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House of Commons Hansard #115 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was fisheries.

Topics

1 p.m.

Liberal

The Speaker Liberal Peter Milliken

It being Wednesday, we will now have the singing of the national anthem led by the hon. member for Yukon.

[Members sang the national anthem]

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

February 21st, 2007 / 1 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

moved:

That, given the importance of the fisheries in Ontario and the introduction of Bill C-45, An Act respecting the sustainable development of Canada's seacoast and inland fisheries, by the Minister of Fisheries and Oceans, which addresses the concerns of the Standing Joint Committee on Scrutiny of Regulations, and pursuant to Standing Order 124 and subsection 19.1(5) of the Statutory Instruments Act, the resolution of the Standing Joint Committee on Scrutiny of Regulations providing that subsection 36(2) of the Ontario Fishery Regulations, 1989, be revoked, presented to the House on February 7, 2007, in its Fourth Report (Report No. 78 — Disallowance), not be adopted and that the matter be referred back to the Standing Joint Committee on Scrutiny of Regulations for further review.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1 p.m.

Liberal

Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, I rise on a point of order. The motion reads that Bill C-45 in fact addresses the concerns of the standing joint committee.

I would like to advise the House that today the Fisheries and Oceans department officials have confirmed that in fact Bill C-45 does not satisfy the concerns of the Standing Joint Committee on Scrutiny of Regulations, and accordingly, if the motion is not factually correct, the motion should be ruled out of order.

Mr. Speaker, should you rule that this is simply a matter of debate, I would then ask the government to immediately contact and confirm with Fisheries and Oceans officials that in fact Bill C-45 does not address the concerns raised by the scrutiny and regulations committee, that the motion be withdrawn, and that the government undertake to come forward with an appropriate bill to deal with this matter with the existing Fisheries Act.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1 p.m.

Liberal

The Speaker Liberal Peter Milliken

I do not think it is a matter for the Chair to decide whether Bill C-45 addresses the concerns of the standing joint committee. That is a matter for the House to decide. The minister has moved a motion saying so. The Chair does not decide on the truth or otherwise of motions, and I do not think I am going to get into that, despite the argument presented by the hon. member for Mississauga South.

I do think it is a matter for debate, and as he knows, this debate is a special one held under specific provisions with respect to the report from the committee. The committee is always free to submit another report if the hon. member does not like the result that is obtained in the House as a result of the decision on the motion, and of course the motion can be accepted or rejected. It is a matter for the House to decide and I will leave it to the House to do so after a debate on the matter, which we will proceed with now.

Debate on the motion, the hon. member for Pitt Meadows—Maple Ridge—Mission.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:05 p.m.

Pitt Meadows—Maple Ridge—Mission B.C.

Conservative

Randy Kamp ConservativeParliamentary Secretary to the Minister of Fisheries and Oceans

Mr. Speaker, I am pleased to respond to the report tabled by the Standing Joint Committee on Scrutiny of Regulations.

First, let me thank the committee for its diligence on behalf of Canadians in overseeing the regulations that govern this country. I have served on that committee. I know that although the work can be tedious at times, it is very important.

Earlier this month the standing joint committee tabled a report that included a resolution to disallow subsection 36(2) of the Ontario fishery regulations under the Fisheries Act. The subsection in question states that:

No holder of a commercial fishing licence shall violate any of the terms or conditions of the licence.

The committee's view is that the Fisheries Act does not provide the authority to set out in a regulation the requirement to comply with licence conditions. The government is of the view that it does.

This has been a long standing issue between the government and the standing joint committee. Governments, long before ours, have always maintained that subsection 36(2) falls within the regulation making authority under section 43 of the Fisheries Act, that it is legally sound and that it is supported by court decisions.

Section 43 of the Fisheries Act is broad enough to include the requirement to comply with licence conditions. Among other things, section 43 provides the authority to make regulations: “for the proper management and control of the sea-coast and inland fisheries”.

It also provides authority to make regulations:

(b) respecting the conservation and protection of fish;

(f) respecting the issue, suspension and cancellation of licences and leases;

(g) respecting the terms and conditions under which a licence and lease may be issued;

The Ontario fishery regulations provide clear guidance as to the conditions that could be attached to a commercial fishing licence in that province. Similar regulations exist for other fisheries. These conditions include the species, size and quantity of fish that may be taken, where and when fishing can occur, and the type of gear that may be used.

Fishing licences, their attached conditions and the requirement to comply with them, are fundamental to the proper management and control of the fishery. They are crucial to protecting and conserving our fishery resources.

