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.

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

If there's wording that you could provide the committee for Bill C-68, that would be really helpful.

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

Thank you, Madam Chair, and thank you to all our witnesses for your testimony on Bill C-68.

Dr. Fuller, you mentioned six recommendations. I think you covered those quite well and you mentioned that you will submit that to this committee in writing.

[Susanna Fuller]

I do think science should be the basis. I think in some cases the discretion is inherent in this act and this Bill C-68 has not gotten rid of discretion. I think it's important to have the factors to be considered absolutely include science, and I think that's a good addition because there's science but there's also precautionary approach, an ecosystem approach, and incorporation of indigenous knowledge.

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

Thank you.

If you could, as soon as possible, provide us with a little more detail on what those recommendations might be, it would be very helpful as we move forward.

Mr. Marchi, you mentioned the cumulative effect of overlapping jurisdictional regulation and so on, and the problems that's creating. Do you see more of that with Bill C-68?

[Bobby Morrissey, Liberal, Egmont, PE]

Do you feel that Bill C-68 effectively enshrines into law the existing owner-operator policy and the fleet separation policy?

[Susanna Fuller, Oceans North Canada]

Thank you.

Thank you for inviting me to present today in my new role at Oceans North Canada.

Having been involved in previous attempts to amend and modify the Fisheries Act in 2006 and 2007, I want to commend the current government and the work of this committee for finally bringing us, on the 150th anniversary of Canada's Fisheries Act, to the point where significant amendments have been proposed, the majority leading to an improvement and a modernization of Canada's Fisheries Act.

Given the importance of fish and fish habitat to coastal communities, indigenous peoples, and Canadians in general, we do need a Fisheries Act for the 21st century and an act that we can take with pride to Canada's presidency of the G7, particularly with the priority given to oceans.

My comments are based on my history as part of the national fish habitat coordinating committee, which, together with DFO, was a member of several advisory committees for commercial fisheries in the belief that there's an urgent need to ensure that Canada's laws are consistent with the need to reconcile our history with indigenous peoples. They are also based on the belief that the management of a public resource must have a strong legal and policy framework to ensure that its sustainability is part of diversity, valuable ecosystem services, support for independent fishermen, and the future of coastal communities.

As you may know, the initial response to Bill C-68 was very positive, and this is reflective of the broad, though swift, consultative process that was undertaken. There are several elements of Bill C-68 that are significant improvements. I want to take note of these before I get to the few key areas where I believe amendments are needed to ensure that the act adequately provides for fisheries management and protection, conservation of fish and fish habitat, and access to fishing resources for adjacent communities.

The improvements that I think are good are the addition of a purpose section; expansion of factors to be considered in decision-making; measures for protection of independent fishing fleets; restoration of HADD; inclusion of a rebuilding clause for the first time; establishing permanency for fisheries closures, particularly those that are to count towards marine protection targets; creation of advisory panels that can ensure there's an increased use of expertise and public engagement in the implementation of the act; and finally, the five-year review of the act, which will ensure that regular updating is done when needed.

However, on closer examination, and after taking the time to think through how the new act would begin to address existing and long-standing problems with fish and fish habitat, there are a few key areas that, if left as now written, will undermine the achievement of the proposed purpose over time. It's generally accepted that fish populations decline primarily through two key factors: we harvest too many of them, or we destroy too much of their habitat. That's notwithstanding natural mortality and climate change, but without strong legal measures in place, there's no way to ensure that we are managing the harvest properly or able to mitigate and avoid habitat destruction. It is with this view that recommendations for improvements are made.

As you're likely aware, the environmental and conservation communities have been working closely together so that we are concise and aligned in our recommendations for amendments. I've also reached out to the fishing industry to better understand their concerns for areas of support for Bill C-68. The recommendations below are consistent with those put forward by West Coast Environmental Law, Ecojustice, Oceana Canada, and others. I align largely with comments made this morning by Keith Sullivan and Ecotrust Canada. It's interesting to note that the Mining Association of Canada is also aligned with some of the comments from Ecojustice. I think that's actually a unique situation, where we have such a broad constituency acquiescing in so many of the same things.

