Thank you for this opportunity to present the Mining Association of Canada's views on the Fisheries Act.
The Mining Association of Canada, MAC, is the national organization representing the Canadian mining industry, comprising companies engaged in mineral exploration, mining, smelting, refining, and semi-fabrication. Our members account for the majority of Canada’s production of base and precious metals, uranium, diamonds, metallurgical coal, and mined oil sands.
I am accompanied today by Mark Ruthven, associate biologist and assistant group head of Amec Foster Wheeler. Mr. Ruthven is a member of the MAC Fisheries Act task force and has been deeply involved in our work with Fisheries and Oceans Canada officials to understand the 2012 amendments to the act. He has direct experience with the section 35 review and authorization process.
MAC had not advocated for legislative change to the act, fearing the uncertainty and confusion that would be caused by departure from decades of jurisprudence and established practice. However, once the act was amended, we worked with DFO officials to understand how to adjust and continue to comply with the act.
In the mining industry's experience, the 2012 changes to the Fisheries Act have in practice broadened the circumstances in which the section 35 prohibitions apply and increased the circumstances in which an authorization and offsets are required.
While noting the increased burden on mining project proponents imposed by the amendments, we are not requesting that they be reversed. In our members’ experience, the amendments have encouraged greater attention to sound science and the purposes of the act.
However, our experience underscores just how critical planning for, and executing transition to, amended legislation is to avoiding confusion and imposing unfair costs on companies. In the case of the 2012 amendments, there were significant challenges with the implementation and transition, and the department was not resourced sufficiently to assist project proponents. Training was not provided until well after the provisions came into force. This resulted in unacceptable delays and costs to some projects caught in the transition.
Should your committee recommend any further amendments to the act, we urge you to accompany them with recommendations for appropriate resourcing, training, and planning for future transitions, including having an implementation plan fully in place prior to the coming into force of any amendments.
Mining projects observed several problems in managing the transition to the amended act when all the amendments came into force in late 2013. DFO did not provide timely or adequate explanatory guidance and training that would have helped proponents and DFO regional staff to interpret and implement the amended provisions. That explanatory guidance, such as how to identify commercial, aboriginal, or recreational fisheries and fish that support such fisheries, or how to assess fisheries productivity, still falls short of what is necessary for clear and consistent national application.
As well, DFO reduced the number of its regional offices and staff at the same time as the amended provisions came into force, further reducing the assistance available to project proponents.
Finally, DFO did not account for the impact of the amendments on projects that had already substantially completed the studies and consultations recommended by DFO staff to prepare an application for authorization. Abruptly and without strategic use of a grandfather policy, proponents were advised that their application plans had to be modified to include more water bodies and to incorporate productivity and other new policy concepts without guidance on how those new concepts were to be operationalized.
Despite the initial challenges observed by our members during the implementation of the amendments, some members report that the application of the revised act has begun to evolve into a consistent and predictable process. We believe that the amendments have encouraged improvements to the scientific rigour of the fisheries protection measures of the act, specifically with the administration of section 35 reviews and authorizations.
The increased enforcement provisions and regulations governing applications for authorizations have resulted in an applied movement towards better-defined and scientifically defensible productivity metrics as well as project success criteria and clear and defensible monitoring commitments. The integration of contingency measures and defined thresholds directly linked to monitoring provides additional controls, ensuring that impacts to Canadian fisheries are accurately identified, appropriately monitored, and successfully accounted for by offsetting measures.
In light of MAC members' experience with the Fisheries Act, MAC recommends that the committee urge the government to improve and increase the department's compliance promotion capacity, including increased guidance and training.
Should the committee choose to recommend amendments, they must be accompanied by transition provisions, and for any recommended amendments, the committee should also urge the government to have in place, before coming into force, adequate implementation and transition plans, departmental capacity, and compliance promotion.
Thank you.