Subcommittee of the Standing Committee on Finance on Bill C-38 Committee on May 29th, 2012

[National Chief Shawn A-in-chut Atleo, National Chief, Assembly of First Nations]

Thank you Mr. Chair, members of the committee.

[Witness speaks in Nuu-chah-nulth]

Thank you for that pronunciation as well. My name is A-in-chut...[Witness speaks in Nuu-chah-nulth ]

Just a few words in my Nuu-chah-nulth west coast of Vancouver Island language to express my appreciation for being here in Algonquin territory.

Thank you for the opportunity to speak to you today about part 3 of Bill C-38.

As you are aware, I am currently national chief for the Assembly of First Nations. We are a national political advocacy organization for first nations in Canada.

In January of this year, first nations and representatives of the crown and the Government of Canada participated in a historic crown-first nations gathering. The intent of this gathering was to strengthen and reset the relationship between the crown and first nations, to move away from unilateral imposition of policies or laws that have had impacts on first nations peoples and territories to one that recaptures mutual respect and partnership.

Bill C-38 and the wide-sweeping and comprehensive changes to other pieces of legislation it contains continues historic unilateralism and imposition that we have worked, and continue to work, to overcome.

In November 2010, Canada endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which reflects the recognized customary international legal standard of free, prior, and informed consent. Free, prior, and informed consent, Mr. Chair, is not mentioned anywhere in Bill C-38.

Domestic law recognizes and enforces the duty to consult and accommodate first nations when crown conduct or omission may adversely impact established or potential aboriginal and treaty rights. Part 3 of C-38 will have a direct impact on the federal government's ability to fulfill these standards.

The Assembly of First Nations, to be very clear, is not a first nations government. Consultation or engagement with the AFN does not replace or fulfill the crown's duty to consult and accommodate treaty and rights holders where their rights may be infringed. To date, first nations have not been engaged or consulted on any of the changes to the environmental and resource development regime proposed within Bill C-38. This opens the crown to future risk and will have numerous and likely unintended consequences.

The stated intention of these legislative and associated regulatory changes has been said to improve the timeliness and efficiency of environmental regulations and project assessments. In its current form, part 3 of C-38 clearly represents a derogation of established and asserted first nations rights. If enacted, it will increase the time, costs, and effort for all parties and governments, as first nations will take every opportunity to challenge these provisions.

There are a number specific concerns, Mr. Chair, with the changes proposed in part 3 of C-38, which I will outline.

As I know you're aware, C-38 changes the scope and purpose of the Fisheries Act to the protection of fish that supports commercial, recreational, or aboriginal fisheries. Previously the act had prohibited “harmful alteration, disruption or destruction of fish habitat”. The proposed change prohibits “serious harm to fish”, defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat”.

I come from a fishing people, the Nuu-chah-nulth, as I said, on the west coast of Vancouver Island.

[Witness speaks in Nuu-chah-nulth]

In my language, core principles that we govern ourselves and live by are how our people manage aquatic resources within our respective territories. These words in my language describe an understanding about the interconnectedness of all life forms, that nothing is isolated from other aspects of life around it and within it—in essence, the ecosystem. These principles are the basis for respect for ourselves, others, and nature. In managing aquatic resources, these values bring respect for the oneness between humans and the environment and respect for all other life forms. Our obligation is to sustainably manage all aquatic life forms that exist, regardless of their perceived economic value.

The balance of resources in habitats is one that changes over time, and this is something well-known to first nations. However, only enabling the protection of aquatic species once there is certainty of their demise or permanent destruction of their habitats is likely too late and will not restore the necessary balance for their sustainability.

Specifically, C-38 would remove protection for fish habitat from the Fisheries Act and enable the minister to create regulations allowing for the deposit of deleterious substances. This may leave fish species and habitats vulnerable to destruction and prevent first nations from continued enjoyment of their constitutionally protected right to fish.

I feel strongly that first nations have a shared vision with all Canadians, particularly for clean water. Our watersheds provide us life, food, and health. Bill C-38 clouds that vision by creating new political discretion to poison our waters by changing section 36 of the Fisheries Act. Instead of allowing deleterious deposits to destroy our water, we must fulfill our inherent obligation as responsible stewards of the environment.

Changes to the Fisheries Act will also reduce federal decision-making about fisheries management, the effect of which will be to narrow the triggers to consult and accommodate first nations, thereby reducing the federal obligation. First nations will vigorously oppose any attempts by the crown to erode or evade lawful obligations and responsibilities to first nations, which leads to an important element regarding the honour of the crown being called into question.

The CEAA last underwent a legislative review prior to Supreme Court decisions that established the duty to consult and accommodate. The sequence here is very important to point out. It has never been updated to operationalize the duty to consult and accommodate. In this regard, Mr. Chair, CEAA 2012 is a step backward.

Under the current CEAA, projects with minor environmental effects may have profound effects on first nations' rights, which triggers the duty to consult and accommodate. CEAA 2012 ends environmental assessments for minor projects currently referred to as “screenings”.

