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.

Bill C-68—Time Allocation Motion

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

Mr. Speaker, I sat in on all of the debates in the House and at committee on the House side. Time and time again, there were requests from first nations and from our side for extended consultations and study time, yet the government members at committee shut them down. It is just like the fake consultation they are doing here.

I hope the minister will set aside his talking points and actually speak about what we heard, especially yesterday at committee when we studied the Senate amendments to Bill C-68. We heard that the only people opposed to third party habitat banking were DFO staff, as directed by the fisheries minister.

Why is it that the fisheries minister and his staff are the only ones opposed to the third party habitat banking amendments? Why can the minister not accept that we could create net habitat gains through third party habitat banking? Here he is, trying to shut down debate on it.

[Jonathan Wilkinson, Liberal, North Vancouver, BC]

Mr. Speaker, certainly Canadians expect that the government will deliver on the campaign commitments it made in 2015. It is important that the Senate debate and discuss bills, but it is also important that the Senate remember that we are the elected chamber. As we move legislation forward, we are, of course, open to amendments from the other House. However, at the end of the day, Canadians are expecting us to deliver on our campaign commitments.

I would also say that it is not simply the Senate that has been trying to delay legislation. With respect to Bill C-68, in the debate that occurred on Tuesday, my hon. colleague from Cariboo—Prince George simply talked out the clock, discussing things that had zero to do with Bill C-68. It is the Conservatives here who are trying to ensure that we do not pass the legislation that Canadians expect.

We are planning to get these things done.

[Robert-Falcon Ouellette, Liberal, Winnipeg Centre, MB]

Mr. Speaker, in the Senate there are a number of bills that are so important, just like this exact bill here, Bill C-68. There are also Bill C-88, Bill C-91, Bill C-92, Bill C-93, Bill C-391, Bill C-374, Bill C-369 and Bill CC-262. All these bills are being delayed by the Senate because they are taking far too long.

I was wondering if the hon. minister could tell us why the Conservative senators are delaying all these bills, delaying us from doing the job that Canadians have sent us here to do. They gave us a mandate in 2015, after a decade of darkness with the Conservatives, to repair the damage they had done to the environment and to indigenous communities and to make sure we get this job done.

Can the hon. minister talk a little bit about that, please?

[Jonathan Wilkinson, Liberal, North Vancouver, BC]

Mr. Speaker, I think the subject of the debate today is Bill C-68, and I would tell my hon. colleague that the department conducted extensive consultations. Over 2,000 Canadians registered online, and over 5,000 filled out questionnaires. There were 170 meetings with indigenous groups, 200 submissions from indigenous people, 208 letters to the minister and many meetings in person. It was virtually unanimous that we needed to restore protections for fish and fish habitat that were taken from the Fisheries Act by the previous government, which gutted the protections for fish and fish habitat.

We are very proud to be delivering on a campaign commitment that is so important to Canadians. We are doing that now.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

Mr. Speaker, the minister is being very disingenuous here. I sat in on the hearings of Bill C-68. Not a single opponent of what we did in 2012 could prove, in any way, shape or form, that those changes had any effect on fish populations or fish communities. Colleagues can look at the record.

Under our former Conservative government, in 2010, for example, the Pacific salmon run in the Fraser River was a record. In 2014, that run was even higher. Under the Liberal government's watch, Pacific salmon stocks are collapsing and the Chinook salmon stock is the poster boy for that.

Our committee produced a unanimous report on Atlantic salmon, with a number of recommendations. We saw the minister's response. Not a single part of that letter dealt with the 17 unanimous recommendations, such as smallmouth bass in Miramichi Lake, overfishing by Greenland and excessive predation by seals and striped bass. The response did not deal with any of that.

Why is this department so inept and uncaring for fisheries communities and fish stocks?

