Debates of June 13th, 2005

Fisheries Act

[John Cummins, Conservative, Delta—Richmond East, BC]

Mr. Speaker, the issue at hand here is about the ability, so to speak, of the Ontario minister to enforce the regulations that have been put in place. Of course the scrutiny of regulations committee made it clear that there was still an ability to enforce the regulations. It may take a different form, simply, but it is still there. I think that is an important aspect of the issues we are dealing with.

The minister in Ontario would have us believe, of course, that he is not going to be able to regulate the fishery on a whole host of issues. We do not buy into that. We are concerned that regulations that are going to be put into place by a bureaucrat could result in a fisherman doing jail time, being the recipient of a very large fine or in fact losing his vessel. We find that particularly offensive.

The point I would like to make is that the Ontario minister has a couple of options available to him. He can continue to impose terms and conditions on a licence and may employ licence sanctions as a means of censure. That is there in the act and he is able to do that. Nothing in the disallowance report or in the committee's report would have prevented that, so he has that ability to impose terms and conditions on a licence by means of censure. In other words, he can withhold licence privileges for a day or simply seize the licence.

The alternative is that he can develop and seek passage of regulations to replace the existing licence conditions. That is another option available to him. Of course to me that is the obvious choice. It is the choice I would like to see because it is the most open choice and it is the choice that allows for public scrutiny of what is happening. That does not mean to say we are going to catch every incidence of bad legislation or bad regulations being brought forward, but that does mean to say the opportunity is there for members of the public to make comments if they wish.

To me it is this whole notion of the public having a say in this process that is important. As well, this notion that somehow these bureaucratic regulations could result in jail time is what I find particularly offensive. I wonder if my friend would agree with that.

[John Duncan, Conservative, Vancouver Island North, BC]

Mr. Speaker, I certainly do agree with that. It goes a little bit further. When we end up with a set of conditions that somehow have to do with a permit, a licence or the granting of permission to do something from the government or from a crown corporation, because I have seen examples of the latter, very often the first recipient is so happy to receive that permission that he or she will actually accept almost any constraint because the first big hurdle is to acquire that piece of paper.

Very often, that first holder does not hold it very long. The holder passes it on and then the person who ends up with it actually has to put it into practice or live with it, but finds out that it is a huge problem and the original holder is long gone. Not only are there no checks and balances from the public at large when we do not have gazetting and scrutiny of regulations, but we very often do not even have scrutiny by the first person receiving it, because his or her objective is to get it and transfer it as quickly as possible to someone else.

[John Cummins, Conservative, Delta—Richmond East, BC]

Mr. Speaker, it is a pleasure to address this particular issue again tonight. It is an issue of considerable concern back home. One of the difficulties we have had in British Columbia is the whole notion that somehow or another the management of the fishery was out of our control, that decisions were being made on which people did not have the ability to make proper comment and that decisions being made were simply onerous and at times expensive for the fishermen involved.

Let me give the House an example. Our problem today is with the ability of the government to put conditions on a licence and then to impose sanctions on that condition. The sanctions, as we have suggested, could involve fairly substantial fines, time in jail or the seizure of the vessel and fishing equipment. Those are all significant penalties for breach of a licence condition. The problem with licence conditions is that we fail to provide the proper scrutiny for those regulations.

I just want to walk through the process. The Fisheries Act is the big Kahuna of the management of the fisheries. It is the body of law from which all the other authority derives. It advises the minister of his responsibilities and obligations and so on. It limits the responsibilities the minister has and it defines them very clearly. For example, in section 43 of the Fisheries Act, it states:

The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations--

It then goes on to list a whole host of regulations:

(a) for the proper management and control of the sea-coast and inland fisheries;

(b) respecting the conservation and protection of fish;

(c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;

(d) respecting the operation of fishing vessels;

(e) respecting the use of fishing gear and equipment;

The list goes on. It is fairly precise and yet at the same time it is open-ended and it does give the minister a fair amount of latitude to operate.

