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.

[Nikki Macdonald, Ph.D. Candidate, University of Victoria, As an Individual]

Thank you, Mr. Chair, honourable members. I really appreciate being here today to speak about Bill C-55. Before I get into the substance of my remarks, I have just a quick, few personal notes. Some of you I've met in the past, through my work with the University of Victoria and with Ocean Networks Canada, but today I'm here as an individual and as a Ph.D. student at the University of Victoria's school of public administration. I have focused my research on ocean policy, and specifically on Canada's Oceans Act.

I really compliment the government on the initiative to amend the Oceans Act. As has been mentioned here in committee and in the House, it's been 20 years since the act was written and it's due time to ensure that we're meeting our international obligations, as well as the challenges of oceans management, and take another look at the act. I also applaud the government for seeking to meet the target of 5%, in 2017, of designated marine areas, as well as 10% in 2020. Designated marine parks or marine areas are important ocean management tools, but my objective here is actually to talk about the other 90% of the water. That's where I have focused my research.

Canada's Oceans Act was created as a foundation to ensure the wise development of Canada's oceans' waters. When I began my research three years ago, I was addressing the question of how we go about, as a country, making decisions about ocean use. I began my research by looking at that through the public consultation process that was under way for the northern gateway project. I'm a west-coaster, so that's part of the reason behind that. I was puzzled as to why there did not appear to be a framework through which the government was making decisions around ocean use. That puzzlement led to research, which led me back to Canada's Oceans Act.

I've also been investigating the public narrative that was exposed through that public consultation process that the joint review undertook as part of the northern gateway project. The intent of my research is to compare that public narrative around ocean use with the normative frame that is underpinning the Oceans Act.

There are three key observations that I want to share with you today. The first is that the Oceans Act contains, in its preamble, a set of principles that are intended to guide Canada in managing its ocean resources, and these principles remain relevant to today's challenges.

The second observation is that the act was a promise of a solid foundation upon which Canada would build its ocean management strategy, as the minister of the day described it, to address the “piecemeal, fragmented and scattered” character of Canada's ocean policy prior to 1996. From the evaluations conducted by this committee in 2000, by the Auditor General's office in 2005, and further government evaluation in 2006, the act has largely failed to meet this objective.

The third observation arising out of my review of the public consultation around the northern gateway project is that the public expectation around decision-making on ocean use has changed in 20 years. While the expectations are mostly in alignment with the founding principles of the act, there is a broader definition of what is “ocean”. It is no longer simply, to quote, the “gravel pit for fish”, as described in the Senate hearings in 1996, nor the transportation route for shipping. Instead there is a clear public awareness of the interconnectedness of the ocean within its own systems to the relationship with climate and human activity.

When Canada's Oceans Act was first passed 20 years ago, it was the first of its kind to put in statutory form the key principles of ocean management that had been developing through international law and agreement. During the same period, Australia had proposed an ocean policy that included many of the same elements as Canada's Oceans Act, but it was not given legislative form.

A key aspect, as I mentioned, of the act was the preamble that sets out the core principles to guide Canada's ocean management strategy. The two founding principles were sustainable development and integrated management.

The definition of “sustainable development” was drawn from the Brundtland commission that had in its 1992 report brought the concept to international stage. The concept of integrated management, according to the testimony provided to this committee at that time, was intended to be implemented at a federal level through better co-ordination and collaboration under the leadership of the Minister of Fisheries and Oceans, and at a regional level through the creation of integrated regional plans. Other principles that were added to the preamble following the committee hearings included the recognition of the common heritage of the oceans, the importance of the ecosystem-based approach to maintain biological diversity, and the application of the precautionary principle.

These principles remain the guides of the ocean policy according to the broader literature. There's little evidence to suggest they cannot continue to guide Canada's decision-making around ocean use. They have, however, been evolving. One example of the evolution in the concept of sustainable development is that Canada's Federal Sustainable Development Act was amended recently by the Minister of Environment and Climate Change. It's important, in the interpretation of the Oceans Act, that it mirror the definition of principles outlined in the Federal Sustainable Development Act.

The real challenge with the principles, however, has been with the implementation. As noted, the act and the subsequent oceans strategy and oceans plan called for the creation of integrated regional marine plans that would incorporate aspects of coastal zone management. Five plans were initiated, and it took almost 20 years for them to be completed. It is worthwhile to note that Australia initiated a similar process, and after a decade, they vacated it.

Similarly, within the federal government there has been little success in moving away from sectoral-based decision-making towards a holistic and integrated approach. Explanations that have been given as to why that was not achieved include the lack of resources to enable implementation, the lack of political will to champion an integrated approach, and that the act lacked the prescriptive detail to direct the bureaucracy in its implementation. The good news is that today, the current government, through its mandate letters and the oceans protection plan, has demonstrated a commitment to a collaborative approach to oceans management.

