at potentially the same thing in this instance if the current bill does not go to committee before second reading? Is it only minor changes that will be able to be made on the legislation?

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I certainly can vouch for the member's commitment to his community and the strong voice that he provides in this place with regard to issues that are important to families that he represents.

The fundamental point is that I do not think we will find in this place or in any of the books sitting at the table there, the precise definition of what constitutes the basic principles of a piece of legislation. How much of the detail do we want and how deep do we go? To some extent, it is discretionary. However, I would say that members may want to reconsider their position on this matter simply from the standpoint that it is my observation that there is significant support for a new fisheries act in the greatest scope of what we have been talking about.

I would suggest that there is a handful of areas that could be problematic to amend at committee but I believe they could be dealt with if the government is prepared to enter into a dialogue with the House leaders of the other parties to determine a mechanism by which we can have the necessary consultations, make the bill acceptable to all parties and then get it passed quickly.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I am pleased to stand in the House today to speak to Bill C-45. I want to acknowledge the very good work that my colleague, the member for Sackville—Eastern Shore, has done on this. Following his lead, I too will be speaking against the bill.

The bill would amend an act that was first proclaimed in 1868. Many who work on the Hill will understand this comment when I say that I work in West Block, which is just a few years older than the act, and we know the terrible state that building is in after 139 years. We, therefore, agree that we need a new Fisheries Act but the devil truly is in the details.

Although I agree with the premise that the Fisheries Act needs amendment to create a modern act that is responsive to the needs of conservation, habitat enhancement, community control and that accommodates the treaty rights of aboriginal peoples in Canada, this bill does not provide those amendments, which is why the NDP cannot support it.

My colleague from Sackville—Eastern Shore has consulted groups from coast to coast to coast on this issue and the overwhelming response has been to oppose this bill. I have consulted with recreational and aboriginal fishers in British Columbia and I would like to share some of their responses with the House today.

Recreational fishing in British Columbia is the largest single fishery in the province. It includes: over 330,000 individuals who purchase saltwater fishing licences; 125 lodges catering to recreational anglers; 500 charter boat operators; and hundreds of businesses and industries that equip and cater to the sportfishing industry, including businesses like the St. Jean's Cannery & Smokehouse in Nanaimo which has created a niche industry canning the salmon caught by recreational anglers.

Coming from the riding of Nanaimo—Cowichan that has a coastline and had a proud tradition of fisheries, I can understand how absolutely important it is, not only to the fishing industry itself, but to all the other spinoff industries that support those fishers. In fact, we actually have a number to quantify that. This means over $600 million in economic activity while catching less than 6% of the annual Pacific salmon harvest and less than 12% of the annual Pacific halibut harvest.

I do not think it is unexpected that such an important fishery would expect some consideration when a wholesale revision of the Fisheries Act is planned. However, sadly, that was not the case.

Bill C-45 does not acknowledge the fishery as a common property resource, nor does it acknowledge the public's right to fish as a key value. Instead, Bill C-45 says that Parliament is committed to maintaining the public character of the management of fisheries and of fish habitat, and that is a distinctly different concept.

The Supreme Court of Canada has confirmed that fishing is a right not a privilege and that the fishery is a common property resource. The premise that the fishery is a common property resource with the public right to fish must be included in any reform of the Fisheries Act. A failure to do so would open the door to greater privatization and the concentration of a public resource.

The Sportfishing Defence Alliance explains it this way:

...we also see an attempt here to usurp the “Right To Fish” held by all Canadians under the Common Law of this land that has existed from time immemorial. The record of this right begins with Roman Emperor Justinian. It was further recognized and affirmed by English King John in the Magna Carta on the fields of Runnymeade in 1215. Since that time there have been many findings by the various Canadian commissions and courts ranging all the way up through the Supreme Court of Canada. ...the majority ruling in Nikal, where Cory J, stated, “It is for the Federal Government to ensure that all users who are entiltled to partake of the salmon harvest have the opportunity to obtain an allotment pursuant to the scheme of priorities set out in Sparrow.” In Comeau's Seafoods, Major J., for the court, stated: “Canada's fisheries are a ‘common property resource’ belonging to all the people of Canada. Under the Fisheries Act it is the Minister's duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest.”

