Bill C-38 (Historical)

Jobs, Growth and Long-term Prosperity Act

An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures

Part 1 of this enactment implements certain income tax measures and related measures proposed in the March 29, 2012 budget. Most notably, it
(a) expands the list of eligible expenses under the Medical Expense Tax Credit to include blood coagulation monitors and their disposable peripherals;
(b) introduces a temporary measure to allow certain family members to open a Registered Disability Savings Plan for an adult individual who might not be able to enter into a contract;
(c) extends, for one year, the temporary Mineral Exploration Tax Credit for flow-through share investors;
(d) allows corporations to make split and late eligible dividend designations;
(e) makes the salary of the Governor General taxable and adjusts that salary;
(f) allows a designated partner of a partnership to provide a waiver on behalf of all partners to extend the time limit for issuing a determination in respect of the partnership;
(g) amends the penalty applicable to promoters of charitable donation tax shelters who file false registration information or who fail to register a tax shelter prior to selling interests in the tax shelter;
(h) introduces a new penalty applicable to tax shelter promoters who fail to respond to a demand to file an information return or who file an information return that contains false or misleading sales information;
(i) limits the period for which a tax shelter identification number is valid to one calendar year;
(j) modifies the rules for registering certain foreign charitable organizations as qualified donees;
(k) amends the rules for determining the extent to which a charity has engaged in political activities; and
(l) provides the Minister of National Revenue with the authority to suspend the privileges, with respect to issuing tax receipts, of a registered charity or a registered Canadian amateur athletic association if the charity or association fails to report information that is required to be filed annually in an information return or devotes resources to political activities in excess of the limits set out in the Income Tax Act.
Part 1 also implements other selected income tax measures and related measures. Most notably, it
(a) amends the Income Tax Act consequential on the implementation of the Marketing Freedom for Grain Farmers Act, including the extension of the tax deferral allowed to farmers in a designated area who produce listed grains and receive deferred cash purchase tickets to all Canadian farmers who produce listed grains and receive deferred cash purchase tickets;
(b) provides authority for the Canada Revenue Agency to issue via online notice or regular mail demands to file a return; and
(c) introduces a requirement for commercial tax preparers to file income tax returns electronically.
Part 2 amends the Excise Tax Act to implement certain excise tax and goods and services tax/harmonized sales tax (GST/HST) measures proposed in the March 29, 2012 Budget. It expands the list of GST/HST zero-rated medical and assistive devices as well as the list of GST/HST zero-rated non-prescription drugs that are used to treat life-threatening diseases. It also exempts certain pharmacists’ professional services from the GST/HST, other than prescription drug dispensing services that are already zero-rated. It further allows certain literacy organizations to claim a rebate of the GST and the federal component of the HST paid on the acquisition of books to be given away for free by those organizations. It also implements legislative requirements relating to the Government of British Columbia’s decision to exit the harmonized sales tax framework. Additional amendments to that Act and related regulations in respect of foreign-based rental vehicles temporarily imported by Canadian residents provide, in certain circumstances, relief from the GST/HST, the Green Levy on fuel-inefficient vehicles and the automobile air conditioner tax. This Part further amends that Act to ensure that changes to the standardized fuel consumption test method used for the EnerGuide, as announced on February 17, 2012 by the Minister of Natural Resources, do not affect the application of the Green Levy.
Finally, Part 2 amends the Air Travellers Security Charge Act, the Excise Act, 2001 and the Excise Tax Act to provide authority for the Canada Revenue Agency to issue via online notice or regular mail demands to file a return.
Part 3 contains certain measures related to responsible resource development.
Division 1 of Part 3 enacts the Canadian Environmental Assessment Act, 2012, which establishes a new federal environmental assessment regime. Assessments are conducted in relation to projects, designated by regulations or by the Minister of the Environment, to determine whether they are likely to cause significant adverse environmental effects that fall within the legislative authority of Parliament, or that are directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that is required for the carrying out of the project.
The Canadian Environmental Assessment Agency, the Canadian Nuclear Safety Commission, the National Energy Board or a review panel established by the Minister are to conduct assessments within applicable time limits. At the end of an assessment, a decision statement is to be issued to the project proponent who is required to comply with the conditions set out in it.
The enactment provides for cooperation between the federal government and other jurisdictions by enabling the delegation of an environmental assessment, the substitution of the process of another jurisdiction for an environmental assessment under the Act and the exclusion of a project from the application of the Act when there is an equivalent assessment by another jurisdiction. The enactment requires that there be opportunities for public participation during an environmental assessment, that participant funding programs and a public registry be established, and that there be follow-up programs in relation to all environmental assessments. It also provides for powers of inspection and fines.
Finally, the enactment specifies that federal authorities are not to take certain measures regarding the carrying out of projects on federal lands or outside Canada unless they determine that those projects are not likely to cause significant adverse environmental effects.
This Division also makes related amendments to the Environmental Violations Administrative Monetary Penalties Act and consequential amendments to other Acts, and repeals the Canadian Environmental Assessment Act.
Division 2 of Part 3 amends the National Energy Board Act to allow the Governor in Council to make the decision about the issuance of certificates for major pipelines. It amends the Act to establish time limits for regulatory reviews under the Act and to enhance the powers of the National Energy Board Chairperson and the Minister responsible for the Act to ensure that those reviews are conducted in a timely manner. It also amends the Act to permit the National Energy Board to exercise federal jurisdiction over navigation in respect of pipelines and power lines that cross navigable waters and it establishes an administrative monetary penalty system.
Division 3 of Part 3 amends the Canada Oil and Gas Operations Act to authorize the National Energy Board to exercise federal jurisdiction over navigation in respect of pipelines and power lines that cross navigable waters.
Division 4 of Part 3 amends the Nuclear Safety and Control Act to extend the maximum allowable term of temporary members of the Canadian Nuclear Safety Commission from six months to three years. It is also amended to allow for a licence to be transferred with the consent of that Commission and it puts in place an administrative monetary penalty system.
Division 5 of Part 3 amends the Fisheries Act to focus that Act on the protection of fish that support commercial, recreational or Aboriginal fisheries and to more effectively manage those activities that pose the greatest threats to these fisheries. The amendments provide additional clarity for the authorization of serious harm to fish and of deposits of deleterious substances. The amendments allow the Minister to enter into agreements with provinces and with other bodies, provide for the control and management of aquatic invasive species, clarify and expand the powers of inspectors, and permit the Governor in Council to designate another Minister as the Minister responsible for the administration and enforcement of subsections 36(3) to (6) of the Fisheries Act for the purposes of, and in relation to, subject matters set out by order.
Division 6 of Part 3 amends the Canadian Environmental Protection Act, 1999 to provide the Minister of the Environment with the authority to renew disposal at sea permits in prescribed circumstances. It is also amended to change the publication requirements for disposal at sea permits and to provide authority to make regulations respecting time limits for their issuance and renewal.
Division 7 of Part 3 amends the Species at Risk Act to allow for the issuance of authorizations with a longer term, to clarify the authority to renew the authorizations and to make compliance with conditions of permits enforceable. The Act is also amended to provide authority to make regulations respecting time limits for the issuance and renewal of permits under the Act. Furthermore, section 77 is amended to ensure that the National Energy Board will be able to issue a certificate when required to do so by the Governor in Council under subsection 54(1) of the National Energy Board Act.
