Bill C-68 (Historical)

An Act to amend the Fisheries Act and other Acts in consequence

This enactment amends the Fisheries Act to, among other things,
(a) require that, when making a decision under that Act, the Minister shall consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982, include provisions respecting the consideration and protection of Indigenous knowledge of the Indigenous peoples of Canada, and authorize the making of agreements with Indigenous governing bodies to further the purpose of the Fisheries Act;
(b) add a purpose clause and considerations for decision-making under that Act;
(c) empower the Minister to establish advisory panels and to set fees, including for the provision of regulatory processes;
(d) provide measures for the protection of fish and fish habitat with respect to works, undertakings or activities that may result in the death of fish or the harmful alteration, disruption or destruction of fish habitat, including in ecologically significant areas, as well as measures relating to the modernization of the regulatory framework such as authorization of projects, establishment of standards and codes of practice, creation of fish habitat banks by a proponent of a project and establishment of a public registry;
(e) empower the Governor in Council to make new regulations, including regulations respecting the rebuilding of fish stocks and importation of fish;
(f) empower the Minister to make regulations for the purposes of the conservation and protection of marine biodiversity;
(g) empower the Minister to make fisheries management orders prohibiting or limiting fishing for a period of 45 days to address a threat to the proper management and control of fisheries and the conservation and protection of fish;
(h) prohibit the fishing of a cetacean with the intent to take it into captivity, unless authorized by the Minister, including when the cetacean is injured, in distress or in need of care; and
(i) update and strengthen enforcement powers, as well as establish an alternative measures agreements regime; and
(j) provide for the implementation of various measures relating to the maintenance or rebuilding of fish stocks.
The enactment also makes consequential amendments to other Acts.

[Mark O'Connor, Resource Management Coordinator, Resource Development Department, Makivik Corporation]

Madam Chair, honourable members, I thank you for the opportunity to be here today and hope that my input will be useful in your deliberations.

I'm here representing the Makivik Corporation with regard to BillC-69, and particularly with regard to the impact assessment act included therein.

Makivik Corporation is the birthright organization established in 1975 to represent Nunavik Inuit ethnic rights, pursuant to the James Bay and Northern Quebec Agreement. It was the first modern land claim agreement in Canada. Makivik, in Inuktitut, means “To Rise Up”, which was a very fitting name for the organization mandated to protect Nunavik Inuit rights, interests, and financial compensation that were provided by the James Bay and Northern Quebec Agreement.

Most recently, Makivik also signed the Nunavik Inuit Land Claims Agreement, which has been in effect since 2008. Through this agreement, Makivik, on behalf of the Nunavummiut, the residents of Nunavik, own 80% of all of the islands, including both the surface and subsurface rights in the Nunavik Marine Region, the region defined under the land claims agreement.

Because of habit I will clarify now that the JBNQA is the James Bay and Northern Quebec Agreement, and NILCA is the Nunavik Inuit Land Claims Agreement, and I usually use the acronyms so there's a chance they'll slip out.

I am a resource management coordinator for Makivik in the resource development department. I've been entrusted by the Inuit of Nunavik to speak here on their behalf and when it comes to environmental issues and their potential impacts on Inuit rights. I am not here today to provide an in-depth review of the proposed legislation or its potential impacts on Nunavik Inuit, but instead will speak to you about the core concepts about which our understanding of the impact assessment process are based.

Nunavik Inuit are not opposed to development. They recognize that large-scale development projects can represent significant economic potential for our regions and our communities. However, we also recognize that even the smallest projects can have significant impacts on the environment and on the Inuit way of life. This is especially true when we consider the fact that Nunavik is one of the most pristine areas in Canada, and that wildlife harvesting is still a major component of food security.

Because of this there is an expectation within our communities that development projects will not be allowed to proceed unless every precaution has been taken to ensure that they are compatible with our understanding and respect for the environment, and that they uphold the maintenance of Inuit livelihoods, traditional practices, and the cultural identity.

As you know, I represent a region where governments have historically taken a top-down, colonialist approach to determining what is in the public interest. Of course, I am referring to events such as the High Arctic relocation, residential schools, and the dog slaughter, all of which were seen by governments at the time as being a benefit to Inuit. It's safe to say that Nunavik Inuit do not generally trust southerners and governments to determine what is in their best interest. The assurance that impact assessments will be conducted by people who are familiar with the region, the people, their culture, and their day-to-day reality is therefore critical.