As the NDP's aboriginal affairs critic, I have been coming up against the issue of consultation and how little consultation the government does with groups. In a media release in December 2006, DFO claimed that the new bill stemmed from extensive cross-country consultations and discussions. That is simply not true. Discussions and consultations did not take place across the country, specifically on the new ideas and the changes outlined in Bill C-45.

Rather, Bill C-45 is the outcome of several major public engagement processes on fisheries management and policy that took place over the last several years, including the Pacific new directions and Pearse-McRae report, as well as the aboriginal fisheries strategy and the first nations panel on post-treaty issues.

It is very important to make the distinction that fishermen, commercial fishing groups, aboriginal people and other stakeholders were not consulted directly on the changes proposed in this bill. It is also interesting to note that last fall the provincial and territorial fisheries ministers urged the federal government to table new legislation that recognizes their important role in fisheries management but they also were not consulted on Bill C-45 prior to its release.

All stakeholders, including aboriginal people and fishermen, should have had an opportunity to participate in an extensive consultation process to recommend appropriate changes to a new fisheries act. I know we often talk about consultation in the context of aboriginal rights and I have a couple of papers here that are important to quote from.

In a letter from the Nuu-chah-nulth Tribal Council dated February 12 to the Minister of Fisheries and Oceans it talks about the fact that the council was not consulted in any kind of fashion. The letter reads:

Nuu-chah-nulth are also concerned about the timeline that you have set for this initiative given that you have not approached Nuu-chah-nulth First Nations to discuss a proper consultation process.

Later on in the letter it states:

Merely appearing before a Parliamentary Committee with comments on the proposed Fisheries Act is not sufficient to meet the test of full and meaningful consultation and accommodation.

Oftentimes when we are asked what we mean by consultation, I have commented in the House that talk is not consultation and it is not. Simply sitting down and speaking to someone does not constitute consultation. I want to quote what the experts in consultation have outlined what a due consultation process would look like.

A recent report on matrimonial real property, written by Wendy Grant-John, identified the need for full consultation on any amendments to matrimonial property because it would affect aboriginal rights just as any full scale amendment to the Fisheries Act directly affects aboriginal rights.

In a very a deliberative and thoughtful way, Ms. Grant-John and the others who worked with her on this report outlined what a consultation process would look like. I would argue that a consultation process that is suitable for Indian and Northern Affairs would also be suitable for fishery. She outlines the following:

The Department should develop, as soon as possible, specific procedures relating to consultation in order to ensure that future consultation activities can identify and discharge any legal duty to consult while also fulfilling objectives of good governance and public policy by:

1) Ensuring First Nations have relevant information to the issues for decision in a timely manner;

When we are talking about first nations I would argue that we would have any stakeholders involved in fishery also have relevant information to the issues in a timely manner.

Ms. Grant-John continues to state:

2) Providing an opportunity for First Nations to express their concerns and views on potential impacts of the legislative proposal and issues relating to the existence of a duty to consult;

3) Listening to, analyzing and seriously considering the representations and concerns of First Nations in the context of relevant legal and policy principles including their relationship to other constitutional and human rights principles;

4) Ensuring proper analyses by the Department of Justice of section 35 issues relating to any proposed legislative initiative are thoroughly canvassed before, during and after consultations;

5) Seriously considering proposals for mitigating potentially negative impacts on aboriginal and treaty rights or other rights and interests of First Nations and making necessary accommodations by changing the government's proposal;

6) Establishing, in consultation with First Nations, a protocol for the development of legislative proposals.

As members can see from this very thoughtful and lengthy list, consultation is not an ad hoc process. It is a complex process that involves dialogue, that involves taking information and analyzing it, and including those people who are affected in that decision making process.

Consultation also needs to be well thought out and a well communicated plan. As was indicated by the Nuu-chah-nulth council, many people were surprised when Bill C-45, the amendments to the Fisheries Act, was brought forward because their understanding was there would be a process that included some of those key stakeholders.

The other issue is that the government cannot declare previous meetings, which were not specifically focussed on a piece of proposed legislation, as consultation, especially if the people in those meetings were not aware that part of the purpose and intent of those meetings was to develop legislation.