In fact, in a fairly recent development, one of which the committee may not have been aware, Ontario is using licence conditions to address a significant threat to its $2.3 billion recreational fishery. The province has placed certain restrictions on the movement of bait fish to control the spread of viral hemorrhagic septicemia. VHS has been implicated in killing a large number of sport fish in the province.

Clearly, compliance with these conditions as required by subsection 36(2) is critical for the sake of Ontario's sport fishing industry.

Let me add that individuals who participate in the commercial fishery know they must comply with licence conditions or face consequences. The government has always argued that in addition to the authority to suspend or cancel licences, Parliament did make it an offence to contravene the Fisheries Act or regulations under it in section 78 of the act.

The courts have agreed with the government's position. They have ruled that regulations made under the Fisheries Act that require compliance with licence conditions fall within the scope of the act's regulation-making authority, and they found that contravening this requirement is an offence under section 78 of the act.

So, from a legal perspective, in my opinion, subsection 36(2) of the Ontario fishery regulations is on firm footing.

However, I would be the first to say that we are not asking for the status quo. We believe that in most cases the potential for jail time is not an appropriate penalty for such contraventions. Fortunately, the courts have imposed fines in cases involving contravention of subsection 36(2) rather than imprisonment, but I do agree that greater clarity could be provided for the requirement to comply with licence conditions.

We are doing something about that. It comes to us in Bill C-45, which the minister tabled in December. The bill resolves the standing joint committee's regulatory concern with subsection 36(2) and does much more.

Revoking subsection 36(2) is not the right course of action, given that a bill has been tabled that addresses the committee's concern. That is why the minister filed the motion before us today to oppose the committee's resolution for disallowance.

Disallowing subsection 36(2) would create a serious legal gap in Ontario's ability to enforce licence conditions on some 500 commercial fishing licences and about 1,400 commercial bait fish licences.

Furthermore, the standing joint committee has indicated that if its resolution to disallow is supported, the committee would expect similar provisions in other fisheries regulations to be revoked. This would create an enforcement vacuum that would threaten these natural resources in virtually all of Canada's fisheries. During this vacuum, all that would be left to punish lack of compliance with license conditions would be suspension or cancellation of licenses, and the courts have made that process very difficult indeed.

Disallowing this regulation would then compel our government to draw up a quick fix bill to plug this regulatory gap and then get it passed through both Houses. This is something that has not worked on no less than three occasions in the past, Bill C-33 in 2003; Bill C-43 in 2004, which died on the order paper; as did Bill C-52 in 2005.

In fact, I did not support Bill C-52 as a solution when I sat on the other side of the House because I believed then, as I do now, that we have much more to offer Canada's fishers.

As tempting as it may be to try to pass a simpler minor amendment to deal with the committee's issue, we owe Canadians that and much more. We owe them a renewed Fisheries Act, one that would resolve this regulatory issue and provide for more collaborative, accountable and transparent fisheries management, which is exactly what Bill C-45 does. It resolves the standing joint committee's concern with subsection 36(2) of the Ontario fishery regulations by clarifying that compliance with fishing license conditions is a requirement of the act.

As I mentioned, the new Fisheries Act does much more. It puts forth a new licensing framework and an administrative sanctioning regime for most breaches of license conditions instead of relying on the courts. It introduces an arm's-length fisheries tribunal to handle violations of the act or its regulations.

The standing joint committee has also expressed concern that because license conditions are administrative decisions, non-compliance with them should not carry potential jail time for violators. Bill C-45 address this concern.

In the sanctions regime, as mandated in the new act, penalties for contravening the requirement to comply with license conditions would no longer include the possibility of jail time. The bill also responds to issues the committee has raised in the past with variation orders, and I will not get into that at this time.

The new Fisheries Act also includes measures for shared stewardship of our fisheries. It allows those with a stake in the fishery to have a say and take a hand in how the resource is managed.

Bill C-45 would also put in place a clearer and more accountable framework for stable access to the fishery and allocation of fish shares.

The new act also clearly spells out the considerations that the minister must take into account when making licensing and allocation decisions, and those which he or she may choose to consider. In other words, all the cards are now on the table.

Protecting fish habitat and preventing pollution are inextricably linked to sound stewardship of our fishery resources. Bill C-45 would compel everyone who administers the act to consider principles of sustainable development, and take an ecosystems-based and precautionary approach to conserving and protecting fish and habitat.

Speaking of principles, passage of Bill C-45 would, for the first time, set out management principles for fisheries and fish habitat right in the act.

In short, Bill C-45 would remedy the standing joint committee's immediate concern with subsection 36(2) of the Ontario fishery regulations and it does so much more on behalf of Canadians who depend on the fishery.

We have an opportunity here to make a lasting difference in better managing our fisheries and oceans by providing Canadians with a modern and more effective Fisheries Act, an act that would help deliver the ultimate sustainable value to the public from Canada's fish and ocean resources for generations to come.

