Evidence of meeting #40 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 habitat.
A video is available from Parliament.
Killam Memorial Professor Emeritus, University of Alberta, As an Individual
It would be better if this were all done under one agency.
Conservative
The Vice-Chair Conservative Robert Sopuck
I'm afraid your time is up, but you will have time during the question and answer segment, Dr. Schindler, for sure, to elaborate on your points.
Brenda Gaertner, from the First Nations Fisheries Council, you have 10 minutes.
Brenda Gaertner First Nations Fisheries Council
Thank you, Chair and House committee.
I'm here today, having been invited by the standing committee, then subsequently authorized by the First Nations Fisheries Council together with the Lower Fraser First Nations Alliance, the Upper Fraser Fisheries Conservation Alliance, the Island Marine Aquatic Working Group, and the Coastal First Nations/Great Bear Initiative. In the room with me today are representatives from both the First Nations Fisheries Council and Coastal First Nations/Great Bear Initiative. I've been authorized to speak to our November 29, 2016 written submissions.
I would like to observe the strength of this collaboration of first nations fisheries organizations at the provincial and regional levels, and the significant regional representation behind these submissions.
Besides the Indian Act, no other Confederation-era legislation has had a greater role in controlling and undermining the well-being of first nations in British Columbia than the Fisheries Act. Since 1982 and the constitutional protections provided to existing aboriginal and treaty rights, first nations are consistently engaging at both the negotiating tables inside and outside of the B.C. Treaty Commission process and the courts to better ensure the required nation-to-nation relationship regarding governance, management, and conservation of fish, fish habitat, and fisheries, and the proper respect for subsection 35(1) aboriginal and treaty rights in our Constitution.
The historic and present-day struggles between British Columbia first nations and DFO is well demonstrated by the long list of case law, direct action, and other conflicts that have arisen in the fisheries in British Columbia for much too long.
Fish, fish habitat, and fisheries are the lifeblood of first nations in British Columbia. Since time immemorial, the first nations have relied on once abundant fisheries and thriving habitats within their territories to support their way of life, including spiritual, social, cultural, and economic well-being. Indigenous inherent rights and section 35 aboriginal and treaty rights, including aboriginal title, have and will always include the right and responsibility of first nations to govern and manage the fish, fish habitat, both in the fresh and marine environments, and fisheries, and to be stewards of the rivers, lakes, and waters in their territories. These sacred responsibilities of first nations must be worked in conjunction and collaboration with DFO and the Minister of Fisheries under the Fisheries Act.
This federal government has committed to a renewed nation-to-nation relationship with indigenous people based on this recognition of their rights, the respect and co-operation and partnership, and to implementing the United Nations Declaration on the Rights of Indigenous Peoples. In the spirit of reconciliation, a more collaborative, coordinated, and efficient approach to management of fish, fish habitat, and fisheries and oceans, including co-management and associated economic opportunities, must be forged.
These submissions are presented with that honourable intention, and we have worked hard to distill the recommendations to those we see as vital.
First of all are the preliminary process concerns that we need to raise. There have been barriers to meaningful first nations participation in this Fisheries Act review, both before this standing committee process and in direct consultations with DFO. The barriers have included delayed and inadequate funding, unreasonable timelines, poor communication, and a lack of clarity on how first nations' voices will be heard in this important review.
In fact, it has been very difficult for first nations to have direct representation in front of you as the standing committee, and I really regret that. I'm here as a representative, but many first nations leadership have asked to speak to you, and as I've heard today, you're now going to be finished hearing from witnesses. That's your loss.
Given the fundamental importance of fish, fish habitat, and fisheries to first nations, Canada must ensure a robust consultation process is used to complete the work required to change the act, and your committee's recommendations must promote this outcome.
Turning now to your current mandate, there are two areas I want to focus on. One is the restoring of lost protections, and the other is on modernizing the act.
