Fisheries Committee on Nov. 20th, 2012

[Kevin Stringer]

I can speak to the science issue. I'll ask my colleague, Mr. Balfour, to speak to the habitat staff issue.

There have been significant investments in science. You're right about the reductions our department has taken, like all other departments. In terms of our science, cuts are always a challenge. We believe that we can meet the requirements we need to with this legislation with the resources we have.

I'd also point to the fact that we have broadened our area of responsibility with Bill C-38 to aquatic invasive species. We've made a specific investment in aquatic invasive species over the last decade, and in the last budget in particular, for Asian carp in the Great Lakes. There have been other investments in science in recent years as well, under the EAP program, for a number of the labs and in a number of other different types of programs, such as oceanography, arctic science, climate change, etc. So there have been substantive investments.

The reductions you're talking about are a challenge for all of us to manage. Our job is to make sure that we're linking the legislation with the resources we have. We believe we can do it in science.

I will ask David to speak to the habitat program.

[David Balfour, Senior Assistant Deputy Minister, Ecosystems and Fisheries Management Sector, Department of Fisheries and Oceans]

We have first about 15 years of data in our information systems that give us a very good appreciation of the kinds of projects, locations, and circumstances that would cause what we call a HADD, or a harmful alteration or destruction of fish habitat. We have a good sense, and that's all based on science, around what kinds of projects would have caused a HADD. We are now in the process of transition, as Kevin has pointed out, to a world where we need to be looking at impacts and serious harm to ongoing productivity for commercial, recreational, or aboriginal fisheries.

One of the key steps for us in that transition is to have the science foundation to develop the definitions that would then guide the application of this legislation by the department staff in considering proposals that come from proponents. That's the focus we have currently, to provide that rigorous, science-based guidance to staff, which will also involve, as Mr. Stringer has pointed out, a comprehensive engagement and discussion with all interests, stakeholders and proponents, in terms of arriving at that. That will then inform the regulations that Kevin has also referred to, which is a key area of focus for us in moving towards initial implementation of the new provisions and being able to be clear with a project proponent on what we would expect to see from them in the documentation that would be provided to the department for our assessment—to see if there is serious harm to the ongoing productivity of a commercial, recreational, or aboriginal fishery, to be positioned to provide a response and a determination within the prescribed timelines that the other regulation is going to establish, so that we have a commitment to when we would have to get back to proponents and so on.

That's the stage we're at. It's going to be a science-based process with a lot of engagement, a lot of discussion about how we will formulate that framework and the specific direction we would be providing to staff, as well as the guidance we provide to project proponents and so on.

[The Chair, Conservative, Rodney Weston]

Thank you very much.

Mr. Sopuck.

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

Thank you.

Just before I ask my questions, I'd like to counteract what Mr. Chisholm said. I'm glad, Mr. Stringer, that you brought up the extra funding for scientific programs to deal with the looming Asian carp threat. I should also point out that the government has made major research investments in Lake Winnipeg. I would point out that the Lake Winnipeg watershed extends all the way to Alberta. One can see some major scientific work going on in that huge part of Canada, and it will have direct and specific results for one of Canada's major lakes.

My first question deals with clause 177, the transitional provisions. I also sit on the environment committee, and we were reviewing the Canadian Environmental Assessment Act amendments. They had a similar transitional clause. I asked one of the senior staff people whether what CEAA had in it in terms of the transitional arrangements was identical to the new Fisheries Act clause 177.

Have you had discussions with your counterparts in Environment? This is important, because a project proponent would be governed by both acts. If they were different transitional paragraphs, clauses, how would they deal with that?

Are they congruent?

[Kevin Stringer]

We have had discussions with CEAA. I believe they're not exactly the same, though I stand to be corrected on that.

They are different pieces of legislation. We are trying to do as much as possible as a streamline—one project, one review. The transition is a one-time thing. We actually don't anticipate that we're going to get a lot of business. I'm not sure if CEAA does. I don't think they anticipate it either. But we have been in touch. We want to make sure that we both have transitional provisions, and we've designed it to meet our separate needs.

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

To follow up on some of Mr. Allen's questions and comments on the killing of fish by means other than fishing, as you know, many fisheries enhancement programs require the killing of fish by means other than fishing. I'm talking about using rotenone to eradicate invasive species, perch in trout lakes, for example. It's a well-accepted management tool.

Will the new clause under the Fisheries Act affect those kinds of programs, or will they still be allowed to occur?

[Kevin Stringer]

I'd say two things. One is that it doesn't change with respect to that, but the other thing is that there's now a specific piece that was passed in Bill C-38 that enables us to address aquatic invasive species writ large. It gives us the authority to make regulations to ban the sale, transport, and import, but also to enable the eradication. So there's now a specific enabling piece for regulation to look at that.

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

In a previous life I was president of a local fisheries enhancement group that actively managed small lakes for trophy trout. One of the problems is that perch can somehow get into these lakes. They're not an invasive species; they're a native species to the area, but you know how fish can move between lakes sometimes during high-water years and so on. So the poisoning out, if I can use that phrase, of a trout lake that has been infested by a native fish, in this case the perch, would still be allowed, right?

