Subcommittee of the Standing Committee on Finance on Bill C-38 Committee on May 29th, 2012
Evidence of meeting #3 for Subcommittee of the Standing Committee on Finance on Bill C-38 in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was environmental.
A video is available from Parliament.
On the agenda
- Chief Shawn A-in-chut Atleo National Chief, Assembly of First Nations
- Fred Denning President, The British Columbia Coast Pilots Ltd.
- David Schindler Professor of Ecology, Department of Biological Sciences, University of Alberta, As an Individual
- Terry Quinney Provincial Manager, Fish and Wildlife Services, Ontario Federation of Anglers and Hunters
- William Amos Director, University of Ottawa - Ecojustice Environmental Law Clinic, Ecojustice Canada
- Ron Bonnett President, Canadian Federation of Agriculture
- Kevin Obermeyer President and CEO, Pacific Pilotage Authority
- Scott Vaughan Commissioner of the Environment and Sustainable Development, Office of the Auditor General of Canada
- Clarence T. Jules Chief Commissioner and Chief Executive Officer, First Nations Tax Commission
Michelle Rempel Calgary Centre-North, AB
Mr. Chair, in part 3, division 1, under proposed subsection 19(1)(a), “the environmental effects of the designated project, including the environmental effects of malfunctions or accidents...and any cumulative environmental effects that are likely to result” is mentioned.
The relevant portion of the budget that talks about tanker traffic and the appropriate environmental protections that are strengthened through part 3 are directly relevant through this proposed subsection.
The Chair Blaine Calkins
I will take that into consideration. The questions have already been asked and the testimony has already been given. At this point in time it looks as though I don't have consent to continue with this meeting, unfortunately, pursuant to our Standing Orders.
I would like to thank our witnesses, Mr. McGuinty, Grand Chief Atleo, Mr. Denning, and Mr. Schindler. Thank you so much for coming here. And thank you, colleagues.
We will suspend this meeting. We will resume this meeting with the witnesses in the second panel after we return promptly from votes.
The Chair Blaine Calkins
Ladies and gentlemen, we will resume meeting number 3 of the subcommittee on finance.
I would like to thank our witnesses for their patience. We had to exercise our democratic responsibility here as members and vote in the House of Commons. However, I believe we will have a period of uninterrupted time now to conduct this very important subcommittee business.
With us on our second panel is Mr. Terry Quinney, a provincial manager of fishery and wildlife services of the Ontario Federation of Anglers and Hunters. From Ecojustice Canada, we have Mr. William Amos, director. From the Canadian Federation of Agriculture, we have Mr. Ron Bonnett, president. From the Pacific Pilotage Authority, we have Mr. Kevin Obermeyer, president and chief executive officer. From the Office of the Auditor General of Canada, we have Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development. From the First Nations Tax Commission, we have Clarence Jules, chief commissioner and chief executive officer.
The committee procedure is that we will have up to 10 minutes of testimony from each of you, and then we will start with rounds of questions and answers by members.
Our subcommittee has been tasked very specifically to deal with part 3 of the legislation, so I will ask witnesses to keep their testimony as relevant as possible to that part of the budget implementation bill that's currently before us.
Mr. Quinney, we will start with you for up to 10 minutes.
Dr. Terry Quinney Provincial Manager, Fish and Wildlife Services, Ontario Federation of Anglers and Hunters
Thank you, Mr. Chair.
Good evening, ladies and gentlemen. Prior to this evening I submitted my presentation to the clerk for translation. I trust that you will receive a hard copy of my presentation very soon.
My remarks will be exclusively devoted to the theme of amendments to the federal Fisheries Act.
On behalf of the more than 100,000 Ontario Federation of Anglers and Hunters members, supporters, subscribers, and our 675 member clubs, the OFAH thanks you for this opportunity to address changes to the Fisheries Act. As mentioned, I'm Terry Quinney, provincial manager of fish and wildlife services for the OFAH.
