Mr. Speaker, as this House gives consideration to Bill C-26, the oceans act, I would like to make reference to the statement of the chair of the fisheries committee when the bill was initially before his committee:
Many times a piece of legislation is passed, and for the people who sit around this table it's clear as crystal. Then two years later, when regulators get at it and they start reinterpreting it, it's not in the same interpretation. It's not interpreted in the same way as it was meant when it was debated in the House-.
That's one of the problems when language is unclear, and that is really one of the reasons the legislative process-[is] so important.
The members of the fisheries committee from both sides of this House made improvements to the original bill and should be congratulated for their work. Work by my colleague, the member for Skeena, was most notable. He made several amendments during report stage which attempted to ensure consultation and strict adherence to the user pay, user say principle.
He insisted that fees be implemented only after a full socioeconomic impact analysis had been carried out, that fees reflect the level and cost of a specific service and that they be implemented in a fully transparent manner with full ongoing consultation with affected resource users. The amendments he proposed endeavoured to accomplish these goals. Unfortunately our amendments were not accepted and as a result the ocean act remains unchanged in this regard.
Reformers view full and ongoing consultation with resource users and grassroots Canadians as essential to good government. Implementing marine service fees without first completing a socioeconomic impact analysis is what this Liberal government stands for and what we oppose.
I would like to address what are for me several key aspects of the bill. With the exception of Australia, Canada is perhaps more affected by oceans than any other nation. When I first looked at the oceans act I assumed it dealt equally with the waters on our three coasts. Unfortunately that is not the case. Perhaps a third of the waters of Canada are in the area adjacent to the Nunavut land claim. Nunavut waters do not come under the act in the same way that the waters off Nova Scotia do.
When this bill was before the committee, the main Inuit organization in the Nunavut territory advised the committee that certain sections of the bill were ultra vires given the Nunavut land claims agreement.
For instance, the Inuit organization suggested that the bill be amended to acknowledge that the governor in council could not make regulations under the act unless they were approved by the Nunavut land claims authority. Clearly the Nunavut interpret their treaty as limiting federal authority over legislation affecting Arctic waters within the Nunavut settlement area.
The response of the government was to acknowledge that federal authority in Arctic waters is limited by the land claims agreement. I quote from section 2.1:
For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.
The Governor in Council, on the recommendation of the Minister of Fisheries and Oceans, may make orders exercising any power under section 35 on an emergency basis where the Minister is of the opinion that a marine resource or habitat is likely to be at risk to the extent that such orders are not inconsistent with a land claims agreement that has been given effect and has been ratified or approved by an act of Parliament.
That is to say, the government has conceded that land claims agreements may constrain the ability of the Government of Canada to protect a resource owned by all the people of Canada.
The implications for British Columbians are significant. Land claims agreements when negotiated are likely to cover virtually the whole of the west coast. The Nisga'a land claim agreement was only the first. The wording of land claim agreements has diminished the authority of the federal government in an area completely under its control.
This bill simply acknowledges what the government and its officials have negotiated and continue to negotiate away. Land claims must never again be rushed through Parliament. They must receive thorough review and debate on the implications of their entrenchment within the Constitution.
When land claim negotiations are complete in the Arctic and Pacific coasts, the applications of the Oceans Act to these waters is likely to be greatly diminished. A patchwork application of Canadian marine and environmental law to Canadian waters does not inspire me with confidence. While this bill would give the minister of fisheries and cabinet broad powers to manage and protect Canada's marine resources, the government has decided to cut the coast guard on the west coast by one-third.
I want to quote from a department of fisheries document written in early September which details the folly of these cuts at a time when the government is asking for more authority to manage and protect the marine environment. The document was discussed earlier last week by my colleague from North Island-Powell River, therefore I will not give the whole document but I would like to mention some points.
The cuts will have an impact on our ability to manage the resource. For example, Canada is required to collect data and enforce provisions of specific fisheries agreements in the Pacific salmon treaty. The data is critical to stock assessment biologists in Canada. Canada and the United States have agreed to provide specific levels of enforcement patrol of shellfish closed areas to protect consumers from contaminated and toxic shellfish. The United States provides the largest market for British Columbia commercial bivalve fisheries.
Will this cut to inspection hurt our sales in the United States? What happens if an outbreak of shellfish contamination occurs? Surely the U.S. market will dry up overnight if it is undetected.
The ability of vessels to remain away from home on a regular or sporadic basis is critical to both fisheries enforcement and management. Coast guard currently plans to replace vessels in Tofino and Bamfield with a 47-foot class lifeboat with no accommodation for crew or shore based fisheries officers. This demonstrates an expectation that there will be little opportunity to participate in fisheries patrols in remote areas.
Another matter that these cuts are going to affect is this. Uncertainty about vessel support from multi-tasked vessels or insufficient vessels will result in fewer fisheries. The new initiatives implemented to rationalize the salmon fleet, the Mifflin plan, will be compromised.