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

moved:

That, in relation to Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, not more than one further sitting day shall be allotted to the stage of consideration of the Senate amendments stage of the said bill; and

That, 15 minutes before the expiry of the time provided for Government Orders on the day allotted to the consideration of the said stage of the said Bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and, in turn, every question necessary for the disposal of the said stage of the Bill shall be put forthwith and successively, without further debate or amendment

[Daniel Gibson, Senior Environment Specialist and Chair of Fisheries Working Group, Renewable Generation and Environment, Waterpower Canada, Ontario Power Generation Inc.]

Thank you, and greetings to the chair and to the members of the committee.

Ontario Power Generation appreciates the opportunity to make a delegation to the standing committee today. I'm also here today in my capacity as chair of the fisheries working group for WaterPower Canada.

OPG, Ontario's largest green energy generator, is focused on safe, reliable and sustainable electricity generation. The company's electricity generation portfolio has an in-service capacity of over 17,000 megawatts and operates two nuclear generating stations, one biomass-fuelled thermal generating station, one oil/gas-fuelled thermal station, a solar facility and 66 hydroelectric generating stations. As Ontario's largest clean energy provider, we maintain a critical role in Canada's greenhouse gas emissions reduction targets.

OPG has been actively involved in all aspects of the federal government's review of the Fisheries Act and in Bill C-68 since 2016. We welcome this opportunity to present today on the feasibility of implementing a third party habitat banking framework for Canada.

Similarly, WaterPower Canada, formerly known as the Canadian Hydropower Association, represents both the producers of hydroelectricity as well as the service and supply businesses that support the industry. As you've heard in past delegations, and it's important to restate it, hydro power supplies over 60% of Canada's electricity and is our largest generation source by far. The result is an electricity system that is one of the cleanest, most renewable and most reliable in the world. The generation of hydroelectricity produces virtually no greenhouse gas emissions. It can and must play a central role in achieving Canada's climate change targets.

From the outset, OPG wishes to acknowledge our support for the submissions from WaterPower Canada, as well as the Canadian Electricity Association, the Canadian Nuclear Association, and the Ontario Waterpower Association.

OPG continues to support this government's efforts to implement modern safeguards into the act. Today we are here to talk specifically about that under habitat banking.

In our previous submissions to this committee and through discussions with DFO, OPG has advocated including provisions in Bill C-68 for a habitat banking system that advances the effective and efficient management of Canadian fisheries. We have advocated added flexibility for the creation and use of credits by project proponents and third party groups in a manner that advances both fish habitat conservation objectives and economic objectives. We are encouraged to see the interest expressed by this committee to study this issue of third party banking in greater detail and the inclusion of enabling amendments to Bill C-68 during the Senate review of the bill.

We understand that the proposed provisions of Bill C-68 would allow for some capacity for the Governor in Council to regulate not only the creation, allocation and management of credits and offsets but also their potential exchange and trade. These enabling provisions represent a significant opportunity towards making another tool available for achieving net benefits for fish and fish habitat conservation in Canada.

A well-designed habitat banking system could allow for the ability to aggregate projects for the greatest benefit, large proponent-led initiatives, third party-led initiatives that proponents could support and buy into, and opportunities with well-defined cumulative benefits for multiple species, including species at risk, as Mr. Norris has alluded to. Allowing broader participation in habitat banking can support business and create economic and knowledge-building opportunities as well.

The implementation costs for habitat banking may be reduced for proponents who may not see this as their core business, while the expectation of financial incentives can expand economic and business opportunities for qualified third parties to properly manage and monitor habitat offsets. These third parties may be better equipped to aggregate regional offsetting actions on a larger scale than might be otherwise done for individual proponents.

Because they are longer-term, habitat banks can also encourage broader partnership and knowledge-building opportunities. OPG's example in this regard is the habitat bank developed through a partnership with Quinte Conservation, consultants and a local contractor to design and build the Big Island wetland near Belleville, Ontario. The investment in this habitat bank was carried out as an offset requirement under the environmental assessment for OPG's Darlington new nuclear project, well in advance of the project's being approved.

