Fisheries Committee on May 1st, 2018

[Sergio Marchi]

Roughly. I think a little longer to Terry because he's smarter.

[The Chair, Liberal, Bernadette Jordan]

You just decide when to pass it on. How's that?

Thank you. Go ahead.

[Sergio Marchi]

Thank you very much to you, Madam Chair, and to the members of this committee for inviting the Canadian Electricity Association to appear before you this morning on your review of Bill C-68.

I'm pleased to represent our association. To my left is Terry Toner, director of environmental services for Nova Scotia Power, as the chair alluded to.

By way of context, CEA is the national voice and forum for the Canadian electricity sector. Our membership is comprised of the major generation, transmission, and distribution companies, as well as the full spectrum of our suppliers. As you all know, electricity is indispensable to the quality of life of all of your constituents and all Canadians, and to the functioning and competitiveness of a modern economy.

The sector is also uniquely positioned to enable Canada's clean energy future. Currently, we are at 82% GHG emissions-free, which ranks us among the cleanest sectors in the world. We have reduced GHG emissions by some 30% since 2005 and we are on track to do so again by another 30% by 2030. No other sector in Canada comes close to matching these results. As we are also a hydro-rich system, our electricity production is highly dependent upon the responsible use of water resources, which is something that came up at the tail end of the previous engagement with witnesses. Water is also used at nuclear and thermal generating facilities. As such, our sector remains committed to protecting and conserving all of our natural resources.

However, it needs to be said that our future, and that of other industries, becomes less certain through the cumulative pancaking of wide scoping federal, provincial, and territorial legislative and regulatory changes. This pancaking cumulatively is becoming dangerously heavy and no one level of government takes accountability for this overall burden. Each government only considers its own respective layers. This needs to change because our business environment must be competitive and it must provide investor confidence, if we are to contribute to the continued economic prosperity of Canada. Also, all these policy decisions ultimately add to the cost of electricity to consumers, who are our customers and your voters.

That said, we believe that Bill C-68 is a missed opportunity for the federal government to anchor the Fisheries Act, clearly and explicitly, in the responsible management of fisheries and overall fish habitat, rather than the protection of single fish and microhabitats.

With that in mind, let me turn to Terry, who will outline our five specific recommendations to improve the practical application and impact of this act.

[Terry Toner, Director, Environmental Services, Nova Scotia Power, Canadian Electricity Association]

Thank you, Sergio.

I would like to begin by thanking you all for the time we are being given.

Our sectoral experience with the application of the Fisheries Act and our long-term working relationship with the Department of Fisheries and Oceans leaves us in a qualified position to offer constructive feedback and practical recommendations to amend the Fisheries Act.

The first of our recommendations is that the proposed definition of “fish” and “fish habitat” should be considered with a population-based approach. An expansive definition of fish habitat and the interpretation of the term “fish” to be any single fish have proven burdensome and prohibitive in the past. This approach creates unmanageable legal risk for both existing and new electricity facilities because any incidental death of fish can then be construed as being in contravention of the act, regardless of the actual effects on populations or the ecosystems.

In terms of extending this beyond “fish” to “fish habitat”, I would point out that the definition of fish habitat in the bill encompasses anthropogenic structures never intended for fish habitat. The regulation of such structures under the Fisheries Act would serve no useful purpose yet would encumber the regulatory system and add cost to the electricity supply system flowing to ratepayers.

The definitions and relevant provisions deserve careful attention to ensure reasonable interpretation and application. We look forward to accommodations, preferably in the act itself, if not then certainly in the regulations and guidance materials for the application of the act.

Second, the purpose statement should focus on management and control of fisheries. We're encouraged by the inclusion of a purpose statement, which is something we requested in front of this committee last year. However, as currently drafted, the protection and conservation of fish and fish habitat is set out as a distinct and self-contained purpose, whereas it should be subsidiary to the responsible and proper management and control of the fisheries. Conservation and protection efforts may then be properly prioritized and applied with meaningful benefits for fish populations.

To address this, we recommend combining the two clauses, so the purpose of the act reads,“The proper management and control of fisheries through the conservation and protection of fish and fish habitat, including by preventing pollution.”

Third, provisions to manage flow parameters should recognize existing regulations. While complying with the Fisheries Act, member companies also must operate under the authority of provincial, territorial, and in some cases international bodies. Agreements with such bodies, including water management authorities, prescribe water property matters such as flow, temperature, and other physical properties.

In allocating broad new powers to the minister, in particular as regards water flow, the proposed amendments to the Fisheries Act do not fully recognize the potential interaction with these other authorities, posing a significant risk of regulatory duplication, conflict, and uncertainty.

