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.

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

Regarding enforcing, Bill C-55 would empower the Minister of Fisheries and Oceans and the Canadian Coast Guard to designate any person or class of persons as enforcement officers for the purposes of administration and enforcement of the Ocean Act and regulations. Could you talk about how you see that? I know with the indigenous communities we have the guardians. Hopefully, we would be employing people from the communities, and that could be a way to work with them. Could you elaborate on how this could be done? I assume there would be training involved with that. Can you elaborate on that?

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

Thank you to both of our witnesses this morning. It's good to see you both again.

It's been an interesting process. We started studying the MPAs almost a year ago, I believe. Now, with Bill C-55, it's almost a continuation, but it's somewhat different, because we're dealing with some specifics.

The first question would be for Ms. Fuller. You seem to have been able to be all over Canada, and probably outside of Canada, dealing with the MPA process. You seem to be racking up a lot of Air Miles with these meetings. Have the fishermen or the commercial sector been able to attend as many of these meetings or participate as fully as you have?

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

Thank you, Mr. Chair, and thank you to our witnesses for again appearing in front of this committee for Bill C-55.

I'll start my questions with Dr. Fuller.

As you know, there's scientific evidence demonstrating that bottom trawling significantly damages sea floor ecosystems, and that no-take fishing zones are key components of effective MPAs. Research shows that “MPAs that permit varying levels of...fishing and other activities, are less effective at biodiversity...than fully protected areas”.

You previously mentioned to the committee that you believe that the core no-take zones of MPAs should encompass 75% of a given MPA. So, Canada is nowhere near reaching that high bar. The minister has the discretion to determine what activities are allowed in an MPA and how restrictive each zone in an MPA can be. So far, Canada's fisheries minister has implemented a no-take zone in only five MPAs to date, and those areas are tiny in comparison to the overall MPA. I'll add that I think Canada should follow international examples and make no-take zones the rule in core areas, or zones of marine protected areas, rather than the exception. Some core protection zones have irregular borders that require adaptive management, and this has the potential to make education and enforcement a challenge. Can you share your views on how mapping out core protection zones and adaptive management zones can increase and decrease the effectiveness of MPAs?

[Robert Lewis-Manning]

I testified on the moratorium last week, so that is certainly available to the committee.

On Bill C-55, I don't think the consultation was as robust as it could have or should have been. I think there needed to be some more intergovernmental work, which would be a strong message. And that's not to be critical to departments; it's that with the amount of work that's going on at the moment, we could be making mistakes.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

A little bit of both. You have concerns over the moratorium, because we're hearing the same concerns on Bill C-55 and the MPA process as well.

[Robert Lewis-Manning]

That's correct.

I think your question was directed at Bill C-55, if I'm correct.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Mr. Manning, how many meetings have you been in regarding MPAs and Bill C-55?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

How many meetings would you say you've attended, not only for St. Anns Bank but for our MPA process and Bill C-55? I know that we've been doing this study for months, which we should be, because it's the right thing, but you are very involved, correct?

[Bernadette Jordan, Liberal, South Shore—St. Margarets, NS]

Okay. I have a minute left.

When I'm looking at the interim powers of the minister in Bill C-55, being able to designate something on an interim basis and being able to review it in five years, do you think that's a positive movement, or should it just be a case of speeding up the process and getting it done?

[Robert Lewis-Manning, President, Chamber of Shipping]

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

Thanks again for the return invitation.

Of course, my comments will be from the perspective of marine transportation and trade, both internationally and domestically in Canada, and how that interacts within both the world of marine protected areas and, potentially, this legislation.

My organization represents the interests of shipowners, agents, and service providers responsible for approximately 60% of Canadian international trade by ship. It can also include some coastal domestic trade within Canadian waters. This includes everything from people in ferries and cruise ships to much larger bulk ships and container ships exporting grain to places like Asia. Our members' vessels can include the largest of vessels, but also some smaller vessels like tugs and barges, and there is an incredible amount of diversity in that fleet.

Needless to say, marine transportation and its many spinoff benefits affect everybody's life in Canada. I've been involved with marine conservation initiatives on all three coasts and the Great Lakes for many years. Just like Susanna, I'm also supporting the national species at risk advisory committee and advising the Government of Canada.