There is currently a demand for increased habitat investigation and monitoring of projects in remote areas as a result of the Oceans Act, which we are discussing today, the Canadian Environmental Assessment Act and agreements made with First Nations by Aboriginal Fishing Strategy and land claims initiatives. Yet the cutbacks will impact on the ability to live up to obligations.
Fisheries notes that developing a highly motivated and effective marine fleet is essential for fisheries patrol. A marine enforcement program within the coast guard has the potential to boost enforcement capability in specific areas. Current tasking and restrictions on fleet movement will limit the overall effectiveness of this part of the coast guard program. It is not likely that priority areas for fishing enforcement will always coincide with search and rescue zones.
Again, this is how these cuts will impact and this is the direction this government is taking. I doubt very much it will be able to live up to the commitments under the Oceans Act.
There is a huge list of deficiencies and ways in which the cuts will impact on the ability to manage the fisheries. The one to which I would like to refer is the ability to act under the Oceans Act.
What if a major emergency like the one that nearly occurred last August near Campbell River occurred? The issue to which I am referring was the near collision between a passenger ship and a barge loaded with propane and dynamite. Currently we lack the ability to respond to such a disaster, and yet the government is imposing even further cuts on the coast guard. It is horrifying to imagine the implications of these cutbacks.
Furthermore, international boundary enforcement patrols are of significant concern and the reduction in patrol capability will limit DFO's ability in the area. The international grey zone in the lower straits and in the north are of particular concern to us.
The language of Bill C-26 gives the minister and the cabinet the power to legislate. They will write the oceans law and policy under the regulation making power in the bill.
For many years after Confederation legislation typically defined not only the objectives and principles of government policy in a particular area, but also the precise details. This is true of the current Fisheries Act. For example, section 28 states that no one shall hunt or kill fish or marine animals of any kind by means of rockets or explosive materials. Section 29(1) states that no one shall erect, use or maintain any net, weir or other device which duly obstructs the passage of fish. The current act states in section 32 that no person shall destroy fish by any means other than fishing. Section 33 states that no person shall purchase, sell or possess any fish that has been caught in contravention of this act or the regulations.
It is clear. The fine tuning is in the regulations but the law is clear in the act. The oceans act lacks such clarity in what is prohibited. Everything is up to the minister, even the generality of oceans law and policy.
It has been said that the present practice is for legislation to outline the policy to be followed in an area and to delegate the authority to prescribe the details of the law to the cabinet or the minister.
The bill would, for example, in part II, the oceans management strategy, mandate the Minister of Fisheries and Oceans to develop and implement an oceans management strategy. The bill does not
say what the oceans law is to be, it says that the minister has the authority to write one after he consults a long series of groups which may have an interest in oceans law. The writers of the bill obviously do not know what the law or policy ought to be, only that it is needed and that it ought to have the force of law once the minister decides what it ought to be.
If this were a bill for the Minister of Finance it would undoubtedly authorize him to set tax rates after he had consulted various groups. If it were taxes we would instinctively know that the bill was ridiculous. If the Minister of Finance wants a new tax he must come to Parliament to obtain specific authorization.
I would have preferred to have seen some detail in the oceans act. What is the oceans law and policy which the minister wants to implement? Under this bill Parliament effectively loses control of lawmaking. In effect, the government is given a free hand to do as it sees fit in the realm of oceans law and policy.
Such problems are not new. A very distinguished former member of the House, Stanley Knowles, gave a caution that is even more valid today in regard to the oceans act than it was when initially spoken in the House. He stated:
It is our experience in Parliament time and time again to think we know what we passed when we gave final approval to a piece of legislation, only to find months later that things were being done or restrictions being imposed of a kind we did not believe appeared in the bill at all. We try to find out what happened, and we discover that we had given authority to the Governor in Council to make regulations for the carrying out of the purposes of the act and that under this authority restrictive regulations were passed, or restrictive definitions introduced of such a nature as to produce quite a different result from the result we thought had been intended.
The aboriginal fishing strategy is clearly an unexpected and unintended policy created by regulation under the Fisheries Act. Even though the Fisheries Act is, for the most part, very traditional legislation with a fair amount of detail, the government has been able to twist the meaning of the act to create a native only commercial fisheries law as regulations under the act.
The native only commercial law stands against 150 years of Canadian history and law. The Supreme Court this year in the Nikal decision held the policy of the crown, both before and after Confederation "was to treat Indians in the same manner as non-Indians with respect to the allocation of fishing grounds for commercial use". The native only commercial fishery law has wrecked havoc on the west salmon fishery.
If the courts ever get the opportunity to consider the native only commercial fisheries regulations I believe they are likely to strike them down as being incompatible with the intentions of Parliament when it wrote the act.
If the government can get away with native only commercial fishery for fours years, we can only guess what will happen with a very open-ended act like the oceans act. Virtually anything could be done.
Some legislation in only a shell that enables the cabinet to write its own laws. In the past bills were substantive and the regulations involved only technical standards, such as the size of a net or the variety of fish. Sadly we often find that it is the regulations where substantive law is found.
