FOPO Committee Meeting

     I call this meeting to order.

    I'd like to thank the officials from DFO for joining us once again. I appreciate your cooperation to meet us this morning earlier than our usual meeting time.

    Mr. Stringer, I'll turn the floor over to you for some opening remarks.

    I'll make just very brief remarks.

    I want to introduce my colleagues. France Pégeot is the senior assistant deputy minister for strategic policy. David Balfour is the senior assistant deputy minister for ecosystems and fisheries management. Geoffrey Bickert is the senior general counsel for the Department of Justice at DFO. And I'm Kevin Stringer, the assistant deputy minister for ecosystems and oceans science.

    We are very pleased to be here to answer further questions on Bill C-45. I understand that we have provided some information that you had requested last time. We have provided that to the clerk.

    I'm happy to speak to that, happy to answer further questions. We understand you've had further discussions and further considerations. We're very pleased to be here to answer further questions on Bill C-45.

    Thank you very much, Mr. Stringer.

    Certainly we'll head right into questions. As you indicated, we did have the opportunity to meet with you earlier on this subject matter, and some questions came up following our meetings with other witnesses as well.

    We'll move right into questions, with Mr. Kamp leading off.

    Thank you, Mr. Chair.

    Thank you to all for being here just to clarify a few things for us.

    Let me begin with probably the one that was most unclear to us, I think, and that was the question of using the term “land claims agreement” to I think subsume everything in addition to food, social, and ceremonial purposes.

    With section 35 of the Constitution Act using the term “treaty”, and the Fisheries Act not using the term “treaty”, there was some concern that some fisheries may not be included under the new definition of aboriginal fisheries in the proposed amendment.

    For example, if there's a treaty that doesn't cede land, as such—for example, the peace and friendship treaties on the east coast—would that be covered under the definition of aboriginal fishery that's being proposed, or would, perhaps, some of the numbered treaties—Treaty 6, which refers to fisheries, and Treaty 8, for example?

    Can you give us some further information that helps us understand that the proposed definition will not miss some aboriginal fisheries?

    Thanks for the question.

    I did indicate, I believe last time when we were here, that land claims includes treaties. I just want to give one clarification and then some comments on that.

    First, land claims includes modern treaties. I will use some examples that I walk through in terms of the specific types of treaties. Those are the treaties where some specific types of fisheries are indicated.

    I'd also add that the objective of the Fisheries Act is to protect fisheries. The fisheries protection section speaks to what fisheries we're going to be protecting. Aboriginal and treaty rights we need to respect regardless of what's in the Fisheries Act. We will do that with respect to modern and historic treaty. We always seek to respect aboriginal and treaty rights to fishing.

    The definitions, which I talked about a little bit last time, in the Fisheries Act and Bill C-38, and indeed in Bill C-45, speak to fisheries that we're going to protect. Commercial with respect to fishing is defined. Recreational with respect to fishing is defined. We know that doesn't cover all of the fisheries that we wish to protect. We know that there are some other fisheries that are described as food, social, and ceremonial fisheries. We know that there are some other fisheries that are described in land claims. So that's what we sought to do. The word “subsistence” was used previously, because that is in land claims, and there are specific fisheries.

    With respect to aboriginal and treaty rights, we always seek to respect aboriginal and treaty rights regardless of how they're defined, going forward.

     My understanding, then, that the involvement of aboriginal groups in fishing—through, say, some old historic treaties that may not be specifically land claims agreements—is not protected by this definition in the Fisheries Act, but by other means.

    If there's a right to fishing that's basically an aboriginal or a treaty right, it must be respected regardless of what's in the Fisheries Act. We're not seeking to protect aboriginal rights with this legislation; those are protected by the Constitution. We always seek to respect those aboriginal and treaty rights. The Fisheries Act identifies the fisheries we will protect.

    You raised the example of moderate livelihood and the peace and friendship treaties. That would be potentially covered off. If it's commercial fishing, that's covered in commercial, with respect to fisheries. If it's recreational fishing, that's covered in recreational, with respect to fishing. If it's food, social, and ceremonial, whichever piece of it is in there, that would be covered off by those elements.

    Your view that a fishing right is protected by constitutional obligations, for example...it provides the same kind of protection as protecting a fishery, with its responsibility to protect the habitat and so on, that's in the Fisheries Act?

    Yes. When you're talking about protecting an aboriginal treaty right to fish, that would presumably include everything around the ability to fish, which I would say is fairly broad.

    Okay.

    I would like to move to one final issue that was raised by the AFN and the Atlantic Salmon Federation. By these definitions, and this new definition, for example, if there's a fishery that's not being fished at the moment—maybe it's under rebuilding or maybe it's in the future at some point, and it would seem to be a good idea to protect something that's under rebuilding. Is it your view that these definitions will do that for an aboriginal fishery, a recreational fishery, or a commercial fishery?

    That's something that needs to be defined and clarified. We're actually working on it. I can tell you what the thinking is at this time, and we've talked to stakeholders about it. The overall idea with respect to the fisheries protection provisions in the Fisheries Act is to protect fisheries. An example has come up: cod. In cod, there is a fishery in some areas, but it's been closed in other areas. We would want to ensure that we're able to protect those areas and that part of the fishery while it's officially undergoing a rebuilding exercise. The objective is to try to catch that.

    Thank you very much.

    Mr. Chisholm.

    Thank you, Mr. Chairman, and thank you very much to our guests for coming by and helping us clarify some of the issues in the time we have.

    I wanted to follow up on Mr. Kamp's question. It goes to that definition that using fish for food, social, or ceremonial purposes or for purposes set out in land claims agreements entered into with aboriginal organizations really seems to add a whole level of confusion. There is a problem in terms of the clarity of definition as it relates to, as Mr. Kamp has said, other agreements that do not refer to land claims, do not cede rights, or do not spell out those questions. The peace and friendship treaties on the east coast are a good example, but there are others.