However, once that is said, in making the regulations that will apply to the fishery, the minister has certain steps to follow. To begin with, he has to provide a committee of cabinet with those proposed regulations which would then be subject to some scrutiny. That scrutiny is fairly well outlined in the Statutory Instruments Act.

For example, in the Statutory Instruments Act it suggests that there must be an examination of the proposed regulations. It states that the regulations must be presented in the usual way in both official languages and so on and then it states:

3.(2) On receipt by the Clerk of the Privy Council...the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, shall examine the proposed regulation to ensure that

(a) it is authorized by the statute pursuant to which it is to be made;

(b) it does not constitute an unusual or unexpected use of the authority pursuant to which it is to be made;

(c) it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights;

and (d) the form and draftsmanship of the proposed regulation are in accordance with established standards.

It is fairly onerous, if we will, as regards the kinds of oversight that are carried out before that regulation comes into effect.

If the bill is acceptable by cabinet, what happens next is that the bill is gazetted, printed and then comments are invited from the public.

I have an example from October 1, 1998 of regulations amending the fishery general regulations. It lists the regulations. As we go down through the document, we come to a regulatory impact analysis statement. The minister is required to provide this regulatory impact analysis statement. It first describes the regulations and then goes on to suggest what alternatives may be in order. It talks about the benefits and costs of the particular regulations that will be there so that this thing is not just thrown out without those safeguards. It then talks about the consultation that took place, the compliance and enforcement that would be required and that would include the fines. It then gives the contact person in the Department of Fisheries and Oceans.

Let me give an example of when we simply have licence conditions attached to a licence.

All of these requirements under the statutory regulations and, in particular, this regulatory impact analysis statement are foregone. They are not part of the process.

For example, on the gillnet fishery on the west coast, gillnetters are required by law to have a revival tank on the vessel. The purpose of the revival tank in the Fraser River fishery, for example, is if any coho are caught the coho, which we are not supposed to capture, are to be put into the revival tank and maintained there until they are fit to be put back in the water and then their survival would be ensured. That is the purpose of the revival tank. That, on the surface, makes sense.

However the government has done this by licence conditions and it really has not looked at the impact of this. These revival tanks cost somewhat better than $1,000 for the average tank. For a fisherman who last year only fished 39 hours and maybe only made $3,000 or $4,000 with his licence, $1,000 is a lot of money. The worst part of it is that fishermen are required to have that revival tank on their vessel in July and August when there are no coho in the river.

We have a case in British Columbia now where a fisherman was charged for not having a revival tank on his vessel in July simply out of spite. The bureaucrats were upset with this fellow because he had been protesting some of the actions of the department and was not satisfied with it so the bureaucrats used this section. They told the fisherman that because he did not have his revival tank in operation they were going to take him to court and march him through the process. They told him that under the terms and conditions of the licence he had to have the tank in operation whether it was needed or not therefore he would have to pay.

That is the kind of outrageous authority that I do not think we should be giving these bureaucrats. I do not think that is what is called for and I do not think it is what Canadians want or expect.

I think the Ontario minister and, unfortunately, the Ontario Federation of Anglers and Hunters were in receipt of communications from the federal minister about this particular bill. The minister put the fear of God into not only the Ontario minister but the Ontario Federation of Anglers and Hunters and all but told them that if these regulations were not in place and the committee's disallowance report went ahead, the government would not be able to manage the fishery and it would to be over. It would have to shut the fishery down because it would be impossible to manage without being able to attach conditions to a licence. The government said that in the absence of licence conditions the commercial fleet would be unmanageable, it would not be able to control the species taken, the amount taken, the gear used, the time for fishing and the location of fishing.

In fact, the Ontario Federation of Anglers and Hunters said, “otherwise the protection currently in place through regulation for the $7 billion a year sport fishing industry will be unable to address the species of fish taken, the amount taken, the type of gear used and the timeframe and location of that activity”.

Unfortunately, that is not the case. For example, the Ontario fishing regulations talks about restrictions. No. 16 states:

No person shall engage in angling within 25 m of a cage in which fish are held for culture or a pound net.

