Fisheries Committee on Oct. 31st, 2016

[The Chair, Liberal, Scott Simms]

Welcome everybody.

Before we get to any interventions, I want to welcome to our guests, but before we get to our guests, I have just a couple of things. Let me get to the reason why we're here.

Pursuant to Standing Order 108(2) and the motion adopted by the Committee on Monday, September 19, 2016, the Committee commenced its study of review of changes to the Fisheries Act.

The motion of September 19 is as follows:

That the Committee, in light of the letter provided by the Minister of Fisheries, Oceans and the Canadian Coast Guard & the Minister of Transport, review and study the scope of application of the Fisheries Act, and specifically the serious harm to fish prohibition; how the prohibition is implemented to protect fish and fish habitat; the capacity of Fisheries and Oceans Canada to deliver on fish and fish habitat protection through project review, monitoring, and enforcement; the definitions of serious harm to fish and commercial, recreational, and Aboriginal fisheries; the use of regulatory authorities under the Fisheries Act; and other related provisions of the act, and provide its recommendations in a report to the House, no later than Tuesday, February 28, 2017.

This is our first meeting, and I want to welcome our guests. Before we get to that, however, I have just a bit of housekeeping. It was suggested that we televise the hearings. As you can see, we are not in a place where we are televising for a reason. We found out that when we used Centre Block we could televise, but we could not video conference at the same time. It doesn't have the technological capacity to provide that.

That being said, we are here today at 151 Sparks Street because we could not get a room in 1 Wellington Street, which is the only place where we can do both. It was booked up. On Wednesday, we won't need video conferencing. The minister will be here, and it will be televised.

Following the constituency week, we will return to 1 Wellington Street, where we're able to do both. So we are able to accommodate that, and I want to thank our clerk for arranging that, as was directed by our committee.

Before we go to the witnesses, did I see Mr. Donnelly put his hand up?

Mr. Donnelly.

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Thank you, Mr. Chair. I'm very excited to hear from our witnesses on the Fisheries Act review, but I just want to move my motion that I gave notice of:

That the committee may only meet in camera for the following purposes: (a) to consider wages, salaries and other employee benefits; (b) to consider contracts and contract negotiations; (c) to consider labour relations and personnel matters; (d) to consider a draft report or agenda; (e) for briefings concerning national or parliamentary security; (f) to consider matters where privacy or the protection of personal information is required; (g) to receive legal, administrative or procedural advice from the House of Commons' Administration; and (h) for any other reason, with the unanimous of the committee; That the Chair may schedule all or portions of a meeting to be in camera for the reasons listed above; That any motion to sit in camera shall be subject to a debate where the mover, and one member from each of the other recognized parties, be given up to three minutes each to speak to the motion; and that the mover shall then be given up to one minute to respond.

[The Chair, Liberal, Scott Simms]

Because you did this in advance, Mr. Donnelly, I don't think we need time for people to read and consider. I'm sure that everyone, like myself, has read the motion.

Is there any discussion? No.

(Motion agreed to)

[The Chair, Liberal, Scott Simms]

Thank you very much, Mr. Donnelly.

Normally what we do in a day of witnesses is take the first hour for testimonies and questions to witnesses, and then we do the same with a different set of witnesses for the second hour of the meeting. However, we decided, because of the gravity of the issue and the people we are discussing this with, that we're going to provide a full two-hour block for this. You will have your 10 minutes to open with, and then we'll proceed with the questions until 5:30 p.m. eastern time.

That being said, I will introduce our guests. From the Canadian Wildlife Federation, we have Dr. David Browne, director of conservation; as well as Dr. Nick Lapointe, senior conservation biologist, freshwater ecology. You will have 10 minutes for your group.

We also have, as an individual, Dr. Brett Favaro, research scientist at the Fisheries and Marine Institute of Memorial University of Newfoundland. He, of course, is no stranger. He was here just recently, and he joins us by video conference.

Finally, we have Dr. Martin Olszynski, assistant professor, faculty of law, an affiliated faculty at the Canadian Institute of Resources Law at the University of Calgary. Thank you for joining us, sir.

We'll go now to the Canadian Wildlife Federation for 10 minutes.

[David Browne, Director of Conservation, Canadian Wildlife Federation]

Thank you for the opportunity to speak with you today.

The Canadian Wildlife Federation is a national charity. It has about 250,000 supporters. We work through education, science-based policy, and outreach to conserve and inspire the conservation of Canada's wildlife and habitats for the use and enjoyment of all.

I want to provide some context, and then jump right into loss protections and modern safeguards.

