Bill C-55 (Historical)

An Act to amend the Oceans Act and the Canada Petroleum Resources Act

This enactment amends the Oceans Act to, among other things,
(a) clarify the responsibility of the Minister of Fisheries and Oceans to establish a national network of marine protected areas;
(b) empower the Minister to designate marine protected areas by order and prohibit certain activities in those areas;
(c) provide that, within five years after the day on which the order of the Minister designating a marine protected area comes into force, the Minister is to make a recommendation to the Governor in Council to make regulations to replace that order or is to repeal it;
(d) provide that the Governor in Council and Minister cannot use the lack of scientific certainty regarding the risks posed by any activity as a reason to postpone or refrain from exercising their powers or performing their duties and functions under subsection 35(3) or 35.‍1(2);
(e) update and strengthen the powers of enforcement officers;
(f) update the Act’s offence provisions, in particular to increase the amount of fines and to provide that ships may be subject to the offence provisions; and
(g) create new offences for a person or ship that engages in prohibited activities within a marine protected area designated by an order or that contravenes certain orders.
This enactment also makes amendments to the Canada Petroleum Resources Act to, among other things,
(a) expand the Governor in Council’s authority to prohibit an interest owner from commencing or continuing a work or activity in a marine protected area that is designated under the Oceans Act;
(b) empower the competent Minister under the Canada Petroleum Resources Act to cancel an interest that is located in a marine protected area that is designated under the Oceans Act or in an area of the sea that may be so designated; and
(c) provide for compensation to the interest owner for the cancellation or surrender of such an interest.

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Thank you, Mr. Chair.

Thank you to both of our guests, who have provided testimony to this committee before, and specifically for their submissions on Bill C-55.

Mr. Woodley, I'll start with you, if I could. We were talking earlier about the spillover effect in protected areas. You also referenced the idea of adding a management purpose to the act. I'm wondering if you could talk about both of those things, the purpose and the spillover effect—and you have touched on this—and add to that the complication of particular activities. I'm thinking specifically of fishing and how often that can be contentious. We just heard from representatives, fishermen and associations, on the east coast, and they seem to be in favour of certain amounts of protection but concerned about protecting where they can't fish.

You made reference to a spillover effect of a protected area, but there seems to be an issue of scale. The fishermen were saying, the larger, the better, and spillover effects happen more effectively, but you were providing examples of smaller protected areas still giving this spillover effect.

How do we balance all this? How does the government balance and come to a decision? We are even hearing, to add to that mix, about changing ocean conditions. It seems like a lot of change is happening. I know one thing the fishermen want. I spoke to a number of fishermen yesterday, and the Fisheries Council of Canada. The one thing they want is certainty.

How do we provide certainty in a very changing world, provide the purpose you're talking about, as well as look at whether the spillover effect works?

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Thank you, Mr. Chair, and my thanks to the guests for being here.

I think we have to reel this conversation in a little bit, because we're talking about Bill C-55. Really, what it's all about is the authority for a ministerial order to be issued that would designate an interim MPA and prohibit certain activities. We're dealing with something we think might be sensitive. We would not necessarily have all of the science ducks in a row, to say yes, for sure, this, that, and the other. In fact, the language in the bill specifically says that the minister can act even in the absence of conclusive scientific information.

The other thing, which seems to have escaped quite a number of people who have appeared before us so far, is that this bill would allow activities that have been under way for at least the last 12 months to continue, or alternatively, to compensate activities, particularly oil and gas extraction, if we decide in this interim order that we want to prohibit those activities from continuing.

I want both Mr. Woodley and Ms. Nowlan to be thinking about this on an interim basis, absent all the science, and tell us, now, what you think the minister should be thinking about and who the minister should speak with before he comes in with an interim order that would sunset within five years.

Mr. Woodley, we'll start with you.

[Linda Nowlan, Staff Counsel, West Coast Environmental Law Association]

Thank you, and good morning. I'm happy to see you again. It's pretty dark out here. It's early in the morning. It's been about six months since I testified to you about this very subject.

