Fisheries Committee on Oct. 26th, 2010

[The Chair, Conservative, Rodney Weston]

I call this meeting to order.

I'd like to thank our guest this morning, Mr. Swerdfager, for coming to appear before our committee.

Mr. Swerdfager, you've been before the committee on more than one occasion. I know you are quite familiar with our proceedings here this morning. I'd like to invite you at this time to please proceed with any opening comments you'd like to make.

[Trevor Swerdfager, Director General, Aquaculture Management, Department of Fisheries and Oceans]

Thank you very much Mr. Chairman.

Mr. Chairman, members of the committee, on behalf of Minister Gail Shea I would like to thank you for the opportunity to appear before you again to discuss aquaculture in British Columbia.

As you may recall from my appearance before you on March 22, I am the Director General of the Aquaculture Management Directorate of the Department of Fisheries and Oceans. My role in the department is to support the deputy minister and minister in providing national-level strategic guidance to the department's aquaculture program. In this vein I have been leading the department's work to develop a new aquaculture regime for British Columbia.

My goals here today are to: describe for you the process used to develop the proposed Pacific aquaculture regulations; highlight the main content points of the regulations; and summarize our plans for implementing the regulations when they come into force.

I should note at the outset that my remarks are made from the perspective of the Department of Fisheries and Oceans and are not presented as legal opinions or advice to the committee. Discussion of the legal aspects of these issues is beyond my expertise and mandate.

For the next few minutes I will no longer inflict my French on you. I will switch to English instead.

The committee has no doubt already been provided with contextual material on aquaculture in general, and in British Columbia in particular, with a particular emphasis on the British Columbia Supreme Court decision on aquaculture. I will not, therefore, rehash that general material here for you this morning. Instead, I'd like to just cut straight to the chase and focus on the emerging regulatory regime for aquaculture in the province.

As the committee will recall, in February 2009, the B.C. Supreme Court ruled that finfish aquaculture is a fishery and that the elements of the B.C. provincial aquaculture regulatory regime that address fisheries aspects of finfish aquaculture are beyond provincial jurisdiction. The court therefore struck down the finfish aquaculture waste control regulation and directed that the provisions of the British Columbia Fisheries Act that deal with aquaculture be read down to apply only to marine plants.

The court also ruled that the provisions of the Farm Practices Protection Act that apply to fisheries aspects of aquaculture are also invalid. The court, however, did uphold the province's authority to issue leases and tenures for aquaculture operations using these lands. In recognition that a new regulatory regime could not be put in place overnight, the court suspended its decision for one year to February 10, 2010. This suspension was subsequently extended by the court to December 18, 2010, at which point it will come fully into effect.

The net effect of the decision is that whilst provincial responsibilities with respect to leasing the land base for aquaculture remain in place, provincial regulations addressing finfish and shellfish operational matters, such as environmental management, escape prevention, net strength, and so forth, have been struck down and must be replaced by the federal government.

The Department of Fisheries and Oceans has responded to the decision by developing the Pacific aquaculture regulations. In November of 2009, the department issued a discussion document describing the nature of the issue and posing a series of strategic questions for public comment. Workshops were held in Campbell River, Comox, and Nanaimo. Separate workshops were held with first nations under the auspices of the Aboriginal Aquaculture Association, using funding provided to the association by the department.

In addition, under the leadership of the British Columbia First Nations Fisheries Council, 10 first nations workshops were held in first nations communities across the province to outline the nature of the regulatory issues and to directly receive first nations input and views on these issues.

Final reports summarizing these processes were submitted to the department in early April. Throughout that period, several meetings were also held with the Canadian Alliance for Aquaculture Reform, with industry associations, with several individual companies, and with other stakeholders.

Finally, we received approximately 1,200 items of correspondence via our website and regular departmental mail with respect to the proposals.

This wide-ranging input was coupled with our own internal analysis and led to the development of the proposed Pacific aquaculture regulations, which were published in the Canada Gazette, part I on July 10, 2010.

Committee members will of course have read the regulations, so I'll just highlight several key points in them rather than going through them section by section.