I hardly call it consultation if the people in those meetings did not know the consultation was happening. People were not aware that their involvement in that meeting constituted consultation on this legislation.

Although the piece I read on matrimonial real property is specific to first nations, these considerations should also be in place for consultation with all Canadians on public resources, especially the idea that one cannot declare something was consultation when it happened in the past.

The Assembly of First Nations has examined the bill carefully and has a number of recommendations. I encourage other members to go to its website and look for this paper, “A Scoping of Aboriginal Implications of Renewal of the Fisheries Act 1985”. I will quote one of the priorities for governance issues from that paper because I feel Bill C-45 misses this point completely. It states:

Ensure meaningful references to Aboriginal and treaty rights with linkages to modern treaties, self-government, and the right to manage fisheries

New legislation needs to recognize the special relationship between Canada and First Nations. DFO suggests that language be added to recognize protection of Aboriginal rights and treaties....The purpose of “acknowledging” aboriginal and treaty rights in other legislation seems largely to be to avoid laws being struck down rather than to address Aboriginal and treaty rights. DFO obligations to involve First Nations in fisheries management are more than just good governance practice. The legislation should provide guidance on how regulators and policy makers need to recognize and accommodate Aboriginal and treaty rights and title in management.

As well, self-government is a core First Nations' value that could be supported in a reformed Fisheries Act. Self-government in fisheries may include involvement in decisions on management of First Nation, recreational and commercial fisheries, sharing of fish in a First Nations traditional territory and protection of habitat. First Nations may participate in advisory processes but should have a larger role in decision-making as discussed in the upcoming co-management subsection.

Finally, I will talk about the lack of habitat protection in the bill.

The new bill fails to strengthen conservation and protection measures for fish and fish habitat. There are far too many loopholes in Bill C-45 that would place the fishery and its habitat at risk.

Under the old Fisheries Act, development projects like the Tulsequah Chief mine in British Columbia, which is a large mining project that will impact on the Taku River watershed, were allowed to proceed even though they would have significant impact on fish and fish habitat. Under Bill C-45, these projects would still be given a green light. The new bill simply does not strengthen opportunities to conserve and protect fish and fish habitat, and this must remain our top priority.

I need to mention my own recent experience with DFO and habitat protection. There are some concerns in my community over some contaminated soil being dumped on an industrial site near the Koksilah River by Kelvin Creek, near Duncan.

This is a really important issue in the riding of Nanaimo—Cowichan because the Cowichan River has been designated as a heritage river. The elders from the Cowichan people used to talk about the fact that the Cowichan River was so rich in salmon that people could walk across the backs of the salmon from one side of the river to the other. Sadly, nowadays the river is in trouble. Although certain fish return, they are not nearly in the numbers that they once were. Part of the struggle has been around the protection of the habitat.

We acknowledge the fact that it was a good thing that the river was designated as a heritage river, but the sad reality is it is simply in name only. There are no resources available to look at some of the very serious issues confronting the river. There are many users of the Cowichan River. The first nations people get fish for food and use it for ceremonial purposes. Agricultural lands abut the river. There are important recreational issues on that river. Yet we do not have a good plan in place to look at habitat protection and conservation for fish. I would argue that when we do not protect the river for fish, we do not protect it for any of the other users as well.

I digress slightly from the Koksilah River by Kelvin Creek, but Koksilah is also a fish-bearing stream. An industrial site abuts Kelvin Creek and the Koksilah River. This site allows contaminated soil, which needs an industrial standard, to be trucked from outside the riding and dumped in a gravel pit there.

Everyone will quickly point out that this is a perfectly legal use. It meets the provincial ministry permits. The larger question is this. Is this a suitable site when potential leachate could end up in the Koksilah River and Kelvin Creek? This is a question that nobody has been able to answer.

Part of my responsibility, as the member representing the riding, is to go and find out information and to work with the citizens in the riding who have raised a number of concerns about this site. This is just one example of the need for a stronger habitat protection for fish. I am sure this story is being repeated across the country.

When we started inquiring around who would take some responsibility for this very important salmon bearing stream, we found the proverbial finger pointing where everybody pointed to somebody else who should take responsibility for it. That was very distressing.