I believe that concentrating the House's efforts on passing Bill C-45 is the right approach. I oppose disallowance of subsection 36(2) of the Ontario fishery regulations and will be voting to return the report to the committee so it can ensure that its concerns are addressed in Bill C-45. I encourage all members to do likewise.

I again thank the committee for its thorough scrutiny of this country's regulations. I think its work in respect to subsection 36(2) of the Ontario fishery regulations highlights the importance of passing Bill C-45 through Parliament as quickly as possible. I hope members of the House will agree that the time for change in the fishery has come.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:15 p.m.

Liberal

Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, I am rising as the Commons co-chair of the Standing Joint Committee on Scrutiny of Regulations. The committee has representation from all political parties. It has eminent members on it who have more than 10 years of experience. They have been there from the beginning. Since 1989 some of the Commons and Senate members have watched this file and have provided the committee with guidance.

The member should also know that the Standing Joint Committee on the Scrutiny of Regulations also has a team of legal counsel to guide us, to do the research and to provide us with the assistance that we need to do an appropriate review as authorized by Parliament.

I want to remind the House that the role of the Standing Joint Committee on Scrutiny of Regulations is to ensure that the regulations to any act of Parliament are enabled in the legislation. In other words, if the legislation does not permit it, a regulation cannot take the place. It cannot legislate. If there is a regulation that is not enabled by the act itself, that regulation is illegal and inoperative and will not stand up in the courts.

That is the problem. The intent is to do indirectly what cannot be done directly, namely to impose criminal liability for the breach of a term or condition of a licence which is not legislation.

In adopting the fourth report, the standing committee has concluded that the provision not only lacks legal authority, but also trespasses unduly on rights and liberties, represents an unusual and an unexpected use of the enabling authority and makes the rights and liberties of a person unduly dependent upon administrative discretion.

Regulations imposing sanctions or creating offences must be authorized by Parliament expressly or by necessary implication. No where in the Fisheries Act is the making of regulations creating offences expressly authorized.

There is a fundamental distinction in law between the exercise of legislative power and the exercise of administrative power. Under our system of law and government it is generally accepted that criminal sanctions attach only to the contraventions of the requirement that is established by legislation. A licence, however, is an administrative document. It is not legislation.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:15 p.m.

Some hon. members

Oh, oh!

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:15 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

Order, please. There is a lot of conversation in the House that does get in the way of things. If people want to have meetings, please have them outside. That is why we have lobbies.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:15 p.m.

Conservative

Gerald Keddy Conservative South Shore—St. Margaret's, NS

Mr. Speaker, I rise on a point of order. Are we speaking to the bill, to the gist, to the thrust of Bill C-45, or are we speaking on debate about the ability of the bill to come to the House? My understanding is we are speaking to the bill.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:15 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

The hon. member is free to debate whether he thinks the bill should be before the House. That is quite in order.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:15 p.m.

Liberal

Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, we are debating the motion tabled by the government.

In short, the exercise of an administrative discretion by individual officials is enforced as if it were law.

The government has agreed to amend the Fisheries Act, and indeed tabled Bill C-45. However, as I mentioned in my point of order at the beginning of debate, fisheries officials have confirmed that Bill C-45 does not address the problem, the illegality of subsection 36(2) of the Ontario fisheries regulations, because it empowers federal officials. It does not impact provincial officials.

The problem raised by the Standing Joint Committee on the Scrutiny of Regulations is that we are talking about provincial officials. The motion is factually incorrect. I believe it is out of order.

However, if the members want to argue—

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:20 p.m.

Conservative

Loyola Hearn Conservative St. John's South—Mount Pearl, NL

Mr. Speaker, I rise on a point of order. I cannot let this stand on the record because the member is not being factual. The department of fisheries officials have been clear. They are out in the lobby, if he wants to talk to them. It is quite clear the new act will address this. It is clear in the act, if he would read it. It is clear for anybody who wants to pursue it.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:20 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

I am sure the minister of fisheries and the member for Mississauga South can continue this debate as they each take their turn, but it is in fact a matter of debate and not a point of order.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:20 p.m.

Liberal

Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, contrary to what has been said by federal and provincial authorities, while the disallowance of subsection 36(2) may change the manner of enforcing complaints with terms and conditions of licences, it would not affect the ability to impose them.

The authority to issue licences and impose terms and conditions in the licence would remain, as would the ability to enforce them through licence suspensions or cancellations. The imposition of a fine or jail term for breach of a licence condition, as opposed to suspending or cancelling the same licence, has nothing to do with the sustainability of the fishery resource or conservation.