I want to start by emphasizing the importance of fish habitat in Canada. It is important from a fisheries point of view. Aboriginal fisheries have critical cultural and subsistence value. Commercial fisheries have a direct value of $6 billion or more per year. Recreational fisheries have a value of $8 billion per year and engage millions of Canadians. Fish habitat is also important in terms of ecosystem services, such as flood control, water quality, and water quantity, and simply because of the intrinsic value of our aquatic biodiversity to Canadians. The task at hand is large, and it is important to all Canadians that we protect our freshwater environments and our fish.

Another aspect of that context is the current status of fish habitat in Canada. On the left are some photos of some fish habitats in various states of alteration. On the right is perhaps one of the closest things we have to a national status map of fish habitat, which it actually is not; it's a stress index developed by Dr. Cindy Chu, and the darker blue areas are the higher-stress areas for fish habitat.

In a nutshell, we could say that habitat quality was declining under the 1986 policy of no net loss, and that it continues to decline today despite prohibition on serious harm. Having said that, I would say that there are many very good examples of improvements to fish habitat, of good restoration projects, and of excellent offsets, but overall our evaluation would be one of continued decline. The known causes of this fall into three categories: direct destruction and alteration from projects; indirect destruction and alteration through land use; and destruction and alteration of habitat by fishing practices.

I also want to provide the context for why we are talking about the fish habitat provisions and the goals from the perspective of the Canadian Wildlife Federation.

In our view, it is really to set the overarching federal regulatory policy and program framework to protect existing fish habitat, restore the legacy of past harms to fish habitat, and compensate effectively for future harms to fish and fish habitat. Doing this will require a balanced effort and investment in both freshwater and marine habitats.

Our testimony will focus on loss protections and modern safeguards. I just want to preface this by saying that while we'll focus on loss protections, we do think there were a number of changes to the act that came from earlier consultations that were beneficial and that can be built on as we move forward.

The first aspect of loss protections is confusion over where this prohibition now applies. We believe that derives directly from the requirement to link the prohibition either directly or indirectly to a fishery, so there's a bit of confusion over where in the landscape section 35 actually applies.

We have two recommendations. One is to amend section 35's language to apply the prohibition to all fish and all fish habitats. However, we would like to see the maintenance and the acknowledgement of the importance of all three types of fisheries in the interpretation and implementation of this act. The second aspect of loss protection involves what is protected by section 35. It is largely similar. However, there's one area of change, which is that there's a lack of clarity around how the prohibition under section 35 applies to temporary alterations of fish habitat. There is also confusion stemming from the use of the term “serious harm to fish”, although it is defined in the act. Finally, there is the loss of 25 years of jurisprudence to provide clarity on what the prohibition actually means.

Again, our recommendation is clear: amend the language of section 35 to prohibit the death of fish and the harmful alteration, disruption, and destruction of fish habitat.

Finally, there are the loss protections in how we deliver fish habitat protection. These stem from massive changes—I would describe them as massive, and they've been going on for many years—to policy, program, and capacity. We'll focus on some aspects of this.

First would be project review. We have greatly reduced staff capacity in both numbers and years of experience. There is self-assessment of projects with no registry or auditing. Service standards are met largely by triage out of lower-risk projects, and there is no capacity internally to develop a more efficient framework for delivering on the responsibility to protect fish habitat.

Next, in terms of enforcement, staff and equipment were severely cut, with no alternative arrangement in place with provinces, and few fines or warnings are being issued.

Finally, on monitoring, there was no capacity before 2012 and no capacity after 2012, and this needs to change.

Our recommendation is to strategically invest in DFO capacity to design, operate, and enforce a fish habitat protection program and to continue building partnerships with NGOs and other sectors of society to deliver it, because DFO cannot do this alone. If it's going to succeed, this is going to have to be a co-operative and collaborative approach to protecting fish habitat.

I'd now like to move on to modern safeguards, where we have six points to make.

The first—and our overarching point—is that any changes made to the program or the law should really focus on better outcomes for fish and fish habitat. That means achieving better outcomes, not just building process. Build the process to achieve the outcomes we want. Adopt a national goal of achieving a net gain in fish habitat and already-impacted watersheds and allow and support experimentation and “learning by doing” in authorizing, offsetting, and monitoring harm. This may have been one of the key shortfalls of the previous program, in that it wasn't allowed to experiment and push flexibility in ways of doing things for authorizing and offsetting.

The second point is to address cumulative effects. Mechanisms to offset incremental impacts are essential, and this does not mean issuing authorizations for every single small activity that a Canadian citizen undertakes on the landscape. There are other tools available, such as, for example: regulated standards that create ticketable offences; a public registry of self-assessed projects to track and audit what's going on in the landscape; dedicated fees in lieu of offsets; and other program and policy tools that address moderate and low-risk activities.