When we went to the Department of Fisheries and Oceans, commonly referred to as DFO, it indicated that we needed to provide proof that habitat was being destroyed. It took the view that unless there was harm being done, it could not work proactively to protect that fish habitat.

We have something that many of us like to call the precautionary principle. The precautionary principle says that we should think ahead and prove that no harm will be done before we undertake an action that could have some serious impacts and long term consequences.

When we took a look at this, DFO could not do anything until we could demonstrate that the fish habitat was being destroyed. DFO also shares the responsibility with Environment Canada. We got the proverbial very thin wedge that it could do a tiny bit, but somebody else would have to do something else about it.

Although this new act aims to streamline projects that may alter fish habitat by making a distinction between small projects and large scale projects, the aim of these changes is to allow the department to focus on activities with more potential to cause harm. Streamlining projects in a new act could open the door more easily for industries that may pose a risk to fish and fish habitat.

We need to ensure that DFO streamlines projects for the enhancement of fish and fish habitat, not the other way around.

I want to go back again to the situation at Koksilah River and Kelvin Creek. Part of the frustration with this has been there are so many different levels of government involved in this situation. We have regional-municipal, or CVRD. The Cowichan Valley Regional District has responsibility for land use. It does not have in place a soil dumping bylaw.

Then there is the provincial ministry that takes a look at granting logging permits. Some logging is going on next to this river, which could have an impact on fish habitat. The provincial government has responsibility for the transportation and the dumping of soils, which it says meets an industrial standard that is perfectly suitable, but people cannot live on this soil.

Then we have the federal government where Environment Canada is responsible for water quality and the Department of Fisheries and Oceans is responsible for fish habitat.

Out of all those levels of government, there was not a coordinated response to the protection of fish habitat.

The bill now before the House does not provide that kind of assurance to Canadians and to the citizens of Nanaimo—Cowichan that fish habitat would be protected and conserved. I therefore I urge the members of the House to vote against the bill. The government should go back to the drawing board and do those meaningful consultations that will result in a Fisheries Act that protects the resource for future generations.

[Randy Kamp, Conservative, Parliamentary Secretary to the Minister of Fisheries and Oceans]

Mr. Speaker, I appreciated much of what my colleague from British Columbia had to say and I think it provided some clarity, although we are speaking on the hoist amendment at the moment, not on the bill itself.

However, with respect to her comments regarding consultation, I take issue. I would like further clarification from her on what she means by this concept of public right to fish. I know it is a common concept and it is related somehow to the common property resource issue.

Does she think it means that any Canadian anywhere can fish for anything at any time? I doubt if she means that because she also indicated that she was interested in the resource and its sustainability and so on, and that would seem obviously to fly in the face of that. What does it mean?

The act and our tradition is that it cannot mean that. It is a constrained right. It is a regulated right. It has been since Confederation. What we say in the bill is that it is not that fishing is a privilege, but a licence is a privilege. That gives access to this common property resource under the principles that are laid down in the bill.

Further clarification on that would be appreciated.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I was aware we were speaking on the hoist amendment, but it is also important to lay out the arguments why we would not want to consider the bill at this time and in this place.

The member raises a very good issue and this is an important example of why we need those appropriate consultations. I come from a part of the country where recreational and sports fishing is an extremely important part of what happens in British Columbia. It is an important addition to our economic well-being. It is an important part of what people would argue is their own culture. I know many fathers, mothers, daughters and sons have fished for generations in a recreational and sports way in British Columbia.

If we talk to the recreational and sports fishers, what we will hear from them is that they are absolutely conscious of the fact that when we talk about the right to fish, it does not mean unfettered access. It does not mean that somebody would go out at any time, in any season and fish. What they are asking, though, is that in the context of a responsible approach to the management of fisheries, they be included and acknowledged as having that right to fish.

I know that many of the sports and recreational fishers in British Columbia are actively involved in habitat protection and conservation. They are actively involved in ensuring that the very species remain healthy so they remain a resource for future generations.

I again argue that if we had those kinds of meaningful consultation processes, we would not need to have this conversation in the House.

