Fisheries Committee on Nov. 6th, 2012

[The Chair, Conservative, Rodney Weston]

I call this meeting to order.

I'd like to thank the officials from DFO for joining us today. As per the orders of the day, pursuant to Standing Order 108(2), we are studying the subject matter of clauses 173 to 178 of Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.

Mr. MacAulay.

[Lawrence MacAulay, Liberal, Cardigan, PE]

Mr. Chair, I'd like to move my motion and deal with it first before we get into dealing with the department, if that's acceptable to the committee.

[The Chair, Conservative, Rodney Weston]

Mr. MacAulay has provided proper notice of motion to the clerk, and as per the standing rules of this committee, once proper notice of motion has been....

Do you want to do that first, Mr. MacAulay, or do you want to wait until—

[Lawrence MacAulay, Liberal, Cardigan, PE]

It will only take a couple of minutes. I'd like to do it first.

[The Chair, Conservative, Rodney Weston]

Okay.

I'll ask the clerk to distribute copies of Mr. MacAulay's motion.

It's been moved by Mr. MacAulay:

That the Committee immediately begin a study of the Cohen Report made public on October 31, 2012, and that the first witness be the Honourable Bruce Cohen, Commissioner.

Mr. Woodworth, do you have a point of order?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Yes, I suppose you could call it a point of order.

Just pursuant to our usual practices, I move that we suspend and go in camera in order to consider a motion that has to do with future committee business.

[The Chair, Conservative, Rodney Weston]

Thank you.

It's been moved by Mr. Woodworth that this committee proceed in camera to consider the motion of Mr. MacAulay.

Those in favour?

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

I'd like a recorded vote.

[The Chair, Conservative, Rodney Weston]

We'll have a recorded vote on the motion to go in camera.

(Motion agreed to: yeas 6; nays 5)

[Proceedings continue in camera]

[Public proceedings resume]

[The Chair, Conservative, Rodney Weston]

I call this meeting back to order. As I was saying earlier, this committee is convened today for the study of the subject matter of clauses 173 to 178 of Bill C-45.

I want to welcome our guests today. We have officials from the Department of Fisheries and Oceans.

Mr. Stringer, I believe you are going to lead. I would ask you at this point in time for any opening comments you might have. If you want to introduce your associates with you here as well, that would be terrific.

Thank you very much. The floor is yours, Mr. Stringer.

[Kevin Stringer, Assistant Deputy Minister, Ecosystems and Oceans Science Sector, Department of Fisheries and Oceans]

Thanks very much.

We have very brief remarks to start. I am joined today by David Balfour, who is the senior assistant deputy minister for ecosystems and fisheries management, and by France Pégeot, who is a senior assistant deputy minister for strategic policy. I, the thorn between two roses, am Kevin Stringer, the assistant deputy minister for ecosystems and oceans science.

We have a few opening remarks, and then we will be happy to answer any questions you may have with respect to the proposed changes to the Fisheries Act that are included in this bill. These proposed amendments are pursuant to the Fisheries Act amendments that were made in the former Bill C-38, the Jobs, Growth and Long-term Prosperity Act, which was passed in June.

Specifically, the proposed amendments in Bill C-45 are very targeted and focused. There are very few of them. For the most part, they are to provide greater legal clarity and more legal certainty regarding some of the Fisheries Act amendments that were approved in June.

The former Bill C-38, therefore, is the context for this act. You will recall that the original amendments to the Fisheries Act provided in that bill provided for a regime that focuses on protecting Canada's commercial, recreational, and aboriginal fisheries—a regime that provides protection from serious harm to those fisheries, which would impact on their ongoing productivity; a regime that addresses managing threats to those fisheries, from challenges to habitat to aquatic invasive species and other threats; a regime that provides enhanced tools for compliance and protection of those fisheries; a regime that enables partnerships with provinces, territories, conservations groups, and others, so that our work at DFO can be better aligned with their work to achieve better results in terms of overall fisheries protection for Canada.

The amendments in Bill C-45 for the most part seek to provide greater legal clarity and certainly with respect to a few of those elements that were in the previous bill. I should note that most of the significant changes that were included in the Fisheries Act amendments that were passed and adopted in June have not yet come into force. Some of them are in force, but the most significant ones—the focus on commercial, recreational, and aboriginal fisheries, the focus on serious harm, and the focus on ongoing productivity of fisheries—are not yet in force. It is proposed that should the further Fisheries Act amendments proposed in Bill C-45 be adopted, they would come into force at the same time that the previously approved amendments come into force.