No. 17(2) states:

A person who is angling from a boat may use two lines in the waters of Lake Erie, except in Rondeau Bay and the Inner Bay of Long Point Bay.

The Ontario minister is under the impression that the fishery cannot be managed without licence conditions. Well they do it in the regulations in Ontario already. That is just one example.

In No. 17(5) it states:

A person who is angling by trailing lures or baits behind a fishing vessel that is in constant forward motion created by muscle, motor or sail power may use two lines in the following waters:

(a) the waters of the St. Marys River west of 83°45'W. in Division 17; and

(b) the waters of Division 23, excluding

It goes on to list some exclusions.

In No. 18(1) it states:

--no person shall engage in angling through the ice with more than two lines.

In No. 18(3) it states:

No person shall engage in angling through the ice with more than one line in the waters set out in the table to this subsection.

The table is extensive. They are all doing things in the regulations which the minister in Ontario tells us that if Bill C-52 is not passed, they will not be able to do. Well they are doing it. It is just that these guys do not want to be bothered with open government and accountability.

The bureaucrats do not want to answer for the licence conditions that they put forward. Somehow they think it is okay for bureaucrats to put in place licence conditions which can result in imprisonment, large fines or the seizure of fishing vessels or fishing lodges if one is a sports fisherman, and I find that to be particularly reprehensible.

I responded to the Ontario minister of fisheries in a letter on July 8 in response to letter he sent to our fisheries critic on June 7. My friend, the parliamentary secretary for natural resources, read a good part of the Ontario minister's letter into the record. My letter read:

With respect, your response indicates that your office may not understand the objections of the Committee. The objection is not whether your Department’s objective is wise from a policy perspective. Its sole concern must be whether s. 36(2) of the Ontario Fishing Regulations is authorized by the Fisheries Act.

That of course is the issue. I also told the Ontario minister in my letter:

Furthermore, you seek to have Parliament amend the Fisheries Act to give your Department the ability to launch such criminal proceedings against fishermen who might breach a term or condition established by your officials.

I went on to say that the scrutiny of regulations committee has already refused to endorse such a course of action. On April 14, 2004 it warned:

Our acknowledgement that the amendments...would resolve the Committee's objections to the legality of the relevant regulatory provisions does not imply an endorsement of those amendments.

Particularly as regards the proposed section 10(1), which would impose a legal duty to comply with the terms and conditions of a license, we can conceive that some Parliamentarians might object to subjecting such non-compliance to penal sanctions that include imprisonment. To deprive a citizen of his liberty on the ground that the citizen has failed to abide by a requirement imposed by a public official in the exercise of administrative power, such as a term or condition of licence, could be thought undesirable as a matter of legislative policy.

I do not know of anyone on this side of the House who does not subscribe to that point of view. It is highly inappropriate for someone to end up in jail because he or she was not in compliance with a regulation that was put in place by a fisheries bureaucrat as opposed to a regulation which was authorized by this place.

The fisheries minister in Ontario is simply asking Parliament for an authority that it has never granted to departmental officials. It is worth underscoring that this authority that is being asked for is one that simply has not been allowed in other places. As I said earlier, the Library of Parliament could find only two instances where regulatory schemes or conditions to a licence would be sanctioned by someone other than Parliament and without parliamentary scrutiny. They were in the airline industry and in the nuclear industry, but there are public regulatory bodies that are overseeing those industries, and in fact, there is full public disclosure.

The parliamentary secretary was suggesting that parliamentary scrutiny would still be available, but section 10(2) contained in clause 1 of Bill C-52 makes it very clear that the regulations referenced in section 10(1) will not be subject to parliamentary scrutiny. That is a deep concern.

I suggested to the minister in Ontario that he has two options available to protect the fishery in Ontario. He could continue to impose terms and conditions on a licence and employ licence sanctions as an effective means of censure. In other words, he could withdraw the licence for a day or two days, or simply suspend the licence if that is his wish. That course certainly would be available to him, or he could develop and seek passage of regulations to replace existing licence conditions.