    I'm concerned, maybe more so, by some of the explanation that you've given us that there will continue to be problems with how this gets defined in the future. There has been very little effort to work with the AFN, and they would be the most appropriate organization to begin that high-level discussion. There hasn't been any effort to have that kind of intense discussion to clarify some of that. The result, of course, is that when it needs to be interpreted, it will end up having to be interpreted in the courts. Would you comment?

     First, I understand the AFN provided some testimony, and as I indicated, we have had some meetings with them. They indicated they wanted to have more, so I certainly recognize that.

    Part of the discussion with the AFN, and I think it needs to continue, is to clarify what the purpose of the definition of “aboriginal” is with respect to fishing. I'll say here—and we've said it there and we need to continue to say it—that aboriginal with respect to fishing...that definition in the Fisheries Act is not meant to refer to all fishing by aboriginals. It's not meant to refer to protecting rights or treaty rights. It's not meant to do that; it's meant to cover something that is not covered in commercial and recreational fisheries in those definitions. What we think is not covered in terms of the fisheries that we're seeking to protect is food, social, and ceremonial, and other items identified in the land claims.

    It is a complex matter, you're absolutely right, and as evidenced by our discussions with the AFN and others, we'll have to continue to have those discussions. That said, our view is that it is clear in terms of what we're seeking to cover, and it's a matter of communications and clarity and working with people to ensure that there's a full understanding.

    You may have noted in the testimony of the AFN officials when they were here that they referenced some documents they were hoping to receive from the Department of Fisheries and Oceans. The last correspondence we've seen indicated that had not been clarified. I want to move on to another question, but perhaps you could comment on that release of information.

    We did see that. It has taken time to get documents out. When we meet with groups, the most useful document we refer to is the Fisheries Act proposed changes. There's a document that has all the changes that have been passed and are in effect, and then at the back it has the changes that have been passed but are not yet in force. So we've been using that document.

    That said, they referred to a three-pager that they said they hadn't got. It's on our website.

    Thank you.

    I want to move to what Mr. Taylor from the Atlantic Salmon Federation had to say in his testimony. He was concerned, as you may have noted, about the regulatory changes that are expected to come into force in January and the fact that there haven't been the kinds of consultations that would have been expected. He said in particular that in order to properly engage in cost savings, etc., they needed access to the reports of the Canadian Science Advisory Secretariat. He referred to the fact that he understood that DFO officials were meeting with the provinces for the purpose of developing scientific data to guide the amendments.

     Will you make that information with respect to the Canadian Science Advisory Secretariat available, and any other scientific data with respect to the implementation of these amendments, or as it relates to guiding the amendments?

    Second, there's been some indication that the January 1 deadline is somewhat aspirational, although there's been nothing clearly said. People are afraid that on January 1, bang, it's going to hit the table and it's done. ASF specifically asked that the reference in the order in council be changed from January 1 to June in order to allow for proper consultation.

    I wonder if you could respond, please, to those comments.

     I'll start with the latter.

    We have heard from a number of stakeholders who are concerned about the looming January 1 date. I think I was clear last time. You're right when you say “aspirational”. That's an appropriate term. The relevant sections—the transformative sections—come into force when the GIC, when the Governor in Council, when cabinet, determines by order in council that they come into force.

    An aspirational objective was to have as short a transformational period as possible, to have as little uncertainty out there for proponents and players as possible, and the thought was to aim for six months. As we've been going through this process, we have certainly been hearing from ASF, but also from others, including AFN, that are in there. We've talked to a number of groups, and what we have often heard is that they need more time to digest it; they need more time to think about it.

    So in the coming days and weeks, we need to come to ground in terms of whether we do want to aim for January 1 or aim for a later date, and we need to determine what that later date might be. That is under active consideration, and certainly the views that we're hearing are the views that you're hearing. I would say it's really about weighing the challenges of the ongoing uncertainty—and there are proponents out there who are not willing to come in with proposals because they're not sure about what the new regime is going to be—but also about making sure that stakeholders, proponents, and others have a sufficient understanding of the new regime and are able to weigh in regarding how we're going to apply it. That is actually being weighed. January 1 has been an aspirational piece. We absolutely want to be practical but efficient about getting it into place as soon as we can or at an appropriate time.

    The other thing I would say about ongoing engagement—and I will get to the CSAS question—is that for implementation, whether it's January 1 or some other day, we need sufficient direction and sufficient training for our staff on how to apply this. That's number one. Number two is that we need sufficient guidance for proponents to come in with what they need for a proposal.

    There are two regulations that we were hoping to have in place, and it would take some time to get those done. One is on information requirements for an authorization request. The other is on timelines that we will take. That will require public engagement, and that is something that would be useful to have in early days. Then there is going to be a suite of regulations and policies that will have to follow up the implementation of this. In my view, if regulations require it, there will have to be a broader engagement process with stakeholders and the public. We need to get sufficient guidance for staff and for proponents.

    Regarding CSAS and the science information that we have been working on, as soon as it looked as though this was going to be passed, we did sit down with a science group and a policy and program group to say that however we implement this, it has to be based on sound science. That needs to be the foundation. We need to have a scientific definition and understanding of ongoing productivity. We need to have a scientific basis for determining how a fish contributes to the ongoing productivity of a fishery. We need a scientific foundation for how we determine which fish contribute to the ongoing productivity of a fishery, etc. That work has been ongoing, and that will have to be shared at some point with stakeholders, certainly as we come out. That's part of the guidance to our staff, but also to proponents and stakeholders going forward. It continues to be worked on, and it's a question of when it is released and what exactly is released. Certainly it's foundational material. We have talked about it with stakeholders, but we haven't yet provided documentation.

    Thank you very much, Mr. Stringer.

    Mr. Allen.

    Thank you very much, Mr. Chair.

    Thank you to our witnesses for being here today.