I will expand upon my six recommendations in a written submission with specific language, but the first one is to strengthen the purpose of the act. It's great that there's a purpose—it's much needed since 1996—but I believe it should be aligned with international agreements and conventions. I suggest that at a minimum we should add long-term conservation and sustainable use of the fishery to the purpose of the act.

Second, there is no mention of section 35 of the Canadian Constitution, and I note that in Bill C-69 it is included. To enshrine indigenous rights in this legislation and have consistency across Canadian legislation, I think section 35 should be added. I am mentioning this for the first time. My colleague Josh Laughren and those at Oceana give lots of reasons for why we need to rebuild the Fisheries Act. I feel strongly that this does need to be in the act and does need to be strong.

In Atlantic Canada, there are 17 species of marine fish that are either targeted by commercial fisheries or impacted by them, and these species are considered threatened or endangered by COSEWIC, the Committee on the Status of Endangered Wildlife in Canada, which advises on the Species at Risk Act. Marine fish do not tend to get listed under the Species at Risk Act, mainly for socio-economic reasons, many of which I have some sympathy with. However, I believe that if we had a strong Fisheries Act that required the rebuilding of fish populations we might not find ourselves in such dire straits, with so many species considered endangered, some of which are vital to our coastal communities.

Strengthening the current rebuilding provisions means there is a legal backstop to the Species at Risk Act, which I would think the fishing industry would support. It gives us another tool to rebuild fish stocks without their being listed under the Species at Risk Act, although in some cases that may be the best tool. The Fisheries Act should require that rebuilding plans be in place and that they take into account ecosystem considerations, including climate change, with regard to timelines and targets. Failing to do this with Canada well behind other fishing nations and their legislation—many examples were given by Oceana—also fails to align us, again, with the international agreements to which Canada is a party or a signatory.

Fourth is on reporting to Parliament and to Canadians. Reporting on the status of fish habitats and the status of population rebuilding should be done on an annual basis. Currently, Environment and Climate Change Canada reports on the fisheries checklist from DFO. It seems a bit misplaced. I think DFO should have to report on its own goals, including fish habitats and the fish stocks and rebuilding. There are excellent examples of how this is done that are easily communicated to the public, and one of those is done by NOAA to the U.S. Congress. It's very readable. It's an infographic. It's not difficult to do. I would recommend adding reporting on rebuilding in proposed section 42.1

Finally, with regard to cumulative effects, we need to broaden the requirement of what's included in the public registry, proposed section 42.3. The public registry for projects is much needed. The NGO community has been advocating this for a very long time, and we're glad to see it in there. However, it's important that all projects where a fish habitat is impacted, whether through a letter of advice or through a departmental authorization, are included. Organizations on the ground, including DFO, through a pilot project in the gulf region, have already mapped areas where fish passage is blocked or a habitat has been altered. In practice, this is happening. It shouldn't be so difficult to add it to a public registry that is geospatially referenced. Without low-risk projects being included, planning and mitigation on a watershed level will be impossible, and I think colleagues at the Canadian Mining Association made reference to that as well.

In closing, a very strong constituency in Canada is interested in helping to implement a new Fisheries Act. This is a unique situation where thousands of volunteers through stewardship organizations and indigenous communities are working to identify barriers to fish passage and damage to fish habitat, to work on restoration. Increasingly, there is more transparency and multi-stakeholder engagement at fisheries advisory committees with regard to commercial fisheries where common ground can and is being found and actions can be agreed upon that help protect fish habitat and rebuild fish populations.

We can also use new tools to implement a new Fisheries Act, including mapping and GIS, electronic monitoring, just as examples, that can make data collection and data analysis easier. In the past attempts to upgrade the act, we didn't have those tools and now we do. They can make implementation much simpler.

In closing, as you consider and review Bill C-68, I hope you will be as ambitious as possible in this historic moment. It is the 150th anniversary of the Fisheries Act, the second act after the British North America Act, and this current act, Bill C-68, gets us up to about the 1970 level. We need to bump ourselves up to this century and give us a Fisheries Act for the future. We're very close. This act is and will continue to be foundational to who we are in Canada.

