Bill C-69 (Historical)

An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

Part 1 enacts the Impact Assessment Act and repeals the Canadian Environmental Assessment Act, 2012. Among other things, the Impact Assessment Act
(a) names the Impact Assessment Agency of Canada as the authority responsible for impact assessments;
(b) provides for a process for assessing the environmental, health, social and economic effects of designated projects with a view to preventing certain adverse effects and fostering sustainability;
(c) prohibits proponents, subject to certain conditions, from carrying out a designated project if the designated project is likely to cause certain environmental, health, social or economic effects, unless the Minister of the Environment or Governor in Council determines that those effects are in the public interest, taking into account the impacts on the rights of the Indigenous peoples of Canada, all effects that may be caused by the carrying out of the project, the extent to which the project contributes to sustainability and other factors;
(d) establishes a planning phase for a possible impact assessment of a designated project, which includes requirements to cooperate with and consult certain persons and entities and requirements with respect to public participation;
(e) authorizes the Minister to refer an impact assessment of a designated project to a review panel if he or she considers it in the public interest to do so, and requires that an impact assessment be referred to a review panel if the designated project includes physical activities that are regulated under the Nuclear Safety and Control Act, the Canadian Energy Regulator Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act;
(f) establishes time limits with respect to the planning phase, to impact assessments and to certain decisions, in order to ensure that impact assessments are conducted in a timely manner;
(g) provides for public participation and for funding to allow the public to participate in a meaningful manner;
(h) sets out the factors to be taken into account in conducting an impact assessment, including the impacts on the rights of the Indigenous peoples of Canada;
(i) provides for cooperation with certain jurisdictions, including Indigenous governing bodies, through the delegation of any part of an impact assessment, the joint establishment of a review panel or the substitution of another process for the impact assessment;
(j) provides for transparency in decision-making by requiring that the scientific and other information taken into account in an impact assessment, as well as the reasons for decisions, be made available to the public through a registry that is accessible via the Internet;
(k) provides that the Minister may set conditions, including with respect to mitigation measures, that must be implemented by the proponent of a designated project;
(l) provides for the assessment of cumulative effects of existing or future activities in a specific region through regional assessments and of federal policies, plans and programs, and of issues, that are relevant to the impact assessment of designated projects through strategic assessments; and
(m) sets out requirements for an assessment of environmental effects of non-designated projects that are on federal lands or that are to be carried out outside Canada.
Part 2 enacts the Canadian Energy Regulator Act, which establishes the Canadian Energy Regulator and sets out its composition, mandate and powers. The role of the Regulator is to regulate the exploitation, development and transportation of energy within Parliament’s jurisdiction.
The Canadian Energy Regulator Act, among other things,
(a) provides for the establishment of a Commission that is responsible for the adjudicative functions of the Regulator;
(b) ensures the safety and security of persons, energy facilities and abandoned facilities and the protection of property and the environment;
(c) provides for the regulation of pipelines, abandoned pipelines, and traffic, tolls and tariffs relating to the transmission of oil or gas through pipelines;
(d) provides for the regulation of international power lines and certain interprovincial power lines;
(e) provides for the regulation of renewable energy projects and power lines in Canada’s offshore;
(f) provides for the regulation of access to lands;
(g) provides for the regulation of the exportation of oil, gas and electricity and the interprovincial oil and gas trade; and
(h) sets out the process the Commission must follow before making, amending or revoking a declaration of a significant discovery or a commercial discovery under the Canada Oil and Gas Operations Act and the process for appealing a decision made by the Chief Conservation Officer or the Chief Safety Officer under that Act.
Part 2 also repeals the National Energy Board Act.
Part 3 amends the Navigation Protection Act to, among other things,
(a) rename it the Canadian Navigable Waters Act;
(b) provide a comprehensive definition of navigable water;
(c) require that, when making a decision under that Act, the Minister must consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada;
(d) require that an owner apply for an approval for a major work in any navigable water if the work may interfere with navigation;
(e)  set out the factors that the Minister must consider when deciding whether to issue an approval;
(f) provide a process for addressing navigation-related concerns when an owner proposes to carry out a work in navigable waters that are not listed in the schedule;
(g) provide the Minister with powers to address obstructions in any navigable water;
(h) amend the criteria and process for adding a reference to a navigable water to the schedule;
(i) require that the Minister establish a registry; and
(j) provide for new measures for the administration and enforcement of the Act.
Part 4 makes consequential amendments to Acts of Parliament and regulations.

