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]

Mr. Chair, NDP-4 talks about establishing the restoration of ecological integrity as the top priority of MPAs. We had a long discussion earlier in the committee. That amendment passed. Essentially, the difference on this particular amendment would be to just put it at the top of the list, so that the minister has that as a top priority. That is essentially no different from the earlier discussion we had. The committee agreed to include it. This would be putting it at the top of the minister's radar.

The amendment is that Bill C-55, in clause 5, be amended by adding after line 4 on page 4 the following:

(2) Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Governor in Council and the Minister when exercising their powers or performing their duties and functions under section 35 or 35.1

Then we define ecological integrity.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Chair, of any amendments we've seen today, this amendment is closest in intent to that of Mr. Tootoo's which the committee passed, but it's different. It deals with indigenous issues. It attempts to have the Oceans Act proactively reflect the federal government's commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples, and to work in a real nation-to-nation relationship.

We already have reflections of that in the Oceans Act, in the ability of the minister to establish regional ocean co-management bodies. What this amendment does—I really think it is an exciting one—and I don't know how familiar members of this committee are.... I know the environment committee has studied the tremendous potential of co-management of protected areas in terrestrial zones with indigenous people. One of our best examples probably is Gwaii Haanas and the Haida Gwaii watchmen program, but there have been other watchmen programs established in our northern parks.

Let me just run through the amendment. It is a longer amendment. I'm not going to read it to you, but it does require that the minister:

shall recognize the jurisdiction of aboriginal peoples over areas of the sea in respect of which they have aboriginal rights or title, having particular regard to protected and conserved areas, and provide for the participation of aboriginal organizations or persons in the management of those areas.

Specifically, the next section sets up the concept of guardians, and the guardian, in subsection (3):

has all the powers and may perform all the duties and functions of an enforcement officer

These provisions would allow coastal indigenous peoples to be full participants in management, enforcement, protection, and engagement in the MPAs as they go forward. As I said, there are a lot of terrestrial precedents, and this would, I think, be a really exciting way that Bill C-55 would be consistent with the recent announcement of our Minister of Justice that the government is going to support Romeo Saganash's private member's bill to bring the United Nations Declaration on the Rights of Indigenous Peoples into all of our legislation. You'd be ahead of the curve here in the fisheries and oceans committee to accept this amendment.

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

Mr. Chair, as it reads currently, Bill C-55 states that the minister may “not use the lack of scientific certainty”—the precautionary principle is what we're talking about—“regarding the risks posed by any activity that may be carried out” in the ocean “as a reason to postpone or refrain” from designating an MPA. This amendment would delete the section that states this. Therefore, it puts the onus on the minister to demonstrate that there is scientific evidence, and follows the government's own narrative of using evidence-based policy in its decision-making.

Mr. Chair, on page 3, we are suggesting that Bill C-55, in clause 5, be amended by deleting line 41 on page 3 to line 4 on page 4. The line in question is:

The Governor in Council and the Minister shall not use lack of scientific certainty regarding the risks posed

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

Mr. Chair, this amendment would put a reporting clause into Bill C-55, a responsibility for the minister to report back to Parliament within a year of an interim marine protected area. We are suggesting.... Again, I'll take it back a bit. Time and again, whether it's this study that we've done, the Fisheries Act review, the northern cod study, or the Atlantic salmon study, what we've heard previously is that initiatives have been launched or the department has come before the committee and—no offence to those who are here—has promised to do better and be better. But as we've seen from testimony and have gone through for years and years, we're not seeing some of the results that we perhaps would have anticipated or desired in any of the processes that have been put in place.

This is merely a management tool. It is an opportunity for the minister to come back and say what has been working well and what hasn't been working, perhaps. It includes stakeholder feedback as well, and it really gives Parliament and this committee an opportunity to then be able go back to Canadians again, as we talked about throughout the testimony in this and other studies. If it's working out, it is an opportunity for the government to say what is an overwhelming success and, if it isn't, to say, “Here are the challenges and here's how we're going to adapt it.”