Thank you, and I'm happy to take any questions.

[Sergio Marchi]

Thank you very much, Terry.

In conclusion, as Terry mentioned, CEA has long worked well with DFO to ensure the protection of fish and fish habitat on behalf of all Canadians.

We trust you will find today's presentation, and our fuller submission that will follow next week, useful as you finalize Bill C-68. We also hope you will give serious consideration to the proposed amendments we suggested this morning.

We look forward to continuing to work not only with DFO but also with this parliamentary committee to develop policy, regulations, and codes of practice that will have practical and effective application while protecting Canada's fisheries into the future.

Thank you very much for your attention. We're happy to answer any questions members may have.

[Sergio Marchi]

Thank you very much to you, Madam Chair, and to the members of this committee for inviting the Canadian Electricity Association to appear before you this morning on your review of Bill C-68.

I'm pleased to represent our association. To my left is Terry Toner, director of environmental services for Nova Scotia Power, as the chair alluded to.

By way of context, CEA is the national voice and forum for the Canadian electricity sector. Our membership is comprised of the major generation, transmission, and distribution companies, as well as the full spectrum of our suppliers. As you all know, electricity is indispensable to the quality of life of all of your constituents and all Canadians, and to the functioning and competitiveness of a modern economy.

The sector is also uniquely positioned to enable Canada's clean energy future. Currently, we are at 82% GHG emissions-free, which ranks us among the cleanest sectors in the world. We have reduced GHG emissions by some 30% since 2005 and we are on track to do so again by another 30% by 2030. No other sector in Canada comes close to matching these results. As we are also a hydro-rich system, our electricity production is highly dependent upon the responsible use of water resources, which is something that came up at the tail end of the previous engagement with witnesses. Water is also used at nuclear and thermal generating facilities. As such, our sector remains committed to protecting and conserving all of our natural resources.

However, it needs to be said that our future, and that of other industries, becomes less certain through the cumulative pancaking of wide scoping federal, provincial, and territorial legislative and regulatory changes. This pancaking cumulatively is becoming dangerously heavy and no one level of government takes accountability for this overall burden. Each government only considers its own respective layers. This needs to change because our business environment must be competitive and it must provide investor confidence, if we are to contribute to the continued economic prosperity of Canada. Also, all these policy decisions ultimately add to the cost of electricity to consumers, who are our customers and your voters.

That said, we believe that Bill C-68 is a missed opportunity for the federal government to anchor the Fisheries Act, clearly and explicitly, in the responsible management of fisheries and overall fish habitat, rather than the protection of single fish and microhabitats.

With that in mind, let me turn to Terry, who will outline our five specific recommendations to improve the practical application and impact of this act.

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

That's I think a global perspective, and obviously a national perspective here in Canada. I appreciate your testimony and your being here today.

Mr. Sullivan, you emphasized the importance of owner-operator and fleet separation.

I'm wondering, again, if you have specific wording that you could provide the committee to strengthen Bill C-68 on how that's done, certainly on the east coast but also even on the west coast. You have more experience in Atlantic Canada than we do on the west coast. I come from western Canada, British Columbia. We don't enjoy that strength of the owner-operator, fleet separation policy in British Columbia.

If you're able to provide wording and any wisdom or insight on how the west coast would follow your lead on the east coast, that would be helpful.

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

In terms of other work that you're doing, how important does this rate with other campaigns or things that you think Bill C-68 needs to include?

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

Thank you, Madam Chair. Thank you to all our witnesses for being here to provide testimony on Bill C-68, the Fisheries Act, probably one of the most important pieces of legislation in the country for protecting our fishery.

We have spoken about the importance of trying to prevent overfishing. That's a critical case. We've talked about the importance of rebuilding plans. I would also submit that the importance of habitat or habitat loss is critical across the country when we're talking about flourishing fishery.

Mr. Laughren, if I could start with you and Oceana, you provided some specific examples of other countries and how rebuilding plans in their legislation is important. You provided those specifics.

You mentioned right at the very end of your testimony that you could provide wording on amending Bill C-68 so that's included. Are you able to get that in to us as soon as possible?

