Fisheries Committee on May 2nd, 2018

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

Yes, I am, Madam Chair. Thank you very much for your comments on the passing of our colleague Gord Brown.

Ron, I appreciate your comments as well.

To all of our witnesses, thanks for being here.

Mr. Bonnett, you recognized that some of the changes that were made in 2012 made things easier for agriculture producers, etc.

I think it is fair to point out that SARM—and it's good to see you again, Ray—came to Ottawa when I chaired the rural caucus back in 2005 and initiated the changes in the navigable waterways act. Those changes eventually evolved in 2012. Thank you for that.

With that, I'm going to turn it over to my colleague Mel Arnold.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Thank you. I'll be sharing the remainder of my time with Mr. Sopuck as well. I know we have a short time.

Thank you all for being here today. It's a troubling day for all of us. Thank you for your patience in a bit of a late start.

The first question is to our group from TWN. I don't know if I can pronounce your name in full and do it justice.

I've been asking questions in the committee over the past couple of weeks regarding the Nuu-chah-nulth decision by the Supreme Court of Canada, and how that may change what's in the act or may influence what should be in the act.

I'm wondering if you have looked at that decision closely, and if it may change other negotiations or situations across the rest of the west coast, if not all coasts of Canada.

[Bridget Doyle]

Yes.

In alignment with the B.C. first nations fisheries coalition's submission, they submitted in their brief a call for further consultation with indigenous groups to define indigenous fisheries. That relates to the need for further consultation. It also relates to our submission related to governance structures and looking at new co-management or joint decision-making structures on specific topics under the Fisheries Act. That may include fisheries management for regions or local areas with indigenous groups as jurisdictions.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Okay. Thank you.

I'll pass the rest of my time to Mr. Sopuck. Since we have a couple of prairie province representatives here, I think Mr. Sopuck will probably have some direct questions.

[The Chair, Liberal, Bernadette Jordan]

You have two minutes, Mr. Sopuck.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

Mr. Bonnett, the last time I sat on the fisheries committee, I brought up a case of a local issue on the Assiniboine River. It was in a cabinet minister's constituency, actually, who was called in September of 2017 about an obstruction that they needed to remove that was damaging infrastructure. As of April 20 this year, he still hadn't gotten a response, and this is causing some significant infrastructure damage. I would like to share your optimism in the department's ability to work with people on the land, but I think that DFO has a way to go to develop a service-oriented culture, which we hope they will develop.

Mr. Orb, I would assume that SARM is strongly in favour of rural economic development based on our resources.

[Ray Orb]

Yes.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

I sit on the environment committee, and we're reviewing the proposed impact assessment act. The Canadian Energy Pipeline Association and other resource associations like the Canadian Association of Petroleum Producers viewed the new Fisheries Act as the “pancaking” of regulations on top of the new Canadian navigable waters act and on top of the new impact assessment act. Investment is fleeing Canada by the billions of dollars because of what the president of the Canadian Energy Pipeline Association called a “toxic regulatory environment”. How do you see Saskatchewan prospering in the face of regulations piled on regulations piled on regulations?

[The Chair, Liberal, Bernadette Jordan]

You have 25 seconds.

[Ray Orb]

We see that as an economic impediment to what our province needs to do. Actually, SARM and CAPP have signed a memorandum of understanding so that we can work closer together with our rural municipalities, because many of our rural municipalities have pipelines that go through them. So we need to have a good working relationship with CAPP, which we do.

We're concerned. We're big proponents of Kinder Morgan expanding the capacity of the pipeline. We were big proponents of Energy East as well, seeing that as an outlet for eastern refineries to be able to access western Canadian crude. That's a big issue for us, and we hope that—

[The Chair, Liberal, Bernadette Jordan]

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

We're going to Mr. Donnelly now for five minutes.

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Thank you, Madam Chair.

I'd also like to acknowledge the death of Gord Brown. The New Democrats express our deep condolences to Gord's family and to our Conservative colleagues. It's a real tragedy.