[Christine Loth-Bown, Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency]

I can start, and then my colleagues can chime in.

As the minister noted in her remarks, Bill C-69 is premised on ensuring that decisions that are taken under the legislation are evidence-based. Throughout the assessment process, we have a number of different factors and opportunities to ensure that takes place. In proposed section 22 we outline all the factors that need to be assessed in an impact assessment, and through early planning, we'll work with a proponent to develop impact statement guidelines. Those would be the guidelines that would outline the scientific studies and the issues that they need to address through the impact statement.

Throughout that early planning process we also have the opportunity to engage with others—the public stakeholders and indigenous groups—to ensure that those impact statement guidelines are comprehensive and tailored to the specific project. Then, within the legislation and the proposed amendments there's also the opportunity to do peer review of science on a case-by-case basis, should that be warranted—that may be for some projects but not for others—so that there could be a peer review of the science and evidence. Then of course there's the transparency of all the decisions and the rationale for those decisions.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Thanks, Madam Chair.

Thanks, folks, for being here today. I will ask you some of the questions that I had organized for the minister. With Bill C-69,—and I'm talking about science—the proponents are in charge of doing their own science. What checks and balances will we have in place through the bill to ensure that we're working with actual, good science?

I'm looking at nobody in particular, just whoever feels they want to take that on.

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

Madam Minister, as you know, I'm disappointed by C-69, but I have hopes, and all the hopes I have for the bill being repaired have to do with the degree.... You prefaced your remarks often by saying what we heard in consultations before the bill for first reading, but I hope that you've heard a lot of the witnesses who have come before this committee with really big concerns that this bill will not rebuild trust. It's not all about transparency and consultation. It's often about whether the bill will work. I just want to focus on one piece, because I hope you heard from the expert panel that was convened that did really great work.

One of the things they mentioned was that environmental assessment—or impact assessment, if we will—of projects under federal jurisdiction is not just about major projects. Smaller projects can have really negative environmental impacts not caught by provincial EAs. I could mention a couple of projects. I will mention one right now. It was a shocker. It was the jet fuel line built in the Vancouver International Airport that Minister Garneau didn't know about that got signed off by the port authority, which wasn't the sort of thing that we might have thought of in a project review.

A project-by-project list can miss things. The only way to make sure we don't miss things is to cast the net wider, as we used to, and then make sure we're not wasting a lot of time on deep-dive reviews of things that don't need them. Small projects, though, can have a big impact.

I'm wondering if you're open to amendments that will allow us to have environmental assessment legislation, impact assessment legislation, that really rebuilds trust by going back to the pre-Harper days, which we had from 1976 until 2012, of assessing every project under federal jurisdiction.

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

Thank you.

Also, Minister, the environmental appeals tribunal process in Ontario was a crucial tool for my community to oppose the mega-dump expansion. I know first-hand how important this additional body can be to ensuring we get things right.

This week I put forward an amendment to Bill C-69 to establish a Canadian assessment appeal tribunal. Is this something that you would support, and can you please give me your rationale?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm taking that as a no.

In terms of Bill C-69—and this is regrettable—my party did make the request that the bill be split. We note there are two representatives of the natural resources committee here. We don't have that option, because we have only one member on the committee. We had hoped that the navigation would go to the transport committee, that the new CER would go to natural resources, and the assessment bill here. But you are responsible, as I understand, for the full bill.

Right now the bill exempts the CER commissioners who would join a review panel from considering climate impacts. Are you willing to consider amending the bill so that those members will also have to consider climate impacts when they're reviewing a project?

[The Chair, Liberal, Deb Schulte]

I'm ruling the question out of order. I'm on the record that this question does not relate directly to what we're studying, which is Bill C-69.

I will move on to another member, although I don't want to do that. Do you have another question before I move on?

[The Chair, Liberal, Deb Schulte]

Just hold on a minute, if you don't mind. I am the chair. I was generous, but I also want the questions to be specific to Bill C-69, and I made that point clear at the beginning of the meeting.

I was asked by a colleague to give the minister a chance to answer it. I'm actually still ruling it out of order because it is not specific to Bill C-69. It's specific to the pan-Canadian framework, and that's not what we're discussing here today.

[Catherine McKenna, Liberal, Ottawa Centre, ON]

Obviously, your question isn't directly on point to Bill C-69. However, I want to then commend—

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Chair. Thank you for allowing me to be here and for giving me time.