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

Mr. Sullivan, I appreciate your comments on the owner-operator and fleet separation being the two most important economic development tools for Newfoundland and Labrador. Your organization has recently come out very vocally against the minister with respect to the TAC with snow crab, the pricing with snow crab, and the surf clam decision.

Does it not give you and your organization some fear that Bill C-68 gives the minister more of this kind of authority, which will have such a great impact on your membership?

[Joshua Laughren, Executive Director, Oceana Canada]

Thank you, Madam Chair and committee members.

Thank you for the opportunity for Oceana to appear today on Bill C-68, and thank you for your continuing good work.

Oceana Canada is collaborating with the other environmental groups that have been in front of you as well. We're regularly consulting with first nations on how to strengthen Bill C-68. We support the priority amendments that you've heard from others on environmental flows and cumulative effects. First nations groups, in particular, have emphasized the importance of developing habitat banking in the act in co-operation with first nations, and of referencing the United Nations Declaration on the Rights of Indigenous Peoples in the act.

Our top priority, as Oceana, and our area of expertise is the rebuilding of fisheries. It's our view that Bill C-68 as worded is missing one really crucial element, and that's a duty to act when stocks, populations are depleted, with an aim to restore the fishery back to healthy levels. Other nations require this, which I'll show. Canada has committed to it in international agreements, and it already exists in departmental policy. We believe that enshrining this duty in law is the single most important thing we can do as a nation to secure the future for our fisheries and all who rely on them.

This is a word on who we are. Oceana Canada was established in 2015 as an independent, science-based organization. It's part of the largest international group focused solely on oceans in eight countries plus the EU. We believe the oceans are essential to helping feed the nine billion people projected to be on earth by 2050. By rebuilding Canada's fisheries, we can strengthen our coastal communities, reap greater economic and nutritional benefits, and protect our future. Oceana Canada wants the same things we think everyone in this room wants: robust, healthy, wild fisheries and all the cultural and economic benefits that come with them.

Turning to Bill C-68, for the first time since the Fisheries Act was created in 1868, Bill C-68 includes provisions specific to rebuilding. That's good. Unfortunately, as currently worded, the provisions fall short of what we know from global experience is necessary to effectively rebuild stocks. It falls short of our international agreements, and it will not keep us commensurate with other nations' laws.

Bill C-68 requires the minister to consider whether there are some unspecified measures to rebuild stocks that, in his or her opinion, are in the critical zone when making management decisions. I want to pause on that for a moment. “Consider” whether or not there is some measure in place only once the stocks are at or below the level the government's own policies and management measures are designed to never let it get to.

I've heard it argued that we shouldn't worry about this, that the regulations will be where this detail will be put in. We agree, of course, that regulations will be necessary, and that's where a lot of the detail can lie. We fundamentally believe the act has to provide clear guidance to those responsible for drafting the regulations and to stakeholders and rights holders on what the intent of those regulations will be. That guidance is currently missing.

What constitutes a measure to rebuild stocks? If there aren't measures to rebuild depleted stocks, what then? Rebuild to what? Is it to maximum sustainable yield or to upper reference points or just rebuild them back to the edge of the critical zone and leave it there? In what time frame? Bill C-68 falls short of the international standards, right at a time, too, when Canada is seeking to play a global leadership role in fisheries and oceans management.

I want to give you some quick examples from other laws around the world, edited for brevity. In the U.S. the law says, “Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.” It goes on to say that any fishery management plan, with respect to any fishery, shall contain measures necessary and appropriate to prevent overfishing and rebuild overfished stocks.

In the European Union it says that the common fisheries policy “shall aim to ensure that the exploitation of...resources restores and maintains populations....above levels which can produce the maximum sustainable yield.” It goes on, “Multiannual plans shall be adopted as a priority...and shall contain conservation measures to restore and maintain fish stocks above levels capable of producing maximum sustainable yield”.

In New Zealand the law says the minister shall set a total allowable catch that enables the level of any stock whose current level is below maximum sustainable yield to be altered in a way and at a rate that will result in the stock being restored to that level.