    Mr. Stringer, I just want to pick up a little bit on that line of questioning on the consultation side. Obviously, from your testimony, it sounds to me as though January 1 is very aspirational with respect to getting this all in. Are you coming up with a game plan as to how these consultations will be done? It sounds to me as though it's going to take a while to do this, based on the need to give guidance to your departmental staff. I'd just like to understand how that plan is going to be developed, when that plan is going to be developed, and whether that will be the piece that will determine your recommendation to Governor in Council regarding the timing for these regulations.

     It is, and it's under development now.

    One option is what you just spoke to: the regulations. It's to use the regulatory process for the first two regulations, which would take a few months, but those first two regulations on what's required for an authorization request and the timelines we will take is one option.

     I think we've provided a list of people we've spoken to. In some cases it was a conference call providing information. In other cases it was a more detailed description of what's in the legislative piece. How much time we have will determine how much engagement we're doing.

    As I said, regardless of when it comes into effect, there is an enormous amount of engagement that needs to take place to develop new policy, to develop new regulations, and that's likely to take place over the next couple of years. It's a question of at what point the legislation actually comes into force so that we can start operating with it.

    Following on that question, when they were here, the Assembly of First Nations also talked about the challenges sometimes of a case-by-case approach with the various first nations, because they all have something that is a little bit different and there are nuances among them all.

    Is there going to be an overall framework approach for that, or a template to reach some equitable agreements?

    There certainly will be an overall framework with respect to that. With respect to aboriginal policy and governance, in our department there is a framework; there is an overall approach.

    That said, aboriginal treaty rights are site and group specific. There are sometimes different rights for different groups. As AFN has told us—and I'm sure it is generally said—the rights holder is the local group, and that's who we have to end up negotiating with and coming to agreements with.

    So yes, there is an overall framework, and yes, there is an overall template, and there will be for this new regime, but there are also specific arrangements with specific groups.

    I want to ask you a question about clause 173. When the Assembly of First Nations was here, one of the comments was that certain first nations fisheries require weirs that extend across entire rivers, and these weirs have mechanisms to allow for fish passage upstream. It makes me wonder, on the exemption of these, are there current aboriginal fisheries that are permitted to engage in that practice? Quite frankly, is that not counter to conservation goals when you have something that severely restricts a river like that, as well as navigable waters?

    I'd have to look at the specific cases they're talking about. I'm not sure the answer to the very specific question: are there cases where this has been done and allowed? I'd be surprised if there were, unless there was a very specific instance.

    I can also say that that section is not new. That section has been there since the 1920s. The idea is that a fundamental principle of fisheries protection is ensuring safe fish passage. That section means to speak to safe fish passage, so that you can't put a net across a river and catch all the fish that are going down.

    There may be some very specific purposes under which we might have done it in the past, or it might have been allowed in the past, but I think that section is meant to be in there. It's been there since the twenties and we've used it in terms of fisheries management.

    Some of the comments we heard the other day were on the first nations involvement in the Environmental Damages Fund and on basically a broad consultation group with respect to how this Environmental Damages Fund money would actually be spent.

    Are first nations actually involved? Is that currently the case now where they're involved? What type of body is the Environmental Damages Fund, and how does that administrative structure work?

    It's by Environment Canada. Environment Canada has both a management oversight and a technical group. The management oversight is at Environment Canada. The administration is at Environment Canada. There is a technical group of experts who are engaged, which involves people from different departments.

    It is often the case that the court can say, here is where the money should go, and Environment Canada will follow that, but they have some terms of reference.

    It's done by Environment with the support of other government departments.

    In the testimony Mr. Taylor provided to us the other day, I was asking him a little bit about the reality that a lot of the damages that have happened to fish stocks have happened under the old act; we're not even operating under a new act. With that in mind, he certainly did recognize that there need to be changes.

    One of the comments we got into a little bit the other day was the whole idea of killing fish. I just want to understand that. He was concerned about the minister's ability to authorize the killing of fish. This measure was in the previous act. I want some clarity on that.

    As well, could you expand on instances where this may be necessary?

     It is indeed in the previous act. Section 32 basically says that you can't kill fish by means other than fishing unless the minister authorizes it. That has been caught in the new section 35, where it says “activities”.

    Now the difference between the old section 32 and the new section 35, in that the minister can authorize the killing of fish by means other than fishing, is that there's some direction to the minister in the new act and there was no direction in the old act. The old act simply said you can't kill fish by means other than fishing unless the minister authorizes it. The new act basically says the same thing, partly in section 35, but it also says it must be applied based on its impact on the ongoing productivity of the fisheries; the fisheries management objectives; the ability to avoid killing fish, or to mitigate or offset that; and the public interest. The minister now has some direction.

    The idea is that if you have a hydroelectric facility, as an example, which has turbines in the water that are going to kill fish, right now they need to—and they have in the past—get an authorization to kill fish by means other than fishing. The minister licenses fishing, and this is how he enables or allows other killing of fish. That's an example of where you would do that.

    The legislation provided no guidance under section 32 about how a hydroelectric facility would ask him to authorize the killing of fish. It now provides that guidance. That is what's new. The idea is that the minister must be considering the ongoing productivity of the fisheries. If the killing of fish is not going to impact the fishery—it's a few fish in a large fishery—then that's a consideration. If it's a few fish of an endangered species or in a significant fishery where it's going to make a difference, then that's what the minister must consider.

    That's the difference. But that item has been there without direction since the seventies.

    Okay. Thank you very much.

    Thank you, Mr. Chair.

    Thank you, Mr. Allen.

    Mr. MacAulay.

    Thank you very much, Mr. Chairman.

    Welcome to our guests.

    In response to Mr. Chisholm, you indicated—I didn't catch it—that you need more scientific research in certain areas, or you need to explain the scientific research that you have. I'd like you to explain that further.

    The legislation, Bill C-38 and Bill C-45, we believe provides absolutely clear direction. It says that our focus is going to be protecting fisheries—commercial, recreational, and aboriginal fisheries. It provides definitions for those fisheries.

