Good afternoon, members of the standing committee. Thank you for the opportunity to present on the Fisheries Act on behalf of Manitoba Hydro.
To give you brief background about myself, I've been a fisheries biologist for the last 31 years, starting in 1985 with the Manitoba fisheries branch, performing environmental impact assessment work for Manitoba Hydro projects on the Lower Nelson River. This was one year before the Department of Fisheries and Oceans released the fish habitat management policy and the “no net loss” principle in 1986. For the last 13 years at Manitoba fisheries branch, I managed Manitoba's recreational, commercial and aboriginal fishing files, including interactions with DFO on the overlapping provincial and federal fisheries management and protection mandates. Since 2007 I've managed Manitoba Hydro's aquatic ecosystem approvals section. My experience with the fisheries branch and the Fisheries Act and Manitoba Hydro has been fairly extensive.
Manitoba Hydro is appreciative of the opportunity to make a submission. Manitoba Hydro is committed to co-operative and collaborative assessment of works, undertakings, and activities with all parties toward the protection of Manitoba's fisheries.
Foundational to our perspective and our submission is our understanding that the purpose of the Fisheries Act is to provide for sustainability of fisheries, and not simply the preservation of all fish and fish habitat. We understand that this has been clarified in various instances. One example, probably not that visible out there, is by the court. I'll just read a couple of sentences:
Measures that in pith and substance go to the maintenance and preservation of fisheries fall under federal power. By contrast, measures that in pith and substance relate to trade and industry within the province have been held to be outside the federal fisheries power and within the provincial power over property and civil rights.
We have that understanding, and we also understand that this was in fact consistent with the 1986 fish habitat policy. To that end, Manitoba Hydro views that section 6 and subsection 6.1 of the amended Fisheries Act, 2012, appear to have been crafted purposefully to reflect what Manitoba understands to be the DFO's proper focus on fisheries sustainability. In fact, Manitoba Hydro submits that subsection 6.1, the purpose statement, merits increased prominence within the Fisheries Act and should guide all considerations in the determination of serious harm.
Based on that foundational understanding, Manitoba Hydro does not understand that the revised wording of the Fisheries Act resulted in lost protections. By way of explanation, our consideration of three fisheries management and protection areas follows.
First, as to the killing of fish and protection of fish habitat, prohibitions against killing fish and harmfully altering fish habitat are still present in the new prohibitions against serious harm. Notwithstanding the assertions from various sources that the focus on fisheries and the modifications to the habitat provisions have reduced fish habitat protections, Manitoba Hydro understands that the inclusion of fish that support and contribute to fisheries, and the interpretation that all water bodies that are or could be fished are fisheries, leaves a very broad geographical and fish species scope of application.
Manitoba Hydro does not consider that protections for fish habitat have been reduced, nor has our duty or liability as a proponent or operator of facilities. In fact, the addition of the word “activities” in the prohibition against serious harm to fish arguably represents greater protection for fisheries, as do the addition of requirements for reporting all incidents of serious harm, the duty to intervene to address impacts, the extension in the time limitation for laying of charges from two to five years, and the establishment of contravening conditions of licence as an offence.
If the Fisheries Act is properly focused on fisheries sustainability, then the addition of a requirement to consider the management objectives of the fisheries seems logical and necessary as an early step in the review process to determine what impacts, if any, occur to a fishery.
The inclusion of section 6 factors, and a stated need to consider fisheries management objectives and the broader public interest along with fisheries sustainability in the authorization process, brings focus to the logical need to define the fishery in order to determine if a fishery has been negatively affected and the need to integrate fisheries considerations with other uses and users, given the complexities associated with overlapping jurisdiction.
As previously stated, the integration of multiple water use interests in jurisdictions is not new, and was included specifically in the 1986 policy.
Third, making scientifically defensible decisions within the current level of ecosystem science is very difficult. Fish species that are targeted in a fishery are the product of a complicated series of ecosystem and food web interactions. Predicting habitat effects up through the food web is fraught with uncertainty, and ecosystem and fisheries science is often most useful to explain changes that have occurred rather than to predict future outcomes.
This lack of certainty in the charged environment of growing third-party scrutiny appears to have resulted in high levels of risk aversion amongst DFO's fish habitat biologists. They defaulted to considering, in Manitoba anyway, that regardless of habitat quality, every metre squared of habitat that was modified must be offset with up to four times that amount in like-for-like compensation. Developers like Manitoba Hydro were then tasked to monitor those offsets, to document success with unknown measures of success from a fishery productivity perspective, and to maintain the offsets permanently, regardless of the ever-changing nature of aquatic environments.
Yet even with this onerous application of the precautionary principle, the program did not yield measurable benefits, as reflected in the Auditor General's 2009 report on the fish habitat management program. In hindsight, had there been less risk aversion and a more systematic learn-by-doing authorization process since 1986, we would have had 30 years of better lessons learned to refine the state of fish habitat science. As well, had DFO's 2005 ecosystem science framework been fully implemented for the last 11 years, we would be much closer to scientifically standardized habitat management approaches.
In conclusion, Manitoba Hydro does not consider that the current legislation represents the biggest problem for the protection of fisheries, nor that any protections were lost in the amending of the Fisheries Act. In fact, the pre-2012 fish habitat management program was documented to have not measurably protected fish habitat. The combination of a lack of integration of fisheries management inputs and the imprecision of fisheries and ecosystem science, combined with concerns for third-party interventions, resulted in stalled projects. Decisions that were then made at more senior levels without clear science, or a less transparent process to provide critical scientific review, eroded public trust and social licence for both developers and environmental regulators.
To this end, Manitoba Hydro feels that if the fisheries protection program review process were modified, it would improve assessments of works, undertakings, and activities. We think that process could be as simple as the following. The proponent provides a project description sufficient to describe likely ecosystem effects. The fisheries management agency, which is not always DFO—in the Prairies it's the provincial governments—defines the fishery via the provision of fisheries management objectives. The proponent then integrates those fisheries management objectives and the project description in order to avoid and mitigate impacts as best they can. The fisheries protection program and fisheries management agency then assess whether there are residual effects on the fishery. At that point, if there are residual effects, determining whatever compensation or offsetting is required would be a logical thing to do, as would monitoring, assessment of monitoring, and reporting as a condition of licence.
Manitoba Hydro considers that the key to providing meaningful protection for fisheries lies in the clear description of the purpose of the Fisheries Act, which leads to a fuller integration of fisheries management objectives. Meaningful monitoring that is coordinated with ecosystem research will over time clarify thresholds and allow for evidence-based standards to be established.
In order to achieve that, Manitoba Hydro recommends that section 6 of the 2012 Fisheries Act be left as stated, as confirmation that the Fisheries Act is a resource management act to protect fisheries; and that the application of section 6.1, the purpose, be made clear that it applies to all assessments of serious harm.
Two, we recommend that the standing committee encourage the development of supporting integrated fishery planning and management processes, be they provincial or regional, to reflect the provinces' role in fisheries management and to ensure that the federal authority over fisheries conservation is guided by provincial management of property.
Three, we recommend that DFO revitalize its ecosystem science program to support planning processes, project reviews, and the public interest in fishery management and conservation.
Thank you.