This review is welcomed by first nations, and the opportunity to work in partnership with the federal government to strengthen this act needs to happen. It's vital.
Restoring lost protections includes returning to HADD and eliminating the problematic fisheries definitions, restoring the prohibition against killing fish, restoring the environmental assessment triggers for Fisheries Act authorizations, and removing, restricting, or restructuring the regulatory authority under the act.
Why is all of this necessary? Simply put, the amendments that restricted protection to existing fisheries were short-sighted, dangerous, and not supported by science, traditional knowledge, or best practices. Given the objective of the act, which is to empower the minister and DFO to promote the long-term sustainability of fisheries for present and future generations, the act must protect fish and fish habitat.
Given the complexity of managing fish, fish habitat, and fisheries throughout B.C., the act has to be rightly focused, so that all the other legislation and policies around it and the day-to-day management of the fisheries can properly align. To do this, the goal of the act must protect biologically diverse fish and fish habitat. That increases the ability to have fish adapt and evolve over time to changing ecosystems and climate change. If you don't protect fish and the habitat of fish, you won't have sustainable fisheries. This is consistent with indigenous laws, and it's consistent with Canada's international and national commitments to promote and ensure biodiversity.
As found by the Cohen commission in the inquiry into the Fraser River sockeye salmon, if we focus only on the fish or fish habitat that is linked to a current fishery, such limited protection could jeopardize future fisheries by undermining precautionary protections for biodiversity. If the act focuses only on the fish that are part of a current fishery, then the careful balance between conservation and fisheries would tip toward fisheries at the expense of conservation. The Cohen commission concluded this after almost a whole year of listening to the complexity of managing one very important species, which is the Fraser sockeye salmon.
Neither science nor economics will ever be able to foretell which fish and fish habitat will best and consistently respond to changes in ecosystems. That's why, in a manner consistent with indigenous laws, we have to protect all of the fish and all of the fisheries habitat that's possible to protect in order for the sacred law and responsibility of first nations to be properly shared with Canada.
The federal government must also ensure that, through the Fisheries Act, it is living up to its constitutional obligations to first nations who rely on fish, fish habitat, and fisheries as a meaningful exercise of their constitutional rights. Shifting from fish and fish habitat to fisheries seriously jeopardizes the federal crown's ability to fulfill its constitutional obligations. I'll give you an example of that.
Many first nations will stop fishing and manage their fisheries in a way that limits very important access for social, cultural, and economic purposes, because there are weak stocks or the conservation is struggling. If those fish are no longer protected, then there's no opportunity for those fish to rebuild. That opportunity is critical for future generations.
Similarly, British Columbia's history has shown that the salmon species that we are now seeing that are robust have in previous years or previous times been weak stocks. We're often surprised by which stocks respond well to changing ecological demands. If we take a snapshot in time for fisheries management and say that the only fish we're going to protect are the ones that we're currently fishing, then we are terribly risking the ability of future generations to rely on these fish. We are definitely not meeting Canada's obligations to first nations throughout British Columbia. Maintaining a commitment to biologically diverse species is required.
Turning next to modernizing the act, first and foremost, modernizing the act—
First Nations Fisheries Council
First and foremost, modernizing the act must rise to the constitutional imperative of reconciliation with indigenous peoples. We have specific recommendations on how to make sure that collaborative management and governance agreements with first nations within the legislation are provided.
You'll see that in sections 4.1 and 4.2 of the act, the provinces were added in the most recent amendments, but they failed to add first nations.
Conservative
The Vice-Chair Conservative Robert Sopuck
That is your time. I'm sure you'll be able to bring out your points in the question period. I'm fairly rigid on time to be fair to all participants.
Nunavut Wildlife Management Board, you have 10 minutes.
Michael d'Eça Legal Counsel, Nunavut Wildlife Management Board
Thank you, Mr. Chair.
I'm Michael d'Eça, legal counsel to the Nunavut Wildlife Management Board, which I will refer to as the NWMB or the board.