    It also says we're going to apply that based on the ongoing productivity of the fisheries and we're going to protect those fisheries from serious harm. “Serious harm” is defined as permanent alteration or destruction of habitat or the death of the fish.

     Then we need to take that legislation and provide direction to staff about how to apply that. The science, working with the policy and program people—and this will get into regulations—is to figure out exactly what we mean by “ongoing productivity”. There is a body of scientific literature that says what ongoing productivity is, how we can apply it in the Canadian context, how we can apply it nationally or regionally, etc. With serious harm and permanent alteration of habitat, what exactly is “permanent alteration”?

    There's an FAO, which stands for Food and Agriculture Organization, of the UN, which defines “permanent alteration”. That is 5 to 20 years. The science folks are saying we should actually be looking at it in terms of the generation of a fish, and the challenges. With respect to sturgeon, it's a very long period of time. With respect to some other fish, it's a very short period of time. So it's working through some of those very specific issues about how to apply it.

    The legislation is clear. We're working through the specific application of some of the scientific terms with science people, and that's what we need to provide the clarity to stakeholders and proponents going forward.

    Thank you very much.

    Basically, with any change you use a lot of science and a lot of research before you make those changes.

    I'd like you to comment on the Institute of Ocean Sciences, in Victoria, B.C., which has been cut back. The Kluane research centre, in the Yukon, has been closed. The ELA, the Experimental Lakes Area, is going to be closed. We hope not, but it's what is proposed by the government.

    Have you used these facilities? Have you gained much information from these facilities, or was there just too much information? Was there too much research and too much science, or was it necessary to close these because they were not needed?

    I'd like you to expand on that, if you could.

     Please keep your questioning to the subject matter.

    I was just referring, Mr. Chair, if I might—

    I appreciate what you're referring to, Mr. MacAulay; however, we did ask the officials to come back to answer specific questions on Bill C-45, and most specifically, clauses 173 to 178. Please keep your line of questioning to that subject matter.

    Thank you, Mr. MacAulay.

    Dealing with clauses 173 to 178, did these institutions provide any information over the years that might have had some effect on what the result might be, or were they just not used?

     Is that okay, Mr. Chair?

    Voices: Oh, oh!

    We have 15 major science facilities in the country, ranging from the east coast to the west coast. We use them all. In terms of where this program operates, fisheries protection in particular, it is in coastal areas and in freshwater areas. We have important freshwater institutions in Winnipeg, in Burlington. In other areas we have important coastal facilities that have contributed to this in St. Andrews, at BIO in Burnside, Dartmouth, and in other areas. We use all of the science that we have, that we can get. We also use partnerships with universities, with other institutions.

    So we have a broad network of science. You can always have more science; it's always good to have more.

    We are confident that we're going to be able to do what we have to do with the science that we have.

    Thank you very much.

    Again, with the indulgence of the chair, I didn't hear you mention, Mr. Stringer, if you have received or used information from some of the institutions, such as the ELA, the Experimental Lakes Area, and other areas.

    As I said, we would use information from all of them, including those.

    They are of great value when you come to making decisions on fisheries.

    Thank you, Mr. Chair.

    Thank you, Mr. MacAulay.

    Mr. Chisholm, we'll move into the five-minute round at this time.

    Thank you.

    Mr. Stringer, I want to follow up a bit on the fact that you're now gathering the scientific data that's intended to guide the regulations. At the same time, the regulations are going to be.... You can appreciate, I'm sure...you have many years in this, and I know you take it very seriously.

     I mean no disrespect when I say that it's not just the ASF and the AFN that have said they don't have anything to go by. As we heard during the limited discussions we had around Bill C-38, there's been discussion about making changes to the Fisheries Act for many years. These changes are big. People are asking what's going to happen now. I guess what you're telling me is that you still don't have, and therefore we still don't have, the kind of scientific data that gives us a better sense of where we're going and what the impact is going to be of these changes.

    We've had, with all the institutions of science that we have across the country, a good understanding of habitat and fisheries protection science. That data exists. With respect to applying the specific initiatives that we have in this legislation, and applying those at a program level, what we need to do.... There's usually a three-step piece. You have the science program and policy. You have all three of those things in place. Then you get a new legislative frame. That science contributed to the legislative change we're talking about. Once you have that legislative frame, you then need to develop a new program. And this is all done largely at the same time, but we need to make sure that the science is the foundation for the program. How are we specifically going to apply it? Science as a foundation, policy and regulatory framework as the next piece as much as possible, and then program implementation and guidance to staff.

     I appreciate that.

    I'm sorry, Mr. Stringer. I don't mean to be rude, but I have limited time, and the chair, while he's a good-humoured and reasonable chair, will only go so far.

    We have the science. You would say that we have the science on the whole issue of habitat protection, and now we're trying to figure out the regulations. Part of that is to continue to be able to monitor these changes. We need to continue to have the science.

    We've gutted fisheries science. That was presented in the evidence we had from AFN and ASF. In particular, as it relates to the habitat staff, the offices have been decimated across the country. There are three main protection offices now in the country with respect to the Atlantic region. They are in Moncton, Dartmouth, and St. John's, Newfoundland. Prince Edward Island is not even on the list, Lawrence.

    There you go.

    I understand your rationale. As you say, we have the science, and now we have to move forward with the regulation and lay that out. But is it not, in fact, the case that we have to have the science to follow through to fulfill the mandate to protect the fish and the fish habitat? It's as if you and your staff at DFO have your hands tied behind your backs. How are you going to be able to implement your mandate, the changes you're proposing, given the huge cuts? Stakeholders and Canadians are asking those questions.

    I can speak to the science issue. I'll ask my colleague, Mr. Balfour, to speak to the habitat staff issue.

    There have been significant investments in science. You're right about the reductions our department has taken, like all other departments. In terms of our science, cuts are always a challenge. We believe that we can meet the requirements we need to with this legislation with the resources we have.