Part 4 enacts and amends several Acts in order to implement various measures.
Division 1 of Part 4 amends a number of Acts to eliminate the requirement for the Auditor General of Canada to undertake annual financial audits of certain entities and to assess the performance reports of two agencies. This Division also eliminates other related obligations.
Division 2 of Part 4 amends the Trust and Loan Companies Act, the Bank Act and the Cooperative Credit Associations Act to prohibit the issuance of life annuity-like products.
Division 3 of Part 4 provides that PPP Canada Inc. is an agent of Her Majesty for purposes limited to its mandated activities at the federal level, including the provision of advice to federal departments and Crown corporations on public-private partnership projects.
Division 4 of Part 4 amends the Northwest Territories Act, the Nunavut Act and the Yukon Act to provide the authority for the Governor in Council to set, on the recommendation of the Minister of Finance, the maximum amount of territorial borrowings and to make regulations in relation to those maximum amounts, including what constitutes borrowing, the relevant entities and the valuation of the borrowings.
Division 5 of Part 4 amends the Financial Administration Act to modify, for parent Crown corporations, the period to which their quarterly financial reports relate, so that it is aligned with their financial year, and to include in the place of certain annual tabling requirements related to the business and activities of parent Crown corporations a requirement to make public consolidated quarterly reports on their business and activities. It also amends the Alternative Fuels Act and the Public Service Employment Act to eliminate certain reporting requirements.
Division 6 of Part 4 amends the Department of Human Resources and Skills Development Act to establish the Social Security Tribunal and to add provisions authorizing the electronic administration or enforcement of programs, legislation, activities or policies. It also amends the Canada Pension Plan, the Old Age Security Act and the Employment Insurance Act so that appeals from decisions made under those Acts will be heard by the Social Security Tribunal. Finally, it provides for transitional provisions and makes consequential amendments to other Acts.
Division 7 of Part 4 amends the Department of Human Resources and Skills Development Act to add provisions relating to the protection of personal information obtained in the course of administering or enforcing the Canada Pension Plan and the Old Age Security Act and repeals provisions in the Canada Pension Plan and the Old Age Security Act that are substantially the same as those that are added to the Human Resources and Skills Development Act.
Division 8 of Part 4 amends the Department of Human Resources and Skills Development Act to add provisions relating to the social insurance registers and Social Insurance Numbers. It also amends the Canada Pension Plan in relation to Social Insurance Numbers and the Employment Insurance Act to repeal certain provisions relating to the social insurance registers and Social Insurance Numbers and to maintain the power to charge the costs of those registers to the Employment Insurance Operating Account.
Division 9 of Part 4 amends the Parks Canada Agency Act to provide that the Agency may enter into agreements with other ministers or bodies to assist in the administration and enforcement of legislation in places outside national parks, national historic sites, national marine conservation areas and other protected heritage areas if considerations of geography make it impractical for the other minister or body to administer and enforce that legislation in those places. It also amends that Act to provide that the Chief Executive Officer is to report to the Minister of the Environment under section 31 of that Act every five years. It amends that Act to remove the requirements for annual corporate plans, annual reports and annual audits, and amends that Act, the Canada National Parks Act and the Canada National Marine Conservation Areas Act to provide that that Minister is to review management plans for national parks, national historic sites, national marine conservation areas and other protected heritage areas at least every 10 years and is to have any amendments to a plan tabled in Parliament.
Division 10 of Part 4 amends the Trust and Loan Companies Act, the Bank Act and the Insurance Companies Act in order to allow public sector investment pools that satisfy certain criteria, including pursuing commercial objectives, to directly invest in a Canadian financial institution, subject to approval by the Minister of Finance.
Division 11 of Part 4 amends the National Housing Act, the Canada Mortgage and Housing Corporation Act and the Supporting Vulnerable Seniors and Strengthening Canada’s Economy Act to enhance the governance and oversight framework of the Canada Mortgage and Housing Corporation.
This Division also amends the National Housing Act to establish a registry for institutions that issue covered bonds and for covered bond programs and to provide for the protection of covered bond contracts and covered bond collateral in the event of an issuer’s bankruptcy or insolvency. It also makes amendments to the Trust and Loan Companies Act, the Bank Act, the Insurance Companies Act and the Cooperative Credit Associations Act to prohibit institutions from issuing covered bonds except within the framework established under the National Housing Act. Finally, it includes a coordinating amendment to the Supporting Vulnerable Seniors and Strengthening Canada’s Economy Act.
Division 12 of Part 4 implements the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America signed on May 26, 2009.
Division 13 of Part 4 amends the Bretton Woods and Related Agreements Act to reflect an increase in Canada’s quota subscription, as related to the ratification of the 2010 Quota and Governance reform resolution of the Board of Governors of the International Monetary Fund, and to align the timing of the annual report under that Act to correspond to that of the annual report under the Official Development Assistance Accountability Act.
Division 14 of Part 4 amends the Canada Health Act so that members of the Royal Canadian Mounted Police are included in the definition of “insured person”.
Division 15 of Part 4 amends the Canadian Security Intelligence Service Act to
(a) remove the office of the Inspector General;
(b) require the Security Intelligence Review Committee to submit to the Minister of Public Safety and Emergency Preparedness a certificate on the Director of the Canadian Security Intelligence Service’s annual report; and
(c) increase the information on the Service’s activities to be provided by that Committee to that Minister.
Division 16 of Part 4 amends the Currency Act to clarify certain provisions that relate to the calling in and the redemption of coins.
Division 17 of Part 4 amends the Federal-Provincial Fiscal Arrangements Act in order to implement the total transfer protection for the 2012-2013 fiscal year and to give effect to certain elements of major transfer renewal that were announced by the Minister of Finance on December 19, 2011. It also makes certain administrative amendments to that Act and to the Canada Health Act.
Division 18 of Part 4 amends the Fisheries Act to authorize the Minister of Fisheries and Oceans to allocate fish for the purpose of financing scientific and fisheries management activities in the context of joint project agreements.
Division 19 of Part 4 amends the Food and Drugs Act to give the Minister of Health the power to establish a list that sets out prescription drugs or classes of prescription drugs and to provide that the list may be incorporated by reference. It also gives the Minister the power to issue marketing authorizations that exempt a food, or an advertisement with respect to a food, from certain provisions of the Act. The division also provides that a regulation with respect to a food and a marketing authorization may incorporate by reference any document. It also makes consequential amendments to other Acts.
Division 20 of Part 4 amends the Government Employees Compensation Act to allow prescribed entities to be subrogated to the rights of employees to make claims against third parties.
Division 21 of Part 4 amends the International Development Research Centre Act to reduce the maximum number of governors of the Centre to 14, and to consequently change other rules about the number of governors.
Division 22 of Part 4 amends Part I of the Canada Labour Code to require the parties to a collective agreement to file a copy of it with the Minister of Labour, subject to the regulations, as a condition for it to come into force. It amends Part III of that Act to require employers that provide benefits to their employees under long-term disability plans to insure those plans, subject to certain exceptions. The Division also amends that Part to create an offence and to increase maximum fines for offences under that Part.
Division 23 of Part 4 repeals the Fair Wages and Hours of Labour Act.
