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Standing Committee on Fisheries and Oceans


NUMBER 035 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Monday, November 21, 2016

[Recorded by Electronic Apparatus]

  (1530)  

[English]

    Hello, everyone. Thank you to our witnesses for coming.
    Colleagues, we are here once again to review the changes to the Fisheries Act. I won't go into the full motion, but pursuant to Standing Order 108(2) and the motion adopted by the committee on Monday, September 19, the committee is to review changes made to the Fisheries Act.
    Normally each group is assigned 10 minutes for opening remarks. Then we ask questions, and we will likely have several rounds. I'd like to remind members of the committee that we're going to have 15 minutes at the end, at 5:15, to do committee business.
    I would like to welcome John Oliver from the riding of Oakville. He is replacing Mr. McDonald today. Welcome, sir.
    We will go to our first group, the Canadian Federation of Agriculture. We have two representatives, Mr. Ron Bonnett and Mr. Drew Black.
    Mr. Bonnett, please proceed.
    Thanks a lot, and thanks for the invitation to make a presentation. Some of you might wonder what farmers have to do with fish, but hopefully by the end of the presentation, you'll get a bit of grasp on it.
    The Canadian Federation of Agriculture, for those of you who don't know, represents farmers right across the country. We're Canada's largest farm organization and represent about 200,000 farmers through general farm organizations and commodity organizations across the different provinces. Some of these farmers are all too familiar with the Fisheries Act in its previous form.
    The experience that many farmers had with the Fisheries Act, unfortunately, was not a positive one. It was characterized by lengthy bureaucratic applications for permitting and authorizations, and a focus on enforcement and compliance measures taken by officials coupled with a lack of guidance or outreach on the purpose of these measures or information on how to navigate through the process.
    Many farmers were then relieved when the changes that were made just a few years ago drastically improved the timeliness and cost of conducting regular maintenance and improvement activities to their farms as well as lifting the threat of being deemed out of compliance. That being said, I think we could find ourselves with an important opportunity to look at how protection can be enhanced in a way that works on the ground for those who earn their livelihood from productive natural resources.
    Before I get into some of the proposed solutions to enhanced protection, it would be useful to explain a little further some of the challenges that farmers faced before changes were made to the act.
    Most farmers interacted with the Fisheries Act and the Department of Fisheries and Oceans during the creation and maintenance phases of man-made physical works such as drainage ditches and irrigation canals. Periodically, these require maintenance to compensate for the sedimentation and vegetation growth that occurs. These features allow for the continued productivity of agricultural lands across Canada, and were never meant to be fish habitat.
    Nonetheless, they fell under the Fisheries Act, and farmers found themselves forced to comply with all the rules that also applied to natural streams and rivers that provide quality fish habitat. There are also many accounts of inconsistency in enforcement, monitoring, and compliance across Canada with different empowered organizations, which led to a confusion and indiscriminate approaches to enforcement and implementation. Even at the individual level, there were different interpretations of the act based on one's familiarity with agriculture.
    Throughout the life cycle of a physical work like a drainage ditch, regular maintenance requirements often triggered a long process to secure permits and authorizations. That added to the costs for farmers and uncertain timelines led to difficulties in scheduling the work.
    With the arrival of phragmites, an invasive species that thrives in drainage ditches and is a significant problem in many parts of Canada, many farmers are forced to conduct maintenance activities more often. It was when these activities for maintaining drainage ditches triggered the harmful alteration, disruption, or destruction of fish habitat provisions, also known as HADD, that significant barriers and costs to farmers appeared.
    Many farmers found HADD authorizations to be long and administratively burdensome, with the threat of enforcement overwhelming. Farmers, as well as municipalities, who rely on functioning drainage, were often frustrated by the process, particularly if the ditch did not contain any fish. At the heart of the issue was that human-made waterways were treated the same way as natural streams and rivers. These weren't made with any purpose of providing fish habitat, and in numerous cases had no fish presence.
    It is CFA's position that a complete revert to reinstate all provisions of the Fisheries Act as they were would be unproductive, would re-establish the same problems for farmers, and would provide little improvement in outcome for the protection and improvement of fish habitat. Human-made water bodies such as drainage ditches simply should not be treated as fish habitat.
    We feel that there are more constructive and efficient approaches that will serve to provide for fish habitat protection, yet also work on the ground so that barriers, costs, and frustrations do not mount in agriculture and rural communities. The current streamlined approach is working far better for all and efforts should continue this approach.
    The CFA supports proactive and collaborative approaches to promoting fish habitat conservation and creation, rather than the strict and inconsistent enforcement of regulations. Overall, any changes to the current Fisheries Act should be considered as to how they will support outcomes-based conservation rather than a process-oriented approach.

  (1535)  

    Farmers are stewards of the land, and they aspire to leave the healthiest environments for their farms to the next generation. Many find intrinsic value in supporting biodiversity and water quality on the land, and the actions that have been taken by many exemplify this fact. At the same time, farmers recognize that they are contributing to the public good and services with little to no compensation provided.
    There are ecological goods and service programs that have proven highly successful in meeting local environmental priorities, whether they be biodiversity, wetlands retention, species at risk, water quality, or others.
    I'd like to take this opportunity to share just a few examples from my own farm of growing stewardship actions that have improved fish habitat outcomes. Through Growing Forward 2 and species at risk funding, we were able to access incentive programs that contributed to the improvement of fish habitat. More specifically, through the provincially delivered environmental farm plan and the Species at Risk Act, we put fencing in to keep our livestock sufficiently away from water courses, which has increased water quality and fish population.
    In order to provide fresh water for our cattle, we installed a solar powered off-stream watering system. This has led to the rehabilitation of the stream that runs through our pasture areas. These are just two examples from a single farm in northern Ontario that illustrate how stewardship approaches have improved fish habitat in agricultural landscapes through means other than a regulatory-based approach under the Fisheries Act.
    Ecological goods and service programs offer an excellent vehicle that should be explored further to improve the quality of fish habitat on or near agricultural lands. These can be implemented at the community scale, at the watershed level, or at the province-wide level, as P.E.I. has done. Manitoba has committed to the implementation of the alternative land use services program. In P.E.I.'s case, this program has set out to address water quality issues, and it incentivizes agricultural producers to maintain healthy and biodiverse riparian areas and setbacks from streams.
    Farmers have access to best management practices that provide clear guidance to change management practices that have a positive environmental impact, often in response to regional priorities.
    One of the potential areas that deserves additional thought is how to better address fish habitat requirements at the landscape and watershed level. In considering the scale of agricultural production and the types of projects that would be implemented on the farm, it is not reasonable to require permits, authorizations, habitat offsets, or other fee-based arrangements for every potential HADD disruption caused by drainage ditch maintenance.
    Many small projects can add up to a cumulative impact on the landscape scale, and there should be in place the right incentives and tracking to ensure fish habitat is supported through ecological goods and services, and other programs that work with agricultural producers.
    In implementing the Fisheries Act, the department should more clearly look to assess the risk damage to fish habitat by particular types of projects. Currently DFO looks at low-impact and high-impact projects, but the risk of a project disrupting or damaging fish habitat should be a part of that equation.
    All of this, coupled with greater distinction between natural and human-created water bodies and the recognition and support of stewardship approaches, would lead to a workable fish habitat protection strategy for farmers. Providing guidance through best management practices and working through incentive-based programs and stewardship for farmers can accomplish significant protection of fish and fish habitat in human-created water infrastructure in a collaborative manner that regulation and the threat of enforcement simply cannot.
    Thank you again for the opportunity to present.