I'm sharing my time with Mr. Fraser, so I'll try to get right to the point.

Minister, thank you again for being here today. As the chair has pointed out, I'm here as chair of natural resources because of the importance that the proposed changes in Bill C-69 have to stakeholders.

In my capacity sitting on that committee, we hear from stakeholders on a regular basis. I meet with them regularly. These are stakeholders, NGOs, organizations, and one of the issues that comes up time and time again is this issue of restoring trust and certainty, which you talked about. Timelines, predictability, and schedules on these projects have been major stumbling blocks, and have led to a lack of confidence. They are very interested in Bill C-69 for that reason.

I know you have consulted with the stakeholders along the way. We've heard from many of them after the bill came out in this committee.

I am wondering if you could shed some more light on the background and how you see Bill C-69 addressing these concerns and restoring that trust.

[Catherine McKenna, Liberal, Minister of Environment and Climate Change]

Thank you, Madam Chair.

I would also like to thank the members of the committee.

Thank you to our amazing chair and also to the members of the committee. I really do appreciate all the hard work you do on this committee.

Of course I'm thrilled to be here with Jonathan Wilkinson, who, as you all know, is my parliamentary secretary; Stephen Lucas, who is the deputy minister of Environment and Climate Change; and Ron Hallman, president of the Canadian Environmental Assessment Agency.

I want to thank you again for the invitation to return to talk about Bill C-69. I know we all care greatly about how we do environmental assessments and about making sure we rebuild trust in them.

Before I start, I want to recognize that we're on the traditional territory of the Algonquin and Anishinabe peoples. In my job, it is extremely important that we partner with indigenous peoples—our first nations, our Métis, and Inuit peoples—who care greatly about our land, our waters, and our air. I think you will see that reflected in Bill C-69.

First of all, I really appreciate the hard work of all the committee members.

Reviewing a bill that is of interest to so many Canadians is not a small undertaking. I also want to reiterate the values that guided our work in getting to this point and share with you some perspectives from Canadians since my last appearance.

The legislation we introduced earlier this year aims to restore public trust in how the federal government makes decisions about major projects, like mines, pipelines, and hydro dams.

These better rules are designed to protect our environment, improve investor confidence, strengthen our economy, and create good middle-class jobs. They will also make the Canadian energy and resource sectors more competitive. With these better rules, we are working to build on Canada's strong economic growth and historic job numbers.

The Government of Canada is committed to ensuring that Canada's major projects are developed in a way that is informed by rigorous science, evidence, and indigenous knowledge. They must also be consistent with Canada's climate plan, protect our rich natural environment, respect the rights of indigenous peoples, and support our economy.

Our priority remains to effectively advance both Canada's economic progress and our environmental responsibilities. These values are at the core of Bill C-69.

Ultimately, we want to restore the trust of Canadians in how major projects are reviewed. There will not always be unanimous views on the outcome of a project decision, but if the process and foundation on which those decisions are made is stronger, trust in the outcomes will be as well.

Bill C-69 was informed by the views and inputs of Canadians. For over 14 months we heard from Canadians from coast to coast to coast on the best ways to improve current environmental and regulatory processes.

I'm very proud of the balanced perspective we were able to achieve in the bill. I'm hoping that this balance also guides you in your work as you review the many submissions you've received and the testimony of witnesses who have appeared before you, each with a different perspective on what will work and where improvements are needed.

Since the bill was introduced in February I've also continued engaging with stakeholders, provinces, indigenous peoples, environmental groups, and citizens from across the country at every opportunity. I wanted to hear the views of those of you directly affected by the bill and explain how the new process would work.

As you know, not all elements of the new system are detailed in legislation. Regulations and policies are required to support and operationalize the legislation. We are currently consulting Canadians on the project list and information and time management regulations. I encourage all Canadians, from indigenous peoples to industry to environmental groups, to provide their input to inform these regulations.

I'd now like to share some of the views I have heard.

Overwhelmingly, Canadians want us to restore public trust in the way the federal government makes decisions about major projects such as mines, pipelines, and hydro dams. When it comes to resource development, you can't get very far if people don't trust the rules and the way governments make decisions. The same goes for companies. They need to know what's expected of them from the start and that the process will be predictable, timely, and evidence-based.

That's why our top priority, with the changes we're proposing, is to increase transparency and rebuild trust.