Division 24 of Part 4 amends the Old Age Security Act to provide the Minister of Human Resources and Skills Development with the authority to waive the requirement for an application for Old Age Security benefits for many eligible seniors, to gradually increase the age of eligibility for the Old Age Security Pension, the Guaranteed Income Supplement, the Allowance and the Allowance for the Survivor and to allow individuals to voluntarily defer their Old Age Security Pension up to five years past the age of eligibility, in exchange for a higher, actuarially adjusted, pension.
Division 25 of Part 4 dissolves the Public Appointments Commission and its secretariat.
Division 26 of Part 4 amends the Seeds Act to give the President of the Canadian Food Inspection Agency the power to issue licences to persons authorizing them to perform activities related to controlling or assuring the quality of seeds or seed crops.
Division 27 of Part 4 amends the Statutory Instruments Act to remove the distribution requirements for the Canada Gazette.
Division 28 of Part 4 amends the Investment Canada Act in order to authorize the Minister of Industry to communicate or disclose certain information relating to investments and to accept security in order to promote compliance with undertakings.
Division 29 of Part 4 amends the Customs Act to allow the Minister of Public Safety and Emergency Preparedness to designate a portion of a roadway or other access way that leads to a customs office and that is used by persons arriving in Canada and by persons travelling within Canada as a mixed-traffic corridor. All persons who are travelling in a mixed-traffic corridor must present themselves to a border services officer and state whether they are arriving from a location outside or within Canada.
Division 30 of Part 4 gives retroactive effect to subsections 39(2) and (3) of the Pension Benefits Standards Act, 1985.
Division 31 of Part 4 amends the Railway Safety Act to limit the apportionment of costs to a road authority when a grant has been made under section 12 of that Act.
Division 32 of Part 4 amends the Canadian International Trade Tribunal Act to replace the two Vice-chairperson positions with two permanent member positions.
Division 33 of Part 4 repeals the International Centre for Human Rights and Democratic Development Act and authorizes the closing out of the affairs of the Centre established by that Act.
Division 34 of Part 4 amends the Health of Animals Act to allow the Minister of Agriculture and Agri-Food to declare certain areas to be control zones in respect of a disease or toxic substance. The enactment also grants the Minister certain powers, including the power to make regulations prohibiting the movement of persons, animals or things in the control zones for the purpose of eliminating a disease or toxic substance or controlling its spread and the power to impose conditions on the movement of animals or things in those zones.
Division 35 of Part 4 amends the Canada School of Public Service Act to abolish the Board of Governors of the Canada School of Public Service and to place certain responsibilities on the Minister designated for the purposes of the Act and on the President of the School.
Division 36 of Part 4 amends the Bank Act by adding a preamble to it.
Division 37 of Part 4 amends the Corrections and Conditional Release Act to eliminate the requirement of a hearing for certain reviews.
Division 38 of Part 4 amends the Coasting Trade Act to add seismic activities to the list of exceptions to the prohibition against foreign ships and non-duty paid ships engaging in the coasting trade.
Division 39 of Part 4 amends the Status of the Artist Act to dissolve the Canadian Artists and Producers Professional Relations Tribunal and transfer its powers and duties to the Canada Industrial Relations Board.
Division 40 of Part 4 amends the National Round Table on the Environment and the Economy Act to give the Round Table the power to sell or otherwise dispose of its assets and satisfy its debts and liabilities and to give the Minister of the Environment the power to direct the Round Table in respect of the exercise of some of its powers. The Division provides for the repeal of the Act and makes consequential amendments to other acts.
Division 41 of Part 4 amends the Telecommunications Act to change the rules relating to foreign ownership of Canadian carriers eligible to operate as telecommunications common carriers and to permit the recovery of costs associated with the administration and enforcement of the national do not call list.
Division 42 of Part 4 amends the Employment Equity Act to remove the requirements that are specific to the Federal Contractors Program for Employment Equity.
Division 43 of Part 4 amends the Employment Insurance Act to permit a person’s benefits to be determined by reference to their highest earnings in a given number of weeks, to permit regulations to be made respecting what constitutes suitable employment, to remove the requirement that a consent to deduction be in writing, to provide a limitation period within which certain repayments of overpayments need to be deducted and paid and to clarify the provisions respecting the refund of premiums to self-employed persons. It also amends that Act to modify the Employment Insurance premium rate-setting mechanism, including requiring that the rate be set on a seven-year break-even basis once the Employment Insurance Operating Account returns to balance. The Division makes consequential amendments to the Canada Employment Insurance Financing Board Act.
Division 44 of Part 4 amends the Customs Tariff to make certain imported fuels duty-free and to increase the travellers’ exemption thresholds.
Division 45 of Part 4 amends the Canada Marine Act to require provisions of a port authority’s letters patent relating to limits on the authority’s power to borrow money to be recommended by the Minister of Transport and the Minister of Finance before they are approved by the Governor in Council.
Division 46 of Part 4 amends the First Nations Land Management Act to implement changes made to the Framework Agreement on First Nation Land Management, including changes relating to the description of land that is to be subject to a land code, and to provide for the coming into force of land codes and the development by First Nations of environmental protection regimes.
Division 47 of Part 4 amends the Canada Travelling Exhibitions Indemnification Act to increase the maximum indemnity in respect of individual travelling exhibitions, as well as the maximum indemnity in respect of all travelling exhibitions.
Division 48 of Part 4 amends the Canadian Air Transport Security Authority Act to provide that the chief executive officer of the Authority is appointed by the Governor in Council and that an employee may not replace the chief executive officer for more than 90 days without the Governor in Council’s approval.
Division 49 of Part 4 amends the First Nations Fiscal and Statistical Management Act to repeal provisions related to the First Nations Statistical Institute and amends that Act and other Acts to remove any reference to that Institute. It authorizes the Minister of Indian Affairs and Northern Development to close out the Institute’s affairs.
Division 50 of Part 4 amends the Canadian Forces Members and Veterans Re-establishment and Compensation Act to provide for the payment or reimbursement of fees for career transition services for veterans or their survivors.
Division 51 of Part 4 amends the Department of Human Resources and Skills Development Act to add powers, duties and functions that are substantially the same as those conferred by the Department of Social Development Act. It repeals the Department of Social Development Act and, in doing so, eliminates the National Council of Welfare.
Division 52 of Part 4 amends the Wage Earner Protection Program Act in order to correct the English version of the definition “eligible wages”.
Division 53 of Part 4 repeals the Kyoto Protocol Implementation Act.
Division 54 of Part 4 amends the Immigration and Refugee Protection Act and the Budget Implementation Act, 2008 to provide for the termination of certain applications for permanent residence that were made before February 27, 2008. This Division also amends the Immigration and Refugee Protection Act to, among other things, authorize the Minister of Citizenship and Immigration to give instructions establishing and governing classes of permanent residents as part of the economic class and to provide that the User Fees Act does not apply in respect of fees set by those instructions. Furthermore, this Division amends the Immigration and Refugee Protection Act to allow for the retrospective application of certain regulations and certain instructions given by the Minister, if those regulations and instructions so provide, and to authorize regulations to be made respecting requirements imposed on employers in relation to authorizations to work in Canada.
Division 55 of Part 4 enacts the Shared Services Canada Act to establish Shared Services Canada to provide certain administrative services specified by the Governor in Council. The Act provides for the Governor in Council to designate a minister to preside over Shared Services Canada.
Division 56 of Part 4 amends the Assisted Human Reproduction Act to respond to the Supreme Court of Canada decision in Reference re Assisted Human Reproduction Act that was rendered in 2010, including by repealing the provisions that were found to be unconstitutional and abolishing the Assisted Human Reproduction Agency of Canada.

