Fisheries Committee on April 26th, 2018

[The Chair]

Thank you.

Ms. Sutcliffe, Mr. Cameron, thank you very much for appearing today. We appreciate your testimony. I think we all learned a bit more about the B.C. fishery than we were aware of.

I'm going to suspend for a few minutes to change panels.

Thank you very much.

[The Chair]

We're continuing with our study on the Fisheries Act.

We have, in the second hour of our study, Ecojustice Canada. Appearing by video conference is Margot Venton, Staff Lawyer and Director of the Marine Program.

Can you hear me, Ms. Venton?

[Margot Venton, Staff Lawyer and Director of Marine Program, Ecojustice Canada]

Yes, I can, Madam Chair.

[The Chair]

Thank you.

From Ontario Power Generation we have Dan Gibson, Senior Environmental Specialist.

Welcome.

We're going to start with Ms. Venton, please, for 10 minutes.

[Margot Venton]

Thank you, Madam Chair, and members of the committee. Good morning from British Columbia.

As the chair said, my name is Margot Venton. I'm a Staff Lawyer with Ecojustice Canada, a national charity dedicated to preserving and protecting the environment using Canadian law. We have approximately 20,000 donors throughout Canada.

I've been a staff lawyer with Ecojustice for 20 years, and my perspective on the Fisheries Act is informed by those years of advising and representing clients on marine species, fisheries, and aquaculture issues. I've been counsel in a number of legal cases interpreting and seeking to enforce the Fisheries Act, including the habitat provisions.

I thank this committee for this opportunity to again engage in the ongoing review and improvement of the habitat protection provisions under the act. This is a really important stage in the lengthy process of law-making. It's the time for the committee to get the details of these provisions right. It's really the last opportunity for us to ensure that habitat protection provisions are as strong and as functional as they can be. We are pleased that the amended legislation will restore the lost protections previously afforded fish habitat, through the reinstatement of the prohibition against harmful alteration, disruption, or destruction of fish habitat, which we all refer to as HADD.

There are five areas where, in our opinion, the bill falls short of fulfilling the mandate to ensure modern safeguards for the protection of fish and fish habitat. I'll only have time to present today on two of these areas, which are the need for a conservation purpose in the Fisheries Act, and amendments necessary to ensure that the cumulative effects of individual HADDs are effectively addressed and assessed.

In addition to those two topics, our written brief will also address the need to ensure that environmental flows and fish passage are protected as aspects of fish habitat, the need to strengthen the provisions dealing with rebuilding depleted fish stocks, and finally, the need to ensure that climate change is an express consideration in proposed section 2.5.

Turning to amendments necessary to confirm the conservation purpose of the Fisheries Act, the purpose of a statute is to reflect both Parliament's intent in passing the legislation and the minister's mandate under the act. Our fisheries are a common property resource. They're held by the government in trust and managed by the minister and DFO for the benefit of Canadians and of future generations. A clear conservation duty flows from this arrangement. The purpose section of the bill, as currently proposed, is largely descriptive of the minister's management responsibility. It should be strengthened to better reflect the outcomes the law is intended to deliver.

Canadian case law interpreting the fisheries' power under the Constitution supports the position that the Fisheries Act should have a conservation purpose, and the Supreme Court has clearly stated that the conservation of the fishery is the minister's primary obligation under the Fisheries Act.

The purpose section should also clearly articulate that the purpose of the act is to provide for the sustainable use of the fishery, consistent with Canada's commitments under international law. Therefore, we recommend that the purpose section be amended to clearly state that the purpose of the act is to provide for the long-term conservation and sustainable use of the fishery, in addition to the proper management and control of fisheries and the conservation and protection of fish and fish habitat.

In his testimony on April 24, the minister stated that he was open to amending the purpose section to add reference to conservation and long-term sustainability of the fishery. The committee also heard Tuesday from three young people from fishing communities in Canada, and their testimony underscored the important role that fishing plays, not just in the economy but also in the culture of coastal communities. Adding long-term conservation and sustainable use of the fishery to the purpose section reflects Canada's commitments to the international community, to Canadian case law interpreting the fisheries' power, and to the long-term survival of coastal fishing communities.

I'll now turn to the amendments necessary to enable assessing and addressing cumulative effects. The need for the Fisheries Act to address the cumulative effects of individual HADD authorizations was raised by many witnesses, including Ecojustice, before this committee in the fall of 2016.