It is not unusual for licensing schemes to be established by federal legislation under which suspension or cancellation is the sole means of enforcing licences. While the enactment of new fisheries legislation may resolve this concern, given the substantive nature of the objection as well as the similar section of other regulations, the committee considers a resolution of this issue should not be delayed any further. It has been going on since 1989.

It is not acceptable that the requirements a citizen must obey upon pain of criminal prosecution be determined by a single official who decides what will or will not include the terms and conditions of a licence. That is the issue.

If I can put on my other hat as a member of Parliament and someone who has deep respect for this place, I believe there is time. This matter is very straightforward. The government could bring forward another piece of legislation to put the enabling clause in the existing Fisheries Act. It could come to the House and I am sure it would get unanimous consent to pass all stages at one sitting. The government has the tools to do it.

Bill C-45, even if it is amended to take into account provincial licensing officials, will not happen for a long period of time. In fact, parties are already clamouring for Bill C-45 to be referred to committee before second reading because they have so many problems with it.

After all this time and delay, it is clear the tools are available to the Department of Fisheries and Oceans to address this item, which has been illegal under the laws of Canada because the regulation is not enabled in the legislation. That is the legal opinion of the lawyers from the Parliament of Canada who have been assigned to our committee.

The committee's fourth report, which calls for this disallowance, was unanimously approved. This matter must be dealt with because the regulation is illegal. That is our role.

I believe the Standing Joint Committee on the Scrutiny of Regulations has done its job. It has shown good faith and given the department every opportunity to correct this error, this illegality. The government now shows that it wants more time. We will have another bill which will totally rewrite the Fisheries Act. It will take many months if not years before the bill ever gets through all the stages of the legislative process. We will be back again asking for the same disallowance.

Now is the time. I ask particularly the Bloc Québécois to consider the concerns that have been raised with regard to whether Bill C-45 addresses this matter. It is the opinion of our officials and of the officials of fisheries that Bill C-45 does not address what the committee has brought to the House. I am pleased the committee has taken this important step again.

It is the sixth time this matter has come before Parliament to be resolved. The Department of Fisheries and Oceans has not shown good faith over all this period of time. It is time for the House of Commons to vote on this matter to ensure that if it does not take the time to fix it now, the regulation be disallowed.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:25 p.m.

Bloc

Raynald Blais Bloc Gaspésie—Îles-de-la-Madeleine, QC

Mr. Speaker, I am pleased to rise to speak to this matter. I should perhaps summarize the ideas expressed to this point since we are going in different directions. We are presently debating the delegated legislation and discussing Bill C-45 and fisheries management in general.

In its 4th report, the Standing Joint Committee on the Scrutiny of Regulations asked that a part of the Ontario Fishery Regulations be revoked. Although I do not disagree entirely, the committee's conclusions state that the regulation adopted exceeds the authority set out in the act. That is true; however, we must look at the overall picture. A legal void is unacceptable. Consequently, we will support the government's motion to deal with this situation.

A remedy has been presented. However, I feel that the remedy threatens to give rise to more problems than the solution presently provided. At some point we will find ourselves in a legal vacuum.

Although I am not familiar with the Great Lakes fisheries, I do know that they are an immense expanse of water with commercial fishing activities and, primarily, recreational or sport fishing.

I do not feel it would be responsible to say no and just cause problems for the current government on the pretext that there is a problem. There is a legal problem. We have a duty to act responsibly.

That is what the Bloc Québécois has always done and will continue to do. The Bloc will therefore support the motion we are debating.

Given what has been said by the parliamentary secretary, the minister and my Liberal colleague, I do not believe that Bill C-45 has solutions to all the problems with fisheries management.

In my opinion, here again, we have to act responsibly and describe what is really going on. I do not believe that, in its current form, Bill C-45 is really the answer. That is why we are asking to amend the bill and hold public consultations. By meeting with people, stakeholders, fishers from across Canada and Quebec, we will have a more complete picture of the problems with fisheries management.

I would therefore invite the minister to agree to have the committee look at Bill C-45, not to completely change it, but to improve it in order to address the various crises.

The fishing season is about to begin in Quebec and other parts of Atlantic Canada. There are questions that need answers. I believe that, once amended or improved, Bill C-45 will provide some answers. At most, we are talking about next year. We are not talking about this year.

This year, the minister has responsibilities with regard to the season that will be starting for shrimp, crab, lobster and groundfish fishers. He currently has a responsibility regarding other species.

Unfortunately, in my opinion, the government is taking too much time to act. I hope that, in the next few hours, the minister will be able to make announcements that will give shrimp fishers, for example, a good idea of what to expect. Shrimpers from New Brunswick and Quebec were here yesterday. I believe that they will be meeting with the minister today. The message is simple.