The Big Island project is a perfect example of an offsetting project that went beyond the standard like-for-like offsetting model and sought first to consider the fisheries management objectives for the water body where we were working. What was determined was that a limiting factor for fisheries productivity in Lake Ontario was not necessarily the loss of alewife, which is the species most commonly interacting with our nuclear power facilities, but rather the loss of coastal wetlands along Lake Ontario's north shore.

Equipped with this knowledge, OPG and the project partners were able to develop a project based on perpetual habitat credits to offset the potential annual loss of fish as a measure of productivity for the future Darlington nuclear facility.

When the Darlington new build was temporarily suspended, OPG was fortunate enough to utilize portions of our Big Island wetland bank to offset measures for our existing Darlington and Pickering nuclear generating stations as part of our Fisheries Act authorizations. That said, if we had not had that opportunity to reinvest those credits into our Fisheries Act authorizations, the prior investments in the Big Island wetland may have been in jeopardy.

While creating the expanded wetland would have been a good outcome from a sustainability point of view and for its habitat offset, there are few organizations that can afford to spend money up front on an offset project when there remains overall uncertainty as to whether or not the project would be approved. From this perspective, enabling a formalized third party banking regime presents an opportunity to bring practitioners together as part of a community to report on and share experiences, research efforts and knowledge of what works. OPG and other industry partners have investigated and commissioned research on habitat banking prior to embarking on the Big Island wetland project. We'd be happy to share that as written submissions to the committee if the committee so chooses.

Overall, OPG believes that enabling third party banking would not only bring increased collaboration and opportunity for aligning biodiversity offsets for fisheries, but would also enhance broader ecosystem function and restoration goals, such as wetland creation, species at risk and land conservation. I'm not the first person to mention that in our testimonies.

In closing, I'd like to thank the committee for this opportunity to provide our views on habitat banking under the Fisheries Act. OPG, as well as WaterPower Canada, would welcome the opportunity to work with DFO to help build a habitat banking system that works in the Canadian context, where resource management is a shared responsibility.

OPG looks forward to continued participation through our industry associations to assist the committee's efforts. We would also be more than happy to meet with you to review our comments and happy to take any of your questions now.

Thank you.

[Paul Norris, President, Ontario Waterpower Association]

Thank you, and thanks to the committee members for the opportunity to provide our insight and perspective on your consideration of the enablement of an optional third party habitat banking system as a component of Bill C-68.

My name is Paul Norris. I'm President of the Ontario Waterpower Association. I'd like to state at the outset that our organization is in strong support of the inclusion in legislation of third party habitat banking. Not only can such a tool contribute to our collective desired outcome of sustainable fisheries, but in so doing it can foster positive and productive partnerships and innovation on the landscape.

By way of introduction, the OWA represents the common and collective interests of the owners and operators of Ontario's 224 waterpower facilities. They are located from Cornwall to Kenora, with installed capacities ranging from less than 20 kilowatts to more than 2,000 megawatts, and built as early as 1898 and as recently as 2018.

Our membership of more than 140 includes environmental, engineering, legal, financial and construction firms; equipment manufacturers and suppliers; municipalities; and indigenous communities. Waterpower is the electricity engine upon which the initial economic prosperity of the province of Ontario was built, and it remains the backbone of an affordable, reliable, sustainable energy system.

It is of specific relevance to the matter under consideration by the committee that our association has the regulatory responsibility for the environmental assessment process for virtually all waterpower development in Ontario through the provisions of the Class Environmental Assessment for Waterpower Projects, of which the OWA is the proponent. Approved by the minister of the environment in 2008, the objective of the Class Environmental Assessment is to help ensure that projects are planned in an environmentally responsible manner. An additional objective of the Class EA is to coordinate and integrate the multiplicity of environmental approvals and public involvement processes that are relevant to planning a waterpower project.

With respect to DFO's mandate, the Class EA states:

...a waterpower project will almost always involve review and possible Authorization under the federal Fisheries Act and studies conducted under the class EA should involve collection of appropriate information on fish and fish habitat. The completion of an undertaking under the Class EA does not remove Fisheries and Oceans Canada's decision-making authority under the Fisheries Act but it is expected that a proponent using this Class EA will satisfy the substantive planning requirements related to completing a Fisheries Act authorization.

