Evidence of meeting #36 for Fisheries and Oceans in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was dfo.
A video is available from Parliament.
Liberal
NDP
Fin Donnelly NDP Port Moody—Coquitlam, BC
I would like to start off by mentioning that I think we have two Canadian heroes in front of us here, in their respective fields. Certainly they are both heroes of mine. As a quick note, in 2000, I dedicated my second swim the length of the Fraser River to Mr. Otto Langer for his years of dedication to salmon, to the salmon fishery habitat, and to the Fraser River. I'm very happy that both of you are in front of us today in this committee talking about the Fisheries Act.
Mr. Langer, if I could start with you, on the 2012-13 changes to the Fisheries Act with respect to habitat protection, in your view, was this a good thing?
Fisheries Biologist, As an Individual
No, there shouldn't be any doubt in the mind of anyone who is objective that this wasn't a good thing. We probably lost the basis of protecting 80% of habitat in Canada.
We've all heard of death by a thousand cuts, and that's what destroys habitat in most places. In my last years in DFO, I did a lot of work on assessment of the no net loss policy, and when it comes to the bigger projects, you have a greater industrial will in the company to look good. They hire better consultants, and they do a better job of assuring a no net loss of habitat. Government rides them more because they are big corporations, but when you take the 101 little landowners in that same watershed, one who's cutting down some trees, one who's destroying the riparian zone, and someone who runs across a stream with his ATV, and you add all of those up, they are going to do a lot more damage to the stream than one larger industrial development.
Basically, we deleted out all of that protection from the Fisheries Act. That is your harmful alteration disruption and destruction of fish habitat. None of that would be considered serious harm, as defined in 2012-13.
NDP
Fin Donnelly NDP Port Moody—Coquitlam, BC
Can you tell me a bit about your background, why you are qualified to talk about this, and how long you've been a fisheries biologist when you were working for the department, etc.?
Fisheries Biologist, As an Individual
I started working for the Department of Fisheries and Oceans in 1969. I was recruited out of the University of Alberta with two degrees in fisheries biology. I was hired to be a fish protection biologist. I soon learned that it was hard to do the job unless we had a law, so some of us pushed for a law to protect fish habitat. In theory, we could protect fish habitat from dams, flows from dams, debris from logging, and things like that, but there was nothing there to really protect habitat. You could destroy a wetland. You could run a tank through a marsh, and there was nothing you could do about that.
We also used the pollution law to protect a lot of habitat. If you did fill in an estuary, we called that a deleterious substance, and we would try to protect the Fisheries Act using water quality law. Over the years I became, in Canada, probably the expert witness who has done more expert witness courses on pollution and the Fisheries Act, with well over 100 cases from Newfoundland to Vancouver Island, and from the Arctic down to the 49th parallel. I've been on a lot of tribunals. I've done a lot of work. I've directed a lot of projects, many of which have been published. I'm still doing some of that work, including a few of the key ones I have right in front of me that have appeared in qualified journals.
NDP
Fin Donnelly NDP Port Moody—Coquitlam, BC
Thank you.
Ms. Nowlan, in your testimony you talked about a weak interpretation. I'm wondering if you could expand a little bit more about the judge who talked about the interpretation of the new act for protecting habitat being weak.
November 23rd, 2016 / 4:15 p.m.
Staff Counsel, West Coast Environmental Law
Yes, I'd be happy to. Thank you.
The only case I could find that did interpret that section was a Federal Court case, where the Mikisew Cree First Nation objected to Bill C-38, the omnibus budget bill, which weakened habitat protection, on the basis that they weren't consulted. They were successful, but as the bill had already become law, there was no remedy for them, unfortunately. In that case, commenting on the impact on their aboriginal rights to fish, and the duty not to cause serious harm to fish, the new provision in the act, the Federal Court said that the amendments to the Fisheries Act removed the protection to fish habitat from subsection 35(1) of the act. In that, they also said that the amendment “clearly increases the risk of harm to fish”.
NDP
Fin Donnelly NDP Port Moody—Coquitlam, BC
Thank you.
You've given clear recommendations. You've submitted them to this committee. Both of you have submitted your recommendations, which I think is really important. Thank you for doing that.
You also mentioned linking policies to the Fisheries Act. I'm wondering specifically about the wild salmon policy. Perhaps you could talk a little more—and if he wishes Mr. Langer could also comment—about, for instance, taking an existing policy that the department has and how it could be linked better or legally to the Fisheries Act.
Staff Counsel, West Coast Environmental Law
Sure. I'd be happy to.
As you know, the Cohen commission did recommend full implementation of the wild salmon policy, and said it was an excellent policy; the only problem was that it hadn't been implemented fully, which is a big problem. It's a stepped approach. The first step in strategy one is to identify conservation units for salmon and then you colour code them green, yellow, or red. The red-coded conservation units, particular units of habitat, are supposed to, if you go all the way through the strategy, result in a management change, but unfortunately, that management change isn't well defined in the policy. Even more unfortunately, in the 11 years that we've had the wild salmon policy, we've never managed to get from strategy one to strategy four, except in one limited case of chinook on the south coast. I think that the act could be amended to actually talk about how to classify habitat, and to require that there be a response when you have red-coded conservation to bring back the fish.
NDP
Fisheries Biologist, As an Individual
It's probably on this point that I would disagree a little bit. My experience shows that the more complicated your legislation is, the more confusing it is to the courts. All you have to do is confuse a judge, and you can't do any enforcement work.
You take the B.C. Environmental Assessment Act. Recently we challenged that in the B.C. Supreme Court. Our lawyers just couldn't understand the act. They spent days trying to understand the act and its regulations. You'd want to avoid that.