[Lawrence MacAulay, Liberal, Cardigan, PE]

Thank you very much, Mr. Chair.

Mr. Taylor, looking at the obstruction of the passage of the salmon, could they be, in your opinion...? I'd just like to have your view, possibly looking at Bill C-45 and Bill C-38, on whether they have made any changes that will help the situation. Do you think that it could obstruct fish from the feeding grounds or spawning grounds?

I'd like you to comment on the minister's authority to allow fish to be killed. Do you see any time or any reason that this should happen? If so, I'd like you to explain to the committee how you think the minister would have that authority. He has the authority, but what would be a good enough reason to allow these types of things to happen?

Also, if you have some recommendations to expand upon, go straight ahead. I expect you have a lot.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Mr. Taylor, I'll engage you on this a little bit. The other day Mr. Stringer talked about Bill C-38, and Mr. Kamp referred to it before. It will take effect when the Governor in Council decides it will take effect. The January 1 deadline was one the department had kind of set for itself, which is obviously good, for government to set a target.

The three areas they were talking about were, one, information requirements for an authorization; two, the timelines; and three, aquatic invasive species. Those are the three very limited regulatory things they're actually doing right now.

He also stated:

With respect to the other regulations, there is a set that we would anticipate going forward with. They are not required,

—at least initially—but they would probably come later and would also be subject to public engagement.

So to your comment of June 1 as being another date, I think it's important to recognize that there is significant other consultation that will have to happen.

Just as a question on this, and on some of the testimony Mr. Stringer gave to the Senate committee, going back when I was younger in the seventies and eighties when I used to fish the Nashwaak River, the St. John River, and the Miramichi River, obviously there was quite a number of salmon and other species at that point in time. I've seen generally over the years that we might have a bumper year in some cases, as we did last year in the Miramichi—not so great this year—but we've had some good years. But generally in the other rivers—I use the Nashwaak as an example because there is not a dam there from that standpoint—we've seen these go down.

Mr. Stringer talked about the Fisheries Act and called for a regime to protect Canada's commercial, recreational, and aboriginal fisheries; provide protection from serious harm; address managing threats to these fisheries from challenges to habitat, aquatic invasive species, and other threats; and provide enhanced tools for the compliance, and also the partnerships agreement.

I guess when you look at an act from 1868, it seems to me that hasn't worked very well for us and that some of these changes, in terms of focusing on the fish, would be better.

I'd just ask for your comment on that.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Thank you, Mr. Chair.

Thank you to the witnesses for appearing before us as we consider these clauses to amend the Fisheries Act.

As you've heard, I think, the primary purpose of these clauses in Bill C-45 is to provide greater certainty and clarity to the changes that were in Bill C-38. These are not a substantive change to the old Fisheries Act, as such. In that respect, perhaps I can just begin with a clarification.

I understood, Mr. Taylor, that you're somewhat pessimistic about the environmental damages fund and how much money might be available there. But to clarify what happened there, the intent of the changes in Bill C-38 was to align the penalties section of the fisheries protection program with the Environmental Enforcement Act. To be frank, as I understand it, it kind of overlooked the necessity to specify that those monetary penalties would go to the environmental damages fund, as it does with the Environment Canada violation. So this is just to correct that.

I think it could be argued, as well, that the legal requirement to report harm, which was in Bill C-38, the legal requirement now to deliver on the commitment you make when you receive an authorization.... There's the fact that the penalties are increased, they're significantly higher. Now there is a minimum. There wasn't before.

So I think we're more optimistic than you are that there might be a significant fund that groups like the Atlantic Salmon Federation could benefit from.

I guess the other comment that needs to be made, because I think there is some misunderstanding on this score, is that, to my understanding at least, there has been no January 1 commitment to roll out these changes. The commitment that was in Bill C-38 was only that they would come into force at a later date, to be decided by order in council, by Governor in Council, by cabinet. And cabinet, I assume, will do that when it believes that it's ready to do it and that we have all of the necessary things in place to transition into the new regime.

So as to the notion that it's January 1, 2013, I know that internally the department has said that they have set that, themselves, as a target to have the things in place. When the cabinet believes that everything is in place is quite another matter.

But we do appreciate your feedback about the need to delay until we're ready to roll. We would agree with that.

I will turn to Mr. Wuttke for a bit, if I could. I just want to make sure I understood what you were saying, and reflect, as well, what we were told by a departmental official.

We were told that the term “land claims agreement” kind of subsumes within it the notion of a treaty. Yet your comment made it sound as though you didn't agree with that. I wonder if you, as the AFN's general counsel, could provide any clarity to this committee on that.

[Bill Taylor, President, Atlantic Salmon Federation]

Thank you, Mr. Chairman.

Good morning, everyone. It's nice to see you all again.

I very much appreciate this opportunity to appear before you regarding Bill C-45 and the amendments, specifically clauses 173 to 178. I only wish that we would have had an opportunity for further consultation on all the amendments. I'll keep my comments general, with some specific relations to Bill C-45.

With respect to the Fisheries Act consultations, the amendments to the Fisheries Act were thrust upon Canadians without consultation. In answer to public outcry, Fisheries and Oceans Minister Ashfield promised consultation with the provinces, aboriginal groups, stakeholders such as conservation groups, anglers, landowners, and municipalities, to develop the regulatory and policy framework to support the new and focused direction that is set out by those proposed changes.