  (1540)  

    Thank you, Mr. Bonnett.
    We'll now go to the Ecology Action Centre. Susanna Fuller is joining us. You have 10 minutes, please, for your opening presentation.
    My name is Susanna Fuller. I am the senior marine conservation coordinator at the Ecology Action Centre based in Halifax. Thank you for inviting me here again to speak to you on what I believe may be one of the most important endeavours you do together as parliamentarians and for Canadians.
    I say that because the Fisheries Act is an incredibly important piece of legislation to Canadians. We cherish our fish and our aquatic habitats across this country. They are an important part of who we are. You have an opportunity to not only restore lost protections, but also to modernize the Fisheries Act in time for its 150th anniversary in 2018.
    I am hoping that Canadians will be able to celebrate a modern and strong Fisheries Act that sets the stage for the next several decades of managing our fisheries and protecting their habitat, that we have a plan and adequate resources, including modern and efficient systems in place to effectively implement this new act, and that our modern Fisheries Act becomes an important part of the work we have to do to reconcile with first nations and Inuit peoples.
    My experience with the Fisheries Act includes being involved in the consultations in 2007 and 2008 during previous attempts to modernize the act. Suffice it to say, I know this is not a light undertaking. However, I have to say that this time, from my conversations with other conservation organizations, scientists, industry associations, fishing associations, and first nations, there is considerably more alignment on a broad suite of recommendations for restoring and modernizing the act than the last time this was attempted. Over the past several months there has been active collaboration and discussion on recommendations to this process, much of it culminating in submissions by West Coast Environmental Law.
    I sat for five years on the national fish habitat coordinating committee, where DFO and environmental organizations from across the country worked together to address concerns regarding the lack of implementation of the former section 35. I will provide a report of that work as part of my written submission, as there are several very useful and practical recommendations to improve the protection of fish habitat.
    Finally, I am the proud owner of several DFO-issued pencils—possibly collectors' items—embossed with the tagline “No Habitat—No Fish”.
    I have followed closely the presentations of this committee thus far in your process, and I am in agreement with much of what you have heard to date. I will take this opportunity to emphasize what I believe are the most critical aspects of a restored and modernized Fisheries Act. I will focus first on lost protections, and second on modern safeguards.
    I do want to say that there are some aspects of the changes that were made in 2012 that improved the act, and some aspects of the regulations in 2013 that were also improvements. However, the deep cuts to staffing and evisceration of habitat programs across this country meant that any positive outcomes were hobbled at the start because of a lack of resourcing. Even prior to the 2012 changes, DFO was not adequately protecting habitat or reporting on habitat authorizations, as shown by the evidence presented by Dr. Martin Olszynski.
    I have nine recommendations.
    The first is that the language around “harmful alteration, disruption or destruction” be reinstated. My primary reason for this is that the Fisheries Act has been one of the strongest environmental laws in Canada because of case law. Canadians don't go to court easily, and when we do, we like the results to be long-standing. With the changes to HADD language, we lose those legal precedents. The additions of "activities" was an improvement made in 2012, and should be kept.
    In terms of my second recommendation, I fully understand the concerns regarding the number of referrals in the early 2000s—up to 12,500—and the reasons for the 2004-05 environmental process modernization plan. However, I firmly believe there are new ways of working, including making it easy for proponents to request letters of advice and having all approvals added to a publicly accessible database. This will facilitate co-operation around habitat protection, improve monitoring, and manage cumulative impacts for government to be able to make a decision around an authorization when fish habitat is already facing too many threats at the watershed, landscape, or seascape scale.
    My recommendation here is to not see a restored Fisheries Act as an impossibility to implement. We have many new tools and new ways of working since the 1986 habitat policy was put in place, and part of implementing a new act would be to use these tools, including the public registry of authorizations, with spatial and temporal mapping of these authorizations.
    My third recommendation is to ensure that the impacts of fishing on fish habitat are regulated under the Fisheries Act. Habitat impacts are already being managed through the sensitive benthic areas policy to protect corals and sponges, as an example. Fisheries Act habitat protection should enable this from a legislative perspective.
    My fourth recommendation regards the changes made through the aquaculture activities regulations regarding pesticide use in the open-net pen aquaculture industry. These should be considered as part of lost protections. Particularly with the removal of enforcement by Environment and Climate Change Canada, there has been an increase in pesticide use that directly impacts other marine species, including the commercially important lobster.
    On modern safeguards, the Fisheries Act has the potential to be a significant legislative tool to help Canada meet its commitments under the United Nations fish stocks agreement, the Convention on Biological Diversity, and the sustainable development goals, particularly goal 14, on the oceans.

  (1545)  

    Fifth, in terms of modernizing the act, we have an obligation to add the basic principles of good management, many of which Canada has championed in international agreements and management of fisheries in areas beyond national jurisdiction, and within some of our own policies. These include the precautionary principle, the ecosystem approach, transparency, co-management, and commitment to science-based decision-making. Including these in the Fisheries Act is important both for continuity with international agreements as well as to enable these principles in our own management of fisheries and their habitats. These principles will help to enable many policies within the sustainable fisheries framework, and therefore provide a legal enabling basis tor these policies.
    Sixth, reduce the level of ministerial discretion. Put simply, it's impossible to follow scientific advice or plans coming out of co-management—and I can tell you, there are many instances where our fisheries have further declined because science is not adhered to—when there is such a high level of discretion. It's far too easy to advocate various positions to the minister and have a decision swing one way or the other. We need an act that can withstand the political cycle and lobbying by all stakeholders, conservation groups included.
    Seventh, Canada's fisheries are incredibly important culturally, socially, and economically to coastal communities, including first nations, Inuit, and recreational fishers, to name a few. Our country was founded in part because of our abundance of fisheries resources.
    I live in Nova Scotia and fisheries were our largest export this past year. Without our wild fisheries, our province and other coastal provinces would be much less self-sufficient and resilient than we are today. A modern Fisheries Act must include provisions that require rebuilding depleted fish stocks, and timelines and targets for this rebuilding. An annual report to Parliament on the progress towards these efforts should be mandated.
    My colleague, Julia Baum of the University of Victoria, and I, recently authored a report reviewing the health of fish stocks in Canada and a paper reviewing measures in place to protect at-risk marine fish under the Fisheries Act. Suffice it to say that there are far too many marine fish populations that are severely depleted and designated as either threatened or endangered by COSEWIC, the Committee on the Status of Endangered Wildlife in Canada.
    For socio-economic reasons, we typically do not list commercial species under the Species at Risk Act, and when they are not listed, they are to be managed under the Fisheries Act. Yet the Fisheries Act does not require stock rebuilding, so more often than not, very little happens to recover these species and they continue to decline.
    Both of your other studies on northern cod and wild Atlantic salmon deal with species that are currently considered endangered yet are incredibly important to Canadians. The recent Auditor General report on sustaining Canada's fisheries found that out of 15 endangered marine fish populations, only two had rebuilding plans. Our Fisheries Act should be a tool to recover these species, and currently our legislation lags well behind that of the United States though the Magnuson-Stevens act, and the European Union through the common fisheries policy, two examples of developed fishing nations with whom we share fish populations.
    My eighth recommendation concerns the fact that fisheries are a public resource, one of the very few in Canada. As such, they should be managed for the public good, with economic benefits for as many Canadians as possible, and in particular for our coastal communities and independent fishermen. This ensures that the wealth created naturally in our oceans remains in our communities.
    My ninth recommendation is to ensure that the new act has a strong and well-articulated purpose. A law of this importance should not be purposeless, as it has been since 1986. This purpose should ensure that current and future policy frameworks are enabled by the act, including those on desired conservation, social, and economic outcomes.
    Finally, I know the committee takes its work seriously and that timelines are very tight. There's an incredible amount of information to digest, but I hope you complete your report on this work and the recommendations for a restored and modern Fisheries Act with both courage and ambition.
    Thank you.

  (1550)  

    Thank you.
    Finally, for a 10-minute introduction, we're going to the Union of British Columbia Indian Chiefs.
    We'll hear from the vice-president, Chief Robert Chamberlin.
    I want to also acknowledge that I'm on Algonquin territory, the unceded territories, and I do not take this acknowledgement lightly. It is something that's very serious and dear to us as first nations people.
    My traditional name is Owadi. I'm the elected chief councillor from the Kwikwasut'inuxw Haxwa'mis First Nation. Many of you may know our territories as the Broughton Archipelago, or ground zero of the fish farm fight in British Columbia. I've served as the elected chief councillor for 12 years, six consecutive terms. I am finishing my second three-year term as the vice-president of the Union of B.C. Indian Chiefs. I am also the chair of the first nation wild salmon alliance, and I have a deep background in fisheries, especially as it relates to aquaculture, fish farms, and the Cohen commission. I'm really happy that I made some very brief summary notes of the presentation that I was planning on making, so I'll just go through this and touch on some of the other aspects.
    The Union of B.C. Indian Chiefs has been in existence since 1969. We take a very strong view, perspective, and stance on aboriginal title and rights. We seek every opportunity to advance the recognition of the inherent right and authority that first nations have in Canada. We advocate at every level possible. That's why you find me sitting here at this table with all of you this afternoon.
    In terms of the topic at hand, I want you to understand the background of my people. Wherever I travel, I'm always very proud to say that we are clam diggers and fish eaters, and very proud of both. When you consider that statement, clams are found below the ocean floor and the salmon are found in the watersheds of our territories, so we have environmental concerns that extend below the surface of the ocean to the very tops of the trees at the height of land in our traditional territories and everything in between. When the government takes steps to make changes that are going to affect various industries and activities found within our territories, we are going to demand that we have a great say in what is going to occur.
    Of course, now, with the new Liberal government, first nations across Canada, including myself, have taken great hope in the statements of this new government wanting to redevelop a relationship with first nations people, and most importantly, to revisit any legislation, regulation, management practice, or policy that was not properly and adequately consulted with first nations to satisfy the honour of the crown. As first nations people, we live in a world of the Constitution and Supreme Court of Canada rulings, and we are forever pushing the government and reminding them as gently or as strongly as necessary of their very own laws that they choose to abrogate, disregard, or take on with the most minimal of views.
    Certainly, this is very much true and what we're here to talk about today with those omnibus bills that changed no less than 70 different pieces of legislation and law within one bill. Certainly, I've read in the newspaper many times over about this being construed as a miscarriage of democracy within the Canadian government. I certainly heard that loud and clear from the opposition parties.
    Here we are today looking to what Prime Minister Trudeau included in the DFO minister's letter, where he spoke very much about reinstating all of the things that were less than gloriously ripped out of the oceans act, such as the HADD permitting, making sure that there is habitat ready provide for the sustenance and abundance of wild fisheries across Canada. The omission at the minister's whim to remove tracts of water from this very protection is just unfathomable, when you think of it, from a country such as Canada that has enjoyed a great foundation built upon marine resources. The traditions of our people in British Columbia, coast-wide and well up into the very headwaters of the Fraser, the Skeena, and the Nass rivers, have provided fish for our people's sustenance.
    As all of you are probably more aware than most Canadians, I've been privy to various reports on the state of first nations economy and the poverty that many of our communities live in. When this is true, and I know that it is true, then we rely our upon our traditional foods for the very survival of our people through the cold winters. It is not that we happen to enjoy barbequing a salmon or having clams in the winter; it is what we require to make it through life on a daily basis. This is heightened as you go into the most remote communities and as you learn the challenges that they face in terms of economy and of accessing foods to live.