In Japan the law says the state shall take measures “aiming at the maintenance or recovery of fishery resources to the level that enables maximum sustainable production.”

Canada has required this of nations in the new NAFO convention that we've signed on to. Some other nations and we ourselves signed on to it.

In each of these cases there are regulations and further guidance that's developed that clarifies how governments can and should take into account economic and social considerations, how to take into account interdependent stocks, and how to adjust plans when nature doesn't respond the way we think it will. That's appropriate and necessary. You can't legislate biology. But in each case, the intent of the legislation is clear: when stocks are in trouble, governments must respond, not “consider” responding.

Of course, this matters because the need to rebuild our fisheries has probably never been greater. We really have halted some of the worst cases of overfishing that happened in decades past, but many of our fisheries remain depleted, often decades after collapse. We are left in the vulnerable position now of being highly dependent on only a handful of species to support the bulk of the economics of the fishing industry, like lobster, crab and shrimp, obviously.

Canada's marine fish populations have declined, as you've heard, by 55% since 1970. That's over a half of our biomass of fish in my lifetime. According to DFO's most recently published numbers, there are only three rebuilding plans in place for the 21 stocks that DFO has confirmed to be in the critical zone. DFO often continues to allow directed fishing on stocks in the critical zone even in the absence of a rebuilding plan or management reference points. Northern cod, of course, which collapsed in 1992 and has been under a moratorium for 26 years, as this committee noted, is still without a rebuilding plan, and there is no identified upper reference point. Nonetheless, management decisions continue and allow fishing levels to increase on a fragile stock, giving it the dubious privilege of being the largest groundfish fishery, I believe, in Atlantic Canada right now, while still under a moratorium.

It is our view that this historical lack of priority on rebuilding, despite policy commitments to do so, and on implementing rebuilding plans is directly attributable to the lack of legislative guidance and a legal duty. This committee has the opportunity to fix that. There is strong evidence, I'll add, too, that adding a legal duty to create rebuilding plans makes a difference—a big one. For example, since the United States legally required rebuilding of depleted fish stocks, 44 stocks have been classified as rebuilt since 2000, generating, on average, 50% more revenue than when they were overfished. In the EU, the number of stocks with a total allowable catch, based on science to produce maximum sustainable yield over time, has gone from two, in 2007, to 53, in 2016. Cod, of course, once collapsed in Europe as in here, has recovered in the North Sea, in Norway, and in the Barents Sea.

Canada has committed to rebuilding international agreements like the United Nations fish stocks agreement, the FAO Code of Conduct for Responsible Fisheries, and the NAFO convention. It's already departmental policy. What we're missing is the legal guidance.

We recommend that you amend Bill C-68 by including a legal requirement for the minister to develop rebuilding plans when stocks have fallen into the critical zone; to set a target to rebuild stocks out of the critical and cautious zones and back to healthy levels as advised in the sustainable fisheries framework of DFO right now; and to include a timeline and guidance on timelines for rebuilding.

Obviously, this is not a silver bullet. This kind of duty needs to be matched by good science, good management, strong enforcement, and it should be done in partnership with the communities and people who rely on and are deeply connected to our oceans. Countries that have this positive legal duty to act have healthier and more stable fisheries than those that do not. Surely that's what we all want.

In our brief we will provide specific wording for the committee to consider.

We look forward to your support and discussion. Thank you.

[Pierre Gratton, President and Chief Executive Officer, Mining Association of Canada]

Thank you, members of the committee. On behalf of the Mining Association of Canada, Justyna and I thank you for this opportunity to appear before you today.

As some of you may know, when I spoke to your colleagues on the environment committee about Bill C-69, I said I was mad, mad because in the same bill, the transition provisions for mining projects under CEAA were not the same as those for NEB projects.

In the latter, the government ensured that all projects undergoing an assessment begun by the NEB under CEAA 2012 would remain under the NEB, but not so for mining, which faces the uncertainty of switching acts midstream.

Guess what. I'm mad about Bill C-68 for a very similar reason. In our appearance before this committee on November 14, 2016, we stressed the importance of adequate departmental capacity for implementing the act and managing transition. We described the significant challenges we encountered with the transition resulting from the amendments introduced in 2012. Over and over we emphasized to the department that they had to do a better job of managing the transition this time around.