It is precisely this “one project, one process” approach of the Class EA that enables the consideration and the application of an array of tools, such as habitat banking, to achieve the objectives of the myriad legislative requirements to which a waterpower project is subject.

Embedded in the Class Environmental Assessment as well is the mitigation sequence within which the concept of third party habitat banking would be utilized. In short, the Class EA adopts a conceptual hierarchy of avoidance, prevention and mitigation.

Where impacts cannot be avoided or prevented, mitigation measures, including compensation, are considered. Habitat banking in general and third party habitat banking specifically are proactive mitigation measures that can be applied on a landscape level to achieve desired outcomes, including the sustainability of fisheries.

I believe it's also important to recognize that the enabling of the innovation of third party banking under the Fisheries Act could help deliver what are generally referred to as “stackable benefits”. One could easily envision a fish habitat banking project that creates ecological goods and services for wetlands, for species at risk, and for carbon offsets—in short, a whole that is greater than the sum of its parts.

This then brings me to the practical application of third party banking.

In support of the OWA Class EA, we have published more than 40 environmental best management practices for the construction of waterpower facilities. Three of these BMPs are specific to fisheries species at risk and were developed with the input and advice of Fisheries and Oceans Canada. I'd like to focus, however, on the partnership between our association and Ducks Unlimited Canada in their preparation and publication of the BMP for wetlands and waterpower facility construction. The document advises that:

The restoration or creation of wetland habitat requires input from a multidisciplinary team...to develop an adaptive strategy based on a critical analysis of the abiotic features of the landscape. Engagement and/or retention of agencies experienced in wetland restoration/creation and management such as Ducks Unlimited Canada will inform and enrich the design of wetland creation projects.

In short, while in some instances a proponent may have the capacity to apply mitigation strategies, including habitat banking, in others there is a clear and recognized role for subject matter experts, particularly those in the business of on-the-ground stewardship, such as Ducks Unlimited Canada, the Nature Conservancy of Canada, Trout Unlimited and others.

For waterpower projects, which in Ontario take up to eight years to complete from environmental assessment to commissioning, regardless of size, the opportunity to proactively bank habitat as a potential mitigation measure, either by the proponent or in partnership with a third party organization, is particularly relevant, especially on a landscape scale. Enabling this measure through the Fisheries Act will undoubtedly unlock the art and the science of the possible.

The OWA fully recognizes and appreciates the significant regulatory and policy work that is required to implement third party habitat banking. In our view, it is well worth the effort. Based on my experience as a member of the Ontario species at risk program advisory committee as well as the Wetland Conservation Strategy Advisory Panel, I can assure committee members that there has been significant collaborative thought devoted to the concept and application of third party banking, which the Department of Fisheries and Oceans can leverage. I can also assure you that our organization is prepared to contribute to these efforts.

Thanks again for the opportunity to speak with you today. I look forward to the entertainment of questions.

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

The reason I bring it up is that in my riding we have seen international organizations buy up huge swaths of agriculture land, plow it under, and plant trees for carbon credits to be applied overseas. I'm wondering if this could be an issue that could be addressed by Bill C-68, including third party habitat banking, in the language that was used by the Senate.

[Senator David Mark Wells, Senator, Newfoundland and Labrador, C]

Thank you, Chair.

Good afternoon, colleagues.

I want to start off by thanking the chair and the members of this committee for inviting me to speak here today about implementing third party habitat banking in the Canadian context.

This wasn't part of my speaking notes, but I think it's important that I am here not just as a senator who proposed amendments on third party habitat banking and had them accepted in the Senate. I have also appeared at the House fisheries committee before as a subject matter expert, and I have 35 years of experience in the fishery, managing fish processing plants. I was chief of staff at DFO, director of policy at DFO and author of more than 100 technical reports on the fishery. I have direct experience in habitat banking, and I am also a member of Canada's team in the delegation to NAFO.