Mr. Chair, could I ask you to tell us when we have two minutes remaining?
Legal Counsel, Nunavut Wildlife Management Board
My colleague, Mr. Ray Andrews, and I are going to share our 10 minutes of speaking time. We're going to divide that into four related topics. First, I'll provide a brief description of NWMB's fisheries jurisdiction under the Nunavut land claims agreement. Second, I'm going to set out specific NWMB concerns regarding the changes introduced to the Fisheries Act in 2012. Third, Ray is going to briefly address the bigger picture, which is that the Fisheries Act requires more than simply a rollback of the regressive modifications in 2012. Fourth and finally, Ray and I together are going to present to you six specific NWMB recommendations for your consideration.
To begin, the Nunavut land claims agreement, which I'll refer to as the Nunavut agreement, has been in place since 1993, and it's protected by the Constitution. Accordingly, where there is any inconsistency or conflict between any government laws and the Nunavut agreement, the land claim prevails to the extent of such inconsistency or conflict.
The NWMB itself is an Inuit-crown institution of public government established by the terms of article 5 of the Nunavut agreement. It is the main instrument of fisheries management and the main regulator of access to fish in the Nunavut settlement area. That area is a massive expanse of Canada's polar region approximately the size of continental Europe. The primary purpose of the board is to protect Inuit rights and interests, while at the same time respecting the principles of conservation.
I'll move on to the board's concerns with the 2012 changes. Our first concern is actually with the process that was followed. We can get into the specific details if the committee wishes, but suffice it to say for now that the process followed by the crown lacked even minimal procedural fairness; that is, it featured no reasonable notice to the public, insufficient disclosure, and inadequate opportunity to respond. In addition, the crown at least arguably did not fulfill its constitutional duty to consult affected aboriginal peoples.
With respect to the substantive changes made to the act, the board's concerns are focused on those modifications that weakened habitat protection. The most troubling amendments to the act are those contained within revised section 35, which, as everyone knows, replaces former sections 32 and 35. Previously, subsection 35(1) protected against the harmful alteration, disruption, or destruction of fish habitat, subject to the exceptions that were set out in old subsection 32(2). New subsection 35(1) significantly narrows those former habitat protections only to fish, and only to those fish in specific fisheries and fish that support such fisheries. Of additional concern is that new subsection 35(2) goes on to significantly expand the previous and already wide authority of the government to permit harm to fish habitat through various exceptions.
The NWMB has similar concerns regarding the expansion of regulation-making powers under section 43 of the act. For instance, the Governor in Council may make regulations “excluding fisheries from the definitions 'Aboriginal', 'commercial' and 'recreational'”.
To be fair, for each one of the sections and subsections I've just mentioned, along with others, the minister must, before making a recommendation to cabinet or exercising his or her own decision-making authority, consider four factors set out in new section 6 of the act. While this is a positive statutory obligation to place on the minister, the board is of the view that the factors to be considered are imprecise and quite general, and therefore insufficient in the circumstances.
Mr. Chair, I now ask my colleague Ray to continue with the presentation.
Raymond Andrews Fisheries Advisor, Nunavut Wildlife Management Board
Thank you, Michael.
It's a pleasure to be here, Mr. Chair and members. My time in fisheries management goes back more than five decades. I had the pleasure of working as a fisheries officer and an adviser to the minister at DFO, a deputy minister in the province, and in the last 20 years, an adviser in Nunavut.
In saying that, I wish to say that, from all of my experience and all of my reviews of activity pertaining to the Fisheries Act, probably the biggest single step to modernize it that I can remember was when LeBlanc senior introduced some changes back in 1977, which protected fish and the habitat. I might add that at that time I was very close to the minister and was very pleased that he went slightly beyond fish, the habitat, and the protection of it, and said that the Fisheries Act should also be a lot about people and their communities. I think that's a very important point that we should bear in mind.