The question for the committee is whether there's any need to amend or improve upon the act to ensure that future governments continue to promote this approach.

As I noted earlier, the public expectation around ocean use has been evolving over the past 20 years. As one official from Transport Canada noted to me several years ago, marine safety used to mean getting a vessel from point A to point B without collision or accident. Today marine safety includes evaluating the impact of freighter traffic on marine mammals in their habitat through such programs as the eco-project under way in Port Metro Vancouver.

It is a combination of science and technology that has fuelled this change in public expectation. Science, defined here to include natural and social science as well as the humanities, has exposed the important linkage between the ocean, climate change, and the impact of human behaviour. Technologies such as improved hydrophones allow us to pick up not only the different dialects among the orca, but also the distress that they exhibit around marine traffic.

Infrastructure such as Ocean Networks Canada and the Ocean Tracking Network are opening up the ocean in ways we were not able to see 20 years ago. The consequence in policy terms is that we can no longer make decisions about ocean use on a sectoral basis. We need to explore new mechanisms to support more holistic approaches to decision-making at a federal level, a regional level, and a local level.

Therefore, my question to the committee is whether the act should be amended to include a commitment to capacity building to meet this need—a suggestion made by the Brundtland commission 20 years ago.

I would like to thank the committee for providing me with this opportunity to share my observations regarding the Oceans Act and the impact on decision-making around ocean use, and I look forward to your questions and comments.

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

Thank you, Mr. Chair.

I'd like to thank our witnesses for being here this morning.

I believe this Bill C-55 is important to Canada's future, and I think it's important that we get it right.

We've heard time and again that MPAs typically take five to seven years to implement and be put in place. Targets were set. They may have been admirable targets, but maybe they weren't quite achievable at the time.

However, we seem to have some hard timelines put in place now: the 2017 target of 5% and now the 2020 target of another 5% on top of that. We only have basically two years left. I'm not sure whether the targets end at 2020, so maybe that's three years for what is normally a five- to seven-year process.

I guess I would ask this next question to each one of you. Do you feel that this process may end up being too rushed, passing Bill C-55 and trying to meet these targets?

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

Thank you, Mr. Chair, and thank you to the panel for being here with us today as we study Bill C-55.

To maybe follow up, Mr. Crowley, on a question that was asked earlier, could you elaborate on the funding that you receive? Are you getting special funding, or are you simply getting funding from different programs? Could you elaborate what funding you're getting from the federal government?

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

Yes. I think this is probably what the government is struggling with, and what I know the committee struggles with. How do you strike that balance? How do you look at protecting Canada's oceans? At the same time, how do you enable or allow economic activity to happen for coastal communities, for other communities in Canada?

It's obvious to me that if you look over the past 150 years anyway, and you see how we've been doing, I think there's a reason we need to protect our oceans because we haven't been doing a good job of that in the past. We're now looking for different ways to do that.

I guess more specifically, and the consultation is important, but in the aims of the government in Bill C-55 we still need to set a limit of how much time we consult or else we won't make decisions and continue.

You've identified a number of things, like bottom trawling, oil and gas and mineral exploration and development, open-net pen aquaculture, tidal power development, and wind farms. Does WWF Canada have expertise or can you cite evidence, documents, or studies that back up how these are harmful activities to the ocean and the ocean marine ecosystem?

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

Putting the consultation in context, Mr. Crowley, you talked about minimum standards. You've submitted recommendations here, and I'm wondering. You mentioned in your testimony a lack of minimum standards in Bill C-55, which you feel is a serious shortfall. I think this is tricky because you're saying you support Bill C-55, you support the intention to speed up the process, but at the same time there is an issue of minimum standards, which obviously requires consultation when you're talking about impacting the types of things you've identified.

Could you talk a little more about how you strike that balance of enough consultation, yet saying these are harmful activities we want to exclude in a marine protected area?

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

We haven't travelled to any coasts, any coastal communities, and we're dedicating five committee meetings to Bill C-55?

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

How many committee meetings have we dedicated to Bill C-55?

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

Thank you, Mr. Chair.

Thank you to our witnesses for being here and providing your testimony on Bill C-55.

I wanted to start off with Mr. Hardie's comments about consulting coastal communities and, first of all, ask our clerk if we have travelled to any of our coasts to consult on Bill C-55.

[Paul Crowley]

We have engaged with communities on a number of issues, including MPAs, and on Bill C-55 as well. I have had some discussions with Inuit organizations about these issues.

[The Chair, Liberal, Scott Simms]

Thank you, Mayor Helin.