Mr. Chair, what we are recommending is that, on page 3, clause 5 be amended by adding after line 40 the following:

(4) The Minister shall, within a year after the coming into force of this section and as soon as feasible after the end of each fiscal year after that, prepare and cause to be laid before both Houses of Parliament a report that (a) focusses on the operation of this section; (b) lists the marine protected areas designated during the relevant reporting period; (c) sets out the extent to which the conservation objectives stated for each marine protected area designated under subsection (2) have been achieved; and (d) sets out any recommendations for further steps to be taken in order to achieve the stated conservation objectives in relation to each marine protected area designated under subsection (2).

Mr. Chair, I'll leave the committee with this final comment. We have heard from a number of witnesses who appeared before the committee and said that things seem to happen in a void or a vacuum. This would provide the government an opportunity to report back. As I said, trumpet it if it is wildly successful, but also be open and transparent with the Canadian public in terms of how there are perhaps some challenges and how maybe we need to rethink some of the things we're moving forward with.

Thank you.

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

Thank you, Mr. Chair.

I won't read out all of proposed section 35.11(a)(b)(c)(d) and (e). You can see it's in front of you. I'm going to assume, given what Mr. Hardie mentioned previously, that it will apply to this one in terms of the committee that's going to be struck to look at this, in looking at the national committee to look at minimum protection standards. However, we're obviously anxious to see that happen now. I think we've had years where we've only been at 1% protection. The government is saying we're now at 5%. We'd like to know what minimum protection includes and the activities allowed. We would argue to include those subsections in 35.11 now. This amends the act to include a set of minimum protection standards for all proposed future MPAs and those prohibitions are oil and gas and mineral exploration and development, wind farms and tidal power, open net aquaculture, bottom trawling, and ocean dumping.

We've heard earlier that polling from WWF-Canada shows that 80% of Canadians believe that MPAs should not allow oil and gas activities, and that 87% believe MPAs should not allow bottom trawling. The recent public outcry over a proposal to allow oil and gas in the proposed Laurentian Channel MPA shows the depth of public support for oil-free MPAs. We're certainly arguing to listen to what the public is saying and include it now in Bill C-55

[Jeff MacDonald]

I'll have to go back to the section on the interim protection order. In the interim protection order in Bill C-55, as it reads right now, the minister has to list ongoing activities. If an ongoing activity is an extractive activity, he would have to list it as an ongoing activity.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

What I'm adding is that we include performance-based contracts around procurement into this act, because with what we have now, the Governor in Council may make regulations for the strategy, and the department heads for targets, but unless you amended it while I was in the meeting for Bill C-55—

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

This part of the bill outlines the exceptions to the ministerial order, that is, activities that would not be prohibited. Currently Bill C-55 states that these activities would include activities carried out in response to an emergency as well as marine scientific research. We are asking to include “sustainable aquaculture” in this list.

It is page 3, paragraph (3), “Exceptions”. It currently reads, “The prohibitions set out in an order made under subsection (2) do not apply to the following activities”. Then paragraph (a) lists activities, and (b) currently refers to “marine scientific research activities”. What we are suggesting is “sustainable aquaculture and marine scientific research activities”.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Chair, I'm here because of the motion passed by this committee. Just so you have an insight into how onerous and manipulative and unacceptable it is that every single committee passed identical motions that only give me opportunity at clause-by-clause study deny me the opportunities I would otherwise have at report stage, I am simultaneously in clause-by-clause study for Bill C-57 and down the hall at Bill C-55 on the Oceans Act, so I may not be able to stay longer than just to present my amendments.

I know you all passed that motion a long time ago, but it does have an impact, and I'm sorry I can only run in and run out again, because these bills are being studied at the same time.

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

The amendment adds a line to clause 5 that would have the minister specifically state the purpose of the designation. It's straightforward. We are asking that Bill C-55, in clause 5, be amended by adding after line 9 on page 3 the following:

"(a.1) shall state the purpose of the designation;"

[Michael McLeod, Liberal, Northwest Territories, NT]

Mr. Chair, first of all, I want to say thank you to Mr. Tootoo for bringing this forward.