We would suggest that prior to making any order affecting water flow and other such matters, the minister be required to consult with any jurisdictions that may have overlapping authority. Existing agreements for water management are long-standing and address specific regional needs. Consultation to ensure jurisdictional conflict and overlap is avoided would be prudent.

Fourth, increasing habitat banking opportunities. We are very pleased with provisions in the Fisheries Act that bring about a habitat banking system. We see this as an opportunity to advance effective and efficient management of fisheries. In an effort to maximize both economic and environmental benefits, we recommend that in developing a regulatory scheme for habitat banking the minister be enabled to recognize not only proponent but also third-party contributions to a conservation project, and to allow the exchange and trade of habitat credits.

This can be achieved by minor changes to the definition of “conservation project”, “proponent”, and “service area”, providing capacity for greater flexibility toward the efficient restoration of habitat. Specific language will be provided in our forthcoming written submission.

Fifth, and last, is requirements for restoration of habitat. For current and future ecologically sensitive areas, the proposed amendments to the act create ambiguity for the responsibility of proponents to contribute to restoration requirements. We would recommend that the establishment of ecologically sensitive areas and restoration plans be informed by consultations with affected parties, including electricity producers. There should also be authority for the Governor in Council to establish, as necessary, a process for fair and reasonable compensation.

With that, later this month we will submit to the committee our full submission of the details regarding the intent and wording of our proposed amendments and we commend them to your attention.

Thank you. I'll turn it back to Sergio.

[Sergio Marchi]

Thank you very much, Terry.

In conclusion, as Terry mentioned, CEA has long worked well with DFO to ensure the protection of fish and fish habitat on behalf of all Canadians.

We trust you will find today's presentation, and our fuller submission that will follow next week, useful as you finalize Bill C-68. We also hope you will give serious consideration to the proposed amendments we suggested this morning.

We look forward to continuing to work not only with DFO but also with this parliamentary committee to develop policy, regulations, and codes of practice that will have practical and effective application while protecting Canada's fisheries into the future.

Thank you very much for your attention. We're happy to answer any questions members may have.

[The Chair, Liberal, Bernadette Jordan]

Thank you very much.

We're now going to go to Dr. Fuller, who is coming in by telephone.

Dr. Fuller, go ahead for your 10 minutes, please.

[Susanna Fuller, Oceans North Canada]

Thank you.

Thank you for inviting me to present today in my new role at Oceans North Canada.

Having been involved in previous attempts to amend and modify the Fisheries Act in 2006 and 2007, I want to commend the current government and the work of this committee for finally bringing us, on the 150th anniversary of Canada's Fisheries Act, to the point where significant amendments have been proposed, the majority leading to an improvement and a modernization of Canada's Fisheries Act.

Given the importance of fish and fish habitat to coastal communities, indigenous peoples, and Canadians in general, we do need a Fisheries Act for the 21st century and an act that we can take with pride to Canada's presidency of the G7, particularly with the priority given to oceans.

My comments are based on my history as part of the national fish habitat coordinating committee, which, together with DFO, was a member of several advisory committees for commercial fisheries in the belief that there's an urgent need to ensure that Canada's laws are consistent with the need to reconcile our history with indigenous peoples. They are also based on the belief that the management of a public resource must have a strong legal and policy framework to ensure that its sustainability is part of diversity, valuable ecosystem services, support for independent fishermen, and the future of coastal communities.

As you may know, the initial response to Bill C-68 was very positive, and this is reflective of the broad, though swift, consultative process that was undertaken. There are several elements of Bill C-68 that are significant improvements. I want to take note of these before I get to the few key areas where I believe amendments are needed to ensure that the act adequately provides for fisheries management and protection, conservation of fish and fish habitat, and access to fishing resources for adjacent communities.

The improvements that I think are good are the addition of a purpose section; expansion of factors to be considered in decision-making; measures for protection of independent fishing fleets; restoration of HADD; inclusion of a rebuilding clause for the first time; establishing permanency for fisheries closures, particularly those that are to count towards marine protection targets; creation of advisory panels that can ensure there's an increased use of expertise and public engagement in the implementation of the act; and finally, the five-year review of the act, which will ensure that regular updating is done when needed.

However, on closer examination, and after taking the time to think through how the new act would begin to address existing and long-standing problems with fish and fish habitat, there are a few key areas that, if left as now written, will undermine the achievement of the proposed purpose over time. It's generally accepted that fish populations decline primarily through two key factors: we harvest too many of them, or we destroy too much of their habitat. That's notwithstanding natural mortality and climate change, but without strong legal measures in place, there's no way to ensure that we are managing the harvest properly or able to mitigate and avoid habitat destruction. It is with this view that recommendations for improvements are made.