Importantly, proposed section 1 of the regulations, among other things, defines aquaculture as quite simply “the cultivation of fish”. This means that the regulations cover all aquaculture in British Columbia and not just salmon farming. Shellfish, finfish, and freshwater aquaculture operations will be captured under the regulation. In addition, in order to ensure that all hatcheries in the province will be held to similar standards, salmon enhancement hatcheries will also be covered by the regulation.

Section 2 of the regulations stipulates that they will apply only in British Columbia, a point worth emphasizing. The federal government has no plan to expand their application to any other part of Canada and has no intention of seeking the resources or the policy mandate that would be required to do so. This is a regulation that was made for British Columbia and will apply only in British Columbia.

The regulations will create a federal aquaculture licence regime. When they come into force, there will be a new federal aquaculture licence that anyone wishing to conduct aquaculture in British Columbia will be required to hold. Conducting aquaculture without such a licence will be prohibited under the regulations. Aquaculture operators in the future will be required to hold this new licence, to have a permit for their site under the Navigable Waters Protection Act, and to have a provincial lease.

The regulations authorize the minister to attach a comprehensive suite of conditions to any licence issued under the regulations. These provisions really are the core of the regulations in many ways. They provide the department, we think, with all the tools it needs to effectively manage all aspects of the industry in British Columbia. And every effort has been made to equip the department with the authority to address all aspects of aquaculture management within the context of our mandate.

In keeping with normal practice for fisheries management regulations, this section has been designed to be enabling in nature. It sets out a menu of tools for the department to use, so that licences can be tailored to address the particular management needs of each component of the industry, rather than simply taking a prescriptive cookie-cutter approach.

In many respects, the regulations and conditions in section 4 closely reflect the existing provincial regulatory regime. As a result, to a considerable degree, at least in the short term, operational realities for the industry will not change--production limits will not increase, benthic layer protection standards will not change, and no new sites will be authorized as part of the transition to the federal regime.

However, it is our intent to fully utilize the new regulatory provisions to compel the production of operational and environmental monitoring information by licence holders, and it's our intent to publish this information on our website on a regular basis. In 2011, information regarding licence terms and conditions, farm-related environmental monitoring data, sea lice levels, disease incidences and responses, fish escapes, and a host of other operational matters will be posted on the DFO website pursuant to the information-related provisions of these regulations. In short, we see this regulation as one that will substantially enhance the transparency of the industry in British Columbia.

I would like to also comment briefly on what is not in the regulations. We have not yet included provisions for the charging of a fee for the licences established under the regulations. As part of the posting of the regulations in the Canada Gazette, part l, the government indicated its intent to establish a fee schedule for the licences. We did so in the regulatory impact analysis statement. However, at that time, we had not yet determined whether fees charged for these licences would fall under the ambit of the User Fees Act. We have now concluded that the User Fees Act likely does apply to fees to be charged under these regulations, and we will be bringing forward a fee proposal for the committee's consideration later this fall.

We have received a wide range of comments on the proposed regulations and are carefully working through this feedback to develop proposals for cabinet consideration as we move forward to final gazetting. We may well be preparing some changes to the final version. The committee will appreciate, of course, that I am not at liberty to discuss these changes until they are decided upon and published in the Canada Gazette, part II. I can assure you, however, that we are very much on track to have the regulations in place before the court deadline.

Turning briefly from the regulations themselves, our primary preoccupation right now is actually upon building the program needed to effectively implement the regulations once they're in place. In June 2010, Treasury Board approved the department's submission outlining an $8.3 million annual program to administer the regulations, plus an additional $7 million in start-up costs over the first two years. This funding is incremental to the departmental base. The new programming will not be established through reallocation of existing resources or priorities from elsewhere.

With this new funding in place, we have begun the process of securing office space and obtaining equipment, including vehicles, boats, diving equipment, and the like. We have launched several recruiting processes, which are well under way, and we expect to have new staff in place later this year. We expect that our new program staff will be located predominantly on the island, in communities like Campbell River, Nanaimo, and Courtenay, and there may be a few in Vancouver--and maybe even one here in Ottawa, but I doubt it.

At the same time, we have been working to develop generic licence templates for public review over the next several weeks. These templates will be sent to licence holders, stakeholders, first nations, and others this week. They set out a set of generic conditions for their review. We are also working through the detailed operational guidelines and policies to accompany these licences and to guide operations over the longer term. In many instances, they are simply identical to existing provincial terms and conditions; in others, we are developing new operational requirements, particularly in the area of information reporting. We have also launched the work needed to build the information management and licensing systems over the longer term.