As I'm sure you are aware, Bill C-68 recently passed in the Senate, with amendments to expand habitat banking to third parties, to introduce an offset payment system and to ensure habitat banking benefits remain local in comparison to a work, undertaking or activity.

I would like to use this opportunity today to urge your committee to recommend the passage of these amendments into law.

While I'm aware that your committee is simply exploring the possibility of implementing third party habitat banking sometime in the future, I want to make it very clear that Bill C-68 may be the only opportunity to get this done right and done within a reasonable period of time.

The Fisheries Act is one of Canada's oldest pieces of legislation, brought into force right after Confederation. When this act is changed, the process is quite lengthy, as we are seeing now with Bill C-68 and as we've seen with all other attempts to pass legislation regarding the Fisheries Act.

I think we all recognize and appreciate the complexities involved in establishing an effective third party habitat banking regime in Canada. Those complexities, though, colleagues, are not legislative; they are regulatory. The amendments to Bill C-68 only come into force upon proclamation of cabinet, and not with royal assent as they typically do. This would provide DFO and the relevant federal agencies the time to get it right so that nothing would be forced onto the Canadian public without it being ready, and I think that's an important point to make.

What the Senate is recommending with the habitat banking amendments is the early work involved in setting the stage for DFO to consult widely and bring in the proper regulations. This could take over a year, two years or five years—however long it takes to bring in a system that's based on international best practices and generates the best possible ecological and economic outcomes.

Third party habitat banking is not new. Other countries, including the United States, already have third party habitat banking systems in place. These systems work, and they work well.

The international debate on this topic is not about whether third party habitat banking should be permitted within a jurisdiction; it's about how regulations should be designed and administered.

The benefits of including third party groups in a habitat banking regime are substantial, and so are the costs of excluding these groups.

Expanding the habitat banking system would create an entirely new habitat banking economy that creates jobs, incentivizes innovation and encourages more and better environmental protection.

Not all proponents—and currently it's in the legislation that it would be just proponents—have the resources or knowledge to build a physical offset. Under a third party habitat banking system, as you have heard from the other witnesses, the proponents would be able to purchase a habitat credit instead of designing and building their own physical offset. The offset must still be created, but under third party habitat banking it could be created by a group with specific conservation expertise. The proponent would essentially be, in these cases, funding the construction of an improved physical offset. This would not replace the mitigation aspects required under the environmental protection aspect of any development.

Third party habitat banking is a win for industry and a win for the environment. Companies won't have to divert attention from the core aspects of their business and the jobs that come with it. All they have to do is buy the credit for the habitat bank established by a third party group and, of course, the mitigation required.

With a new market for the credits, there is an incentive for third parties to join the habitat banking program, thus leading to additional ecological protection.

Who are these third party groups? These third parties include, but aren't limited to, indigenous groups, conservation specialist groups like Ducks Unlimited, wetlands advocates, private sector firms and municipalities. All of those, colleagues, currently do not have the right to be part of the proponent protection. When we say that only a proponent can create a habitat bank, as Bill C-68 did before we amended it in the Senate, we are deliberately excluding groups that have direct experience protecting our environment.

These stakeholders all want to be on the front lines of habitat restoration and enhancement, and they should be. That's why the amendments I proposed at committee to expand habitat banking to third parties, which had broad support across all groups and caucuses in the Senate, also had broad and diverse stakeholder support. Environmental NGOs and industry groups like the Ontario Waterpower Association and the Canadian Ferry Association, for example, as well as first nations, municipalities, conservation authorities and provincial government agencies want to see the expansion of habitat banking to third parties become law. The Senate amendments in Bill C-68 regarding third party habitat banking are cross-partisan amendments, and they're reasonable amendments in terms of implementation, given DFO will have more than enough time to consult widely and bring the system into effect.

I also want to clarify something for the record. As I imagine many of you are aware, I voted against Bill C-68 at third reading in the Senate. I voted this way because there are other aspects of the bill entirely unrelated to habitat banking that I could not support. Bill C-68 is an omnibus fisheries bill, and as I said in my third-reading speech in the Senate, it should have been split into different bills dealing with substantially different elements of the Fisheries Act.