I'm really pleased to be here again to celebrate all the action on marine protection of the past six months, to talk about the good features of Bill C-55—which we support—and also to go through key points from our written brief that outline ways to improve the bill even more so that your government will leave an even greater lasting legacy for marine protection.

As you have our brief, I won't go through it in detail. I'm going to highlight some key points, and I would be happy to answer questions later.

As you know, the oceans provide every second breath we take and are essential to who we are as Canadians. Our history, culture, diet, transportation networks, recreational activities, and spiritual beliefs revolve around the ocean. Yet cod, the lifeblood of so many of your communities, have still not recovered, 25 years after commercial fishing was halted. Wild salmon are in danger on both coasts. Whales are dying in alarming numbers, and moratoria are in place for too many previously commercially fished species.

We want to celebrate the leadership of the government because marine protected areas, as you've just heard, are one solution, which this bill recognizes. The bill has some very good innovations, like the interim marine protection area designation, freezing the footprint of activities in the areas, and especially, a timeline to make sure we can designate areas a lot quicker than we currently do.

Bills like this don't come up very often for amendment, so now is the time to improve our flagship ocean protection law even more while the global momentum on oceans is so high, as we saw with the UN meeting in June on oceans, the Our Ocean conference in Malta, the upcoming leadership of Canada on the G7 with the blue economy theme, and while Parliament is looking at the details of the best feature of ocean protection law.

Our brief outlines very specific recommended amendments with legislative language to strengthen the bill even more, and the main area of improvement is on these minimum protection standards. This was a key message from the workshop we held in June in Ottawa with many government members, experts from different countries, and representatives including stakeholders from all three coasts, the IUCN, first nations leaders, and industry representatives.

To be effective, MPAs must be truly protected, and that's why we need these minimum protection standards. Your government is on top of the quantity issue for marine protected areas and has made a lot of progress. Now it's time to address quality of protection. Your government's environment committee made a unanimous recommendation about this topic in its recent report on federal protected areas—recommendation 26.

Our brief recommends a number of amendments to enshrine standards in law. The law is currently very inconsistent. As you've heard and will probably continue to hear, people are astonished to learn that oil and gas exploration, undersea mining, and damaging fishing activities are all possible in the tiny fraction of the sea that we call marine protected areas. That's why an unprecedented 70,000 Canadians, members of the public, spoke out about one of the proposed new MPAs, Laurentian Channel, and said that we need to keep harmful activities out of these areas.

Right now, the act creates inconsistent protection standards. We did send an expanded version of our brief to all of your offices this week, and appendix 2 of that brief has a chart of all the MPAs designated under the Oceans Act, and lists which activities can take place. You will see that there are a lot of activities allowed, and some of them are harmful. That really shouldn't happen.

These are straightforward amendments to achieve the goal of minimum protection standards, and there are precedents that exist now already in Canadian law that can be transferred into the Oceans Act. Now is the time to do that. We point particularly to the outright prohibition in the Canada National Marine Conservation Areas Act and its section 13. The environment committee unanimously recommended that this should happen. We hope your committee can also make this proposed amendment.

You may be told that these simple standards prohibiting damaging activities can't go into the act because of legal barriers, but I'm here today to tell you that it's both possible and straightforward to make these amendments, whether for oil and gas in all parts of Canada or for bottom trawling in fishing. Our brief has details on these legislative options.

Requiring the ecological integrity of MPAs to be the top priority for designation and management is an easy and straightforward amendment—we've just heard from Stephen Woodley about this—and we also recommend it and the legislative language from the Canada National Parks Act.

Both the 10-page brief you have before you today and the longer version we sent to you sets out language for these standards. You have the power to make this happen right now. We don't expect the Oceans Act to come up for amendment again very soon. Right now really is the time to get it right.

We also recommend an amendment to increase accountability by amending section 52 of the act to require an annual report to Parliament on how many MPAs are designated and whether they're meeting their conservation objectives. We already have such a reporting obligation in the Fisheries Act. We have a sort of strange one in the Oceans Act, which requires a one-time report, which already happened, but not regular ongoing reporting. This would be a good amendment to make.

We commend your government's commitment to reconciliation, and our brief sets out a number of proposed amendments related to indigenous rights, jurisdictions, protected areas, and co-management. We recommend that you engage on a nation-to-nation basis with first nations on these amendments.