I'd also like to thank all of our witnesses for being here and testifying on Bill C-68, on the Fisheries Act. [Member speaks in Halkomelem] to my Tsleil-Waututh cousins providing their testimony. I'd like to start off with Tsleil-Waututh.

You directed the committee to the written submission, which we'll certainly review and look at. I appreciate that. You spoke about section 35, the 1982 amendment to the Constitution. My question is about the revised act. As stands, Bill C-68 right now includes wording about including traditional knowledge, but as you pointed out in your comments, Mr. Thomas, it doesn't include UNDRIP or free, prior, and informed consent. I am wondering if there's an amendment or some wording that you or the nation could suggest about how the legislation could be improved to respect free, prior, and informed consent and UNDRIP, the United Nations Declaration on the Rights of Indigenous Peoples.

[Bridget Doyle]

Yes, we have included specific proposed amendments to several clauses. To the purposes section of the act, we have several suggested changes to the new section 2.1, one of which is reconciliation with indigenous peoples, including “respect for the existing rights of the Indigenous peoples of Canada as recognized and affirmed under section 35 of the Constitution Act, 1982”, and another is including indigenous human rights as set out in the United Nations Declaration on the Rights of Indigenous Peoples. We've also included similar amendments for proposed sections 2.4 and 2.5 for ministerial decision-making.

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Okay. Is that wording in your written submission, or is it separate?

[Bridget Doyle]

That's in our written submission.

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Okay. Thank you very much. We'll look for that.

Mr. Thomas, you spoke about the importance of including climate change in the Fisheries Act. Again, the question is about specific wording, because when this committee looks at suggestions or recommendations we're going to look for specific written submissions and testimony from witnesses such as yourselves. Any help you can give with that wording would help the committee in making that recommendation.

Again, do you have any suggestions in either the specific sections or where we might add wording on climate change impacts?

[Bridget Doyle]

We have included specific wording for proposed section 2.5, that climate change impacts be included as a ministerial decision-making consideration. Our written brief seeks a commitment from the Government of Canada to incorporate that, which might actually require some consultation to identify the various sections where climate change considerations need to be included. However, we also seek a commitment that through the modernization of the legislation, there is follow-through to modernization of fisheries management policy, because that is where we're most affected on the ground. As written within Bill C-68, in the existing Fisheries Act and the previous Fisheries Act it's not obvious that the burden of proof for traditional use and access would be required for indigenous fisheries. However, our experience with the front-line policy is different from what you might expect, considering the definition in the act.

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Okay. Thank you.

Mr. Thomas, you spoke about strengthening the purposes and including wording on reconciliation in that purposes statement. Again, I am looking for guidance on any wording you might have for the committee to look at.

[Bridget Doyle]

We provided specific wording for proposed section 2.1. We added proposed paragraph 2.1(d), and this wording is also consistent with the wording we've provided for Bill C-69, so that the two acts are consistent with including UNDRIP.

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Thank you very much. I really appreciate your testimony.

[The Chair, Liberal, Bernadette Jordan]

Thank you, Mr. Donnelly.

I want to thank our witnesses. We are out of time for this round.

I'm going to ask that we clear the room as quickly as possible. We have to go in camera for just a very short period of time. Thank you.

[Proceedings continue in camera]

[Public proceedings resume]

[The Chair, Liberal, Bernadette Jordan]

Good afternoon. Welcome back to the second part of this meeting.

I would like to let you know that because of the situation that has arisen in the House today, we will be finishing this meeting at 1:30 instead of two o'clock. Basically, we have to be back in the House and will only have time for testimony and no questions.

Appearing as an individual, we have with us today Martin Olszynski, assistant professor, faculty of law, University of Calgary, by video conference. We also have Jean Lanteigne, director general of the Fédération régionale acadienne des pêcheurs professionnels. From the Federation of Canadian Municipalities, we have Daniel Rubinstein, the director of policy and research, and Matt Gemmel, the manager of policy and research.

We are going to start with Mr. Olszynski for the first 10 minutes, please. Thank you.

