Fisheries Committee on Nov. 2nd, 2016

[Dominic LeBlanc, Liberal, Beauséjour, NB]

My understanding, Mr. Donnelly, is no.

In a discussion yesterday with the senior officials—some of whom are with me today—I wondered how various appeal courts had looked at certain sections of the new act or of the changes, and if they had been tested at various courts of appeal. I was surprised to learn that they hadn't been. This speaks, frankly, to the lack of prosecutorial capacity, either because the legislation was drafted in a way that lawyers didn't believe they could successfully lay a charge, and/or the cuts and reductions at the department for monitoring and enforcement were such that we didn't have that capacity, or a combination of all those factors. I think the answer, Mr. Donnelly, is no.

However, if we find—and we'll triple-check that—that it is not a completely accurate answer, we'd be happy to get back to you. If you don't hear from us, it's because the answer is no.

[The Chair, Liberal, Scott Simms]

That being said, as is tradition here, since we've completed two rounds, we'll go back to the format of the first round. We'll give seven minutes to each of the three parties. We're going to start with the governing party and Mr. Morrissey. You have seven minutes, please.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you, Mr. Chair. I thought I would have three minutes.

My question is to the minister. It was stated by a previous witness that changes to section 35 of the Fisheries Act contained unscientific language that allowed for overly broad interpretation. Indeed, in your own comments, Minister, you referenced confusion on what is protected now as a result of that.

Could you elaborate on that a bit more? Was there a consultation when the process took place? Is this ambiguous language that is in there leading to confusion on what is protected and what is not?

[Dominic LeBlanc, Liberal, Beauséjour, NB]

That question is a very accurate one in the sense that we believe the scope and the breadth of the protections were narrowed. Ambiguous language in a statute is often resolved or clarified by various court decisions. As I said, there haven't been enough of these court decisions to provide that clarity. We're hoping that Parliament will change the legislation to provide a greater degree of clarity.

Section 35, which concerns serious harm to fish, moved from what had previously been a broad prohibition of activities that would result in the harmful alteration, disruption, or destruction of fish habitat. Now, in our view, the prohibition is scoped down and applies to activities that would result in serious harm to fish that are part of commercial, recreational, or aboriginal fisheries, or fish that support those fisheries.

This change effectively, in our view, narrowed the scope of the application of section 35 and the number of species, or even, as I said in my opening comments, Mr. Morrissey, the bodies of water that might be subject to the provisions of this act. It is a technical and important question.

I don't know if Mr. Stringer could briefly add something. If you want more information, we'd be happy to get back to you.

[Kevin Stringer]

I think there are three areas in that section 35 that have led to confusion, questions, and uncertainty. The first one is “commercial, recreational or Aboriginal fishery”, because previously it was just everything. Now it is “commercial, recreational or Aboriginal fishery”. What exactly does that mean? There are definitions in the act, but we don't have the jurisprudence to say exactly what that means. Does it have to be actively fished or is it subject to a licence, etc.?

The second one is “fish that support such a fishery”. Is that just the prey? Is it two or three trophic levels down? What exactly is meant by that?

The third is “serious harm”. Serious harm is defined as the death of the fish, which is pretty certain, or permanent harm or destruction of habitat. What is permanent alteration of habitat as opposed to temporary? How permanent do you have to be to get to permanent?

There have been questions, whereas the previous section 35 was pretty blunt for any harmful alteration, disruption, or destruction of habitat anywhere. You have those three sets of issues trying to get at fisheries in there, but it does create some uncertainty.

[Bobby Morrissey, Liberal, Egmont, PE]

My next question leads from that because of the confusion in that area, and I have to speak for the farmers that I represent, as well. This is where you get the concern coming from the farm community at some of the confusion in this section around the waterways that they sometimes alter or change. You get more of that from the farm community. Could you comment on that, Minister?

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Mr. Morrissey, you're absolutely right. In my own constituency—and you have a long experience on Prince Edward Island with the agricultural community—we've heard their concerns. We share their concerns. We're seeking to protect fish and fish habitat. We're not seeking to provide inadvertently some undue regulatory or legislative regime on agricultural practices.

There may be the very rare circumstances where there's an overlap or where there's an intersection. I've heard anecdotal examples, we all have, and sometimes it might be a lack of judgment or common sense on the part of a particular enforcement officer or person who perhaps didn't have what he or she thought was the sufficient authority to come up with an appropriate solution. I mean some of it can be good faith human error or human judgment errors, but in some cases, if there's a legislative provision that would allow something that would appear completely unreasonable to take shape, then that would not be something that we would condone or we would want to see.