The third point is to require fish passage. Fish passage provisions were clarified and updated in 2012. There is little improvement in implementation, and it is 100% discretionary and generally not applied. In fact, last year, the environmental commissioner of Ontario pointed out that this discretionary power has rarely been used in Ontario. Of more than 2,500 dams in the province, fewer than 50 have a fishway.

The fourth point is watershed or management zone planning. We see section 6 factors added to the act as requiring an outcomes-based regulation program. If you want to focus on outcomes, you need to have some kind of plan or goal at a watershed or management level. This includes fisheries management objectives, some sense of the current status of the habitat, and some sense of—or, even better, objectives or goals for—the desired future state. This would provide a context for review and authorization, mechanisms to protect watersheds from damaging land use practices, and strategic habitat restoration and offsetting.

Our fifth point under modern safeguards is habitat banking. Canada needs a habitat banking program for fish habitat. This requires legal enablement of third party banking. It requires the establishment of regulations and guidelines that make sure this program leads to real benefits for fish and fish habitat. We are open to experimentation with other market-based tools.

Finally, our sixth point is on partnership approaches to achieving modern safeguards. Governments around the world are turning to partnerships to deliver on regulatory responsibilities. At a federal-provincial level, we believe there's a need for a new national accord for the protection of fish habitat, as well as renewed agreements with the provinces for enforcement that is tied to funding.

In the public sector, we believe that NGOs, universities, and industry need to find ways to collaborate with government. The Canadian Wildlife Federation has taken the first steps in building a national partnership for aquatic habitat. We believe this partnership can lead to enhanced science tools, better translation of science into policy, and concrete on-the-ground restoration that benefits fish habitat. One form this could take is an increased commitment to the RFCP program that is more strategic and partnership-focused, as well as agreements that allow for program delivery by non-government partners.

I will leave it there. Thank you for your time. I look forward to your questions.

[The Chair, Liberal, Scott Simms]

Thank you very much for your presentation.

Now we're going to go to Dr. Favaro in St. John's.

[Dr. Brett Favaro, Research Scientist, Fisheries and Marine Institute, Memorial University of Newfoundland, As an Individual]

I'm ready when I'm told to start.

[The Chair, Liberal, Scott Simms]

I hear that a lot myself.

Thank you, Dr. Favaro. It's nice to see you again.

We are going to ask you to do your 10 minutes, please. Thank you very much.

[Dr. Brett Favaro]

Thank you, Mr. Chairman.

I'd like to start by wishing you all a very happy Halloween and by thanking you all for the invitation to come speak today and also for accommodating my need to appear by video conference.

I am going to focus most of my attention today on the 2012 changes made to section 35 of the Fisheries Act.

Before the law was revised, the Fisheries Act contained the following text: “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.” Before we get into details about what was changed and what we should do about it, I want to revisit why this law protected fish habitat so explicitly.

As most of you are aware, I am a scientist who works mostly with fisheries. I had the privilege of speaking to you a couple of weeks ago about my work on sustainable Atlantic cod fishing, but my work on catching fish is completely irrelevant if the ecosystems aren't there to produce fish in the first place. This is true of all fisheries. They depend on intact fish stocks, and those stocks depend on intact habitat.

When you protect fish habitat, you are making a smart investment in our country's environmental and economic future. Fish are like fertilizer to Canadian ecosystems. Salmon, in particular, act as giant conveyor belts for nutrients, sucking up energy from the ocean and injecting it into our coastal rainforests. Intact fish habitat is critical to keeping this conveyor belt moving. The best part is, all this happens free of charge.

Protecting fish habitat gives tremendous bang for your buck. By ensuring the integrity of this one type of environment, you are supporting hundreds of species. This ultimately saves us money, because as species become endangered, it costs us a lot to bring them back from the brink. In fact, this is already a huge problem. There are 91 freshwater fish species in Canada that the Committee on the Status of Endangered Wildlife in Canada has assessed as being endangered, threatened, or of special concern, and the vast majority of these were impacted by habitat loss.

Another reason to protect fish habitat has to do with the very nature of water itself. When you alter habitat on land, the damage is generally localized. By contrast, if you pollute a river, you will cause impacts all the way up and down that river system, and you will even affect the land that the river touches. This means that any damage you do to an aquatic system will not be restricted to the space that you harmed; rather, it will propagate through a giant ecosystem and affect everybody and everything that lives there.

Let's fast-forward to 2012 and Bill C-38, which included changes to the Fisheries Act. Whereas before no person could cause “harmful alteration, disruption or destruction of fish habitat”, the new wording read as follows: “No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.”