[Professor Martin Olszynski, Assistant Professor, Faculty of Law, University of Calgary, As an Individual]

Good afternoon, Madam Chair, and committee members.

Before I get started, I also want to express my condolences on the passing of Gord Brown.

As some members may recall, I had the privilege of speaking to this committee when this process of reviewing and restoring the Fisheries Act began almost two years ago, and I am pleased to be with you here again at the tail end to discuss Bill C-68. I will begin by briefly describing the positive aspects of Bill C-68 before diving into the areas that still need work.

To be clear, although the Fisheries Act amendments appear to have received the most praise out of the suite of legislation introduced in February, we're not there yet. There is still considerable room for improvement.

Among the positives, first and foremost is the restoration of the prohibition against “the harmful alteration, disruption or destruction of destruction of fish habitat”, applicable to all fish and fish habitat, as recommended by this committee. The second is the establishment of a public registry, also recommended by this committee, which should go a long way towards enabling transparency and accountability in the management of Canada's fishery resources. Third is the explicit inclusion of cumulative effects and the traditional knowledge of Canada's indigenous peoples as mandatory factors for consideration when authorizing impacts to fish and fish habitat.

There are other good things about this legislation, but recognizing that my time is short I want to move on to those things that still need work. Also, having listened for the past hour, I want to say that I think nothing I'm about to say contradicts the previous witnesses' testimony.

The first issue is the treatment of works undertaken in activities that pose a low—but not zero—risk to fish habitat. Bill C-68 risks perpetuating the current fiction that low-risk projects are no-risk projects and that DFO does not need to monitor them, which is to say, to at least know when and where they occur. Either these will be deemed as avoiding impacts when carried out in accordance with guidelines and codes of practice, such that no notification will be required, or, where no standards exist, DFO will continue to rely on its letters of advice, where, once again, no notification appears to be contemplated.

One of my colleagues here at the University of Calgary, who used to work at the CESD in Ottawa and so knows a thing or two about regulatory effectiveness, is fond of saying, “If you don't measure it, you can't manage it.” This is definitely true about the thousands of so-called low-risk projects that cumulatively are having a detrimental effect on Canada's watershed and fisheries resources.

What is required of DFO, perhaps in collaboration with some of Canada's expert fisheries biologists—and there are several of them—is to do the hard work of identifying which projects truly do avoid impacts on fish habitat and which ones do not or are likely to result in some impact, and for the act to require notification for those latter projects—nothing more, but nothing less. If there are concerns about privacy, as the previous witnesses expressed, those can and should be addressed.

Before moving on from this issue, I want to make it clear that there's no question that DFO has the authority to require such notification. Any suggestion to the contrary is based on a misreading or misunderstanding of the relevant case law.

Issue number two is that there's still too much discretion in the act. Probably the most glaring example is in proposed section 2.5, which lists a series of factors that the minister “may” consider when making decisions under the act. To see why this is a problem, you need only replace “may” with “may not”, a trick suggested to me by a freshwater biologist here in Alberta. For example, the minister may not consider the sustainability of fisheries; he or she may not consider scientific information; and he or she may not consider the traditional knowledge of indigenous peoples. I think it's pretty clear when you read it this way that there is a problem with this wording, and I can see no reason why the minister would not be bound to some of these factors, except for a reflexive bureaucratic instinct towards discretionary powers and duties.

Third, there should be much clearer parliamentary direction to the minister with respect to his or her annual reports, which, I pause to note, DFO appears to have stopped providing to Parliament since about 2015. There needs to be a clear requirement for the minister to report on the state of fish habitat in Canada, and at a minimum, how much habitat was impacted and how much was restored on an annual basis.

Fourth, with respect to habitat banking, as currently drafted, the banking provisions are unduly narrow, in that they do not permit third party banking. As drafted, the banking provisions will allow only large institutional proponents to create banks for their own use in the future. If the government thinks that banking can be more effective and efficient than the current ad hoc approach to offsetting, as I do, then it needs to be given the conditions to thrive, which includes allowing third party banking.