The board has a number of recommendations, including proper consultation and co-operation, as well as recognition of, and conformity with, the protected aboriginal and treaty rights. Decision-making should be based not just on good, up-to-date science but—a very basic point pointed out earlier by some people who have spoken—on traditional knowledge, especially from the Inuit community in the north. The application of the precautionary approach in ecosystem management should be guided by environmentally sound principles.
We should have emphasis on co-operation with other governments and especially land claim agencies; stronger protections for fish and their habitat, including marine biodiversity, with decision-makers' discretion bound by mandatory directions, including with respect to the making of regulations—and I'll come to that specific point shortly; enhanced protection for critical fish habitats; avoidance and mitigation of cumulative detrimental effects on fish and their habitat; and, of course, from the north you couldn't miss or ignore the recognition of climate change.
Mr. Chair and members, on another point, I would add, from practical experience, that having a good act, a modernized act, without appropriate, modern, and applicable regulations to follow is certainly where my mind is focused, to a large degree, in Nunavut. In Nunavut, in addition to the long delay in modernizing the act, we have been waiting for 23 years now to get complementary regulations even to the current Fisheries Act. In that case, efforts have been made by Nunavut Tunngavik Incorporated, the Inuit parent body, with DFO over the years 2002 to 2016, and they are still pending having the necessary regulations.
The result is that all fishing in Nunavut waters, our newest territory, is still governed by the Northwest Territories fishery regulations and the Fisheries Act. This has negatively affected ongoing fisheries and will especially impact emerging fisheries.
To end this presentation, and answer questions later, I will simply say that we have two recommendations in particular that I will leave with you.
Fisheries Advisor, Nunavut Wildlife Management Board
The first is that the standing committee recommend to the Government of Canada that it undertake, ideally during the 42nd Parliament, a comprehensive review and modernization of the Fisheries Act and, bear in mind—I can't help it; I have to repeat again—the appropriate regulations for it.
The second is that the standing committee endorse the nine areas of reform that we have outlined for you today.
My colleague Michael will conclude.
Legal Counsel, Nunavut Wildlife Management Board
Mr. Chair, there are four more recommendations.
The third one is that the standing committee reject as inadequate and procedurally unfair the process by which the 2012 modifications to the act were developed and brought into force.
The next one is that the standing committee recommend the following three specific revisions to the Fisheries Act.
The first is to revise subsection 35(1) to read “No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.”
The next one is to reinstate the previous section 32, “No person shall destroy fish by any means”, etc.
The final one is to revise the factors to be considered by the minister in section 6 to read as follows: “(a) the precautionary approach and the principles of sustainable development; (b) fisheries management objectives; (c) whether there are measures and standards to avoid, mitigate or offset the harmful alteration, disruption or destruction of fish habitat; (d) the relevant terms of land claims agreements; and (e) the public interest.”
Mr. Chair, I think we beat the 10 minutes.
Conservative
The Vice-Chair Conservative Robert Sopuck
You did, and I am very grateful to you for that. Thank you.
For the other two presenters, I will give you the two-minute warning as well. I should have done that from the very beginning.
From Prospectors & Developers Association of Canada, Lesley Williams and Matthew Pickard. The floor is yours.
Lesley Williams Senior Manager, Aboriginal and Regulatory Affairs, Prospectors and Developers Association of Canada
Good afternoon, Mr. Chair, and committee members. Thank you for the opportunity to speak with you today. My name is Lesley Williams, and I am the senior manager of aboriginal and regulatory affairs at the Prospectors and Developers Association of Canada. My colleague, Matthew Pickard, is a PDAC member, and a member of our lands and regulations committee. He will introduce himself shortly.
We speak to you on behalf of the 8,000 members of the PDAC, the national voice of Canada's mineral exploration and development industry. We are pleased to provide input on behalf of the mineral industry as you complete your current study, a review of changes to the Fisheries Act.