In addition, CEAA 2012 will continue substitution of provincial environmental assessments for the federal process as well as deem equivalency of such processes, which would exempt CEAA 2012 from further application.

The government is correct to note that where relationships with first nations, provinces, and the federal government have already been established, such as the Mi'kmaq-Nova Scotia-Canada consultation process, substitution in those cases may work well. But this also raises significant concerns, and it could very well lead to more situations that I know many are familiar with, such as the Prosperity Mine project in the interior of British Columbia, which was approved through the provincial environmental assessment process but subsequently rejected following more stringent federal review.

This also invokes for many first nations—for those of you familiar with the situation across the Prairies—the Natural Resources Transfer Agreement, or NRTA, of 1930. This was a unilateral agreement between Canada and the provinces of Manitoba, Saskatchewan, and Alberta to transfer resources and lands that were never ceded or surrendered by way of treaty by the first nations—another major impact.

The impact of the NRTA has been to lesson the scope and implementation of the numbered treaties in the Prairies, and it is a source of continued and ongoing conflict and litigation over 80 years later. This is about all of us, and for Canada, learning from history. This is what the recent crown gathering was an effort to reflect on, and to do much better going forward. First nations will not stand for such unilateral actions and will take all avenues available to them to prevent further derogation of their rights.

The increase in discretionary powers afforded to the minister within the Fisheries Act and the number of cabinet decisions under CEAA 2012 and the National Energy Board Act will severely impair transparency and accountability to first nations. The broad restrictions around cabinet confidences will mean first nations will find it increasingly difficult to know how the government considered first nations rights when developing accommodation measures. This too compromises the crown's ability to discharge its duty to consult and accommodate first nations and is an area for clear challenge.

Finally, on the issue of timeframes established for first nations to respond to notices under CEAA 2012 and the National Energy Board Act, they are insufficient, not allowing adequate time for appropriate review, analysis, and response. It's unreasonable to provide first nations with only 20 days to provide comprehensive scientific and legal materials related to assessing the potential impacts of a project. Any notices under CEAA, NEB, or the Fisheries Act related to development, authorizations, regulations, or policies must be sent directly to communities in an accessible form. The use of online notices limits first nations participation and is therefore insufficient to fulfill the crown's duty to consult with first nations.

While the government has an established legal duty to consult and accommodate first nations under Bill C-38, part 3, as well as any regulations developed under the authority of the act and any new policies created to interpret the act, such consultations have not yet taken place.

Numerous organizations in addition to the Assembly of First Nations, including MKO, in Manitoba, and the Union of B.C. Indian Chiefs, have all registered protest to the CEA agency's call for public comments on regulations to be developed under CEAA 2012, which had a deadline of May 23, 2012.

Paragraph 62(h) of the CEAA and paragraph 105(g) of the CEAA 2012 state that one of the objectives is to consult with first nations. However, to be clear, there's been no identification of a process for funding for such consultations to take place.

In conclusion, Canada, in our view, needs to take a step back and reconsider its approach. Hastily moving forward on significant and broad changes that will impact the exercise of established and asserted rights by first nations will have long-reaching and expensive consequences, contrary to the interest in moving in this direction.

Taking time to work with first nations jointly on resource management and protection plans will achieve far better outcomes in terms of certainty and increased prosperity, and we have many examples we can point to. This is the spirit in which, as I said earlier, we participated in the crown-first nations gathering, and it's in this spirit of a renewed and respectful relationship that we urge Canada to proceed.

We have the following three recommendations:

Part 3 of Bill C-38 needs to be withdrawn to take the time to work with first nations to ensure their rights and interests are reflected and will not be compromised through such legislation. Failing that, I would recommend that the legislative amendments in part 3 be separated from the main bill to ensure appropriate study and amendments can take place with engagement and input from first nations.

Specific funding allocations should be made to engage and consult with first nations on CEAA 2012, amendments to the Fisheries Act, amendments to other legislation within part 3 of the act, regulations under the amendments, and any new policies relevant to the interpretation of amendments to new or existing environmental regulation.

Finally, any and all notices provided with regard to project reviews must be sent directly to first nations.

Bill C-38 unacceptably impacts first nations' rights. While I've been speaking about fish tonight, really I'm talking about the lifeblood that connects all of us, and that's our waterways, our watersheds.

I will close on that notion that we not forget about the need for a vision going forward to achieve pristine water in our country.

[The Chair, Conservative, Blaine Calkins]

Thank you, Chief.

Mr. Denning, for up to ten minutes, please.

[Captain Fred Denning, President, The British Columbia Coast Pilots Ltd.]

Thank you very much, Mr. Chairman and members of the subcommittee. I appreciate the opportunity to appear before you today to speak briefly on a subject that is close to the hearts of all of Canada’s 400 marine pilots—tanker safety.