[Roger Valley, Liberal, Kenora, ON]

Mr. Speaker, my hon. colleague, the member for Nanaimo—Cowichan, represents an area from the west coast. I represent an area in the centre of Canada.

I have two questions for her today. The first one has been talked about somewhat, but I need to raise it from the position of someone who represents an inland fishery.

We know stakeholders feel that they have not been heard or listened to. In my riding I have a thriving commercial fishery, both in bait fish and standard commercial fishing, and a sport fishery. No one has talked to either of those.

In the north we have a huge area of about 2,500 square miles where there are only 21 first nations communities. At one time they had a thriving sturgeon fishery. Now they are working to regain that. No one has talked to them.

I mentioned earlier that we have one of the largest inland research centres in my riding, the Experimental Lakes Area, with more than a half century of data and research to ensure that the inland fishery will thrive. No one has talked to them

What is she or is she not hearing about the inland fishery because of the lack of consultation?

My second question, and I know it is a concern for the NDP, is about the provisions that would allow DFO officials to grant or refuse licences.

I mentioned earlier in the chamber that my family has held licences for more than a half century. It is important to understand that there is very little tenure and protection for commercial fishing licences. Any chance that we get, when we are rewriting an act that is over 100 years old, to protect the fishery, the people who work in the fishery and the people who invest in the fishery is an opportunity we should take to get it done right, and we need to listen to the people and the stakeholders involved.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I did not touch on the inland fisheries in my speech, but they have been a vital resource in this country. I was fortunate enough to live for a number of years in the Okanagan where there is a very important inland fishery. It is a sports and recreational fishery that draws people from all over the world.

There are two aspects to this, the sports and recreational fisheries aspect of it but certainly also the aboriginal treaty rights around inland fisheries. I laid out in detail the lack of consultation. The lack of consultation on the three coasts is reflective of the lack of consultation around inland fisheries and the impact it will have on communities if their voices are not heard. They are on the water and understand the issues that are facing them. We must have appropriate consultation.

With respect to the whole issue of getting it right around licensing, I am from the west coast where we have seen over several years a number of communities facing severe difficulties as the fisheries have been in transition. We have seen families surrender their licences for a variety of reasons. We saw some consolidation happening with the fleet. Those communities have been impacted as a result of some of those decisions.

I am sure all Canadians would say that they want that vital resource protected and preserved and that we need to consider the impact on communities. That includes all communities involved in fishing, whether one is a fisher or somebody who benefits by providing the secondary and tertiary services. We absolutely need to get this right.

We do not want to see too much power and decision making concentrated with the minister. A number of concerns have been raised around how many times the bill refers to “the minister may”. We want to make sure that the decisions being made on behalf of this resource are being made in a manner that ensures the protection of that resource for future generations.

[Randy Kamp, Conservative, Parliamentary Secretary to the Minister of Fisheries and Oceans]

Mr. Speaker, if my colleague reads the bill she will see in the preamble a number of times where there is reference to commercial, aboriginal and recreational fishers. Once or twice she will see processors mentioned as well, but she will see the first three mentioned time and time again.

When she gets to clause 25 of the bill, it lists those very important principles and I wonder if she agrees with them. I think they do everything she would like them to do. It says, “In exercising the powers under section 27 or 37”, which is basically the licensing or allocation sections of the act, “the Minister must take into account” and the third one is “the importance to fishers”, and fishers there refers to all three of those sectors, “of secure access to the fishery and of allocation stability”. That is a very important principle.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, fortunately I have read the preamble and sections of the bill. Where the disagreement comes about is whether the preamble is strong enough in terms of protecting the public right to access the resource. Clearly, the recreational and sports fishers in this country do not feel that is the case. If it is the users who are saying this is not strong enough language and does not protect the right to fish, I suggest we need to take a second look at it.

This argument often comes up in terms of a piece of legislation that may do some of what we think is important. The question then becomes whether we tinker with that piece of legislation at the margins to make it legislation that is going to do what we intended, which is to protect the resource, and there are all kinds of other things around enforcement and all of that, or do we go back to the drawing board and make sure we do the consultations to come up with the appropriate piece of legislation.