To rebuild this trust, we are creating better rules. The bill incorporates a number of transparency measures, from making more information available to the public to specifying factors to be considered in decision-making to clearly communicating the reasons behind decisions. Canadians and stakeholders have noted the importance of public participation and accessible, transparent information. This bill helps everyone understand and participate more fully in the process.

Stakeholders have told us that rebuilding trust requires clarity about what will be considered in assessments and in making decisions.

Bill C-69 restores robust oversight and thorough impact assessments that take into consideration not only the negative environmental effects of a project, but also the environmental, economic, health and social impacts.

Impact assessments will also consider how projects are consistent with our environmental obligations and climate change commitments, including with the Paris Agreement. A big part of this is better understanding the broader environment outside of individual project reviews. Some stakeholders were wondering if the government will ever conduct strategic or regional assessments, given this is possible under current legislation.

We will soon launch a public engagement process on our first-ever strategic assessment on climate change, which will provide guidance on how to consider greenhouse gas emissions in individual project reviews.

We also heard from companies that they are looking for more clarity and certainty about the process.

The proposed legislation provides a clear, timely process so that project proponents know what's expected of them and when. A predictable and timely process is key to getting good projects built and encouraging investment in Canada.

I also heard that companies need to know how the transition to the new system will work. Industry associations and companies with projects in the system would like clear rules and indications of which assessments currently under way would continue under former legislation and which would be subject to the new impact assessment act.

Legislated timelines will also provide regulatory certainty and ensure that the process is both faster and more efficient. We've heard from industry, indigenous peoples, and environmental groups that it's important that there is enough time to carefully consider science, evidence, and indigenous traditional knowledge. That's why this bill provides a predictable, time-bound process, from early planning through to the decision, to ensure that companies know what to expect and when, and that they are not held up in an impact assessment process.

With a goal of one project, one review, we will coordinate with provinces, territories, and indigenous jurisdictions to reduce red tape for companies and avoid duplication of efforts in reviewing proposed projects. The new impact assessment agency of Canada will work with other bodies, such as the Canadian energy regulator, the Canadian Nuclear Safety Commission, and the offshore boards to conduct reviews that will integrate both the impact assessment process and regulatory review requirements.

The new legislation also provides the offshore boards with a greater role in project reviews, which is consistent with other life-cycle regulators.

I also heard from many indigenous organizations that it is important that their rights are recognized and respected, and that we work in partnership from the outset.

This is exactly what Bill C-69 will accomplish.

I want to highlight that the bill makes it mandatory to consider indigenous knowledge, when provided, alongside science and other evidence. It also provides protection of that knowledge to build the trust needed to share such information. We will also increase the funding available to support indigenous participation and capacity development related to assessing and monitoring the impacts of projects.

Another significant advancement under this bill will be that indigenous jurisdictions will have greater opportunities to exercise powers and duties under the new impact assessment act. My discussions with indigenous peoples have confirmed to me how important this is, as is our commitment to the United Nations Declaration on the Rights of Indigenous Peoples.

I look forward to the end result of this committee's work to consider ways to strengthen the bill even further. Better rules will restore confidence that good projects can move forward in a responsible, timely and transparent way, while also protecting our environment and building a stronger economy for Canadians.

Thank you again for inviting me, and for the important work you are doing.

[The Chair (Mrs. Deborah Schulte (King—Vaughan, Lib.)), Liberal, Deb Schulte]

I'm going to bring the meeting to order, if I could, please.

Before I introduce the minister and her panel, I just want to let the committee know that I'm very appreciative that the minister has come back. This will be the second time she is in front of the committee on this bill, Bill C-69, and that's unusual. She's being generous.

I want to make sure the committee appreciates that it is unusual for a minister to come back on one bill. The reason she is back in front of us is that there were issues raised about the need to ask her specific questions relevant to the testimony we heard over the last couple of weeks on Bill C-69, and possibly some amendments may be brought forward. We have seen many. I think we have several hundred to look at.

I usually am very generous, but today I'm going to be very strict. I want to make sure we stay on target with the questions on Bill C-69, because that's what she's here for.

To get started, I'd like to introduce, obviously, the minister.

Thank you very much for coming back in front of us.

We have Jonathan Wilkinson, MP, North Vancouver, and the parliamentary secretary. We have Ron Hallman, president, Canadian Environmental Assessment Agency; and Stephen Lucas, deputy minister, Department of the Environment.

I welcome you, and I give you the floor.

Thank you.