  (1555)  

    I think about what's happened here with Bill C-38. It went through the phased approach, where it gets royal assent in the first go-round and then we leave the second phase up to the Governor General. Theoretically, the second phase would open up a door for some measure of consultation with first nations, but the problem is that the whole ball of wax has already gotten royal assent, so it's a meaningless consultation. This is not what I see as the crown's duty to uphold its honour.
    When I think of this Canadian government now unequivocally embracing the UN Declaration on the Rights of Indigenous Peoples, there are very significant portions of that which relate to the topic at hand today with regard to the environment, our traditions, our cultures, our values, and our traditional food sources. Canada, on one hand, is now embracing the UN declaration, and we are faced with the changes that came through the omnibus bill. All of the safeguards that were taken out of this act need to be reinstated, at minimum, right now. We need to turn our attention to the developing leading-edge science, which is becoming available through the Department of Fisheries and Oceans and other sources, to further inform and guide the management practices of the DFO.
    In British Columbia, my focus has always been on wild salmon, and I've learned that the outward migrating salmon are probably the least understood. That component of this sacred resource is not understood. How can we adequately develop management plans when this one very significant piece has no science to validate management decisions?
    Of course, when I start to think about the changes in the definitions of aboriginal fisheries and commercial fisheries, it's really offensive to me that the Supreme Court of Canada has defined aboriginal rights and access to fish, yet this bill—taking in all the many components—attempts to limit that to a fishery, rather than a right to fish. The problem that I see with that is.... I think of my dear friend Grand Chief Ed John of the Carrier Sekani people and the early Stuart sockeye run of the Fraser River. They have not touched that run in decades. The reason is that it is so depleted, they can't fathom taking fish out of there for worry about the annihilation of the run. That portion of the Fraser River, conceivably, could be forgotten under this existing Bill C-38.
    We have to really take a look at what is an aboriginal fish. We have to reinstate the HADD permitting. When I think about the portions that talk about the agreements with the province to take on pieces of this work in conjunction with DFO, I am appalled that there is no mention of the same arrangement with first nations people.
    When it talks about the province being well suited to engage on the management of fisheries, there is nobody in this country who is better suited to participate in the active management of fisheries—certainly in British Columbia and, I would say, across Canada—than first nations people. We are born into this. It is part of our genetic makeup. We understand our lands. We know what's going wrong. What we have is a government that has turned a deaf ear to the things that we express and to what we see as a meaningful path forward to safeguard the resources that we rely upon. The government must pursue a co-management agreement with first nations.
    In my experience as elected chief of the Kwikwasut'inuxw Haxwa'mis, I've learned about the HADD permitting in relationship to fish farms. What I found was appalling. There's this one company—I won't name the name—that was able to develop a marine bank, an area where they restored so many hundred thousand cubic metres of underwater environment. That was their bank, so they could destroy that same amount in our first nations territory. It made no sense. It would be like tearing down the arena here in Kenora and rebuilding a new one in Toronto as some sort of way to compensate. It does not make sense.
    When I say that I want to see the reinstatement of the HADD permits, I want to know—and I want to advance to each of you—that when mitigation measures are going to be developed and there is going to be a permit, then they will be developed with the first nations who hold the title for the lands where the destruction is going to occur. Anything less is not going to be very successful to first nations.
    We must really understand that this bill contemplates looking after fisheries rather than fish. If we're not going to take our greatest minds and learned execution of understanding into the protection of habitat, we are not going to have fish. If we don't have healthy and abundant ecosystems that will lay the groundwork for the fish to be able to produce and survive, then we will have nothing.

  (1600)  

    I want to impress upon you the catastrophe that I know has happened with the cod stocks in Newfoundland and on the east coast of Canada. We must embrace the principles of the Cohen commission in British Columbia. We must understand that there are a lot of holes in the science that guides management of fisheries in British Columbia, and we must expand on things such as the genome work that Dr. Kristi Miller is doing with DFO.
    We must expand on the closed containment initiative of Kuterra, of the 'Namgis First Nation on the north end of Vancouver Island, and we must take the fish farms out of the ocean and put them on the land. If you think about it, we will then be able to provide a greater opportunity for economic development to a broader range of first nations that don't necessarily have to be coastal. It will meet many of the goals that the government has stated to close the socio-economic gap that first nations are faced with.
    As we go down the road, it must be done hand in glove with first nations people. We must take a look at all the various sections from section 35, 37, and 38, and understand that we must revisit these with first nations, and I say re-engage, not consult and accommodate. We must re-engage with first nations, consistent with the UN Declaration on the Rights of Indigenous Peoples, so we will accomplish what the Supreme Court of Canada has given direction to Canada to do, to uphold the crown's honour and to move toward true reconciliation of presumed crown title, with the underlying aboriginal title of first nations people in Canada.
    I want to ensure that we move forward collectively with first nations and that we reinstate HADD, at a minimum, and build on that with current and emerging science, such as the Pacific Salmon Foundation and their Salish Sea marine survival project. These are wonderful examples of new tools that are consistent with the Liberal government's commitment to do so.
    Thank you, Scott.
    Thank you, Chief Chamberlin. I appreciate that.
    I'm sorry about the time constraints, but such is the creature we are for trying to fit all of this into two hours.
    Nevertheless, thank you, but I'm sure a lot of that can be worked into the questions and answers that are coming up, because we're having the whole meeting on this one group. We've chosen not to break them up, as has been the practice in the past.
    We now go to the floor for questions and answers.
    Mr. Finnigan, you have seven minutes, please.
    Thank you, Mr. Chair.
    Thank you to the panel for appearing in front of us today to help us make recommendations toward the new Fisheries Act.
    I am a farmer myself and I know Mr. Bonnett. I've met him on many different occasions, mostly regarding farm activity, but again here today on this issue of drainage, as you said, or any other activity that then becomes a wetland or becomes environmentally sensitive. I think almost every farm has had that rude awakening.
    On the other hand, you could probably fish in some drainage ditches, and when you clean, silt is going back into the rivers. We know that causes a lot of harm to many different species. How do we deal with this? Is the onus always on the farmer or is there a community responsibility? How can we work to provide the right resource when you're going to clean a ditch? You would have resources, but how do you go about it and how do you mitigate this huge expense on the farm?
    I think there are two things. The one thing I mentioned was conservation and stewardship initiatives to incent farmers to do the right thing. Sometimes this isn't necessarily on the drainage ditches; it's on water courses that are through their farms.
    On the drainage ditch maintenance thing, you have to recognize these were man-made facilities to start with. Before they were even put there, there was no fish habitat. They were just trying to get rid of that extra water.
    There has to be an understanding that as part of that cycle, they do have to be cleaned out. If you look at it from a pragmatic point of view, you see that you may be destroying one habitat here, but what you're actually doing is creating new habitat for several years down the road. It's almost like a rotation.
    I would suggest this goes back to the regional plan. If you look at the regional plans for drain maintenance, you see that drain maintenance should be staggered so you're not all in one place at one time.
    The other thing you look at is where that drain interacts with the natural water course. That's likely the area of most risk. With that, when taking a look at developing best management practices for dealing with that drain on the maintenance, it would make more sense to take a look at a number of drains, and say these are the types of things that need to be done rather than have to go through a complex set of approvals and engineering designs for every individual drain, because all that does is adds costs to the system. It really doesn't address the risk.
    If you look at the risk where they interact, understand there's going to have to be some maintenance damage done while you're doing those drains, but see if you can get a unified approach to do it that isn't based on every drain having to have an individual design, with all the inherent engineering. It would cut the cost and it would still meet the concerns of dealing with any risk to fish habitat.