This initiative amends the Fisheries Act and the Jobs, Growth and Long-Term Prosperity Act to provide legal clarity to previous amended sections and to provide a transitional authority for existing authorizations for harm to fish habitat.

For example, a provision is added to section 40 to direct all fines collected under section 40 of the Fisheries Act to the existing Environmental Damages Fund, to be used for proactive initiatives to further advance the protection of Canada's fisheries.

There is also a proposed amendment to the definition of “aboriginal” with respect to fisheries, which effectively replaces the term that was in Bill C-38, the term “subsistence”, with the term “purposes set out in a land claims agreement”. This will help to ensure that we are clearly capturing the responsibility to protect fisheries that are defined in current and future land claims agreements.

With respect to fish passage, it is proposed that sections 20 and 29 of the Fisheries Act be amended to provide greater clarity so that it's clear that the main prohibition in the Fisheries Act—section 35—applies to fish passage. It applies to barriers to fish, dams, etc.

There are also transitional provisions to clarify that if we provided an authorization under the previous act, that it continue under the current act, and there's an opportunity for people who are subject to the conditions of those authorizations to have that tested against the new prohibition requirements.

With that, that's a high-level overview of what the changes are, and we're happy to take any questions from the committee today.

[The Chair, Conservative, Rodney Weston]

Thank you very much, Mr. Stringer.

We'll start off with Mr. Kamp this morning.

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

Thank you, Mr. Chair.

I thank the officials for appearing before us to try to answer some of our questions.

Mr. Stringer, you've told us from a high level what the changes are. Can you tell us how these changes came about? You've said they have to do with the follow-up to changes that were previously made in June, in Bill C-38.

How did it come to your attention that there needed to be further clarity or certainty, as you said?

[Kevin Stringer]

I would say it depends on the section, but in different ways. We heard from stakeholders, both when Bill C-38 was going through the House in the spring and after it was passed; we heard virtually all of the sections asking questions.

Our view was that the act, as passed in Bill C-38, would address most of those issues, but it was pointed out that there was some legal uncertainty in a few of the sections. Those were pointed out by a number of stakeholders, by some aboriginal groups, some industry groups, some conservation groups.

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

So it's fair to say that all of these changes have to do with providing clarity to the changes that were made in the spring. None of them are substantive changes to the Fisheries Act as it was before.

[Kevin Stringer]

That's correct. The only addition I guess I would make is that the environmental damages fund is a new addition, although it, too, is in some ways a legal clarification. The courts already have the authority to direct that penalities go to the environmental damages fund. The adjustment suggests that all funds from penalties would go to the environmental damages fund.

So that would be somewhat of an exception in that regard.

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

Okay. Thank you for that.

My colleague Mr. Sopuck has a special interest in the environmental damages fund, so I'm going to leave all questions on that to him.

With respect to the change to the definition of aboriginal, can you give us a bit more information about why the word “subsistence”, on reflection, didn't appear to be adequate, or protecting all of the fisheries that needed to be protected?

[Kevin Stringer]

Thanks for the question. I'll start with why it was in there, why we included it. Then I'll explain why we think the proposed version in Bill C-45 is better.

When it was being decided what fisheries we wanted to ensure were protected, we wanted to ensure that we were protecting all fisheries that are fished by Canadians. That certainly includes commercial and recreational fisheries, regardless of whether they're fished by aboriginal groups or by others. But we knew that if we just said “commercial and recreational fisheries”, that wouldn't cover everything we wanted to protect. We wanted to make sure that we were protecting food, social, and ceremonial fisheries, but there are a number of land claims in place that have used the word “subsistence” fisheries, which is not necessarily covered by either “commercial and recreational” or “food, social, and ceremonial” fisheries.

So the language that was proposed and adopted in Bill C-38 said that we would be protecting food, social, and ceremonial fisheries and subsistence fisheries. That was specifically to pick up the land claims agreements that use the language “subsistence”.

It was pointed out that future land claims agreements may use different language from “subsistence”, so we wanted to make sure we were covering whatever is in a land claim agreement with respect to fisheries. As a result, we used the broader term of anything else that is in a land claim, as opposed to just “subsistence”, so taking the very specific piece...in addition to which there was some confusion about what “subsistence” fisheries might cover. We thought it would be clearer to say that it was anything in a land claim, and more broad with respect to what we were trying to protect.