For this reason the James Bay and Northern Quebec Agreement and the NILCA have laid a framework for environmental, social, and impact assessments to be conducted by bodies whose members give Inuit a direct role in the assessments. These bodies are essentially tasked with applying federal laws of general application in a manner that is consistent with the particularities of our region, and in a culturally appropriate way. It's critical that the provisions and spirits of these agreements be upheld by any federal legislation that's put in place by the government, including Bill C-68 and BillC-69.

Last week you heard a similar message from Mr. Bill Namagoose, who was here representing the Crees of Eeyou Istchee. He provided you with a relatively detailed overview of the federal social environmental assessment regime that was included in section 22 of the James Bay and Northern Quebec Agreement. Mr. Namagoose correctly explained that under this regime the COFEX should be the sole body responsible for federal assessments on the Cree territory of the JBNQA.

I assume that you're already familiar with the JBNQA, but I will nonetheless take the opportunity to remind you that section 23 of the agreement is actually essentially a carbon copy of the regime that Mr. Namagoose presented to you, the main difference being that the body responsible for assessments is called the COFEX-North and applies to the Inuit territory.

The COFEX-North's membership is composed of representatives who are appointed by the Inuit and by the federal government.

Similarly, under the Nunavik Inuit Land Claims Agreement, the Nunavik Marine Region Planning Commission and the Nunavik Marine Region Impact Review Board were created to oversee the impact assessment process in the offshore region. For each of these bodies, half of the members are appointed based on nominations put forward by Nunavik Inuit through Makivik Corporation, and the other half are appointed by governments.

In either case, the impact assessment regimes that are included within our land claims agreements are the outcome of extensive and careful negotiations. They are sensitive to the particular circumstances of the region and have been constructed with the rights of Nunavik Inuit in mind. Perhaps more importantly, they are relevant to and trusted by Nunavik Inuit. There is no need to add another layer of federal assessment to them.

The written submission we have provided to you outlines a number of inconsistencies between the text of Bill C-69 and the provisions of our land claims agreement. These relate to matters such as the project screening phase, the impact assessment agency's role in impact assessment, legislated timelines, and so on.

A relatively straightforward example of that is the fact that, under the JBNQA, a project screening committee was established to determine whether or not to assess projects that are not automatically subject to or excluded from review. Within the proposed act, this would fall upon the agency to do. There are some inconsistencies, and you'll understand that we can't support the creation of federal law and legislation that conflicts with the provisions of our constitutionally protected rights and processes.

Although we acknowledge that the proposed impact assessment act includes provisions that allow for substitution or harmonization, we are concerned that they won't be implemented to their full potential, leaving us with an extra layer of federal impact assessment.

Mr. Namagoose proposed last week that the new legislation allow for a carve-out of the JBNQA's section 22 process as it applies to the Cree territory. I will repeat his request today and ask that the process for federal environmental and social impact assessments that was described in section 23 of the James Bay Northern Quebec Agreement and the process defined in sections 6 and 7 of the NILCA be recognized explicitly in the act. Failing that, it is critical that negotiations to establish the appropriate regulations or agreements be initiated such that the direct participation of Nunavik Inuit in all impact assessment decisions is retained.

I won't venture too far into the debate about consent at this stage. I recognize it's an issue that was debated at length here, in other forums, and in our written submission to this committee. However, I will note that we are troubled by the fact that the proposed legislation does not require the minister—or the agency, as the case may be—to obtain the consent of indigenous groups before authorizing works to proceed.

We certainly agree that the proposed early engagement phase will be beneficial towards obtaining the consent, but as Andrea outlined, we are worried that the act will allow for unilateral decisions by the minister that can affect the constitutionally protected rights of indigenous peoples without needing to obtain their consent.

Finally, I wish to draw your attention to another organization that was born out of the James Bay and Northern Quebec Agreement—the Kativik Environmental Advisory Committee. The committee is composed of equal representation from the Inuit, the Quebec government, and the Government of Canada. Within the act, the advisory committee is defined as a consultative body to responsible governments and is the preferential and official forum for responsible governments concerning their involvement in the formulation of laws and regulations related to the environmental and social protection regime. It is mandated to oversee the administration and management of the regime through the free exchange of respective views, concerns, and information.

While Makivik Corporation has been actively engaged in this file for some time now, it appears that the Kativik Environmental Advisory Committee has been greatly underutilized by the Government of Canada throughout this process. I must therefore stress the importance that you take the necessary steps to engage with them before the new legislation is adopted. They have been involved in the implementation of the JBNQA impact assessment regime for over 40 years and have tremendous insights to offer.