I'd like to illustrate the OFAH commitment to fisheries conservation with three brief examples from our conservation programs, our fisheries management activities, and our local community-level participation.
First, in partnership with the provincial government's Ontario Ministry of Natural Resources, the federal Department of Fisheries and Oceans and Environment Canada, along with Ontario Power Generation, conservation authorities, and many others, we are restoring Atlantic salmon to Lake Ontario and its tributaries. We are rehabilitating cold-water fishery streams through our community stream stewardship program, and we're assisting to prevent harmful invasive species through our invading species awareness program.
We are also working to improve recreational fishing by assisting the efforts of the Great Lakes Fishery Commission, participating in Ontario's fisheries management zone advisory councils, and helping to improve the international Great Lakes Water Quality Agreement.
OFAH member clubs, such as the Thunder Bay Salmon Association on Lake Superior, the Bluewater Anglers of Port Huron on Lake Huron, the Sydenham Sportsmen's Association on Georgian Bay, the Port Colborne & District Conservation Club on Lake Erie, and the Central Lake Ontario Sport Anglers of Brighton on Lake Ontario stock important fish species for the benefit of everyone. Did you know that the annual Salmon Spectacular of Owen Sound, hosted by the Sydenham Sportsmen's Association, attracts more than 55,000 people and results in over $3 million in local economic spinoffs every year?
Next I'd like to identify our key messages to you with regard to changes to the Fisheries Act. We have five key messages.
First, the supply of healthy fish habitat, both freshwater and marine, is critical for our fisheries.
Second, what is known as “free passage of fish”, where appropriate, is also critical to our fisheries.
Third, fisheries supply benefits to Canadians and Canadian society. Government of Canada statistics show that more than three million Canadians participate in recreational angling, resulting in economic benefits exceeding $8 billion annually.
Fourth, conservation is the protection, use, and management of natural resources to supply benefits at optimal sustainable levels for present and future generations of Canadians.
Fifth, an important role for governments—local, provincial, territorial, and federal—is to participate in conservation activities; the Fisheries Act is an example.
For a considerable period of time, the Ontario Federation of Anglers and Hunters has been seeking improvements to the protection of fish habitat and the successful passage of fish in Ontario.
Let me illustrate with two examples.
Because we have never been shown evidence that demonstrated the success of the longstanding DFO policy of no net loss of productive capacity associated with the fish habitat protection provisions of the federal Fisheries Act, we have recommended that strong standards be developed by DFO, in association with the Province of Ontario, in association with industry, and in association with organizations such as the OFAH, to ensure the protection of fish habitat.
The Ontario Green Energy and Green Economy Act promotes the development of new energy production projects in Ontario. In fact, we understand that over 40 new hydroelectric facilities will be installed very soon in many parts of our province. We need an effective means to ensure appropriate free passage of fish associated with these new energy projects. So in October 2011 we asked DFO Minister Ashfield directly that strong standards to ensure the protection of fish habitat be developed; that fish passage technologies be supported; that federal regulations to prevent invasive species, such as Asian carp, from entering Canada be completed; and that adequate resourcing be guaranteed to ensure the aims and objectives of a new Fisheries Act are fulfilled.
Now, in May 2012, we appreciate that the Government of Canada has explicitly recognized that Canada's fisheries are important to Canadians and that the government is committing to improve protections associated with our fisheries, including regulations that will prevent harmful aquatic invasive species, such as Asian carp.
We also appreciate that the government has made it clear to us that we share fundamental principles as we collectively move forward, namely, to avoid harm to our fisheries, to protect the productivity of our fisheries, and to improve habitat protection and fish passage.
To assist your deliberations further, I've attached to our presentation a backgrounder as an appendix, which provides further details for you.