I'm Captain Fred Denning, and I'm the president of the British Columbia Coast Pilots and the vice-president for the Pacific region of the Canadian Marine Pilots’ Association.

There are 110 pilots based on Canada’s west coast. They serve the entire coastline of the mainland as well as the coasts of Vancouver Island and the Haida Gwaii, formerly referred to as the Queen Charlotte Islands.

As you may know, the entire coast of British Columbia is designated as a compulsory pilotage area, and our B.C. pilots board every vessel of a certain size and type. The assignments can be long and difficult. Both our coastline and the weather can be very challenging. I’m happy to say that we manage to pilot thousands of vessels in and out of B.C. waters every year, virtually without incident.

My maritime career spans 42 years, the last 22 of them as a marine pilot licensed under the authority of the Pilotage Act, which was passed by the Parliament of Canada in 1972.

Having mentioned the Pilotage Act, I do not want to pass up this opportunity before such a group of parliamentarians to say how well this particular act of Parliament works and serves both the people of Canada and its economy. For 40 years, Canada has had a pilotage system that is at least as good as the systems anywhere else in the world. Pilotage costs are among the lowest, serious marine incidents are few, and the service is quick, responsive, and flexible.

B.C. Coast Pilots have often been called on to provide expert advice and opinions on matters related to safe berthing and navigation of ocean-going vessels. Of course, much of this advice is provided to the Pacific Pilotage Authority, the federal crown corporation responsible for pilotage on the west coast and the agency that contracts with the B.C. pilots to deliver pilotage service.

We also work with developers and regulators in order to ensure that pilotage-related issues not only have been taken into account but have been fully understood. We have consulted on the development of new cruise ship terminals in Nanaimo, Campbell River, and Victoria.

B.C. Coast Pilots also developed a tug protocol for the safe passage of larger ships entering and leaving at Prince Rupert’s Fairview terminal. At Deltaport, just outside of Vancouver, we helped establish operational weather limits and tug requirements for the very large container ships using the expanded terminal.

More recently, and more relevant to the concerns of this subcommittee, B.C. Coast Pilots have helped develop procedures for ships to move in and out of coastal ports with the highest level of safety possible, thereby protecting and preserving the coastline and surrounding environment.

In respect of the Enbridge Northern Gateway project, we have explored a number of different operating scenarios and have developed risk mitigation strategies for those operating scenarios. In Vancouver, as a result of Kinder Morgan’s need to increase the draft of tankers transiting the harbour, we participated in a two-year risk management study that resulted in major revisions to the regulations applicable to vessel movements through the Second Narrows in Vancouver Harbour.

We have also been involved in the development of new tug escort procedures, using both simulators and live ship trials. New navigational aids were also identified to provide visual confirmation of the position of ships in the channel during transits, and I'm happy to say that these have now been installed by the port.

Another mitigation factor identified for the heavier tankers through the Second Narrows was a navigation system to be carried by pilots, independent of the ship’s own equipment. This led to the development of the so-called portable pilotage units, or PPUs, which are tailored for the unique pilotage conditions on the B.C. coast and are now used coast-wide.

In all of this work, marine pilots have helped develop an approach and process that is recognized as leading edge in terms of providing for an unparalleled level of safety for ships. In all cases, marine pilots had no off-the-shelf answers or solutions to the issues or challenges they were presented with. Every time, we had to gather and study a lot of information—for example, tides, weather, currents, size, type, and number of ships, berth considerations—and then undertake simulations with actual trials. Only then were we in a position to comment on feasibility, degree of safety, and possible risk mitigation strategies.

None of this, however, makes B.C. marine pilots able to speak on questions related to the environmental assessment and approval process applicable to the Northern Gateway project or any other such undertaking. Similarly, as marine pilots, we have no comment on the wisdom of the proposed routing of the pipeline itself.

What we can talk about in an informed way, however, are some prudent measures that should be in place for the transit of tanker traffic in the waters of a port such as Kitimat, or anywhere else along the Pacific coast of British Columbia.

The following measures are of particular interest to marine pilots, and they will mitigate the risk.

First, all vessels entering the marine terminal should be modern and double-hulled and vetted by independent third-party agencies as meeting high safety and environmental standards. It is our understanding that this would be the case at Kitimat.

Second, vessel speed should normally be reduced in marine channels. In the case of Kitimat, transit speeds would be reduced to between eight and 12 knots, which is a speed range in which escort tugs can effectively work.

Third, an enhanced radar system would be necessary to provide coverage of important route sections. It would provide additional information to pilots and all marine traffic on the coast. In the case of Kitimat, the information we have is that such a system is to be installed, as are additional navigational aids throughout the channel.

Fourth, powerful tug escorts need to be available to assist tankers wherever there may be a need, with loaded tankers requiring a tethered escort tug for the entire passage in pilotage waters. A commitment has been made for this to be the case at Kitimat.

It will be up to the environmental review panel to assess the proposed pipeline development through northwest British Columbia to the coast. They have a big task in front of them. Ultimately they must balance real environmental concerns with Canada’s need to secure its economic future.