Our presentation will cover a discussion of the exploration phase of the mineral development cycle; key elements of effective, efficient, balanced regulatory processes; the exploration sector's experiences with the Fisheries Act; and ways in which the 2012 changes helped to strike a balance between generating certainty for industry and sustaining protection of fish and fisheries. Matthew will then guide us through his company's experiences with the Fisheries Act.
Canada is a recognized world leader in the minerals and metals industry, which directly employs 380,000 Canadians and contributes nearly 3.5% of the GDP. In particular, Canada is renowned for its mineral exploration expertise. Mineral exploration is akin to looking for a needle in a haystack. Junior explorers, thousands of small entrepreneurial companies across Canada, often take on this riskiest stage of the mineral development cycle. Less than one in 1,000 exploration programs will make a discovery leading to mine development.
As a result of the prolonged downturn in financing, mineral exploration expenditures have fallen globally. In Canada, expenditures have fallen 66% since 2011. Canada also fell to second place, behind Australia, for the first time in 15 years as the top destination for exploration investment.
Our ability to regain first place is contingent upon a number of factors that affect the decisions made by CEOs about where to do exploration. These include geological potential, social or political risks, and access to land. Issues that impact access to land include the availability of infrastructure, land withdrawals, unsettled land claims, lack of clarity regarding the crown's duty to consult process, and regulatory uncertainty and inefficiency.
The issue of regulatory affairs brings us to the topic of today's study. At this point, I will hand over the presentation to my colleague Matthew, who will discuss the changes made as a result of the 2012 amendments and the impact of those changes on the industry.
Matthew Pickard Member, Vice-President, Environment and Sustainability, Sabina Gold and Silver Corp., Prospectors and Developers Association of Canada
Thank you, Lesley.
My name is Matthew Pickard. I'm the vice-president of environment and sustainability with Sabina Gold and Silver Corporation, which is a junior mining company based in Vancouver.
Over the past seven years we've been focused on the development of the Back River gold project, a proposed gold mine in the western Kitikmeot region of Nunavut.
Over the past seven years we've also been focused on various aspects of the Fisheries Act, both before and after the 2012 amendments. Before I delve into the specifics of the 2012 amendments, I'd like to briefly go over some thoughts and key principles for an effective regulatory process.
We believe that regulatory regimes need to be balanced and should adopt integrated holistic frameworks for balancing environmental protection with conservation goals and the economic benefits. It's important to have clarity, consistency, and predictability in process, to ensure that triggers, timelines, and scopes are followed.
We believe that regulatory processes should be scalable and proportionate to the nature, scope, and duration of the project activities. We believe they should be timely, and move forward as rapidly as possible, keeping in mind the balance of participation for stakeholders and rights holders, adequate time for regulators to properly review information, and the commercial realities of the proponent. We believe they should be based on science and traditional aboriginal knowledge.
We believe that departments should be properly resourced with both the human and financial resources to undertake their work.
Finally, regulatory regimes should establish defined responsibilities with respect to the duty to consult and, where appropriate, to accommodate aboriginal peoples.
It is our view that the 2012 changes to the Fisheries Act have helped generate more certainty in the process, but have also been successful overall in maintaining the protection of fish and fisheries, for example, through the proportionality of the reviews.
Regulatory oversight called for by the 2012 act is proportional to the scope of the potential impact, in that projects that have the potential to generate serious harm to fish must still seek a section 35 authorization.
Lower-impact projects or activities have a two-step process that includes the self-assessment by proponents, and the potential of completing a request for review to get feedback from DFO in a timely manner if the project is uncertain whether a section 35 authorization is required.
On clarity, the 2012 amendments have helped to further clarify, by providing clear and predictable definitions and enhancing the opportunities for proponents to speak to Department of Fisheries and Oceans officials. They also have helped to improve the guidance available to companies with respect to identifying potential effects, by utilizing the pathways of effects diagrams.