With that, I thank you for listening, but I wish to extend an invitation to each of you, if your busy schedules permit you tomorrow, to walk across the street to the Westin Hotel where the Ontario Federation of Anglers and Hunters is hosting the nation's very first National Fish and Wildlife Conservation Congress. Please join us if you can.
Thank you very much.
The Chair Blaine Calkins
Mr. Quinney, thank you very much for that. It's good that you got a plug in there for your organization. We thank you for the great work you do.
Mr. Amos, for up to 10 minutes, please.
May 29th, 2012 / 9:10 p.m.
Professor William Amos Director, University of Ottawa - Ecojustice Environmental Law Clinic, Ecojustice Canada
Thank you, Chair, and thank you, members. I appreciate the opportunity.
My name is Will Amos. I'm a lawyer and professor. I work with a charitable organization called Ecojustice. We have offices in Calgary, Vancouver, Ottawa, and Toronto.
We consider ourselves to be Canada's leading non-profit public interest environmental law organization. We use the law to protect and restore the environment. For 20 years our lawyers and scientists have represented, on a pro bono basis, community groups, citizens, first nations, municipalities—in effect any group that has as its goal to protect the environment. We hold governments and corporations accountable for the implementation of environmental laws in this country, both provincial and federal.
I'm here not only wearing my Ecojustice hat but also as the director of the Ecojustice environmental law clinic, which is a partnership between the University of Ottawa's faculty of law and Ecojustice. The faculty of law at U of O deemed a partnership with Ecojustice to be a strategic one because it wanted its law students to learn what it is that Ecojustice does. Students have been working with us in the preparation of these materials.
Although the timelines were short, and that's why we weren't able to get our materials translated in time, I do have four legal backgrounders that we would like to provide this committee. If it would be possible to have them translated so that the francophone committee members could read them, that would be great.
I will be very happy to answer questions in French. I apologize that I will not be making my presentation in French, but I am always very happy to communicate in that language.
It's difficult in the six minutes I now have left to communicate—
The Chair Blaine Calkins
Oh, eight. That's fabulous. Thank you, Mr. Calkins.
It's difficult to know where to start with this bill. I'm going to do my best to provide what Ecojustice believes is a broad-brush stroke critique of Bill C-38 and of the contents of part 3.
Effectively, what we're looking at are weakened federal protections for fish and fish habitat, an entirely new and entirely less comprehensive federal environmental assessment regime, and greater discretionary powers vested in ministers and in cabinet. We believe there will be less accountability and fewer opportunities for the Canadian public to participate in processes that ultimately lead to sustainable development.
It's our opinion that this is the most significant and devolutionary set of environmental law reforms that have ever been presented to Parliament. There is no law that we can recall that has ever, in such a broad and structural manner, changed the federal environmental governance regime. Thus, our main message here is that Canadians are not ready for this. Parliament is not ready for this. There has been inadequate process to consider the transformative changes that are being proposed.
We would urge this committee to recommend to the finance committee that part 3 of Bill C-38 be excised and be separated and retabled, if the government deems appropriate, in a stand-alone bill.
Now, I understand it is less than likely that this government is going to move in that direction. However, both for the sake of environmental protection and also with a view to social licence going forward for Canadian industries...it's not good for Canadian businesses when environmental laws federally are eviscerated without sufficient buy-in from a number of communities. That isn't to say that the environmental community couldn't appreciate the need for amendments to the environmental assessment process and that, if necessary, we couldn't proceed with changes to the Fisheries Act. Indeed, there are changes that are needed, but the scope and the depth of the changes that are being proposed are simply unacceptable.
To go specifically to the Fisheries Act, this is at the core of Canadian environmental protection. Habitat protection through the Fisheries Act is really where environmental protection started federally, back in the mid-19th century, when the river immediately to our north was being polluted by the sawmills, the industry of the day, with all of its sawdust causing impressive losses of fish, destruction of fish habitat, and actual property damage as well. This history is well documented.