The deadline for approval of the Fisheries Act amendments by order in council is January 1, 2013, and that date is fast approaching. DFO has arranged no meaningful consultation before this.

The Atlantic Salmon Federation, ASF, recognizes that DFO staff are trying to consult with the provinces and develop the scientific data that would guide the amendments. Stakeholders such as ASF would benefit from being able to review some of the important scientific foundation work that has already been provided by DFO scientists through the Canadian Scientific Advisory Secretariat.

We request, on behalf of the Canadian public, access to these reports, and to have scientists available with whom we can discuss the scientific underpinnings to the key concepts of the amended act.

ASF is still committed to working with DFO to ensure that the implementation of the amended Fisheries Act will protect our fish and their habitats from the impacts of industrial projects in an effective and cost-efficient way, and sustain the many economic and social benefits our recreational fisheries provide now and far into the future. We cannot do this without meaningful consultation that is framed by DFO by providing its information and scientific data that spells out the rationale for protection of our fish and their habitat, amended under the Fisheries Act.

ASF recommends that to allow for meaningful, informed consultation to occur, the order in council required to have the changes to the act come into force by the January 1 date be deferred to June 2013. This extension should ensure adequate consultation and the involvement of all interested Canadians, and time for government officials to do an effective job to develop and share with stakeholders their science-based input.

ASF has prepared a preliminary report, which we have shared with DFO, on the Fisheries Act amendments. In summary, I'll speak to some of those items.

With respect to habitat, fisheries are very important, but a fishery is only as good as the health of the fish and the habitat in the ecosystem on which they depend. This should be the fundamental premise of implementation of the act. The principle of no net loss should continue and be applied consistently.

Regarding recreational fish, ASF emphasizes that protecting the recreational fishery requires not only protecting the specific recreational fish, but also the fish that support the recreational fish. There must be protection of the ecosystem, which supports the health and existence of recreational fish, and the fish that support those fish. The definition of a recreational fishery, as meaning that a species of fish “is harvested under the authority of a licence for personal use of the fish or for sport”, is far too simplistic and seems to infer that populations that are not healthy enough to support a fishery will not be protected. It is important to protect not only existing fisheries but also potential fisheries. The presence of wild Atlantic salmon in a river should be sufficient to identify the existence of a recreational fishery.

It's important to also protect fish listed under SARA. The concept of expansion in productivity of a fishery is not captured in the amended act. Enhancement and restoration of recreational fisheries must be considered, which goes beyond protecting the productivity of fisheries that exist now.

Regarding economic value, the economic and social value of recreational fisheries relies on healthy rivers and oceans, which brings us back to the importance of protecting fish and their habitat to support long-term economic benefits far into the future. It is important to protect potential economic value by protecting fish that may not support a fishery at the moment but have the potential to do so through restoration and enhancement.

Regarding partnerships, there is little information from government on how partnerships under the amendments would work. ASF agrees that efforts of the private and government sector should be more effectively integrated and carried out under a central plan. ASF sees some potential in working in partnership, and recommends that the federal government develop a paper that helps groups such as the Atlantic Salmon Federation understand what is entailed in the government's concept of partnerships and how they would potentially work.

With respect to science, science is of utmost importance in arriving at sound decisions on protection of fish and their habitat, which in turn protects fisheries.

ASF recommends with all urgency that DFO scientists consult with NGO scientists very soon to develop scientific criteria that will underlie decisions on fish and habitat protection in the amended Fisheries Act.

To assist in addressing the science needed to support the Fisheries Act, just as an example, the Ontario chapter of the American Fisheries Society is working with Trout Unlimited and the World Wildlife Fund to produce an independent science piece on key principles that will inform the discussion.

Again, the short timeline of January 1 challenges the effective use of such important scientific input.

Specific to Bill C-45, which is meant to clarify parts of Bill C-38, I'll offer the following comments with respect to the environmental damages fund.

This will not be the cash cow that some profess it to be. A substantial reduction in penalties has occurred, and this is expected to continue.

Because of the new subjective terms that have been introduced, such as “serious harm”, “permanent alteration and/or destruction”, and “ongoing productivity of a fishery”, the amendments are at present legally and scientifically undefined.

It is a huge challenge to determine scientifically how “serious harm”, or causing “death of fish”, affects the productivity of a fishery. This will be a challenge when considering whether to authorize obstruction to the fish passage.

How many fish have to be destroyed to constitute “serious harm”? How do you take into account cumulative impacts? Without clear legal and scientific underpinnings, it will be impossible to get a conviction in the courts. In fact, there will be too much uncertainty in the definitions of serious harm and/or permanent damage for a judge to make a definitive ruling, or for habitat staff to lay a charge, for that matter.

With respect to destruction of fish passage, I know of no instances in eastern Canada where blockage of rivers increases the abundance of native fish. Damming rivers alters the habitat from moving water to still water, a river to a lake. The species composition for a river is very different from that of a lake, and this is often to the detriment of native fish. Although there may be an increase in fish biomass, this is often not in favour of a native wild fish. Productivity of a non-native fish to the detriment of a native fish is simply not acceptable.

Then there's the impact of serious cuts to the DFO habitat staff. These are the people who would make the charges that would lead to the convictions that would lead to the money in the environmental damages fund. We know now that the new fisheries protection program, which was formerly habitat, will have only 16 service delivery points across the country.

With respect to the Atlantic region, these offices will be located in three cities: Moncton, Dartmouth, and St. John's, Newfoundland. Prince Edward Island didn't make the list despite the province's significant impact on river habitat from agricultural runoff. In the Gulf region, we have lost the Tracadie and Charlottetown offices. In Newfoundland, five offices have been reduced to one. In Nova Scotia, at least four offices have been reduced to one.

In 2000, in the Pacific region, there were 1,800 habitat-related investigations, leading to 49 convictions. By 2010, the number of investigations was down to only 300. Convictions under the habitat provisions were down to only one.

The constant pressure of reducing staff and budgets has led to the staff being unable to do their jobs. Habitat protection has been dismantled, which leaves little hope that there will be effective control of assaults on fish habitat or much money flowing into the environmental damages fund.

I could go on, but I'll finish by urging this committee to use its influence to delay approval of the amendments by order in council to allow time to ensure that these amendments are scientifically and legally defensible and that there has been meaningful consultation with the many Canadians who want to have strong protection for our fish and fish habitat.

Thank you.

[Stuart Wuttke]

Once again, on behalf of the Assembly of First Nations and National Chief, Shawn Atleo, thank you for the invitation.

My name is Stuart Wuttke. I am general counsel for the Assembly of First Nations, and I appreciate the opportunity to be here today on behalf of the AFN.

I have several remarks to put forward with regard to the definition of “aboriginal fisheries”, the prohibition against obstructing passage of fish or waters, and the environmental damages fund.