In conclusion, Australia is famed for its Great Barrier Reef, Ecuador for the Galapagos, and the U.S.A. for marine protected areas like California's Monterey Bay, Alaska's Glacier Bay, and all of Hawaii's amazing undersea wonders that are protected. Here in Canada, we want our marine areas to equally be a source of pride for all Canadians and bastions of nature's wonders unaffected by industrial activities. From our seamounts to our glass sponge reefs, to our whale breeding grounds, we're blessed with rare wild places that deserve the best protection we can imagine and the strongest laws to make that happen.

You have the power to again make the Oceans Act a world-leading law by enshrining minimum protection standards. I think we all want our grandchildren to experience the wonder of nature and our blue planet.

I'm happy to answer any questions you may have about proposed amendments or any other matters in our brief. We strongly support this bill as do many of our colleagues in the conservation sector, and we are working to encourage you and your colleagues to make it even stronger.

[The Chair, Liberal, Scott Simms]

Welcome back, everybody.

Colleagues, if you noticed, there's a pattern emerging here that takes us over time on occasion. I'm going to stretch this by five minutes each meeting simply because I think it's equitable. Here's what the formula looks like right now. If you want to split your time, here's what's happening.

The first four questions of the first round are being asked fully and completely, that's fine. In the second round, I'm going to go with two questions. Given that we only have an hour, that seems to be about the best we can do. What that provides is 14 minutes for the Liberals, 12 minutes for the Conservatives, seven minutes for the NDP. That is the best I can make it with the number of witnesses we have and the time that we have within an hour. I say that because this is why we're stretching this meeting beyond five minutes, because I want to get that equitable formula in. There is another committee after, so you get the idea.

Nevertheless, in our second round here today, in the second hour of today's meeting on Bill C-55, joining us by video conference from Vancouver we have Linda Nowlan, who is the staff counsel at the West Coast Environmental Law Association, certainly a group that is no stranger to this committee; and from the International Union for Conservative of Nature, joining us here in Ottawa is Stephen Woodley, who is the vice-chair of science and biodiversity for the World Commission on Protected Areas. I hope I got your titles correct.

You get up to 10 minutes for your opening remarks. You don't have to use the whole 10 minutes for your opening remarks. We're going to start with Mr. Woodley.

Mr. Woodley, you have up to 10 minutes, please.

[Pat Finnigan, Liberal, Miramichi—Grand Lake, NB]

Thank you, Mr. Chair.

Thank you to the panel here this morning to talk about Bill C-55 and the marine protected areas.

Mr. Smith, I'll start with you. I'm from New Brunswick. I'm from the Miramichi area, home of the beautiful salmon river.

How far offshore does your industry usually go?

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Thank you, Mr. Chair, and thank you, witnesses, for your testimony on Bill C-55.

Mr. Smith, can I start with you in asking if your association has a position on oil and gas in MPAs?

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Thank you, Mr. Chair.

Thank you to our guests this morning.

It's been an interesting process. The MPA study that we started early this year through a motion that I put forward to the committee has evolved now into studying Bill C-55, which is very much interrelated.

Mr. Smith, you talked about some of the current process. We're aware that the current process to establish an MPA is anywhere from five to seven to 10 years.

Would you comment, has that process produced efficient and effective MPAs? I will ask the others on the video conference as well.

[Ken McDonald, Liberal, Avalon, NL]

I don't recall anyone from the oil and gas industry presenting to us yet on Bill C-55 to enable us to ask them what happens when they're doing that directional drilling. I know it takes place, and I know they have the capability to do it, but I don't know.... As well, I know we've had people—I've met with them—from, say, Nalcor Energy in Newfoundland. They did a lot of seismic work and whatnot to figure out where there may be oil and gas off our shores. They've said that one of the ways they find it is that oil actually comes to the surface of the salt water, so there are natural cracks and escapes, whether they be gases leaking naturally over the years or small amounts of oil coming to the surface.

Like you, I don't know what that directional drilling would do or what it would cause to open up, but I can see how it would be a concern.