    I'd also point to the fact that we have broadened our area of responsibility with Bill C-38 to aquatic invasive species. We've made a specific investment in aquatic invasive species over the last decade, and in the last budget in particular, for Asian carp in the Great Lakes. There have been other investments in science in recent years as well, under the EAP program, for a number of the labs and in a number of other different types of programs, such as oceanography, arctic science, climate change, etc. So there have been substantive investments.

    The reductions you're talking about are a challenge for all of us to manage. Our job is to make sure that we're linking the legislation with the resources we have. We believe we can do it in science.

    I will ask David to speak to the habitat program.

     We have first about 15 years of data in our information systems that give us a very good appreciation of the kinds of projects, locations, and circumstances that would cause what we call a HADD, or a harmful alteration or destruction of fish habitat. We have a good sense, and that's all based on science, around what kinds of projects would have caused a HADD. We are now in the process of transition, as Kevin has pointed out, to a world where we need to be looking at impacts and serious harm to ongoing productivity for commercial, recreational, or aboriginal fisheries.

    One of the key steps for us in that transition is to have the science foundation to develop the definitions that would then guide the application of this legislation by the department staff in considering proposals that come from proponents. That's the focus we have currently, to provide that rigorous, science-based guidance to staff, which will also involve, as Mr. Stringer has pointed out, a comprehensive engagement and discussion with all interests, stakeholders and proponents, in terms of arriving at that. That will then inform the regulations that Kevin has also referred to, which is a key area of focus for us in moving towards initial implementation of the new provisions and being able to be clear with a project proponent on what we would expect to see from them in the documentation that would be provided to the department for our assessment—to see if there is serious harm to the ongoing productivity of a commercial, recreational, or aboriginal fishery, to be positioned to provide a response and a determination within the prescribed timelines that the other regulation is going to establish, so that we have a commitment to when we would have to get back to proponents and so on.

    That's the stage we're at. It's going to be a science-based process with a lot of engagement, a lot of discussion about how we will formulate that framework and the specific direction we would be providing to staff, as well as the guidance we provide to project proponents and so on.

    Thank you very much.

    Mr. Sopuck.

    Thank you.

    Just before I ask my questions, I'd like to counteract what Mr. Chisholm said. I'm glad, Mr. Stringer, that you brought up the extra funding for scientific programs to deal with the looming Asian carp threat. I should also point out that the government has made major research investments in Lake Winnipeg. I would point out that the Lake Winnipeg watershed extends all the way to Alberta. One can see some major scientific work going on in that huge part of Canada, and it will have direct and specific results for one of Canada's major lakes.

    My first question deals with clause 177, the transitional provisions. I also sit on the environment committee, and we were reviewing the Canadian Environmental Assessment Act amendments. They had a similar transitional clause. I asked one of the senior staff people whether what CEAA had in it in terms of the transitional arrangements was identical to the new Fisheries Act clause 177.

    Have you had discussions with your counterparts in Environment? This is important, because a project proponent would be governed by both acts. If they were different transitional paragraphs, clauses, how would they deal with that?

    Are they congruent?

    We have had discussions with CEAA. I believe they're not exactly the same, though I stand to be corrected on that.

    They are different pieces of legislation. We are trying to do as much as possible as a streamline—one project, one review. The transition is a one-time thing. We actually don't anticipate that we're going to get a lot of business. I'm not sure if CEAA does. I don't think they anticipate it either. But we have been in touch. We want to make sure that we both have transitional provisions, and we've designed it to meet our separate needs.

    To follow up on some of Mr. Allen's questions and comments on the killing of fish by means other than fishing, as you know, many fisheries enhancement programs require the killing of fish by means other than fishing. I'm talking about using rotenone to eradicate invasive species, perch in trout lakes, for example. It's a well-accepted management tool.

    Will the new clause under the Fisheries Act affect those kinds of programs, or will they still be allowed to occur?

     I'd say two things. One is that it doesn't change with respect to that, but the other thing is that there's now a specific piece that was passed in Bill C-38 that enables us to address aquatic invasive species writ large. It gives us the authority to make regulations to ban the sale, transport, and import, but also to enable the eradication. So there's now a specific enabling piece for regulation to look at that.

    In a previous life I was president of a local fisheries enhancement group that actively managed small lakes for trophy trout. One of the problems is that perch can somehow get into these lakes. They're not an invasive species; they're a native species to the area, but you know how fish can move between lakes sometimes during high-water years and so on. So the poisoning out, if I can use that phrase, of a trout lake that has been infested by a native fish, in this case the perch, would still be allowed, right?

    Nothing has changed in that regard. The only thing I would point to, which may enable what you're talking about a little more than what we have, is that the whole purpose is to manage fisheries. The focus is on the ongoing productivity of commercial, recreational, and aboriginal fisheries. We'll take appropriate actions; it's not just the prohibition. Section 35 is only one piece of this. We've got partnerships. We've got other items. I talked about the aquatic invasive species. There are all kinds of provisions. We now do have a clear purpose, which seems intuitive, but it's about protecting fisheries and the sustainable development and ongoing productivity of those fisheries.

    In terms of productivity, many fish enhancement programs seek to elevate the productivity of fisheries: liming of streams in the east coast, potentially even fertilizing lakes that are dystrophic, increasing the nutrients to improve fishing. In some cases, in prairie Canada, dams have been built—major alterations of fish habitat, but major increases in fish production.

    This doesn't freeze productivity at what can be considered the natural level. It allows for enhancement programs to improve productivity.

    Some of the science work, present and past, speaks to ongoing productivity. Ongoing productivity is not a specific number that you stick at. It goes up; it goes down. It's a matter of whether it's recoverable and supportable, etc. Certainly it is a broader term than a strict definition of ongoing at a certain level.

    Thank you, Mr. Sopuck.

    Mr. Donnelly.

    Thank you, Mr. Chair. Thank you to our guests.