I think we would benefit, and I said that I thought this in response to Mr. Sopuck, from your committee's advice on how exactly we square that circle. You have experience, and Mr. Finnigan ran a business called Mr. Tomato in New Brunswick for a long time, including in my constituency. There is a lot of experience at this table with respect to agricultural issues. We would benefit from your wisdom on that, as well.

[Bobby Morrissey, Liberal, Egmont, PE]

Mr. Minister, you raised a subject that is near and dear to a lot of our hearts: the owner-operator policy. You referenced it. It's part of the Fisheries Act. We're looking at habitat, but I do think in some cases owner-operator policy does have an impact on habitat, and a significant one. Could you elaborate on that a bit more?

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Sure. I just referenced it in respect to a question from Mr. Donnelly. The independent fish harvesters, some of whom I met last week, raised it with me. That was one of the main things they wanted to raise.

It perhaps rejoins a question that Mr. McDonald had asked. The men and women whose livelihoods and whose economic capacity support their families and their communities are the ones most affected in a very direct way if there are bad decisions, bad laws, and bad policies that lead to a reduction in their capacity to sustainably prosecute their fisheries.

These people will have views on what is the appropriate way to preserve and protect fish habitat. They certainly have views that everybody at this table has heard around fisheries management issues. They're more than happy to offer advice on different management regimes. Their continued and formalized capacity to contribute to the long-term viability of their industry, including the protection of fish habitat, will make the economy and the ecology of the country a lot better, but that's the personal view that I have from conversations with a number of these particular people whom many of you meet regularly.

Again, as a perfect example, Mr. Morrissey, if your committee has a view on that, if witnesses talk about that and you think there's an intersection point, then we would benefit from that advice, but it's an ongoing conversation that goes back 40 years.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Morrissey.

I understand you're splitting your time, Mr. Sopuck. I'll let you know when your three and a half minutes are up and I assume you're going to Mr. Arnold after.

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

Yes.

I want to be really clear. I represent an agricultural constituency the size of Nova Scotia. The agricultural community was basically traumatized by what happened in the early 2000s and the greatly increased fisheries enforcement. To have fisheries officers show up at farmer meetings in flak jackets and sidearms was completely ridiculous. The changes we made to the Fisheries Act were of great relief to the agricultural community, and we are bringing a number of farm groups to the table that the committee will hear.

I'm probably the longest-serving member. I've been on the fisheries committee since 2010—since I became an MP—so I think Mr. Stringer and I are probably the longest serving. I've been on continuously since I became an MP, so it's six straight years. I can assure you that there was lots of testimony in 2012, so to suggest there was no consultation or testimony when we made the changes to the Fisheries Act is not quite right.

Seeing as I'm not going to get any numbers in terms of the effect that our changes had on actual fish populations.... You talk a lot about how many enforcement actions there were, or budgets, or staff, or this or that, but not a word about effect on fish. I am a simple man so I think this is all about fish, but maybe that's too simplistic. Let me give you some numbers from the changes to the Fisheries Act. Due to the changes that were made to the Fisheries Act, we were now, as a government, encouraged and enabled to create partnerships with groups and that's how we created the recreational fisheries conservation partnerships program. I want to thank you, Minister, for retaining the program so far and we will be pushing to keep it retained.

I'm going to go back to the sage of the fisheries committee's staff, Mr. Kevin Stringer, again, who on February 24, 2015, gave us some metrics about what the changes to our Fisheries Act actually did. In terms of the RFCPP, Mr. Stringer said:

...$3.1 million was spent. We had 74 different organizations, undertook 94 habitat restoration projects. In addition, with that $3.1 million we leveraged an additional $7.0 million that was brought to those same projects from partners. That's the 1:1.25 leverage ratio. There were 380 partners involved in those 94 projects. There were 1,700 volunteers...2.4 million square metres and 2,000 linear kilometres of recreational fisheries habitat were restored....

Those are the metrics and those are the kinds of projects that were enabled under the changes we made to the Fisheries Act.

I'm going to ask a fairly friendly question here. Minister, I would hope that you would be impressed with that program and impressed with what the recreational angling community has done. I belong to the Miramichi Salmon Association. They have been recipients of a number of grants. The cold water refuge program was excellent.