Again I would argue in this particular case, because the government did not do its homework and conduct those consultations, that we need to go back to the drawing board.

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

Mr. Speaker, it is with some concern that I rise to speak about Bill C-45, the new Fisheries Act as proposed by the Minister of Fisheries and Oceans.

I certainly want to acknowledge the courage of the minister. The Fisheries Act is 138 years old. It has not been substantively changed in that period of time. However, as my late father used to say, caution has to be taken when judging actions. There is conventional wisdom that often takes place and one has to wonder whether a decision is taken based on convention or wisdom.

This bill, quite frankly, is quite flawed. All the stakeholders and anyone who has taken an opportunity to review it has come to the determination that it is substantially flawed and would endanger a $4.3 billion annual enterprise to this country, an enterprise that sustains thousands of communities throughout Canada and well over 80,000 individuals and their families.

One of the key points that has to be raised on the floor is the decision that was taken by the minority Conservative government not to have the Standing Committee on Fisheries and Oceans review the legislation prior to second reading to enable the all-party committee to review the legislation, to conduct hearings and hear from Canadians from coast to coast to coast on the impacts of the bill. That decision was taken because there was a reluctance, an absolute denial of any opportunity for change based on good advice.

While the minister has acted with some courage in bringing forth the legislation, I regret he did not complement his courage with wisdom. The bill is flawed for various reasons. I will not, however, throw out the baby with the bathwater. The sanctions process, the ticketing process, quite frankly, is very reasonable. In fact, it is long overdue. The establishment of allowing officers and the Department of Fisheries and Oceans to deal with relatively minor infractions of the Fisheries Act instead of through a court proceeding, through a ticket violation or sanctions process is a welcome change. It is welcomed by all fishers.

However, there are other elements to this which have to be viewed from the point of view of the law of unintended consequences. Unintended consequences can arise from the minister's decision to remove what is called his absolute discretion. A cornerstone that the minister brought forward when he tabled this bill is that he lauded the point that the absolute discretion, as was prescribed in the original act, would now be rescinded.

The minister tabled the bill on December 12, 24 hours before the House recessed for Christmas and January, not allowing any review from Parliament whatsoever. He did indicate that he was moving forward with very significant changes.

From my own constituents' point of view, what the minister had said was that the bill would now allow for fishers, industry stakeholders, to have a greater say in their own industry when it comes to management decisions, scientific decisions on allocation and who gets into their fishery.

When we look at it just at that broad brush, any reasonable person looking at that would say, “Imagine fishermen having a say in the management of their own fishery”. Who could argue with something like that on the surface? That is exactly what the minister and the Department of Fisheries and Oceans concluded, that there would be a statutory, obligatory requirement that existing stakeholders would actually have a legally guaranteed role to play in decision making related to the fisheries in which they are directly involved, fishermen managing their own fishery.

I will present to the House a scenario of the law of unintended consequences, and I will use a very specific example. That principle equally applies to industrial stakeholder fishers: dentists from Nova Scotia who happen to own licences in the northern shrimp fishery; other corporations that really never set foot in a boat, that are called slipper skippers simply because they own the enterprise and the licence and basically reap the benefits of it directly with no onshore, no adjacent benefits accruing to communities or to individual fishermen.

A case in point is the northern shrimp fishery. In 1997 there was a decision taken by the Minister of Fisheries and Oceans to allow inshore interests to participate, to prosecute the northern shrimp fishery. That was the first time ever. Since the late 1970s until 1997 the entire offshore shrimp industry was dominated exclusively by offshore factory freezer trawlers. Seventeen licences were issued, all of which were owned by large corporations or stakeholders that had no relevance to the adjacent communities to the fishery, with the exception of the Labrador Fishermen's Union Shrimp Company Limited.

That is a case in point. Under this bill the minister and the department would now have a legally binding requirement on them to listen to the views of the stakeholders. That would have been the 17 factory freezer licence holders, up until 1997, and those 17 factory freezer licence holders could effectively bar access to every inshore fishermen in Newfoundland and Labrador to gain access into this fishery. Why? Because that is exactly what this bill prescribes. As the minister says in the press release, the minister and every person engaged in the administration of this act or regulations must take into account the stakeholder interests. There is a case in point of the law of unintended consequences taking hold.