As one would assume, our sector is very involved in and supportive of Canada's efforts to protect our pristine coasts in a variety of ways, including through the Oceans Act, but also through legislation and programming that is coordinated by Transport Canada, Environment and Climate Change Canada, and Parks Canada. The oceans protection plan is a positive step in coordinating this effort amongst the three key federal departments and with external stakeholders. We are pleased that Canada is on a progressive path to reaching the Aichi target of protecting 10% of coastal waters by 2020. This is no small accomplishment, and I applaud the efforts of the departmental teams in Fisheries and Oceans and the Canadian Coast Guard and in Environment and Climate Change Canada. It's taken a lot to get to the interim protection levels, and it will continue to be a lot of work to get to the 10%.

In fact, it's clear to see how Bill C-55 will support achieving these targets. Nonetheless, the proposed legislation must be considered in the context of coastal protection beyond 2020 and the 2020 targets, and how to best implement coastal protection and management. In doing so, some critical elements emerge.

When I last appeared before the committee in May, I highlighted a number of existing weaknesses in the process of establishing marine protected areas. I'm not going to repeat them, but some of these could actually be exacerbated by Bill C-55 in its current version. In this regard, I'm going to address three aspects of the bill: the proposed powers of the minister, the definition of an ongoing activity, and the proposed offences and punishment section.

Proposed subsection 35.1(2) provides the minister with the authority to establish an interim marine protected area and then define the classes of activities permitted and prohibited in the interim MPA. Clearly, there is a need to accelerate the development of meaningful management plans that have a positive influence on the areas they're designed to protect. While establishing an interim MPA might be viewed as a progressive approach to achieving this, we actually consider proposed subsection 35.3(1) as the truly transformational piece in this legislation, as it demands that the minister make a recommendation for a regulation to designate a permanent marine protected area within five years of designating an interim MPA.

The potential risk to the marine transportation sector is likely up front in this process, in the initial establishment of an interim MPA. Without the appropriate checks and balances, there's a real risk of the minister making a less-than-informed decision about the activities that should or should not be included in an interim MPA.

Ships, both large and small, operate in a diverse and frequently demanding environment. You all know that very well. Their capacity to operate safely is influenced by a number of external and on-board factors that include, but are not limited to, things like weather, hydrography, cargo loading, and human elements such as fatigue. The spatial constraints or limitations that might arise from legislative framework built around Bill C-55 could limit a vessel's ability to mitigate the impacts of these factors and to therefore be able to transit safely. Certain flexibility must be built into the legislation and related regulations that takes this need for nimbleness and practicality into account.

With respect to ongoing activities, the bill proposes that the minister will list activities that are permissible in a specific interim MPA and define such activities as those that were lawfully conducted or authorized in the previous year. Proposed subsection 35.1(1) continues to lack sufficient definition, in our opinion, to provide a reasonable level of predictability for commercial marine transportation in all of its forms. This level of legislative vagueness leaves considerable latitude for the minister to define ongoing activities. Does this include consideration for Canada's commitments to the United Nations Convention on the Law of the Sea? Will classes of activities be applied with a broad brush, or will they be divided into further subcategories that are applicable to the intent of an interim MPA?

How will this be managed when this impact could have binational implications? All of this remains exceedingly vague at the moment.

My last observation pertains to proposed section 39.6, offences and punishment. This aspect of the proposal is not associated only with the establishment of interim MPAs, but also with the entire act.

A robust monitoring and enforcement regime is certainly a key aspect of a strong legislative framework. Notwithstanding, some of the provisions in the proposed legislation are inconsistent with those found in the Canada Shipping Act today and do not reflect a coherent, integrated approach among the relevant departments. On the face of it, the scale of punishments for some infractions appear extreme, which is especially the case for small vessel operations, and could result in undue harm to coastal businesses and many of the communities they serve.

Although we have a good idea of how MPAs will probably evolve in the next three years, I think this concern is very valid beyond that. In an effort to improve the proposed legislation, we hope that you will consider the following recommendations.

The first is to include a provision in the legislation that requires the minister to publish his or her intent to establish an MPA in advance within a reasonable period. By doing so, it would not only provide awareness and focus within federal and provincial governments, but would also provide visibility to external stakeholders and coastal communities most directly impacted by a new MPA.

The second is to include a provision in the bill that requires the minister to consult with other key ministers as well as relevant regulated industries prior to establishing an interim MPA. In doing so, this would avoid unintended consequences or incongruence between different pieces of legislation. Don't think for a second that this process should be lengthy because it should not be. That is certainly not the intent of my recommendation.

The third is the definition of an “ongoing activity”. Restricting it to a lawful activity that occurred in the past year does not necessarily reflect the realities of commercial marine transportation and it places unnecessary constraints on initiatives that may be progressing more quickly than the five-year restriction found in proposed subsection 35.3(1). Just because an activity has not happened in a proposed area previously does not necessarily mean that this activity would be harmful to the area or inconsistent with the protection objectives of an interim MPA.

