Fisheries Committee on Nov. 20th, 2012

[The Chair, Conservative, Rodney Weston]

I call this meeting to order.

I'd like to thank the officials from DFO for joining us once again. I appreciate your cooperation to meet us this morning earlier than our usual meeting time.

Mr. Stringer, I'll turn the floor over to you for some opening remarks.

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

I'll make just very brief remarks.

I want to introduce my colleagues. France Pégeot is the senior assistant deputy minister for strategic policy. David Balfour is the senior assistant deputy minister for ecosystems and fisheries management. Geoffrey Bickert is the senior general counsel for the Department of Justice at DFO. And I'm Kevin Stringer, the assistant deputy minister for ecosystems and oceans science.

We are very pleased to be here to answer further questions on Bill C-45. I understand that we have provided some information that you had requested last time. We have provided that to the clerk.

I'm happy to speak to that, happy to answer further questions. We understand you've had further discussions and further considerations. We're very pleased to be here to answer further questions on Bill C-45.

[The Chair, Conservative, Rodney Weston]

Thank you very much, Mr. Stringer.

Certainly we'll head right into questions. As you indicated, we did have the opportunity to meet with you earlier on this subject matter, and some questions came up following our meetings with other witnesses as well.

We'll move right into questions, with Mr. Kamp leading off.

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

Thank you, Mr. Chair.

Thank you to all for being here just to clarify a few things for us.

Let me begin with probably the one that was most unclear to us, I think, and that was the question of using the term “land claims agreement” to I think subsume everything in addition to food, social, and ceremonial purposes.

With section 35 of the Constitution Act using the term “treaty”, and the Fisheries Act not using the term “treaty”, there was some concern that some fisheries may not be included under the new definition of aboriginal fisheries in the proposed amendment.

For example, if there's a treaty that doesn't cede land, as such—for example, the peace and friendship treaties on the east coast—would that be covered under the definition of aboriginal fishery that's being proposed, or would, perhaps, some of the numbered treaties—Treaty 6, which refers to fisheries, and Treaty 8, for example?

Can you give us some further information that helps us understand that the proposed definition will not miss some aboriginal fisheries?

[Kevin Stringer]

Thanks for the question.

I did indicate, I believe last time when we were here, that land claims includes treaties. I just want to give one clarification and then some comments on that.

First, land claims includes modern treaties. I will use some examples that I walk through in terms of the specific types of treaties. Those are the treaties where some specific types of fisheries are indicated.

I'd also add that the objective of the Fisheries Act is to protect fisheries. The fisheries protection section speaks to what fisheries we're going to be protecting. Aboriginal and treaty rights we need to respect regardless of what's in the Fisheries Act. We will do that with respect to modern and historic treaty. We always seek to respect aboriginal and treaty rights to fishing.

The definitions, which I talked about a little bit last time, in the Fisheries Act and Bill C-38, and indeed in Bill C-45, speak to fisheries that we're going to protect. Commercial with respect to fishing is defined. Recreational with respect to fishing is defined. We know that doesn't cover all of the fisheries that we wish to protect. We know that there are some other fisheries that are described as food, social, and ceremonial fisheries. We know that there are some other fisheries that are described in land claims. So that's what we sought to do. The word “subsistence” was used previously, because that is in land claims, and there are specific fisheries.

With respect to aboriginal and treaty rights, we always seek to respect aboriginal and treaty rights regardless of how they're defined, going forward.

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

My understanding, then, that the involvement of aboriginal groups in fishing—through, say, some old historic treaties that may not be specifically land claims agreements—is not protected by this definition in the Fisheries Act, but by other means.

[Kevin Stringer]

If there's a right to fishing that's basically an aboriginal or a treaty right, it must be respected regardless of what's in the Fisheries Act. We're not seeking to protect aboriginal rights with this legislation; those are protected by the Constitution. We always seek to respect those aboriginal and treaty rights. The Fisheries Act identifies the fisheries we will protect.

You raised the example of moderate livelihood and the peace and friendship treaties. That would be potentially covered off. If it's commercial fishing, that's covered in commercial, with respect to fisheries. If it's recreational fishing, that's covered in recreational, with respect to fishing. If it's food, social, and ceremonial, whichever piece of it is in there, that would be covered off by those elements.

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

Your view that a fishing right is protected by constitutional obligations, for example...it provides the same kind of protection as protecting a fishery, with its responsibility to protect the habitat and so on, that's in the Fisheries Act?

[Kevin Stringer]

Yes. When you're talking about protecting an aboriginal treaty right to fish, that would presumably include everything around the ability to fish, which I would say is fairly broad.

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

Okay.