[Chris Bloomer, President and Chief Executive Officer, Canadian Energy Pipeline Association]

Good morning, everyone.

Thank you for the opportunity to provide additional comments on this bill. I represent the Canadian Energy Pipeline Association.

I have some quick comments. Over the last two years, CEPA has committed fully to participating in consultations, discussions, and round tables on the government's review of the Fisheries Act, CEAA 2012, NEB modernization, and the Navigation Protection Act. CEPA provided over 200 pages of submissions and practical recommendations that were intended to help to achieve clarity and certainty and restore trust in the regulatory system for all stakeholders.

Throughout the process we have advocated for legislation that would be founded on science and fact-based decision-making, and we have leveraged the considerable and established expertise of the National Energy Board. We sought legislation that would achieve clarity, certainty, and predictability, while avoiding duplication.

Before I speak to Bill C-68, CEPA would like to reaffirm that we remain extremely concerned about the changes put forward in the impact assessment act, Bill C-69,, and we emphasized our concerns at the standing committee studying that bill. We have recently provided the government with detailed recommendations on amendments to the bill and we hope that changes will be made.

With respect to Bill C-68, our concerns are less profound and mostly related to details that are simply unknown at this point. We recognize that the proposed amendments in Bill C-68 are essentially a return to the pre-2013 approach to fisheries regulation, with added elements such as gender analysis, indigenous traditional knowledge, and community knowledge.

The effect of these potential changes is to increase regulatory burden, complexity, and uncertainty. The impact will very much depend on the approach to implementation. To put it another way, the mischief is in the details. Numerous regulations need to be developed, including the designated project list, timelines, habitat banking, and how authorizations or permits may be amended, suspended, or cancelled. These regulations will require significant consultation with stakeholders and at this point the details are unclear. We need to understand how Bill C-68 will be implemented. This includes an understanding of how advisory panels will work, the public registry, cost recovery, time limits for authorizations, habitat banking, and how gender analysis works within the context of the Fisheries Act.

We need to understand what groups and organizations could be considered an indigenous governing body, and we need to understand under what circumstances equivalency provisions will apply. We don't know how indigenous traditional knowledge will be considered and weighted. We simply do not have any clarity on any of these issues.

Although we have many questions, I would like to use the remaining time to focus our comments on four areas of concern that are of the highest priority to the pipeline sector.

First, there is the designated project list. Bill C-68 contemplates different processes for major projects than for smaller, routine projects. This, in and of itself, can be positive, allowing for more streamlined procedures for routine projects that have minimal impacts and known mitigation practices and upon which there is a large body of best practices that have been employed. However, we do not know what will be on that list or how it will be developed. Therefore, we strongly suggest that this legislation should not be passed in Parliament without the understanding of what the designated project list regulation will look like.

Second, we are concerned about how standards and codes of practice will be implemented. Proposed section 34.2 of Bill C-68 allows the minister to establish standards and codes of practice that may provide formal guidance for small routine projects. We consider this to be positive, if implemented in a practical manner. For more than 60 years, CEPA member companies have operated pipelines across the country, currently operating approximately 119,000 kilometres of pipelines, and they have constructed thousands of watercourse crossings. Because of this history, the environmental and socio-economic effects of building pipelines are well understood, and over the years best practices and standard mitigation methods have been developed and implemented. Having standards and codes of practice are of utmost importance to our industry. We require certainty and predictability during the permitting process. The codes of practice can provide that. Without codes of practice, our industry could be buried in time-consuming, uncertain approvals being needed for low-impact activities.

We are encouraged by the recent work done in collaboration with the Department of Fisheries and Oceans and scientists to prepare watercourse-crossing guidelines for pipelines. The guidelines, known as the fish and fish habitat impact assessment tool, could be one of the first standards referenced under the new legislation. In addition to input from DFO, the science underlying this guideline was reviewed by the Canadian science advisory secretariat using the highest, most rigorous scientific standards. The model used to prepare this guideline could be used by other industries.

Third, in terms of amending, cancelling, and suspending authorizations, a third area of concern is related to section 43. This section enables regulations to be developed whereby the minister or any other member of the public may request an amendment, suspension, or cancellation of an authorization or permit at any time. The rationale for this provision is unclear, and it creates uncertainty where there should be certainty. CEPA strongly suggests that this provision be removed from the legislation.

My fourth point relates to the National Energy Board, or the future Canadian energy regulator, and the role that the new CER will play in Fisheries Act authorizations.