This was widely panned by the scientific community: 625 scientists co-wrote a letter to the Prime Minister opposing these changes. Four former fisheries ministers co-authored an open letter opposing the changes as well. So what was the problem?

Scientifically speaking, there were three major issues with the new wording. First was this concept of “serious harm”. Serious harm is defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” To an ecologist, the word “permanent” raises many red flags. What does “permanent” mean? Does it mean a human lifespan? Could you destroy a river if you promised that you would repair it 50 years in the future, and have that be considered a temporary alteration? These questions were never satisfactorily answered, and the only reasonable conclusion was that this wording would make it easier to cause harm to fish habitat.

The second problem was this new focus on fish that were targeted by fishing. This implied that the Fisheries Act wouldn't concern itself with a large proportion of fish in Canada. If you took the passage literally, it suggested that you would be able to cause serious harm to a river if you could prove that nobody ever put a hook in those remote areas.

Now what if, despite the fact that we don't fish a river now, we want to fish it in the future? I remind everyone that sport fishing is incredibly important to our nation's economy, and a lot of that happens in very remote places and rivers that are sparsely populated. Not only that, but climate change is changing where one might find fish, so it's not crazy to think that as the world warms, people will want to fish in different places. What a shame it would be if we destroyed them all before we got to do that.

The third problem was the reference to this section applying to fish that support a fishery. Now, this statement has no basis in science. We don't have the scientific ability to divide fish into categories of fish that support a fishery and fish that do not. If you, as a committee, were to ask me whether any given fish species was essential to supporting a fishery, with very few exceptions, I would say, “I don't know.”

Ecosystems are incredibly complicated. Aquatic ecosystems have hundreds of species interacting in all sorts of ways that science has only begun to describe. When you take parts of that ecosystem out, it may not collapse right away, but what this does is destabilize the system and make it more likely to fall apart. I would also add a reminder that it's not just fish that support fisheries. For example, when I am gutting cod that we harvest at sea, I am likely to find that these fish have been eating shrimp, sea stars, and a multitude of other critters. Again, this is why we protect habitat and not just the things that we fish. It provides an insurance policy against our own lack of scientific understanding.

There's no conservation value to these changes; was there some other motivation for doing so? One of the reasons that the minister at the time, Keith Ashfield, stated was that the existing Fisheries Act was overly burdensome. As a scientist I treated that statement as a hypothesis. Was there evidence that it was overly burdensome? One way you might detect this is if DFO were convicting lots of people under the Fisheries Act for frivolous offences. In other words, if you're handing out convictions like parking tickets then sure, maybe you've got a strong argument that the Fisheries Act was too broad.

At the time DFO published convictions on their websites spanning several years. You could go online and see every person who was convicted and what they were convicted for over a several-year period. In 2012 I went through every press release issued by DFO between 2007 and 2011. Across 285 press releases they described 1,283 convictions under the Fisheries Act. A total of 21, or about four per year, were due to destroying fish habitat. Four per year in the second biggest country on earth by land area. Four per year in a country covered from coast to coast to coast by rivers, lakes, and streams, most of which contain at least some fish.

If four convictions a year are too many then that seems to me we set the bar very low. My colleagues and I published this finding as a letter in the journal Science. You wouldn't be able to go back and verify what we found. That's because about a year after we published the article the DFO website was restructured so you could only see six months' worth of convictions. It got less transparent and that much harder to assess the real-world impacts these laws were having.

This brings me to the closing part of my remarks where we talk about moving forward. The scientific case for habitat protection is simple, straightforward, and unambiguous. Perhaps the best articulated case was made on May 17, 1977, by the fisheries minister at the time, Roméo LeBlanc. To quote a few passages from his speech in the House of Commons:

...the regulation of fishing itself is only part of what we need. Protecting fish means protection [of ] their habitats. Protecting the aquatic habitat involves controlling the use of wetlands. The banks of streams, the foreshores of estuaries, provide nutrients to the larger eco-system of lakes and oceans in amounts far out of proportion to their size. The chain of life extending to the whole open ocean depends on bogs, marshes, mudflats, and other “useless-looking” places that ruin your shoes.

As a scientist I can find no argument in favour of making it easy to destroy or damage fish habitat. In fact the need for strong protection is only going to increase as we face a world increasingly stressed by climate change. All the fish in our country are at risk. Increased temperatures mean that rivers and streams will warm up potentially beyond the safe limits that many species can tolerate. Melting snowpack means that water levels will sharply drop, which will make life much more precarious for aquatic species, and while fish are tough they can only take so much. They may be able to survive polluted water, but polluted heated water could spell disaster. Let's give them a helping hand by at least making sure they have intact habitat to feed, grow, and spawn in.