In 1993 in the last Parliament a subcommittee of finance, the then subcommittee on regulations, spoke with clarity about the problem that occurs when parliamentarians demand too little and give too much in legislation they approve. I commend the members of this House who in the last Parliament wrote this report.
The subcommittee noted the "tendency, beginning with energy legislation in the early 1980s to enact framework legislation, leaving substantive provisions to be set out by regulations. The new regulations often affect the rights, duties and obligations of citizens. This contrasts with the more traditional approach under which only technical standards and details tended to be left to regulations".
In the first chapter entitled "Inadequate Legislative Overview" the report reminds us that "under our system of government, Parliament is supreme, subject to limits imposed by the Constitution. In concrete terms this implies that the cabinet cannot raise taxes that Parliament has not sanctioned, or spend money that Parliament has not approved".
It goes on to warn "that regulations promulgated by government departments- have the force of law just as primary legislation does. They can be promulgated lawfully only if appropriate authority has been delegated under a statute that Parliament has passed. However, when the delegated authority is broad and use of that authority is not adequately supervised by Parliament, the implied parliamentary control is absent and the supremacy of Parliament is undermined-The cabinet's formal accountability to Parliament for regulation making amounts in practice to a dead letter".
The oceans act is a shell. It authorizes the minister and the cabinet to write their own law after they have decided what it is they want. It would be better parliamentary practice, I submit, if after the government decides what it wants for an oceans law and policy for it to come back to Parliament and submit a bill to Parliament.
I am anxious to get good environmental legislation on the books. But is this good environmental and oceans law or is it just another Canadian Environmental Protection Act? What ought to have been our basic environmental law has left the development of the law to the government to be done through regulation.
Let me tell members from firsthand experience in Delta why I have some doubt about this approach. The Tsawassen Indian Band in my riding has developed a condominium project in an environmentally sensitive area. As of late it has also built a sewage plant on an intertidal marsh, class 1 habitat.
When the sewage project was under consideration, I hoped that our basic environmental law would require that an environmental assessment be done. Lots of games were played but no real environmental assessment was done. We were told that since no government money was directly involved, none had to be done. Perhaps no government money in the bricks and mortar of the condo project, but lots of offshore money. So much for what environmentalists and others had called our foremost piece of environmental legislation.
With regard to the sewage project, the Minister of the Environment in a letter to me dated July 17, 1996 acknowledges the weakness of the Canadian Environmental Assessment Act. He said: "My department has no decision making responsibilities that would require it to initiate an assessment in accordance with the act".
In the same letter the Minister of the Environment admitted the involvement of his officials was through the Fisheries Act, not the Environmental Assessment Act. He stated: "Given the shared responsibilities between environment and fisheries with respect to the Fisheries Act, officials from my department are working with the Department of Fisheries and Oceans on this review".
Let me read from fisheries documents that I received under the Access to Information Act: "We are concerned there will be a sewage discharge into what is a very ecologically important habitat. This project has the potential to adversely affect an internationally important area for migratory birds, particularly migrating and over wintering waterfowl and shore birds. Intertidal habitats can be extremely sensitive. There is insufficient information provided to demonstrate that fish protection requirements will be met".
There was a hole in the law, a loophole so big that the law, we were told, did not apply on Indian reserves. Why? Because the regulation affecting reserves had not been written yet. Now who would have thought that the law did not apply to all of us equally and that the minister could write a separate law for natives? How did this happen? Because the legislation was deliberately vague. It did not say what was prohibited. It left it to the discretion of cabinet. It encouraged behind the scenes influence peddling.
When the band went about bulldozing an environmentally sensitive area to make room for the sewage plant for the condo project, I did not spend much time on the Environmental Assessment Act. I went to the Fisheries Act. I went to the kind of environmental legislation that works, that has teeth. When we read it, we knew where we stood. We did not have to check to see if the minister has made a policy statement or what the regulations say as there is nothing much in the act.
I complained to the fisheries department that someone was quite possibly breaching the act by destroying environmentally sensitive fish habitat. The department did its job, though not before some environmental destruction had occurred.
I am concerned that the same hole exists in the oceans act with regard to environmental issues, especially if natives are involved. Let me show one reason why the Fisheries Act worked and why the oceans act will not and why the Environmental Assessment Act does not.
Section 35 of the Fisheries Act does not say that the minister may make regulations or make a policy after consulting everything that moves. Instead it says: "No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat". How is that for clarity? No mumbo-jumbo, no weasel words. Destroy fish habitat and the act kicks in. No special exemptions for environmental destruction by a province or native bands. The act leaves an out. The minister can authorize the destruction of habitat. If not, the law has been broken.
As an aside, some would trash the Fisheries Act and the fisheries department and turn the job of fish habitat protection over to the environment department or the province. I am not one of them. The Fisheries Act and the fisheries department can, when push comes to shove, do what needs to be done. I would say to those in Victoria and Ottawa who would trash the fisheries department authority to protect fish habitat: You are no friend of fish. If it works do not trash it.
We as parliamentarians can do better. We must demand more. We receive poorly written shells masquerading as potential legislation because we have demanded too little and the government has been allowed to safely ask for too much authority.