Last year, I delivered the very same message about how important it is to be able to take serious, meaningful action to help relieve the burden on shrimp boat operators everywhere, and especially in Quebec. This is basically a matter of survival for fishers, for fish plant workers and for coastal communities.

This all leads up to our position. This is about being as responsible and rigorous as always. We realize that the Standing Committee on Procedure and House Affairs came to a certain conclusion. We might agree with that conclusion, but in the end, we do not believe it is the best way to solve the problem. We do not expect to find an ideal solution, but this is not the kind of solution we are looking for.

I would go so far as to say that the proposed cure could be worse than the disease. We would end up in a legal void. Fishers would automatically find themselves in situations where they might commit offences. I do not think they would make that kind of mistake, but offences may occur.

Nevertheless, we would end up in a legal void. That means that the responsible thing to do would be to support the motion before us.

Today, the government has put forward an extraordinary measure that we support. That said, we must not make a bad habit of this over the years.

It seems to me that the new Fisheries Act, which is to be passed shortly, should improve the situation. Nevertheless I would once again urge the minister—I am told he is listening—to accept the invitation of the opposition—the New Democratic Party, the Bloc Québécois, and the Liberal Party—to send it all to the Standing Committee on Fisheries and Oceans immediately, not to drag it out, but to act responsibly and broaden the scope.

I believe this situation calls for everyone's cooperation. If we all row together, we will reach our destination and produce good results. I would urge the minister to give it serious consideration.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:30 p.m.

NDP

Paul Dewar NDP Ottawa Centre, ON

Mr. Speaker, I welcome the opportunity to speak to the motion. I will begin my comments with some understanding of our role on this committee.

I am new to this place and therefore new to this committee but the committee is extremely important. It deals with all the legislation that has been passed in this place and through the Senate and ensures there is fair measure in terms of how the legislation is being implemented, that there are no problems in terms of the law that exists and the legislation that would be brought in. In other words, we need to ensure things are congruent and fair and, hopefully, to do no harm.

When we look at legislation it is important that we look at its purpose. Legislation normally exists to solve a problem and not to create problems. This committee, which is made up of members of Parliament, as well as members from the other place, scrutinizes, as is in the name of the committee, all legislation so there are no bumps along the road.

As with any legislation that is done by human endeavour, there are problems from time to time. Our role, hopefully, is not to get into a heated debate on a bill that will be coming to this place. What we have today is a motion questioning, in many ways, the work of the joint committee, and I say that without prejudice. I say that as an observation because the motion asks that the recommendation of the committee be sent back to the committee because the government believes it will be able to deal with it in its proposed legislation to deal with the Fisheries Act. In a nutshell, that is what is occurring here. No argument there.

For the record, I would like to bring forward some comments that were made by the hon. Minister of Fisheries and Oceans when he came to committee recently on this very issue. He said:

I want you to know that my department and this government value your insight and views, and we thank you for them. That is why I was eager to appear here before you, because I am committed to resolving this long-standing issue.

He was talking about the longstanding issue that we are dealing with in terms of the disallowance of subsection 36(2) of the Ontario fishery regulations. He acknowledged the concern and he wants to work to solve this problem.

He goes on to say:

You have told me and my predecessors that it is your view that the Fisheries Act does not provide legislative authority to enforce licensing conditions. The committee believes this subsection of the Ontario Fishery Regulations trespasses unduly on rights and liberties and makes an unusual and unexpected use of the powers conferred by Parliament. It allows officials to determine licence conditions, which are administrative decisions that, if breached, can land someone in jail.

He was simply paraphrasing our point of view. I will skip down to later in his commentary where he says:

In my previous role as fisheries critic, I stood in the House to debate against Bill C-52 a little more than a year ago. The bill would have amended the Fisheries Act to address the issue of concern to the committee, but would not have addressed outstanding issues of significance for our fisheries and Canada's fishing communities. You may recall that, during the debate in the House, I, too, questioned the value of a federal minister and his officials to throw people in jail. I believed then, as I do now, that there are other ways to enforce the rules that provide for orderly fisheries.

I mention that commentary because it is the minister acknowledging the problem that we are trying to grapple with and have grappled with at the joint committee. He acknowledges that this is something that needs to be dealt with. The debate perhaps here is how that should be done and when it should be done.

I believe those of us on the committee, as was mentioned by my colleague, the chair of the committee, would like this to be done quickly. Our concern and the debate in committee was that to wait for the overhaul of the Fisheries Act, which, as the minister said, is something that has not been done since Confederation, is no small task. In fact, it is something that requires diligence and will require a lot of scrutiny and debate.