For our part, B.C. Coast Pilots can only say that it appears that all reasonable measures to mitigate risk at Kitimat and along the coast have been agreed to. It will be up to the review panel to determine whether the measures are sufficient.

Thank you.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Denning.

We'll have Dr. Schindler, for up to 10 minutes, please.

[Dr. David Schindler, Professor of Ecology, Department of Biological Sciences, University of Alberta, As an Individual]

Mr. Chairman and members of the committee, I have given Mr. Lafleur several copies of my presentation. It has some figures, and as a result I will not read it. I've always had a thing about somebody giving me something to read and then reading it to me, which is usually one-tenth as fast. So instead, I'll just hit some high points.

Figure 1 is my first point. It shows the rate of increase in the oil sands area, a doubling every 10 years. I can tell you first-hand that a lot of the environmental problems that are developing are because of that rate of development. That rate of development is only matched by China, and it's only been matched in the past during times of war. I wonder what's the hurry. I think we need to take the time to change Bill C-38 to get it right, at least the environmental part of it.

I'll show you several examples of provisions of the bill that don't make environmental or economic sense. The first is the proposed change to species of economic, aboriginal, or recreational value. I'll give you an example from the Experimental Lakes Area, which I directed when I was a scientist with DFO for 22 years. Those were the days when acid rain was considered a problem, or it was debated as to whether it was a problem.

Most of the data, when we began our experiments there, were from short-term lab toxicity studies, mostly done on the fish of interest for economic or cultural reasons. It was decided that acid rain wasn't a problem until these systems reached pH 5.

We began acidifying a small lake to see what happened along the way. We found that some of the key species of food for lake trout were ten times more sensitive. They disappeared when the lake hit pH 6. They were species that would not have been protected by this proposed wording change. Fathead minnows and opossum shrimp, a large crustacean that have co-evolved with the lake trout, are its main items of diet in many lakes. So it's an example of how these key species would not have been protected.

We nearly lost the lake trout in that lake, not because of the toxicity to them but because these other two species that were non-target species disappeared. The lake trout began to starve and they stopped reproducing and the population went into decline.

That's the kind of loophole that we can expect from the proposed change in wording. Some of the figures are of those very organisms. In that same pH range between the normal pH of 6.5 and 5, where it was believed that damage began with our whole ecosystem experiments, we lost 50% of the normal species in the lake. Most of them would not be targeted by the proposed changes.

What it meant was that we lost several key processes in that lake: key biogeochemical processes like nitrification, so we had an ammonium buildup; changes in algae, so that instead of clear water with algae that would be grazed by plankton and zooplankton and then eaten by fish, we had big balls of rolling algae on the bottom of the lake.

So expect big declines in biodiversity without this protection for fish habitat. The work done at ELA was never done solely because of the fish. It was all regarded as work on fish habitat.

I think it's a weakness of our current DFO that we have Environment over here studying the environment and Fisheries over here managing fisheries in isolation from the very ecosystems that support it. We're almost unique in the western world for that approach. It is outdated by 70 years. We have to realize that fish are a part of an ecosystem and need to be regulated as part of it. We shouldn't have these disparate things.

If you look at the various mandates of Fisheries, they all have cod or salmon in the top 20 priorities. There is nothing on inland fisheries at all. Yet a lot of our people—mostly aboriginal people and a lot of our recreational fisheries—depend on freshwater fisheries. I can tell you that provinces don't do any research on them, and I have lived in three provinces. It has been up to the federal government, and that mandate should continue.

In the press, soothsayers for DFO have told us about all of the nasty things that happen—how concerts have to be cancelled, and irrigation water back-flow can't be discharged because there are a few fish in it. To me that seems analogous to saying we should be throwing out murder as a charge because there were boo-boos in the Robert Pickton case, or we should get rid of police because of a botched policing action around G20. They're exceptions to the rule.

I can tell you that with 22 years as a DFO scientist, and a daughter with 10 more as a habitat officer, there are some very practical things with respect to habitat that are done. One common example that's very inexpensive to do right, but very expensive to fix afterwards, is called hanging culverts. Typically, someone with no knowledge of fisheries will put a culvert across and water flows through it. There's no regard to whether the flow might be too fast for fish to come upstream and use what is often key spawning habitat. I have seen cases in Alberta where one culvert cut off red-listed bull trout from 60% of their spawning habitat in a stream. The rate of flow through the culvert can be too high. There are simple design features to make them level enough so fish can go through them, or broad enough so the flow can be tolerated by fish—or with some resting baffles. They are very simple things to do.

My daughter was a habitat officer for DFO in the Bella Coola region. She reports that she has never had a hostile incident. The contractors there were always happy to have the design input, and proud of the fact they could put in road crossings and maintain the salmon and other species that were using those streams.