Fifth, with respect to environmental flows, this is an issue that is consistently neglected under the Fisheries Act, so I'm pleased to see that it got some attention from the minister and in previous hearings of this committee. Bill C-68 amends the fish passage and flow provisions of the act, which will be at proposed subsection 34.3(1). As clearly written, this provision is triggered where the “Minister considers that doing so is necessary to ensure the free passage of fish or the protection of fish or fish habitat”.

Bill C-68 could be improved by adding a requesting provision to this power similar to the request provisions found in part 1 of Bill C-69 with respect to regional and strategic assessments, which is a provision that allows a person to request that the minister consider the issue of flows and/or fish passage at a particular area or location, and provide his or her response upon having done that analysis.

On the sixth issue, which I've raised before, I can't understand why almost 10 years after the previous Conservative government introduced them to so many of Environment Canada's environmental laws, the Fisheries Act is still without an administrative monetary penalty, or AMP, regime. As noted by Environment Canada, an AMP is a financial penalty for non-compliance that may be issued by a regulator without court proceedings for the violation of designated legislative requirements, thereby supplementing existing enforcement measures. Bearing in mind DFO's current track record in terms of charges laid, I think it's reasonable to suggest that it needs an additional, less costly tool than regulatory prosecutions.

Those are my prepared remarks this morning. I was prepared to answer many questions, but I understand the situation.

[The Chair, Liberal, Bernadette Jordan]

Thank you very much.

We will now move on to Mr. Lanteigne for his 10 minutes, please.

[Jean Lanteigne, Director General, Fédération régionale acadienne des pêcheurs professionnels]

Good afternoon, everyone.

I would also like to offer my condolences on the loss of one of your colleagues.

I will speak in French.

It's strange because the last time you went to Shippagan, I was speaking in English. I have to come to Ottawa to speak in French.

First of all, thank you for giving us the opportunity to appear before you a second time in a few months. Even though shrimp fishing began in March and snow crab fishing began last Sunday, you'll understand that I wasn't able to bring it here for sampling, like we did during your quick visit to our offices last fall. The message is quite simple: come back and you can enjoy it again.

Let's get into it and talk about Bill C-68.

After first reading, we find this very interesting. We are delighted with the initiative taken by the Minister of Fisheries, Oceans and the Canadian Coast Guard to clarify and strengthen several aspects of the Fisheries Act.

In visiting the Parliament Buildings, we can see the fishing profession represented in the frescoes decorating the ceiling, beside the logging and hunting-trapping professions. As the old saying goes, when we want to know where we're going, we need to look at where we're from.

To see what is happening today in the fishery sector, there is no doubt that this collective memory has been obliterated for a long time in people's minds, and even more so, in our opinion, in the government's mind.

The federation of fish harvesters that I am representing here today doesn't have a legal advisor or a specialist in the drafting of acts and regulations. As a result, the comments I'm going to make have nothing to do with legalese. They are much more about the reality of fishing in the 21st century and its relationship with the Canadian state.

While fish harvesters used to have an almost heroic image, environmentalists and the media have made the fish harvester a virtual destroyer of the environment who is harming the sustainability of the planet. It isn't surprising that the officials concerned often try, by all possible means, to control, if not counter, fishing activities.

Let's get to the heart of the matter. We have been fishing in Canada since the arrival of Christopher Columbus and Jacques Cartier. There is no doubt that we have a thorough knowledge of fish and fish habitat. However, this is ignored in the proposed section 2.5. There is talk of “community knowledge”, but it's so vague that it doesn't really mean anything. For ages, fish harvesters and their associations have been saying to anyone who will listen that nobody listens to them, and section 2.5 is proof of this: we have been totally excluded.

The government is missing a great opportunity to make space at the table for the people who have been in the profession for generations. In short, it's as if we're being told, “take care of fishing, while the government runs your business.”

We recognize the government's role and its competence, but it is fairly strange not to give a voice to fish harvesters who are living off the sea and its resources. If anyone should be concerned, you will agree with me that it's the beneficiary user.