I would like to move to one final issue that was raised by the AFN and the Atlantic Salmon Federation. By these definitions, and this new definition, for example, if there's a fishery that's not being fished at the moment—maybe it's under rebuilding or maybe it's in the future at some point, and it would seem to be a good idea to protect something that's under rebuilding. Is it your view that these definitions will do that for an aboriginal fishery, a recreational fishery, or a commercial fishery?

[Kevin Stringer]

That's something that needs to be defined and clarified. We're actually working on it. I can tell you what the thinking is at this time, and we've talked to stakeholders about it. The overall idea with respect to the fisheries protection provisions in the Fisheries Act is to protect fisheries. An example has come up: cod. In cod, there is a fishery in some areas, but it's been closed in other areas. We would want to ensure that we're able to protect those areas and that part of the fishery while it's officially undergoing a rebuilding exercise. The objective is to try to catch that.

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

Thank you very much.

[The Chair, Conservative, Rodney Weston]

Mr. Chisholm.

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

Thank you, Mr. Chairman, and thank you very much to our guests for coming by and helping us clarify some of the issues in the time we have.

I wanted to follow up on Mr. Kamp's question. It goes to that definition that using fish for food, social, or ceremonial purposes or for purposes set out in land claims agreements entered into with aboriginal organizations really seems to add a whole level of confusion. There is a problem in terms of the clarity of definition as it relates to, as Mr. Kamp has said, other agreements that do not refer to land claims, do not cede rights, or do not spell out those questions. The peace and friendship treaties on the east coast are a good example, but there are others.

I'm concerned, maybe more so, by some of the explanation that you've given us that there will continue to be problems with how this gets defined in the future. There has been very little effort to work with the AFN, and they would be the most appropriate organization to begin that high-level discussion. There hasn't been any effort to have that kind of intense discussion to clarify some of that. The result, of course, is that when it needs to be interpreted, it will end up having to be interpreted in the courts. Would you comment?

[Kevin Stringer]

First, I understand the AFN provided some testimony, and as I indicated, we have had some meetings with them. They indicated they wanted to have more, so I certainly recognize that.

Part of the discussion with the AFN, and I think it needs to continue, is to clarify what the purpose of the definition of “aboriginal” is with respect to fishing. I'll say here—and we've said it there and we need to continue to say it—that aboriginal with respect to fishing...that definition in the Fisheries Act is not meant to refer to all fishing by aboriginals. It's not meant to refer to protecting rights or treaty rights. It's not meant to do that; it's meant to cover something that is not covered in commercial and recreational fisheries in those definitions. What we think is not covered in terms of the fisheries that we're seeking to protect is food, social, and ceremonial, and other items identified in the land claims.

It is a complex matter, you're absolutely right, and as evidenced by our discussions with the AFN and others, we'll have to continue to have those discussions. That said, our view is that it is clear in terms of what we're seeking to cover, and it's a matter of communications and clarity and working with people to ensure that there's a full understanding.

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

You may have noted in the testimony of the AFN officials when they were here that they referenced some documents they were hoping to receive from the Department of Fisheries and Oceans. The last correspondence we've seen indicated that had not been clarified. I want to move on to another question, but perhaps you could comment on that release of information.

[Kevin Stringer]

We did see that. It has taken time to get documents out. When we meet with groups, the most useful document we refer to is the Fisheries Act proposed changes. There's a document that has all the changes that have been passed and are in effect, and then at the back it has the changes that have been passed but are not yet in force. So we've been using that document.

That said, they referred to a three-pager that they said they hadn't got. It's on our website.

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

Thank you.

I want to move to what Mr. Taylor from the Atlantic Salmon Federation had to say in his testimony. He was concerned, as you may have noted, about the regulatory changes that are expected to come into force in January and the fact that there haven't been the kinds of consultations that would have been expected. He said in particular that in order to properly engage in cost savings, etc., they needed access to the reports of the Canadian Science Advisory Secretariat. He referred to the fact that he understood that DFO officials were meeting with the provinces for the purpose of developing scientific data to guide the amendments.

Will you make that information with respect to the Canadian Science Advisory Secretariat available, and any other scientific data with respect to the implementation of these amendments, or as it relates to guiding the amendments?

Second, there's been some indication that the January 1 deadline is somewhat aspirational, although there's been nothing clearly said. People are afraid that on January 1, bang, it's going to hit the table and it's done. ASF specifically asked that the reference in the order in council be changed from January 1 to June in order to allow for proper consultation.

I wonder if you could respond, please, to those comments.

[Kevin Stringer]

I'll start with the latter.

We have heard from a number of stakeholders who are concerned about the looming January 1 date. I think I was clear last time. You're right when you say “aspirational”. That's an appropriate term. The relevant sections—the transformative sections—come into force when the GIC, when the Governor in Council, when cabinet, determines by order in council that they come into force.