As you're likely aware, the environmental and conservation communities have been working closely together so that we are concise and aligned in our recommendations for amendments. I've also reached out to the fishing industry to better understand their concerns for areas of support for Bill C-68. The recommendations below are consistent with those put forward by West Coast Environmental Law, Ecojustice, Oceana Canada, and others. I align largely with comments made this morning by Keith Sullivan and Ecotrust Canada. It's interesting to note that the Mining Association of Canada is also aligned with some of the comments from Ecojustice. I think that's actually a unique situation, where we have such a broad constituency acquiescing in so many of the same things.

I will expand upon my six recommendations in a written submission with specific language, but the first one is to strengthen the purpose of the act. It's great that there's a purpose—it's much needed since 1996—but I believe it should be aligned with international agreements and conventions. I suggest that at a minimum we should add long-term conservation and sustainable use of the fishery to the purpose of the act.

Second, there is no mention of section 35 of the Canadian Constitution, and I note that in Bill C-69 it is included. To enshrine indigenous rights in this legislation and have consistency across Canadian legislation, I think section 35 should be added. I am mentioning this for the first time. My colleague Josh Laughren and those at Oceana give lots of reasons for why we need to rebuild the Fisheries Act. I feel strongly that this does need to be in the act and does need to be strong.

In Atlantic Canada, there are 17 species of marine fish that are either targeted by commercial fisheries or impacted by them, and these species are considered threatened or endangered by COSEWIC, the Committee on the Status of Endangered Wildlife in Canada, which advises on the Species at Risk Act. Marine fish do not tend to get listed under the Species at Risk Act, mainly for socio-economic reasons, many of which I have some sympathy with. However, I believe that if we had a strong Fisheries Act that required the rebuilding of fish populations we might not find ourselves in such dire straits, with so many species considered endangered, some of which are vital to our coastal communities.

Strengthening the current rebuilding provisions means there is a legal backstop to the Species at Risk Act, which I would think the fishing industry would support. It gives us another tool to rebuild fish stocks without their being listed under the Species at Risk Act, although in some cases that may be the best tool. The Fisheries Act should require that rebuilding plans be in place and that they take into account ecosystem considerations, including climate change, with regard to timelines and targets. Failing to do this with Canada well behind other fishing nations and their legislation—many examples were given by Oceana—also fails to align us, again, with the international agreements to which Canada is a party or a signatory.

Fourth is on reporting to Parliament and to Canadians. Reporting on the status of fish habitats and the status of population rebuilding should be done on an annual basis. Currently, Environment and Climate Change Canada reports on the fisheries checklist from DFO. It seems a bit misplaced. I think DFO should have to report on its own goals, including fish habitats and the fish stocks and rebuilding. There are excellent examples of how this is done that are easily communicated to the public, and one of those is done by NOAA to the U.S. Congress. It's very readable. It's an infographic. It's not difficult to do. I would recommend adding reporting on rebuilding in proposed section 42.1

Finally, with regard to cumulative effects, we need to broaden the requirement of what's included in the public registry, proposed section 42.3. The public registry for projects is much needed. The NGO community has been advocating this for a very long time, and we're glad to see it in there. However, it's important that all projects where a fish habitat is impacted, whether through a letter of advice or through a departmental authorization, are included. Organizations on the ground, including DFO, through a pilot project in the gulf region, have already mapped areas where fish passage is blocked or a habitat has been altered. In practice, this is happening. It shouldn't be so difficult to add it to a public registry that is geospatially referenced. Without low-risk projects being included, planning and mitigation on a watershed level will be impossible, and I think colleagues at the Canadian Mining Association made reference to that as well.

In closing, a very strong constituency in Canada is interested in helping to implement a new Fisheries Act. This is a unique situation where thousands of volunteers through stewardship organizations and indigenous communities are working to identify barriers to fish passage and damage to fish habitat, to work on restoration. Increasingly, there is more transparency and multi-stakeholder engagement at fisheries advisory committees with regard to commercial fisheries where common ground can and is being found and actions can be agreed upon that help protect fish habitat and rebuild fish populations.

We can also use new tools to implement a new Fisheries Act, including mapping and GIS, electronic monitoring, just as examples, that can make data collection and data analysis easier. In the past attempts to upgrade the act, we didn't have those tools and now we do. They can make implementation much simpler.

