Fisheries Committee on June 12th, 2019

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Thank you.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Hardie.

We'll now go to the Conservative side and Mr. Arnold for five minutes or less, please.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Thank you, Mr. Chair.

I thank all of our witnesses for being here today.

Senator Wells, I seek a little bit of clarification.

Our committee studied the changes to the Fisheries Act back in 2016. There were statements by the minister that first nations were being consulted face to face and that we would receive input from those consultations for the completion of the study. Many times there were requests for extension of the study by the committee. The government simply voted down those extensions time and again when it was first nations, when it was we on this side who were asking for extensions to do a proper study.

There were submissions and briefs. Collectively over $900,000 was paid by DFO for these briefs, and they were received after the committee had drafted the study. Could some of these issues have been addressed with the proper extension of that study some two years ago, in 2016?

[Senator David Mark Wells]

I'm sure they could have, Mr. Arnold. We looked at as much as we could within the confines of our Senate committee. We spoke with experts, people with experience in this area, and we gave it our own consideration with whatever experience we brought to the table, and I'll say I have considerable experience.

On the face of it, this makes sense. It's done successfully in other areas. It not only allows a system that permits a proponent to do what they want to do within the confines of the law—with environmental assessment and all of that—but it also enhances areas that are supported by first nations groups, wetlands conservation groups and environmental protection groups. We have a lot of them, and we should have a lot of them. This just facilitates it to a greater degree. Right now it's just the proponent.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Thank you.

I'm very familiar with the conservation groups that could do this kind of work and produce the banks that are there, such as Ducks Unlimited and provincial wildlife federations across the country that have wetlands improvement programs and conservation programs.

Could this third party habitat banking actually produce lasting net gains for fish habitat if it were to be included?

[Senator David Mark Wells]

That's the whole idea. It's not just keeping everything steady, but to make it better. It's increasing wetlands so they support the ecology, support conservation, support the growth of positive environmental development.

We didn't hear anyone, other than the officials at DFO, saying this is a bad idea. We didn't hear anyone but the officials at DFO saying that. It surprised me a little bit, because it just makes sense. There's widespread support for this concept.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Thank you.

Do you have any idea why the Minister of Fisheries would have requested this committee to do a study on third party habitat banking even before the amendment process had finished making its way through the Senate?

[Senator David Mark Wells]

It was my first signal that these amendments would likely be turned down in the House. I had a conversation or some correspondence with the Canadian Wildlife Federation, and I was told by its executive director that from their discussions, DFO's or the minister's or the government's preference was to not have third party habitat banking considered in this legislation.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

That seems—

[Senator David Mark Wells]

I don't know why, because again, across the board it's a good idea, according to experts, other witnesses, proponents, conservation groups, first nations.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

I agree, Senator. It seems absolutely unfathomable that the minister and his department would be opposed to something that would actually, as you stated, provide lasting net gains of habitat. It doesn't make any sense.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Arnold. Your time is up.

I want to say thank you to our witnesses for appearing, both by video conference and here in person.

We'll suspend for a couple of minutes to change the panel for the next hour. We have some witnesses by video conference and we want to make sure they're hooked up and ready to go.

Again, thank you to everyone for appearing as witnesses here today.

[The Chair, Liberal, Ken McDonald]

We'll get started now on our next hour of testimony.

Appearing here by video conference is Mr. Paul Norris, President of the Ontario Waterpower Association. Welcome, sir.

As well, from Ontario Power Generation Incorporated, here in person we have Mr. Daniel Gibson, Senior Environment Specialist and Chair of the Fisheries Working Group in Renewable Generation and Environment for Waterpower Canada. Welcome, sir.

We'll start off now with some testimony from Mr. Norris for seven minutes or less please, when you're ready.

[Paul Norris, President, Ontario Waterpower Association]

Thank you, and thanks to the committee members for the opportunity to provide our insight and perspective on your consideration of the enablement of an optional third party habitat banking system as a component of Bill C-68.

My name is Paul Norris. I'm President of the Ontario Waterpower Association. I'd like to state at the outset that our organization is in strong support of the inclusion in legislation of third party habitat banking. Not only can such a tool contribute to our collective desired outcome of sustainable fisheries, but in so doing it can foster positive and productive partnerships and innovation on the landscape.

By way of introduction, the OWA represents the common and collective interests of the owners and operators of Ontario's 224 waterpower facilities. They are located from Cornwall to Kenora, with installed capacities ranging from less than 20 kilowatts to more than 2,000 megawatts, and built as early as 1898 and as recently as 2018.