I understand there are trade-offs in any decision so I close my remarks with three key recommendations. First, I think the original wording of section 35 should be restored. It needs to be clear to Canadians that it's just not okay to harmfully alter, disrupt, or destroy fish habitat without compensation. Not temporarily, not permanently, not at all. There's no advantage to allowing it without the legal obligation to build a compensatory habitat. This prohibition was a rule between 1977 and 2012, a time period over which our GDP grew by a factor of about 2.5. Over that time period the science only became clear that fish habitat is critical to the maintenance of fisheries and the ecosystems that support them.

Second, this review should be seen as an opportunity to go beyond what was there before, and strive to secure fish habitat for generations to come. It is noteworthy that despite the strength and clarity of the original wording we were still losing fish habitat. A peer review 2006 study demonstrated this clearly. So simply restoring the old act is not enough, particularly in a world where on top of everything else climate change now threatens our waterways and the fish that live in them.

Third and finally, whatever recommendations the committee makes should be done with transparency and a view to open data. One of my biggest scientific problems with the 2012 changes was that they were made based on an untested premise, that the previous law was being applied inappropriately and was overly burdensome. To this day I have still not seen clear evidence to support that, and indeed every piece of evidence seems to counter it. I understand that as a scientist I may not always agree with decisions made on conservation, but I think it is uncontroversial that these decisions should be made transparently.

Thank you very much.

[The Chair, Liberal, Scott Simms]

Thank you, Dr. Favaro, for your input.

Dr. Olszynski from the University of Calgary, you have ten minutes.

[Professor Martin Olszynski, Assistant Professor, Faculty of Law and Affiliated Faculty, Canadian Institute of Resources Law, University of Calgary, As an Individual]

Thank you, Mr. Chair, and members of the committee for giving me this opportunity to speak to you in the context of your review of the Fisheries Act.

As the Chair mentioned, I am currently an assistant professor of law at the University of Calgary. I want to point out that before that, however, I was actually a federal public servant here in Ottawa where I spent several years as counsel, practising environmental and natural resources law under the Department of Fisheries and Oceans, as well as sometimes a policy officer at Environment Canada. I mention that only to say that although most of my presentation today is based on my work as an academic, my perspective on some of these issues is informed by my former experience as both an environmental law practitioner and a public servant.

In my presentation today, I hope to accomplish three things. We're going to talk about the changes to the act in 2012 and highlight some of the specific wording that's changed, and spend a bit of time—although I think both my colleagues here and Dr. Favaro have done a good job of it—talking about the lack of understanding in terms of the rationale for those changes. Then I'm going to dive deeply into the implementation of the section 35 regime over the past 15 years. If I have one major goal here, it's to demonstrate to you that any suggestion that this act was overly onerous or unduly protective of fish habitat simply doesn't hold up. Then if I have time left, I'll get to some of my specific recommendations. Of course, everything else that I'm presenting today is in a formal brief that I had submitted to committee last week. I understand it's in translation right now, but I do encourage you to refer to it when it's ready.

With respect to section 35, although it's written as a prohibition, it's important for the committee to understand that this has always been more of a regulatory regime. This is in the sense that, although prohibited, impacts to fish habitat, whether under the former or current wording, could always be authorized by the minister under section 35(2). Before 2012, this regulatory regime operated as follows: DFO would receive inquiries or requests for authorization from proponents, individuals, or corporations, and these were referred to as referrals. It would then review them to see if a harmful alteration, disruption, or destruction, or HADD—you'll all be versed in the terminology of the Department of Fisheries and Oceans by the time this is done—was likely to occur. When it deemed projects low-risk, it would provide advice to proponents in the form of a specific letter, what they called a letter of advice. It would do this or it would direct the proponents to its website or various regional websites where it had what were called operational statements. These were generic letters of advice, essentially, that allowed proponents to understand what the best practices are and how to mitigate impacts. The sum effect of those two policy-based tools was that those proponents were not subjected to the regulatory regime. They were taken out of the authorization stream and told essentially to do their best and go off and go forth and don't both us anymore.

If the department could conclude that a HADD was unavoidable, those projects were then brought into the authorization scheme and a section 35 authorization would be issued. At the time and until 2012, that requirement for an authorization triggered an environmental assessment under the previous Canadian Environmental Assessment Act.

Bill C-38 received royal assent in 2012, as noted by my colleagues and on page 3 of my deck, which you have a copy of as well. The idea at the time was that in fact this regime was too onerous and unduly protective. At the time, a couple of examples were given including a music jamboree in my home province of Saskatchewan where the flood plain was flooded with walleye, which are important recreational fish.

