Evidence of meeting #31 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 fisheries.
A recording is available from Parliament.
Director of Conservation, Canadian Wildlife Federation
Yes, we would like to see improvements to it.
Neither of us is a lawyer, so we didn't comment specifically on exactly what that improvement would be in terms of language in the act. The one shortcoming primarily is the lack of clarity around it being temporary, preventing temporary harms. As well, there is some confusion in the language around where it applies.
I think those can be fixed, so it's a yes.
Research Scientist, Fisheries and Marine Institute, Memorial University of Newfoundland, As an Individual
The original wording was scientifically coherent. The new wording has a lot of scientific problems. As a scientist, I like scientific coherence. The people with experience in law would be better suited to talk about the specific wording on how we can actually make it even better than it was before.
Martin Olszynski
I should clarify that I'm not a doctor. I am a professor with a master's degree, but I don't have a doctorate.
I agree that part of the problem is that we do have this very condensed...You know, this review as laudable as it is and that it's actually occurring, is condensed. In my brief, I suggest what I think are not radical changes at all that build off the previous successes and the previous institutions and so on. A return to the HADD regime I think is right, but I think that there needs to be additional clarity sending out a power for regulating and streamlining those lower risk projects. Again, it's not at all about even subjecting each of those to review. There can be streamlined regulations that authorize those different projects. Of course, the key thing there would be to give DFO information that it doesn't currently have. Right now, it's looking at around 1.5% of projects on the watershed, based on some of the numbers that I presented earlier. How can they manage fish and fish habitat on a national level if we don't know what's going on in the landscape? Creating reduced, streamlined regulations that allow DFO to give the information that it needs to manage impacts to fish habitat, especially on a cumulative basis, while at the same time reducing any burden on proponents...
I also think that some time should be spent on the section 6 factors. I think that they could be simplified. For all the talk about fisheries productivity, at the end of the day even when you look at some of DFO's science documents, the fundamental issue there is fish habitat. Fish habitat is the best proxy for fish productivity. One of the clear factors should be the state of the watershed in terms of habitat at the time. For any watershed plans, going back to provincial jurisdiction, I think it's absolutely true that DFO needs to be mindful of provincial and regional plans, and watershed plans, and they should be taking those into account and making its decisions. Aside from that, the other big step, which would give us the information that we need, is a public registry. There should be provisions specifically requiring a public registry for all section 35 applications, their authorizations, and the monitoring data that will follow those authorizations.
Usually one year is not enough to know whether or not there's been a change, but in 10 or 15 years from now, we could assess that information, assess that data and come to some conclusions about whether or not the act is working.
NDP
Fin Donnelly NDP Port Moody—Coquitlam, BC
Thank you.
It's fair to say that all three witnesses want to see the Fisheries Act at least restored, if not improved. Mr. Olszynski, if I could just pick up on private prosecution since 2012, since the definition of serious harm came into effect. Do you know of any private prosecutions? In other words, has this definition been tested in court?
Martin Olszynski
No, but I want to clarify there. The changes were introduced in 2012, but of course, they were not brought into force until late November 2013 and since that time, no, I'm not aware of a single charge being laid under the act.
NDP
Fin Donnelly NDP Port Moody—Coquitlam, BC
With the remaining two minutes, I just want to draw to the committee's attention a letter that we all received from Otto Langer on October 30. I just want to read it into the record. He says, "I reviewed many pages of your committee and DFO websites on the subject matter and cannot find how one becomes a witness to appear before you on necessary changes to the habitat protections provisions of the Fisheries Act. I have written two comprehensive briefs on this matter—
Liberal
The Chair Liberal Scott Simms
Sorry, Mr. Donnelly, could I just get you to hold that thought for just a moment?
Mr. Doherty, you have a point of order.
Conservative
Todd Doherty Conservative Cariboo—Prince George, BC
I don't believe any of us on the committee have seen that and I'm not quite sure that is allowed to be read in to this committee.
Liberal
The Chair Liberal Scott Simms
With his time, Mr. Doherty, with all due respect, I think he can read in pretty much any input that he has upon this matter. With certainty, we can say that some members did receive it, but some did not. That's all I can say right now.
Mr. Donnelly, you do have the floor, please proceed. You have one minute 40 seconds left.
NDP
Fin Donnelly NDP Port Moody—Coquitlam, BC
Thank you, Mr. Chair.
He goes on to say:
I have written two comprehensive briefs on this matter to the new Trudeau government and have not received any response from any minister and nor any invitation to appear before your committee.
I was an environment and habitat protection biologist and manager for DFO and E[nvironment] C[anada] from 1969 to 2001. I was indeed one of the Pacific Region staff that in the 1975-1976 era promoted the need for a habitat provisions in the Fisheries Act which was put in place and proclaimed in 1977. I also [am] the Canadian that found out about the Harper government planned cuts to the Fisheries Act in 2012 and made MPs, media and the public aware of that great setback.
During my 32 1/2 years in government I did promote enforcement of the pollution and then the habitat provisions of the Fisheries Act. I have been an expert witness for the DOJ, DFO, EC, Provincial and territorial governments in over 100 criminal trials from the Yukon to White Rock BC and from Tofino, BC to Mary[s]town, Newfoundland. This is more than any other fisheries expert in Canada.
I organized and ran an expert...witness course for national DFO staff and sessions for Ontario, Yukon and Alberta conservation and habitat staff on the legislation we have in the Fisheries Act, how to use it, how to collect evidence in a violation and how to properly prosecute a case. This course was cancelled during the Harper government period.