As part of our program design, we are also in the process of establishing a substantial new conservation and protection unit made up of fisheries officers whose primary role will be to enforce compliance with the new regulations. This unit will be established with new resources and will be incremental to the existing conservation and protection program. It will not be created by reallocating resources or priorities from elsewhere. It will establish a substantial enforcement presence on the water specifically focused on aquaculture.

Mr. Chairman, this has been a very busy year for the aquaculture community in British Columbia and for those involved in regulating and managing it. However, we are coming close to the completion of a new regulatory regime that we feel will substantially improve regulatory efficiency, effectiveness, and transparency. We have the resources in place to do the job. Much work remains to be done to get the new program fully up and running, but we have made real progress over the last six months and we look forward to continuing this work in the months ahead.

In closing, I would like to thank the committee once again for the opportunity to be here today. In the unlikely event that you have any questions for me, I'd be happy to address them.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Swerdfager.

Apparently Mr. Cuzner has some questions for you.

Mr. Cuzner.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Thank you very much for being with us today.

Thank you, Chairman.

Just for my own clarification, are salmon enhancement operations in B.C. provincially run or are they, for the most part, private?

[Trevor Swerdfager]

Sir, they are a mix of three. There are some that are federally run, not very many--

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

We do have federal operations?

[Trevor Swerdfager]

There are a small number of them. There are some that are provincially run and there are some that are a mix. They fall into multiple categories. Their administrative structure is such that it's very difficult to say: here is the standard approach; it looks like this. There is quite a mix of them.

In all cases, though, before they can introduce fish into the water, they require an introductions and transfers permit from the Department of Fisheries and Oceans under section 56 of the fishery's general regulations, so they have a common licence point, if you will. Under the new regime they will all require an aquaculture licence, which will replace that introductions and transfers licence and put them under a single, homogeneous regulatory regime.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

The enhancement facilities will be required to do the same licensing process as the aquaculture operations.

[Trevor Swerdfager]

The honest answer, in terms of how it will all play out to actually get them licences, is that we haven't worked out the details of that yet, although it's forthcoming shortly. Because the regulations are set up to be enabling, it is not a cookie-cutter, “you must look like this”. So, for example, salmon enhancement facilities will have an aquaculture licence that will look quite different from that of a shellfish operator or a salmon farmer and so on. But they will be required to hold a licence and it will require them to report certain information to us in particular.

When we get around to having a fee structure in place, it's not our intent to charge them a fee. It would make no sense. In essence, we'd charging ourselves a fee, so there is going to be a difference there as well.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Do you have a fairly strong degree of confidence that the essence of some of the provincial legislation that was in place, the waste control provisions, the farm practice protection, those provisions, will be included in the new regulations? Have you taken it pretty much verbatim?

[Trevor Swerdfager]

We haven't taken it verbatim because the way the provincial regulations are structured, the regulation of aquaculture has occurred in several different places under their regulation and in several policy formats. So it's not just a highlight and cut and paste, put their regulatory text into ours and you're done. Having said that, we are de facto replacing the provincial regime. We think, with a very high degree of confidence, that there's nothing in place in a regulatory sense now in British Columbia that will not be covered under the new regime, with one very small exception. Under the Farm Practices Protection Act, individual aquaculture operators are protected from nuisance suits with respect to odour and noise. Those are not fisheries aspects of aquaculture, so those two specific provisions under the Farm Practices Protection Act will not be addressed by this regulation. Other than that, we have most of the provincial stuff covered.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

You refer to the regulations as being enabling but compelling the operators to comply. If there isn't compliance with the regulations, where do we stand as a department? What sort of ability to deal with contravention of the regulations is there?

[Trevor Swerdfager]

The key point to keep in mind here is that these regulations flow from the Fisheries Act. They are Fisheries Act regulations, so the full enforcement provisions of the Fisheries Act apply here. I was perhaps remiss in my opening remarks to not emphasize that. You don't see a full-fledged enforcement provision in the regulation itself because it's already there in the act and the fishery's general regulations.