We're now going to our questions, but before we do, there are just a couple of things to point out.

Over the next little while, colleagues, and this is just a suggestion on my part.... If you recall, a few meetings ago, we passed a motion to incorporate testimony from MPAs into this study of Bill C-55, where we spoke to bands such as those on the west coast. It occurred to Thai, our analyst, that it would be helpful if we could convert or take some of the testimony here and put it into our MPA study as well, so the flip of that.

Have a think about that, because we need a motion to do that, and we can't do it in public, of course, unless we have 48 hours' notice. Would anybody like to bring forward a motion to have evidence from this testimony regarding Bill C-55 included with our MPA study down the road in the next few months? It was his idea, not mine.

Okay, folks, now we go to our questions.

Mr. Hardie, you have seven minutes, please.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Crowley.

Mayor Helin, before we get to you, we did meet with your band when we were in Prince Rupert. I don't think you were there at the time, but it's good to welcome you back officially once again. That was about marine protected areas. Similarly, we're on Bill C-55. It's good to have you back, sir.

You're up for 10 minutes or less, please.

[Paul Crowley, Vice-President, Arctic Program, World Wildlife Fund-Canada]

Thank you.

Good morning, everyone. Thank you for the invitation. I just want to start by acknowledging that the work you're doing is critically important to ensuring that Canada has the necessary laws and policies in place to protect the health of our oceans. We have submitted written comments, which I trust you've received.

Just quickly, I'm sure you're familiar with the World Wildlife Fund. We're one of the largest independent conservation organizations in the world. We have projects in 100 countries. WWF-Canada creates solutions to the environmental challenges that matter most to Canadians. We work in places that are unique and ecologically important so that wildlife, nature, and people thrive together.

With respect to our marine conservation work, WWF-Canada believes healthy oceans depend on a network of marine protected areas that account for ocean currents, species migration, and other ecological connections. We are working in partnership with coastal communities, indigenous peoples, and groups to advocate for MPAs and sustainable oceans management. WWF is pushing to have stronger conservation standards, including better management, and to exclude industrial activities, oil and gas, and mining within MPA boundaries.

I would like to begin by emphasizing the position of our organization on the need for modernizing the laws governing environmental protection of our oceans, including the need to review and reform the rules governing offshore oil and gas activities, which have not been substantially updated in decades and which, certainly in the Arctic, tend to favour industrial development at the expense of other alternatives.

With regard to Bill C-55, WWF-Canada does support the proposed amendments to the Oceans Act and the Canada Petroleum Resources Act in favour of expediting the MPA designation process, and we commend the government for its ambitious conservation targets. We agree that the process to establish new MPAs in Canada is much too long. The proposed legislation should help expedite this process.

Marine protection designation must be meaningful, however. Bill C-55 is a step in the right direction but it will not ensure that new MPAs in Canada effectively protect marine biodiversity. Setting an ambitious conservation target is commendable, yet the government must also do the right thing to ensure that marine protection is meaningful and effective.

WWF-Canada believes the goal of all of Canada's environmental legislation should be to modernize the Canadian economy to meet the sustainability challenges of the 21st century. To effectively meet this goal, a set of unifying objectives should be followed.

First, maintain and restore vital ecological goods and services upon which communities and species depend. Uphold Canada's international climate commitments and decarbonize energy production and consumption. Uphold the rights of indigenous peoples to access to and stewardship of our natural wealth including the crown's duty to consult. Finally, uphold the right to a healthy environment.

With regard to the Oceans Act amendments, the proposed Oceans Act and CPRA amendments will streamline the process of creating new MPAs. However, the absence of minimum standards for MPAs that would include prohibitions on certain activities is a significant shortcoming. Lack of minimum standards for MPAs leads to weaker protection and uncertainty if restrictions must be determined on a site-by-site basis.

Industrial activities are not permitted in terrestrial parks. We need the same level of protection for our marine protected areas. Minimum standards must include prohibitions on oil and gas and mineral exploration and development, bottom trawling, open-net pen aquaculture, tidal power development, and wind farms.

Subject to indigenous rights in Canada, minimum standards should also include a requirement for significant no-take zones that are closed to all extractive activities but that would not preclude low-impact fishing, ecotourism, and recreation activities as well as marine transportation.

Our Oceans Act does not explicitly recognize indigenous protected areas declared under indigenous law and has insufficient provisions to allow meaningful ocean co-governance. The Oceans Act must be amended to recognize indigenous law for all indigenous groups to achieve food security, allow for sustainable livelihoods, recognize IPAs—indigenous protected areas—and achieve meaningful oceans co-governance.

Finally, the ongoing activities exception in the bill when a new MPA is given interim protection is overly broad. In some cases, it may not be clear whether an activity will be prohibited or allowed once interim protection is given.