  (1605)  

    Thank you, Mr. Bonnett.
    Now I'll move to Ms. Fuller.
    In your view, should the HADD or harmful alteration, disruption, or destruction of fish habitat, be restored? Do you believe we should go to that original act? If so, should it be interpreted and implemented by DFO?
    For the second part of it, how do you include the agriculture sector or the forestry sector? How do we make this work altogether? Should this be their responsibility? Again, I'll ask the same question basically as I asked Mr. Bonnett.
    I do believe HADD should be reinstated. I think there's some work to be done under the regulations that can incentivize fish habitat conservation.
    One of the things I find remarkable is industries like farming and forestry have more restrictions on fish habitat than the fishing industry, which is interesting.
    I'm thinking back to the Species At Risk Act, where there are conservation agreements and there are ways of protecting species at risk across the landscape. I think there can be a lot more work in terms of understanding cumulative impacts, knowing where habitat has been altered, particularly if it's not a man-made or human-made drainage ditch, understanding at that landscape level where those impacts have been authorized. In that way, at a biological level, we could do much more around conservation of freshwater fish, in particular.
    I have to say my expertise and my background is in marine fish, so I may not be able to speak as articulately around freshwater habitat, but I do think there's a willingness across many stakeholders to work together. Nobody wants to destroy fish habitat. How do we do it in a way that is not a regulatory burden but is a stewardship perspective? I think that's quite possible.
    Chief Chamberlin, in the last 25 years there have been a lot of court decisions that have recognized the rights of first nations to access fish and rivers, and so on. I've asked the question—I can't remember to whom. We depend a lot on the scientific evidence. We're trying to depend on that, but there is a lot of knowledge, as you stated, Chief Chamberlin, that the first nations communities have. The courts have recognized them.
    Should that be enshrined also in the act? How can we work together and make sure there are proper consultations with first nations? I have four first nations in my community, and I would like to hear your views on that.
    First, I want to say you're fortunate to have four first nations in your riding.
    Yes, they are very good communities.
    In terms of scientific evidence and traditional ecological knowledge—that's what I gather your question is—how can we advance the traditional ecological knowledge of a first nation without having some measure of management agreement? That was part of my comments about the federal government or DFO looking to pursue something with the province, or the potential. I think we need to turn and look to examples that are in Canada, as well as around the globe, where we have co-management in existence.
    One organization that I'm aware of is the Skeena Fisheries Commission. They've made great strides in incorporating traditional ecological knowledge. The path they laid out for us can be replicated, and I think that it needs to be supported and continued. But without adequate resourcing, there is always going to be a challenge in terms of getting through any measure of consultation.
    I think—not think, I know—that today, with Canada's embracing of the UN Declaration on the Rights of Indigenous Peoples, first nations have a much stronger perspective on how they wish to re-engage with the Canadian government on all manner of topics. This is something that's entirely consistent with the government's commitment to Canadians and to first nations alike.
    We need to think outside the box. We need to learn from the past governments' misdeeds, in terms of ignoring the consultative requirement as well as the absence of resourcing for first nations to participate. TEK is something that I know first nations possess. It's something that DFO has stated it wants to hear. I think the burden is to get it through the bureaucracy that this is more than just anecdotal stories about what we understand of our lands and territories.
    I hope that answers your question.

  (1610)  

    Yes. Thank you.
    Thank you, Mr. Finnigan. Sorry about that, but you may get a chance later on.
    I'm going to turn to Mr. Sopuck, from the opposition, for seven minutes, please.
    It's very important to make it clear, though.... People talk about lost protections. The amended act said that “serious harm to fish” was defined as, “the death of fish or any permanent alteration to, or destruction of, fish habitat”, with “fish habitat” defined as spawning grounds and any other grounds, and so on. The point that the new Fisheries Act caused habitat protections to be lost is simply not true.
    The Mining Association of Canada, which talked to us at the last meeting, said in its testimony:
...the 2012 changes to the Fisheries Act have in practice broadened the circumstances in which the section 35 prohibitions apply and increased the circumstances in which an authorization and offsets are required.
    Industry practitioners, who actually had to deal with the new Fisheries Act, pointed out that, in terms of the projects they were involved with, our changes to the act—and I use “our” because I was part of the old government and on the fisheries committee—actually increased habitat protections.
    Ms. Fuller, I have a question for you. Can you point to any example of damage to a fish population or a fish habitat in Canada caused by the changes that were made to the old Fisheries Act? I want a specific example.
    As I said, my expertise is not in fresh water. I will say that one of the difficulties was the closing of some of the habitat offices and the reduction of resourcing. As you would know, we need scientists, enforcement officers, and compliance officers to actually track that information, so we don't know. From the work I did with NGOs between 2006 and 2010, I know that even municipalities said, on a daily basis, that they lost fish habitat.
    We saw the authorizations go way down, but there is no information out there. I work quite closely with people who used to be in the habitat branch, who feel terrible that they cannot actually go and do their jobs. I would say that the case of the Atlantic whitefish, which is, I think, now completely extirpated from where it used to be, is a good example of where either we have lost fish habitat or we have done something to the fish. The lack of care around that particular species, if you want an example.... This is one that has essentially gone extinct or been extirpated from where it used to exist.
    But that clearly wasn't involved with the changes that we made to the Fisheries Act.
    That's a question, Ms. Fuller, that I have asked of a number of environmental activists who have presented to our committee on the Fisheries Act, and so far I'm batting a thousand. Nobody has been able to point to a specific example of damage to a fish population or a fish community as a result of the changes we made to the Fisheries Act.
    Mr. Bonnett, as you well know, I represent a large agricultural constituency, and the farmers of my constituency had the same issues with the Fisheries Act that you so eloquently outlined. I want to commend you on your presentation from the CFA, because you provided us with clear guidance and recommendations, as well as very clear and specific examples, that will help us in our deliberations.
    I was very taken, Mr. Bonnett, with your comment that we should support outcomes-based conservation as opposed to process outcomes. I think that's a very important point. Can you elaborate on that for us?
    I think it's very easy sometimes to get caught up in putting regulations in place that you think may solve a problem, without actually having the hard evidence looking at what will change. Even if I take a look at the work that's been done on our own farm, such as fencing back from those water courses and getting the cattle out of those streams, the bank damage is gone and the water quality is cleaned up. I'm seeing fish in those streams that I haven't seen before. There are geese and beavers. All of this wildlife habitat is coming back, just because of some simple changes that were done on the ground.
    However, there might be places where you would end up with a regulation. I put a tile drainage outlet into that area a while ago and it was a difficult case in getting permission for access, even though that's providing more fresh water into that stream. Taking a look at the broad picture of the outcome and if the habitat is being improved in general in the region is more effective than having regulations.
    I go back to what I mentioned earlier about taking a look, on a regional basis, especially at man-made drains, and recognizing that some are going to have to be maintained every year. By doing that maintenance, you actually create the situation where you have habitat at different levels of development all the way through that process. You do recognize that, at the end of the day, some of those drains are going to have to be cleaned and there's going to be damage in that local area, but then the overall picture is that fish habitat has been enhanced. That would be a case where, if the regulation says you don't damage the habitat around that drain when you're contacting it, then you can't do anything with it. The drains block up and then, all of a sudden, you don't have any fish habitat at all. You have to really take a look at the broader outcome that you're looking for.

  (1615)  

