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.