One of the key raisons d'être for the enactment of the Fisheries Act one year after the enactment of the British North America Act was to protect the environment. As a matter of historical process, the protections to the environment have only increased over the years. In particular, in 1977 the Honourable Roméo LeBlanc proposed changes that were adopted to ensure habitat protection and to ensure that deleterious substances wouldn't impact fisheries as well. So this was a progress towards greater protection.
What we're seeing with the amendments proposed in Bill C-38 is a reversal of direction, and we don't think that is in the Canadian public interest. I'd like to quote Roméo LeBlanc, then the Minister of Fisheries and the Environment, who said:
Protecting fish means protecting their habitats. Protecting the aquatic habitat involves controlling the use of wetlands. The banks of streams, the foreshores of estuaries, provide nutrients to the larger eco-system of lakes and oceans in amounts far out of proportion to their size.
The main effect of the changes would be this: for landfill, dredging, excavation, or other such projects in these sensitive areas, we would be able to examine the plans first, and to require modification or, if necessary, prohibition. Instead of accusing someone, after the fact, of destroying fish habitats, we would be part of the planning to save them.
The point of this comment is that three years after I was born, the then Minister of Fisheries made amendments to allow for habitat protection of fish, with a view to establishing a planning and environmental protection regime that would ensure we weren't trying to solve environmental problems after the fact. We are reminded of this when it seems that every month there is some other disaster that happens in this world, whether it's the Exxon Valdez spill, the BP disaster, or nuclear incidents in Japan. We're reminded constantly that better decision-making up front saves us money and ultimately is better for the economy.
What I see and what Ecojustice sees with this legislation is a return to an era when this kind of planning in advance is going to be lost, in large measure, whether it be for protection of fish habitat or environmental assessment processes that are no longer going to be done, and we're very concerned about that.
Ecojustice is extremely concerned by the provisions in Bill C-38 that would provide for ministerial regulations exempting certain water bodies and certain classes of works from the application of the fish habitat protection provisions. This has been done before. We've seen it done back in 2009 in the context of the Navigable Waters Protection Act with amendments that were also smuggled into the budget bill.
Also, we know from the ministerial order issued pursuant to the NWPA that certain types of works, such as pipeline crossings, and certain types of waters—the famous drainage ditches, but there are others as well—have been exempted from the authorization process required under the NWPA. In relation to the Fisheries Act, we're expecting that there will be regulations passed exempting these kinds of waters and these projects—like pipeline crossings—from fish habitat protection.
That's clearly not going to ensure that habitats are protected, and we have serious concerns in that regard.
I'll conclude by suggesting—and maybe for the purpose of this comment I will wear my University of Ottawa hat, as a professor there—that this government really does not have any mandate to make the fundamental amendments it's proposing in Bill C-38. The Conservative Party 2011 platform, prior to their majority election, mentioned nothing in the way of environmental law reform. We don't believe there is a mandate to make any amendments, let alone far-reaching amendments. We don't know right now whether risky activities such as offshore drilling in the Arctic or offshore drilling in the Gulf of St. Lawrence—
The Chair Blaine Calkins
Mr. Amos, you've already exceeded your ten minutes. Would you conclude, please?
Prof. William Amos
We don't know whether there are going to be environmental assessments now for such projects as offshore drilling in the Arctic and the Gulf of St. Lawrence. This is a matter of great concern. It's not about process for process's sake; it's not about consultation just to consult. We know there need to be amendments, but there needs to be an appropriate process to evaluate them.
Thank you for your time.
The Chair Blaine Calkins
Thank you, Mr. Amos.
We'll get to the crux of some of your questions, I'm sure, in the questioning rounds.
Mr. Bonnett, you have up to ten minutes, please.
Ron Bonnett President, Canadian Federation of Agriculture
Thank you, and thank you for the opportunity to present to the committee. I think I've met a number of you.
Just so you're aware, the Canadian Federation of Agriculture represents farmers right across the country, representing all provinces and a number of commodity groups.