In 2013, DFO and NEB signed an MOU, and that gave the NEB responsibility for initial review of Fisheries Act authorizations for NEB-regulated pipelines. Under the MOU, the NEB will assess the potential impacts on fish and fish habitat for pipeline watercourse crossings, and determine whether mitigation strategies are needed. If there are serious impacts, the NEB informs DFO and DFO will then review and be responsible for any authorizations, just like any other application. However, the NEB does the initial work to determine whether there are impacts. If there are none, the project applicant does not have to make a separate application to DFO.

Essentially the process triggered by the MOU avoids having two departments perform the same assessment. It avoids the duplication that drives more costly processes with long timelines. We are encouraged that Bill C-68 enables the sort of MOU that is currently in place with the NEB and DFO. To this end, CEPA recommends that the current MOU between the NEB and DFO be maintained.

In conclusion, CEPA recognizes that keeping water bodies and fish habitat protected is of utmost importance to Canadians, including pipeline operators, but we must also maintain a regulatory framework that provides clarity and certainty, avoids duplication, and further builds on the wealth of technical knowledge and best practices already in place to achieve our desired outcomes and ensure Canada's competitiveness.

Thank you very much. I look forward to questions.

[Professor Martin Olszynski, Assistant Professor, Faculty of Law, University of Calgary, As an Individual]

Good afternoon, Madam Chair, and committee members.

Before I get started, I also want to express my condolences on the passing of Gord Brown.

As some members may recall, I had the privilege of speaking to this committee when this process of reviewing and restoring the Fisheries Act began almost two years ago, and I am pleased to be with you here again at the tail end to discuss Bill C-68. I will begin by briefly describing the positive aspects of Bill C-68 before diving into the areas that still need work.

To be clear, although the Fisheries Act amendments appear to have received the most praise out of the suite of legislation introduced in February, we're not there yet. There is still considerable room for improvement.

Among the positives, first and foremost is the restoration of the prohibition against “the harmful alteration, disruption or destruction of fish habitat”, applicable to all fish and fish habitat, as recommended by this committee. The second is the establishment of a public registry, also recommended by this committee, which should go a long way towards enabling transparency and accountability in the management of Canada's fishery resources. Third is the explicit inclusion of cumulative effects and the traditional knowledge of Canada's indigenous peoples as mandatory factors for consideration when authorizing impacts to fish and fish habitat.

There are other good things about this legislation, but recognizing that my time is short I want to move on to those things that still need work. Also, having listened for the past hour, I want to say that I think nothing I'm about to say contradicts the previous witnesses' testimony.

The first issue is the treatment of works undertaken in activities that pose a low—but not zero—risk to fish habitat. Bill C-68 risks perpetuating the current fiction that low-risk projects are no-risk projects and that DFO does not need to monitor them, which is to say, to at least know when and where they occur. Either these will be deemed as avoiding impacts when carried out in accordance with guidelines and codes of practice, such that no notification will be required, or, where no standards exist, DFO will continue to rely on its letters of advice, where, once again, no notification appears to be contemplated.

One of my colleagues here at the University of Calgary, who used to work at the CESD in Ottawa and so knows a thing or two about regulatory effectiveness, is fond of saying, “If you don't measure it, you can't manage it.” This is definitely true about the thousands of so-called low-risk projects that cumulatively are having a detrimental effect on Canada's watershed and fisheries resources.

What is required of DFO, perhaps in collaboration with some of Canada's expert fisheries biologists—and there are several of them—is to do the hard work of identifying which projects truly do avoid impacts on fish habitat and which ones do not or are likely to result in some impact, and for the act to require notification for those latter projects—nothing more, but nothing less. If there are concerns about privacy, as the previous witnesses expressed, those can and should be addressed.

Before moving on from this issue, I want to make it clear that there's no question that DFO has the authority to require such notification. Any suggestion to the contrary is based on a misreading or misunderstanding of the relevant case law.

Issue number two is that there's still too much discretion in the act. Probably the most glaring example is in proposed section 2.5, which lists a series of factors that the minister “may” consider when making decisions under the act. To see why this is a problem, you need only replace “may” with “may not”, a trick suggested to me by a freshwater biologist here in Alberta. For example, the minister may not consider the sustainability of fisheries; he or she may not consider scientific information; and he or she may not consider the traditional knowledge of indigenous peoples. I think it's pretty clear when you read it this way that there is a problem with this wording, and I can see no reason why the minister would not be bound to some of these factors, except for a reflexive bureaucratic instinct towards discretionary powers and duties.