Another example given in the press was lakeshore development. I chaired a committee for the Minister of Environment in Alberta on lakeshore development in Lake Wabamun. All of the cottagers pointed at the big power plant, but we found that the main damage was due to people putting in docks and beaches where there should have been fish habitat. I give you some examples of how cottage development destroys fish habitat, based on studies done by my son in the U.S.

Much of what I have said also applies to terrestrial species. I give you two Alberta examples: sage grouse and woodland caribou. We have known for 20 years that caribou were on the skids. Now we have Environment Canada reporting that it's questionable whether we can recover them at all. The sage grouse probably is not recoverable; it's near zero. Both of them are near zero because their habitat was not protected. We don't need any further weakening of habitat revisions.

To finish, I support the idea of streamlining the review process, but not necessarily to hurry development. The way to go about it isn't to weaken our environmental laws; it's to streamline this stupid process by which the science is collected by a few students who work for consulting firms, 10 pages are hidden on a long shelf, and a committee is expected to find them and make sense of them in a year or less.

It's time we had an organization that did professional environmental impact assessments, based them on good long-term monitoring—we usually know in advance when those systems are going to be targeted for development—gave us an unbiased view of what the changes to those systems would be, and then went back afterward to see if their changes were correct. That's something that is not done in our current environmental impact process. It's not a science, because that self-correcting action simply does not occur.

Thank you for your time.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Dr. Schindler.

Mr. McGuinty, we're going to go back to you, and we'll start the clock over at 10 minutes. I think we have worked out some of the issues we had at the start, and I thank you for your patience.

Please begin.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you for your consideration, Mr. Chair, and thank you, again, to the members of the subcommittee.

I think the best place for me to begin is to talk about the fact that, of course, CEAA is being repealed in its entirety, and perhaps more importantly, the preamble to CEAA is being repealed. If you look at the preamble of CEAA by itself, it is perhaps one of the most definitive statements of Canada's objective to achieve sustainable development going forward, through the reconciliation of the environment and the economy, for Canada's ultimate well-being.

In fact, the processes by which we achieve sustainable development in this country have been led chiefly by Canada's National Round Table on the Environment and the Economy. Changes contemplated to CEAA, to the National Energy Board, and to the Fisheries Act, as well as the imposition of what can only be described as arbitrary assessment timelines, have a direct and causal connection, a direct bearing on Canada's sustainable development.

Because the round table is Canada's primary agency to help us achieve sustainable development, let me take a moment to address what the NRT might be able to do to help Canada and the government make progress in this regard. In fact, the changes that are being contemplated should be, in my view, referred to Canada's National Round Table on the Environment and the Economy. Let me say why.

First, these changes would benefit—as Chief Atleo has pointed out—from being hived off, from being separated out from the bill, so a national multistakeholder independent consultation process could be conducted. That's why, for now at least, the National Round Table on the Environment and the Economy exists: to help ground-proof the proposed changes that are being put forward by the government. It would be apropos for the Prime Minister to refer these changes to what was, up to recently, his own agency, before it was demoted, so to speak, from having the PMO to having Environment Canada as a reporting structure.

Let me talk a little about what the national round table could help Canadians with when it comes to these very significant changes. I think, first, if there was ever a time when Canada needed a multi-stakeholder body and a process that worked to reconcile competing interests as we look to strengthen our economy, enhance our ecological integrity, and improve our well-being to deal with the changes in this part of the bill, it's now.

The round table isn't merely a research institute. It's not a publication house, as several ministers would have us believe. Of course, it performs background research—and it could do so with respect to these passages—and issues reports providing advice to the government, but its most important function would be to allow for debate and deliberation. There is no substitute for a body that convenes all the important players as we look to make progress.

This is not a function the government can fulfill, because it is ultimately the government that receives advice from its own round table. It can't be accomplished by a university or a research institute or through the Internet. The value of the process conducted by the national round table is in providing advice in the form of practical options for change.

Let's talk a little about some of the options the round table might actually explore under part 3 of this bill. For example, why couldn't the national round table, on behalf of the government and the people of Canada, take part 3 and examine regulatory reform in its entirety? Why can't we, for example, look and see what is happening at the provincial level where there is duplication, where there is triplication in some instances? Why don't we actually take a long, hard look at what is happening at the provincial level to see where we can find best practices? Why can't the national round table at the same time look to international comparative examples to see what has worked in other jurisdictions? For example, let's see how many OECD countries or G-20 countries have imposed arbitrary timelines when it comes to conducting environmental assessment processes.

Let's explore what it means when the Minister of Natural Resources says that federal and provincial government regimes will have equivalency when the federal government adjudges that provinces have the capacity to conduct environmental assessments. What does that actually mean in practical terms?

The round table could go further. First, it could hold its hearings in public and be fully televised for Canadians, as these hearings are being televised. It could work to improve Canada's energy and environmental regulatory regimes and integration by addressing other elements. As I said, a complete examination of the interface between existing energy and environmental law and regulations: the mandate, the operations, and the funding levels of the National Energy Board and the Canadian Environmental Assessment Agency; where applicable, overlap and duplication between federal and provincial energy and environmental regulatory regimes; an examination of the fairness of the independence and the use of evidence in regulatory processes as we make these contemplated changes to the NEB.