In terms of the main changes, on this deck, you see essentially a side-by-side comparison. Before, the section 35—and Dr. Favaro did a good job here, but just to reiterate—applied to works and undertakings, now it applies to works, undertakings, and activities. This was a broadening of the act. Before it prohibited HADD, now it prohibits the permanent alteration or destruction of fish habitat, and the prohibition was merged with the previous stand-alone prohibition against destruction of fish.

Finally, whereas it used to apply to all fish and fish habitat, it now only applies to fish and their habitat that are part of, or support, commercial, recreational, and aboriginal fisheries.

In addition to these legislative changes, there have been changes to the manner in which DFO does its business. Operational statements that I referred to before have been eliminated, so DFO no longer has any way of tracking those low-risk projects. DFO has had its budget reduced by $80 million in 2012 and another $100 million in 2015.

The next six slides are really intended to give you an overview of what this regime has looked like over the past 15 years. In my view, they fundamentally undermine any suggestion that this regime has ever been too onerous on proponents or excessively protective of fish. On the contrary, the picture that emerges is one of near abdication of the federal responsibility with respect to Canada's fishery resources.

In this figure, what we see in the blue is the number of referrals that DFO would receive in any given year. Red is the number of authorizations issued. Importantly, the red is on the right axis, so it's a scale of order less than the number of referrals on the left. At a high point, in around 2003-04, DFO was receiving roughly 14,000 referrals, of which fewer than 700, or 5%, were deemed to require an authorization. Presently DFO receives just 3,500 referrals, and of those, only 75 were issued authorizations in 2014-15.

I also want to bring your attention to two periods that are statistically significant on this figure.

The first is post-2012. We see that decline in the number of referrals and number of authorizations. Note that this happened notwithstanding the fact that the changes were not actually brought into force until the end of 2013. The strong signal from the changes with the introduction of Bills C-38 and C-45 essentially sent a signal to proponents that they were not to be as preoccupied with this legislation as they had been.

The other period that I want to spend some time on is when there was the first significant drop in authorization and referral activity, and that's between 2004 and 2006. Around this time, DFO implemented what was called the environmental process modernization program. This was part of the Smart regulatory agenda that was very popular at the beginning of the 2000s.

The cornerstone of this was DFO's risk management framework. This is the way DFO was triaging projects and deciding which ones would receive authorizations and which ones would not.

The main feature of this matrix is, of course, the green shaded area. This is the low-risk area. Pursuant to this assessment, which is based on the sensitivity of fish habitat and the scale of negative effects, DFO would decide that, in this case, roughly 60% of projects would fall in the low-risk category.

Importantly, that's not no risk, and that's not no impact. It simply means that in taking a risk-based approach DFO decided, in this case, that the department would not subject these projects to authorization, and would rather deal with them with those policy-based documents that I referred to before, letters of advice and operational statements. Importantly also, of course, when it did this, no EA pursuant to the Canadian Environmental Assessment Act was triggered.

Figure 2 is another example of figure 1. The blue space is the number of referrals, and you see that declining, as does the number of letters of advice—that's the green space. But what you see popping up in around 2006-07 is that orange space. That is the operational statements and class authorizations.

I've combined all of those into that purple space. What you see, essentially, is that while the number of referrals declined, the overall activity on the watershed actually probably remained pretty consistent. You have to keep in mind that the numbers are a bit lower, but notification was voluntary only, so they probably didn't catch all of the use of and reliance on these operational statements. Long story short, there was the same amount of activity on the watershed but much less involvement, proportionately, by DFO in supervising those impacts.

At the same time that DFO was significantly reducing the regulatory burden both on itself and also on proponents, unfortunately compliance and enforcement fell off a cliff. Here you have a map of warnings in the orange and enforcement charges in the red, and what you see clearly in 2005-06 is that DFO goes from issuing roughly 200 warnings and laying close to 50 charges to last year issuing five warnings with zero charges.

I don't have data going all the way back, but beginning at around 2008-09 the department started to track enforcement hours. Here we see, again, that following 2012 there is a massive decrease in enforcement hours dedicated to the fish habitat protection provisions, or now the fisheries protection provisions.

In terms of the next couple of slides—I don't know if I have time to get into this now, and we can spend some time, maybe, in the question period—essentially what we wanted to do was figure out how is it that DFO, in terms of those 2012 changes, went to roughly a 60% further reduction in authorization activity. Was it this issue of the harm? Was it the question of harm? Or was it the imposition of this fisheries requirement?

Again, without getting into details, my research showed that the bulk of it was actually just that strong signal sent to proponents that this act doesn't matter any more, which resulted in a massive reduction in the number of referrals DFO was getting.