As a preliminary remark, we would like to note that my appearance today does not qualify as consultation with first nations. The Assembly of First Nations is a political organization and the first nations themselves are the individual rights holders of aboriginal rights and treaty rights. A robust consultation will be required by the Government of Canada with first nations across Canada on the amendments put forward for the Fisheries Act in Bill C-45.

Regarding Bill C-45, it's a concern that clause 175 amends Bill C-38 by replacing the definition of “aboriginal” in relation to fisheries. The definition in this section limits aboriginal fisheries to those fisheries practised for the purposes of using fish for food, social, or ceremonial purposes, or for purposes set out in land claims agreements. The amendments in clause 175 specifically remove recognition of “subsistence” fisheries and added those fisheries “in a land claims agreement”.

To begin with, the Assembly of First Nations is concerned about an attempt to legislate a definition as to which fisheries qualify as aboriginal. It is up to each first nation to determine the extent and nature of their fisheries. Leaving avenues open for policy to define food, social, and ceremonial fisheries may result in an infringement of first nation rights.

The government must robustly consult and accommodate first nations if it is to contemplate the nature of aboriginal fisheries.

With respect to amendments, clause 175 falls short of including all first nation fisheries protected by the Constitution Act, including fisheries set out in treaty and traditional fisheries based on first nation inherent rights.

The AFN is substantially concerned that the definition set out will freeze Fisheries and Oceans Canada's interpretations and policies in the year 1990, when the court decision reaffirmed first nations rights to food, social, and ceremonial fisheries in the Sparrow decision.

I'd like to note that the Sparrow decision included an important concept that is lacking in the government's attempt to narrowly define first nations fisheries. The Supreme Court clearly articulated that first nation rights must be interpreted flexibly so as to allow their evolution over time. It would make sense to define aboriginal fisheries in a way that allows evolution over time. Setting a definition that fails to acknowledge fisheries, reaffirmed by the Supreme Court after 1990, that fails to include wording that would allow fisheries that may be reaffirmed in the future, effectively prevents any flexible interpretation of rights and is contrary to the Supreme Court direction.

In a high-level engagement with the Department of Fisheries and Oceans, the Assembly of First Nations learned that the government intends to interpret this definition in a limited temporal scope, meaning that our fisheries that are not utilized, which often occurs for conservation purposes, will no longer be protected from serious harm.

I would argue that this does not qualify as a flexible interpretation. This is counterintuitive, and opens a door for abrogating and derogating first nation rights by allowing for species that first nations fish to continue to decline in population, potentially past the point of recovery, to the detriment of the ability to continue to exercise a right to fish.

Bill C-45 should be amended to make it clear that all traditional fisheries must be protected, whether currently practised or whether in a period of recovery to allow for future practice.

The government has argued that the definition of “aboriginal” fisheries need not include fisheries under economic components, since those fisheries would be protected under the definition of “commercial” fisheries. I caution that unilaterally deciding which fisheries are not aboriginal is contrary to the principle of self-determination, a principle embraced by Canada by virtue of adopting the United Nations Declaration on the Rights of Indigenous Peoples.

I would like to note that the separation of commercial and aboriginal fisheries is arbitrary. The Supreme Court of Canada has been clear that the commercial mainstream principle is not necessarily appropriate for determining what income is situated on a reserve, and it is clear that income attached to a reserve is different in nature from the commercial activities undertaken by non-first nations.

Since aboriginal fisheries must be clearly protected by section 35 of the Fisheries Act, the AFN would recommend that the definition be expanded to include traditional fisheries, fisheries within treaties as well as land claim agreements, and fisheries practised for the purpose consistent with an aboriginal right. An amendment noting that the minister must consult with first nations in determining which fisheries fall within a definition of “aboriginal” would assist in making the act consistent with case law.

On our concerns with regard to clause 174, the Assembly of First Nations is concerned about the breadth and discretion in administering the environmental damages fund for the purposes related to conservation and protection of fish, fish habitat, the restoration of fish habitat, or for administering the fund.

Specifically, the Assembly of First Nations is concerned about how these funds will be administered and used. First nations are specific resource users recognized by the act, and first nations have specific uses that differ from other resource users. It is absolutely essential that first nations rights and interests are considered when administering the fund.

The AFN would suggest that the government include first nation representatives from accountable first nations organizations on the administering body, if and when such body is created. As well, as stated with the replacement of the 1986 habitat policy, the mechanisms for ensuring a preference for like-for-like habitat when compensating for habitat damages may no longer exist.

The Assembly of First Nations recommends that the government continue to maintain a preference for like-for-like habitat in order to ensure that more utilized species do not receive preference in compensation. For example, first nations are the primary resource users of the eulachon fishery. If a project destroys or alters an eulachon habitat, compensation should not come in the form of enhancements of walleye habitat.

On our concerns regarding clause 173, the prohibition against seines, nets, weirs, or other fish appliances that obstruct “more than two thirds of the width of any river or stream or more than one third of the width of the main channel at low tide of any tidal stream”, may result in the infringement of first nation rights.

Certain first nation fisheries require weirs that extend across entire rivers. These weirs all have mechanisms that allow for fish passage upstream. As the right to practice these fisheries is protected by the Constitution, we at AFN suggest an amendment to specifically exempt aboriginal fisheries from prohibition. I would suggest that the government also consider implications of this amendment on its own assessment weirs, which are used in much the same manner.

To recap, the AFN suggestions are the following.

First, clause 175 should be amended to include a definition of aboriginal fisheries to include traditional fisheries, fisheries within treaties as well as land claim agreements, and fisheries practiced for the purposes consistent with an aboriginal right.

Secondly, the government should ensure compensation projects under the environmental damages fund to give preference to like-to-like habitat and ensure that first nations are involved in the administration of the fund.

Thirdly, clause 173 should be amended to exempt aboriginal fisheries.

Thank you.

Employment Insurance

[Kellie Leitch, Conservative, Parliamentary Secretary to the Minister of Human Resources and Skills Development and to the Minister of Labour]

Mr. Speaker, I would like to address the concerns of the hon. member for Charlesbourg—Haute-Saint-Charles. She asked whether we consulted with Canadians on the various initiatives set out in Bill C-38, including changes to employment insurance and old age security.

I would like to assure the honourable member that our government is listening to Canadians.

The Minister of Human Resources and Skills Development, the Minister of State for Seniors and myself consulted widely in the lead up to Canada's economic action plan 2012. We regularly travelled across the country to meet stakeholders, including individual citizens, employers, employer associations, labour groups and academics to talk about the training skills, OAS, seniors and, of course, employment insurance.

Our government’s top priority is the economy, and we are proud that over 820,000 jobs have been created since the end of the economic recession.

