Fisheries Committee on Oct. 31st, 2016

[Dr. Brett Favaro]

Absolutely.

[Bernadette Jordan, Liberal, South Shore—St. Margarets, NS]

Are you still struggling with getting data? Is there data still not available to you that you would like to have?

[Dr. Brett Favaro]

We can always get better with that and I think the announcement, recently, that money was going to be put into explicitly data sharing from Fisheries and Oceans Canada, is excellent news. It could well be that this or that needs to be done to the law, but it should be easy for people to verify that the things that are being said are factually correct. This is where data sharing comes in. I was asked earlier about whether fish are declining after this came into effect. I was being asked to recall stock assessments, essentially, from across the country. The reality is, we know that stock assessments are also spotty in Canada. The data are problematic and incomplete. This is where taking what we do have and making it available is one step. Getting more information and getting more monitoring so that we actually understand the impact these decisions are having on the environment is another aspect to that.

[Bernadette Jordan, Liberal, South Shore—St. Margarets, NS]

Great, thanks.

Dr. Lapointe, you wanted to comment?

[Nick Lapointe, Senior Conservation Biologist, Freshwater Ecology, Canadian Wildlife Federation]

I simply wanted to add that it's not just a question of sharing data, but it is the lack of monitoring data that makes weighing in on whether these changes are beneficial or harmful very challenging. Ongoing baseline assessment of habitat condition across Canada would really help to inform evidence-based decision-making and to track the outcomes of these types of projects.

[Bernadette Jordan, Liberal, South Shore—St. Margarets, NS]

Thank you.

[The Chair, Liberal, Scott Simms]

Thank you, Ms. Jordan. Your seven minutes are up.

We'll go to the second round of five minutes.

Mr. Arnold, would you begin please?

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

Thank you all for making yourselves available or for being here.

First off, Mr. Browne, you had referred to the inability to experiment with offsetting. Was that prior to the changes or after? Can you elaborate a little more on offsetting, whether there was impact to habitat?

[David Browne]

I think it's both before and after. Some amendments were made in 2012 that might facilitate some new ways of looking at offsetting. There is still some legal language, as I understand it, that is a barrier to working on things such as creating a habitat banking program in Canada.

Prior to 2012, there were also challenges within the law to other novel approaches to offsetting. By that I don't mean crazy, risky approaches to offsetting important harms, but finding ways to get the best bang for our buck. I think the expression we were using in the office was that isn't always counting pebbles. It's not always about the 10 square metres of sand being offset by an equivalent 10 square metres of sand. So it's about finding other ways.

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

Would it be fair to say that the new act may enable experimentation to take place on an easier basis because of the temporary alterations that might be allowed under the new act that wouldn't have been allowed under the old act, which simply didn't allow any alterations?

[David Browne]

The restriction wasn't so much around the fact that there was a prohibition on a temporary harm. The restriction was really around liability and what was allowed from a regulatory point of view.

The way this law gets applied both pre- and post-2012 is that there's a prohibition, and then there's a policy that interprets that and there's a program that rolls out. I think in both cases, as was just demonstrated, there's discretion used in how the law is applied, including a prohibition on temporary harms. I don't think it would prohibit something such as habitat banking. It's really the liability issue and the transfer of liability that's the problem.

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

I'd ask each of you to provide some input on this next question. I'd like to hear your thoughts on whether you think it's reasonable to expect consistent application on all waterways across this country, from coast to coast to coast and inland, under one act, with the multiple jurisdictions that we deal with. Do you think it's possible or reasonable to expect consistent application?

First, Mr. Olszynski.

[Martin Olszynski]

Personally I think it's reasonable to expect reasonably consistent application of the act. At the end of the day, what that comes down to, of course, is that we are a confederation, and in its wisdom or otherwise, Parliament decided that fisheries would be subject to national parliamentary oversight. So the key is to make sure that in fact we're not allowing different regions to essentially pit their habitat protections or water quality protections against each other to varying extents to leverage maybe some kind of advantage or otherwise. Actually having a consistent national law ensures that basic national standard and that all Canadians then are entitled to that same protection and quality of act.

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

Dr. Lapointe.