With regard to fisheries, I know you mentioned the scallop fishery, which I guess is bottom dragging—

Am I done?

[Lois Mitchell, Designated Board Representative, Fundy North Fishermen's Association]

Good morning, and thank you for this opportunity to speak to this issue, which I think is very important to fishermen and to the families and communities in our area.

To give you a bit of an introduction, I am part of a fishing family. My husband, son, and son-in-law all fish together. They fish lobster, scallops, and herring. My husband and I have four grandchildren, all of whom we hope will want to stay in their home community and carry on the family tradition of the fishing way of life.

I've also studied the fishery academically as a sociologist when I did my Ph.D. research on the Deer Island fishing economy, and I'm currently serving as a director of international studies at a small university here in New Brunswick called St. Stephen's University. I speak from personal interest and experience, lived experience. I speak on behalf of the fishermen of Fundy North. My husband is the vice-president of Fundy North, and we're just one and a half weeks into the fall lobster season, which is a huge part of our annual income, so he's out fishing. Most of the fishermen in our part of Fundy North are out fishing and aren't available to speak for themselves.

As I've read through the legislative summary, I am almost persuaded that the MPA network framework is a sensible, and maybe even necessary, approach to protecting the marine ecosystem on which so many of us directly or indirectly depend. I believe and I think I'd be remiss if I didn't at least mention in this short time that there are some gaps and flaws in the approach.

In respect of the process and your time, I'm going to try to frame my responses around Bill C-55. Maria mentioned the length of time that consultation takes, and I know that consultation is a challenging process, but it's an important one insofar as it aims to combine scientific, anecdotal, and industry wisdom and best practices with the regulatory systems that are already built into the marine environment. We all need to come to the table, I think, with a sense of humility in recognition of the challenges before us when it comes to respecting biodiversity on land and in the water. I'm constantly reminded that we know so little about the marine environment, and what we know for sure is literally, quite literally, a drop in the ocean.

I'm going to address three specific things in my comments.

First is a trial period. If there is one thing I am drawn to in this amendment, it's the fact that there would be a five-year period before a permanent MPA is established. Making any MPA permanent is a bit problematic from my perspective, so any delay in doing that may be a positive thing. The reason I am concerned about the permanence of MPAs is that the science on which the proposed network is based is fairly old. Even with the current baseline, which I understand is being established, how do we define the health of marine habitat, and how do we know if fisheries efforts in or around an area are actually detrimental to its long-term biodiversity?

The marine environment is wonderfully dynamic and incredibly resilient. Human activity can certainly be destructive of marine habitat, to be sure, and if we want to survive within the system, we need to manage our activities appropriately.

Second, I want to quickly raise the issue of enforcement. Enforcement of current regulations has been hugely problematic in our area due to lack of resources. There are too few officers and no appropriate boat for enforcement purposes. I think the issue of increased enforcement expectations in the establishment of MPAs, especially if they're introduced quickly, could be a problem.

Finally, there is the precautionary approach. To argue for a precautionary approach, which could be loosely translated as "we think an MPA will be a good thing but we don't actually know that it will be”, and to take it a step further, that it's quite likely we will never know with complete certainty that any outcome is a result of the establishment of an MPA in a specific area, may be sufficient for those of you who are tasked with the enormous responsibility of making laws.

Speaking from the perspective of fishermen, their families, and communities, they—and we—are less enthusiastic about potentially being collateral damage in an experiment of this magnitude. Telling fishermen that they will be able to fish within an MPA under certain conditions or that their current activities will be permitted is a dangerous proposition, I think, and perhaps reminiscent of the way indigenous people lost huge parts of their culture. I don't have time to explain that, but I think there are cultural similarities between indigenous people and fishing communities.

As the marine environment changes over time, so do the fisheries. In 32 years, I've seen enormous changes in fisheries in our area and I expect that they will continue. Whatever we do or don't do affects the marine environment. Fishermen really see themselves as part of the ecology, not as separate from it. I think we have to take that into account in all of these deliberations.

Thank you.

[Tom Smith, Executive Director, Aquaculture Association of Nova Scotia]

Thank you very much.

Good morning, Mr. Chair, members of the committee, and ladies and gentlemen.