Such economic growth is only possible by working in partnership with Canadians. In the summer and fall of last year, I was part of extensive consultations in all regions of the country related to employment insurance and how we set EI rates. This was in addition to the prebudget consultations conducted by the Minister of Human Resources and Skills Development, the Minister of State for Seniors and myself in the lead up to the budget. We heard about EI, the skills gap and the need for better connecting Canadians with available jobs from businesses, labour organizations and Canadians. Consultations are an integral part of our business and provide valuable input for our decision-making process.

Input from Canadians allows us to develop programs and policies for all our citizens.

We have invested heavily in skills and training to ensure that Canadians have the skills and training they need to gain employment in the marketplace. However, it is unfortunate that with all of these initiatives that we move forward with, the opposition continues to vote against them again and again.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, during question period on June 6, 2012, we were in the middle of a debate on the Conservatives' notorious mammoth Bill C-38 and its measures regarding employment insurance reforms.

I asked the Minister of Human Resources and Skills Development that day why her government clearly did not consult workers before bringing in its reform. In a democratic society, where elected representatives work for the people, it goes without saying that decisions regarding major changes to social programs should involve anyone who could be directly or indirectly affected by those changes.

It also goes without saying that MPs can and should call upon experts in each field—employment insurance, in this case—since they are the ones who have the specialized skills needed to help MPs make informed decisions. We consult experts when it comes time to introduce bills and when we are examining certain issues in committee that will affect the lives of Canadians.

When it introduced mammoth Bill C-38, the government did not even want to divide the bill, which amended some sixty laws of all sorts, so that the content could be properly examined by the appropriate committees.

The NDP was quick to work with all stakeholders who wanted to be heard on areas affected by Bill C-38 but had to do so outside the regular parliamentary process because the Conservatives did not place any importance on the consultation process, which is nonetheless fundamental to our democracy's health.

Unlike the Conservatives, the NDP always listens carefully to Canadians, experts, stakeholders, businesses, scholars and others. We already know that the Conservatives never consulted unemployed workers, employers in seasonal industries, advocacy groups for the unemployed, unions or workers on a reform that will affect them. And, it is important to note that just going around the table at cabinet does not qualify as a consultation process.

I would also like to once again remind members that the government does not contribute to the employment insurance fund and that the money in that fund belongs to workers and employers.

I would thus like the minister to explain to Canadians why her government is not consulting the people affected by her employment insurance reform, and why her government thinks it has the legitimacy to interfere in the management of a fund that does not belong to it.

If the minister is so convinced that what she is saying is true, then she should provide evidence to back it up. Who was consulted and how many times? How many stakeholders are there? Did she merely consult her Conservative colleagues? What consultation mechanisms were put in place? How much time did the consultations take? What needs of employers and workers were identified during the consultations?

Canadians have the right to know.

[Mark Adler, Conservative, York Centre, ON]

Thank you, Chair.

I want to thank you, Minister, for being here today. I know how busy you are, so thank you for your time today.

In my riding of York Centre, we regularly convene a number of businesses, mostly small businesses. About twice a month we sit around a table, and we talk about issues and different concerns and challenges they may have.

I have to tell you that, to a business, and these are all small businesses, they all say to convey thanks to the Minister of Finance, particularly for the small business hiring tax credit. They are hiring people as a result of this. A number of them wanted me to pass on a thank you for that.

I want to talk a bit about the IMF's comment on the governance reform provisions which are contained within Bill C-45 and how they relate to what we saw in Bill C-38, the first budget bill. These are designed, of course, to strengthen the financial architecture around the world and all of that.

Canada is co-chair of the G-20 working group. Can you talk about why it's important that Canada take a lead on this to strengthen the international financial architecture and push the IMF to be more effective, particularly with respect to developing economies? How will that benefit Canada?

[Helen Cutts, Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency]

Thank you very much.

My name is Helen Cutts. I'm the vice-president of policy development at the Canadian Environmental Assessment Agency. It's my pleasure to be with you this afternoon. My opening remarks will not take 10 minutes. That will give us more time for questions.

Division 21 in part 4 of the budget implementation act makes a minor technical amendment to the Canadian Environmental Assessment Act, 2012, or CEAA 2012, as it's known in the short form.

In order to provide some context for members of the committee with respect to the amendments proposed by Bill C-45, I will briefly describe the main features of the CEAA 2012.

This new act was brought into force in July shortly after Bill C-38 received royal assent.

These recent changes to federal environmental assessment are part of the responsible resource development plan. The objectives of this plan are to provide for more predictable and timely reviews, to reduce duplication for project reviews, to strengthen environmental protection, and to enhance consultations with aboriginal groups.

CEAA 2012 focuses on major projects. “Designated projects” is the term used in the legislation. Designated projects are identified in the project list regulations. The Minister of the Environment may also require the environmental assessment of a project not on the list. This scheme replaces the “all in unless excluded” approach of the former act.

Responsibility for environmental assessment has also been consolidated with the Canadian Environmental Assessment Agency, the Canadian Nuclear Safety Commission and the National Energy Board. This replaces an approach that saw the act implemented by 40 to 50 federal authorities each year.

There are additional mechanisms for federal-provincial cooperation. A provincial environmental assessment may substitute for the federal process. At the end of the environmental assessment, the Minister of the Environment makes a decision, informed by the provincial report. Before approving substitution, the minister must be satisfied that the core requirements of CEAA 2012 will be met.

The Governor in Council may also declare a provincial environmental assessment to be equivalent, exempting the designated project from application of the act. The conditions for substitution must be met in this case as well.

The Governor in Council must also be satisfied that the province will make a determination as to whether the designated project is likely to cause significant adverse environmental effects. It will ensure implementation of mitigation measures and a follow-up program.

There are now legislative timelines for environmental assessments: 365 days for an assessment by our agency; 24 months for an assessment by a review panel.

The minister may extend timelines by three months. Additional extensions may be granted by the Governor in Council. There is authority for regional environmental assessments that move beyond a project-specific focus. These are intended to assist with the assessment of cumulative environmental effects.

Finally, unlike the former act, CEAA 2012 includes enforcement provisions.

The amendments proposed by Bill C-45 are intended to address minor inconsistencies in the text of CEAA 2012 that have come to our attention over the past four months of implementation.

Clauses 425 to 427, as well as clauses 429 and 431, are intended to ensure concordance between the French and English versions of the act.

Clause 428 corrects an oversight with respect to conditions that can be put in a decision statement. At the end of an environmental assessment, a decision statement is provided to the proponent of a project. This statement sets out the conclusion as to whether the project is likely to cause significant adverse environmental effects. It also sets out conditions that are binding on the proponent; these are mitigation measures and requirements for a follow-up program.

The amendment proposes broader language with respect to the conditions to ensure that a decision statement can include administrative requirements such as reporting on the implementation of mitigation and follow-up.

Clause 430 clarifies that the obligation for federal authorities to ensure their action with respect to projects on federal lands do not cause significant adverse environmental effects is limited to the environmental effects caused by the components of the project that are situated on federal lands.