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

Can you give us any examples of a fishery, perhaps, that would have been unprotected using the word “subsistence” that will be protected using this other phrase?

Related to that, can you tell us what the definition of land claims agreement...and how it relates to the term “treaty”, or to treaty arrangements included in land claims agreements?

[Kevin Stringer]

Treaty arrangements are included in land claims agreements.

Again, it does speak to a greater legal clarity and greater legal certainty that we're covering things. But there were some issues. I would use the example of the Nisga'a fishery. The Nisga'a fishery is unique. It's pursuant to the treaty arrangement that we have with the Nisga'a. The definition of commercial, with respect to a fishery, in the newly adopted Fisheries Act, says that it is a fishery that is harvested pursuant to a licence.

In the Nisga'a agreement, it's not absolutely clear that it's pursuant to a licence. But what is absolutely clear is that it is pursuant to a land claims agreement pursuant to a treaty. That's the sort of thing that we wanted to ensure that we're picking up and protecting in the new regime.

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

Okay.

Now to the changes to sections 20 and 29, I still find it a little bit confusing about what we did in Bill C-38 and what we're doing here now. I just wondered if you can give us a bit more help on that.

[Kevin Stringer]

First of all, sections 20 and 29 deal with fish passage. One of the threats to fisheries is ensuring that there is sufficient water flow, and sufficient ability for fish to get through obstacles. Sections 20 and 29 deal with fish passage.

In Bill C-38, there weren't substantive changes to the provisions that are currently in 20. There were a few. There was modernization. We took a number of sections that were in place before, 20, 22, 26, 27, and a couple of others, and combined them into section 20. Basically, though, it was a modernization of the fish passage provisions. There were a few provisions that hadn't been used since the twenties that were removed, but it was basically left intact.

It was pointed out by some stakeholders that the section 20 that was adopted by Parliament in June included a prohibition that basically said you can't put any obstacle in the water such that two-thirds or more of the watercourse is blocked. But there was no authorization scheme to be able to authorize that. We were saying, and have always said with respect to that provision, that it's the section 35 prohibition that applies in that regard.

Section 35 says that you can't have any undertaking, activity, or work that would cause serious harm to fish that are part of a commercial, recreational, or aboriginal fishery. Certainly if you're putting an obstacle in place, that is where that is triggered.

The concern that we heard from some stakeholders is that when you have that in section 35, you still have something that says you can't put any kind of obstacle that takes up at least two-thirds of the watercourse, and they were saying, “You know, you don't really have an authorization scheme”. We wanted to make it clear there's only one authorization scheme, so we removed that particular section.

We then put it into section 29 and made it a fish management piece, and in 29, basically, that's the section that our fish managers require to ensure that somebody doesn't put a net or a weir across an entire river and block. So we do have the ability to address the issues, and it's clear that our one prohibition is section 35.

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

Thank you.

[The Chair, Conservative, Rodney Weston]

Thank you very much.

Mr. Chisholm.

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

Thank you.

Mr. Stringer, Mr. Balfour, and Ms. Pégeot, it is a pleasure to have you here before our committee to discuss these amendments, but as your presentation discussed a great deal about Bill C-38, I would just say that in light of the enormous changes that were made to the Fisheries Act last spring, it's troubling beyond belief that this is the first time we see officials from DFO.

One of the constant refrains we have heard from witnesses, stakeholders—the few we did hear from—was their complaint that they hadn't been consulted. Had there been proper consulting and vetting of the various provisions and changes to provisions that came through, maybe you wouldn't be here again trying to make these changes.

While I appreciate the fact that you're trying to correct some of the problems that came up because of the way Bill C-38 was...and the Fisheries Act was changed, I know that a lot of other concerns raised by stakeholders haven't yet been addressed.

As you indicated, there were fairly significant amendments to, for example, section 35 of the Fisheries Act that have yet to come into force. The commitment made by the minister was that, before those changes came into effect, the regulations would be developed, and they would be developed through extensive consultation with stakeholders. Now, my understanding, from speaking with people across the country who are directly affected by these changes, is that there has not been that consultation.

I guess that would be my first question to you: when will this consultation commence, and is the January 1, 2013, deadline for those regulations to take effect still in place?