    In terms of consultation with first nations, I'm wondering if it would be wise to amend clause 175 to note that the minister must consult with first nations in determining which fisheries fall within the definition of aboriginal.

    That would be a decision of Parliament. Our sense is that consultation requirements are consultation requirements.

    With respect to defining exactly where an aboriginal fishery is, we think there's sufficient definition in there. The relationship with specific first nations and aboriginal groups will be important. We have arrangements with, I believe, over 300 first nations and aboriginal groups across the country that speak to where they can fish, agreements between ourselves and the first nations about fishing. So we think we have sufficient guidance for that. That said, it will be a challenge, and we will have to engage.

    I think so.

    In terms of the legal implications of subjective terms like “serious harm”, I'm wondering if you can comment on what you feel the legal implications could be with terms like that, which are essentially so broad or vague they will give courts a difficult time in determining what exactly is serious harm.

    We hope there's sufficient guidance in the legislation that there won't be a difficult time in that regard. Serious harm is defined in section 2 of the Fisheries Act. It's the permanent alteration or destruction of habitat or the death of the fish, so it's pretty clear in terms of that. That said, there are scientific definitions for “permanent alteration”, as I said. So part of the science work, part of the policy work, part of the regulations will.... We have the authority now to do regulations to give further definition to those issues. That may be a challenge. We will be able to use those tools when we think we need to, to be able to provide further definition.

     Just to clarify, if a pollutant enters the water course where fish live, for fishery-defined fish, and it seriously maims them—in other words, if they get sick and go belly up but they don't die—that's still acceptable under the law?

    I think I did mention that this time it is complex, but the reality is, in terms of pollutants—

    So you're saying that the definition is if they die, then that's clear. But what if they don't die?

    We'll use a different example, because pollutants, as used in section 36, don't apply to this at all. The same rule under section 36, that you can't put deleterious substances into the water, period, unless the minister authorizes it, is still in effect. So pollutants are separate from this entire regime. The sense was and is that you can't localize pollutants. They seep, they flow, they get into the stream, etc. The pollutants piece does not focus on fisheries. It focuses on any fish-bearing waters, which is basically all waters.

    You feel there is enough clarity for courts under the definition of serious harm?

    We do. Some of the science and policy work is going to have to flesh that out. As I said, there is serious harm, permanent alteration, and destruction of habitat. We have a good understanding of what destruction of habitat is. The courts have helped to define it over the years. In the case of permanent alteration, there is an FAO definition, and the science folks are working on a specific application of it. Death of the fish is quite clear.

    So there are some policy and regulatory issues that we still need to define in that regard, but we do think there is sufficient direction in the legislation to be able to get going on this.

    The Cohen commission, in terms of consultation, heard from dozens and dozens of witnesses, and obviously there was some very interesting testimony. Was any of that testimony considered in terms of these sections or essentially the changes to the Fisheries Act?

    I would say that in terms of the input we received—and we provided some of it to the clerk I think yesterday. We provided some documents, which is only some of what we heard. We've gotten all kinds of letters. We've heard over the years from the same people the Cohen commission heard from, and we have heard very similar views. Certainly those views have come to this department and have been considered and incorporated moving forward. You'll know from reviewing it that there are very different views from different stakeholders, and those are what we've had to contend with.

    So the issues that were raised at Cohen are very much the issues that we've heard about as well.

    Excuse me, Mr. Donnelly. Your time is up.

    Ms. Davidson.

    Thanks very much, Mr. Chair.

    Thanks very much, Mr. Stringer and your colleagues, for being with us again this morning. It's good to be able to ask these questions and get the clarification.

    One of the things I wanted to ask you about was that I was a little bit surprised when our colleague across suggested that there was no DFO presence in P.E.I. I thought there were still four conservation and protection offices in P.E.I., actually one of them in our good friend's riding. Is that not correct?

    A voice: He forgets that.

    I missed that.

    There will continue to be a conservation and protection presence in Prince Edward Island.

    Okay, good. I just wanted to make sure the record was correct on that and that Lawrence wasn't feeling left out.

    Now I'll get on to my questions. I wanted to ask you a little bit more about the Environmental Damages Fund. The AFN had suggested that perhaps first nations should be involved in the administration of that fund. I know you've told us that it's administered through Environment Canada. Do you know if the first nations have a representation on that at this time?

    I believe they don't. I believe it's administered by officials. It's established by statute, so it's subject to the statute. There's a special government purpose account that's established and dealt with by officials. First nations can and do, as I understand it, apply for the funding when they put out a request for proposals.

     Okay.

    Talking about the funding, do you know what criteria are used by the EDF to determine which projects would receive funding? I know that the AFN was quite concerned, and highlighted that they felt that if a particular type of aboriginal fishery, or a specific species, was negatively affected, the fines should be directed to the restoration of that specific type of fishery.

    Do you know what criteria are used now?

    We can get you the specific criteria.

    It does speak to linking the funds to the offence, basically, and the penalty. It's a bit broader than what the AFN raised in their testimony. I would point out, though, that in clause 174, with respect to the funds received by the Receiver General with respect to penalties under the Fisheries Act, the fisheries protection provisions, the legislation proposes specifically that it be used for “purposes related to the conservation and protection of fish or fish habitat or the restoration of fish habitat”.

    The idea is that the funds would get applied to that, and then, linking that to what Environment Canada already has, which is a preference for the local watershed, those two things should give some comfort that the funding will go where one would hope it would go.

    The other thing is that it's sometimes the case that the judge or the justice can direct certain things with respect to the penalty provisions that would have to be complied with as well.

    When we were talking about the EDF, we also heard from Mr. Bill Taylor from the ASF, with respect to the Environmental Damages Fund, that:

    As well:

    Can you talk to us a little bit about that? I don't recall anybody ever stating that it was going to be a certain amount of money or anything, but just that these fines would be used in that manner. But the penalties, I thought, had been increased under this legislation, and minimums put in place.

    Can you talk a bit about that?