Finally, clause 432 proposes to close a loophole in the transition provisions. Currently, there is potential for a project to be exempted under the transition provisions even though it would have required an environmental assessment under the former act and would normally be subject to the new act. Where a proponent of a project was advised under the former act that an environmental assessment was not likely required, the transition provisions in CEAA 2012 exempt it from application of the new process.

This exemption would hold, even though a trigger under the former act—that is, a federal decision about a project—might subsequently be identified. The proposed amendment would subject a designated project, exempted under current provisions, to the requirements of the act if it is determined prior to January 1, 2014, that the project requires a federal decision that would have resulted in an environmental assessment under the former act. This amendment would ensure equitable treatment of similar designated projects under two different legislative schemes.

Thank you.

[Tony Maas, Director, Freshwater Program, World Wildlife Fund (Canada)]

Thank you, Chair.

My name is Tony Maas. I direct the freshwater program for WWF-Canada. We are one of Canada's oldest and largest conservation organizations. We have staff and offices across the country. In our 40-plus years working in Canada, we have partnered often with governments, business and industry, and others in the not-for-profit sector to protect ecosystems and sustainably manage natural resources.

I am going to limit my comments today to issues related to the changes to the Navigable Waters Protection Act included in Bill C-45. For reference, that is clauses 316 to 350.

I want to start by saying that I do believe there are some positive amendments to the Navigable Waters Protection Act proposed in Bill C-45—for example, prohibiting dewatering of any navigable water, and relating to new enforcement mechanisms—but it is my opinion that the positives are quite limited. Overall, I believe, the proposed changes to the act are likely to result in negative consequences for navigation, for people, and for the waters that make navigation possible.

Let me just give you three specific concerns. I'll shorten my presentation a bit, just to allow time for questions.

The first, which we've heard some conversation about already, is the separation of navigation from the health of the aquatic environment. That Canadians depend today—often unknowingly—on the protection of navigation rights as a means for protecting the health of our rivers and lakes is really, in my view, a simple reflection of a natural fact: the two are inseparable.

Picking navigation apart from the waters that enable it is very much artificial. The two are part of a bigger whole. Their separation is as artificial as thinking you can protect a fish without protecting its habitat—the waters in which it lives—or suggesting that our economy and the sustainability of the natural resources our environment provides are unrelated or inseparable.

I do have some concerns in this respect—that the changes to the Navigable Waters Protection Act proposed in Bill C-45 may leave unforeseen gaps in environmental protections when piled on top of the changes proposed in Bill C-38, in particular changes to the Fisheries Act. The provinces and territories may lack the capacity, including the financial, technical, and human resources, to effectively protect aquatic ecosystems.

More importantly, I think, my deeper concern is what this means inevitably for the health of ecosystems and people. What I am still not quite clear on is if these gaps have been assessed by the federal government, and, if gaps exist, how they are working with provinces and territories to address them.

The second point I would like to raise is the narrowing of the geographical scope of the act to those waters listed in schedule 2 of Bill C-45. Limiting the scope of the act to the country's so-called most significant waterways stands to leave, in my view, a pretty significant gap in protections for navigation and, yes, for the environment in most of the nation's waters. I'm confident in suggesting that most if not all the waters not listed in schedule 2 are frequented by navigators of some sort.

The St. John River in New Brunswick, where we at WWF have an active project, is a case in point. According to schedule 2 of Bill C-45, only the portion of the river that runs from below the Mactaquac dam to the Atlantic Ocean is currently deemed significant for navigation. I can attest that there's certainly navigation upstream of that dam, despite the barrier it presents. There are tourists and recreational fishers who keep houseboat operators and marina owners in business. We are helping send a group of youth down the river by canoe next summer.

All of this, of course, depends quite clearly on the protection of navigation in the waters upstream and downstream of the dam.

[Kevin Stringer]

Yes, and what I can tell you now is that we didn't have specific consultations on the definition of “aboriginal”. We did hear from a number of stakeholders their views about what was in Bill C-38.

[Kevin Stringer]

Certainly, productivity is the focus. In fact, section 6.1 of Bill C-38, of the amended Fisheries Act, says that the purpose of the fisheries protection provisions is to support the “sustainability and ongoing productivity” of Canada's commercial, recreational, and aboriginal fisheries.

Habitat is a crucial element of that, but it is not the only element of that. We now have new tools to address other threats to fisheries, such as aquatic invasive species, and to take other approaches around productivity. But productivity, as you point out, is the focus of the fisheries protection provisions.

[Kevin Stringer]

During the discussions on Bill C-38 and since that time, we've had a number of calls with a large number of aboriginal groups. The national aboriginal groups we've spoken to. The land claims agreements groups we've spoken to. Some of the regional groups we've spoken to.

We have not met with 638 first nations in the country, but we have spoken as much as we can to some of those groups.

[Lawrence MacAulay, Liberal, Cardigan, PE]

Thank you, Mr. Chair.

Welcome.

Regarding Bill C-38, would you agree that it was done a bit too quickly? You had to come back and change the aboriginal fishery and the obstruction of the fisheries path.

And if you do agree, or do not agree, how much time was put in? Was it recommended by the department? How much time did the minister give you?

[Kevin Stringer]

First of all, sections 20 and 29 deal with fish passage. One of the threats to fisheries is ensuring that there is sufficient water flow, and sufficient ability for fish to get through obstacles. Sections 20 and 29 deal with fish passage.

In Bill C-38, there weren't substantive changes to the provisions that are currently in 20. There were a few. There was modernization. We took a number of sections that were in place before, 20, 22, 26, 27, and a couple of others, and combined them into section 20. Basically, though, it was a modernization of the fish passage provisions. There were a few provisions that hadn't been used since the twenties that were removed, but it was basically left intact.

It was pointed out by some stakeholders that the section 20 that was adopted by Parliament in June included a prohibition that basically said you can't put any obstacle in the water such that two-thirds or more of the watercourse is blocked. But there was no authorization scheme to be able to authorize that. We were saying, and have always said with respect to that provision, that it's the section 35 prohibition that applies in that regard.

Section 35 says that you can't have any undertaking, activity, or work that would cause serious harm to fish that are part of a commercial, recreational, or aboriginal fishery. Certainly if you're putting an obstacle in place, that is where that is triggered.

The concern that we heard from some stakeholders is that when you have that in section 35, you still have something that says you can't put any kind of obstacle that takes up at least two-thirds of the watercourse, and they were saying, “You know, you don't really have an authorization scheme”. We wanted to make it clear there's only one authorization scheme, so we removed that particular section.

We then put it into section 29 and made it a fish management piece, and in 29, basically, that's the section that our fish managers require to ensure that somebody doesn't put a net or a weir across an entire river and block. So we do have the ability to address the issues, and it's clear that our one prohibition is section 35.