Let's talk and have a round table address on behalf of the government, the public access, and participant funding in review processes, aboriginal consultation best practices, as Grand Chief Atleo referred to, and, as I said earlier, comparative international approaches. Let's talk about these arbitrary timelines in this sense: let's have the national round table perform an analysis of all the environmental assessments that have gone on over the last, say, 30 years. Let's look at how long they've taken, and then let's try to find out why there were such delays. Were the delays on behalf of the project proponents or on behalf of the capacity of the regulatory regime to conduct the hearings? These are the kinds of questions....

And perhaps finally, Mr. Chair, I'd like to see the national round table examine these changes under part 3 in this context: I'd like them to advise Canadians and the government on the implications of NAFTA's proportionality clause with respect to energy security.

We could even go further, building, for example, on timelines and the mandate changes that are being proposed. The national round table might, for example, Mr. Chair, advise Canadians on the notion of pricing carbon. A good point of departure for that might be asking them to examine the speech given by Prime Minister Harper in 2008, when he committed Canada to delivering a price of $65 a tonne for carbon by 2016-2018. It would be important to see what the contemplated changes in part 3 do to the government's commitment, not only in terms of pricing carbon, but also the government's commitment to achieving 17% reductions of its GHGs in the next seven and a half years. I think that would go some distance, Mr. Chair, in helping Canadians understand the massive implications of the contemplated changes.

I have a number of national processes in front of me, examples of processes conducted by the national round table, which would form, I think, wonderful precedents for the round table to rely on in order to conduct that deliberative process.

In most instances the round table engages somewhere between 200 and 500 stakeholders across Canadian society, including government officials, who often sit back and watch the deliberations so they can learn from best practices, best evidence, best research, best approaches going forward.

I can take a few minutes, Mr. Chair, to highlight some of these that I think are very apropos, but perhaps to wind up, the fact that the National Round Table on the Environment and the Economy exists is a wonderful asset for Canada. The processes it conducts have been nothing short of inspirational for over 80 national councils for sustainable development all over the world. They have been inspired by the national round table, inspired by its practices, and I think Canada and Canadians ought to be proud of what the round table has done for the country, and I think could really use its help at this stage. It's simply unfortunate the government has decided to eliminate Canada's National Round Table on the Environment and the Economy.

Thank you, Mr. Chair.

[The Chair, Conservative, Blaine Calkins]

Thank you, Mr. McGuinty.

Thank you to our presenters.

We're now going to proceed through the question and answer portion.

The first round of questioning is for seven minutes.

Mr. Kamp, go ahead, please.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Thank you, Mr. Chair. Thank you, gentlemen, for taking time out of your busy schedules to appear before us on these important issues. I appreciate your being here.

Let me begin with a fellow British Columbian, Chief Atleo. We care about some of the same issues with respect to fisheries. Unless I heard you incorrectly, I thought you were characterizing the changes in Bill C-38 as removing protection of fish habitat. To be frank, I'm not sure how you came to that conclusion. I would have thought you would welcome a more focused approach to protection of recreational, commercial, and aboriginal fisheries. That protection is in a prohibition in the new section 35, which is defined as serious harm to fish, the death of fish, or any permanent alteration to, or destruction of, fish habitat.

I'm just curious, and let's take the Nuu-chah-nulth, for example, and their aboriginal fisheries. Wouldn't this include all those fisheries and all of the habitat that supports those fisheries, and place an obligation on the Minister of Fisheries and Oceans to protect that habitat in order to protect those fisheries as a clear reading of this proposed section in the bill?

[National Chief Shawn A-in-chut Atleo]

Mr. Chair, as a fellow British Columbian, this is a really important and meaningful aspect. The amendments to the Fisheries Act are not conservation-oriented. Merely protecting aboriginal fisheries from “serious harm” is not adequate to ensure continued access to sustainable healthy fish stocks. Serious harm, as is understood in this case, only prevents permanent damage, and it's unclear what we're speaking about when we talk about permanent damage.

I think a related issue is exactly to a point like this and the question that's been raised: the lack of proper funding for engagement in consultation. The Assembly of First Nations agrees with DFO's 2012-13 report on plans and priorities, where it's stated that the department “may not be able to adequately maintain public trust and confidence, and subsequently its reputation”, when it comes to the full and formal engagement of first nations. Both the question as well as the reference, in my view, suggest the need for giving effect to Sparrow, Marshall, and most recently the Ahousaht case—and I was a claimant in that case—where our rights are upheld and are in addition to the constitutionally recognized and protected aboriginal title and right, as well as the rights identified in the UN Declaration on the Rights of Indigenous Peoples.

