Fisheries Committee on Nov. 6th, 2012

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

As you know, I've been a strong advocate of the use of productivity as opposed to habitat alone. In the impoundment examples that I gave—they occur right across the country—we see these impoundments that result in massive increases in fish production. So I applaud the department for its emphasis on fish production, because after all, what we're all about is fish.

I wouldn't recommend that every river be dammed, by any means, in order to create more fish. Nevertheless, in certain circumstances we can have our fish and eat it too. We can have a dam that provides all kinds of benefits for communities and our country, and at the same time create new fisheries where none existed before. So I think the department's on the right track here.

Thank you.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Sopuck.

Mr. MacAulay.

[Lawrence MacAulay, Liberal, Cardigan, PE]

Thank you, Mr. Chair.

Welcome.

Regarding Bill C-38, would you agree that it was done a bit too quickly? You had to come back and change the aboriginal fishery and the obstruction of the fisheries path.

And if you do agree, or do not agree, how much time was put in? Was it recommended by the department? How much time did the minister give you?

[Kevin Stringer]

You know, generally there's never enough time for all these things. That said, as you will know, and other members will know, we've had a number of attempts to change the Fisheries Act in the past. We had Bill C-32, and we had a previous Bill C-45, which had a number of these changes—not all of these changes, by any means.

I would also say that we've had a number of reports—internal reports, Auditor General reports—that have said we needed to look at what was called “habitat regime”. We would now call it “fisheries protection regime”.

We've done that. We had engagement and consultation with conservation groups, with industry groups, and with provinces to look at that regime. We thought we were going to change the policy, and then the advice was that we should be changing the legislation.

We've been in a constant state of readiness to adjust these things. Those previous bills did not recommend changing the habitat provisions and the fisheries protection provisions exactly as this was. But that said, it's always better to have more time rather than less.

[Lawrence MacAulay, Liberal, Cardigan, PE]

Thank you very much. Of course, generally there's not enough time.

The change is obstruction to the passage of fish: could this cause serious harm? If it does cause serious harm to the fish, who authorizes it? What is involved in order to obtain an authorization to do this?

[Kevin Stringer]

Thanks for the question. The main prohibition is section 35. Section 35 says you can't have a work, undertaking, or activity that causes serious harm to fish that is part of a commercial, recreational, or aboriginal fishery or to fish that supports such a fishery.

[Lawrence MacAulay, Liberal, Cardigan, PE]

Sir, but previously you could not kill a fish. Am I right or wrong?

[Kevin Stringer]

Yes, that's correct. That's still the case under section 35, because if you look at the definition of serious harm, which is in section 2, serious harm to fish is defined as the death of the fish or the permanent alteration or destruction of habitat. So you can't kill a fish without the minister's authorization.

However, this is applied based on some principles or some factors that are outlined in section 6. Section 6 says you will apply the prohibition, the section 35 prohibition, based on the ongoing productivity of the fishery, the contribution of these fish to the ongoing productivity of the fishery.

So what you would say in this instance, or in an instance such as I believe you are raising, is, look, this is killing a few fish, but it's not affecting the fishery, so it's okay to go ahead—or, it's killing a few fish, that's actually a very significant species at risk, not many of those fish are around, and therefore you're not authorized to do it.

So there's now clear direction in section 6 about how to apply that prohibition with respect to killing of fish. There are other directions in addition to productivity. One is the fisheries management objectives; another is asking if there are ways to offset, mitigate, or avoid that harm; and the other is the public interest.

[Lawrence MacAulay, Liberal, Cardigan, PE]

With this new legislation, you're telling me that the minister can authorize, in a limited form, the killing of fish.

[Kevin Stringer]

As he could under the previous regime; he could authorize it under section 32. Section 32 says you can't kill fish by means other than fishing unless the minister authorizes it.

The new section 35 says basically the same thing, but it's broader. You can't do these things unless the minister authorizes it.

[Lawrence MacAulay, Liberal, Cardigan, PE]

Regarding the definition of “aboriginal” fishery, how many groups have you met? Can you inform the committee on what groups you have met?

[Kevin Stringer]

During the discussions on Bill C-38 and since that time, we've had a number of calls with a large number of aboriginal groups. The national aboriginal groups we've spoken to. The land claims agreements groups we've spoken to. Some of the regional groups we've spoken to.