The fourth is a formal association with Transport Canada in the legislation to implement a monitoring and enforcement regime. This could include additional harmonization in approach.

Overall, we are absolutely supportive of the intent of this legislation but we caution that some significant change is associated with it that demands both engagement and consultation with stakeholders and also engagement of other levels of government across the country. MPAs need to deliver results driven by tangible benefit. While the proposed legislation may demand a schedule for completion, it does not replace the need for positive stakeholder engagement and input.

Thanks very much, and I look forward to your questions.

[Susanna Fuller]

Thank you for inviting me to speak to you again on another important topic related to Canada's fisheries and oceans. I know you have all had a full agenda over the past year, and your work is critical to ensuring that Canada has world-leading laws, policies, and practices to ensure a healthy and prosperous future for our oceans.

I'm going to precede my comments on Bill C-55 to express the need for the urgency of modernizing our laws, for the purposes of environmental protection, and as part of our collective agenda toward reconciliation with our indigenous peoples, and finally, to ensure that our three oceans are part of the future for our coastal communities.

There are issues like climate change and plastic pollution that are pervasive in our ecosystems, but we can set the stage to address these through strong coherent legislation. I do know that my organization and myself personally are very committed to achieving triple bottom-line outcomes for our oceans and coasts. That includes economic sustainability, environmental sustainability, and social and cultural sustainability. One of our primary objectives, and through my work, is to ensure that coastal livelihoods into the future are increasing their capacity to benefit from and protect the marine environment.

With regard to Bill C-55, I have a few points to make that I hope will inform your deliberations and discussions. First, the current Bill C-55 is a good first step toward increasing the efficiency with which marine protection happens in Canada. We know that the current state of affairs, where it takes six to eight years to establish a marine protected area, is not acceptable to anyone. It wastes valuable time and engagement for all stakeholders, and we need to be able to identify areas and protect them well together with coastal and marine resource users. An excellent example of that is St. Anns Bank, where there was quite broad stakeholder engagement but because of the long time that it sat, really, on the minister's desk, people and staffing changed with the Fishermen's Association, so while there had been quite a bit of engagement by the time it got around to actually announcing it, the same people were no longer employed or at the table and felt they hadn't been asked, so it's an important time to make this process more efficient.

We also support the changes to the Canada Petroleum Resources Act, but would like to acknowledge that in Atlantic Canada, where there is active oil and gas drilling, those changes don't apply here as we have the accord agreement, which is something else that also needs to be looked at.

Second, there's a real opportunity to get things right and introduce amendments to the bill. I know you've heard from others on the concept of minimum standards, and I will speak to this again. From my experience in working with fishermen, there is a fear that marine protected areas will be used to remove fishing from an area and allow other extractive or destructive industries, like oil and gas or open net-pen aquaculture, both of which pose threats to traditional fishing areas and species. It makes no sense not to prohibit open net-pen aquaculture, for example, in a protected area that includes an important river for wild Atlantic salmon. It makes no sense to allow seismic testing and oil and gas drilling in areas that are important for marine mammals, or that are closed to bottom fishing to protect deep-sea coral and sponges. Essentially, our Oceans Act MPAs are lacking in some key ground rules that, perhaps, could not have been foreseen when it was drafted 20 years ago.

Third, the current lack of standards in this Oceans Act, and more broadly the lack of standards across all of the tools used to protect the marine environment—National Marine Conservation Areas, Fisheries Act closures—means that there is confusion at the ground level, which is not necessary. Canadians expect that in our terrestrial protected areas industrial activities will not be permitted. In the marine environment—and I think you've received our brief already that we put together with several other NGOs from across Canada—we're strongly advocating that activities like bottom trawling, oil and gas exploration and development, open net-pen aquaculture, and seabed mining should simply not happen in our marine protected areas. This does not preclude other low-impact human uses, like fishing with low-impact gear, ecotourism, and marine transportation.

I urge you to consider these specific prohibitions within the Oceans Act now, so there's no longer uncertainty on what is or what is not allowed in a marine protected area. This would be another important part of the efficiency in establishing these areas, because right now every MPA has to look at what the particular threats are, what things should be prohibited, and what the regulations are. We could do this much more quickly. To this point and following, there is a need for broader marine spatial planning so that the focus is not on planning uses within protected areas, but that protection is actually an important use and management factor. What is done with this bill will set the stage for coherency across legal tools to protect fish and fish habitat in Canada. These minimum standards will allow for certainty for resource users, and will ensure that energy is put towards co-governance, co-management, monitoring, and enforcement, rather than constantly seeking clarity on what is and what is not allowed in a marine protected area.