The committee recommended that cumulative effects be addressed in the act, and the introduction in the bill of section 34.1 requiring the consideration of cumulative effects when authorizing or permitting certain HADDs, as well as the public registry, are both welcome additions that will help address cumulative effects. However, further changes are necessary to ensure that cumulative effects can be both effectively assessed and addressed.

This is because fish habitat is degraded not only by major projects, but also through the impact of smaller-scale works, undertakings, and activities. To stem the tide of incremental loss of habitat, DFO needs to do a better job of considering and addressing this cumulative loss of habitat through small projects. The act needs to provide a framework to enable DFO to do this important work.

It is important that whatever system is adopted is practical and manageable. To be effective, a cumulative effects provision needs also to be comprehensive, so simply ignoring certain HADDs out of a quest for administrative or regulatory simplicity will result in a cumulative loss of fish habitat if it continues over the long term.

We propose two amendments to better enable the assessing and addressing of cumulative effects. I will first outline the amendments proposed to ensure the act provides a framework to address the cumulative effects of individual HADDs.

The bill is vague on whether and how the cumulative impact of HADD sanctioned under the act will be addressed. While the proposed new subsection 35(1) imposes a strong prohibition against HADD, it is of course not an absolute prohibition. HADD is sanctioned in many ways, including the six categories of exemption currently proposed under subsection 35(2), which include HADD authorizations, permits for HADD of designated projects, and harm exempted from the prohibition through regulation.

Further, HADD can be sanctioned under sections other than 35. DFO has yet to provide any details of what, if any, HADD will be authorized under codes of conduct. It does not appear that cumulative effects is a required consideration when developing these codes of practice. Also, DFO is still talking about using letters of advice, which doesn't appear anywhere in the act. The letters of advice are sent out outlining to proponents willing to undertake an activity how to avoid HADD when carrying out a project. They are unenforceable and, as far as we know, not monitored; they often result in HADD.

To address the incremental loss of fish habitat, DFO needs to deal with the totality of all this sanctioned habitat loss. We propose the following amendments to ensure that the framework of the act supports fully addressing cumulative effects. These recommendations could be adopted individually or on their own.

The goal is to signal to the bureaucracy that one way or another, HADD is supposed to be addressed. Whether that is through compensation elsewhere, or directly requiring restoration, those details will be up to DFO. It can be worked out in the regulatory phase, but if the intent is not clearly signalled now, it likely won't actually happen later.

We propose amending section 35 to add that “[a]ny work, undertaking or activity that results in [HADD] is an offense unless sanctioned under section 35(2).”

This would stop the authorization of HADD outside of the regulatory scheme. Additionally, if DFO is intent on keeping the letters of advice tool, we recommend that section 35(2) be amended to include letters of advice as an express authorizing tool. This would bring this practice inside the regulatory scheme and make it more enforceable.

Alternatively, or additionally, we recommend amending subsection 35(2) to add that “[t]he Minister shall ensure compensation for all [HADD] permitted or otherwise enabled under s. 35(2) or through projects carried out under codes of practice.” This again clearly signals Parliament's intent that all this incremental HADD is to be addressed somehow, leaving to DFO the flexibility of how they do that.

Finally, I'll turn to amendments to enhance the assessment of cumulative effects. Obviously, to do a good job of addressing cumulative effects, you need good information about what HADD has happened in a particular estuary, lake, or river.

We propose strengthening the ability of the new registry to be a useful tool for assessing cumulative effects on fish habitat by adding to the minimum requirements of documents that necessarily need to be posted on the registry. This includes—

[The Chair]

Thank you, Ms. Venton. I'm sorry, but I'm going to have to cut you off there. Your 10 minutes is up.

[Margot Venton]

That's fine.

[The Chair]

We're going now to Mr. Gibson, please, for his 10 minutes.

[Dan Gibson, Senior Environment Specialist, Ontario Power Generation Inc.]

Thank you very much, Madam Chair and members of the committee. Ontario Power Generation appreciates the opportunity to appear before you today at the standing committee.

OPG, Ontario's largest clean-energy generator, is focused on safe, reliable and sustainable electricity generation. The company's electricity generation portfolio has an in-service capacity of over 17,000 megawatts. We operate two nuclear power generating stations, two biomass-fuelled thermal generating stations, one oil-and-gas thermal station, 66 hydroelectric generating stations, and one wind-power turbine. As of 2018, I'm proud to say, our power generation is more than 99% free of smog and carbon emissions and maintains a critical role in Canada's greenhouse gas emission reduction targets.