More importantly though, their participation is required through the James Bay and Northern Quebec Agreement.

Thank you for your time.

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

Madam Chair, it's a pleasure to be here again.

Thank you to the committee for the opportunity to present to you today.

During the last election, you heard loud and clear that Canadians had lost faith in the revised system under the previous government to approve projects with impacts on fish habitat. The West Coast Environmental Law Association commends the government for following through on its commitment to restore lost protections and modernize the Fisheries Act.

There are many provisions that we and many others across the country are pleased to see, and I'm happy to talk more about them if you want. Today, though, I'm here to talk about how you can improve the act even more while you have the chance to do so. As the minister mentioned this morning, there is still time to propose amendments.

Many conservation groups have worked collaboratively to analyze this bill and have proposed amendments on three key issues: rebuilding fish stocks, cumulative effects, and environmental flows and fish passage. We fully support and endorse these.

Today I'll address two broad areas where you can propose amendments that will make the act even better and address past criticisms of it. You can set national legally binding and enforceable standards in the law directly. I'll speak to two of these issues: flows and cumulative effects.

The other big issue I'll speak about is increasing government transparency and accountability. The government has made great strides in this area as well, especially with mandate letter commitments. Additional improvements can be made to increase transparency and accountability, and I'll speak of three ways.

First is legally binding standards.

As described in one of our briefs to you, the legislative history of this act, going back to when it was first introduced—and it is one of Canada's oldest acts—shows Parliament's clear intent to create national standards for the protection of fish and habitat. Courts at all levels have confirmed the wide scope of this federal power.

Standards on environmental flows are a priority area for legislative change. The minister this morning gave you the internationally accepted definition of “environmental flows”. This definition is included in laws around the world, and it really would be an improvement to Bill C-68 to actually talk about the flow regime and environmental flows—the environmental role of water for fish. Water law was traditionally about water for people. The concept of environmental flows shows that water has a really critical environmental role, especially for fish and other aquatic organisms.

DFO's own science advisory report from 2012 talks about the need for a national framework for flow, so that there can be a consistent approach to this issue across Canada. From all your work, you know very well about the decline in fish—northern cod, which was spoken about this morning, and both Atlantic and Pacific salmon—and the decline of fish habitat, which continues apace across this country. One example is that only 10% of the former habitat of the lower watershed in the Fraser River remains, and that's one of the biggest salmon-producing rivers in North America and probably the world.

Minister LeBlanc indicated a willingness to consider amendments. We have provided language for amendments that define environmental flows, establish national standards on the acceptable limits of flow alteration, and establish monitoring requirements.

The second area that you've already heard about this morning is cumulative effects. This is a big one. The government is grappling with it, and I know the department is grappling with it. It's a difficult one.

The cumulative effects of small projects remain a major cause of habitat loss, and this was a priority issue in public consultations. The minister said there are two types of projects: large projects, which go through the authorization, and low-risk projects that avoid harm. This actually leaves a really big gap in terms of all the medium-sized projects—a massive number of small to medium-sized projects that cumulatively can impact fish habitat and cause it to be lost.

We support amendments that have been provided to the department and will be provided to this committee in briefs, which talk about ways to better address cumulative effects. One way to do this is by expanding the records that are in the proposed new public registry, to require not only the authorizations in there but also that all the projects be approved under the codes of practice and under designated project regulations. You can really press a button—online registry—and say, “Here's our project. Here's where it is.” People can track it. Scientists will track it, as will researchers and DFO.

This bill also needs to address one of the chief ways that DFO currently uses to exempt proponents from the need to obtain a habitat authorization, and that's the letter of advice. This isn't mentioned at all in the act. We suggest and recommend that the letter of advice be defined in the act, and that all letters of advice also be posted on the public registry. A letter of advice is given to a proponent because there is the potential to cause harm to fish habitat. Why not tell everybody about this advice?

I'll move rapidly along, because I know I have limited time here.

I also want to talk about, in the second half, transparency and increasing accountability. I've already mentioned the public registry. We and many others strongly support this. This has been a recommendation from many groups for many years.

There's a great registry for CEAA projects. We need such a registry for fish and fish habitat projects as well. Now we have one, and that's great, but the rationale for making some records mandatory and some optional is really unclear. Mandatory records include standards and permits, and optional records include guidelines, policies, and intergovernmental agreements.