Another example of the law of unintended consequences that should have been reviewed by the Standing Committee on Fisheries and Oceans to hear expert witness testimony would be the requirement that the minister must take into account the principles of sustainable development and to seek to apply an ecosystem approach in the management of fisheries in the conservation and protection of fish and fish habitat and must--not shall or may--must seek to apply a precautionary approach such that if there is both high scientific uncertainty and a risk of serious harm they will not be engaged in any management decisions that could impact on that.

The key word is “must”, not may, must. It is a complete removal of the absolute discretion of the minister that was applied under the previous act. That is a case in point of the law of unintended consequences.

Say, for example, a particular group wanted to challenge the validity of the minister's decision to maintain the harp seal quota throughout Atlantic Canada and Quebec. If a group came forward with substantial evidence from its point of view, and brought it forward to a federal court in Toronto, that particular NGO could actually challenge the minister's decision to maintain a harp seal fishery and could actually seek recourse through a federal court to actually shut down a particular fishery or challenge the minister's decision relating to quota or any specific management items. That particular court in a place very far away from where the fishery is actually prosecuted, very far away from the adjacent communities, could actually decide how an east coast, west coast, central or Arctic fishery was actually managed.

That is the law of unintended consequences that has to be understood by all members of the House before a formal vote is taken. That is why we asked that the Standing Committee on Fisheries and Oceans review this legislation and hear expert testimony from stakeholders.

The point was brought forward that there were extensive consultations on the act before the bill was brought forward. First off, the Standing Committee on Fisheries and Oceans put in a request to the minister and to the department to assist the department and the minister in crafting the bill before it was tabled so that we could bring forward as members key elements of the bill that we wanted to have included and key concerns. That request was denied. It was not acted upon.

On December 12, 2006, 24 hours before the close of the House, a bill was tabled. There were no further discussions for the next eight weeks.

We asked who exactly was consulted and what was the actual consultation that occurred. In my own constituency I found that next to no one was consulted and the few organizations that were were simply sent a letter from an official within the department indicating that a new fisheries act would be tabled soon.

There were no details about the act and no chance for input, with no relevance whatsoever to this act, and that is what has been put before us. It is an act that has been described as having endured extensive consultations when in fact no consultations whatsoever, no substantial consultations, have been conducted.

A third element of this that really gravely concerns me is the fisheries co-management process. Fishermen want to know exactly what that entails. They want to know if additional fees can be placed upon them as a result of a cooperative agreement or a trust arrangement being put in place between the Department of Fisheries and Oceans and an umbrella stakeholder group that states or claims it represents the interests of fishermen.

The first party would be the Department of Fisheries and Oceans, the second party would be the fishermen themselves, and the third party would be the organization in question. The fishermen want to know if that third party interest can apply for or create levies of additional fees on the fishermen themselves. That is a very important point, but I wish we could have had an opportunity to review this act in committee so that we could have put these facts on the table. This is a very substantial concern.

I appreciate the fact that the sanctions process, the ticketing process on relatively minor infractions, is a better process. It provides a substantial improvement to the current regime. However, there is the law of unintended consequences and possibilities. If there was nothing to fear from the concerns that I raised and that were raised by other members and industry stakeholders, this act should have been placed before committee for review before second reading. Witnesses and evidence should have been presented as to exactly where the act is going.

As well, I have grave concerns about the management process leading to extended terms. The minister will acknowledge that a recent agreement was just put in place with Ocean Choice of Newfoundland and Labrador and High Liner Foods, allowing for greater long term tenure to certain resources based on certain criteria. However, that is one example.

There are other examples that may not be beneficial to the people of Atlantic Canada and to fishermen and fishing communities generally across the board. We want to know exactly where that process is taking us. That is a major concern that has been expressed by my constituents.

Key among this is information about specifically where it is that we are taking the legal and binding right of interest groups that now have a formal and legally binding say in the management of our fishery.

The minister himself will acknowledge that on the northeast coast of Newfoundland there was a decision that was taken in 2J3KL cod, a decision to allow a small commercial scale fishery to fishers there in a resource that, generally speaking, scientists had described as significantly depleted.