We appreciated your recommendations, particularly 21, 22, and 25, that advocated for investments in hiring field personnel and meaningfully resourcing the monitoring, compliance, and enforcement components of the department. We are pleased that the government has materially increased funding for DFO.

However, here with Bill C-68, we find once again a failure to address the problem of transition. While the provisions proposed in subclause 53(1) provide an orderly transition for authorization applications that have been deemed complete, they do not recognize directions given to proponents by DFO in response to a request for review or to guide an application for authorization.

What does this mean exactly? I'll explain.

Determining whether a large and complex mining project will impact fish habitat, gathering information on potentially impacted fish habitat, and examining mitigation or avoidance options takes time. Field studies take time, and must account for seasonal constraints. If an authorization under the Fisheries Act is required, additional time is needed to gather all necessary information, assess offset options, seek input from affected communities, particularly indigenous communities, and otherwise conform to the applications for authorization under paragraph 35(2)(b) of the Fisheries Act regulations. The cost of the complete authorization application package can range from hundreds of thousands of dollars for small projects to millions of dollars in the case of large projects, and can take several years.

Thus, requesting a review and preparing an application is not a trivial or a quick undertaking. Mining projects are also subject to federal and provincial environmental assessment processes. These can take three or more years, and application for an authorization under the Fisheries Act cannot be submitted until these assessments are completed. The case of one MAC member is particularly troubling, and exemplifies the importance of our request for amendment.

The project entered federal environment assessment in 2012, and the proponent had to completely revise its original Fisheries Act-related plans when the new Fisheries Act amendments came into force in late 2013. In the case of this project, it is unlikely that the environmental assessment will be completed in time to allow an application for authorization to be submitted before this bill, Bill C-68, and its amendments, come into force. This proponent would then be required to revise its application all over again, because the extensive direction given by departmental officials over the past six years would suddenly be deemed invalid.

I'm sorry, but we find this simply unacceptable. We therefore urge you to amend subclause 53(1) as suggested in our brief to you, to prevent responsible proponents from being forced to redo field studies, project design, offset design, and application development.

I should emphasize we have met with the department on this matter, and we believe we've been heard, but again, we strongly encourage this committee to consider our proposed amendment seriously, because, members of the committee, our sector has practised due diligence. Unlike other sectors that believe their activities were no longer regulated by the Fisheries Act, over the past six years we have fully complied and engaged with departmental officials to understand the requirements of the 2012 amendments to the Fisheries Act.

Indeed, officials, by their own admission, confirm that most authorizations today are for only the mining sector. Few others, removed from the scrutiny of the Canadian Environmental Assessment Act and, thus, removed from the scrutiny of DFO, have bothered to seek authorizations even though their activities can, and do, harm fish.

Yet we find it is the mining sector that, by following the directions received, now may be penalized for our due diligence and engagement with the department if the directions received are invalidated through inadequate transition provisions, and duplication of effort is required to re-engage following the coming into force of new amendments.

The change we are requesting is not wholesale grandfathering. In fact, we believe the number of projects that would be affected by the proposed change is small. Morever, the requested change to the transition provisions would not affect the health of Canada's fish habitat. We do not believe there has been a deterioration in the protection from inadequate stringency of reviews and authorization applications for mining projects—and I believe the department could confirm that, as well. If there has been a deterioration, it is due to the lack of scrutiny of the activities of others. We are asking for relief from unnecessary administrative burdens on responsible project proponents and DFO regional staff.

Let me now turn to a second issue, which relates to cumulative effects.

When addressing the environment committee on Bill C-69, I spoke about how CEAA 2012 has penalized the mining sector by making us responsible for the cumulative effects of others not subject to CEAA. With Bill C-68 we face a similar situation with the requirement in proposed paragraph 34.1(1)(d) that the minister consider cumulative effects before recommending regulations or exercising any power.

Consideration of cumulative effects is necessary in making decisions that may impact aquatic ecosystem health. Fisheries are under federal jurisdiction, and the Fisheries Act contains a comprehensive range of regulatory tools for the discharge of that jurisdiction. DFO, thus, has the tools for monitoring, assessing, and managing cumulative effects.