    Again, we looked at the testimony from the previous Parliament and the deputy minister at the time who talked about 12,000 applications on their desks under the old Fisheries Act. He implied very strongly that it was clearly unworkable to have all these small projects brought to the department.
    I'd like to make a point again that the new Fisheries Act allowed for something called the recreational fisheries conservation partnerships program. There were hundreds of projects supported right across the country, with some very measurable and specific outcomes. That program worked extremely well. I'm pleased that, so far, the new government has kept that program in place.
    I'm still staying with Mr. Bonnett. You talked about incentives versus regulations. Should there be a well-funded, environmental incentive program, as part of the new Growing Forward initiative?
    That's one thing we're asking for, especially on the environmental side. We're looking at investments there, but we're also taking a look at other departments too, where they might make investments in agriculture to meet some of the other objectives. This gets very broad, with not only water quality and fish habitat. It could be taking a look at agriculture's role in reducing the carbon footprint going forward. We have to start taking a look at how we can incent people to do things that are going to get that outcome that you want.
    As someone who represents an agricultural constituency, my view is that farmers respond very strongly to the incentive approach as opposed to regulations and are more than willing to work with conservation agencies, departments, and groups to improve environmental outcomes. Would you agree with that statement, Mr. Bonnett? Just give us some examples that you're familiar with from across the country, perhaps the cows and fish program in Alberta or something else.
    There are a number of examples. There's the cows and fish program in Alberta. Prince Edward Island's doing a lot of work under the alternative land use services.
    Regarding your comment about regulations versus incentives, farmers have been known to be somewhat independent. If somebody comes in with a clipboard and writes you up on regulations, usually that isn't the start of a good relationship. If a conservation person comes in and starts talking to you about things that you could do to improve the habitat and that they have some programs they think you could fit into, then it's a whole different conversation.
    I'm going back to what you mentioned about the outcome. Quite often what we see at the farm level is that where there's a win, sometimes, for the environment, then there's also a win for the farmer.
    Thank you, Mr. Bonnett. Sorry—
    Of course, when you begin fencing cattle back from water, all of a sudden you see productivity and herd health improve, so you're getting a benefit on the farm side and a benefit on the environmental side.
    The short answer is that, if you really want to get an argument going with a farmer, come in with a clipboard and a bunch of regulations that you're going to enforce.
    Thank you very much.
    I have to do some of that enforcement right now. I apologize, sir.
    Mr. Donnelly, you have seven minutes.
    Thank you, Mr. Chair. I'd like to thank all of our witnesses for being here today and providing testimony on the Fisheries Act review.
    I would encourage all witnesses to submit your recommendations in writing to the committee, if you haven't already done, to make sure we get those.
    Chief Chamberlin, thank you for providing your remarks.
    From what I have, and I'm sure I missed a few, you spoke about the importance of a watershed perspective, and revisiting the relationship with first nations regarding these changes and a proper engagement. You mentioned the minister's mandate letter. You spoke about reinstating the changes to habitat protection and bringing those back now. You spoke about defining what an aboriginal fish is, pursuing co-management with first nations, the need for healthy and abundant ecosystems, and embracing the principles of Cohen. You also mentioned putting salmon farms on land.
    My first question is, why do you feel so strongly about the past changes to the Fisheries Act?

  (1620)  

    The changes I've seen are consistent with the previous government's approach to minimizing anything to do with aboriginal rights and title. They used the majority government that they had to push through their perspective and vision for Canada, and it really did not reflect the honour of the crown, which was directed to them by the Supreme Court of Canada.
    When I think of the changes that were made here, they are inconsistent with the Supreme Court of Canada. When they changed or added “for sale, trade or barter” to the commercial definition found in the new Fisheries Act, that's entirely inconsistent with the Gladstone case of 1996, the Ahousaht Indian Band case of 2011, and the Van der Peet case of 1996, which clearly articulated for the government that first nations have always enjoyed a barter system with our foods that we have to trade. There are grease trails that our people have participated in, and so on.
    In my opening remarks I spoke about the need and the reliance of our people upon traditional foods. When the government decided to take a different view and tried to redefine it, and move it away from a place where it could actually be protected by some legislation, that really hit a nerve with first nations people.
    Our primary concern has always been the health and abundance of wild salmon in British Columbia, as well as halibut, cod, and everything else. When we start tinkering with something that is so profoundly important to our peoples, we will take issue. We will take a stand, and we will not be moved from that position.
    You gave a number of concerns and recommendations in your testimony. If you had to choose your top three, what would those three be?
    My top three would be the reinstatement of the HADD permits. That's very critical for the proper functioning of the Department of Fisheries and Oceans, bringing it back to its initial focus of not just managing fisheries that perhaps have a commercial aspect but actually looking out for the environment and all the waterways of British Columbia and Canada. I know Canadians would expect the government to do such a thing.
    My second recommendation would be that the aquaculture industry of British Columbia, the fish farms, be moved into a Canadian environmental assessment stream. A mining operation might have a camp, a place to work on their machinery, a place where they dig, a place where they prepare, and a place where they ship. One company does all of this, and it triggers off the need for an environmental assessment. Well, a company operating in our first nations territory has a grow-out place, a smolt location, and a middle-growth area. You have these four or five different farms in one small region that are actually one piece of a greater company's efforts, yet they escape the environmental assessment.
    When we start to turn our attention to that, we really need to come to an understanding not only of the cumulative impacts to the benthic environment of the ocean but of the cumulative impacts on migratory salmon. I say that as a result of what the Cohen commission spoke about and the lack of science, and so forth.
    The last recommendation would be to move the fish farms onto land. We need to get on with closed containment. I've met with Minister LeBlanc a number of times, and previous to that, with Minister Tootoo, and I asked, “Why is Canada afraid to be a world leader? Where is the ingenuity that built this country, and why are we not putting our best and brightest minds to take the lead globally on this?” I really and truly believe we have the ability, and we have the examples around Canada that can lead us down that road, so that we can really set the stage for this evolution of an industry.
    Every other industry has evolved in Canada and the world. Logging has changed. Mining has changed. Oil and gas has changed. It's time for the open net-cage fish farms to change, so that we can remove that level of uncertainty and impacts with which people have issues. I am clearly understanding the impacts that have happened in our territories, and it's time that we really safeguard our wild salmon.

  (1625)  

    Thank you very much, Chief Chamberlin.
    Dr. Fuller, you gave nine very clear recommendations. I have just a minute left. Could you talk about one of those, which was your fourth one on pesticide use, and could you mention or clarify for us how you see legalizing that, or in the Fisheries Act how that becomes clearer? What do you want to see in the Fisheries Act that changes or modernizes the act?
    The agricultural activity regulations came into force a year ago this past August, as I understand it. There was an outcry at the time when they were being developed. I think 123 scientists from across Canada signed a letter to the Minister of Fisheries and Oceans. Our understanding of why the pesticides regulations were changed was that Environment and Climate Change Canada charged an Atlantic Canada company for illegally using pesticides. This was after there had already been a settlement around pesticide use that killed a significant amount of lobster.
    One of the issues that, I think, the department should get a legal opinion on is the increasing pesticide use, which is happening because there's a growing sea lice problem in Atlantic Canada, and whether it's against the London protocol or the Canadian Environmental Protection Act, under the disposal at sea regulations.
    What, in many cases in other industries, from sewage to agriculture, we're trying to limit is the number of toxins that are going into our environment. We're now authorizing more toxins to go into the marine environment. From a biological perspective, a sea lice is the same thing as a lobster. It's a crustacean. There are impacts. The DFO toxicology lab when it was working—there's no longer a DFO toxicology lab in St. Andrews—found there were lethal effects from sea lice treatments on lobsters.
    I would say we have lost protections through the aquaculture activity regulations, particularly on pesticides.
    I'm sure I'm done.
    You're done. Thank you for that.
    Mr. Morrissey, you have seven minutes, please.
    Thank you, Chair.
    My question is to Mr. Bonnett.
    You state there were challenges before the changes were made to the act. Could you expand a bit on that?
    The challenges were mostly bureaucratic. Before the act was changed, the Department of Fisheries and Oceans was involved with almost every drain maintenance operation that was going on. There was bureaucratic red tape you had to go through, not only with the Department of Fisheries and Oceans, but also likely with the local conservation authority. Depending on the province, there might be provincial engagement, as well. When you go to maintain these drains, quite often you have a very limited time window to do that during the summer, when you can do the least damage to the drain.
    What was creating the frustration was that the paperwork was taking so much time to get the maintenance done that quite often drain maintenance would be delayed for a year or two. Then, all of a sudden, you have problems with lost productivity at the farm level. The main thing was the bureaucratic holdups on getting the approvals from the Department of Fisheries and Oceans.
    What is your experience today?
    It's improved. There are still some challenges when you have multiple jurisdictions working on that. It varies very much depending on which area you are in. It has improved dramatically from what it was.
    You also made the statement that protection can be enhanced.
    Protection can be enhanced. I think what you're referring to is related to the outcomes statement. It's taking a look at what the outcome is. That's putting a whole package of things together like incentive programs, set-asides, ecological goods and services, and those types of things, as opposed to a regulatory framework.