It's really not clear why there's a distinction between mandatory records and optional records, the ones that are listed in proposed section 42.3. We recommend that all the ones listed as optional be mandatory.

There's a new requirement for more transparency and public access to information, which again is a great improvement. It's a five-year report from this committee, or your corresponding Senate committee, on the administration of the act. We suggest and recommend that if you're going to do such a five-year report, why not do the state of fish habitat and the state of fish stocks across Canada? Our neighbour to the south, with a bigger population and more impacts, does a national fish habitat report every five years, and Canada can and should do that as well.

Third and finally, the act can increase accountability through legal mechanisms allowing other levels of government and scientists to request action, and require a response from the minister. We're proposing this amendment to deal with one of the big criticisms of the former act, that there was too much discretion.

The minister and his or her staff could, really, make decisions without too many bounds on their discretion. The act has been changed. There are many factors that now must be considered when making decisions under the act, but we recommend that another way to increase accountability would be for other levels of government, scientists, and conservation groups to make requests. I'll give you one example of what I'm talking about.

There's a new provision in this act for the protection of long-term area-based fisheries restrictions, and these are what DFO calls marine refuges. They're intended to be a complement to marine protected areas. Long-term fisheries closures are a federal responsibility. They can only be imposed by the federal government. They really require an extra level of protection for provincially and indigenous declared marine protected areas.

For example, as far back as 2004, the Province of B.C. has requested from DFO that for the ecological reserves and marine protected areas declared under provincial law, the province wants federal fisheries closures. It wants full protection for those areas. Fourteen years later, that still hasn't happened. The province is still talking to the federal government about it.

Why not put in a legislative mechanism requiring the minister to act, creating the ability for a province, or an indigenous government to make this request of the minister, and requiring a response from the minister about the decision? Indigenous declared marine protected areas are another set of places where complementary federal fisheries closures could enhance protection.

There are some other suggestions for increasing accountability through this ability for people or other levels of government to request the minister to take action that are set out in our brief, which will be provided to you shortly. You're moving so quickly, and we haven't yet filed our brief, but we will.

In conclusion, many of the provisions in Bill C-68 will require regulations. We look forward to working with the department and the government to make these regulations effective. It's important to examine whether all the procedures contained in this law will help restore Canadians' faith in the fisheries regime. We're sure your committee wants to achieve this goal, and will work with everybody who appears before you on amendments to achieve that goal.

Thank you.

[The Chair, Mrs. Bernadette Jordan (South Shore—St. Margarets, Lib.)]

Good morning, everyone.

Pursuant to the order of reference of Monday, April 16, 2018, we are studying Bill C-68, an act to amend the Fisheries Act and other acts in consequence.

Today, I want to welcome to the committee Mr. Vandal from Saint Boniface—Saint Vital, who is subbing in for Mr. Rogers.

We have by video conference Duane Post.

From West Coast Environmental Law Association, we have Linda Nowlan, staff counsel.

We're going to start with opening remarks from Mr. Post.

You have 10 minutes, please.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Thanks, Madam Chair.

Thanks, gentlemen, for being here.

One of the alarming parts of Bill C-68 is the return to HADD. I'm sure you're all familiar with that. I've heard from a number of groups that are concerned that these changes will actually slow down development and recreate the confusing and quite inconsistent process that was in place prior to the changes being made in 2012. The confusing part about all of this is that the government hasn't really explained what specific protections are being lost.

Mr. Arnold referred earlier to an Order Paper question that he had, and the minister in the department has said that the has heard concerns from outside groups about lost protections, but you don't actually give any sort of explanation of what is actually being lost here. How can you explain that?

You basically ignored his question, or didn't answer, ragged the puck—I'll use whatever term—but you haven't given any examples.

I only have five minutes, so I ask you to be brief.

[Nicholas Winfield]

One of the biggest issues that's come up in both Bill C-68 and Bill C-69 is addressing cumulative effects. All the federal departments are investing time and effort to think through more holistically how each of the pieces of legislation can be gathering information that supports better cumulative effects assessment.

The Fisheries Act provides an opportunity, first off, with issues like codes of practice and standards development, the ability to notify DFO that projects are taking place on the landscape, and also then the ability to have information available to assess cumulative effects over time.