I think policy should remain as policy and it defines simple, strong law. Then you have guidelines on how to achieve that policy. Then, and this is what's lacking, you need a strong industrial and citizen stewardship program, where you work with industry, and you hold their hand in partnership, and they will learn how to do the right thing to avoid—
Liberal
The Chair Liberal Scott Simms
I'm sorry, Mr. Langer. I have to cut it right there. The time is up.
We're going to Mr. Finnigan for seven minutes, please.
Liberal
Pat Finnigan Liberal Miramichi—Grand Lake, NB
Thank you to the panel for appearing in front of us today and for giving us your expert opinion based on your lifelong experience with the protection of fish habitat.
I'll start with Ms. Nowlan.
Could you please complete your statement that you wanted to complete when Mr. Sopuck didn't want you to finish. Could you please tell us what your background is? Have you worked in industry.
Staff Counsel, West Coast Environmental Law
Yes. I was just pointing out that, as a lawyer representing engineers and architects for large construction projects, I did have to deal with interpretation of the Fisheries Act. Also, now, for conservation groups, and streamkeeper groups, and individual members of the public who call our office because they're concerned about the impact of a development or project on their favourite local stream they've spent countless volunteer hours protecting, we have to interpret the act and tell them how to enforce it.
It is definitely true that DFO needs more resources, more enforcement officers, but the law needs to be clarified, too.
Liberal
Pat Finnigan Liberal Miramichi—Grand Lake, NB
Thank you.
Mr. Langer, to quote you, you said that the changes are the biggest setback to conservation law in Canada in half a century, and that you have watched a steady decline in the application and enforcement of the Fisheries Act over the past decade.
In your view—
Fisheries Biologist, As an Individual
Excuse me, we can't hear you. Could you speak up?
Liberal
Liberal
Pat Finnigan Liberal Miramichi—Grand Lake, NB
I'm sorry about that, Mr. Langer.
To quote you, you have described the changes to the Fisheries Act as the biggest setback to conservation law in Canada in half a century, and you've said that you have watched a steady decline in the application and enforcement of the Fisheries Act over the past decade.
In your view, what's caused that steady decline in the application? Is it government bending to lobbyists or is it to save money? In your view, why did we go down that path, and why are we cutting back on the enforcement?
Fisheries Biologist, As an Individual
I'd say the downhill slide started during the government previous to the Harper government. The government of Paul Martin was into balancing the books big time, and cuts were being made at DFO. I think we lost 40% of our scientists then, and we came up with a term called “smart regulations”. I shouldn't say “we”; it was imposed upon the agency, I think. The key thing was self-compliance: let industry look after itself and it'll do the right thing.
From experience in Australia and elsewhere in the 50 years I've been around, that simply does not work, so we were going off in the wrong direction, hoping it would work. It was wishful thinking. It hasn't worked. That was going in the wrong direction.
Then the word was out to cut down on enforcement. I don't know why that happened. As I showed in the figure I gave from the Cohen commission, less and less work is being done every year. I could get into a long story of why that happened, but fisheries officers were taken off of habitat. That was a really poor move.
We could probably look at 10 different things as to why things were going downhill. Then suddenly in 2012, we decided that fisheries aren't doing enforcement work: let's get rid of enforcement staff, and let's get rid of the habitat section of the Fisheries Act, and let's put them in place. This is what the pipeline companies did lobby for. It has been a downward spiral since about the year 2000.
Liberal
Pat Finnigan Liberal Miramichi—Grand Lake, NB
Thank you.
Ms. Nowlan, you said earlier that the aquaculture industry should be separate from DFO, so I would expect maybe with the Department of Agriculture or some other.... How would that be different?
Right now, if it were under a separate department, would they be infringing on the laws or the act as they operate? Can you elaborate on that?
Staff Counsel, West Coast Environmental Law
There are some new aquaculture activity regulations under the act that allow pesticides to be used in water, which many believe should be changed. I think I'll leave the questions on aquaculture separation, and I'll just refer to the Cohen commission report. After three years of detailed investigation, I think his recommendations should be followed. He heard from a hundred witnesses and commissioned numerous technical studies, and I would rely on his report.
Liberal
Pat Finnigan Liberal Miramichi—Grand Lake, NB
Thank you.
In the Fisheries Act, it does not include any obligation to restore depleted fish stocks, to prevent overfishing, or reduce bycatch.
In your opinion—and I could ask both of you—does DFO adequately address these issues as part of its suite of fish-related policies? Please elaborate.
Staff Counsel, West Coast Environmental Law
I think that putting an explicit provision in the act that requires rebuilding depleted stocks, as they do in the U.S., would be a good idea. It has proved to be quite successful in the U.S. since that change was made to their law.
Also, a simple prohibition on overfishing would be a good addition, a modern addition to our act. Why not state the obvious?
Fisheries Biologist, As an Individual
Yes, I think we are—and I'll use this word—too liberal in how we run a fishery. For instance, we can look at white sturgeon, an endangered species in the lower Fraser, and we still run a multi-million-dollar fishery on that stock and we just say, “Oh, you can catch and release”. Well, is that the way we should protect something that's endangered? We do a lot of those types of things in government, or we did, and we still do to basically keep the public happy so they can fish. At times you do have to reduce fisheries quite drastically.
The fisheries people will say that you can't do that, that you're going to lose public trust and that you have to let them keep fishing. That just doesn't make sense.
We seem to put more money at times into endangered species under SARA than we do to maintain healthy fish stocks. That's truly unfortunate.