In terms of enforcing compliance, this new unit that we're in the process of establishing--the recruiting has begun and they're in training now--will be fully occupied with ensuring compliance with the regulations. If there is a violation, the range of responses for us is significant. It can range from a fairly small issuing of a direction, if it's a tiny infraction kind of thing to come into compliance, through to the full range of potential prosecutions under the Fisheries Act.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

The other reference you made—it's not often you hear this from witnesses—was that “We have the resources in place to do the job.” That's rare to hear from any witness.

Anyway, I appreciate the fact that it's new money that's going toward this, so that is a positive. You're in the process of acquiring new equipment.

With regard to personnel, where would you be with personnel? You'd stated prior that you were looking at 50 to 55 new bodies on the ground. Give me where you are now.

And how would that compare to the time when the province was responsible for applying those same regulations or similar regulations? What would it be in comparison to what they had on the ground?

[Trevor Swerdfager]

I'll just answer the last part of your question first. The way we structured our proposal for resources was to do an almost forensic audit of the provincial program to determine how many people they had in place to administer their program, how many operating resources they had, how much equipment they had, and so on.

Essentially what we said was that we would need, in order to deliver similar provisions, roughly the same number of resources, because we're not that much more efficient than the province. We felt that we needed roughly the same number, but we also felt that there were two significant challenges with the provincial program. First, their level of investment in what we consider to be information management was fairly low. We felt that in order to administer this regulation appropriately, we would need resources over and above what the province had in place in the area of information management.

Secondly, we felt that the provincial investment in enforcement was, at least from our perspective, not sufficient to allow us to fully implement what we had in mind for our regulations. So when we prepared our resource request, we took the provincial program as the base, and we added on a resource request for information management and for C and P for enforcement. That was agreed to by cabinet and is in the budget.

We're looking at, since you mentioned it, approximately 55 new people. We probably will have one here in Ottawa to manage the B.C. desk, so to speak, but the remainder will be in British Columbia. At this point our current plans are to have a few in Vancouver, but the majority will be over on the island. We have posted job posters now for 12 different competitions, which we expect will net us approximately 45 people. Those are all posts that are open—several of them have actually closed now. We've done preliminary reviews, and a few are into the screening process.

We've hired three people on Interchange from the province, who have come over on a direct—they just swap over, so to speak. They are in place and have been for about two months now. We're also working through acquiring office space and all the logistics around that. I think we're well and truly along in the process as well. Our expectation is that we'll have our staffing start to come fully into force over the course of the remainder of the fall and into the early winter.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Cuzner.

Monsieur Blais.

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

Thank you Mr. Chairman.

I'd like to focus on the fact that British Columbia will continue to be a major partner. I would like to have more details on the current and future level of collaboration in order to understand if everything that has been done to date meets your expectations. I would also like to know how this will be harmonized in the future.

Your last appearance before this committee dates back to last March. Do you feel that the current situation for British Columbia is the same, compared to your perception of it then? Have you undertaken any major or minor changes? Are some areas of collaboration more difficult? How have things been going since last March in that regard?

[Trevor Swerdfager]

In terms of our relationship with the province, at the beginning of this process we expected that given the nature of the transition and the major change, the bureaucrats, in particular my counterparts, would be somewhat resistant. It's a big change. There is a lot of programming left, and so on.

We haven't encountered that at all. They have been absolutely fantastic. Our working relationship has been exceptionally good. The leadership from the province has been rock solid, from the minister down to the officer level, in terms of responding to the court decision.

When I appeared before you in March, there was still some uncertainty as to what the provincial role going forward would be with respect to shellfish and with respect to freshwater. I believe I told you at the time that I was a bit unsure as to how that would unfold. It was very clear that the province was leaving the field for finfish aquaculture and that it would move exclusively to the federal regime.

The province has taken the view that shellfish most properly belongs under the overall regime and that it should belong with the federal government as part of this transition. Similarly, when we started to work through issues around freshwater aquaculture, we reached the same conclusion together. The transition from provincial management to federal has been moving along very smoothly in that regard. We've had no real clashes or problems at the table with the province.

We are close to completing a memorandum of understanding with the province that lays out our respective responsibilities and how we will work together. It establishes a joint management committee, common criteria for decision-making, synchronized application processes, so that we are very much working together.