Certainly that is the route I would prefer to see, regulations to replace these existing licence conditions. We have this public process in place to oversee those regulations, to get public input and to ensure that not just the special interest groups are heard, and those special interest groups may simply be the commercial fishing industry or the sport fishing industry or some such other body, but to ensure that the public at large has the ability to respond. That is important.

Quite often, as my friends down the way have been suggesting, on these fisheries issues the public at large has a very real interest in protecting the fishery because of the historical and cultural significance that maintaining a sustainable fisheries has.

Although the bill may be very small and does not quite fill a page, it is of huge significance. It is one that we certainly should not be supporting.

[Inky Mark, Conservative, Dauphin—Swan River, MB]

Mr. Speaker, it is an honour to take part in the debate on Bill C-52. I listened carefully to my colleague from British Columbia on the whole issue of the Department of Fisheries and Oceans. I can certainly echo similar experiences in my riding of Dauphin—Swan River—Marquette of actions of the bureaucrats at the Department of Fisheries and Oceans.

Unfortunately, too many of these regulations force the department to operate in a manner that is unaccountable to anyone except itself. The people in my riding understand that the Department of Fisheries and Oceans has a relevant role to play in terms of environment enhancement to ensure that the fisheries remain intact in the future. There are huge bodies of water in my riding and fish are very important to the people who live there.

Unfortunately, because of the way the regulations operate they make a lot of people angry, sometimes because they do not understand the history of the riding and how real things happen. For example, the installation of culverts and ditches is always a sore point with the rural municipalities. Fisheries officers from who knows where, possibly from academia, usually inform the municipalities that they have to take the culverts out. They are not allowed to install them without studies, which incur costs. The same thing happens when bridges are being built. Engineering studies have to be done. It increases the costs for the rural municipalities.

We know that regulations tend to get out of hand. With Bill C-52 perhaps we need to look at less regulation and do away with some of the regulations that exist in the current legislation rather than add to the regulations. I would like to hear the comments of my colleague from the west coast.

[John Cummins, Conservative, Delta—Richmond East, BC]

Mr. Speaker, broadly speaking, there are two problems. One is the application of some of the existing regulations. Certainly on the issue of maintaining fish habitat at times I think the department is overzealous. There are farmers in the Fraser Valley who have created a ditch in the back of their property and all of a sudden that ditch becomes fish habitat because water flows through it for two or three months. The farmers are being forced to comply with regulations which prohibit farming within, I do not know, 30 feet of the ditch. It is this sort of thing. There is an overzealousness on that level.

On the other hand, my friend from Winnipeg Centre and others have raised the issue of Devils Lake in North Dakota. There is an issue where Canadian waters are going to be impacted by an action taken by our neighbour and the government is not acting vigorously enough to defend Canadian interests.

We can take a look at our oversight. Our fisheries department has not been enforcing regulations relating to aquaculture in a way that endears us to our friends in Alaska. They look at us and say, “You guys are impacting on our fishery”.

The bottom line is that the Minister of Fisheries and Oceans has a fair amount of authority. He has the authority at times in a way that no other minister has. I think that is good in many respects. But the issue is, is that authority being applied in a judicious fashion? Is it being applied in an open fashion and in a fair way, so that when regulations are put in place, people have the ability to respond in a fair and open way?

In essence if the act is followed as it is written, they do. If this bill passes, they will not. The public will be precluded from having a say in the management of fisheries because, I will say right now that we have seen a growth in licence conditions over the last 10 years in the fishery. If this bill goes through, we ain't seen nothing yet. They will be using licence conditions for simply the management of every aspect of the fishery. The regulations that are in place will gradually fall into disuse. The only operative method of dealing with the fishery will be licence conditions. Essentially that is ruled by the bureaucracy and this place will have very little say in it.

To get any kind of a change will take some kind of majority consent of this Parliament, which will be almost impossible.