We were supportive of some of the changes that had been proposed with respect to Bill C-38 in part 3. I'm going to try to keep my comments focused on why some of these have such an impact on agriculture.
There are several acts that are changed or amended: the Canadian Environmental Assessment Act, the National Energy Board Act, the Canadian Environmental Protection Act, the Fisheries Act, and the Species at Risk Act. I will likely be concentrating most of my comments around the Fisheries Act, although the Canadian Environmental Assessment Act will also have implications for agriculture.
With respect to proposed changes in the Species at Risk Act, we don't see a major impact on agriculture from the proposed Species at Risk Act contained here. However, we understand that changes are being contemplated to the Species at Risk Act later this year and that there will be some changes that we will be commenting on at that time.
We fall under the act because agricultural activities are identified in the context of physical works. It's mainly in the case of drainage ditches and irrigation canals that we fall under it. For a long time there has been a lot of frustration in the agricultural community about the complicated, costly, and convoluted process that is in place to get approvals. We have multiple levels of authority: we have municipal governments, provincial governments, different departments, and the Department of Fisheries and Oceans, all with a role to play in not only constructing drainage ditches, but also in doing ongoing maintenance, which is necessary.
I think it's key to understand that the whole issue of drainage is so important to agriculture that it was among the first kinds of legislation put in place by provinces when they started putting agriculture into the country, recognizing that they had to get rid of excess water. Maybe, to give a better understanding, I should describe the drainage ditch life cycle. These drains in many cases are put together with a very structured process, including some environmental assessments for the initial construction.
They try to describe how the drains are going to be constructed—the standards for construction, mitigation of environmental impacts—but along with that they also have to make provision for maintenance. When most drains are constructed, they have about a 15-year life cycle before they start to fill in again and have to be maintained.
You have to get your mind around the fact that before the dirt ditches were dug there was no fish habitat there. It was basically wet, soggy land with no fish habitat in place. As soon as the drainage ditches were done, naturally the fish swam up those streams. But in order to keep the drainage working and in order to make sure that ongoing fish habitat is maintained, you also have to have maintenance take place from time to time. At any one time, as I said, one in maybe fifteen drains is subject to maintenance.
But the existing description of destruction of habitat under the Fisheries Act basically leaves an opening, at the discretion of offices at the local level, to stall projects that can have a real impact upon farm operations in making sure those drains are properly maintained.
The Fisheries Act provides for protection of the fish and fish habitat. Under section 35, the act talks about “undertaking that results in the harmful alteration, disruption or destruction of fish habitat”. Then in subsection 35(2) it allows the minister or Department of Fisheries and Oceans officials to allow for permitting of clean-outs. This is where the problem is, because the description of “harmful alteration” or “disruption” gets married with this need for permits, and that puts a whole complex situation in place whereby there are extra costs built into the system with no added value.
I think the changes they're proposing actually do give some indication of the types of things that need to be protected. They talk about the new factors, the contribution of relevant fish to ongoing productivity of commercial, recreational, or aboriginal fisheries. It talks about fisheries management objectives. It talks about whether there are measures and standards to avoid or mitigate and offset serious harm to fish. Then it talks about the public interest.
I think that will give more clarity to the minister in making decisions. I think the next step, though, is looking at the regulations that are developed. I think in some of the discussions we've had with others, the development of the regulations is something that's going to have to be looked at to make sure the intent of the changes to the act actually meet the objectives.
The changes to section 35 prohibitions are going to come in two steps. I think the first step is when the act is implemented. They look very similar to the description in place now, but one of the things that has changed is that it's not going to only prohibit works and undertakings, but it will also prohibit activities. That is the first step, when the act is put in place. The second step will occur at some point in the future, through an order of cabinet, when the existing prohibition against harmful alteration, disruption, or destruction would be changed to read “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery”; “serious harm to fish” is a new concept defined as “death of fish or any permanent alteration to, or destruction of, fish habitat”. I think the key issue here is that they're removing the strict interpretation of “harmful alteration or disruption”.