In closing, as you consider and review Bill C-68, I hope you will be as ambitious as possible in this historic moment. It is the 150th anniversary of the Fisheries Act, the second act after the British North America Act, and this current act, Bill C-68, gets us up to about the 1970 level. We need to bump ourselves up to this century and give us a Fisheries Act for the future. We're very close. This act is and will continue to be foundational to who we are in Canada.

Thank you, and I'm happy to take any questions.

[The Chair, Liberal, Bernadette Jordan]

Thank you, Dr. Fuller.

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

[Ian MacPherson, Executive Director, Prince Edward Island Fishermen's Association]

Thank you, Madam Chair, and members of the Standing Committee on Fisheries and Oceans for the invitation to present this morning.

My name is Ian MacPherson. I am the executive director of the Prince Edward Island Fishermen's Association.

For those of you who are not familiar with the PEIFA, we have six local fishing organizations that are represented on our board of directors and form the backbone of our organization. We advocate on behalf of over 1,260 harvesters. Our primary species are lobster, herring, mackerel, and tuna.

The PEIFA is an organization that's very active in all areas of the fishery, as our contribution to the provincial gross domestic product is one of the highest in Canada for a fisheries sector. Therefore, many of the proposed changes to the Fisheries Act will directly and indirectly impact our harvesters.

We have had the privilege of presenting to both this standing committee and in other forums over the past two years on these proposed changes, and we want to emphasize that our comments and concerns come from a position of wanting to make the fishery better for harvesters now and many years into the future.

This morning I would like to address six areas of change. The PEIFA agrees that the Fisheries Act of Canada was long overdue for modifications in many areas.

First, the PEIFA would like it noted that there exists a wealth of traditional and community knowledge in our indigenous and non-indigenous fishing communities. This knowledge should be an integral part of any decision-making progress. Both our communities share a common goal of wanting our fishery to flourish for many more generations. We want to underscore that science does have its rightful place in resource management issues, but that the observations and input of all those on the water also need to be respected and taken into account in the decision-making process.

Second, the PEIFA would like it noted that the use of advisory panels can be helpful in the decision-making process. It is important that any panel have a well-rounded representation in an effort to ensure fair and balanced representation and that ex-government employees or special interest groups are not overrepresented. Industry representation must also be included in the composition of these panels.

Third, the PEIFA supports the modernization of the regulatory framework of the Fisheries Act and has been an active member of the Department of Fisheries and Oceans Canada policy streamlining workshops that have been held over the past few years. It is apparent that significant policy variances from one fishing area to another exist, many times regarding the same policy. We have experienced situations where a substitute operator can be used for many days in one jurisdiction and for very few days in another, with very different processes for authorization. We are working towards policies that are fair and comprehensive and also address situations that require a reasoned, compassionate approach. We need to be mindful that we do not change too many policies for the sake of change. We also need to ensure that changes are put forth by legitimate fishing organizations and that small special interest groups within the fishery are not directing changes that could be detrimental to the industry as a whole.

The PEIFA wholeheartedly supports the entrenchment of owner-operator and fleet separation policies into law. We commend Minister LeBlanc for pushing this long talked-about change from policy into legislation.

Fourth, we strongly support the protection of fish habitat. This includes making sure federal environmental reviews take precedence over provincial reviews when the reputation of our Canadian seafood industry is at stake. Currently we are advocating for a federal environmental review of the proposed effluent discharge pipe in the Northumberland Strait from the Northern Pulp mill in Abercrombie, Nova Scotia. The PEIFA, along with members from the Gulf Nova Scotia Fleet Planning Board, the Maritime Fishermen's Union, and the Pictou Landing First Nation are following all protocols to have a federal review carried out.

With the current emphasis on new technology we must ensure that Canada is a world leader in improving and maintaining our oceans when a new industry starts up or existing industry upgrades are required. We support that ministerial orders can be issued when the physical characteristics of water, such as water temperature and chemical composition of water, are changed, as outlined in proposed subparagraphs 34.3(2)(g)(i) and 34.3(2)(g)(ii).

Fifth, the PEIFA continues to have concerns regarding the impacts of oil and gas exploration in larger and larger areas off the coast of Atlantic Canada. We understand the needs of provinces in seeking additional revenue streams; however, any potential royalty or revenue-sharing arrangement will not come close to offsetting potential losses to the fishing and tourism industries should a significant spill or leak occur.

We are seeing the migratory patterns of some species change, and we must look at all potential contributing factors rather than solely at shifting food sources. We continue to have concerns that oil and gas extraction could be allowed in marine protected areas and that compensation may be available to oil and gas corporations, but not fishers, should no-take zones be established in MPAs.