As committee members, we needed to deal with due diligence. I felt strongly, as I do today, that we need to deal with this now because we can. To put it off again would not be doing due diligence. We would be throwing up our hands and abdicating our responsibility as members of Parliament to ensure we have the proper scrutiny of regulations and where there are problems we propose solutions. I am sure members in the other place would say the same thing.

When a committee proposes solutions it often needs to send correspondence to the relevant ministries and ministers stating that there was a problem with x, y or z. This has been going on, as has already been mentioned, since 1989 when I was a student at the University of Winnipeg.

We are asking the government to remedy this situation. If the government sends it back to committee it would be predictable. It would be a boomerang effect. We will debate this in committee again and say that it is still disallowed and make no changes and then we will be waiting for Godot.

What we need to do is be responsible. This is not, in my opinion, something that should be charged around the whole issue of the overhaul of the Fisheries Act. It should be taken as a separate piece to say that there is a remedy required and it has been going on since 1989.

When the minister was in opposition and certainly when I read his comments from the committee, he suggested there was a problem. Officials suggest there is a problem. The legal team that we are well served by on the committee knows there is a problem and is essentially saying that we need to remedy it now.

With all due respect to the government, I say without prejudice as a member of the committee on scrutiny and regulations that we cannot support the motion. What we need to do is provide a remedy that will not take long and will get through the House quickly to ensure we are doing our job as parliamentarians and that we are acting on the recommendations of a joint committee, recommendations that were unanimously agreed to by all parties, that the government and this place remedy the situation that has existed since 1989.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:40 p.m.

Conservative

Merv Tweed Conservative Brandon—Souris, MB

Mr. Speaker, I move:

That notwithstanding Standing Order 126(1)(c), any division or divisions demanded in relation to this motion shall be deferred to the end of government orders.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:40 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

The House has heard the request of the hon. member. Is there consent that the vote be so deferred?

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:40 p.m.

Some hon. members

Agreed.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:40 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

(Motion agreed to)

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:40 p.m.

Conservative

Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON

Mr. Speaker, I appreciate the occasion to rise in the House today to respond to the disallowance resolution tabled by the Standing Joint Committee on Scrutiny of Regulations. I thank the committee for its consideration and its considerable effort in reviewing hundreds of regulations each year and for specifically looking at subsection 36(2) of the Ontario fishery regulations.

Canada's new government values the insight provided by the committee. However, I must join the minister and the Minister of Natural Resources for the Government of Ontario, the Hon. David Ramsay, in not supporting the committee's resolution to revoke subsection 36(2). Our new government has continuously maintained that the regulation as it stands is legally sound, within the authority of the Fisheries Act, and supported by case law.

This position, I add, is fundamentally the same position that was presented by the previous government. It is with a certain degree of consistency that our new government is supporting a position which is more procedural than it is political, but we do agree that bringing further clarity to compliance with licence terms and conditions as a requirement of the Fisheries Act would be important and useful in managing our fisheries.

We are doing that and more through Bill C-45, which the minister tabled recently, but until such time as Bill C-45 is passed into law and the new fisheries act comes into force, we must keep the regulation in place.

Far be it from me to suggest that politics is playing a role in the actions of the opposition members of the committee in pushing for disallowance. However, I believe it is important to step back and view this matter in context.

I understand the concerns expressed by the committee. However, members of the opposition, when they sat on this side of the House, took the same position as our new government. The apparent flip-flop is what makes average Canadians cynical about the political process.

We have a responsibility as parliamentarians to be accountable for our actions. This includes ensuring that Ontario can continue to conserve and protect its fish stocks and manage its fisheries in an effective manner.

Subsection 36(2) of the Ontario fishery regulations is crucial to doing so. It makes compliance with licence conditions, which are a part of the rules that protect the fishery, a requirement.

As the minister mentioned, we are talking about 500 commercial licences and some 1,400 commercial bait fishery licences in the province. The landed valued of Ontario's commercial fishery is somewhere around $50 million a year, contributing between $250 million and $400 million to Ontario's and Canada's economies.

Fishing is important in my riding of Renfrew—Nipissing—Pembroke. As a gateway to beautiful Algonquin Park, its residents are concerned about what effect disallowance will have on conservation efforts in Algonquin Park and all parks. They fail to see where unrestricted fishing in our parks will benefit anyone, which could be a result of a vote of disallowance.

I am pleased to confirm that the Ontario Federation of Anglers and Hunters is in total support of our new government and the Government of Ontario in the need to maintain conservation measures to protect the resource.

Our fisheries are valuable and valued resources. Fishing licences, with the terms and conditions they carry, are fundamental to protecting and managing them. They set the rules for and limits on fishing activities to preserve these resources for the future so everyone can have a chance to enjoy and benefit from them.