  (1630)  

    My riding, like Mr. Sopuck's, is heavy agriculture, and it has a very strong aquaculture industry, as well, occupying inland rivers and estuaries across the riding. I've witnessed over the past number of years significant improvements in farming practices in Prince Edward Island. It's very positive in that way.
    I'm going to take you to your comments on the distinction between the man-made waterways and the natural habitat. Am I correct, because I'm new to this committee, that the act was treating both the same?
    That's it exactly.
    It was identical?
    They were using the same types of rules on every waterway.
    Okay. That doesn't seem practical.
    Ms. Fuller, you stated DFO was not adequately protecting fish habitat. A number of comments have been made by a number of witnesses that not only were the changes to the act detrimental to protecting fish habitat, but at the same time the department has had significant reduction in staffing in key areas and that the resources were no longer there to protect habitat.
    Could you expand on that for me, please?
    We watched the habitat offices go from 63 across the country to 16. I think about 1,900 positions in DFO were lost across the board—not just habitat. We no longer have a habitat branch. There's fisheries protection but there's no habitat branch anymore. I have friends who are scientists, who are habitat managers and work with local groups and with proponents to restore fish habitat. When there's an authorization, how do we make sure that conservation groups.... I'm always amazed by the number of streamkeeper groups or restoration groups across this country, individuals and volunteers, that get involved in fish habitat protection and restoration. Nobody answers the phone at DFO, in many cases, anymore.
    Yes, right.
    That's a huge problem because we're not using the resources at hand. Volunteers put hours and weeks of their time into restoring streams. DFO is not there anymore. I think one of the unfortunate parts of that means we can't measure what we've lost, what we've gained, what we've offset. How do we measure that? I think that's an important part of implementing the act, knowing what we've measured.
    The fact that we do not have a digital public registry for habitat authorizations blows my mind, quite frankly. We could do it on Google map and that way, it would make the bureaucratic process, the decision-making process, much easier, matching up the stewardship groups so they can work effectively to protect and restore fish habitat. Resourcing is important, but we can also be efficient and effective about it.
    To follow up on Mr. Sopuck's comments, the changes to CEAA he stated have yet to identify any specific area where you could say there was a loss from the act. That's stating that the changes to the act led to loss of habitat protection and that none has been identified.
    One of the big losses was the lack of CEAA triggers. All of a sudden a whole bunch of projects didn't even have to go through habitat authorization. You're not going to measure those.
    Like what?
    Aquaculture, for example. I think a lot of undertakings at the municipal level don't have to go through authorizations anymore, class authorizations. Nobody's tracking what happens. Nobody's training transportation workers when they're putting in culverts, so you have volunteers trying to look at whether or not the culvert is at the right height so water can go through it.
    I work quite closely with the former head of habitat branch, who now works for adopt-a-stream in Nova Scotia and the Nova Scotia Salmon Association, and they are tearing their hair out because the Department of Transportation in Nova Scotia is putting in culverts without following any instructions on the best practice for fish habitat because nobody has given them instructions.
    I think there are many—

  (1635)  

    Were instructions given before?
    Yes, there would have been instructions because you would have had to work with a habitat biologist and an officer to make sure that the contractors understood the instructions.
    Thank you, Mr. Morrissey. I appreciate it.
    Mr. Arnold, we're into our second round. You have five minutes, please.
    I'll try to make it quick because I have a lot of questions to go through.
    Mr. Bonnett, you talked about enhancement and incentive programs for farmers, and so on. I'm aware of some in my area that have reduced irrigation use to leave more water in the streams.
    Can you make any suggestions as to what types of programs or incentives we should possibly look at, and if they might be able to fit into the act somehow?
    Yes, I think there are a number of different programs.
    If you look at the livestock sector, the biggest risk would be to cattle access to streams. There can be incentive programs that look at fencing back from water courses and at getting off-stream watering. There is a lot of new technology there. We just brought in a solar system this summer for providing water to our cattle. Using technology like that works extremely well.
    On the irrigation side, a number of things can be looked at. One is not only removing water from streams, but incenting the building of storage areas for water, because we're getting some climatic cycles with periods of excess moisture and then periods when we're heading into a drought situation. Storing water, then, would be another one.
    There are also a number of new low water-use technologies, so that you can grow the same crop with not nearly as much irrigation.
    There are a number of things such as these that I think would work to incent agriculture to improve operations.
    Okay, thank you.
    I want to make a couple of statements. I don't want to be contradictory, but I think these statements need to be corrected.
    One was the statement that only commercial fisheries are protected under the new act. That's not correct. The new act also includes the interests of recreational and first nations fisheries. I want to make sure that's recognized.
    Chief Chamberlin, you mentioned first nations and their involvement. I come from a hunting and angling club. We did a lot of stream work. Can you tell me whether you have knowledge of first nations in your area that you're aware of who have been involved in stream enhancement projects or anything like that?
    Thank you for your question.
    There was a time when DFO provided some resourcing to first nations through the aboriginal fisheries strategy to do things such as stream remediation and habitat work, but this has sadly diminished. It's not available much anymore. This is one of those things for which cutbacks have occurred that have kept first nations from being able to move forward.
    I can tell you about one example in our territory. We have a spawning channel in Kakweiken, or what people like to refer to as Thompson Sound. It was horribly designed at the outset, but there are no resources for redesigning the intake for the water there. It would be a significant contributor to the salmon in our territories, but the resources have all but disappeared during the previous government's term.
    That will bring me back to another comment I'd like to make. I said that I come from a fishing and hunting and angling club. We did a lot of stream work. From first-hand knowledge, I can say that we pulled away from that because of the bureaucracy that was involved. It would take us a year to a year and a half to go through an application, with the system that was there, to do a day's work in a stream. Honestly, our leaders simply had had enough. They quit because of the bureaucracy that was involved. It just took too long to work through the existing system.
    There need to be changes there. We didn't have the resources. We were more than happy to get into the stream and do the work. We'd get dozens of people out initially, but it got to the point that we couldn't get one person to apply for the permit and go through the bureaucracy.
    My next question is for Ms. Fuller. You mentioned that some aspects of the recent changes improved the act. Could you elaborate a little further on that, please?

  (1640)  

    Yes, I think the addition of “activities” is good.
    Pardon me?
    The addition of “activities” in “works, undertakings or activities”, that is positive and should stay.
    The other part about making the letters of advice enforceable is also good. Those two things are good changes and should stay.
    To respond to your comment about the difficulty in doing restorations, one thing we advised back in 2010 was that, with conservation groups and environmental groups, there be an actual letter of advice for restoration activities, so that they could happen much more quickly.
    I think there are many regulatory and process-based things that could be more efficient and would address many of the challenges under the previous act.
    Good.
    Thank you, Mr. Arnold.
    Ms. Jordan, you have five minutes, please.
    I'd like to thank all of the witnesses for appearing today. It has been very interesting.
    First of all, we heard from Chief Chamberlin and Ms. Fuller that there was limited consultation, or none, with regard to the changes that were brought in. Can you tell me, was the Canadian Federation of Agriculture consulted when the fisheries habitat protections were changed?
    We were notified that the changes were taking place and asked whether we had any specific recommendations under the drainage works, but I'm not so much sure it was an invitation as we were knocking on a lot of people's doors at the time, because of the bureaucracy that was involved in getting the approvals through. It was becoming a very big financial issue for a lot of our farmers.
    I'm not so sure it was a formal consultation process as much as it was that I and a number of MPs were knocking on their doors as often as we possibly could because it was a concern that we felt needed to be addressed.
    I'll go to Ms. Fuller. You said to reinstate the lost protections. Now, having heard what Mr. Bonnett says, do you see where there's a bit of a problem? Is there a way that we could change it to bring back lost protections, yet still address the concerns that agriculture has with regard to drainage and their becoming an actual protected area?
    Yes, absolutely. I don't think the two are mutually exclusive.
    The primary part of my particular recommendation on HADD is that there is important case law that has been established. Without HADD we lose the application of that case law, and all that hard work that Canadians went through to get the fisheries law upheld.
    I think absolutely we can reinstate the lost protections and work with various industries and industry organizations and stakeholders to make sure that the outcome of habitat protection is achieved. A lot of that happens with the regulations and the process, but the law should actually be reinstated.
    One of the things that we've heard in almost every study that we've done since we started this committee a year ago is that the loss of science and the loss of enforcement have been key drivers in a lot of the problems that DFO is facing.
    We've already started to work towards reinstating some of the science. With regard to enforcement, where do you see the priority? Now, you work marine. We've heard from the marine but we've also heard from the habitat. I guess I'd like to know what your thoughts would be on where the priority should be.
    I would say on major projects there needs to be enforcement. I think where there's an authorization that we know has been given and there are offsets, I think there needs to be checking in on that at the field officer level. A lot can be done by improving best practices and what is required for fish habitat protection. I also think that if there are a few fines that actually punish for loss of fish habitat, that improves compliance significantly.
    I would probably look at this. Where are the greatest threats to fish habitat? What are the projects currently happening there? Are we enforcing our habitat protection provisions? I think that enforcement officers would actually be able to tell you best, those who still exist, where they know that they don't have any capacity.
    I know in Nova Scotia, as you probably well do, that people were using neighbourhood watch systems, because there was no fisheries officer, anywhere in the entire Guysborough county, as an example. Again, I think that is something that can be done collaboratively, too, with conservation and protection, because they understand where they have gaps.