In this case, it feels very much, Mr. Kamp, as though we're being treated as an afterthought. The entire intent of the crown-first nations gathering was to say that we've got 50 years of jurisprudence, constitutional recognition, a UN declaration, and treaties going back 267 years, and it's time we put this relationship back on a foundation of mutual respect and recognition so that we can develop a shared vision for fisheries, fish habitat, and we can arrive at a shared notion of what constitutes serious harm.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

With respect, Chief Atleo, I understand your point of view, and I'm sympathetic to it. I think the question is whether a budget implementation bill in which we're making some changes to the Fisheries Act in order to support resource conservation and development is the place to address those broader issues, in terms of aboriginal issues. I would suggest it probably isn't.

Let me move on to Mr. Schindler. I thought I heard you say that there are fish that are not part of a commercial, recreational, or aboriginal fishery, and somehow they wouldn't be protected and that would be a mistake. Doesn't the wording in the new prohibition say that “No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery” and fish that support them?

[Dr. David Schindler]

How are we going to know that, when at the very time this is happening, Fisheries is cutting off its habitat officers and the people who study northern contaminants? Northern contaminants in fish is a big aboriginal concern. How will we know whether these things are happening if eliminating this from the act is used as an excuse not to study them? It's like no see 'em, no hear 'em, no do 'em.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

How do you reach that conclusion when the act will clearly say that the new focus of fisheries officials will be the protection of fisheries? That includes the fish that support those fisheries and the habitat that supports those fisheries.

This will now be an obligation. It will continue to be a more focused obligation of the Government of Canada to protect those habitats and those fish that support those fisheries. Wouldn't you agree?

[Dr. David Schindler]

I would say that I don't see that being done. If that were being done, I would agree with you. But I know what's happening to Fisheries right now. I have many colleagues there. Anything to do with habitat and contaminants is being cut. So how will we ever know whether they're being contaminated or whether these non-target species are dying and causing problems?

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

With respect, I think that's a different issue and a different question. In fact, the minister has said that this is a new strategic direction. It's a new foundation. We need to build a policy framework that will require consultation and discussion. And that is still to come.

[The Chair, Conservative, Blaine Calkins]

Thank you, Mr. Kamp. Unfortunately, the time has expired.

We're going to move to Mr. Chisholm now and have an opportunity to hear his questions.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Thanks very much, Mr. Chairman, and welcome to the witnesses. Thank you very much for taking the time to come here and share your considerable wisdom on the matters before us.

Chief Atleo, I want to go to you first.

I'm from Nova Scotia; I'm from the other coast. When I was thinking about this and looking at the changes to the Fisheries Act, I was wondering how I was going to understand what's going on. I picked up the phone and called somebody I think you know—Charlie Dennis, an advisor and a former chief. He is somebody who set up the Unama'ki Institute in Eskasoni. That's an organization that was formed by the five bands on Cape Breton Island for the sole purpose of looking out for the natural resources, in particular the Bras d'Or Lakes.

He told me they hadn't been consulted. He sent me a letter, and he said that the accepted observation of Mi'kmaq elders is that there are no healthy organisms without healthy habitat. He went on to say that on several occasions, the first line of involvement for the institute on an issue or development in the watershed is via an environmental assessment. He said to me that our responsibility for protecting that ecosystem of the Bras d'Or Lakes is going to be greatly hampered by what is proposed in these changes.

This is a man I have so much respect for. He has been a leader in this area, and his wisdom has not been brought to the fore.

I wonder if you would comment on the role the Mi'kmaq played in protecting and trying to improve the natural resources in Nova Scotia and in my home town.

[National Chief Shawn A-in-chut Atleo]

When I briefly cited some of the court cases, including Marshall...I was at the late Donald Marshall Jr.'s funeral when he passed away. He was an iconic figure for indigenous peoples, not just in this country but globally. What the Mi'kmaq and others who have led these challenges have been undertaking is really twofold, and it speaks directly to your discussion here.

When I mention Marshall, Sparrow, Nuu-chah-nulth, and Gladstone, we're talking about decisions that have yet to be fully implemented. Yet first nations, like I think a lot of people, want to give effect to a notion about sustainability. They want to have an enduring relationship with the environment around them.

I want to be very clear, though, that in this respect, first nations, the Mi'kmaq alike, are not just stakeholders and not just members of the Canadian public. They have rights. They are treaty rights holders. They have constitutionally protected rights that have yet to be implemented.

I made it very clear, when we had a visit from His Royal Highness, the Prince, that these treaties predate the establishment of Canada, and with the new UN declaration, Canada has an obligation to work with first nations to implement those rights. Going back to the original Agenda 21, Canada signed on to an international declaration stating that first nations, indigenous peoples, must be involved in defining sustainability.

The example you've cited is an example where first nations, as I said in my presentation, are prepared to work with others to accomplish that. The challenge is that even within this effort we have what we believe is an improper effort on the part of the government to create regulations that will restrict, limit, or constrain first nations fishing rights by establishing a limited definition of those rights or by failing to acknowledge inherent rights that have always existed.