This is only one of the opportunities that exist. There are more opportunities just in terms of investing more time and effort in looking at trends in ecosystems, as compared to only looking at projects and site-specific impacts. That's part of our investment towards science and looking at ecosystem changes.

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

Okay.

I'll just turn to residual impacts. Can you explain how the cumulative impact of small or low-risk projects will be addressed under the amendments to the act that are proposed in Bill C-68?

[Dominic LeBlanc, Liberal, Beauséjour, NB]

You're right, Mr. Hardie, that the oceans protection plan from our perspective is a very significant historic investment. A great deal of the work is obviously focused on the west coast. The same thing would apply on all of Canada's coasts.

In terms of the proper development of industries that necessarily use, for example, marine navigation and ocean transport, we think Canadians and the global community expect us to have world-leading safeguards to protect coasts, to prevent any environmental damage, but also to, for example, improve access of indigenous communities to search and rescue assets, to environmental response circumstances, and to improve the Coast Guard's capacity to respond to a whole series of incidents. There are search and rescue examples from the west coast and Newfoundland and Labrador, with real concerns expressed around search and rescue capacity that we've sought to improve.

All of those things, from our perspective, might.... The “crosswalk”, to use the bureaucratic phrase that my colleagues at the table will be pleased to hear me use, would probably be around modern safeguards. If we say that the legislation should have modern safeguards, we think that the government needs to have the tools to make those modern safeguards real for Canadians. It necessarily involves expenditures, and $1.5 billion in the oceans protection plan is a significant investment.

I would point out to colleagues that almost $300 million in additional dollars were also assigned to Bill C-68 and Fisheries Act modernization, so this legislation necessarily comes with an investment as well of almost $300 million.

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

Okay. Good.

Can you talk about Bill C-68 and the complementary aspects between Bill C-68 and the oceans protection plan?

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

With the short remaining time I have left, thank you, Minister, for your responses.

Would the government be open to amending Bill C-68 to include free, prior, and informed consent? You have included aboriginal information, which is strengthening the act. The next is FPIC, and that would move toward the UN Declaration on the Rights of Indigenous Peoples.

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

We'll do that.

Are you open to amending Bill C-68 to strengthen rebuilding provisions, which would bring Canada in line with other leading fishing nations such as the U.S. and the European Union?

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

That's great.

In terms of getting to Bill C-68, the ministry went further than what this committee even recommended. There were more recommendations included in the legislation than were actually proposed through this committee, so that's good to hear.

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

Thank you, Madam Chair, and thank you to the minister and his officials for being with us today. We certainly appreciate Bill C-68 and the fact that the government and you have led the charge on strengthening the Fisheries Act.

I have a series of short, specific questions.

You welcomed amendments to the act, so I want to ask you a few questions about that.

Minister, are you open to amending Bill C-68 to address cumulative effects and specifically broadening the information base so that the public registry captures all projects, and to provide compensation for residual harm to fish habitat caused by smaller, low-risk projects?

[The Chair, Mrs. Bernadette Jordan (South Shore—St. Margarets, Lib.)]

Good morning, everyone.

Pursuant to the order of reference of Monday, April 16, 2018, we are studying Bill C-68, an act to amend the Fisheries Act and other acts in consequence.

Before we begin today's meeting, I would like to ask the committee to observe a moment of silence, please, for the victims of the tragedy yesterday in Toronto.

[A moment of silence observed]

Thank you.

Today, appearing before committee in our first hour this morning, we have the Honourable Dominic LeBlanc, Minister of Fisheries, Oceans and the Canadian Coast Guard. Welcome, Minister LeBlanc. We also have with us, from the Department of Fisheries and Oceans, Philippe Morel, assistant deputy minister, aquatic ecosystems sector, and Mark Waddell, acting director general, fisheries and licence policy, fisheries and harbour management.

Mr. LeBlanc, I believe you have 10 minutes for your opening statement.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

I would just say that to me it seems to be a very good description of the way the relationship should happen with indigenous peoples under Bill C-69. I would like to see it taken from Bill C-68 and brought over into Bill C-69. I don't know why it wasn't done in the first place. Anyway, I'll leave this question there.

I know we've already spoken a bit about meaningful public participation, but I'd like to get your feedback on the early planning phase of public participation, looking at meaningful public participation but also alternatives and need. Can you talk about how you would define it and how you would ensure that the right criteria are in place to make it happen?

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Okay. It may be then, that the question isn't going to be as....

Bill Namagoose, are you familiar with that part of the Fisheries Act in Bill C-68?