On timeliness, some timelines have been established, specifically the section 35 authorizations, and these have proven helpful to resource development. The maximum timeline for authorization has been defined, and the self-assessment process helps to remove pressures on DFO staff to provide the previously utilized letters of advice.
On capacity, the 2012 changes now allow for the government resources to be targeted and more focused while still allowing oversight.
Finally, although the 2012 amendments were intended to lead DFO to focus on commercial, recreational, and aboriginal fisheries, in our experience, the act generally remains similar to previous versions. The requirement to protect any fish that support commercial, recreational, and aboriginal fisheries has, in practice, sustained protections for fish.
I'll use our Back River project to illustrate our experience with the Fisheries Act.
In order to develop this project, two small fish-bearing lakes and a handful of streams will require dewatering or significant modifications which will result in serious harm to fish. Therefore, a section 35 authorization will be required prior to the project proceeding. As part of the application for authorization, we prepared a conceptual offsetting plan, which includes various options or measures to counterbalance the loss of fish or fish habitat.
The ultimate goal of this plan is to improve the productivity of a local aboriginal—or in this case, Inuit—fishery. We've worked on this offsetting plan together with the Department of Fisheries and Oceans and local communities, and in partnership with the Kugluktuk Hunters and Trappers organization.
In 2012, we formalized an agreement with the Kugluktuk Hunters and Trappers organization, and initiated a study to determine if the remediation of the Bernard Harbour area, which was once a thriving Inuit fishery, could also meet DFO offsetting requirements.
The Bernard Harbour restoration project included a traditional knowledge study involving community members from Kugluktuk and Cambridge Bay, baseline fieldwork, development of a fisheries offsetting plan, restoration work, monitoring, and long-term management and restoration activities.
December 7th, 2016 / 4:20 p.m.
Member, Vice-President, Environment and Sustainability, Sabina Gold and Silver Corp., Prospectors and Developers Association of Canada
Got it.
Following this work, it was decided that Sabina would advance the remediation work on Bernard Harbour and it did so in 2016. This work was completed with 80% Inuit employment, heavily employed through the Kugluktuk Hunters and Trappers organization and we're finalizing a long-term maintenance agreement on this project.
Our experience is a good example of the creative, innovative, and community-based solutions that can come out of the 2012 amendments.
As we outlined earlier, there are a couple of things that we would like to see enhanced or potentially considered further.
We'd like to see enhanced guidelines by either reintroducing operational statements used previously for low-risk activities, or by increasing use of mitigation measures or options on the DFO website to provide further guidance. The inclusion of timelines for completing a request for a review could be considered. Although these are currently done within a timeline of 30 to 60 days, it would be helpful to have this standardized. Finally, we would appreciate enhanced clarity with respect to which projects are clearly able to proceed without a request for review. We'd also like clarification on exactly what constitutes a commercial, recreational and aboriginal fishery, that is, how this is determined.
The ability for industry to continue to generate economic opportunities and produce the metals and minerals needed for modern society will continue to depend on exploration activities. PDAC gives the highest priority to working with governments and other interested parties to those ends, and we look forward to the results of this committee's study.
Thank you for the opportunity to speak. We're happy to take questions whenever you want.
Conservative
The Vice-Chair Conservative Robert Sopuck
Well done.
Next we'll hear from Zo Ann Morten from the Pacific Streamkeepers Federation.
Zo Ann Morten Executive Director, The Pacific Streamkeepers Federation
Good afternoon, Mr. Chairman and honourable members of the standing committee. Thank you for the opportunity to present on behalf of the Streamkeepers Federation on the review of the Fisheries Act.
My name is Zo Ann Morten. I am the executive director of the Pacific Streamkeepers Federation. I'm lucky to work with the thousands of volunteers who are dedicated to the protection and preservation of our local waterways and who work with DFO's salmonid enhancement program and the streamkeepers program. I also volunteer with these initiatives, with salmonid enhancement since 1988, and with the streamkeepers since 1993. I am the product of the senior LeBlanc's initiatives in 1977.