Third, there should be much clearer parliamentary direction to the minister with respect to his or her annual reports, which, I pause to note, DFO appears to have stopped providing to Parliament since about 2015. There needs to be a clear requirement for the minister to report on the state of fish habitat in Canada, and at a minimum, how much habitat was impacted and how much was restored on an annual basis.

Fourth, with respect to habitat banking, as currently drafted, the banking provisions are unduly narrow, in that they do not permit third party banking. As drafted, the banking provisions will allow only large institutional proponents to create banks for their own use in the future. If the government thinks that banking can be more effective and efficient than the current ad hoc approach to offsetting, as I do, then it needs to be given the conditions to thrive, which includes allowing third party banking.

Fifth, with respect to environmental flows, this is an issue that is consistently neglected under the Fisheries Act, so I'm pleased to see that it got some attention from the minister and in previous hearings of this committee. Bill C-68 amends the fish passage and flow provisions of the act, which will be at proposed subsection 34.3(1). As clearly written, this provision is triggered where the “Minister considers that doing so is necessary to ensure the free passage of fish or the protection of fish or fish habitat”.

Bill C-68 could be improved by adding a requesting provision to this power similar to the request provisions found in part 1 of Bill C-69 with respect to regional and strategic assessments, which is a provision that allows a person to request that the minister consider the issue of flows and/or fish passage at a particular area or location, and provide his or her response upon having done that analysis.

On the sixth issue, which I've raised before, I can't understand why almost 10 years after the previous Conservative government introduced them to so many of Environment Canada's environmental laws, the Fisheries Act is still without an administrative monetary penalty, or AMP, regime. As noted by Environment Canada, an AMP is a financial penalty for non-compliance that may be issued by a regulator without court proceedings for the violation of designated legislative requirements, thereby supplementing existing enforcement measures. Bearing in mind DFO's current track record in terms of charges laid, I think it's reasonable to suggest that it needs an additional, less costly tool than regulatory prosecutions.

Those are my prepared remarks this morning. I was prepared to answer many questions, but I understand the situation.

[Bridget Doyle]

We provided specific wording for proposed section 2.1. We added proposed paragraph 2.1(d), and this wording is also consistent with the wording we've provided for Bill C-69, so that the two acts are consistent with including UNDRIP.

[Matt Thomas]

Thank you, Madam Chair.

Good afternoon, committee members. Thank you for the invitation to present to you today on the important matter of Bill C-68, an Act to amend the Fisheries Act and other acts in consequence. We are here today to specifically address the Fisheries Act.

My name is Matt Thomas. I am a Tsleil-Waututh member and acting director of the Tsleil-Waututh Nation's economic development department. From here on in, I will refer to Tsleil-Waututh Nation as TWN. I have an extensive history of working on fisheries and fisheries-related files in various roles with the nation. I continue to play an active role in managing TWN food, social, ceremonial, and commercial fisheries. I am joined by Bridget Doyle, natural resources planner for TWN, and Michael George, cultural and technical adviser for TWN.

Today, I will speak to our priorities that reflect how we, as first nations that hold rights under section 35 of the Canadian Constitution, will be impacted through legislation, regulation, and policy. I urge you to refer to our written submission for more details and priority topic areas.

I would like to begin with a brief introduction to the TWN so that you understand a bit more about who we are and the perspective that we have. TWN are the People of the Inlet, and we have used and occupied the lands and waters of Burrard Inlet since time out of mind. The TWN community is located on the north shore of the Burrard Inlet in North Vancouver, British Columbia. We hold a sacred obligation and responsibility to steward our lands and waters for our ancestors, for our generation, and for those to come. TWN does this through actively asserting and exercising our stewardship and governance rights. This includes participating in consultations with the crown over the hundreds of development projects proposed within our territory every year, many of which relate to authorizations under the Fisheries Act. We are also heavily engaged in proactive initiatives that assert TWN stewardship and governance rights to monitor, protect, and restore ecological integrity and functioning. This includes the protection, restoration, and management of fish and fish habitat.