Do we need more licensing conditions or more regulation? In a sense, yes, but what we need to do is enforce what we have in a more vigorous way in some respects, but certainly in a more reasonable way in others.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, my colleague from Delta—Richmond East gave a very useful and interesting speech.

Would he agree with me from the tone and from the content of the speeches we have heard that the most worrisome thing about Bill C-52 and I think the reason the Conservatives put forward amendments is the whole thing seems to be shrouded in falsehoods and misinformation? My colleague cited the Ontario hunters and anglers who have been led to believe things that simply are not true in order to push forward the world view of the Liberal management of the fisheries.

Would the member expand a little on how the Ontario hunters and anglers and even the Sport Fishing Advisory Board and others seem to have been misled or sold a bill of goods about the impact of action or inaction regarding Bill C-52?

[John Cummins, Conservative, Delta—Richmond East, BC]

Mr. Speaker, the member has hit the nail on the head. The government has convinced the Ontario minister, perhaps working in conjunction with him for all I know, good Liberal brethren that they are. They have put inappropriate pressure on the Ontario hunters and anglers and have fed them a bill of goods about the bill. They have told them things that simply are not true.

We made it very clear that the kinds of restrictions listed in the letter from the Ontario Federation of Anglers & Hunters are matters which are currently regulated by the Ontario fishing regulations. In the last little while, the Ontario government has tired of the very public process of using the regulatory scheme to manage the fishery and has said that it is much easier if it does it by licence conditions. That does not make it right and it is not right when a bureaucrat can put in place a regulation. Failure to comply with that regulation, as the government would like to happen in this bill, would see the full weight of fisheries enforcement come down upon the transgressor, including large fines, jail time, and/or seizure of vessels.

Those are problems the we face. The member for Winnipeg Centre has said very clearly this evening, that this bill is symptomatic of the kind of legislation we have seen come into this place over the last 10 years, and I find it very disturbing. I want to see a clear bill. I want to see it clearly define ministerial and government responsibility. I want to see the regulations flow from that, regulations that have been vetted by the public and regulations which everybody understands and to which they an opportunity to respond. I do not want to see these kinds of backroom deals that can be cooked up if this legislation goes through. It is not healthy for the resource because the public will be kept out of the loop. They will not know what is going on, and that is very problematic and something that I find very upsetting.

I want to thank the member for his contribution to the debate this evening.

[Loyola Hearn, Conservative, St. John's South, NL]

Mr. Speaker, I notice we are rapidly running out of time. I am thinking about the people who have tuned into us all night, having missed a very good baseball game with Halliday pitching and missing Duffy's countdown. Perhaps we could have Duffy do a countdown on useless regulations that governments try to introduce.

I hesitated to get up because I thought some of the Liberal members would stand to defend their minister and what he was trying to do in this scenario, particularly when we have such knowledgeable fisherpersons like the members for Whitby—Oshawa and Saint Boniface. The chair of the finance committee might want some comic relief by participating in this debate in order to come down from the evening he had earlier. That is not the case so we will have to finish up with a few remarks.

The member for Winnipeg Centre said earlier that what the minister was trying to do was put conditions on licences with no statutory authority to do so. That is exactly what the minister is trying to do. The government was trying to pull a fast one and got caught.

This is not the situation that occurred last week when we suddenly had to rush a two clause bill out to the members with absolutely no background or explanatory notes. It was only upon a hurried request from members asking what it was all about that a briefing was given. Then we were told that it was absolutely nothing, that it was to correct a problem in the Ontario regulations to ensure that everything flowed properly.

On investigation, we found that was a long ways from the truth. This is only a two clause bill, but the ramifications of this will echo from coast to coast to coast. It gives the minister, as the member for Winnipeg Centre said, carte blanche to impose upon people involved in the fishery fines up to half a million dollars and jail time up to two years less a day, which he does not have the authority to do at present.

One of the things that has happened, in this cloud of confusion the government tried to create and the hoax it tried to pull on its counterparts in Ontario, is the minister seems to have vanished from the scene and left this to float, hoping it will go away. It has been around for a long time. It was not introduced last week when all the flurry happened. The bill has been on the go for 18 years. It was 1987 when this regulation first got the notice of people in Parliament.