Thank you for the opportunity to speak today. My name is Tom Smith. I'm the executive director of the Aquaculture Association of Nova Scotia. I've worked in the food industry both here in Canada and internationally with land farmers, sea farmers, food and drug retailers, and food processors for over 20 years.

At the Aquaculture Association of Nova Scotia, the AANS, our mission is to support the production of quality food in the cool, clean waters of Nova Scotia, creating wealth based on a renewable resource. We represent land- and marine-based seafood farmers in more than 14 farmed species, such as salmon, trout, and striped bass, and in the shellfish sector, oysters, clams, quahogs, and mussels, all of the products that we love to enjoy. We represent those farmers throughout Nova Scotia, from the south shore of Nova Scotia and the Annapolis Valley to the north shore and the Bras d'Or lakes in Cape Breton. More than 100 members strong, we represent sea farmers, industry suppliers, academia representatives, and aquaculture processors.

The AANS is proud of its work with Nova Scotia sea farmers to assist in the development and growth of the aquaculture industry in Nova Scotia. Our organization's community outreach and research and development initiatives, we believe, are integral to our collective aspirations of developing greater economic opportunities for our Nova Scotia rural and coastal communities.

We were very pleased over the past number of years to have had the opportunity to work closely with the Nova Scotia Department of Fisheries and Aquaculture in assisting and collaborating in the development of the new Nova Scotia aquaculture regulatory framework that was introduced over the past year. We are also pleased to have worked with Fisheries and Oceans Canada over the last number of years on recommendations to the federal aquaculture activities regulations, the AAR.

I am here today at the invitation of the standing committee to provide our comments and insights on Bill C-55, an act to amend the Oceans Act and the Canada Petroleum Resources Act.

Let me begin by stating that the aquaculture industry is deeply committed to the protection of our environment and the responsible and sustainable management of our natural resources. We believe environmental protection and economic development can both be part of a thriving Nova Scotia community.

Aquaculture development is a key priority for all of us in the province of Nova Scotia. Over the past 50 years our history has shown that aquaculture is a sustainable activity in our waters.

Nova Scotia has tremendous potential for aquaculture expansion in all regions of our province. I was very pleased to have been on the podium last June when Premier Stephen McNeil, and Keith Colwell, the Nova Scotia Minister of Fisheries and Aquaculture, announced that following years of government and industry collaboration, the Province of Nova Scotia was now accepting applications for new aquaculture leases and licences.

In collaboration with the provincial government, we believe that Nova Scotia has the most robust, transparent, and modern regulatory framework for aquaculture management in Nova Scotia, if not the world. In my presentation that day, I was proud to state that the industry had worked closely with important stakeholders, first nations communities in Nova Scotia that are actively involved in aquaculture development, and with the public, as we participated in the regulatory reform in Nova Scotia.

We believe that all the pieces are in place for the responsible and sustainable development of the aquaculture industry in Nova Scotia. We are now ready to go. With this momentum, there are significant private sector investments being made in aquaculture right now in Nova Scotia, with many more developments being planned.

However, we believe that the current approach to MPA identification and development in the coastal waters of Nova Scotia represents an immediate and significant risk to present aquaculture operators and to future development. To date, engagement on MPA identification and development with the aquaculture industry, in our opinion, has been inadequate.

DFO has not directly provided any indication on what types of aquaculture, if any, would be permitted in an MPA. DFO has met with other stakeholder groups, without engaging the aquaculture industry, and indicated that certain types of aquaculture would not be permitted in an MPA. We believe that this is unacceptable, and we believe this further perpetuates negative attitudes toward the aquaculture industry.

DFO has not supplied any science, to date, to support the exclusion of aquaculture from MPAs. Areas identified for potential MPAs currently have several types of aquaculture that DFO wants to exclude and these are areas of high interest for future developments.

DFO's current approach will affect existing operators and significantly dampen investor confidence. We are asking DFO to slow down the next phase of MPA identification and development, properly engage the aquaculture industry of Nova Scotia, and make decisions based on sound science.

