Subcommittee of the Standing Committee on Finance on Bill C-38 Committee on May 30th, 2012

[Thomas Siddon]

I would certainly hope to think so, Mr. Chairman, through you to Mr. Kamp.

First of all, if you read clause 142, which is one-and-a-half pages long, and compare it to the section 35 that Mr. Kamp read from at the beginning of his remarks, which is two lines long, you will see there are a lot of words essentially to cover the ground he's described, but that appear to allow a lot of room for compromise.

I am saying there is room for compromise in the powers of the minister, working with his officials, and in the requirement of integrated resource management and planning, jointly with proponents of major projects and those who wish to express themselves at public hearings or directly to the minister in objection to particular proposals.

My major concern here, one of those concerns, is that you've replaced two lines with a page-and-a-half of language, and there are lots of subtleties if you dig into that language. The major one is, all the exemptions allowed that this minister can exercise in the subclause, which is about a half-a-page long.

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

Yes, but my point, Mr. Siddon, is that the strategic direction we're taking with the Fisheries Act changes in Bill C-38 is to provide greater focus on fisheries resources, not necessarily on fish. Now, I don't know if you agree with that, but let me carry on with the historical story.

That was in 1986. This was your policy, which reads very similarly to what we have in Bill C-38. I don't see how we can conclude anything other than that. That was the interpretation of section 35, the HADD section, as it was known by your department at that time.

Now as the years went on—after your time, Mr. Siddon—they developed a decision-making framework to know how to provide authorizations and which projects needed it and would get it and so on. That document from 1998, which was called “A Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat”, has an important section, section 2, that says the first question the manager needs to ask himself is, if the project site is in an area potentially impacted by the project, is fish habitat present there?

It says this: Section 35 is not about the protection of fish habitat for the benefit of fish, but of fisheries. Therefore, the decision required is a determination of whether or not the potentially affected fish habitat directly or indirectly supports—or has the potential to support—a commercial, recreational or subsistence fishery.

I put it to you, Mr. Siddon, that this is precisely the direction that we're taking, the direction that you contemplated in the habitat policy, which is still in effect to this day. We are enshrining in legislation what is in the habitat policy, so that we have the legislative clarity and the tools to be able to move forward with the policy you put in place.

[The Chair, Conservative, Blaine Calkins]

Very briefly, Mr. Siddon.

[Thomas Siddon]

Mr. Chairman, what I see being attempted here, with all due respect, is to suggest that the principle of section 35 can be replaced by a long recitation of some of the practicalities of application, which is the place for regulations, not for legislation. The principle should stand as it stood in the first three lines of section 35—only three lines.

I also want to quickly say, Mr. Chairman, that there's a significant distinction between the use of the term “serious harm” in the proposed legislation and the term “No person shall carry on any work...that results in harmful alteration, disruption or destruction...”. “Serious harm”, under the definitions of Bill C-38, is that you have to kill fish before you've done serious harm. I think that's long after the barn door has been left open and all the cattle have got out.

Further to that, we're giving the minister such broad powers of stepping away from the provisions of the principle of the act, which is a protective principle, not a permissive principle. What this act is proposing is to take away the protective nature of the Fisheries Act—in particular, section 35—and replace it by a whole bunch of permissive loopholes, which I object to.

[The Chair, Conservative, Blaine Calkins]

Thank you very much.

Mr. Chisholm for seven minutes, please.

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

Thank you very much, Mr. Chairman.

I'd like to pick up a little, if I may, Mr. Siddon, on what Mr. Kamp had to say. I can't help but start off by suggesting to you that I may well use again your reference that this bill has made a Swiss cheese out of the Fisheries Act. I think that's a wonderful line. I appreciate that, and I hope you'll permit me to use it tomorrow in the legislature.

I wanted to go to your response to Mr. Kamp. I believe he was trying in his questions to say, listen, we're just continuing on with what you were doing in terms of fish habitat. I want you to expand on that, but I want you to focus in on this point. You made the point that in our language we had two lines, and we had two lines because it allowed for compromise. You talked about the participation of people who agreed and who disagreed with a project, and the ability that this allowed to reach a compromise. I wonder if you would mind focusing your response to that issue as you defined the strength of the fish habitat provisions.

[Thomas Siddon]

To begin, Mr. Chairman, if you write into legislation something that goes beyond principle and it involves a lot of words—which you know as lawyers describe them, they're million dollar words or silver dollar words—you open up a field day in court for challenges. Whereas the principle of the habitat protection provision in clause 35 is watertight.

If the fisheries officials, in consultation with public interests and proponents in projects, can work out common-sense practical solutions, we're all for that, but that's already in the act. This provision creates all this seriatim list of exemptions and exceptions that a court is going to have to determine in favour of the act, which gives all kinds of holes in the Swiss cheese to opt-out, to have only certain fish covered for example, to have only certain rivers and lakes be regarded as high risk and other practices regarded as low risk. We're giving all kinds of opt-out clauses.