OPG has also long been involved in fisheries management in our province, including more recently our work on American eel, lake sturgeon, and Atlantic salmon restoration and recovery efforts across the province, and also including proudly working with our first nations partners on a number of these initiatives.

OPG has also been very actively involved in all aspects of this federal review and supports the delegations—both written and before this committee—coming forward from the Ontario Waterpower Association, the Canadian Nuclear Association, the Canadian Hydropower Association, and the Canadian Electricity Association.

Like many other proponents commenting on Bill C-68, permitting certainty and regulatory clarity are of paramount importance to our organization. While OPG applauds the government's efforts to implement modern safeguards in the act, we believe that additional amendments are required to properly balance the environmental protections the government seeks to attain with the interest of the end-use consumers and customers, and to maintain Canada's leadership role in low-carbon electricity generation, both domestically and through exports.

Of interest to OPG are the following recommendations to improve the act. I'll start with no order of preference here, but will simply be stating them as we go. We'll start with the purpose statement.

On the stated definition of “fish habitat” in subclause 1(5), the “conservation and protection of fish” in proposed paragraph 2.1(b), and the prohibitions listed in proposed sections 34.4 and 35, OPG acknowledges the government's stated desire to “restore lost protections” in order to conserve and protect fish and fish habitat. It is vitally important, however, for consistency of application, that all of these sections align with the higher-order objective of the purpose statement, which is stated in proposed paragraph 2.1(a) and that is for “the proper management and control of fisheries”.

As currently written, the purpose statement seems to establish two distinct clauses: one being the management of fisheries as a resource, while the other, along with the prohibitions in proposed sections 34.4 and 35, seem to focus on and pertain down to conservation and protection of each individual fish.

OPG has concerns with this interpretation and application of the prohibitions themselves. While the purpose statement focuses on fisheries as a resource, which we support, the prohibitions seem to focus, again, on individual fish. OPG recommends that this uncertainty can be remedied in the purpose statement with a simple amendment, that is, “the proper management and control of fisheries through the conservation and protection of fish and fish habitat, including by preventing pollution” would clarify this for our organizations.

Secondly, on the specific prohibitions and exceptions—specifically, proposed sections 34.4. and 35—they also seem at times, when you look downstream at the application of the act, in slight contradiction to the first purpose statement, which is to manage the fisheries as a resource. The proposed prohibition under proposed section 34.4, for instance, suggests that any incidental death of fish, potentially a single fish, could be construed as a contravention of the act without a permit or an authorization. This is a critical distinction for large power-generating companies.

The prohibition focusing on individual fish, as opposed to fisheries, is concerning to generation proponents across the country. The government could further address this concern by amending proposed subsection 34.2(1) to include the establishment of a code of practice which would allow some incidental harm to fish while still maintaining the act's stated purpose, which is the “proper management and control of fisheries”.

Similarly, proposed section 35 is reintroducing the prohibition of HADD, as we've already heard mentioned, that being fish habitat or “water frequented by fish”, and we would recommend that a reasonable scope come to this application. For example, exemptions, including intake canals, penstocks, and things of that nature, or ancillary structures next to power generating facilities that were built for the purpose of facility operation and not intended to be frequented by fish, but sometimes are, should be considered. Such exemptions should be considered.

We'll move on to proposed new sections 2.5 and 34.1. These state factors to be considered by the minister.

We believe there could be greater alignment of these two provisions with the proposed Impact Assessment Act. Specifically, proposed sections 2.5 and 34.1 list the factors that the minister “may” or “shall” consider when making decisions under the act.

OPG, along with our industry colleagues, believes there is a need to align these sections in the Fisheries Act with the proposed IAA specifically wherever the public interest is considered. Under the impact assessment, the public interest is considered, and this is left out of these provisions under the proposed Fisheries Act.

When a project designated under the Fisheries Act has already gone through an impact assessment and has obtained a positive decision, the impact assessment decision statement should inform and streamline the permitting and authorization process under the Fisheries Act. This could be made explicit in a decision statement issued under the impact assessment articulating the expected economic outcomes of the project, including their relevance to the public interest.