We have not met with 638 first nations in the country, but we have spoken as much as we can to some of those groups.

[Lawrence MacAulay, Liberal, Cardigan, PE]

But can you say that they had input, or were they were spoken to? Just for a matter of clarification, were they informed that this was going to take place? Were they involved in putting this in place? Were the recommendations looked at, or were they called and told?

You indicated that you contacted: does contact mean that they were called and told that this would take place?

[Kevin Stringer]

We were talking about the new Fisheries Act and how it's going to work. That's really what it was. We did not have consultations about “What do you think of the amendments, and do you want us to change it?”

[Lawrence MacAulay, Liberal, Cardigan, PE]

That's unfortunate.

Can you tell me what the environmental damages fund covered previously? Can you give me examples of something that it did? Of course, it would involve whatever money the government puts in plus the fines that are put in place. Just give me a little view.

[Kevin Stringer]

It acts like CEPA, the Canadian Environmental Protection Act. Penalties under CEPA go to the environmental damages fund and then get applied to projects that are related to environmental protection. There are also funds, I believe, from the Canadian Wildlife Act that go to it. Most of the environmental legislation has the funds from the penalties go to the environmental damages fund.

The Fisheries Act was not included. The Environmental Enforcement Act, which was passed in 2009, required that funds for most of the different environmental pieces of legislation go to the environmental damages fund. The Fisheries Act was not included in that because the Fisheries Act was proceeding at the same time in the House but it never got passed. Now we're picking that up so that it's now consistent with other legislation under the Environmental Enforcement Act.

[The Chair, Conservative, Rodney Weston]

Mr. MacAulay, your time is up.

[Lawrence MacAulay, Liberal, Cardigan, PE]

Thank you, Mr. Chair.

[The Chair, Conservative, Rodney Weston]

We'll now move to our next round. This will be a two-minute round. I'm going to ask that you try to adhere very closely to the timeframe so that we can get in as many questions as possible.

We can go less, if you want....

[Voices]

Oh, oh!

[A voice]

What a chairman.

[The Chair, Conservative, Rodney Weston]

Anyhow, it will be a two-minute round, so please try to keep your questions as brief as possible to ensure that you can get answers to your questions.

Mr. Toone, you'll lead off.

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

Thank you.

Very quickly, then, thank you for your presentations.

I want to investigate further the idea of consultation with first nations, consultation in general. I'm interested that you've heard from stakeholders from Bill C-38 onwards, but we've never actually had a formal consultation process. I think we had a total of 16 hours of debate.

The first nations tell us that they haven't been consulted. Consultation actually has a definition, right? It's been defined in court decisions: in 2004, Haida versus British Columbia; in 2005, the Mikisew Cree; the Marshall decision on non-status Indians. It's been clearly defined. It's not just picking up the phone and saying “Hi, we're changing the laws.”

What is the quality of this consultation, and if it doesn't meet the criteria of the Supreme Court, what are you doing to make sure that you meet those criteria?

[Kevin Stringer]

I don't think I can comment on whether what we've done would constitute consultation. There's a view that virtually everything you do can contribute to consultation.

We have talked to aboriginal groups. We have not had an extensive engagement process with the 638 first nations—or 641, whatever the number is. We have talked to the national groups. What we've talked to them about is the implementation of Bill C-38: here's what the bill says, here's what the act says, here's how we're preparing for implementation.

They understand, I believe, that there's a regulatory process that will come that requires formal consultation. That's how we have proceeded. But it has not been at a detailed level.

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

The duty to consult is in fact, if I continue the phrase, the duty to consult and accommodate. The reason for that is to ensure that especially, as you yourself pointed out, future treaty negotiations, and ongoing treaty negotiations right now, will not be unduly affected.

In order to ensure that there's fair dealing in this country, the duty to consult and accommodate has been brought forward to the Supreme Court on many occasions. What I'm hearing from you is that I think DFO is not actually meeting its obligations under the court decisions of the Supreme Court. So how is it that DFO is actually going to meet the legal requirement, as set out by the Supreme Court of Canada, to properly consult and accommodate first nations and to make sure that our treaty negotiations will not be brought forward again to the courts of Canada?