However, based on our experience with CEAA 2012, the department may default to erroneously and unfairly place the burden of managing cumulative effects on a few mining projects rather than taking the steps necessary to address the root causes of cumulative fish habitat deterioration.

You recently heard from Margot Venton of Ecojustice Canada, who said:

...fish habitat is degraded not only by major projects, but also through the impact of smaller-scale works, undertakings, and activities. To stem the tide of incremental loss of habitat, DFO needs to do a better job of considering and addressing this cumulative loss of habitat....

Yes—guess what—I'm agreeing with Ecojustice, and not just with them.

The recently published “Watershed Reports: A national assessment of Canada's freshwater”, by the World Wildlife Fund, highlights the complexity and diversity of stresses on Canada's watersheds. It supports our concern that these stresses cannot be addressed by focusing the department's attention on a few mining projects. Activities affecting fish and fish habitat must be fully assessed by the party that caused the effect. Mining projects should be responsible only for project-related effects, as our industry has no control over effects related to non-mining activities, such as forestry, agriculture, hydro, and municipal works. In short, the act must be applied consistently for all works, undertakings, or activities.

Project proponents should not be held accountable for the cumulative effects of non-regulated activities, as contemplated in proposed subsection 34.1(1). As the legislation is drafted, a project proponent could be required to avoid, mitigate, or create offsets for fish habitat to compensate for the harm to fish habitat caused by other industries.

These concerns could be partly addressed by amending proposed paragraph 34.1(1)(d) as spelled out in our brief.

To conclude, if the transition provisions in subclause 53(1) are amended as requested, and if you help balance the responsibility for cumulative effects, the impacts of the revised Fisheries Act proposed by Bill C-68 on the mining sector are expected to be manageable. Of course this is contingent on how these are interpreted and implemented by DFO.

Thank you very much. I look forward to your questions.

[Keith Sullivan, President, Fish, Food and Allied Workers]

Thanks, everybody. Thank you to the committee for allowing me to speak today. I'm not sure if I was the number one pick by Mr. Donnelly, but anyway we're going to get going. I hope everyone will appreciate the comments. I would have loved to be there today in person certainly.

My name is Keith Sullivan, and I'm the president of the Fish, Food and Allied Workers Union. We represent workers in more than 500 communities in the province of Newfoundland and Labrador, and most of those people work in the fisheries. About 10,000 of those are actually harvesters.

Many of the communities actually existed for centuries. The whole reason people live in these communities in these places in Newfoundland and Labrador is the fishery. I grew up in the small fishing community of Calvert. There were six generations of harvesters in that area before me, and that's not unlike an awful lot of stories of our members as well. I was lucky enough to be working in a fishing boat for many years of my life as well.

The inshore fishery has been the primary economic driver of coastal communities in Newfoundland and Labrador. It's the real backbone of the middle class in those rural communities. Without the inshore fishery, the rural communities in Newfoundland and Labrador wouldn't actually survive.

Our industry has gone through a significant transformation over the last number of years, particularly the last 20 years. Our ability to adjust, transform, and reinvent ourselves has been an amazing show of resilience and innovation in the inshore fishery. Now we're going through another transition and we're seeing a dramatic impact on our fishery once again. We're seeing warming water temperatures that have resulted in generally a decline of shellfish stocks, very valuable shellfish stocks, and we're seeing a resurgence in many groundfish species. While we see that there are new opportunities on the horizon, in the short term our members, whether they're in harvesting or in fish processing, are going to face significant challenges.

In order to rebuild a groundfish fishery in Newfoundland and Labrador and sustain those coastal communities, we have to have management that's based on the principles of ecological sustainability, of course, and social sustainability, but also economic sustainability is important as well.

The recently tabled amendments to the Fisheries Act provide much of that critical foundation required to achieve those objectives. Most of my comments today are going to focus on the fisheries management provisions in Bill C-68, specifically the preservation and promotion of the independent, owner-operator fishery.