To return very briefly to your initial comment with respect to the role of the province, I can't emphasize enough the importance of the provincial government in aquaculture management in B.C. going forward. It properly controls the land base. The provincial government will determine where in British Columbia aquaculture will take place, and it will have full control over those decisions in terms of what part of the provincial land base gets used for aquaculture.

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

I didn't tell you at the outset that I am skeptical by nature and that if you were to tell me that everything was absolutely fantastic then I would have difficulty in believing you. That is what you replied, that everything is fantastic. My skeptical nature is quickly catching up with me and I have trouble believing you, but I would like to better understand this.

Why is it so easy to suddenly reconcile one's own way of doing things with that of another organization, in this case the federal government, the Department of Fisheries and Oceans, who quite easily takes over everything, especially in the areas of fish health, some inspection, marketing, industry promotion and communications material? This will all have to continue. Therefore, there has to be teamwork.

That is why I would like to give you a second opportunity to answer me but, please, do not use the expression “absolutely fantastic”, because it's difficult for me to believe that.

[Trevor Swerdfager]

Super-duper.

[Voices]

Oh, oh!

[Trevor Swerdfager]

Mr. Blais, one of the things I would say in my second crack at this is in the context of the public workshops that we've held. I've stood at the front of a room in Campbell River for two and a half days and listened to people tell me that DFO and the people who work for it are not to be trusted. There's a very high degree of skepticism about whether or not we will follow through with what we say we will do.

I stood at the front of a room in Comox-Courtenay for a day and a half and heard the same thing. I've spent a lot of time meeting with first nations talking about this regulation and where it's expected to go, and again, a recurring theme, quite frankly, has been that there's a high degree of skepticism about what DFO says and what it will do.

When I meet with members of the environmental community, I talk to them about what we're planning to do and their response is usually of a nature of the kinds of comments that won't enter into the record here today. But I very rarely get a response to the effect that it's good to have DFO here and we're really happy to have you.

So I'm familiar with the skepticism and the difficulty you may have in believing me when I say that things are moving along in a way that is good.

We have been working very closely with our provincial colleagues, and please don't interpret this as just Pollyannaish and everything is marvellous and sweetness and light and so on. My colleagues--and I think of them as my colleagues--who work for the provincial government are not happy about this. There are people who have spent their entire careers building a program, building an administrative arrangement, and so on. This is what they do, and it's been taken away from them for nothing that they did. So many of them are hurting very much, and many of them feel personally a sense of loss and grief, and I don't mean to trivialize that in any way. At the same time, they're very much in the mode that the earth has moved; the court has ruled what it has ruled. This is not a time to say, fold your arms and be resistant. We're not doing it. That won't work.

So right from the outset, an awful lot of our discussion with the province was to say, okay, fine, we're stuck with this. The federal government didn't do this. We didn't go in and advocate taking on this role. The province didn't advocate moving it away, but this is what the court gave us to work with. And the response from the two bureaucracies and the leadership has been to say, okay, these are the new rules of the game; let's figure out how to work within them.

We have encountered very few problems in the discussions around how to make that happen, and to the extent that we have, they've been largely around logistical problems: how are we going to do this, this, and this?

But to give you an example of just how things are working, we're right down to the stage where the province has vessels and vehicles that they're no longer going to need, and we're working on arrangements to just transfer...more or less at cost, if that. It's that level of collaboration that's there. We're determined to make this work, and the province has just been there right from the beginning.

I was going to say I apologize if I make this sound too good. That's a bad way to put it. I just have to report, in all honesty, that things have been really good in terms of the relationship with them, and I think it will be going forward.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Swerdfager.

Mr. Donnelly.

[Fin Donnelly, NDP, New Westminster—Coquitlam, BC]

Thank you, Mr. Chair.

It's good to see you, Mr. Swerdfager.

I believe you mentioned that no new sites will be approved. I'm wondering if you could just elaborate a little about why that is.

[Trevor Swerdfager]

No new sites will be approved as part of the transition to the federal authority. If there are new site applications in the process now, which there are--there are seven--those will not just simply be approved as a movement into the federal system. So the province has stopped the adjudication process for those seven new licence applications.

If the people who have submitted their application for a new site under the existing regime wish to do so in the future, under the federal regime, obviously they're welcome to do that. But that process, if you will, will not just simply continue along. So there will be no increase in the number of licensed sites via simply the transition process itself.