Thank you for the opportunity to appear for this committee's review of the Fisheries Act.
Canada's great, blue water battery that is hydro power has been seriously impacted by the application and interpretation of the Fisheries Act. What could be essentially a cost-free service, which currently powers more than 60% of our national grid, must now pass on to ratepayers the significant cost of monitoring and implementing measures to protect every single fish from encountering its turbines. While the intent to protect every single fish from harm is noble, the impact of this task is that it's causing electricity rates to rise for Canadians who depend on hydro power to power their homes and businesses and is using up capital that would otherwise be deployed for new projects.
Section 34.4 of the Fisheries Act states:
No person shall carry on any work, undertaking or activity, other than fishing, that results in the death of fish.
This is unless:
the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister;
It's pretty strict.
Since the 2019 act was passed, there's been no additional guidance from DFO regarding the application of section 34.4. DFO officials are not required to take into account a reasonableness test when determining whether an application meets the expected standard of care. In the absence of clear guidelines, proponents also struggle to determine whether the standard of care has been met. Further, differing interpretations of the section have resulted in the inconsistent application of standards across the country.
WaterPower Canada members seek clarity and direction that can be met within a reasonable period at a reasonable cost. This will protect ratepayers and help rebuild faith in Canada's investment framework.
To provide an analogy, in Banff National Park, the department of fish and wildlife installed wildlife bridges over highways and fences along treelines to minimize the potential impact of vehicles striking animals as they drive through the park. Even so, it's understood that the occasional animal will wander into traffic, and tourism is permitted regardless. While every loss of an animal is tragic, it is deemed acceptable when compared to the importance of tourism and transportation to Canada's economy, particularly considering that these animal populations are not endangered. What is happening to hydro power producers is the equivalent to asking Parks Canada to report and replace, sometimes at a 2:1 ratio, every chipmunk, squirrel or deer that wanders into the path of an oncoming vehicle, and if it fails to do so, it faces the threat of closing down the highway.
This is more than just an irritant to applicants. The additional monitoring of every fish and installation of mitigation measures can cost operators millions of dollars—as we've just heard—for each of their hydro facilities, but it serves no actual purpose because either the fish in the area are not endangered or the losses have been mitigated elsewhere. These costs are borne by all of us in this room because the utilities pass these costs on to ratepayers.
Considering the cumulative costs across approximately 700 hydro facilities in this country, this exposure runs into the billions of dollars for Canadians. Ratepayers include not just us, but also potential investors, who are easily persuaded to go elsewhere when electricity costs are too high. Power producers themselves may choose to forgo the lengthy and uncertain process of seeking a Fisheries Act authorization in favour of other power sources that are less environmentally friendly but do not impact a body of water.
There's another aspect of this act that we would like you to consider. As a rule, regulatory enforcement and permitting are often best conducted by a third party—usually an independent regulator or, at a minimum, a project management office. Otherwise, if the people charged with enforcing the act report to those setting the policy, concerns about undue influence by the government of the day and potential for bias may arise. We have indeed observed some public servants taking the policy to an extreme. Proponents have no independent mechanism to prevent the endless cycle of applications and reapplications that some of our members currently face. Some of these members are reluctant to raise their concerns with the department for fear of retribution.
To summarize, we would ask that the definitions of “fish” and “fisheries” return to the original focus on fisheries and fish habitat as opposed to individual fish; that consideration for the cost of monitoring, mitigating, and delayed application reviews to ratepayers be included in DFO evaluations; and that consideration be given to the establishment of an arm's-length party that would be responsible for these applications.
The Government of Canada does not need to micromanage every detail of a project or facility to ensure compliance. Indeed, if our recommendations are followed, we will have a better chance of meeting Canada's climate goals while at the same time ensuring Canadians have access to the lowest cost, most reliable energy grid possible.
Thank you. I'm happy to take any questions.