With regard to the CPRA, the Canada Petroleum Resources Act, it needs to be amended, and the fact that it needs to be amended demonstrates a fundamental weakness in this legislation. The CPRA is over 30 years old, and its guiding policy focuses almost exclusively on expediting the development of petroleum resources at the expense of other possible alternatives, such as marine conservation. Full modernization of the CPRA, along with the entire oil and gas regulatory regime, is long overdue.

For now, the three following amendments to the CPRA could be implemented through Bill C-55 to help balance conservation priorities with industrial development.

First, ensure the provision allowing for cancellation of oil and gas interests applies to all permits and is not limited only for the purposes of MPA designation. The revocation of a licence must also be permitted if unexercised rights interfere with the public good. Next, add a guiding policy section or preamble that explicitly sets out the policy intention of the legislation within the context of important contemporary issues, such as marine conservation. As well, include a statutory requirement to conduct an environmental assessment before an exploration licence is granted to a company.

With respect to Bill C-55 amendments specifically, it should be noted that the CPRA does not apply to the Atlantic accord areas. Regulatory solutions therefore need to be considered for the accord areas in the same context as the CPRA amendment to ensure the ability to restrict oil and gas from MPAs, and therefore would be applied Canada-wide.

In addition, when an interim MPA is to be designated, the minister will be given discretionary powers to prohibit oil and gas activities and/or cancel a company's interest. This should be a mandatory—not discretionary—prohibition.

As noted, Bill C-55 must also allow for the cancellation of all oil and gas interests in areas where MPAs are designated, including permits that are subject to boundary disputes and/or prohibition orders, some of which have been held for decades. If not, these licences could remain an impediment to MPA designation in the future.

With regard to the public review of of Canada's offshore oil and gas regulatory regime, in the Arctic offshore, where CPRA rules apply, Canada's oil and gas regime consists of multiple pieces of legislation. The government completed a review of the CPRA last year and is currently carrying out a review of CEAA, the National Energy Board modernization review, and the frontier and offshore regulatory renewal initiative, yet it's not clear how all of these various reviews are connected, if at all.

A comprehensive public review of the entire regulatory regime governing oil and gas development in Canada's offshore Arctic areas is required. This review should consider how the various pieces of legislation work together and which elements should be improved or modernized.

Oil and gas development, particularly in the Arctic, is only one outcome amongst a number of possible alternatives and should not be seen in isolation from other priorities. Fully modernizing the regulatory regime will help ensure that the priorities and concerns of Canadians are adequately considered if new licences for oil and gas activity in Canada's offshore Arctic waters are issued by any government at some point in the future.

To bring us to a conclusion, I will say that Bill C-55 is a step in the right direction, but it will not ensure that MPAs in Canada effectively protect marine biodiversity. We encourage the government to take this rare opportunity to consider further amendments to both the CPRA and the Oceans Act, which are necessary to ensure that both are fully modernized and updated to reflect contemporary sustainability challenges.

Thank you again for your invitation.

[The Chair, Liberal, Scott Simms]

Good morning, everybody.

Pursuant to the order of reference of Tuesday, October 17, we are considering Bill C-55, an act to amend the Oceans Act and the Canada Petroleum Resources Act. Here we are at committee, after the passage of second reading, and onwards and upwards we go.

To our witnesses, thank you for being with us. I'm not sure if you're on the west coast or not, but if you are, welcome to the early morning hours.

Welcome to Paul Crowley, vice-president of the Arctic program of World Wildlife Fund Canada—it's good to see you again, sir—and Mark Brooks, Arctic oil and gas specialist, also from World Wildlife Fund Canada.

From the Lax Kw'alaams Band we have Mayor John Helin. Thank you very much, Your Worship, for joining us here today.

As well, welcome to Dean Allison, our colleague from Niagara West. It's nice to see you this morning, Dean. Thanks for joining us.

We have up to 10 minutes to hear from each group.

Mr. Crowley, go ahead, sir. Thank you.

[The Chair, Liberal, Scott Simms]

Thank you, everybody.

I want to thank Dr. Susanna Fuller for being with us again. We also want to thank Mr. Robert Lewis-Manning for joining us on Bill C-55.

We have a bit of committee business to do. I suspect it won't take long.

We'll break for a few minutes.

[Proceedings continue in camera]

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

Thank you, Mr. Chair, for allowing one final question.

It's to Mr. Lewis-Manning.

Bill C-55 gives the minister increased powers, as you noted. The federal government seems intent on achieving its international commitments of 10% ocean protection. You mentioned that you could foresee the day of perhaps going beyond that 10%.

In general, do you see the importance of protecting our ocean ecosystems while still accommodating marine transportation?