[Kevin Stringer]

Nothing has changed in that regard. The only thing I would point to, which may enable what you're talking about a little more than what we have, is that the whole purpose is to manage fisheries. The focus is on the ongoing productivity of commercial, recreational, and aboriginal fisheries. We'll take appropriate actions; it's not just the prohibition. Section 35 is only one piece of this. We've got partnerships. We've got other items. I talked about the aquatic invasive species. There are all kinds of provisions. We now do have a clear purpose, which seems intuitive, but it's about protecting fisheries and the sustainable development and ongoing productivity of those fisheries.

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

In terms of productivity, many fish enhancement programs seek to elevate the productivity of fisheries: liming of streams in the east coast, potentially even fertilizing lakes that are dystrophic, increasing the nutrients to improve fishing. In some cases, in prairie Canada, dams have been built—major alterations of fish habitat, but major increases in fish production.

This doesn't freeze productivity at what can be considered the natural level. It allows for enhancement programs to improve productivity.

[Kevin Stringer]

Some of the science work, present and past, speaks to ongoing productivity. Ongoing productivity is not a specific number that you stick at. It goes up; it goes down. It's a matter of whether it's recoverable and supportable, etc. Certainly it is a broader term than a strict definition of ongoing at a certain level.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Sopuck.

Mr. Donnelly.

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

Thank you, Mr. Chair. Thank you to our guests.

In terms of consultation with first nations, I'm wondering if it would be wise to amend clause 175 to note that the minister must consult with first nations in determining which fisheries fall within the definition of aboriginal.

[Kevin Stringer]

That would be a decision of Parliament. Our sense is that consultation requirements are consultation requirements.

With respect to defining exactly where an aboriginal fishery is, we think there's sufficient definition in there. The relationship with specific first nations and aboriginal groups will be important. We have arrangements with, I believe, over 300 first nations and aboriginal groups across the country that speak to where they can fish, agreements between ourselves and the first nations about fishing. So we think we have sufficient guidance for that. That said, it will be a challenge, and we will have to engage.

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

I think so.

In terms of the legal implications of subjective terms like “serious harm”, I'm wondering if you can comment on what you feel the legal implications could be with terms like that, which are essentially so broad or vague they will give courts a difficult time in determining what exactly is serious harm.

[Kevin Stringer]

We hope there's sufficient guidance in the legislation that there won't be a difficult time in that regard. Serious harm is defined in section 2 of the Fisheries Act. It's the permanent alteration or destruction of habitat or the death of the fish, so it's pretty clear in terms of that. That said, there are scientific definitions for “permanent alteration”, as I said. So part of the science work, part of the policy work, part of the regulations will.... We have the authority now to do regulations to give further definition to those issues. That may be a challenge. We will be able to use those tools when we think we need to, to be able to provide further definition.

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

Just to clarify, if a pollutant enters the water course where fish live, for fishery-defined fish, and it seriously maims them—in other words, if they get sick and go belly up but they don't die—that's still acceptable under the law?

[Kevin Stringer]

I think I did mention that this time it is complex, but the reality is, in terms of pollutants—

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

So you're saying that the definition is if they die, then that's clear. But what if they don't die?

[Kevin Stringer]

We'll use a different example, because pollutants, as used in section 36, don't apply to this at all. The same rule under section 36, that you can't put deleterious substances into the water, period, unless the minister authorizes it, is still in effect. So pollutants are separate from this entire regime. The sense was and is that you can't localize pollutants. They seep, they flow, they get into the stream, etc. The pollutants piece does not focus on fisheries. It focuses on any fish-bearing waters, which is basically all waters.

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

You feel there is enough clarity for courts under the definition of serious harm?

[Kevin Stringer]

We do. Some of the science and policy work is going to have to flesh that out. As I said, there is serious harm, permanent alteration, and destruction of habitat. We have a good understanding of what destruction of habitat is. The courts have helped to define it over the years. In the case of permanent alteration, there is an FAO definition, and the science folks are working on a specific application of it. Death of the fish is quite clear.

So there are some policy and regulatory issues that we still need to define in that regard, but we do think there is sufficient direction in the legislation to be able to get going on this.

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

The Cohen commission, in terms of consultation, heard from dozens and dozens of witnesses, and obviously there was some very interesting testimony. Was any of that testimony considered in terms of these sections or essentially the changes to the Fisheries Act?

[Kevin Stringer]

I would say that in terms of the input we received—and we provided some of it to the clerk I think yesterday. We provided some documents, which is only some of what we heard. We've gotten all kinds of letters. We've heard over the years from the same people the Cohen commission heard from, and we have heard very similar views. Certainly those views have come to this department and have been considered and incorporated moving forward. You'll know from reviewing it that there are very different views from different stakeholders, and those are what we've had to contend with.

So the issues that were raised at Cohen are very much the issues that we've heard about as well.

[The Chair, Conservative, Rodney Weston]

Excuse me, Mr. Donnelly. Your time is up.

Ms. Davidson.