Our membership of more than 140 includes environmental, engineering, legal, financial and construction firms; equipment manufacturers and suppliers; municipalities; and indigenous communities. Waterpower is the electricity engine upon which the initial economic prosperity of the province of Ontario was built, and it remains the backbone of an affordable, reliable, sustainable energy system.

It is of specific relevance to the matter under consideration by the committee that our association has the regulatory responsibility for the environmental assessment process for virtually all waterpower development in Ontario through the provisions of the Class Environmental Assessment for Waterpower Projects, of which the OWA is the proponent. Approved by the minister of the environment in 2008, the objective of the Class Environmental Assessment is to help ensure that projects are planned in an environmentally responsible manner. An additional objective of the Class EA is to coordinate and integrate the multiplicity of environmental approvals and public involvement processes that are relevant to planning a waterpower project.

With respect to DFO's mandate, the Class EA states:

...a waterpower project will almost always involve review and possible Authorization under the federal Fisheries Act and studies conducted under the class EA should involve collection of appropriate information on fish and fish habitat. The completion of an undertaking under the Class EA does not remove Fisheries and Oceans Canada's decision-making authority under the Fisheries Act but it is expected that a proponent using this Class EA will satisfy the substantive planning requirements related to completing a Fisheries Act authorization.

It is precisely this “one project, one process” approach of the Class EA that enables the consideration and the application of an array of tools, such as habitat banking, to achieve the objectives of the myriad legislative requirements to which a waterpower project is subject.

Embedded in the Class Environmental Assessment as well is the mitigation sequence within which the concept of third party habitat banking would be utilized. In short, the Class EA adopts a conceptual hierarchy of avoidance, prevention and mitigation.

Where impacts cannot be avoided or prevented, mitigation measures, including compensation, are considered. Habitat banking in general and third party habitat banking specifically are proactive mitigation measures that can be applied on a landscape level to achieve desired outcomes, including the sustainability of fisheries.

I believe it's also important to recognize that the enabling of the innovation of third party banking under the Fisheries Act could help deliver what are generally referred to as “stackable benefits”. One could easily envision a fish habitat banking project that creates ecological goods and services for wetlands, for species at risk, and for carbon offsets—in short, a whole that is greater than the sum of its parts.

This then brings me to the practical application of third party banking.

In support of the OWA Class EA, we have published more than 40 environmental best management practices for the construction of waterpower facilities. Three of these BMPs are specific to fisheries species at risk and were developed with the input and advice of Fisheries and Oceans Canada. I'd like to focus, however, on the partnership between our association and Ducks Unlimited Canada in their preparation and publication of the BMP for wetlands and waterpower facility construction. The document advises that:

The restoration or creation of wetland habitat requires input from a multidisciplinary team...to develop an adaptive strategy based on a critical analysis of the abiotic features of the landscape. Engagement and/or retention of agencies experienced in wetland restoration/creation and management such as Ducks Unlimited Canada will inform and enrich the design of wetland creation projects.

In short, while in some instances a proponent may have the capacity to apply mitigation strategies, including habitat banking, in others there is a clear and recognized role for subject matter experts, particularly those in the business of on-the-ground stewardship, such as Ducks Unlimited Canada, the Nature Conservancy of Canada, Trout Unlimited and others.

For waterpower projects, which in Ontario take up to eight years to complete from environmental assessment to commissioning, regardless of size, the opportunity to proactively bank habitat as a potential mitigation measure, either by the proponent or in partnership with a third party organization, is particularly relevant, especially on a landscape scale. Enabling this measure through the Fisheries Act will undoubtedly unlock the art and the science of the possible.

The OWA fully recognizes and appreciates the significant regulatory and policy work that is required to implement third party habitat banking. In our view, it is well worth the effort. Based on my experience as a member of the Ontario species at risk program advisory committee as well as the Wetland Conservation Strategy Advisory Panel, I can assure committee members that there has been significant collaborative thought devoted to the concept and application of third party banking, which the Department of Fisheries and Oceans can leverage. I can also assure you that our organization is prepared to contribute to these efforts.

Thanks again for the opportunity to speak with you today. I look forward to the entertainment of questions.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Norris.

We'll now go to Mr. Gibson.

You have seven minutes or less, please.

[Daniel Gibson, Senior Environment Specialist and Chair of Fisheries Working Group, Renewable Generation and Environment, Waterpower Canada, Ontario Power Generation Inc.]

Thank you, and greetings to the chair and to the members of the committee.

Ontario Power Generation appreciates the opportunity to make a delegation to the standing committee today. I'm also here today in my capacity as chair of the fisheries working group for WaterPower Canada.