We would like to see a stated purpose for the Fisheries Act. Without this, it's hard to stay grounded as you read the sections and subsections of the act. A simple statement such as “this act is to protect our fisheries, fish, and fish habitat for generations to come” would help.
Changes to the Fisheries Act and the resulting changes to supportive policy and programming have caused concern for the protection of fish and fish habitat within the Pacific region. Let's put in place an act that will serve us for the next 40 years. Let's start with changes to the act that hold promise—areas to keep—as you begin to draft this new act.
The premise of conditions of authorization that are enforceable should make it easier to know where there has been non-compliance as the steps are clearly written out concerning what needed to be done and whether it was done.
We recommend that these conditions be extended to such policy as the previously written operating statements, with the addition of a need to notify concerning works being done. This could be a strong and useful tool for monitoring works and compliance with conditions.
The minister needs to be able to make those tough decisions, but the process needs to be open and transparent, with clear language as to who, when, where, how, and why the minister would authorize an undertaking that would compromise our fish and fish habitat.
We would like the assurance that the project itself is reviewed and that this tool is used sparingly. Like water, people too take the path of least resistance. Let's not use this tool without strong reasoning. We recommend that the minister have the ability to make the tough choices, with the expanded need to take into account the actual undertaking as well as to provide a public record of minister's authorizations. The parliamentary report could accommodate this.
Concerning the minister's ability to do programming, the recreational fisheries conservation protection program is being used as an example.
B.C. gained on this, as we had Department of Fisheries and Oceans community advisers, restoration biologists, technical help, and engineers who have built a strong stewardship community that has the capacity to engage in this granting process. Restoration works require a long-term commitment relationship among the proponent, the property owner, and the agency. We recommend that programs such as this come with a percentage of the budget being made available to government programming, so that government can engage more fully.
As to the provision of equivalency, while we feel that DFO through the federal government has the authority and responsibility and is accountable to protect our Canadian resource, there are examples of partnerships and shared responsibilities that work to empower others, where it makes sense, to manage the landscape in support of the purpose of the Fisheries Act. Monitoring of the standards and of the on-the-ground outcomes is vital to ensuring that working relationships, shared goals, and outcomes are able to withstand the test of implementation of the policy papers. Are DFO goals being met for the protection of fish and fish habitat?
DFO will need personnel to work with their partners to ensure that this is not a transfer of work; not a download, but a sharing of policies, resources, tools, and ideals to fulfill the mandates that all partners have. Through this, we will need a strong, defensible, enforced Fisheries Act, as the others are only able to take their own bylaws and regulations to court. We still need and look for strong leadership from our federal government.
We recommend there be a continued ability to share the responsibility for fish and fish habitat in cases in which other jurisdictions meet or beat the federal standard, while ensuring that the federal standard is comprehensive, strong, and adaptable to the diversity of fish and fish habitat across our country. We also support the ability to pull out of these agreements when the partner is not able to meet or beat the standards set out by the Fisheries Act and supportive policy.
Here are a few comments and recommendations from the community to bring into the present a strong, enforceable Fisheries Act.
We are looking to have “harmful alteration”, “harmful disruption”, and “harmful destruction” put back into the act. As we know and have heard again in these proceedings, fish do not always die right away after having an encounter with humans. I am envisioning an incident within a chinook-rearing habitat and trying to make the case that there was serious harm done to fish or to the recreational fishery. This is an animal that lives in fresh water for a portion of its life and then heads out to the ocean, returning to spawn anywhere between three to five years later. One would have a hard time saying that the returns were diminished by an incident.