There's a place in regulation for that, but not in legislation. That's what's so offensive about the way to create all this watertight list of language, which is being passed through a finance committee not an appropriate fisheries or environment committee. That makes a travesty of the democratic process of hearing from expert witnesses, not just former ministers but scientists, biologists, wildlife interests, and conservation groups. They should be here and not limited to four days but to properly deal and dispose with these questions.

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

Thank you very much for that. I want to follow up on that point as well. In the letter that I believe you and three other former ministers penned to the Prime Minister, the letter is quoted as saying:

...Canadians are entitled to know whether these changes were written, or insisted upon, by the Minister of Fisheries or by interest groups outside the government. If the latter is true, [exactly] who are they?

I pick up on that because we've had some representations earlier this week from a few groups who clearly had made representations to the government and had been involved in consultations with the government. These were mostly industries involved in extraction, as opposed to some others who have concerns about the bill who weren't involved in consultations.

I would like you to speak further if you would. It goes back to the point that you just finished off with about how important it is to have diverse opinions speaking to important legislation like this.

[Thomas Siddon]

The letter that you referred to, Mr. Member, is available. It's not in both official languages tonight, but if members wish to have it, I think they could approach the chair for a copy.

It does reflect our apprehension and concern that this broader group of interests is being totally pushed aside. I've even heard the term “environmental terrorists” used in the context of major projects like the proposed Enbridge pipeline—which I oppose, but for other reasons that we can get into another time. I'm all for economic development, but for the benefit of Canadians and jobs in Canada, not for getting it out quickly to China for 50¢ on the dollar to create employment over there so they can send us back products we can't afford.

That's a digression, but the fact of the matter is that there are numerous examples of where this role of public engagement, public involvement....

Getting back to your central question, as I've heard from members of caucus who I know, there are a couple of examples being used around the Conservative caucus of why these changes are so important. One is the case of the farmer who wanted to drain his field in Saskatchewan in order to allow people to park cars there for a rock concert. There were fish in that field, and the habitat people came along and said, “You can't do that”, and undertook prosecution under the Fisheries Act.

Now, I think that's a total distortion of the purposes of the habitat protection provisions. It's just an artifice used as an excuse to make these changes. In fact farmers and environmentalists and biologists should be working hand in hand under the policy that I have described, as we do in British Columbia, where even the provincial government is teaching farmers how to responsibly continue their agricultural productivity without pouring all kinds of chemicals into drainage ditches, without plowing to the water's edge and taking all the trees and riparian areas out. We have a program called “Salmon-Safe” in British Columbia, which the farmers participate in. But this kind of shallow, almost phoney excuse for change is, I think, improper, as is the suggestion that people can't even build a dock in front of their cottage.

I can tell you that on the lake on which I live, 80% of that lakeshore has been alienated from its natural form, largely because people do whatever they darn well please. They think if they own a piece of waterfront property, they're entitled to bring sand in, to build retaining walls, to plow and move the water's edge, and to build wharves. These are not just simple little wharves but great big things for super-yachts.

We have a bill here that says they should be free to do that without any proper examination by any wildlife biologists or the Department of Fisheries, and frankly I just think that's wrong.

[The Chair, Conservative, Blaine Calkins]

Mr. Chisholm, thank you. You're already quite over your time. We have to move on.

Ms. Duncan.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

I'd really like to thank the witnesses.

I'd like to particularly thank you, Mr. Siddon, for your thoughtful, important testimony. Both you and Mr. Simard spoke to history teaching hard lessons, reminding us that prevention, having a good environmental legislative framework, is our best line of defence, and that, even with that, you want to reduce the risk. Worst-case scenarios do happen. I think the bill shows the complete failure to learn from the past, whether it's the Exxon Valdez or it's Horizon; cutting environmental legislation can result in dire consequences.

Mr. Siddon, we agree with you. This is an affront to democracy. This should be hived off. It should have been sent to the environment committee to study, to those who have the proper expertise.

Would you agree that should happen?

[Thomas Siddon]

I certainly do. I was a minister at the dawn of the environmental responsibility era. I was part of a government that took that to the point of practice through the development of Canada's first and only green plan and various pieces of legislation that I spoke of earlier.

What I see this bill doing is fast-tracking comprehensive environmental assessments, which ought to be as thorough as they need to be in dealing with major...such as the pipeline through 800 pieces of watershed in British Columbia without resolving the aboriginal interests in those lands. I mean, that's just totally irresponsible to try to push that through.

I think this legislation in its present form is taking us back to the 1970s, where we were before. I have to say, I was the minister who signed the Alcan Kemano agreement. We had very substantial scientific justification for doing what we did, but we didn't get the public engagement aspect correct. Alcan spent several million dollars, bored a tunnel halfway through a mountain, and it was finally overturned.

I had forewarned members of the government that this is where we're headed if we arbitrarily push through this type of legislation to get around appropriate, 21st-century environmental processes and end up getting hung up in court, maybe at huge expense to proponents, by trying to have simple, watertight answers in this legislation, which isn't where they belong at all.

Thank you.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you.