It certainly couldn't be explained by the change in harm, and this goes back again to the implementation of this risk-based approach. There might have been the suggestion that the act was overly protective and all these harmful and temporary disruptions were being caught. When we looked at 2012 authorizations, only a fraction of those were for harmful alteration destruction. So those things were already being risk-managed out of the regime. What we see over time, then, by the time we get to 2014, as the graph here shows, is a reduction in the amount of authorization activity.

What we then tried to do is plot all of these authorizations, 2012, 2013, 2014, on a map to see if there was a change in the pattern. Before, the act applied to all fish and fish habitat. Is it possible that now that there's a fisheries requirement it would somehow change the distribution? Some biologists had suggested that all of northern Canada would essentially be left unprotected. We didn't find any change in pattern, other than the fact that there were fewer authorizations—that's the light blue—and the pattern resembled the previous pattern. Of course, what was most startling was that what this suggested was that even in 2012, most of Canada's northern wilderness, freshwater lakes, streams and such, were not receiving protection.

I just want to highlight that spot on that map that you see. That's covering northern B.C., Alberta, Saskatchewan, Manitoba and parts of Ontario. So according to this map, and according to DFO's authorization activity over a period of 18 months, May to October, 2012, 2013, 2014, there were roughly six instances of impacts to fish habitat. Of course, that doesn't square with the evidence that my colleagues have provided, and it doesn't square with industrial activity on the watershed according to various kinds of facts and figures. Again, that's all provided.

I see that my time is up, so I'm going to wrap it up by simply saying I agree with my fellow witnesses that we need to return, probably, to the previous HADD provision, but we can do a lot more to regulate and address cumulative impacts on the watershed, more transparency, a public registry for authorizations, for applications, for monitoring data. Again, I can spend more time during question period on that.

[The Chair, Liberal, Scott Simms]

Thank you, Dr. Olszynski.

For a point of clarification, can you go back about 3 slides? I don't know if you have the ability there. Stop right there. As a point of reference, did you run out of room or were there no indications for three provinces on the east coast?

[Martin Olszynski]

I used the access to information legislation and I specifically targeted the Pacific and central and Arctic regions.

My apologies.

[The Chair, Liberal, Scott Simms]

Okay, got it. I was simply trying to make sure.

[Martin Olszynski]

No, absolutely it's a fair point.

[The Chair, Liberal, Scott Simms]

Thanks for the clarification.

Perhaps I could get Dr. Favaro back on the screen again.

Thank you for the presentations.

To the witnesses, and to Dr. Favaro in particular, if you want to weigh in on a certain topic with the questions, you may want to put up your hand or signify that way that you'd like to weigh in on the subject, since I can't do it for my colleagues. Their seven minutes is their seven minutes. Please be aware that some of our colleagues would like to weigh in, and I encourage all, if they wish to do so, to signify to our colleagues so they can get the time. Time is of the essence here. I'll follow my own advice and be quiet.

That being said, Mr. McDonald, I believe you're going to start, the mover of the motion. Seven minutes, please.

[Ken McDonald, Liberal, Avalon, NL]

Yes, thank you, Mr. Chair.

Thank you to all four individuals for taking their time to present to us here today. It's really appreciated, I'm sure, by all participants here from all sides of the House.

My first couple of questions will be to Mr. Olszynski. You mentioned environmental law. How did your background in environmental law bring you to concern yourself with habitat protections within the Fisheries Act?

[Martin Olszynski]

You learn almost immediately. In any environmental law course in Canada, you learn very quickly that the Fisheries Act, in section 35 in particular, has always been regarded as one of the most powerful environmental laws that we have in Canada at the federal level. Part of that is because it's a bit of a fluke of history, in the sense that shortly before that, the U.S., in what was called its environmental decade, passed five federal laws, the Clean Water Act, the Clean Air Act, the National Environmental Policy Act....

When it came to Canada, we already had the Fisheries Act and we already had a prohibition on the deposit of deleterious substances, so that became our de facto federal water pollution law. I think the thinking was to sort of buttress it with a prohibition against physical impacts to fish and fish habitat, so it has always been a mainstay of environmental law at the federal level here in Canada.

[Ken McDonald, Liberal, Avalon, NL]

You mentioned the drop in the warnings and the number of charges from around 2,000 to 3,000 or 4,000 up to when the new law came in, and even for 2014-15. Would you please elaborate on how these changes to the Fisheries Act in 2012 have affected enforcement and offences in the habitat's protection?