  (1645)  

    Chief Chamberlin, thank you so much for your testimony. I found it extremely interesting. Does your organization represent all first nations in B.C.?
    We represent the majority of first nations in British Columbia. I think our last membership count was 110 out of 203.
    Am I correct in my information that there are first nations that are involved in open pen aquaculture?
    Yes, there are.
    How do they feel about your group working towards moving it to closed containment? Are they in support of that? Are they looking at that as maybe a problem for them?
    The government has always been very warm to point out the number of first nations that are involved.
    One of the endeavours that I've pursued in the past couple of years has been developing the first nations wild salmon alliance. I can say to you quite clearly that there are about 150 first nations that are clearly opposed to open net-cage fish farms. What has happened is that the Cohen commission makes it clear that the potential to infringe on the Fraser River first nations, right up to the headwaters, where the outward-migrating smolts have the potential to die at fish farms because of sea lice disease and what have you.... As you know as well as I do, that triggers the duty to consult.
    What has happened is the government has put in place regulations and management practices where they did not consult with first nations at all, and there was a potential infringement on their rights. That's why I've been advancing to the DFO minister that we re-engage and we take this opportunity, with the commitments that the Prime Minister has made, to engage with first nations so that everybody can be mindful of everyone's rights and of what it means when you have a cumulative impact on a run of fish coming out of the Fraser.
    Thank you.
    Thank you, Ms, Jordan.
    Mr. Doherty, you have five minutes, please.
    Thank you to our guests who are here with us today. I found all the testimony fascinating, and respectfully, I really appreciate everybody's view on this. I'm going to direct my questions to Chief Chamberlin.
    Chief Chamberlin, respectfully, you did say some things about our previous government not engaging with first nations, and I feel compelled to have to stand up and—while we're here for the Fisheries Act review—talk about some of the good things that we did.
    Our government did engage with first nations. You mentioned in a previous question that there was some funding that was put forth. We signed 95 contribution agreements that provided funding for over approximately 165 first nation communities specifically with relation to fisheries. There was $7 million for the aboriginal aquatic resource and oceans management agreement that we signed.
    We signed an MOU after the Fisheries Act was done in 2013 with Grand Chief Ed John, Grand Chief Stewart Phillip, as well as regional chief and now-minister within this government, Hon. Jody Wilson-Raybould, with respect to the first nations fisheries memorandum of understanding with the agreement that we would work collaboratively together and move forward together. We spent up to $465 million annually on salmon, and $23 million of that was spent within the province of British Columbia.
    Chief Chamberlin, today we're here about the Fisheries Act review. Can you tell me how the changes to the Fisheries Act negatively affected or took away first nations fishing rights?
    First, I want to respond to the comments that you just put on the table here. On the MOU that you described with the first nations leadership council, I was signatory to that as well, and it was meaningless. I don't mean to be offensive; I mean to be honest. It accomplished nothing, so let's be really clear about that.
    In terms of the money that the previous government put forward on, let's say, aquaculture regulation development and management practice development, they didn't incorporate a single word that came out of those consultations with first nations. It was meaningless. Regardless of how much money the government can say it put out there for first nations, the very fact that there was zero accommodation as an output makes it a senseless waste of taxpayers' dollars.
    I was at the lead table with the Fisheries Council on the regulation development and the management practice, so I know what I'm talking about there. In terms of any measure of accommodation, there was nothing.
    In terms of how this is going to affect, or how it has affected first nations, certainly if we're going to be changing the definition of what we're going to protect, we need to look at what's happening today, but we, as first nations, and yourselves, as government, are also charged with looking out for many generations yet to come and that was found in the Tsilhqot’in decision. When we think about this now, when I turn my attention to the changes that have been made and defining an aboriginal right to fish as a fishery, and that only an impact to the fishery is going to trigger the protection of the environment, that is off base. It's inconsistent with the Supreme Court of Canada laws, what comes out of the Ahousaht nation case, what comes out of the Sparrow decision, and so forth.
    What we're finding with the government is that, even though the Supreme Court has given very clear direction on first nations aboriginal rights on this particular topic, you're finding an end-around to try to define, limit, and find a way so we don't have to protect the very areas that are going to sustain the fish for the fishery. If we're going to just focus on a fishery rather than the protection of habitat, it's a very sad day in Canadian history.
    With respect to co-management, I had one of our local chiefs, Chief Joe Alphonse, who I grew up with and who is a very good friend of mine—
    He's a good man.
    He is a very good man. I grew up with him. We had him speaking with Minister LeBlanc and we talked about co-management.
    Today I'd like to ask you, in terms of co-management, if we were to move forward, if the right path forward is co-management, where would the final say lie? Who would have the responsibility of the final say in the fisheries in terms of co-management of a fishery or the areas?

  (1650)  

    If we want to envision co-management by first nations on a fishery in British Columbia, we have to first accept that there are incremental and cumulative impacts to the fish. That's not something we saw embraced by the previous government. I'm hoping it's one of the things we're advancing with the existing government.
    Consider for a moment that there is no knowledge about where Chief Joe Alphonse's sockeye goes when it leaves the Fraser River. It just leaves the river. We have the Pacific Salmon Foundation doing some great work through the Salish Sea marine survival project, where they have tagged, tracked, and mapped outward-migrating wild salmon smolts. Now we have a sense of where they're going. If we could expand that coast-wide, we would develop a fundamental and important management piece for wild salmon in the most critical portion of its life cycle. I've advanced this with Minister LeBlanc.
    If we could expand Dr. Kristi Miller's lab in DFO to do real-time genetic analysis, we could then do sampling of these smolts as they go out on their migration route and get real-time impact identification through her work.
    Whether it's a fish farm, a mining operation, a logging operation, or a garbage dump that's seeping into the river, we can then identify what needs to be changed in terms of the early management of these fish, so that when they get out in more numbers to the ocean, there's a greater opportunity for them to return.
    We're making use of leading-edge science. Who better situated to do that than first nations people who live in these isolated territories, have the knowledge of the lands and the rivers, and have the access to accomplish this? We could fulfill the goals that this government has now put in front of us in terms of science-based decision-making.
    Mr. Simms, I can see you're getting antsy.
    I don't want to interrupt your train of thought because it was a good one, but we are a bit over time. Is there something you want to add in one sentence or less?
    The First Nations Wild Salmon Alliance held a two-day strategic dialogue session on salmon. I can make that available. I really recommend that everybody here read it because it is the path forward from first nations across British Columbia. It also fits hand-in-glove with the existing government's commitments on virtually everything for first nations.
    Thank you, sir. We have to move on.
    Next is Mr. Hardie, please, for five minutes.
    Thank you, Mr. Chair.
    Thank you all for being here.
    For Ms. Fuller and Chief Chamberlin, I have a quick question flowing out of the Cohen commission. Justice Cohen recommended that the DFO basically get out of the aquaculture business altogether. Do you support that?

  (1655)  

    Yes, unequivocally.
    Ms. Fuller.
    Yes.
    If you have some “whys”, those could probably come up in another study I'm sure we're going to do.
    To Mr. Bonnett, and Mr. Black, who hasn't had a chance to say anything yet, this is related to the other committee I'm on, which is studying another aspect of this.
    Have you had any issues with navigation complaints about putting fences across your drainage ditches? If you can float a canoe on it, you know....
    A voice: Oh, oh!
    Okay. We'll move on from there.
    I would ask both of you to think about best practices for drain ditch maintenance and to consult with the other parties who have a stake in this, that is, the people who have a concern about fish habitat. What are best practices that can absolutely minimize the risk of damages in terms of timing, the way it's done, and all of that? I think it would be very worthwhile for you to do that and submit something to this committee so that we can at least initiate a discussion.
    In terms of restoring HADD protections and all the rest, we heard early on and have heard in other discussions some of the reasons the changes were made. Those changes were made, basically, to assist municipalities in their public works.
    Chief Chamberlin, I don't know if any of your communities got tangled up in additional costs and times for having to have a more stringent layer of analysis done on public works. Maybe you could comment on that. If we return them, we obviously would like to try to avoid the problems we had before. Were the problems related to the stringency of the regulations or were they simply related to the lack of resources in the DFO to process things in a more timely manner and to help municipalities avoid some of these costs that they clearly were facing as a result of the old regulations?
    You can both answer that.
    Go ahead.
    I can take a crack at it first.
    Some of the issues we face are more about the nature of the application. You mentioned putting HADD back in place. The concern I would have with HADD being back in place across the board, or even if there were exemptions or special policies put in place for municipal works and drainage on farms, is that there's always the problem of interpretation at the local level.
    That's where we saw a lot of inconsistency, depending on the DFO office. One would come in and say, no, there's no problem, go ahead. Another one would come in and it would be a whole bureaucratic process that you had to go through. I guess that would be the caution about just putting HADD back in place without having some clear and enforceable guidelines that spell out how you treat a municipal drain.
    I'm going to switch hats. I'll go back to 25 years ago I was a municipal councillor and we had the same issue. If a culvert washed out in a storm event, sometimes, with the process for getting that culvert reinstalled, you might go six months with the road completely blocked off. But the damage was done. If you could drop that culvert in the next morning, it would be over. It was like—
    I'd like Ms. Fuller to have a chance to talk.
    Is this an issue, perhaps, of regulations that need to be made better, or of more resources at DFO to handle the analyses that need to be done?
    I think it's a combination. There needs to be a reinstatement of resources. I think, though, that working with municipalities and understanding public works and being much more flexible and efficient in terms of.... That is exactly the problem. We shouldn't have to wait six months to get approval to replace a culvert.
    That is all a regulatory process issue, and it can be addressed. I think there was lots of work with the Federation of Canadian Municipalities to try to solve this. A lot of work was being done between 2006 and 2010 with stakeholders on better implementing the habitat sections of the act. That process all stopped.
    One thing we had asked for as conservation and environmental groups was to have a multi-stakeholder meeting so that we could discuss issues with the agriculture federation and municipalities on how we can achieve habitat protection in a way that works for everybody. Unfortunately, the funding for the national fish habitat coordinating committee was cut, so there was no advice from environment groups and there was no approval level for that multi-stakeholder meeting. I've been involved in lots of multi-stakeholder processes and can say that sometimes you can reach agreement quite easily, if given the place to do it.