Colleagues, I'm pleased that we have the opportunity here today to discuss the positive changes now in the bill and how they can be implemented in Canada. Third party habitat banking is a perfect example of a private sector solution to environmental challenges. The system is funded by the private sector and executed by specialist groups in the field of environmental and ecological preservation.

I hope your committee, and indeed the entire House of Commons, will use this opportunity to enable the regulatory work to bring third party habitat banking into effect sooner rather than later.

Thank you.

[David Poulton, Principal, Poulton Environmental Strategies Inc.]

Thank you, Mr. Chairman and members of the committee.

My name is David Poulton. I am the principal of Poulton Environmental Strategies Inc., a small consulting firm here in Calgary. I am also the director of the Alberta Land Institute, which is a land use policy research institute at the University of Alberta, and I am the executive director of the Alberta Association for Conservation Offsets, a multi-stakeholder forum for advancing offset thinking here in Alberta. I wish to make clear, though, that all my comments are my own individually, and not necessarily representative of the members of the groups that I am affiliated with or of the groups themselves.

Bill C-68, as originally presented, included provisions for banking arrangements whereby a development proponent could arrange to undertake conservation actions to produce habitat credits and then bank those credits for application against future offset obligations from future development plans. This is dealt with in proposed section 42.01, as I am sure the committee members are well aware.

This is known as first party banking, because the party that creates and banks the credits is the same as the party that ultimately uses them. It's also known as self-banking or, in some of the documents, as proponent banking.

First party banking has occurred selectively for several years under the existing Fisheries Act. It has been largely restricted to a few proponents with repetitive or ongoing projects that require a flow of offset measures. I expect that committee members are familiar with the report from SENES Consultants from a few years ago that reviewed those arrangements.

I have comments on banking generally and then third party banking, and some suggestions about how we might ease into this business. In my comments, I should make clear that I completely agree with everything that Dr. Weber has said with respect to the administration of banking, and I wouldn't want my comments to be seen to be detracting from what she said at all.

With respect to banking generally, it's generally acknowledged that it has three advantages over proponent-led offsets and also over in-lieu fees.

First, and what really distinguishes it, is that it allows for the development and maturation of offset measures prior to the corresponding development.

A common problem in offset arrangements is that there is a time lag between the negative impact of the development and the positive impact of the offsets. With banking, the offsets precede the development, and therefore the negative aspects can be minimized or even reversed. It also allows an opportunity, because it is done in advance, to ensure that the conservation measures are actually successful in achieving their goals, thereby mitigating the risk that there would be some failure in the offset measure when it is too late for any accounting for it in the development process.

Finally, because banking of banked offsets credits is pursued in a proactive way, it allows for an opportunity to match those actions with land use planning and species planning in order to pursue strategic priorities, something that may not happen if offset measures are pursued on an ad hoc basis, with developers each designing their own specific measures.

Let me turn now to third party banking.

The amendments that are currently under consideration would expand habitat banking to include third party bankers, those who do not intend to use the credits for development projects of their own. This opens the prospect of a community of professional fish habitat bank sponsors whose business model is based on the creation of fish habitat for the purposes of generating habitat credits for commercial sale. This could lend a community with both expertise and efficiency to the activity of habitat restoration, enhancement and creation.

Further, I believe it is the intention that there would potentially be several banks of credits available at any one time in a region, which would bring competition and market pressure on those habitat bankers to be cost-efficient and produce quality work.

In case you can't tell, I am certainly in favour of the amendments for creating the third party banking. I do understand, however, that the department is concerned with the extent of the policy and administrative infrastructure that third party banking may require. I'd like to offer a couple of suggestions in that regard.

Again, I endorse Dr. Weber's suggestion that there be an agency responsible for this, with standard metrics and so on, and I believe there may be some interim measures that we can take in the short term while we are developing that infrastructure.

However, even if full implementation is delayed, I think the passage of the amendments would be an important signal to the department and to the Government of Canada as a whole that habitat banking is a path worth following and that resources should be dedicated to developing it.