This brings us to the advisory committees referred to in the new section 4.01. The beginning of this section talks about the remuneration of the members of these committees. It's unfortunate that it isn't retroactive, because I would have a pension plan that would allow me to retire immediately. Again, it's very vague. What is being referred to? It's hard to say. Let's hope that this isn't a pretext for bringing in all kinds of supposed experts in this or that, who will come from all over to tell us that they hold the truth and that we should apply “their” solution. Do we want to pay the current members of the many advisory committees now? For what purpose? Why? This needs to be clarified.

Beyond the issue of remuneration, we want to share our frustrations with these famous committees.

For starters, there is little or no transparency at all; some proceed with reports, others don't; it's impossible to know what is communicated to the minister; and so on. Therefore, the minister decides everything. Yes, the legislation gives the minister a lot of powers and functions, and we believe that this very dictatorial approach needs to be modernized. In our opinion, the role, composition, functioning and power of these committees must be reviewed. This power must be decentralized, the industry must be given more responsibility, and a simpler administrative framework must be created, which is more in line with the various types of fishing.

Currently, management is done by species, and a different resource becomes the enemy of the other. The sea is not built in compartments, but we have specialized fisheries. This model just doesn't work anymore. In order to maximize our resources and avoid the waste that is happening right now, we need to change the way we operate. Since we don't have a national forum, we speak in a vacuum, and most importantly, we don't talk to anyone.

Yes, the new legislation talks about protecting fish and avoiding killing them, but where is maximizing the benefits discussed?

I will now turn to sections 8 and 11 of the act, which deal with fees and charges. The last time the Fisheries Act was revised, which was done under the previous government, we ended up with a lot of new expenses that were added to the existing licence fees. These included fees for dockside weighing, for sea observers, for science and for at-sea monitoring, which was imposed. This is what people call black boxes or VMS systems, all at the expense of the fish harvester.

As a result, in the case of the crab and shrimp fisheries, the Government of Canada is, in many cases, the second or third expense, after a fish harvester's wages and fuel.

Is this normal? Let's ask the question. For us, we believe that this isn't normal and that, moreover, it is an unfair system. For information purposes, the cost of licences for shrimpers is $66 per metric tonne and $137.50 for crabbers, which for this year represents an average of $35,000 for one and $13,000 for the other. A lobster licence costs $100. In addition, in most other fisheries, fees listed earlier don't have to be paid out. That's the reality.

The department wants to impose electronic logbooks starting in 2019. At the moment, we are shopping with the fish harvester's credit card, and then submit the invoice, without the fish harvester's being able to say anything. It seems to me that this act already has a lot of power in the sector. To use the expression “the devil is in the details”, let's hope that the new legislation makes it possible to balance out the situation. We would like to see a more just model for all, based on income rather than arbitrary factors that have nothing to do with the economic reality of a particular fishery.

I'll move on now to owner-operators. We applaud the new provisions of the legislation that seek to protect our way of life and therefore prevent all kinds of individuals and businesses from appropriating the privileges granted to fish harvesters who wish to earn an honest living and who allow our coastal communities to remain vibrant. There is a positive aspect to this case: we are the victims of our success. This is proof that our fishing businesses are prosperous. That's new. Our life used to be one of poverty, subsistence and misery, but we were able to get rid of the big foreign companies that exploited our fish harvesters. That said, vultures are always on the lookout for easy prey. Many law firms are constantly working to find loopholes in the system.

In addition, we must tackle the issue of succession. The question is delicate, and for the moment, the new legislation doesn't really address this difficulty.

With families being smaller, the transfer between parents and their children is less and less possible, and it becomes even more complicated in the situation where fish harvesters would like to be able to share between their children, rather than favour one at the expense of the others.

We submitted to the department a concept of family-type or professional-type company, but its representatives told us that it was difficult and complicated to set up. This isn't easy, but recognizing this power the minister has for issuing permits would allow for proper succession and the end of speculation by stakeholders who are not involved in the fishery and who want to circumvent the law in order to outright rob coastal communities of wealth that belongs to them.

Thank you for listening. I would have been happy to answer your questions, but I understand the situation.