On at least two occasions since then, bills have been introduced to try to correct this measure. One did not get beyond first reading and the other died when Parliament died. First, the government must not think it was very important or the majority of the members in the House did not think it was important to make this correction.

Right out of the blue, at the last minute because of pressure put on by the Standing Joint Committee on the Scrutiny of Regulations, the minister tries to make blanket changes without giving the facts involved. That is what I think upset most people in the House. If this had gone through unnoticed, every person involved in the fishery in would be in a much more tedious position than he or she finds himself or herself in at present.

Regulations always have to be reviewed, updated and changed, but they have to be done properly. The rule of law can never be overlooked in this honoured hall of operations, but this is what is being done here. The rule of law has been pushed aside and the minister, for his own sake, is trying to ram through a bill which certainly will be more detrimental than any effect of not doing it.

We wonder sometimes why the minister is not as concerned about other regulations. Why is the minister not concerned about overfishing regulations? We hear all kinds of platitudes. We do not see any action.

Why is he not concerned about the rules and regulations that surround quotas? That is a major one. As we speak here in the House about a regulation which should never have been brought to this place, back in the House of Assembly in Newfoundland tomorrow, and today for those watching back home, a debate will continue on the future of Harbour Breton, tied in with the future, perhaps, of Fishery Products International.

It is a very serious debate, a debate that has gone on for two full days, a debate in which the government will play a very important role, because the result will be determined on a large scale by what the government is going to do to assist people in Harbour Breton who have been put out of work by the closure of their fish plant.

The fish plant closed simply because the company that operated it, Fishery Products International, says it does not have product enough to operate all its plants so some have to go. Harbour Breton was the first on the chopping block.

The big question is, what do we have in the ocean in relation to quotas that could be made available to companies or to areas, whatever the case might be? Let us just say we mean quotas which could be caught by people involved in the fishery to be brought ashore and processed by people involved in the processing end. The answer to that is simply that we do not know because there have been such great cuts in science that we have no idea, really, of what is available.

The set-up of the department, the regulations under which the department operates, basically gives large companies carte blanche to do what they want with a resource that we are told clearly by the minister, by government, is a resource belonging to the people. I have asked the question directly to the minister. Others have also. Who owns the fish in the ocean? The answer always given is, “The people of Canada own the fish. It is managed on their behalf by the minister and the Department of Fisheries”.

I have been here five years. I have seen four different ministers of fisheries and I can say it does not give me any great consolation to know that these people are the custodians of our resource, because we have seen it completely and utterly mismanaged. We have seen it abused. We have seen it destroyed by foreigners and by our own people. We have seen it used for everything except what it is supposed to be used for, that is, the benefit of the people.

We are a country rich in resources, whether it be our fishery, minerals, water power, forestry, farming or tourism. We can go on and on. It is a country that is extremely rich. When we look at the small population of our country and the abundant resources, and when we realize that the economy basically is developed upon the development of these resources, why are all of us not very rich?

Why is every person who wants to work in the country not working? Because the “custodians” or the managers of our resources have not done a very good job in managing them. If only we knew what is available in the ocean and what is capable of being harvested.

If we knew when to harvest that resource and under what conditions the resource could be harvested, just imagine how much product could be brought into the various processing facilities around the country. Just imagine if we could eliminate the waste, catching the undersized, and the abuse in the fishery, the people of places like Harbour Breton would not be wondering about the future of their fish plant because they would not have time to worry. They would do what they did some years ago. They would be working round the clock.

The plant in Harbour Breton, by the way, just a few years ago was processing 30 million pounds of fish a year. At that time the value was roughly $20 million. That was one small fish processing plant in one small rural community. We can imagine the contribution to the area, to the province and eventually to the country.

[The Deputy Speaker]

It being midnight, pursuant to order made earlier today, it is my duty to interrupt the proceedings on the subamendment at this time.

Accordingly, this House stands adjourned until later today at 10 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 12 a.m.)