The Nova Scotia aquaculture industry supports the protection and conservation of our marine resources, as evidenced by our progressive codes of best practice, support for the new Nova Scotia aquaculture regulations, and the way we run our farms every day of the year.

Nova Scotia has also made significant contributions to the MPA process already. We believe, as does the International Union for Conservation of Nature, IUCN, that sustainable aquaculture should be considered and included in any MPA development. “Promoting synergies between multiple-use MPAs and identified compatible activities, such as sustainable aquaculture production is essential”, according to the IUCN.

A clear understanding of what will be allowed in any MPA must be determined before our industry can provide any feedback on proposed areas for consideration. The careful inclusion of aquaculture in MPAs, as has been done in Australia and Scotland, could allow DFO to fulfill its MPA objectives without denying Nova Scotians a future in aquaculture.

I do want to be clear, though, that we enjoy a good relationship with Fisheries and Oceans Canada. We work closely with DFO on many files and share many common interests and goals. The AANS is a long-standing member of the Canadian Aquaculture Industry Alliance, CAIA, and I am joined here today by Tim Kennedy, executive director of CAIA. Working with Minister LeBlanc and his senior staff, CAIA and DFO are fully engaged in discussions around the creation of a national aquaculture act, a process the AANS fully supports.

Just as an aside, yesterday was the opening conference for CAIA, and Minister LeBlanc was very gracious to be there, open the conference, and express his appreciation for the work we are doing.

We've also worked very closely with DFO on improvements to the Canadian aquaculture activities regulations, coordinating this development with industry and the Atlantic provincial governments. As well, we continue to work closely with all federal and provincial regulators to ensure the safe and progressive development of our aquaculture industry, an industry that we strive to ensure will grow and prosper.

Finally, before I finish, I want to extend a warm invitation to all of you to attend our Aquaculture Association of Nova Scotia annual Sea Farmers Conference, January 24 to 26. The theme of this year's conference is “Making Waves: Aquaculture's Next Chapter”, and we believe that, as a result of all the work and collaboration between industry, government, and the public over the last number of years, aquaculture's next chapter will indeed be very bright.

Ladies and gentlemen, thank you very much for the opportunity to appear. I look forward to any questions you might have.

[The Chair, Liberal, Scott Simms]

Good morning, everybody. Pursuant to the order of reference of Tuesday, October 17, we are here to study Bill C-55, an act to amend the Oceans Act and the Canada Petroleum Resources Act.

I have just a bit of committee business before we introduce our guests. If members recall, we moved clause-by-clause from December 5 to December 7. That leaves December 5 open, which I think was addressed by Ken McDonald before we shut down.

What I'm proposing is that on December 5 we should do the subcommittee, the steering committee, to discuss future business. I know that in the past we didn't use the subcommittee that much and just used the whole committee, but it was suggested that we should go back to the subcommittee. I'm suggesting December 5, and instead of 8:45 a.m., let's say 9:45.

I know Todd isn't here.

Fin, are you okay with that? Okay.

Are you on it, Bernadette?

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

That would certainly be heavily impacted by Bill C-55.

Mr. Wareham.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

One part that we've heard is troubling about Bill C-55 is proposed section 35.2:

The Governor in Council and the Minister shall not use lack of scientific certainty regarding the risks posed by any activity that may be carried out in certain areas of the sea as a reason to postpone or refrain from exercising their powers or performing their duties and functions under subsection 35(3) or 35.1(2).

This is why I asked if we have the science. Do we know what's there that we're needing to protect? This bill would seem to want to give power to the minister to be able to impose these protected areas with a lack of science.

[Nikki Macdonald]

Again, I remind you that, from my perspective, Bill C-55 is enabling legislation that sets out a framework through which we make decisions on what we intend to protect. To use again the term “adaptive management”, for me it's implementation. What exactly are we going to be protecting? That's an ongoing process that will be decided upon separate of the passage of Bill C-55.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Thank you, Mr. Chair. I'll be as quick as I can. If I get cut off, I get cut off.

Quickly, to both of you, do you feel there's been enough time to identify specifically what it is that we need to protect and want to protect in order for Bill C-55 to move forward to reach these targets in 2020? Has there been enough time to identify what needs to be protected or what we want to protect?