I did some research on this amendment, and I considered submitting the same documents. However, the Constitution Act covers fairly well this whole area of land claims. I have been discussing Bill C-55 and the proposed amendments to the Oceans Act with two Inuit organizations, the one in Mr. Tootoo's riding and the Inuvialuit Regional Corporation in my riding. They have serious concerns. They have informed me that they have submitted their comments to this committee and would feel reassured.... If this amendment was brought forward, it would give them some comfort, and it would show that there is a working relationship between the federal government and the land claims organizations. They want the ability to work in a co-management fashion.

I am very happy with Mr. Tootoo's amendment, and I would certainly support it.

[Hunter Tootoo, Independent, Nunavut, NU]

Thank you, Mr. Chairman and committee members, for the hard work you guys are doing, especially on this very important piece of legislation. I'm here just briefly, as I committed to you yesterday, Mr. Chairman, to speak to the amendment I've proposed for Bill C-55.

The ultimate goal of this amendment is to reduce and directly address any procedural ambiguity regarding the ministerial decision-making process of the marine protected areas in areas where there are established land claims agreements. I'm putting this in the context of the Nunavut Land Claims Agreement, but there are also other land claim agreements across the north, including Labrador, northern Quebec, and the Northwest Territories. It's understood in those agreements, and accepted as part of the agreements, that nothing should happen to our lands or to our waters without the input and involvement of Inuit. I think this applies to all facets of decision-making, any activities, as well as the management of those areas.

I feel that the proposed amendment makes this distinction very clear in the particular case of marine protected area designation. I spoke to Inuit back home, and to representatives from Nunavut Tunngavik Incorporated, and the belief is that the proposed amendment would help ensure that the federal government is living up to its obligations under ratified and approved land claims agreements, especially the Nunavut Land Claims Agreement. I believe the acceptance of this amendment would not only substantiate the Inuit-to-crown partnership, but it would also further highlight the government's commitment to honouring the appropriate consultation process with the indigenous people of this country.

I know that this is something we heard in the House from all parties, so I'm looking forward to support for this. I think it also shows that this government is serious and is committed to honouring its obligations under land claims agreements.

Thank you, Mr. Chair.

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

Mr. Chair, this goes back to the earlier conversation we had in terms of the immediate designation of an interim marine protected area. Under the new act, the minister can, without any consultation with stakeholders, implement an interim protection area. This amendment requires that the minister provide a 60-day consultation period before using his or her powers under the act. The witnesses expressed concern that the consultation process for this bill was less than stellar—I think we all heard that—and was more of a briefing or information session, really a one-way dialogue rather than two-way with our stakeholders.

We propose to amend clause 5 in Bill C-55 by replacing line 4 on page 3 with the following:

(2) The Minister may, following a 60-day consultation period, by order, designate a marine pro-

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

That's why we wanted clarification with this clause. We heard some testimony that conflicts with what Mr. MacDonald is saying today. I understand our colleague's testimony, previously....

The worry with stakeholders is that Bill C-55 gives the minister the right to immediately designate an interim marine protected area, using the precautionary principle with the absence of scientific data at that point to not delay this. The concern of our stakeholders is that this would impact the coastal communities, the fishers, and you would freeze that interim protected area completely.

The intent of this section is to ensure that we have some clear language that gives stakeholders some assurances that they can continue fishing, supporting their families and communities.

That's the concern, Mr. MacDonald.

Am I misunderstanding what your comments are, right now? I think that is different from what we've heard previously.

[Jeff MacDonald]

He was originally asking in the context of interim protection MPAs with regard to the minister's order. Bill C-55 currently says that when the minister makes an order—he has the option not to—he shall list the classes of activities that are ongoing activities. If there is an ongoing activity, the ministerial order can't restrict that, with the exception of paragraph (c) where, as he is also the minister responsible for fisheries, he may curtail fishing activities under his purview as the minister responsible for fisheries management.

Any other activity would have to be listed as an ongoing activity in the context of the interim protection MPA. The restrictions over and above that would need to come through a Governor in Council regulation after the interim protection MPA order is within the five years as outlined in Bill C-55.