The provisions of the Fisheries Act and its regulations give the minister the authority not only to issue fishing licences but also to place conditions on them. Fishing licences establish everything from the type and quantity of fish that can be taken to the start and close of particular fisheries, where fishing can take place, and the type of fishing gear that may be used.

Requiring licence holders to comply with the terms and conditions of their licence is one of the most fundamental parts of an enforceable fisheries management regime. Revoking subsection 36(2) would leave Ontario in a state of limbo in enforcing these licence conditions. This could result in potentially dire economic and environmental consequences for Ontario's fishing industry and thousands of Canadians who rely upon it.

Let me share part of a recent letter that was copied to the Minister of Fisheries and Oceans. It is from the Ontario Minister of Natural Resources to the standing joint committee joint chairs. It reads:

This subsection currently provides Ontario with a suite of adaptable enforcement tools, resulting in an effective deterrent system to ensure the conservation of the resource and proper conduct of the fishery. It also assures us that the deterrent system will be certain, effective, timely and proportional to the severity of the offence.

In the absence of subsection 36(2), we lose the ability to address licence violations, thus imposing unnecessary hardship to fishers for minor offences. In addition, we would also lose the ability to enforce terms and conditions on fishing licences, which would compromise the management of the commercial fishery and jeopardize conservation objectives.

Clearly, the Ontario minister agrees that licence conditions are a key element of proper fisheries management and control in his province. In other words, they are indispensable to protecting and conserving fishery resources.

By applying for and accepting a licence, fishers agree to go about their business in accordance with attached terms and conditions. They know they will be held accountable if they do not. Fortunately, most fishers follow the rules, but let us make no mistake about it, violations do arise. Revocation of subsection 36(2) would be more than an exercise in legislative authority. It would carry very real impacts in terms of enforcement in the Ontario fishery.

Since the year 2000, more than 400 charges have been laid for failure to comply with this subsection, resulting in fines for the offenders, but I should point out, further to the standing joint committee's concerns, that no jail terms have been imposed.

Let me read for members part of another letter, again from the Ontario Minister of Natural Resources, this time to the former Minister of Fisheries and Oceans:

Without this provision, Ontario would literally have its hands tied with respect to the enforcement of the commercial fishery. It is entirely likely that the revocation of subsection 36(2) would result in chaos in the sector and threaten the sustainability of our fisheries resources.

Now consider the same prospect were fisheries governed by eight similar regulations. The standing joint committee has indicated that it would expect these regulations to also be revoked, based on the precedent this House could be setting here today. This would impact the management and conservation of virtually all fisheries in Canada.

Our party and our government accept very seriously our responsibility to the environment. The conservation pledge of the OFAH sums up our position completely:

I give my pledge, as a Canadian, to save and faithfully defend from waste, the natural resources of my Country--its soils and minerals, its air, water, forests, and wildlife.

This pledge of the OFAH is something that members should consider if they feel as strongly as I do when it comes to protecting our environment. Let us make no mistake about it: supporting disallowance of subsection 36(2) of the Ontario fisheries regulations will have an adverse effect on the environment.

As we proceed on this matter, I would like the members of this House to bear two things in mind.

First, by voting against disallowance of subsection 36(2) and returning the report to the standing joint committee, we would not be ignoring this regulatory concern. We would simply be taking a different approach and a more fruitful path for Canada's fisheries and the Canadians who benefit from them.

Second, the changes proposed to the Fisheries Act in Bill C-45 fully address the committee's concern with the regulation in question.

Bill C-45 clarifies that it is a requirement of the act to comply with fishing licence terms and conditions, but unlike a minor amendment bill, which the government would be forced to pursue to fill in the gap created by disallowance, Bill C-45 addresses the committee's issue and provides much more.

It will deliver greater predictability, stability and transparency in the sustainable management of Canada's fisheries. The new fisheries act will require ministers to manage the fishery, taking into account the principles of conservation, habitat protection and greater public input into decision making.

It will open the door to greater collaboration with the provinces, territories and resource users, who will work more closely with government in managing the fishery. It puts into place an effective administrative sanctioning system and brings greater stability and predictability to fishery access and sharing arrangements. It better protects fish habitat and provides a clear and more accountable licensing system.

The new licensing system will be more transparent. The minister will provide a context for all licensing decisions. That means licences will be issued according to the regulations made by the minister, but the minister will have no direct involvement in granting the licences to individuals.

Licensing officers will be the ones issuing licences according to these regulations and, under the new act, licensing officers will have the authority to refuse licences under specified circumstances. They can also attach conditions to the licence for the proper management or control of the fishery as well as the conservation or protection of fish and habitat.