Today, as was the case when the minister made the decision, the point of view of very few scientists has changed. Their point of view was that the resource was depleted to the point where any commercial fishery could cause a serious and negative decline in the overall abundance and health of stocks. Biomass would not be allowed to increase and would not be allowed to recuperate. Therefore, science was against that particular decision, or some scientists were, I should say.

If Bill C-45 had been in place at the time of this decision an interest group could have had the capacity or capability of bringing the minister's decision before a federal court for judicial review, because the law specifically states that the minister is no longer capable of making a unilateral decision. He no longer has absolute discretion. He now must adhere to a set of principles that must take into account sustainable development and the scientific information that is available at the time, the scientific information but not the stakeholder information, the information from fishermen themselves.

The minister was proven correct. His decision was a valid one. However, I would remind every resident of the northeast coast of Newfoundland and southern Labrador and the northern peninsula area that I represent that if this act had been in place at the time of that decision, it could very well have been that an organization from outside of the province, outside of the country, could have put forward a judicial action to actually suspend the fishery. That is a very real possibility.

If I am incorrect in what I state, if the minister does not believe it and the department does not believe it, what I can say is that we would have had an opportunity to bring this before a committee and hear expert testimony as to exactly what was happening here. This had to be done. The stakeholders were depending on it. The industry interests were depending on it.

I am concerned about the co-management agreement. I am concerned about the potential for additional fees to be imposed upon fishermen and their communities as a result of the legally binding cooperative agreements that could be put in place between DFO and the stakeholder groups.

I am concerned about the loss of discretion by the minister to act appropriately in ways that he or she knows would be beneficial to the fishery. I use specifically the case of the northeast coast cod as an example that probably would not have happened. I use specifically the case of the seal fishery and all those advocacy groups, the interest groups that are out there that at chomping at the bit for a way to shut down our seal fishery.

This act may provide them with that very possibility or opportunity, in a federal court in a place very far away from this fishery, with evidence or testimony heard by a judge that could result in a decision that the minister did not act in accordance with the act he has tabled. That is a very real possibility.

I have many concerns, but the last major one that I need to speak about in this House is the concern about the exclusion of legitimate fishermen from new fisheries as they emerge or expand.

For example, on the co-management agreement that was reached in the Gulf of St. Lawrence on crab in area 12, would the existing full time fishermen in area 12 have allowed small boat permit fishermen to come into their fishery when the resource skyrocketed in abundance and the price went up? Would they have had an opportunity to boycott or basically veto through a court action the decision of the minister of the day back in the 1990s, not too many years ago, to allow small boat permit entrants into that fishery?

Could the interests of the northern coalition, the large offshore factory freezer trawlers, have prohibited access to inshore fishermen for prosecuting the northern shrimp fishery? After literally decades of dominance by the offshore factory freezer trawlers, could that have been a possibility under this act? The evidence that I am receiving and the input in legal opinions and by industry stakeholders is yes, it definitely could have been. That is why this act should have been presented to committee before second reading before it went any further.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Mr. Speaker, I thank my hon. colleague from Newfoundland and Labrador for his presentation.

We have asked throughout today's debate about the consultative process and who was consulted on this act before it was tabled. I find it very amusing and quite astonishing that this bill was tabled on December 13, 2006. This bill is over 200 pages long, with a lot of legalese in it, but on December 14 the B.C. mining industry put out a press release saying it welcomed the new act. I do not know how anyone could have given the act a thorough analysis, whether against it or for it, prior to actually reading it, but one day later the mining industry said that it supported the act.

It is interesting that the senior director of the Mining Association of British Columbia is a gentleman named Byng Giraud, who says, “We support the act”. Guess what? Byng Giraud also sits on the governing national council of the Conservative Party of Canada, representing British Columbia. It seems awfully close and very paternalistic that on December 14 the Mining Association of B.C. can say it supports the act without giving it a thorough analysis and the individual who says that is a member of the Conservative Party representing B.C.

It is obvious that fishermen were not consulted on this act, so I ask my hon. colleague, does he have any other evidence of people of this nature across the country who are not fishermen and who support the government's intention of really destroying the future livelihood of fishermen and their families in this country?