Fisheries Committee on Oct. 31st, 2016

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

Right.

[David Browne]

As an outcome, yes, we want fish production. I think what Dr. Favaro was saying is exactly down the right line. One of the ways that you ensure optimal fish production is to protect habitat.

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

Again, I refer to testimony by Mr. Kevin Stringer back on November 6, 2012, when he talked about our new Fisheries Act proposals, and he said:

Habitat is a crucial element of that, but is not the only element of that. We now have new tools to address other threats to fisheries, such as aquatic invasive species, and to take other approaches around productivity. But productivity, as you point out,—

And he's referring to me.

—is the focus of the fisheries protection provisions.

At the time, the senior officials in the department, I think, were quite supportive of the changes we were making to the Fisheries Act, because it was so broad before. I very much appreciate Mr. Hardie's and Mr. Morrissey's questioning. It was so broad that everything in the world became fisheries habitat and it was almost impossible to deal with.

I'd like to maybe ask Mr. Olszynski one last question. There was an issue, and I hate to tread on Mr. Morrissey's turf, about 20 years ago, I think, when there was some potato field runoff in Prince Edward Island and it was through no fault of the producers. They put down their chemicals in their fields to grow almost the best potatoes in the world—Manitoba grows a lot too, but anyway, P.E.I. potatoes are wonderful—doing their due diligence, working very hard, and I think Mr. Morrissey would remember. There were very massive and significant rainfalls and there was a massive fish kill because of that. Should those farmers have been charged?

[Martin Olszynski]

Again, if the facts are such that there was due diligence, usually that's the work that fishery inspectors or officers will look at on the ground. I think when they make a recommendation on whether or not to charge, certainly if they think a defence of due diligence exists, then together with the prosecution they will make a decision that a prosecution is not in the public interest.

Is that the Wilmot River incident you're referring to?

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

I think it was the Morell River.

[Martin Olszynski]

I don't have the specifics of that case, but certainly going back to the question earlier, actus reus, mens rea, there is no mens rea requirement. But once the actus reus is proven, then the defence has the right to establish due diligence. That happens all the time.

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

One really last quick point. The implications from some of the witnesses is that the Fisheries Act is the only act that's available. What's conveniently forgotten is that all provinces have environmental licensing regulations and project reviews, and multiple reviews by different levels of governments really hurt economic development, especially rural economic development, the communities that I represent.

Thank you.

[The Chair, Liberal, Scott Simms]

You have three minutes left, Mr. Arnold.

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

Thank you, Mr. Chair.

Over the last little while we've been hearing differing testimony but with the same theme, that there seems to be a lack of goals and measurables. Would you say that part of the problem you see with the current act is that we could use better-defined targets, better-defined measurables, so that we can evaluate, at a point down the road, whether the changes were positive or not? I guess I'll ask each of you to reply to that.

Mr. Lapointe.

[Nick Lapointe]

I'll say yes.

[David Browne]

I would say having purposes to the act. I guess section 6 isn't that, but it is a roundabout way of setting some purposes. Maybe that could be strengthened. So, in setting goals and objectives and reporting on them, there's a part that's in law, and there's a part that's in policy. I absolutely agree that, yes, we have to know where we're going, or we're not going to get there.

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

Has that really changed from the old act, or is this a systemic problem that's been there for...?

[Martin Olszynski]

If you read some of the policy statements that came out at the time, I think that, with the addition of section 6, the idea was that this would create some kind of certainty and would guide proponents and everyone to understanding what's going on. Unfortunately, again, because there's no public registry, it's actually impossible for anyone—unless they're filing ATIPs on a regular basis—to know in any given instance whether the minister has issued an authorization, whether the minister considered those issues, and how the minister considered them. I think another improvement would be to have those factors. Again, we're not talking about every project, whether you want to call it low impact or low harm, or whatever. But, at least in certain instances—certainly for the medium- to high-risk projects—it would be an improvement to have the minister set out a set of reasons, in addition to the authorization. The reasons would explain how the minister considered those factors, and how he or she reached that position.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

I'll just add that it's not easy appearing before this committee. I just want to go on record as saying that we appreciate all of the witnesses for coming to stand before us and for taking the line of questioning from us. Again, just want to say thank you from all of us. Regardless of whether it was partisan or non-partisan, we're all here with the same intention: to figure out whether the act, as it sits today, needs beefing up. I do appreciate all of the witnesses coming forward.

[Martin Olszynski]

With regard to that comment, as a former DFOer, I think it's also really hard being a DFO employee. It has been very hard being a DFO employee for the past 15 years. That's one of the things, I think, that the committee has to think about, as well, in its report. I certainly don't have a doubt because, within the department, I met outstanding fisheries biologists and professionals, but they have traditionally always been the pinch point for development and for a lot of other things. They need a bit of space, I think, to be able to do their job, basically.

[The Chair, Liberal, Scott Simms]

Thank you, gentlemen.

On that note, Mr. Donnelly, you have seven minutes, please.

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

Thank you, Mr. Chair.

I just want to make a note before I ask my question. I think Mr. Morrissey asked a great question regarding DFO officials and provincial, regional, local, government, and first nations officials. I think they also should weigh in on the impacts the changes have made. It's a very good question.

Prior to becoming a member of Parliament, I was in local government, and development was certainly the big issue around fisheries habitat. Obviously, housing, commercial projects, roads, bridges, and that sort of thing were huge concerns, especially in the lower Fraser, where I am. Back then, I was a city councillor in Coquitlam.