My first suggestion is that we look to the U.S. for guidance as to how a system might be developed. The United States has had a system of wetland banking in place for over 30 years, but it is important to note that during a lot of that time it was developed on an ad hoc and relatively informal basis. Indeed it was only formalized into a set of federal regulations in 2008. Prior to that, it developed largely on the basis of practices that were accepted informally in regional offices of the U.S. Army Corps of Engineers, and as those practices proliferated and greater dependence upon banking arrangements grew, the federal authorities thought it was important to provide uniform guidance in order to assure consistency across the system.

That example does indicate that this sort of activity can occur on a small scale and a relatively informal basis, providing that there is an acceptance of the notion that a habitat credit is a transferable asset and not something that is bound to a particular proponent or a particular project.

Second, I would suggest that we could start putting our toe into these waters—no pun intended—by allowing the first party bankers that currently exist or that are contemplated under the new legislation to transfer their credits to third parties. Those would be other developers in the region in which the first party bankers are operating, and those third parties would have a need for credits to mitigate and offset their own impact.

Why do I suggest this? The first party bankers that we either have or are contemplating are presumably established, sophisticated entities that are well known in their regions and that have an ongoing relationship with the Department of Fisheries and Oceans. As such, they are likely to be a source of information for those others in the region that may be looking to solve their fisheries challenges. We already have a process to certify their first party credits as being valid and bankable. That process exists, and may undergo further development. All we need then is to allow them to transfer credits, and conversely to accept transferred credits as valid when submitted for use by the third party recipients of the credits.

This relatively informal process would allow us to gain some initial knowledge as to where demand for credits may come from, how buyers and sellers can effectively connect, how transfers can be effected and what issues might arise with transferring credits. As those issues arise, we can indeed deal with them through a regulatory framework.

My understanding is that Port Metro Vancouver is currently the only first party bank that is allowed to transfer its credits. I don't know if that has ever actually been done, but it does indicate that there has been some contemplation of this model and that perhaps there may be some experience with it of which I'm not personally aware.

I just want to make a couple of remaining points here. One is that in creating third party banking, the legislation would effectively create transferable habitat credits as a new form of tradable asset, one whose value lies in its satisfaction of a regulatory offset requirement.

As Dr. Weber indicated, this carries with it certain expectations that the credit must be backed by some system that assures its performance environmentally and establishes some liability for ensuring that the performance is actually seen through.

Further, we need some clear system in order to establish when a credit actually comes into existence and when it is used and extinguished so that there is no fuzziness around what is and is not a valid credit.

Perhaps the best way to achieve this is through the use of a registry, an approach that is often used for intangible forms of property. Indeed, the legislation does provide for a registry of projects under the Fisheries Act. It does not specify that it would carry information with respect to banking and credits, but I think if it did, it would be a very valuable tool for validating the process.

With that, I think I will close my comments. I look forward to hearing from the committee in due course.

[Dr. Marian Weber, Adjunct Professor, Department of Resource Economics and Environmental Sociology, University of Alberta, As an Individual]

Thank you for inviting me to testify on the feasibility of third party habitat banking in Canada. I am a researcher at Alberta Innovates and an adjunct professor at the University of Alberta, and I am speaking independently.

Today I would like to outline key components of a framework for third party banking, first by providing a high-level summary of the history and benefits of third party banking; second, by illustrating desirable elements of a framework through two case studies, and finally, by summarizing lessons from these and implications for third party banking under Bill C-68.

First, here is a brief history of banking, which arose 40 years ago out of the U.S. Endangered Species Act and the U.S. Clean Water Act.

Wetland banking under the Clean Water Act identifies three mechanisms for offsets: permittee-responsible mitigation, third party banking and in-lieu fee mitigation. Since 2008, these options have been prioritized, with third party banks being the most preferred option, followed by in-lieu fee mitigation. Third party mitigation is preferred because of improved oversight and ecological outcomes.