That is the core fundamental challenge we have. We see under current environmental assessment processes under the National Energy Board that there at least has been some process, albeit not satisfactory. It's not fully grounded on full respect and recognition of inherent indigenous peoples' rights, aboriginal entitlement rights, and treaty rights, but it's a place to go. What we see here is a move away even from the current processes.

I can state, I think very unequivocally, that even in my cursory discussions with first nations, that first nations don't object to development; they just don't support development at any cost. I think there's a shared notion around an interest in efficiency and creation of economies and creating jobs.

We see the Mi'kmaq leading in this in so many respects, including in this area, so it is with that spirit that we come here to offer testimony. I hope that sheds some light. We want to honour our eastern relatives, the Mi'kmaq, for their leadership in this area for a long time.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Thank you very much, Chief. I want you to go a bit further on the whole question of the duty to consult and accommodate, the fact that this has not been recognized in the proposed changes.

There is reference to delegating to a province, for example, but there's nothing in terms of first nations people. I wonder if you could take that a little further in terms of the implications with this language as it relates to delegating authority to only the provinces.

[National Chief Shawn A-in-chut Atleo]

I think that really is a two-part issue. First of all, we're not sure that the federal government can give up its responsibility to deal directly with first nations—its duty to consult and accommodate. It was the reason for the recent crown-first nations gathering. The relationship is with the crown, and in the steps that were set up in the outcome statement that the Prime Minister issued, it offers the notion that we have to work together to address a way forward, which is what this bill oversteps. This effort oversteps the sentiments that we arrived at this last January.

It relates directly that there is not support from the AFN for the government's current definition of aboriginal fisheries. The Supreme Court of Canada has routinely recognized first nations' right to food, social, and ceremonial...and in the case like mine, the Nuu-chah-nulth commercial fisheries. Many of these cases recognize first nations fishing rights. Bill C-38 does not capture the full scope of first nations fisheries, and it can be interpreted in fact in a way as to limit, prejudice, derogate, or abrogate from first nations fishing rights.

In both content and process there are substantial challenges that first nations face with this bill. Therein lies the suggestion that we do as we've done with other major pieces of legislation. We do have a track record with this government and other governments of jointly designing a way forward, and we would encourage the committee to look deeply at this.

[The Chair, Conservative, Blaine Calkins]

Thank you, Chief.

Thank you, Mr. Chisholm. Your time is up.

Ms. Duncan, you have seven minutes, please.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair, and thank you to all the witnesses for coming.

I'll begin with Mr. McGuinty.

We know that the new act renews key triggers for federal EA. No longer will federal money cause an EA. There will be fewer environmental assessments and they'll be narrower in scope.

According to the environment minister:

The new environmental assessment process is no different from the old environmental assessment process, except for the improvements that all three of us here today have listed for you.

He's referring to the ministers.

I wonder if you can comment on his statement, please.

[David McGuinty, Liberal, Ottawa South, ON]

Thanks for the question. This is exactly the kind of statement that should be subjected to the light of day and scrutiny through an impartial arm's-length, independent, objective, fact-based, science-based, and evidence-based process. That is why these changes should be hived off and referred directly to Canada's National Round Table on the Environment and the Economy to conduct precisely that kind of ground-truthing, shall we say. There's a clear difference between the political rhetoric we've heard and the reaction on the ground.

In fairness, every stakeholder I have spoken to who's in favour of seeing this kind of process conducted is in favour of improvement. I don't think there's a single Canadian who's saying, “Yes, let's delay projects for the sake of delaying them. Let's make them more difficult and more costly.” Everyone wants to see improvement.

The question is, can we take what the ministers are saying at face value? With all due respect to the ministers, I don't, and I think most stakeholders don't. So it would be very apropos to send this to the national round table—just building on some of the comments Chief Atleo made, for example, when the question arose about consultation.

The national round table conducted a fabulous piece of work on aboriginal communities and non-renewable resource development. There's an entire section on the challenges of the consultation and how they might be overcome. This is exactly the kind of information the government would benefit from, in my view.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Mr. McGuinty.

In the absence of a national round table, what remaining institutions could perform the evidence-based consultative analysis you're suggesting, please?

[David McGuinty, Liberal, Ottawa South, ON]

In my view, having worked with hundreds and hundreds of wonderful members on the national round table, and over nine years with tens of thousands of Canadians who have participated in their processes, I don't think there is a substitute. I don't think the government by itself can conduct these consultations on these proposed changes. I don't think industry by itself can conduct these consultations.

There has to be an agora, some sort of meeting place or meeting point where these competing interests are brought together and we pick up on our common purpose of improving things. We find consensus where we can find it, and we admit that there are differences and there are tough choices to be made.

To suggest, for example, that this might be achievable by using the Internet isn't serious talk. It's not going to help Canadians come to a better understanding of the changes that are being proposed.