    It is really hard to estimate how much we're going to be able to move to the EDF because of this legislation. I talked last time in broad figures about the revenues that have come to the Government of Canada based on Fisheries Act penalties, but many of them are not associated with the EDF. Many of them are licence infractions. It's hard to tell exactly how much.

    Our objective is to have sufficient guidance to staff, including our conservation and protection people, that they have the confidence to charge when charges should be laid. That's our objective, and that's what we're seeking to do. So we should be able to charge.

    You're absolutely right in terms of the minimum penalties, that they have increased, as have the maximum. The minimum penalty now is $5,000 for an individual, $25,000 for a large corporation. The maximum is $1 million for an individual, $6 million for a large corporation. Under the previous regime, there was no minimum, and there was a maximum overall of $300,000.

    So the potential is greater. As to how much, it very much depends on who's breaking the rules out there and how much success we have in the courts in terms of successfully prosecuting that. What I can say is that the Environmental Damages Fund has had about $4.5 million go through it since its inception in 1995. It's not an enormous amount, but it is substantial.

    So it's about making sure that funds go to the right place, whatever those funds are.

    Mrs. Patricia Davidson: Thank you.

    Thank you very much.

    Mr. MacAulay.

     Thank you very much, Mr. Chair.

    Now, I certainly do not want to stray from clauses 173 to 178, but just as a clarification of what was stated here, my understanding is that there were two habitat offices on Prince Edward Island and they're going to be closed. Now, if you're telling us here that they're not going to be closed, we're more than pleased.

    A voice: I think they meant the Service Canada office.

    Hon. Lawrence MacAulay: I'd just like to understand: are the habitat offices going to remain open in Charlottetown and Tracadie or...?

    Well, we were responding to a question about conservation and protection of fishery officer presence in P.E.I. The fisheries protection staff are going to be consolidated into the Moncton office.

    In Moncton. Okay. Thank you.

    We certainly do not appreciate that, but if that's the case, can you tell me what the reduction of fisheries officers and DFO personnel will be in the province with these changes that are taking place for the benefit of Prince Edward Island, so-called...?

    A voice: [Inaudible—Editor]

    Hon. Lawrence MacAulay: Not wanting to stray, Mr. Chair, from your direction....

    The objective is to consolidate staff into the Moncton office. We're still working through what would be the net reduction in overall complement as a result of this.

    Thank you very much, Mr. Balfour.

    I appreciated Ms. Davidson's intervention, but just wanted to clear the air a bit, and I thank the chair for his understanding.

    Also, I think it was Mr. Stringer who indicated that you had enough scientific information and research to put the requirements in place. Mr. Balfour indicated, if I understood correctly, that you had basically 15 years of research in order to put this in place.

    Now, again, staying within the boundaries of what we're committed to do here, do you feel that you had more than was required? Or, again getting back to the massive reduction in scientific research that's taking place with your department, do you feel that will tie your hands when it comes to doing things like changing any fisheries regulations? Can you respond to that? Or is there just too much information?

    I can respond to it.

    Mr. Balfour was referring to the 15 years or so of experience with the current program. It's science, policy, and program work. We get about 8,000 referrals a year, so we get 8,000 projects that come into the department every year that say, “We want to do this, so can we do it?” We used to get 12,500. Then we moved to an operational statement process that said if you're doing a dock or if you're doing a small walkway, if you're doing it, we don't need to see it.

    But we have 15 years or so of experience in getting 12,500 to 8,000 referrals. We issue about 400 to 450 authorizations a year. We now know where those authorizations are required. We have a good sense of what's actually causing an impact to habitat. We also have work on fisheries. For the foundational science program and policy work we have, that has provided the foundation for where we need to go.

     I think you'll find that public servants...certainly, I will say that we can always use more science, but you'll also hear us say that we will make sure we have the resources we need to be able to make this work. We've had our science people working arm in arm with our policy and program people to develop this and in developing the legislation, but also in getting ready for its implementation.

    The other thing is—and I mentioned it before—that partnerships are going to be a crucial element in this legislation. The legislation specifically enables the minister to make agreements, and that's with conservation groups, but also with science institutions, with universities, and with others, and to connect into that important science work that's done elsewhere. More and more, we're doing this by collaboration. So it is a challenge—

    I appreciate that.

    —to have sufficient science, and you can always use more, but we believe that we have what we need.

    I think you were referring to certain projects under a certain amount of dollars that are approved without coming to you. Is that what you were referring to?

    That's the difference between the 8,000 projects...right now, we still review 8,000.

    I appreciate that. I think that streamlined it more, and it's very efficient.

    Anyhow, thank you very much.

    Thank you, Mr. MacAulay.

    Mr. Chisholm.

     Thank you, Mr. Chairman.

    I want to go back a little bit to the whole question of the Environmental Damages Fund and the definition of serious harm. Again, I appreciate your assurance that we're going to get there in terms of clarity. This was certainly raised by our witnesses a couple of weeks ago, and by others. How many fish have to be destroyed to constitute serious harm or death to fish? What about the whole question of cumulative effects? How are those taken into account? Again, what are the clear legal and scientific underpinnings?

    There's the definition of serious harm to get a conviction in court. But then there are all those people, all those bodies. Some of them are being consolidated in some offices, but not in P.E.I. There's been a huge reduction, and that's going to influence the ability to get convictions and the ability to enforce this act. That leads to my concern. I refer you to evidence we heard here a couple of weeks ago. In 2000, in the Pacific region, there were 1,800 habitat-related investigations, which led to 49 convictions. By 2010, the number of investigations was down to only 300, and the convictions under habitat provisions were down to one.

    The science is essential. It's important. Clarity is essential in the rules and regulations. We have to have the bodies, the people on the ground, to enforce what it is we come up with in terms of regulations and in terms of backing up the science. Would you not agree?