Under the new act, DFO's involvement comes in only when there needs to be an authorization to do serious harm to fish. They are not notified of the multitude of changes taking place in and around our waterways on a regular basis. There was a time that the department was there to assist people to help them not cause a HADD, to help them work towards mitigation, to help them determine good compensation plans, to share their knowledge of local waterways, but as Canada grew, this task became too great, and streamlining processes were developed. We've heard of the hardship of farmers wanting to clean drainage ditches, and there were municipalities wanting to do this as well.
When the department reviewed the most common request for authorizations, around 2006, it became very clear that the majority of their time was spent on about 13 different activities being done routinely across the country. This is where the operating statements were written with clear guidance as to how to undertake these tasks so as not to cause a HADD.
A piece we found lacking in these was that there was no need to notify DFO when works were being done. This made it very difficult to monitor, to ensure that the steps put forward were indeed being followed and that they were working. These operating statements were removed when the new act came into place and were replaced by an online tool about working in and around waters to help guide citizens to know if they need an authorization, but these are through the lens of causing serious harm to fish in the CRA. Section 2.1 of the act speaks to habitat, but this gets lost in the instruction that says that section 35 is the main habitat protection provision against carrying out projects causing serious harm to fish. There are limiting words in that. With studies showing that over half the developers in North Vancouver did not know that their storm drains on the street were carrying the development waste directly to the local streams, I find it hard to imagine that the average person could self-determine if they might cause serious harm to fish or to a fishery, whether it be local or at sea.
Using the minister's regulation-making powers for compliance, we would like to see the past self-assessment tools be reviewed with HADD in place of serious harm, and the addition of a modern update. Proponents can check the boxes to indicate that they have read and understood the questions on the form, and when they are finished, they submit it. One copy would go to themselves so they know they have gone through the process, and one copy would go to DFO. The form would act as a notification to the department that activity was taking place. GPS coordinates would generate a map to indicate where certain activities are occurring regularly. This would help form a work plan for monitoring. How can we expect compliance when the authorities don't even know any changes are occurring in our watersheds?
Executive Director, The Pacific Streamkeepers Federation
We recommend the legal requirement for notifications and the ability to easily see where works are occurring for planned monitoring of authorized and non-authorized works. Bringing back the former section 35, the HADD, would bring with it the precedents from past court cases and build on a foundation. Policy that supported the previous section 35 had as its objectives the net gain of habitat for Canada's fishing resources.
I want to mention again that DFO staff were also there to help people prevent causing a HADD and stay on the right side of the Fisheries Act. They were there to provide local knowledge to municipalities, to participate in decision-making, and to assist with meaningful mitigation or compensation plans. Granted, there was some head-butting, but by having strong regulations and knowledgeable people and the occasional pot of money for restoration works, people came together to find solutions to work on mutually beneficial projects. Agricultural areas found ways to work with their channelized waterways to accommodate fish populations while protecting their stream banks from erosion. This is a win-win for farmers and fish, but it takes partnerships and the long-term commitment by the agencies and the land owner. Restoring a stream is not cheap. Proactive protection is the preferred pathway.
Canada is the second largest country in the world with the second largest amount of fresh water. We would be expected to have strong, enforceable protection measures. The purpose of the Fisheries Act is not to stop development. It is to set conditions under which the development can occur, but it is to have a focus on the protection of our fish and our fisheries.
We look forward to reading your recommendations and continue to work with government under the new Fisheries Act. We also look forward to the re-establishment of the habitat management program to administer habitat protection provisions under this new act.
Thank you.
Conservative
The Vice-Chair Conservative Robert Sopuck
That was absolutely perfect, 10 minutes on the nose. Thank you very much.
We're going to start our first round of questions. I should point out to our guests that our questioners are the committee members. They will usually direct the question to one or perhaps two of you. If any of you would like to weigh in, just put your hand up. However, it will be up to the member, not me, to recognize you because this time belongs to the MP, not the chair. They can choose to recognize or not recognize you when you put your hand up.
Our first round for seven minutes will be on the government side with Mr. Morrissey.