Arguably, no Canadian legislation other than the Indian Act, 1985, has imposed the same level of determination over first nations physical, cultural, spiritual, and economic health and well-being as the Fisheries Act. In our view, the revision and modernization of the Fisheries Act provides a much-needed systemic shift in how Canada engages with the indigenous groups to manage fish, fish habitat, and fisheries. The proposed amendments contained within Bill C-68 offer a significant improvement over the existing Fisheries Act. Most notably, TWN applauds the Government of Canada for repealing the definition of commercial, recreational, and aboriginal fisheries. We also applaud the reinstating of broader protections under the harmful alteration, disruption, or destruction of the fish habitat provision.

However, we have remaining concerns that specifically affect TWN as a rights-holder. We believe the purpose section needs to be strengthened and broadened to reflect modern fisheries governance and management issues in Canada as well as the outcomes the law is intended to deliver. For managing fish and fish habitat, this must include the purpose of restoration. Due to adverse cumulative effects, TWN is in the position of having to restore fish and fish habitat within our territory before being able to access and exercise our constitutionally protected aboriginal rights.

Restoration is a key piece of everything we do, and many indigenous communities across Canada are in this same position. Providing clarity that restoration is one of the overall purposes of the Fisheries Act would help to empower the required actions from our governments.

It is also critical that the Government of Canada clearly state that one purpose of the Fisheries Act is reconciliation with indigenous peoples. The legislated respect for the existing rights of indigenous peoples of Canada, as recognized and affirmed under section 35 of the Constitution Act, 1982, would be a strong starting point to add to the purpose of the act.

As you are aware, Canada has stated its support for the United Nations Declaration on the Rights of Indigenous Peoples and its intent to implement UNDRIP. However, we see no mention whatsoever of UNDRIP in the act. Including these amendments in the purpose of the act would make them obligatory considerations in ministerial decision-making.

It would be irresponsible to future generations to ignore the issue of climate change in the revision of the Fisheries Act. Climate change must be considered in all aspects of fish and fish habitat protection, conservation, restoration, biodiversity, cumulative effects assessments, and fisheries management.

According to a study by Weatherdon et al. from 2016, as a result of climate change, it is anticipated that marine fish on the west coast of North America will shift their ranges poleward at a median rate of 10.3 kilometres per decade by 2050, relative to the year 2000. In British Columbia, first nation salmon catches are projected to decrease by 30%, and first nation herring catches will experience a 49% decline.

Without making provisions for climate change in the Fisheries Act, the Government of Canada is setting itself up for legal uncertainty with respect to constitutionally protected aboriginal rights. As currently implemented through policy, the burden is placed on indigenous groups to prove their traditional use and access to a fishery to receive food, and social and ceremonial licence to a particular species or fishing area. This policy has always been, and continues to be, a significant challenge to indigenous groups fully participating in fisheries and reinforces current adversarial challenges between the Government of Canada and indigenous groups.

In an era of rapid environmental change, shifts in species migration patterns, and biodiversity loss, the burden of proof of traditional use and access can no longer limit indigenous fishing opportunities. As our ancestors did, we continue to adapt and access all available resources within our territory that are not restricted by conservation concerns. Accessing new fisheries opportunities like, for example, fisheries migrating from warmer, southern waters, may become a critical climate change resiliency strategy for TWN to protect and maintain the physical, cultural, and economic foundation of our community.

The arbitrary requirement for proof of traditional use or access is outdated in a coastal system affected by climate-change-related impacts, and has no place in a modernized Fisheries Act.

In conclusion, again, I urge the committee to refer to TWN’s written submission for more detail and for priority areas of interest. I regrettably did not have time to discuss our views on governance structures, environmental flows, or the rebuilding of fish stocks.

However, I want to remind the committee that to facilitate effective decisions, assessments, and implementation under the Fisheries Act, a concerted effort is required by the Government of Canada to cross-reference and coordinate final legislative drafting between Bill C-68 and Bill C-69. These laws do not exist in complete isolation and must be revised as cohesive and significant pieces of Canada’s environmental legal landscape.

We request that the Standing Committee on Fisheries and Oceans refer the specific legal language proposed by TWN on Bill C-69 to the Standing Committee on Environment and Sustainable Development with regard to indigenous jurisdiction and agreements, decision-making, and dispute resolution processes as they relate to the Fisheries Act.

TWN also supports the submissions on Bill C-68 by the FNFC-LFFA coalition and West Coast Environmental Law. We hope that you give their brief special consideration.

Thank you again for the opportunity to provide oral testimony before the committee today. We look forward to further conversations with you or your delegates regarding some of these issues, many of which require further consultation with indigenous groups as you finalize the legislation.