If I go back to the drain maintenance issue, we know that in order to maintain one drain, you're likely going to disrupt that fish habitat during that maintenance period. However, you're actually creating habitat for the future years. But the way the act is worded right now, it leaves a situation where you have to go through a whole complicated process to get the approvals in place.
On final comment. I think Bill C-38 puts in place a process to bring improvements about how the Fisheries Act is implemented on minor works so that you don't get hung up with frustration, costs, and overlap of jurisdiction. I think there's clearly scope to improve the efficiency and effectiveness of the Fisheries Act. It has been something that has been going on for years. There is still uncertainty in how the changes will be implemented and the final impact of the regulations.
I think that's something there will have to be engagement on as the regulations are developed. I think, ideally, on drainage ditches, we should be looking at management through a stewardship approach, with clear guidelines on the best practices for maintenance in instances where they do support a fish population. Then not all drainage ditches should be treated equally, but the maintenance needs to be the main priority.
Thank you. That summarizes my comments.
The Chair Blaine Calkins
Thank you very much, Mr. Bonnett.
Mr. Obermeyer, for up to 10 minutes, please.
Captain Kevin Obermeyer President and CEO, Pacific Pilotage Authority
Thank you, Mr. Chairman and members of the subcommittee.
I'm going to confine my comments today to who we are and what we do on the west coast with respect to the marine environment. We are the Pacific Pilotage Authority, one of four pilotage authorities across Canada and a federal crown corporation operating under the Pilotage Act of 1972.
Our mandate is to provide a safe and efficient pilotage service on the west coast of Canada on a basis of financial self-sufficiency. We do this by working in partnership with the pilots and the shipping industry to protect the interests of Canada.
Our area of operation extends from the Washington State border in the south to the Alaskan border in the north. As a rule of thumb, if you extend each major point around that coast by two miles and join them all together, that will be the area of operations we have as our compulsory pilotage area. Within this area, all vessels over 350 gross tonnes, about 150 metres, will require a licensed pilot. In every instance, any new projects and terminals will require consultation with the pilots and the authority to ensure that navigational safety is not compromised.
We have developed guidelines and standards for many of the more difficult passages on the coast. The marine pilots on the coast of B.C. are all masters in their own right, with many years of experience in local waters. We provide marine pilots to all vessels over 350 gross tonnes. They're a resource for the master and the bridge team, providing them with expert local assistance. They are responsible to the master for the safe navigation of the vessel while it is in compulsory pilotage waters. The exceptions to the 350-tonne rule are government vessels such as those manned by DND and the coast guard.
On the west coast there are two groups of pilots, the BC Coast Pilots Ltd. and the Fraser River Pilots' Association. The BC Coast Pilots Ltd., about 100 FTEs, are a private company—and you heard from the president earlier—that contracts its services to us through a service agreement. They cover all the coastal assignments from Stewart in the north to Victoria in the south and all ports in between. The Fraser River Pilots, of which there are seven, are employees of the authority and operate as specialists in fast-water conditions on the Fraser River from Sand Heads to Mission.
We're extremely proud of our safety record, which regularly exceeds a 99.9% success rate. In 2011 we handled 12,144 assignments and had four minor issues, for a 99.97% success rate. This success is not accidental. The exam process is one of the most stringent the candidate will face, and an enormous amount of time and money is spent on training to maintain our level of safety. In order to become a pilot, you need to pass two written exams and an oral exam with a minimum of 70% in each. The emphasis is on local knowledge. Once passed, you are placed on a waiting list until you start your career as an apprentice pilot. The apprenticeship can last from six and a half months to two years, and it involves hands-on training with a senior pilot as well as—
The Chair Blaine Calkins
Can you just hold for a second?
Ms. Duncan, do you have your hand up to raise a point of order?