OPG, Ontario's largest green energy generator, is focused on safe, reliable and sustainable electricity generation. The company's electricity generation portfolio has an in-service capacity of over 17,000 megawatts and operates two nuclear generating stations, one biomass-fuelled thermal generating station, one oil/gas-fuelled thermal station, a solar facility and 66 hydroelectric generating stations. As Ontario's largest clean energy provider, we maintain a critical role in Canada's greenhouse gas emissions reduction targets.

OPG has been actively involved in all aspects of the federal government's review of the Fisheries Act and in Bill C-68 since 2016. We welcome this opportunity to present today on the feasibility of implementing a third party habitat banking framework for Canada.

Similarly, WaterPower Canada, formerly known as the Canadian Hydropower Association, represents both the producers of hydroelectricity as well as the service and supply businesses that support the industry. As you've heard in past delegations, and it's important to restate it, hydro power supplies over 60% of Canada's electricity and is our largest generation source by far. The result is an electricity system that is one of the cleanest, most renewable and most reliable in the world. The generation of hydroelectricity produces virtually no greenhouse gas emissions. It can and must play a central role in achieving Canada's climate change targets.

From the outset, OPG wishes to acknowledge our support for the submissions from WaterPower Canada, as well as the Canadian Electricity Association, the Canadian Nuclear Association, and the Ontario Waterpower Association.

OPG continues to support this government's efforts to implement modern safeguards into the act. Today we are here to talk specifically about that under habitat banking.

In our previous submissions to this committee and through discussions with DFO, OPG has advocated including provisions in Bill C-68 for a habitat banking system that advances the effective and efficient management of Canadian fisheries. We have advocated added flexibility for the creation and use of credits by project proponents and third party groups in a manner that advances both fish habitat conservation objectives and economic objectives. We are encouraged to see the interest expressed by this committee to study this issue of third party banking in greater detail and the inclusion of enabling amendments to Bill C-68 during the Senate review of the bill.

We understand that the proposed provisions of Bill C-68 would allow for some capacity for the Governor in Council to regulate not only the creation, allocation and management of credits and offsets but also their potential exchange and trade. These enabling provisions represent a significant opportunity towards making another tool available for achieving net benefits for fish and fish habitat conservation in Canada.

A well-designed habitat banking system could allow for the ability to aggregate projects for the greatest benefit, large proponent-led initiatives, third party-led initiatives that proponents could support and buy into, and opportunities with well-defined cumulative benefits for multiple species, including species at risk, as Mr. Norris has alluded to. Allowing broader participation in habitat banking can support business and create economic and knowledge-building opportunities as well.

The implementation costs for habitat banking may be reduced for proponents who may not see this as their core business, while the expectation of financial incentives can expand economic and business opportunities for qualified third parties to properly manage and monitor habitat offsets. These third parties may be better equipped to aggregate regional offsetting actions on a larger scale than might be otherwise done for individual proponents.

Because they are longer-term, habitat banks can also encourage broader partnership and knowledge-building opportunities. OPG's example in this regard is the habitat bank developed through a partnership with Quinte Conservation, consultants and a local contractor to design and build the Big Island wetland near Belleville, Ontario. The investment in this habitat bank was carried out as an offset requirement under the environmental assessment for OPG's Darlington new nuclear project, well in advance of the project's being approved.

The Big Island project is a perfect example of an offsetting project that went beyond the standard like-for-like offsetting model and sought first to consider the fisheries management objectives for the water body where we were working. What was determined was that a limiting factor for fisheries productivity in Lake Ontario was not necessarily the loss of alewife, which is the species most commonly interacting with our nuclear power facilities, but rather the loss of coastal wetlands along Lake Ontario's north shore.

Equipped with this knowledge, OPG and the project partners were able to develop a project based on perpetual habitat credits to offset the potential annual loss of fish as a measure of productivity for the future Darlington nuclear facility.

When the Darlington new build was temporarily suspended, OPG was fortunate enough to utilize portions of our Big Island wetland bank to offset measures for our existing Darlington and Pickering nuclear generating stations as part of our Fisheries Act authorizations. That said, if we had not had that opportunity to reinvest those credits into our Fisheries Act authorizations, the prior investments in the Big Island wetland may have been in jeopardy.

While creating the expanded wetland would have been a good outcome from a sustainability point of view and for its habitat offset, there are few organizations that can afford to spend money up front on an offset project when there remains overall uncertainty as to whether or not the project would be approved. From this perspective, enabling a formalized third party banking regime presents an opportunity to bring practitioners together as part of a community to report on and share experiences, research efforts and knowledge of what works. OPG and other industry partners have investigated and commissioned research on habitat banking prior to embarking on the Big Island wetland project. We'd be happy to share that as written submissions to the committee if the committee so chooses.