We agree. We have been trying to find out how many assessments will now lack federal oversight. When I asked the minister I was told that was a hypothetical question. We learned yesterday from the environment commissioner that it's going to go from 4,000 to 6,000 assessments down to 20 or 30. The minister in the House today said that's not correct.

We're trying to find out, for example, which of the federal laws are stronger than the provincial laws? What assessments has the government done of the adequacy of the provincial assessments and how it's going to work out equivalency? Should that be your recommendation going forward? I guess what I'm asking is, we'd like to hear your recommendations that we should go back to Finance with.

[Thomas Siddon]

It starts, Mr. Chair and Madam Duncan, with my belief that the federal Minister of Fisheries and Oceans is the only elected responsible minister in all of Canada with a fiduciary and constitutional duty to uphold the provisions of an act that has 144 years of history, and that ought to remain as such.

When another member talked of the Swiss cheese metaphor that I've used, in fact, all of this downloading has very alarming potential consequences. If any of you have worked with provincial governments as we have and I did as minister of fisheries, we were the watchdog, the guardian at the door when it came to dealing with the forest, mining, and other industries in British Columbia—all of which came under provincial constitutional jurisdiction.

If you download responsibility for fisheries to those provincial agencies, which have had their budgets stripped, they don't have the scientific or enforcement capacity, they don't have the legislative capacity. Yet we're saying that we can go into administrative arrangements. I'm really especially alarmed by clause 134, which essentially is the “downloads to the province” clause, which is essentially the federal government opting out. It actually says in either that clause or a nearby one that where provincial equivalency can be shown, the federal government is going to vacate the field. The federal government is going to step away and let the province take over the administration. It says also, if they don't do a good job, we'll take it back. But that's too late.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Mr. Siddon, how do you think they're going to even determine equivalency if those assessments haven't been done of adequacy?

[Thomas Siddon]

I don't think it's possible. You know we have had a major investment in the capacity of the Department of Fisheries and Oceans. We have several laboratories all across Canada. We have a history of learning about some of the problems I listed in my opening remarks, where we learned by our mistakes. These provincial agencies, with all due regard for our provincial environment ministry in British Columbia, don't have the resources.

The provincial government of British Columbia brought in something called a riparian area of regulation, which says you can't build within 30 metres of the water's edge on any waterfront property, but if you get a qualified private environmental professional to tell you how to do it, we'll let you have an exception. Then they turned that jurisdiction over to the municipality and said, “Now you run it, but by the way, I'm a local regional rural director. We don't have any resources and we don't have any tools, and that's the job the federal ministry of fisheries and oceans ought to be doing."

[Kirsty Duncan, Liberal, Etobicoke North, ON]

We've seen these cuts at the federal level. Last summer they announced cuts of perhaps 700 positions. Under the budget, they've announced another 200 positions. Can you comment on that and give us your top three recommendations that should be in our report going back to the committee?

[Thomas Siddon]

I was going to wrap up with my recommendations, but first of all, I think it's extremely important you separate the bill. That was the message in the letter that four ministers signed to the Prime Minister. This matter and these potential consequences do not deserve this kind of.... I know Mr. Flaherty. I'm sure he's a personal friend.

But this is the wrong way to go about it. This is the wrong committee to be dealing with these questions, and responsible members of Parliament of all parties would take those environmental provisions of clauses 52 to 169 and bring forward a separate piece of environmental modernization legislation, whatever you want to call it. But don't give us this gobbledygook of creating an improved act, when in fact there are so many questions that are not being addressed here and I am not as well qualified to raise as a lot of other people who might be before a committee, if we did it right.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Siddon. We have to move on.

Ms. Duncan, your time has expired.

We'll now move into five-minute rounds, starting with Mr. Allen.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Thank you very much, Mr. Chair. Thank you to our witnesses for being here.

Mr. Wojczynski, I'd like to start with you. I know it surprised you, right? I have just a couple of things. I'll get to three or four questions, maybe, if I have the time.

Clause 136 of the budget implementation act, which deals with sections 20 and 21 of the Fisheries Act, is all about obstruction of fishways, fish passage, and water flow. It gives the minister an opportunity to order installations in the public interest, such as guards, screens, coverings, and nettings. Can you provide your thoughts on that section and those changes, and what that means to the Hydropower Association and your members?

[Eduard Wojczynski]

Yes, this is a new provision that does affect us. There has been, in recent years, an increasing interest and determination by DFO on a policy front that fish passage is something it increasingly looks for, but it wasn't something for which it had the same legislative teeth, perhaps. Our industry certainly noticed that was added. It gives an extra degree of ability for DFO to require that, not just on the basis of harm to fish, but actually simply on the basis of requiring or allowing free passage. It's an increasingly new requirement for us.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Basically, any dams you'd be looking at are trying to achieve that. Would that be a requirement?

[Eduard Wojczynski]

The way we understand it, now when we go ahead with new dams, there will be a greater requirement for them than there would have been in the past. We're not sure what's going to happen with existing dams. That will depend on the individual circumstances, I guess.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Okay, but it looks as if he could order it, if there were a situation of fish issues.

[Eduard Wojczynski]

Yes.