I was wondering, Minister, if you could comment on the recreational fisheries conservation program and the great work that the recreational fisheries community has done.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

We had the chance to talk about the Miramichi recreational fishery a few weeks ago. I know that Serge Cormier also spends a lot of time in New Brunswick and on some Quebec rivers.

You're absolutely right. There are a huge number of recreational fishing groups, frankly on all the coasts, that have done great work in being stewards of the habitat and trying to restore and change practices that have had negative effects, so I share that view. I would add indigenous groups into the mix. I have met indigenous groups that also have very deeply held views on how to preserve and protect fish habitat and want to partner with the government and other non-indigenous groups in a way that's very encouraging. I believe that our department and governments—federal, provincial, or municipal—are able to achieve a much higher result in terms of outcomes of better public policy or better operational outcomes, if we can leverage that kind of community goodwill.

I don't disagree with the premise of your statement and we are looking for ways to include these people in the management decisions we'll be making on an ongoing basis.

[The Chair, Liberal, Scott Simms]

I know you're splitting your time with Mr. Arnold.

Please, go ahead.

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

Thank you, Mr. Chair.

Again, thank you for being here.

Mr. Minister, whether you have the answer to this or whether you'll have to rely on staff I'm not sure, but the previous definition prohibiting any alteration of fish habitat may have been overly restrictive. Do you believe it was overly restrictive in preventing any experimental operations that may have resulted in a net increase in fish habitat, or improvement to fish habitat, or an increase in fish populations? Was that previous prohibition overly restrictive?

[Dominic LeBlanc, Liberal, Beauséjour, NB]

I'll offer a quick comment, but I know that Mr. Stringer or Monsieur Morel can probably provide a much higher level of precision.

Was it overly restrictive? I think we all have anecdotal examples of where some of them were very serious for certain individuals or communities, where we may have thought that particular applications in fact left people with a sense that we hadn't found the right balance. I do believe, however.... As to whether we weren't able to authorize some experimental practices, again, I don't have the history. Mr. Stringer, I think, has been with the Department of Fisheries since 1868.

[Voices]

Oh, oh!

[Dominic LeBlanc, Liberal, Beauséjour, NB]

I think that's when he joined, so he could speak to the specific examples.

In my own province of New Brunswick, I know of a number of circumstances where experimental or community activities certainly improved fish habitat or better protected it. Perhaps, Kevin, you could offer more on that.

[Kevin Stringer]

Thanks for that introduction, Minister. As the deputy was pointing out, I think I may be in that picture up there.

[Voices]

Oh, oh!

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Kevin met Sir Wilfrid Laurier.

[Kevin Stringer]

I would say that regardless of whether it was the previous section 35 or the current section 35, there always are some interesting situations. I can remember two or three examples where someone wanted to put a barrier in place to ensure that sea lamprey couldn't get up the river. We said, no, wait a second here, we have rules about fish passage.

You find things like that. There have a been a number of recreational groups who wanted to do something for fish habitat improvements, who actually impacted habitat. We therefore had to take a look at it.

I'd say that's the case with the current section but with the previous one as well. We do need to make sure that common sense prevails in either case and ensure that fisheries protection is what we're all serving going forward.

[The Chair, Liberal, Scott Simms]

Thank you.

I'm sorry, you've run out of time, but you may get another one in. We're overbrimming with time at this point.

Mr. Stringer, you're looking absolutely fabulous for your age. Thank you for joining us today.

Mr. Donnelly, you have seven minutes, please.

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

Thank you, Mr. Chair.

Just following up, Minister, on your comments about first nations and partnerships, I want to make a comment. There's an organization or table on Vancouver Island in British Columbia, called West Coast Aquatic, which will be seeking funding for a collaborative that they have put together. I would hope that you would talk with your colleague, the Minister of Finance, about supporting this proposal coming forward. I know that you haven't seen the proposal or what it is, but I flag that for your concern.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Mr. Donnelly, if you have specific information yourself, or if you want to offer me some advice, I'd be more than happy to follow up on it for you.

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

I would be happy to put that forward. Thank you.

I do want to turn to an email I have from Shelly Hipson. This has to do with aquaculture. From her email, I think she's quite frustrated. She asks:

How many petitions do we have to sign and present to the House of Commons asking government to remove these polluting salmon farms from our harbours and bays? They are not listening and in my opinion have NO INTENTION of listening.

I wonder if you have a comment or what you would say to Ms. Hipson.