Sixth, the PEIFA strongly supports changes to the Fisheries Act that enhance the powers of conservation and protection departments, and officers. We are pleased that additional financial resources are being committed to C and P for the valuable work done. We understand that legal decisions are beyond the scope of these legislative changes. However, the PEIFA continues to advocate that penalties be more in line with the seriousness of the offence. Our captains take great pride in their knowledge and skill on the water. A level and fair playing field ensures that our industry can survive and flourish for many more years to come. Recently, on P.E.I., there have been some fines and suspensions that are more reflective of the seriousness of the offences committed. We hope this trend continues.

In summation, the PEIFA is an organization that will continue to be active in as many areas of the fishery as our internal resources allow. We will continue to advocate for changes that make sense as organizations, and governments must all be accountable for our actions as our fishing industry experiences an unprecedented period of new challenges and change.

I would like to thank the Standing Committee on Fisheries and Oceans for the opportunity to present and provide what I hope is viewed as valuable feedback. I would be glad to answer any questions the committee members may have.

Thank you.

[The Chair, Liberal, Bernadette Jordan]

Thank you very much, Mr. MacPherson.

We're going to go to our first round of questioning.

I would like to remind members that because we will be going in camera 10 minutes earlier, they may want to share their time, because we probably will only get through the first round of questioning.

Mr. Morrissey.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you, Madam Chair. My question is to Mr. MacPherson.

You referenced the use of advisory panels as a useful tool. One of the criticisms that I receive from the fishing community is that the same people appear on the advisory panels too often. Therefore, there's a particular view being expressed at DFO.

I agree with the process, but how can we share that in the consultation process? We receive a lot of criticism from the industry that the consultation process used by DFO is not effective, and that it's very selective.

[Ian MacPherson]

I guess I was referring to some of the federal panels. They're just starting to come into place. For example, this weekend we present to a federal panel on marine protected areas in Moncton.

Certainly, for a process to have integrity, you need to have people there who are respected and who represent different parts of the industry. We are seeing some progress in the consultation process with DFO, but we find that there's the initial consultation and then one of the gaps that we would like to see improvement on is follow-up meetings prior to a policy being announced, because we're still getting some surprises and that doesn't work for everyone.

[Bobby Morrissey, Liberal, Egmont, PE]

We get a few, too.

[Ian MacPherson]

There are some gaps there that can be worked out.

[Bobby Morrissey, Liberal, Egmont, PE]

We agree with that, the gaps.

Ian, could you expand a bit on this substitute operator policy? It's very different. That's a concern I hear a lot from the industry, regarding the efficiency of processing the substitute operator when the need arises. I wasn't aware that there were differences.

[Ian MacPherson]

They're, I guess, in the amount of time that's allowable in a season.

One of the other things, for example...and this has been in place for a number of years. I believe Newfoundland has quite a few days that captains can take off for various reasons and have someone in their ship. I want to make it perfectly clear that we don't want to see the policy abused. If someone is not the captain, they should not be in the boat. That's why a compassionate approach also needs to be taken. At the end of the day, in our area, it's extremely difficult for captains to even get a day or two off for family reasons without having quite an extended process to authorize who goes in their boat.

[Bobby Morrissey, Liberal, Egmont, PE]

Does the proposed purpose of the act clearly consider fishery management objectives?

[Ian MacPherson]

We think there could be some more clarity around it. I mean, there are quite a number of changes that are being looked at, and that's why I wanted to loop in both the traditional and community knowledge, because sometimes decisions aren't made in the broader scope. An example I'll give was that a few years ago the harvesters on Prince Edward Island were quite concerned that the mackerel quota was staying the same year after year. They made recommendations for two or three years in a row—

[Bobby Morrissey, Liberal, Egmont, PE]

To reduce it?

[Ian MacPherson]

—to reduce it, yes. The quota stayed the same.

[Bobby Morrissey, Liberal, Egmont, PE]

The fishermen were advising DFO to reduce.

[Ian MacPherson]

Yes, which you probably don't hear of too often, but that was an actual case—

[Bobby Morrissey, Liberal, Egmont, PE]

And the department was going against it.

[Ian MacPherson]

—because of the observations on the water. In 2015, in the middle of our Marine Stewardship Council audit, a new set of conditions came across for mackerel because the quota got cut significantly. It's those types of things where I think the traditional and community knowledge could have had a better outcome for our industry.

[Bobby Morrissey, Liberal, Egmont, PE]

You represent 1,260 fishers. I suspect most of them are lobster fishers.