    I would make a couple of comments. First, it is absolutely the case that what we have in Bill C-38, which has already passed, and in Bill C-45 is more complex than it was. It is more complex, because previously, section 32 said you can't kill fish by means other than fishing, period, unless the minister authorizes it. Section 35 said that you can't harmfully alter, destroy, or disrupt habitat, period, unless the minister authorizes it.

    Is it easy? It's not easy, but it's straightforward in terms of being able to address.... The new regime is more complex, but it is what we've been trying to do with policy since 1986. If you look at—

    Mr. Stringer, I understand that. I've followed that history of the policy development and the consultations, the input of folks, and the need to clarify some of those issues. That's why, with the added complexity providing flexibility, it's so important to have people on the ground who can make sure that it's going to work. I can't see how it would do it. Either it will create unwieldy confusion or proponents are going to be able to run roughshod over the protections provided in the legislation.

    I'd say a couple of things in addition to what I've said. David has already spoken to the issue of the number of people on the ground. What I would also add, though, is that in terms of the legislative framework we now have, we now have regulatory tools to provide that clarity. We knew when we were coming up with these concepts that we'd certainly deal with the science folks, but also with others. This is what we're seeking to protect, and it is more complex. We've given ourselves the authority, given the minister the authority, to establish regulatory standards.

    With respect to fish passage, here's what we will require. With respect to—

    I'm sorry to interrupt you. I'm running out of time.

    We had the conversation a few minutes ago about how difficult it is to clarify the regulations. You're trying to get the scientific data to discuss the implications in order to guide the regulations and the development of those regulations. That hasn't yet been done. There's been inadequate, if any, consultation. There has certainly not been enough consultation with the people directly affected.

    I appreciate what you're saying about the will and the aspirations. But it's about getting there. I'm really concerned that in the final analysis we might end up with what you are trying to achieve but that the process we've followed will create an undue amount of confusion, and your ability, as a department, to enforce it and maintain it and protect fish and the fishery is going to be drastically affected in a negative way. That's obviously my concern.

     It's why we've provided the regulatory tools that we have. There is a transition period, which is a challenge, no question. That's partly what the calculation is. Do you implement it with guidance and direction, or do you put at least the first couple of regulations in place to ensure that you've got the regulatory clarity? Our view is that there is sufficient regulatory clarity in the legislation to be able to enforce it with guidance, with direction to our staff. We are hearing from stakeholders who are concerned about that. We need to address that.

    Mr. Chisholm—

    On that point, just one real quick—

    No. We've gone over by a considerable amount.

    Thank you very much.

    Mr. Woodworth.

    Thank you, and welcome to the witnesses.

    By the way, I sympathize with Mr. Chisholm. I find these time limits are very difficult.

    First of all, I have learned a lot from your presentation today. I appreciate it.

     I want to start with something and make sure I understand it correctly.

    Mr. Stuart Wuttke, the general counsel of the Assembly of First Nations, on November 8 made a statement, which the Library of Parliament has reported for us as follows, with regard to clause 173:

    I was quite concerned about that because I thought he was saying that the amendment in clause 173 might result in the infringement of first nations rights. Now what I've heard you say this morning is that in fact the prohibition against blocking more than two-thirds of a river has been in place since the 1920s. Is that correct? When I heard you say that, I looked it up. Section 26 of the act before the 2012 amendments contains exactly that prohibition.

    I have to conclude that either Mr. Wuttke didn't know about that or else maybe he didn't realize that we were here to just talk about what the amendment in clause 173 was doing. But I found his comment to be very misleading in light of what you've opened my eyes to this morning. I want to thank you for that.

    I want to pursue it a little further. As a non-fisheries person, I've been trying to understand the complexities of this. I think I'm getting it now. First of all, the amendment in clause 173 seems to combine the previous prohibition in section 26, against blocking one-third, with section 29, against unduly obstructing the passage of fish. Now we have combined in section 29 both of those ideas. Is that fair enough to say for a start? I know it does other things too.

    Yes. Let me just provide a very brief explanation of why we've got changes in 176.

    Clauses 173 and 176.

    When Bill C-38 was under way, we heard from some stakeholders. I think I mentioned this last time. The Hydropower Association and the Electricity Association were concerned because the new section 20, which is the old 26, said that you can't obstruct more than two-thirds of the water course or the river. You can't do that. They said they were concerned that there wasn't a clear authorization scheme. We said that the authorization scheme is in section 35, this prohibition thing, serious harm, etc. They said it's not clear. We said, why don't we remove that section. Our fish manager said, but we use that when somebody puts a net across the river. So we kept the fish management pieces and made it into its own section, section 29.

    It's now clear that the authorization scheme for putting logs in the river or a barrier or a dam is section 35 and not the old 20. We just removed those sections but kept it for fish management.

     Exactly.

    That's the other point I discerned. We are now limiting those prohibitions to fish management, but we are still keeping, for non-fish management purposes, section 35, prohibition against harmful disruption of habitat; section 36, prohibition against putting deleterious substances into rivers; and section 32, prohibition against killing fish. Those things will all apply generally, but the prohibition against fishing appliances that disrupt fish passage or more than two-thirds or three-quarters of a river will apply to fishing management and appliances.

    Is that correct?

    That is correct.

    In addition to that, these amendments also make explicit that the fishing appliances include seines rather than just logs. You've been a little more specific about that.

    Have I correctly apprised myself of what the amendment in clause 173 is about?

    You have correctly divined what the purpose behind it was. It is a challenge to figure out and you've certainly done it. The objective is to clarify that the prohibition for dams and other types of obstruction is section 35. It was confusing because it was in section 20.

    That's what I thought, but I wanted to be sure. I must confess, I was misled by Mr. Wuttke's evidence originally.

    Thank you very much, Mr. Woodworth.

    I want to take this opportunity to thank our witnesses for appearing before our committee a second time and for clarifying some of the points that were raised in further testimony. I certainly appreciate your taking time out of your busy schedules to be here this morning.

    This committee will now take a brief recess to move in camera to go further on this report.

    [Proceedings continue in camera]