An aspirational objective was to have as short a transformational period as possible, to have as little uncertainty out there for proponents and players as possible, and the thought was to aim for six months. As we've been going through this process, we have certainly been hearing from ASF, but also from others, including AFN, that are in there. We've talked to a number of groups, and what we have often heard is that they need more time to digest it; they need more time to think about it.

So in the coming days and weeks, we need to come to ground in terms of whether we do want to aim for January 1 or aim for a later date, and we need to determine what that later date might be. That is under active consideration, and certainly the views that we're hearing are the views that you're hearing. I would say it's really about weighing the challenges of the ongoing uncertainty—and there are proponents out there who are not willing to come in with proposals because they're not sure about what the new regime is going to be—but also about making sure that stakeholders, proponents, and others have a sufficient understanding of the new regime and are able to weigh in regarding how we're going to apply it. That is actually being weighed. January 1 has been an aspirational piece. We absolutely want to be practical but efficient about getting it into place as soon as we can or at an appropriate time.

The other thing I would say about ongoing engagement—and I will get to the CSAS question—is that for implementation, whether it's January 1 or some other day, we need sufficient direction and sufficient training for our staff on how to apply this. That's number one. Number two is that we need sufficient guidance for proponents to come in with what they need for a proposal.

There are two regulations that we were hoping to have in place, and it would take some time to get those done. One is on information requirements for an authorization request. The other is on timelines that we will take. That will require public engagement, and that is something that would be useful to have in early days. Then there is going to be a suite of regulations and policies that will have to follow up the implementation of this. In my view, if regulations require it, there will have to be a broader engagement process with stakeholders and the public. We need to get sufficient guidance for staff and for proponents.

Regarding CSAS and the science information that we have been working on, as soon as it looked as though this was going to be passed, we did sit down with a science group and a policy and program group to say that however we implement this, it has to be based on sound science. That needs to be the foundation. We need to have a scientific definition and understanding of ongoing productivity. We need to have a scientific basis for determining how a fish contributes to the ongoing productivity of a fishery. We need a scientific foundation for how we determine which fish contribute to the ongoing productivity of a fishery, etc. That work has been ongoing, and that will have to be shared at some point with stakeholders, certainly as we come out. That's part of the guidance to our staff, but also to proponents and stakeholders going forward. It continues to be worked on, and it's a question of when it is released and what exactly is released. Certainly it's foundational material. We have talked about it with stakeholders, but we haven't yet provided documentation.

[The Chair, Conservative, Rodney Weston]

Thank you very much, Mr. Stringer.

Mr. Allen.

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

Thank you very much, Mr. Chair.

Thank you to our witnesses for being here today.

Mr. Stringer, I just want to pick up a little bit on that line of questioning on the consultation side. Obviously, from your testimony, it sounds to me as though January 1 is very aspirational with respect to getting this all in. Are you coming up with a game plan as to how these consultations will be done? It sounds to me as though it's going to take a while to do this, based on the need to give guidance to your departmental staff. I'd just like to understand how that plan is going to be developed, when that plan is going to be developed, and whether that will be the piece that will determine your recommendation to Governor in Council regarding the timing for these regulations.

[Kevin Stringer]

It is, and it's under development now.

One option is what you just spoke to: the regulations. It's to use the regulatory process for the first two regulations, which would take a few months, but those first two regulations on what's required for an authorization request and the timelines we will take is one option.

I think we've provided a list of people we've spoken to. In some cases it was a conference call providing information. In other cases it was a more detailed description of what's in the legislative piece. How much time we have will determine how much engagement we're doing.

As I said, regardless of when it comes into effect, there is an enormous amount of engagement that needs to take place to develop new policy, to develop new regulations, and that's likely to take place over the next couple of years. It's a question of at what point the legislation actually comes into force so that we can start operating with it.

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

Following on that question, when they were here, the Assembly of First Nations also talked about the challenges sometimes of a case-by-case approach with the various first nations, because they all have something that is a little bit different and there are nuances among them all.

Is there going to be an overall framework approach for that, or a template to reach some equitable agreements?

[Kevin Stringer]

There certainly will be an overall framework with respect to that. With respect to aboriginal policy and governance, in our department there is a framework; there is an overall approach.

That said, aboriginal treaty rights are site and group specific. There are sometimes different rights for different groups. As AFN has told us—and I'm sure it is generally said—the rights holder is the local group, and that's who we have to end up negotiating with and coming to agreements with.

So yes, there is an overall framework, and yes, there is an overall template, and there will be for this new regime, but there are also specific arrangements with specific groups.

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

I want to ask you a question about clause 173. When the Assembly of First Nations was here, one of the comments was that certain first nations fisheries require weirs that extend across entire rivers, and these weirs have mechanisms to allow for fish passage upstream. It makes me wonder, on the exemption of these, are there current aboriginal fisheries that are permitted to engage in that practice? Quite frankly, is that not counter to conservation goals when you have something that severely restricts a river like that, as well as navigable waters?