Overall, OPG believes that enabling third party banking would not only bring increased collaboration and opportunity for aligning biodiversity offsets for fisheries, but would also enhance broader ecosystem function and restoration goals, such as wetland creation, species at risk and land conservation. I'm not the first person to mention that in our testimonies.

In closing, I'd like to thank the committee for this opportunity to provide our views on habitat banking under the Fisheries Act. OPG, as well as WaterPower Canada, would welcome the opportunity to work with DFO to help build a habitat banking system that works in the Canadian context, where resource management is a shared responsibility.

OPG looks forward to continued participation through our industry associations to assist the committee's efforts. We would also be more than happy to meet with you to review our comments and happy to take any of your questions now.

Thank you.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Gibson.

We'll go now to the government side and Mr. Finnigan, please, for seven minutes or less.

[Pat Finnigan, Liberal, Miramichi—Grand Lake, NB]

Thank you, Mr. Chair. I will be sharing my time with Bobby Morrissey.

I want to welcome both of your organizations to our panel today.

There's one question I have. This might have been more within the other panel's experience, but I'm hoping you can help me on this one. Who would determine what habitat or species has to be recreated when you're recreating another habitat to replace what we will be...not destroying, but modifying? Who determines that? Is it the commercial species, or is it the lower end of the chain? How do we determine what has to be included in the recreated habitat?

That's for whoever wants to take it.

[Daniel Gibson]

I'm happy to take a stab at that one.

I think there's a hierarchical approach to offsetting. First you look to avoid, offset and mitigate. Once you get to your offsetting measures, I think some of the evolution in our thinking around fish habitat management is the prioritization of fisheries management objectives in a particular watershed. Regardless of the impact you may be having, I think that when you're going to those compensation or offsetting measures, you're looking to prioritize in accordance with fisheries management objectives. That would come through consultation with the regulator, with DFO.

As we saw with the example of the Big Island wetland, alewife were the species that were potentially being harmed as part of our operations at Darlington, but they weren't necessarily seen as a critical species for protection on Lake Ontario. They were seen as a productivity loss, however, and therefore we needed to compensate or offset for that productivity loss in accordance with the management objectives for Lake Ontario. That's what drove us towards that decision-making. It's the loss of coastal wetlands, and these are the big productivity drivers on the Great Lakes. That's what took our focus in that direction.

[Pat Finnigan, Liberal, Miramichi—Grand Lake, NB]

Do you have any further comments, Mr. Norris?

[Paul Norris]

Yes. Those conversations happen now. Dan is right. Once you go through the hierarchy of avoidance, prevention and mitigation and you're into mitigation, those conversations happen now at a project level with the regulator. The innovation that we're talking about here, or the tool that we're adding to the tool kit, is the opportunity to proactively bank that offset or mitigation and to do it through a partnership with a third party.

The answer to the question will be the same, regardless of whether you're having the site-specific conversation with DFO. The innovation here that we're talking about is that once you get to that conversation, here's a new tool in the tool box that could provide a broader benefit.

[Pat Finnigan, Liberal, Miramichi—Grand Lake, NB]

My other question is about what happens once these projects are established. I know that in New Brunswick and across the country we have Ducks Unlimited. I think that in New Brunswick we have a policy whereby no wetland should be destroyed, and if you want to run a road through a certain wetland, you go and see Ducks Unlimited. For a couple of hundred thousand dollars, they'll take care of that new wetland. They're a pretty reputable organization.

If, for instance, the new wetland or new flooded area might need maintenance sometimes, or if something happens to it and it dries up or floods up, who is responsible for making sure that this habitat continues to exist? That's the question I would ask you.

[Daniel Gibson]

I think there are multiple approaches to that. I think that today the proponent, a company like OPG, would be responsible for the offsetting habitat for the life of their project—for the life or the timeline of their nuclear power facility, for example.

In the case of a third party bank, in some cases you would be transferring that maintenance over to that third party. In the case of Quinte Conservation, they are monitoring the Big Island wetland on our behalf. We have a relationship with them to do that, and they are monitoring its effectiveness over the long term.

In terms of maintenance, I think that would be established through the agreement with the third party.

[Pat Finnigan, Liberal, Miramichi—Grand Lake, NB]

Okay. Do you have anything, Mr. Norris? Things are good?

[Paul Norris]

I would agree with that. Those are some of the really interesting and intriguing policy conversations that would happen underneath the enabling part of the legislation. You're absolutely right to point out that this is a key consideration.

Dan is right. There are multiple ways to address that opportunity. That's the policy work that would be done in collaboration with DFO and with the folks you mentioned, such as Ducks Unlimited, Trout Unlimited, NCC and other people who do this for a living.