However, under Bill C-45, the possibility of jail time as a penalty for contravening the requirement to comply with licence conditions has been removed.

Stakeholder groups in the provinces and territories have shown strong support for comprehensive changes to the 139 year old Fisheries Act. I do not believe it to be in anyone's interest to delay the speedy debate and approval of Bill C-45. We must move forward on this agenda as expeditiously as possible.

I do not support the standing joint committee's resolution to revoke subsection 36(2) of the Ontario fishery regulations. The better option is to concentrate our efforts on passing Bill C-45. That is why I am asking all members of the House to reject--

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:50 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

The hon. member for Scarborough—Rouge River.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:50 p.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Mr. Speaker, I am very pleased to engage in the last few minutes of debate on this issue. Really, this is a legal matter for the House. It should not be addressed as a partisan or a political matter. Matters involving the Standing Joint Committee on Scrutiny of Regulations have, by convention, always been treated that way by the House. The House is appreciative of that. By convention, it is not a matter of confidence in the government. I presume we can handle it today in that fashion.

The standing joint committee decided to commence a disallowance, a revocation of this particular regulation, because it was the judgment of the committee, on more than one occasion, that this regulation unduly infringed on the rights and liberties of Canadians by allowing public officials to create quasi-criminal offences to which penalties were attached.

Our law and our Constitution say that only Parliament can create laws that penalize the citizen. As a result, the committee has been firm on this over a number of years. This is the second time it has come to the House.

There have been seven or eight disallowances accomplished by the committee and the House over the years. Only three of them have come to the House. This is the third time we have debated, I understand, since about 1982. On only two and a half occasions, if I can put it that way, has the government rejected the view of the committee.

I have served on that committee for some 17 years now and I should say that in the whole time of the committee it has never been wrong in law when it reached a decision. I say that very clearly and very firmly. The government should take note of that. There was only one time when a justice of the Federal Court, in an obiter, which was not part of the decision, almost crossed swords with the committee. In the end, it was only in an obiter remark and did not. That was Mr. Justice Marceau in the Camano exemption decision of 1992.

However, I point out that the committee and its heritage allow it to be very firm in its view of the law. In its recent report on the subject of the part II Broadcasting Act fees, the committee meant what it said. The committee reads very well: just recently the Supreme Court upheld the provision held by the parliamentarians that those fees were taxes. They were disallowed. Now the government is saying it does not have to return the illegally collected taxes.

I believe the committee will make its views known to the House and thereby to the government on that. I am giving advance notice that the government should give back the illegally taken taxes. Otherwise, the courts will catch up to us, and that will cost us $1 million or $2 million in legal costs and a whole lot of time.

In any event, in dealing with this procedure and these rules, the House does control this. It is not the committee that prevails. The proposal, the resolution of the committee to disallow, to trigger a revocation, does not govern unless the ministers do not challenge it or unless the House confirms it. In this case, the committee and the procedure are asking the House to confirm the view of the committee that these regulations should be revoked.

In my view, these regulations are illegal and unenforceable. In theory, a citizen will not actually have to pay any fine. In theory, officials will not be able to do any enforcement if their lawyers are aware of it. Sometimes people will pay a parking ticket just because they got the parking ticket, but in this case the regulations are at risk.

Hon. members should please heed that warning. It is a little bit like a town having an artificial sheriff, a fake sheriff, someone pretending to be the sheriff, a person who has no legal authority but who purports to act as the sheriff. Sometimes that brings about good results, but when push comes to shove, that sheriff, in our scenario, has no legal authority and the town is at risk.

I will acknowledge, and it has already been pointed out, that the disallowance of these regulations will create a theoretical vacuum of enforcement, and that may be true. Just as a court of law will sometimes postpone the implementation of its decision pending a rectification of the law in some way to prevent a worse public ill occurring, so in this case it may be the judgment of the House that the disallowance should be postponed pending a rectification or remediation in statute by the government.

The government has told the House it is able to do this with the bill currently before the House for passage. If that is the rationale that sounds reasonable to most citizens, but with a major warning that this is the judgment of the committee and I point out that the committee has never been wrong in law, these provisions are illegal. They unduly infringe on the rights and liberties of citizens. This must be rectified at the earliest possible date, likely through a statutory enactment proposed by the government. I hope members on all sides of the House would support such legislation to repair this regulatory problem.

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:55 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

It being 2 p.m., it is my duty to interrupt the proceedings and put forthwith every question necessary to dispose of the motion now before the House.

The question is on the motion.

Is it the pleasure of the House to adopt the motion?

Ontario Fishery Regulations, 1989Delegated LegislationOrders of the Day

1:55 p.m.

Some hon. members

Agreed.

No.