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.