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—