I feel I should be invited to be a witness on government plans to review and update the habitat provisions of the Fisheries Act. Please advise how that can be arranged. Should I submit a brief I will ask for assistance in translation into French. I strongly recommend that this parliamentary committee visit the West Coast to take evidence on this matter.
It's signed “Otto Langer, BSc—
Liberal
The Chair Liberal Scott Simms
Okay. Thank you, Mr. Donnelly. I have to cut you off there. Your time is up.
Regarding the letter you just read in for the record, that was translated.
If Mr. Langer would like to submit something, I'd just like to point out to the committee that written submissions are taken on our website.
Let me give you the website address. It's www.parl.gc.ca/committees; you follow the links to FOPO, Fisheries and Oceans. We have a deadline. November 30 is the deadline. We say this because we have to translate them and we have to provide our analysts here with enough time to include them in the report.
Thank you for that.
We now go, for seven minutes, to Ms. Jordan.
Liberal
Bernadette Jordan Liberal South Shore—St. Margarets, NS
Thanks to all of you for appearing today and for your testimony.
I have questions for all of you, and I hope that in my seven minutes I can get to most of them.
I'm going to start with you, Mr. Olszynski. I've done a bit of research. I read an article in which you were quoted as saying that changes to environmental law in 2012 weren’t intended to cut red tape, as the government suggested, but to lower the environmental bar. Do you think you could comment on that for me, please?
Martin Olszynski
It's based on the empirical evidence. If we look at what was happening—I'll refer the committee to slide 5, figure 1—by the time we're into 2010-11 we've seen a reduction in referrals to DFO from almost 14,000 to fewer than 8,000, and the number of authorizations at that time declined from about 700 to roughly under 300 a year, so that's roughly 300 in all of Canada per year. It's hard to understand in that context what all the red tape was about. That's essentially where that came from.
Also, of course, in looking at the letters of advice and the operational statements, all of that was designed by DFO in those 10 years to really reduce the burden, to say, “Look, don't come to us, don't bother us, you can deal with this yourselves.” They just asked that you notify them, for instance, that you were going to be doing an activity on the landscape. I never heard, frankly, in a sense...it was never substantiated that there was in fact this immense burden.
Liberal
Bernadette Jordan Liberal South Shore—St. Margarets, NS
To all three of you, then, my question would be, do you feel that the decision was made based on scientific evidence or just on a desire to change the Fisheries Act?
Director of Conservation, Canadian Wildlife Federation
That's a complicated question. I don't think that you write laws based solely on scientific evidence but I do feel, and I pointed out, that there were a couple of shortcomings in the language that was used. I think Dr. Favaro did a good job of pointing out some of the inconsistencies that it's created, more on the policy side.
Why was it changed? I'd like to step back—maybe there's a bit of partisanship here—and say that from a non-partisan point of view, we're trying to build the best program for fish and fish habitat protection possible. The old program was not working. This program may not be working. It doesn't seem to be; it's only been around for a short period of time and there's some confusion in the legal language. The solution is bigger than what we write in a law. That would be our point, that this is not just about what you write in a law, it's about the other part—which we put under “modern safeguards”—which is how you actually go about doing this. I like Dr. Favaro's point about how that really involves engaging across Canadian society, including with other governments. What's written in law is what it is; I think we can always do better, but it's not just about what's in the law.
Liberal
Bernadette Jordan Liberal South Shore—St. Margarets, NS
Thank you.
Dr. Favaro, do you want to comment on that?
Research Scientist, Fisheries and Marine Institute, Memorial University of Newfoundland, As an Individual
It's important to me to not try to read anybody's mind because I can't do that, I'm a scientist. So in terms of what happened and as to what the thought process was as to why these changes were made, all I can do is comment on what the evidence has said about the reasons that were given to us as members of Canada. We have not found evidence that supports the propositions that were put forward as to why it needed to be changed.
Liberal
Bernadette Jordan Liberal South Shore—St. Margarets, NS
Thank you.
Back to you Mr. Olszynski. You said there have been five warnings and zero charges. Does this have to do with a lack of enforcement at DFO or does it have to do with changes to the act, or is it a combination of both do you think?
Martin Olszynski
Again, that's just my opinion, and I should say, a lot of these figures come from annual reports that DFO issues every year, pursuant to section 42 of the Fisheries Act. They have all of the information stats on referrals, on authorizations, referrals by region, referrals by work type, and as well they have stats on enforcement activity. All of this is available on the website.
Liberal
Bernadette Jordan Liberal South Shore—St. Margarets, NS
Dr. Favaro, you had mentioned that there are 91 species, and I think it was COSEWIC that you referred to. My question is—and I'm not sure if maybe I misunderstood when Mr. Sopuck was asking or if I didn't hear the question properly—has that increased since then or are you not able to determine if that increased because you can't access data or there are no data available?
Research Scientist, Fisheries and Marine Institute, Memorial University of Newfoundland, As an Individual
It's tough to ask about the number of increases of species that have been assessed as being at risk because the number of species assessed goes up over time. What you have to do is look at species that have been assessed more than once and look at whether they've gone up or down or stayed the same, in terms of their status, and where these things only came into effect a couple of years ago, the number of reassessments—I don't know what the number is off the top of my head—I would be willing to bet, is not a very large number that have been reassessed. Even if they have been, they're probably being reassessed based on data that would have been before these changes came into effect anyway.