Speaking of the Fraser, I think Dr. Favaro and others referenced the Fraser River sockeye earlier. I came in 2009, and there was a return of just over a million Fraser River sockeye. At that time, it was probably the lowest return in recorded history. In 2010, there were over 20 million that returned, so it was a big year in terms of modern history. This year it is looking like there will be less than a million. Essentially, the overall trend has been down. Certainly, that's post-contact. With regard to pre-contact, we understand that there were over 100 million Fraser River sockeye coming back to that river system, which is still one of the greatest systems in the world. However, there has been a downward trajectory. If you look at other species, like salmon, in that river system, it's still in trouble.

However, I want to go back to 2012 because of one of the main issues at that time and, again...it's always a question about what drives changes politically. I don't think it's any secret that there were some major energy projects being proposed, specifically, major pipeline projects in northern Alberta, B.C., southern B.C., and across the country. I think it's fair to say that the government at the time was anticipating problems with environmental protections like the Fisheries Act, the Navigable Waters Protection Act, and the Canadian Environmental Assessment Act. It was also anticipating significant change to the National Energy Board's powers in reviewing environmental projects.

With these concerns under the Fisheries Act—and these major projects being reviewed—could our witnesses provide comments if they have any concerns? I don't know if it's fair to say that we don't have the Northern Gateway project on the books, but it seems likely that it's not. However, we still have other major energy projects for which this Fisheries Act still has the same definition. Does that provide any concerns to the witnesses here?

I'll start with the Canadian Wildlife Federation.

[David Browne]

Pipelines, dams, mines, urban expansion, changes in agriculture intensification...aside from the NEB, those acts are cornerstones of how we make sure that development goes ahead with as minimal an impact on the environment as possible, and in some cases, that it doesn't go ahead because the costs to the environment are too high. I don't know what I'd say other than that. Do we have concerns? Absolutely. We have concerns across all of those acts because from our point of view, we can always do better. The main thing we have a concern about is that those are four pieces of legislation—the NEB is not a piece of legislation, but it's an oversight body—and there is also the Species At Risk Act, and there's also the Canadian Environmental Protection Act. These are all, to some degree or another, in various types of review and coming back to Parliament and in committee.

What we don't see is the coordination of all of that action into something that is a coherent picture of where Canada is headed on the environment and on the conservation of wildlife. That is what we would really like to see.

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

I'll maybe ask Mr. Olszynski and then go to Dr Favaro to finish.

[Martin Olszynski]

The problems with the current act have been sort of discussed. There is some uncertainty around some wording. Two big parts of the story today are that these problems are not all new. A lot of these difficulties are going way back, at least 15 years, and that's really important. Clearly, after 2012 we had further reduction of DFO's oversight, but this is a long slide; this isn't anything that's new.

I think a year ago, someone had taken a picture of a giant excavator, it looked like, in the water of the Oldman River in Alberta. The question was whether or not there was going to be an enforcement action. To my knowledge, because we know that in 2014-15 there were no charges, it appears that the giant excavator being in the middle of the Oldman River Dam wasn't sufficient, permanent alteration or destruction to fish habitat. If, on the other hand, tomorrow the department decided that it was going to take compliance and enforcement very seriously and publish that, making it very clear to all Canadians that in the meantime, while Parliament ponders its changes, it was going to rigorously enforce that prohibition, I think you could get a lot of the way, even with its current wording.

A big part of the story is also that there is the law in the books, as my colleagues said, and then there's the law, in terms of how it's implemented and enforced. I do believe, and I do think the figures support this notion that in addition to whatever changes there will be to the wording, the signal has been sent that this law is not being implemented and is not going to be enforced. If you change that, you might get halfway.

[Dr. Brett Favaro]

I'd just add that I want to talk about trust and the question of whether people have trust in these systems that are put in place to ensure conservation. As scientists, we're just the messengers. The context is that there have been widespread declines in fish habitat and there have been widespread declines in freshwater fish, at least for species at risk, anyway, on which we have data. We've seen these species decline.

It's concerning to people when they see wording that could allow for more things to happen. It's pretty unambiguous that whereas one thing said you can't do it, this other one adds a lot of caveats. I think this is where people were coming from when they opposed a lot of these changes. It could be that there's a network of things that come into effect here and there that might patch some of this up, but we're not going to trust that, because over the past number of years there have been declines, declines, and more declines. This is why people resisted this, and this is why scientists were so skeptical when we saw this wording change. Most of us aren't legal experts but we know science and we can certainly read these words and imagine all these scenarios in which you could have further declines.

In this environment, I think it's fair to say that we have conservation values; a lot of people do. They want to see long-term sustainability, so that's where this messaging about concern came from. We all want to be prosperous and we want to see things proceed in an environmentally sustainable way, and this is where we're coming from with a lot of this testimony today. It's not about shutting things down; it's about having people do things in the right way so that we can ensure that we get all these benefits for generations to come.

[The Chair, Liberal, Scott Simms]

Thank you, Dr. Favaro.

Thank you to everybody.

Just before I move on, I'd like a point of clarification. We tend to throw out abbreviations every now and then. The only abbreviation we really don't mind is DFO, for obvious reasons. You did say, a couple of times, NEB. You are talking about the National Energy Board—is that correct? Okay, I just wanted to put that on the record.

Thank you, everybody. That concludes this meeting. We'll see you in 46 hours.

The meeting is adjourned.