In our province it is not an exaggeration to say that the owner-operator principle and fleet separation are the two most important economic development principles we have in our coastal communities, particularly rural Newfoundland and Labrador. These two policies have kept a viable inshore fleet in place and have injected significant wealth to all areas of the province. Again, I don't think it's an exaggeration to say those two policies combined are the most important economic development tools that our province has to offer, and I would say it would be similar in many areas of rural Atlantic Canada. It's because of the critical role that owner-operator and fleet separation play that the FFAW has been lobbying for 20 years to make sure that these policies are enshrined in law.

While inshore fish harvesters, their families, and their communities recognize the importance of these policies, there are some who do not see the value of safeguarding the independent owner-operator fishery. In the past, we've seen that corporate interests have influenced and interfered with the application and enforcement of the fleet separation and owner-operator policies. As a result, corporations have gained control of licences and are siphoning the wealth and the benefits not only from fisheries and fishery participants but really from our coastal communities and entire regions of our province.

The attack on the owner-operator principle, led primarily by large fish-processing companies, over the past 20 years has had serious economic repercussions for the fishery and our coastal regions. Of particular concern is the impact that trust agreements have had on the cost of fishing licences, which has made it extremely difficult for young people to enter the fishery. This is becoming more and more prevalent, and is really a key consideration for the next generation of harvesters. It's also important to note that harvesters who are actually in these trust agreements receive less for their catch. The same competition doesn't exist for these harvesters, so they're paid lower wages, in many instances.

The fleet separation and owner-operator policies have been remarkably easy to circumvent in recent years. They're extremely valuable, but at the same time they've been easy to get around. Legal teams for companies have developed trust or controlling agreements where the licence-holder must transfer the beneficial interest of a licence to another party that's not legally entitled to hold one—namely, most times a fish-processing company or a larger corporation. In such transactions, control over how the licence is used, sold, or managed is really granted to this third party as well. Again, for the licence-holder whose licence is owned or held in name only, the total control over that and the benefits are going to these outside corporations. That can be someone from outside of Canada, for that matter, just because we don't have the enforcement to back things up. Really, this is why the enforcement powers are so critical to ensuring that the owner-operator fleet is protected.

The independent owner-operator fishery is a strategic asset to Canada's economy. Amendments to section 43 of the act that give the minister authority to make regulations to enforce the owner-operator and fleet separation are key. With the force of law, these policies will become more robust, with legal consequences for corporations holding fish harvesters in controlling agreements.

Just the policy alone, as we saw, is insufficient to safeguard the social, economic, and cultural future of coastal communities. These policies deserve to be in legislation, and are the pillars, as I said before, of economic development for hundreds of thousands of people and their communities in Atlantic Canada. Over the years, there have been many discussions with the Department of Fisheries and Oceans on how to better enforce these policies, but little progress has been made. The policy for preserving the independence of the inshore fleet in Canada's Atlantic fisheries—PIIFCAF, as many in the business would know it—is an important policy initiative that's been in place for almost a decade but that's had modest results. It's an important and well-intentioned policy, but again, they've had the ability to circumvent that policy without the force of law.

In the end, PIIFCAF and the enforcement of the owner-operator and fleet separation are undermined because the activity they're regulating is not illegal. Owner-operator and fleet separation are not law, and violating them does not result in any specified punishment.

The proposed amendments to section 9 of the act should address the current lack of punishment by clarifying the minister's authority to act when the law is violated. These provisions give new authority to suspend or cancel licences if the minister determines that the licence-holder has entered into an agreement that contravenes any provision of the act or regulations.

Protecting the inshore fishery is one of the best ways to build a strong middle class in hundreds of coastal communities—much like Calvert, the community I grew up in—and to create jobs and protect and strengthen the economy. We actually have a very highly sophisticated, independent owner-operator fleet that is capable of harvesting all species on our coasts. It's able to bring that fresh product to our communities, but we need to make sure we have a strong policy and legal framework to ensure that the benefits of the fishery come back to the people who fish and to the adjacent coastal communities.

We can no longer afford to make fisheries decisions in silos, nor can we afford to ignore the wealth of knowledge offered by people who spend their days and countless hours in fishing boats.