I'll move on to inter-jurisdictional collaboration, a theme that we've identified across our organizations. Inter-jurisdictional regulatory regimes are not new to us; they are governing powers that govern us. They are very complex and often include numerous stakeholder and indigenous interests. Navigating these regulatory frameworks is a critical requirement for the safe and reliable operation of power generating facilities. That's from the federal to provincial to municipal jurisdictions.

To this end, and specific to water management, OPG strongly believes that wherever equivalent or existing provincial water management regimes exist, proposed section 34.3 of the act, whereby the minister has the ability to mandate flow around obstructions, only serves to add to the complexity and uncertainty of these inter-jurisdictional controls.

In the case of OPG specifically, our provincial hydroelectric power plants are already governed by numerous water management agencies and regulatory policies, including but not limited to provincial water management plans, Parks Canada on the Trent-Severn Waterway, the International Joint Commission on our boundary waters, and federal water control boards such as Lake of the Woods Control Board.

Further, the Ontario Lakes and Rivers Improvement Act in Ontario and the Water Resources Act regulate water power facilities through our province and include in their provisions the management, perpetuation, and use of the fish, wildlife, and other natural resources dependent on lake and river ecosystems. Suffice it to say, we have a lot of governance in this issue, and proposed new section 34.3 presents some concerns to us.

It is for these reasons OPG recommends that proposed new section 34.3 of the act should only be applicable in cases in which equivalent provincial or jurisdictional powers do not already exist.

If, however, the government intends to maintain these provisions, OPG insists that a vital amendment is required to the act, that being that prior to making an order under proposed section 34.3 for the management and control of an obstruction, the minister be required to consult with any provincial or federal authority also exercising, in this area of water management, powers that may overlap, may be in conflict, or may be inconsistent with the terms of an order to be issued by the minister.

Finally, OPG has long advocated for and welcomes the provisions in the act for a habitat banking system that advances the effective and efficient management of Canadian fisheries' resources. We also welcome the flexibility afforded the governor in council under the proposed legislation for designing this scheme.

On this point, however, OPG would also recommend adding flexibility to widen the potential creation and use of credits by project proponents and third party groups in a manner that advances both fish habitat conservation objectives and economic objectives. Improved clarification regarding the calculation and eligibility of offsets should be a focus, moving forward. We encourage the government to maintain a flexible, modern approach when working with proponents on the applicability of a habitat banking and offset system.

Secondly, and consistent with such other credit and debit systems as our cap and trade emissions system in Ontario, there should be a capacity of the governor in council to regulate not only the creation, allocation, and management of credits, but also their exchange in trade.

As mentioned, OPG has worked extensively with our parent organizations, the Canadian Electricity Association, the Canadian Nuclear Association, the Canadian Hydro Power Association, and the OWA in preparing these respective submissions.

I can safely say that the electrical sector is unified in our position that Bill C-68 requires amendments to best serve all parties—

[The Chair]

Thank you, Mr. Gibson. I'm going to have to cut you off there for your 10 minutes.

Going to the government side for seven minutes of questioning, we have Mr. Morrissey, please.

[Bobby Morrissey, Liberal, Egmont, PE]

I'm going to give my first question to Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I'm very grateful for that. Thank you to the government side.

Margot, it's Elizabeth May here, your MP. I want to be very concise because this time has been given to me.

The mandate around what Dominic LeBlanc is doing is under the rubric of restoring lost protections. I don't want to take us out of Bill C-68 too far, but we know that we lost those protections in Bill C-38, which also took out one of the critical triggers that I think came to mind when you were speaking of how you look at small project, what you look at, the incremental, and whether we can look at the cumulative.

I don't know if you want to speculate about this, but if the committee studying Bill C-69, the impact assessment piece, were to restore the trigger that used to be there in section 35, would that address concerns that you're trying to amend through Bill C-68 or not?

Did that question make sense?

[Margot Venton]

Thank you, Elizabeth. I think I have it.

This is a question of what we look at before. What do we consider through the environmental assessment process as part of the process of issuing fisheries authorizations? If you expanded the scope of triggers, if you basically said that when you approve harm to fish habitat under section 35, you will do an environmental assessment of some scale, that would definitely improve it. That's one way of solving the problem, absolutely.