Both in-lieu fee and banks are third party mechanisms. The difference is that for in-lieu fees, developers pay a fee to an agent and the development takes place prior to restoration. Banking is associated with up-front restoration, and credits are sold to companies prior to development. In-lieu fees can be preferred when there are few potential buyers, but they have also been criticized because of lack of accountability.

Alberta's wetland compensation program, prior to 2013, was an example of a poorly administered in-lieu fee program whereby charges for wetlands compensation were directed to Ducks Unlimited, with limited accountability in linking the payments to wetland losses and gains. The program was criticized by the Alberta auditor general and has since evolved to become more transparent.

The first case study I wish to highlight is the New South Wales Biodiversity Offsets Scheme. Under this scheme, biodiversity impacts from development are offset through permanent private land agreements. Prior to 2016, the offset scheme was known as BioBanking. BioBanking was a voluntary program that ran in parallel with regulated offsets. The Biodiversity Offsets Scheme combined both regulated and voluntary programs to leverage dollars and provide standardization and accountability.

The critical elements of the Biodiversity Offsets Scheme are the Biodiversity Conservation Trust and the biodiversity offset management system. The conservation trust is a statutory not-for-profit body that administers the in-lieu fee program. Its role is to deliver offsets through landowner agreements. The biodiversity offset management system sets standardized roles for registering and exchanging credits and includes a science-based online assessment tool that is used by both landowners and developers to assess credit obligations prior to entering agreements.

A unique aspect of the fisheries offsets is that many of the activities that cause harm to fish take place on public lands and are temporary in nature. Third party offsets would require some sort of disposition on public lands and in waterways.

These issues are considered in the second example, the U.S. lesser prairie chicken offset program, which is a multi-state program to improve habitat through a combination of permanent and temporary offset agreements. These range from five to 10 years in length.

The emphasis on mobile sites explicitly recognizes the temporary nature of many development projects in habitat enhancement activities. Credits are established under an umbrella of the range-wide conservation plan, which explicitly accounts for the dynamics of temporary and permanent activities over the next 50 years.

I would like to summarize by highlighting two lessons from these case studies.

The first is the need to establish an agency with appropriate oversight and accountability for administering the offset system. This agency should be accountable to regulators, but be at arm's length to ensure that there is no conflict of interest.

Second, both programs illustrate the importance of standardized systems and metrics applicable to all offsets, whether they are proponent-led, third party banks or in-lieu fees.

In conclusion, third party frameworks have been implemented in other jurisdictions and are feasible in Canada.

One concern I have under Bill C-68 offsets is that they are evaluated on a case-by-case basis, with proponents using different methods. I would urge the committee to consider the need for standardized administrative systems and assessment protocols within an umbrella of a fisheries conservation plan.

Enabling third party offsets is a critical element of a successful offset program. Leaving this off Bill C-68 could hamper the development of the necessary administrative infrastructure for a credible and efficient offset program for several years.

Thank you.

Notice of Closure Motion

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

With respect to the consideration of the Senate amendments to Bill C-68, an act to amend the Fisheries Act and other acts in consequence, I give notice that, at the next sitting of the House, a minister of the Crown shall move, pursuant to Standing Order 57, that debate be not further adjourned.

Bill C-68—Notice of time allocation motion

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, an agreement could not be reached under the provisions of Standing Order 78(1) or 78(2) with respect to consideration of certain amendments to Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence.

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stage.

Bill C-88—Time Allocation Motion

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

Madam Speaker, I have to stand today and say that never has a government spent so much and achieved so little. That is why we end up with this logjam of legislation that the Liberals have not been able to get through in the three and a half years that they have been stumbling along on this.

Talking about consultation, the minister says that the Liberals have done adequate consultation on this. I have to reflect back to the consultation that the government supposedly did on Bill C-68, which we are also debating today, with the Fisheries Act. The Liberals spent over a million dollars providing first nations with the ability to provide briefs to the committee on the review of the Fisheries Act. Those briefs were never provided to the committee for its study on the act.

How can the minister stand there and say that the Liberals have done adequate consultation, when that is an example of how they have not done so?