[Martin Olszynski]

I don't know if that's possible. What I can do is refer you, if you have paper copies of my deck, to page 8, figure 3. This is for habitat enforcement and compliance. Essentially what we see is that in...again, there are matters of scale here with this figure, but of course if the figure started at 2012, what you would see is a reduction from roughly 75 warnings being issued per year and enforcement activity in the sense of charges in the single digits, to 50 to five warnings and zero charges.

What I can say about what that means is that when governments want people to follow laws, then they enforce them. When there is no enforcement, then there is no compliance with the law. I'll give you the example of speeding. We have speeding signs all over every city, and yet individuals speed all the time. We have police officers there to remind individuals financially that there are consequences to going too fast. It is untenable to suggest that, at this level of enforcement, this prohibition against the impacts of fish habitat is being taken seriously.

[Ken McDonald, Liberal, Avalon, NL]

To Dr. Favaro and possibly Mr. Olszynski, I have one question, and it rings loud and clear for what each of you has said in your presentation. How exactly can anyone, whether it be DFO or local groups, protect fish and fish habitat when the regulations and the enforcement are not there to do it, and it's just left to its own demise?

[Martin Olszynski]

Currently it would be very difficult. There is a potential to what's called a private prosecution in Canada, but that potential is easily overstated. What happens in that context is that the Attorney General always reserves the ability to step into that prosecution and to stay the prosecution, and there's a long tradition of that happening.

This comes back to the points that were made by my colleagues about the wording of this prohibition right now. It is essentially nonsensical. It is incredibly difficult to prepare a coherent argument about what was intended in the scope of this act. Even if you weren't worried about the Attorney General stepping in, there are those legal challenges.

There is, of course, the incredible disparity in resources. For private individuals to bring private prosecution is very expensive. It's very difficult. They don't have the same access to sites and such that fisheries officers, fisheries inspectors, or guardians designated in various ways have to collect evidence.

[Ken McDonald, Liberal, Avalon, NL]

Any comment, Dr. Favaro?

Yes, just to expand on this concept, you can hope that people will voluntarily comply and voluntarily work on the fish habitat, but I don't think that's working. The alternative hypothesis to all of this is that the reason there are no convictions is that everybody is complying with the law. That's not true, because we know there are 91 at-risk species in Canada that are freshwater fish that are mostly at risk because of the habitat disruption.

We know that we continue to lose habitat. We know that it's not because everybody is complying. I note an ironic observation that if everybody was complying, then we could have just left it the way it was before, and it shouldn't have mattered, right?

A point that's important to make is that it's really important to empower everyone to be conservationists. While we have to have this stick, I think the other thing to talk about is the carrot. How do we get people mobilized and teach them how to be good stewards of the environment, when it becomes a national value to protect your local fish habitat, where it is in some communities?

When I grew up in British Columbia, the excitement when salmon would come back to a stream in the middle of town that it had not been in for 100 years was amazing. People would flock out to see it. If we can get that value shared, then I think we're going to go a long way to that as well. I think another thing not to lose sight of is the importance of education and outreach on this.

Thank you.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. McDonald.

Mr. Sopuck for seven minutes please.

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

I want to be really clear here. This notion that's being bandied about that there are no habitat protections in the new Fisheries Act is complete nonsense. The new act says it's prohibited to:

...carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.

Serious harm to fish is defined as:

the death of fish or any permanent alteration to, or destruction of, fish habitat.

Fish habitat is defined as:

spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes.

This idea that all habitat protections are gone under the new Fisheries Act is completely false.

I should also note that in a legal opinion, Blakes, which is a prominent law firm that did an analysis of the new Fisheries Act, noted that:

It is important to note the federal government's constitutional authority to regulate impacts to fish and fish habitat flow from its powers under the Constitution Act, 1867 over "coastal and inland fisheries". Canadian courts have confirmed, more than once, that these powers are limited to fisheries, as a resource, and do not mean the federal government has the power to regulate over all fish or fish habitat in Canada. In this respect, the new prohibitions are, to some extent, a codification of that which already exists at law.

I am a member of Parliament for a rural area, and the Fisheries and Oceans law enforcement officers would descend on my community and cause great economic harm through their interpretation and enforcement of the old Fisheries Act, which, it's quite clear, they simply couldn't enforce or define. That is one of the reasons why we had to change the act.

I agree with much of what our colleagues from the Canadian Wildlife Federation said. I think they were implying that many of the changes to the act were good. They would like to see some changes to the old act. I think that's certainly legitimate.

I have a question for Doctor Favaro.

Given that you're a scientist, can you quantify for me any changes to a fish population or community in Canada that resulted from the changes that we made to the Fisheries Act? I use the term “quantitative” deliberately. I don't want opinions or emotion; I want numbers and facts.