Evidence of meeting #151 for Fisheries and Oceans in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was project.
A recording is available from Parliament.
Senator, Newfoundland and Labrador, C
I would be surprised if Senator Christmas hadn't discussed it with the Membertou First Nation, for instance.
NDP
Gord Johns NDP Courtenay—Alberni, BC
Okay.
Could you talk a bit more in depth about ensuring that there will be no net loss or net gain of fish habitat?
Senator, Newfoundland and Labrador, C
Sure. I'll give a direct example.
I was part of a project in my private business prior to coming to the Senate. There was a mining company that wanted to utilize a pond or a lake, so they had to do a mitigation of the lake. They removed the fish and put them in another.... I think it was in the same watershed. That was the mitigation, but they were also required to provide.... This was a novel way of doing third party habitat banking under a different regime, because a regime wasn't in place, but I believe they funded a salmon ladder a couple of hundred kilometres away. It was a different river system and a different watershed. That's the kind of thing that....
Everyone was pleased with that. The mining company was pleased because they not only had to do the mitigation, which was required by law, but they also could support another project in another area. As I mentioned earlier, one of my amendments was on service area. My hope is that it would be in the same watershed, in the same river system, but sometimes there isn't a proponent in the same river system. Sometimes there's no opportunity to do upgrading of wetlands in the same river system, so that's why I said within the same province.
The other thing about that, Mr. Johns, is that it would still be under the discretion of the minister to have it in a service area anywhere in Canada, but the intent was to have it as local as possible.
NDP
Gord Johns NDP Courtenay—Alberni, BC
We've had testimony from all three of you, but I haven't heard about any concerns you heard when you were looking at habitat banking. What were the concerns you heard?
Senator, Newfoundland and Labrador, C
One of my colleagues at the fisheries committee in the Senate posed the question to the DFO officials who were on site. One of the concerns was that—and this struck me as odd—we haven't done this before. We don't have a regime set up that fits this system.
If that's the concern, they have time to do that. The coming into force would not be at royal assent; it would be at the direction of cabinet, which could be the next cabinet or the one after or whenever the system is ready. Their concern was that they hadn't done it before.
Of course, we've heard from other witnesses and from many others that this is done in other jurisdictions and done successfully.
NDP
Gord Johns NDP Courtenay—Alberni, BC
Did you hear any concerns from the provinces or local governments?
Gord Johns NDP Courtenay—Alberni, BC
Could a third party, such as a non-profit group, be contracted by the project proponent to bank habitat on their behalf?
Senator, Newfoundland and Labrador, C
It depends on the way the system is set up. Normally with a third party habitat banking system, those credits would rest in a place to be drawn upon. The requirements right now under the regulations allow a proponent to subcontract that to a group that does wetland conservation, for instance. That's not prohibited right now.
Liberal
The Chair Liberal Ken McDonald
Thank you, Mr. Johns. Your time is up for now.
We'll now go to the government side.
Mr. Morrissey, you have seven minutes or less, please.
Liberal
Bobby Morrissey Liberal Egmont, PE
Senator Wells, did your review put any parameters on how habitat banking may be implemented?
Senator, Newfoundland and Labrador, C
No. We would leave that to DFO and the relevant federal agencies. As parliamentarians, we would establish the law, and they would build the system to fit those parameters. We didn't build in any restrictions. In a lot of our discussions, there were discussions of flexibility for companies that are currently proponents.
You have to realize that a mining company or a forestry company—
Liberal
Bobby Morrissey Liberal Egmont, PE
You would agree, then, that the final authority and decision-making on proper implementation of a substitute habitat should rest with DFO.
Senator, Newfoundland and Labrador, C
It would rest with the minister, yes, and the relevant agencies, and maybe the department of environment or....
Liberal
Bobby Morrissey Liberal Egmont, PE
You agree, then, that they should be the final authority in making the decisions and setting the criteria on what would be acceptable. The cases would change dramatically, depending on the situation you were attempting to resolve.
Senator, Newfoundland and Labrador, C
It would go to consultation, so I imagine the final authority would always rest with the minister, who would have unfettered discretion anyway. If the regulations are established after consultation with first nations, environmental groups, communities and others, then one would expect the regulations would respect the consultations, but yes, the final authority rests with the minister.
Liberal
Bobby Morrissey Liberal Egmont, PE
When you were conducting studies, did you do any analysis of a situation that exists currently where a habitat was replicated?
Senator, Newfoundland and Labrador, C
There are two aspects to that. One is the mitigation on the site, such as when a mining company requires a lake or a pond. There would be mitigation at that point, such as removal of the fish or protection from overflow or from any deleterious effects in that area from the activity. The other side of it is the banking aspect, somewhere in the service area.
We are familiar with what the Americans and the Australians are doing, and obviously familiar with the concept of like for like.
There is one other thing, Chair, if I may. Proponents have their expertise in their own industry, such as mining or forestry, and under the current circumstance, they are required to do the mitigation and provide assistance in wetlands or ladders or anything like that. That's not their core business, but there are wetland organizations and conservation groups that do have that aspect in their wheelhouse and are ready, willing and able to have private sector funding to help the ecology. That was part of what drove us.
I'm sorry to take your time, Mr. Morrissey.
Liberal
Bobby Morrissey Liberal Egmont, PE
That's fine.
I'm going to share the rest of my time with my colleague, Mr. Hardie.
Liberal
Ken Hardie Liberal Fleetwood—Port Kells, BC
That is a wealth of time.
Senator Wells, what could be a sticking point of all of this is the notion that a company with especially deep pockets could just simply come in and say they can't or they're not interested in remediating or recovering or restoring or whatever, and offer a bunch of money. At a time when I think there's a lot of increased sensitivity to the loss of habitat, do you think that we should permit that kind of response and allow them to just basically buy their way out in order to let a project go ahead ?
Senator, Newfoundland and Labrador, C
My short answer is no, but the parameters will be built into the regulations.
One thing you have to remember is that there's an immediate mitigation on the site. That's a requirement regardless. The habitat banking aspect just helps other areas.
If I may, we can put a price or a cost on any deleterious effect on a piece of the environment and obviously mitigate it as part of the default that they don't get away with it. They have to do that, but this would provide an additional benefit to another group in another area.
How that's built and how the parameters are developed would be in the regulations. To think that a company would just come in and say, “Look, we have a million dollars, so let us start digging our mine” is a simplistic way to look at it. I don't think that would be part of the reality.
Liberal
Ken Hardie Liberal Fleetwood—Port Kells, BC
How would you deal with a situation in which the impacts would be felt in one area where local people were not very happy about it, but there was a notion that the offset could be done someplace else that wouldn't actually benefit the local people? I would understand or assume that this would be a sticky situation.
Senator, Newfoundland and Labrador, C
Absolutely. There are two things about that.
One is that there is an environmental assessment process that allows people who are impacted in an area to come in and voice their concerns and affect a decision on the approval or denial of the proponent's project. That's one thing.
That's exactly why I put in the amendment regarding the service area. It would require that the habitat banking activity happen as close as practicable to where the deleterious effect is happening, if possible in the same watershed. In the worst-case scenario, it would be my hope that it would be in the same province.
Again, it's under the direct authority of the minister. It's the unfettered right of the minister to choose where that would be, but there would be guidelines around it. That was the essence of my service area amendment. It's a good question.