Finally, I just barely got out of Labrador yesterday. It was quite an adventure. The airport in Goose Bay has been shut down for three days. I was there to learn about and discuss a new marine planning initiative led by the Nunatsiavut government to establish the first land claim-based marine plan in Canada, possibly the world.

It is extremely exciting, and will ultimately include protected areas, but will also help to establish values and certainty for further marine uses under indigenous law.

Right now, our Oceans Act does not explicitly recognize indigenous protected areas declared under indigenous law, and has insufficient provisions to allow for meaningful ocean co-governance. We have an opportunity with Bill C-55 to ensure that we fix these defects. I would encourage the government to amend the act or at the very least embark on a nation-to-nation consultation on both of these critical topics. Doing so will enable the use of both Canadian law and indigenous law to manage, use, and protect vital food sources for indigenous peoples and allow for sustainable livelihoods.

In closing, I want to re-emphasize the importance of getting this right. I made this point to Minister LeBlanc and Minister McKenna a couple of weeks ago in Victoria.

For Canada to be a world leader on oceans, which I think is the direction we're heading in, doing things well is actually an incredibly important part of that leadership. There's momentum right now in Canada to achieve our internationally agreed target of 10% protection, but in actual fact to do more than that. Canada can lead on meaningful protection and engagement of Canadians in protecting and caring for our oceans, and the biodiversity they contain. Ensuring management of our oceans is a source of national pride.

It's less about the percentage than it is about doing it properly. Getting the process in protected areas right will contribute to our blue economy agenda, will provide certainty for the people who live and work by and on the sea, and will help to protect our vital marine species, habitats, and ecosystems.

It will ensure that coastal communities can use their resources to be proactive, rather than reactive, against industries they feel threaten renewable resources like fisheries.

I know many of you care about our wild salmon, the future of our cod fisheries, and about the people on our coasts. We cannot protect these or ensure their future existence unless we get our protected areas right and embed the concept of stewardship in the establishment, management, and monitoring of these areas.

We're moving quite quickly, and I think reasonably well, in terms of achieving our international targets. In many ways, we've done the easy stuff. The offshore areas are relatively easy. As we move towards the coast, there's going to have to be a bit of a different process and more of a bottom-up process of engagement. I think you all heard that during the MPA study, but there is a real opening and opportunity to do that.

Today, in New Brunswick, I have a colleague at the ministerial round table on right whales. That is what I really hope to be the beginnings of a collective stakeholder engagement on how we figure things out and make sure we have right whales into the future. Those kinds of processes, and collective thinking and action are going to be incredibly important as we move toward coastal marine protection.

Thank you for the opportunity. I am happy to take questions.

[The Chair, Liberal, Scott Simms]

It's good to have you back on this study of Bill C-55.

As you know, we normally do 10 minutes to start, and after that we have rounds of questions from our colleagues.

Susanna, we'll start with you for up to 10 minutes, please.

[The Chair, Liberal, Scott Simms]

Good morning. We're continuing on with our study of Bill C-55, an act to amend the Oceans Act and the Canada Petroleum Resources Act.

This is where I normally say welcome to our guests, but I guess it's more an issue of welcome back, because you were both with us for the MPA study back in May, I think it was. Joining us again we have Robert Lewis-Manning, the president at Chamber of Shipping, and Susanna Fuller, senior marine conservation coordinator at the Ecology Action Centre.

Susanna, you were with us on April 11, is that right?

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

Knowing that, again, as I said, some information may not have been available as much as we would like to see, how comfortable are you with the proposed protection that we have in place, which started under the previous government? We're exactly where we would be, because they had a 10-year target, and we're halfway there, and we're going to meet halfway on our commitment across the globe. We want to make sure that we protect our share of the ocean.

How comfortable are you with what's been happening so far, as far as protecting our shore with MPAs or with Bill C-55 is concerned?

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

If I could, I'd like to interject here.

The freeze, as I understand it, is the freeze to the current activities. Whatever is going on now would be for the most part allowed to continue. The minister would put about a five-year span to review the situation. It may be a step toward a marine protected area or simply to allow the stocks to recover. What's going on now, for the most part, would continue.

With regard to your comments about the process you're using right now where you see some problems, could it then be integrated with the minister's decision-making ability under Bill C-55 to put in, if you like, an interim freeze on activities in an area, i.e., maintain what's going on but protect it against other activities that might want to come into the area?

Can you see a crossmatch between what you're doing and what the minister could be doing?