[Nick Lapointe]

Yes, I think consistent outcome should be expected in terms of consistent protection for streams and lakes in all jurisdictions. However, ecosystems vary quite a bit, and what it takes to offset works in the Arctic versus in southern Ontario are different types of projects. The regulatory regime has to be flexible to allow the right types of ecological processes to be protected and addressed.

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

Mr. Favaro.

[Dr. Brett Favaro]

My answer is somewhat similar about the outcomes. I grew up in British Columbia, and now I live in Newfoundland and Labrador. If I broke a federal law in British Columbia, I'd be punished the same way as if I broke that federal law here in Newfoundland and Labrador.

Certainly there's a certain amount of consistency that should be expected, although I agree that the way you get there is going to depend a lot on the ecosystem you're working with.

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

Thank you very much for being here.

[The Chair, Liberal, Scott Simms]

We'll go back to the government side.

Mr. Finnigan, you have five minutes, please.

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

Thank you to our panel for being here today on our first day of the review of the Canada Fisheries Act.

Mr. Favaro, you co-authored a research paper in 2015 stating that there were alterations to habitat protection, historically afforded under the Canada Fisheries Act, and there was a lack of federal leadership on marine species at risk. Could you explain how the changes to the Fisheries Act in 2012 required the splitting of fish into valued, fishery-related, and non-valued categories as indicated in your 2015 paper?

[Dr. Brett Favaro]

Yes, this is referring to this idea that there are fish that support a fishery or that you fish, and then there are fish that are essentially not part of that. There are fish that are considered to be irrelevant.

This is what I was mentioning earlier about the concern around this. If you go to an ecologist and say, “I want you to prove to me that this fish doesn't matter”, you would find that's a really hard thing to do. At the same time, it's also hard to prove that this particular fish matters, because if you were to remove a fish from an ecosystem, the fish isn't just going to keel over, it's going to try to eat something else.

This is what we see right now with Atlantic cod—a good example. There is some concern that we're finding some localized groups of cod that don't have bellies full of fish. They have bellies full of sea stars and other species that might be suboptimal for them to eat. So, it's not that you flip a switch and everything falls apart overnight. It's that you're taking out the Jenga pieces and making the whole tower a little flimsier and increasing the probability that you're going to get it to fall over at some point.

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

Could you follow up by explaining how the changes to the fisheries act would reverse the burden of proof and how it would be reversed from what the precautionary approach would support?

[Dr. Brett Favaro]

The precautionary principle means that if there's something that is likely to cause a problem—I'm paraphrasing this, essentially—or that you can't be sure it's not going to cause a problem, you do the thing that's less likely to cause an irreversible harm. Precautionary would generally mean that you wouldn't assume that a fish or other aquatic organism is irrelevant to the ecosystem. That would be a highly risky assumption to make.

The precautionary approach would say that you assume that things matter that are in the environment and you manage around that. This is why managing for fish habitat is a very nice and precautionary thing to do, because if you're saying we can't degrade, we want no net loss of fish habitat, what you're really saying is we actually don't need to know whether this fish eats that fish or whether this thing eats that thing, because we're going to put that aside so that the fish that we're interested.... Ultimately, this serves us, because the thing we want to fish is supported by that ecosystem. The precautionary decision is something that most likely keeps the integrity of that ecosystem intact, despite our activities.

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

Thank you.

Somebody said, and I think it was Mr. Olszynski, that project proponents were saying that this act didn't matter anymore, after 2012. Do you think, first of all, that if enforcement had not been cut, that it would have had an effect on the drop in numbers that we're seeing?

[Martin Olszynski]

I'll back up just to say that, specifically, with that kind of quote there was a story in theVancouver Sun, published around 2014, by Larry Pynn. He had interviewed some people and the chair of the Fraser Valley Watersheds who suggested that was what he was seeing on the landscape. People had gotten the signal, now is the time, and no one is going to prosecute you. You can go ahead and do what you want to do.

I would suggest that the data figures support that sort of finding, especially, again, the fact that right in 2012, the minute the changes were announced, notwithstanding the fact that it was another year and a half before they were actually implemented, brought into force, the referral numbers declined right away. That, to me, suggests very strongly that individuals simply understood that—notwithstanding that the law still hadn't changed—the changes that were going to be coming, and as well, the changes to DFO's budget, meant that they didn't have to worry about it as much.