[Bobby Morrissey, Liberal, Egmont, PE]

My question is for Ms. Venton. There doesn't appear to be any disagreement on the desire to protect traditional fish habitat or long-established fish habitat. The area where there's a lot of discussion is in areas that have been designated as fish habitat that were artificially built. We hear from municipalities, from the farming community, and from the power community, on habitat that became habitat. It was artificially created by municipalities from drainage ditches, farmer's doo, and irrigation lagoons—those various sources. Would you agree that this should be at best a secondary approach? How can government be clear on regulating that?

The minister and the act refer to a code of practice. The other part that the people involved get frustrated with is the lack of a clear definition. They sometimes do not realize they are actually doing an activity that creates an infraction. Most of what we've heard seems to be around what I will term “artificial habitat” or habitat that was created by one of those activities. Would you comment on where you see government's role there.

[Margot Venton]

Obviously, there's a key component in effectively protecting fish habitat where education comes into play. Where it's going to be important and, I think, historically has been a challenge is to explain to people what is fish habitat is and what is harm to fish habitat. From a biological perspective, I think it's challenging to create a bright line between what is “natural” fish habitat and what is artificial fish habitat. For example, in an area like the Fraser Valley, where you traditionally have abundant fish habitat and then have developed that area to do a whole bunch of different activities—you have people living there, and you have farmers farming there—I don't think it would be useful to try to distinguish between what is “natural” and what is not natural.

I think it is important for us going forward to educate people as to what activities can harm fish habitat. It seems that this act does create a framework to develop those codes of practice for what you would consider to be, I suppose, activities. My understanding is that they will be used in the agricultural sector. Theoretically, that could be a very useful tool. Our comment is that if you're going to do that, if you're going to develop codes of practice for activities in agriculture or around municipalities, you need to think about the cumulative effects, the cumulative loss of fish habitat that you're enabling through codes of practice, and make sure that those impacts are compensated for in some way under the act.

[Bobby Morrissey, Liberal, Egmont, PE]

You do recognize that there is a distinction between some habitat now termed “fish habitat” that was artificially created and the natural fish environment.

That's a specific question.

[Margot Venton]

It's a tricky one.

[Bobby Morrissey, Liberal, Egmont, PE]

No, it's not, because it can be clearly outlined and clearly defined. There is a difference.

[The Chair]

You have a minute and a half.

[Bobby Morrissey, Liberal, Egmont, PE]

I have a question for Mr. Gibson.

Could you expand a bit on the comment in which you referred to welcoming habitat banking? One position that has been given at different times to the committee is in the area of replacing habitat that may have been altered by a more conducive habitat.

[Dan Gibson]

Perhaps I'll use a case study that I love coming back to, just because I think it's a great example of a case in which habitat banking and offsetting calculations have been effective.

In the case of our Pickering and Darlington nuclear generating facilities, we needed to offset for the loss of fish coming through our facilities—in this case, in the Great Lakes, alewife.

Under the old provisions of the act it would have been like for like. The expectation would have been that you're removing alewife from the system through your water intakes; therefore, you're going to replace alewife.

However, with this modern and robust thinking around habitat banking and offsets, we could break it down to a productivity unit. Since we are removing x number of productivity units out of Lake Ontario every year, we could replace those productivity units with something the fishery or the ecosystem actually needed.

In the case of the Great Lakes, it's well accepted that the loss of coastal wetlands in the Great Lakes is a massive impediment to productivity. In the case of Pickering and Darlington, then, we focused our attention on coastal wetland re-creation in the Bay of Quinte. We rehabilitated what was essentially a number of hectares of unproductive wetland.

Through calculations, we were able to determine that the amount of productivity we are removing from Lake Ontario every year is being replaced by this productive coastal wetland, which is really taking care of a far vaster species diversity than would have been removed. Whereas we were removing alewife, then, we're now actually replacing species at risk; we're replacing some targets—

[The Chair]

Thank you, Mr. Gibson. I'm sorry, but I'm going to have to cut you off there.

Mr. Doherty, you have seven minutes, please.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

I defer my time to Mr. Miller.

[The Chair]

Mr. Miller, you have seven minutes.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you very much, Ms. Venton and Mr. Gibson, for being here.

It's quite obvious, Mr. Gibson, that you have a number of concerns with this legislation. You talked about incidental harm to fish. I think I know what you mean. When you are constructing power dams, power lines, or whatever, stuff happens, sometimes not intentionally.

Could you explain a little bit more about what you were referring to and the degree of incidental harm that you think should be allowable? I don't want to put words in your mouth.