  (1700)  

    Thank you, Ms. Fuller.
    Thank you very much.
    We're going to go to Mr. Donnelly for the final three minutes.
    Since the clock shows that there is still 15 minutes to go before we get into committee business, I'm going to do as we normally do when we exhaust two rounds. We divvy it up among the three parties.
    I'm looking at about four minutes for each question, but I'm pleading with you to please keep within the four minutes. I've been quite flexible thus far, but we really want to take a break and be able to come back at 5:15 eastern time.
    Mr. Donnelly is next, then, for three minutes, and following that will be four minutes each to summarize.
    Thank you, Mr. Chair.
    I want to keep on that theme for a second and make a comment and then ask a question in my three minutes.
    I come from a riding in the lower Fraser River, where much damage to the fishery has already happened—over decades, in fact—and it has happened because of permits for housing, commercial buildings, roads, bridges, etc. In the Fraser estuary, that very productive and critical area for fisheries habitat, some scientists say about 70% or more of the area has been lost because of cities, resource extraction, farming, etc.
    It's important to look at this when we're talking about jurisdictions. I think cows and fish was mentioned, a provincial program, so that it's a provincial jurisdiction. We're talking about some issues that are in municipal jurisdictions, and then, obviously overlaying these, is the Fisheries Act, which is federal jurisdiction.
    We're talking about things such as farmers' ditches or drainage ditches for housing that are being considered habitat now because of the past, when so much valuable fish habitat was degraded and is gone. It's paved over; it no longer exists. I think that's part of the issue that DFO officers and the department have to contend with.
    I want to switch gears for a second, though, back to one of Dr. Fuller's recommendations on stock rebuilding plans. Could you elaborate, in the few seconds left, on what legalizing stock rebuilding plans would look like for you under the Fisheries Act? You mentioned the Magnuson-Stevens act, for instance.
    I think there's very good guidance already in the laws of the United States around rebuilding and also with the common fisheries policy in the European Union. We have commitments through the CBD, the Convention on Biological Diversity, to rebuild our fish stocks.
    We need to put the words in our act. We should have a Fisheries Act that is responsible for rebuilding our fish stock. It's not too much to ask, and I think it would solve many of the problems around not listing under the Species at Risk Act because we don't want to shut down fisheries. I fully support sustainable fisheries, but the fact that we have no legal obligation under the Fisheries Act to rebuild our fisheries should be a bit shocking.
    Mr. Donnelly, are you done?
    Yes, I'm done.
    That being said, let's go to what we affectionately call the lightning round.
    We're going to go to the Liberals.
    Mr. Finnigan, please proceed for four minutes.
    Thank you again.
    I have two or three quick questions.
    With all due respect, Chief Chamberlin, are there any practices within your community that you think could be improved to enhance the protection of the Fisheries Act? If there are, could you elaborate on some of the things that you are doing or have been doing?
    To improve the situation, I'll use the clam digging as an example in our territory. We've been pushing DFO to open up other areas for clam digging, because we understand that places are getting over dug. There was a time when it was managed in a different manner consistent with who we are. The digging practice has evolved and so forth. We need to have that understood and have that put in place, so we can see the benefits of these stocks bouncing back again.
    What we've been doing as the Musgamagw Dzawada'enuxw people to preserve our stocks is that we haven't fished them for a very long time. We've watched the steady decline in the Broughton Archipelago. We attribute this to the open net-cage fish farms. We're watching the government expand.... The previous government, against all good sense, expanded these fish farms.
    Without the resources to participate, we're hamstrung to begin with. I find it rather fascinating to talk about bureaucracy getting in the way of us trying to do good work when the government had focused on streamlining and harmonizing everything so industry could do their work, but we're not doing the same when we want to protect the habitat.

  (1705)  

    Thank you.
    I'll leave this open.
    Do you feel that co-management of the act with the province or other entities is helping, or is this just duplication of a lot of red tape? Do you think that DFO should be managing the act itself, with the province following suit? I'll leave that open to Mr. Bonnett or to Ms. Fuller.
    Very quickly, I think that communication has to take place between federal, provincial, and conservation authorities. All three are going to be involved in it. We've gone far enough down that path, and that's what's happening. I think there has to be a better understanding of what the roles and the responsibilities are within the different regulatory agencies.
    On co-management, I think you'll see there are many coastal communities and fisheries that would like to have co-management, because it gives them a stake in the game and it increases potential for stewardship. When it comes to understanding both science and management, when it's just top down, there isn't a shared sense of responsibility sometimes.
    I think it's accepted science that we do have climate change, and it's not going to get better anytime soon. With that we will have floods, and we will have bigger storms, bigger floods, and bigger acts of nature. When we go to write this new act, how or should that be taken into account? How can we mitigate these coming storms?
    On marine fish populations, I think we can take the lead from the United States on this. At least in the northeastern U.S., they have done an assessment of vulnerability of 86 fish stocks to climate change. They're taking that into consideration when they develop their management plans. I think we can do that in Canada, and we have many of the same species. We can look at the vulnerability of various species and habitats to climate change, and we can act in a precautionary manner, which is why I suggest that both the precautionary principle and the ecosystem approach be included in the act, because then we have a way of doing that work.
    Should we also look at, for example, culling a certain species, if we need to, in the act?
    You could come and cull all the Atlantic salmon in B.C.
    Voices: Oh, oh!
    I can....
    I'm going to invite some of my Mi'kmaq friends to come get their fish.
    What I would suggest to you in terms of climate change is to not only look at the species that are going to be vulnerable but engage with the isolated and rural communities of first nations that absolute rely upon these resources to survive. They are going to be the leading edge of impact on global warming.
    When we look at different migratory species of fish, let's find things and identify what we can reach out and touch and make better. Of course, that means close containment fish farms in B.C.
    Thank you very much, folks.
    Mr. Sopuck, you have four minutes.
    Thank you. I was very interested in what our colleague, Mr. Donnelly, said when he described the destruction of habitat over some 25 years in the Fraser Valley. The point is that was all done under the old Fisheries Act. It was clear the old Fisheries Act didn't solve all the problems.
    I should also make the point that the Salish Sea project was funded by our government. I worked closely with Dr. Brian Riddell and Mike Meneer of the Pacific Salmon Foundation to get that project through. I'm pleased that the current government seems to be continuing with it because it's a very good project.
    Ms. Fuller, you made the point that you'd like to see the level of ministerial discretion reduced. Also, you're very much in tune with your colleague from the World Wildlife Fund, Elizabeth Hendriks, who, in her brief, talked about “removing the absolute discretionary power of the Minister of Fisheries and Oceans in fisheries management decision-making”.
    As an elected official, I'm shocked by both of those statements from your group and WWF. Whatever happened to the citizen's right to redress, the citizen's right to appeal a decision that a government makes? The final decision is not made by an elected official nor does it rest on the desk of an elected official. Where is democracy in this? This seems to be a common thread in the environmental activist community, to reduce ministerial discretion, which ultimately will reduce the ability of local key people, commercial fishermen, anglers, to seek redress from a government that makes a decision they may not like.
    Obviously governments make decisions that people do not like, but at least citizens have the right of redress. Why do the environmental groups, by and large, want to reduce the role of elected officials in environmental decision-making?

  (1710)  

    I would say that it's because we have seen when there's a lack of adherence to science advice. Perhaps if the minister at the time had made different decisions around the management of the cod stocks, many citizens would not have had to face the impact of that decision.
    I did a lot of research. I'm trying to find management decisions that DFO had made. Try to go on a DFO website. It's getting a little better now but to find where management decisions have been made around fish stocks and the reasons why is quite difficult.
    It is too easy for conservation groups, industry, whoever, to be able to lobby the minister on a particular decision and there needs to be a framework around how decisions are made and why.
    Of course.
    Then we would get better conservation outcomes.
    Of course, I see the ability of citizens to lobby elected officials as a precious right that started with the Magna Carta. Obviously you and I think very differently. Laws should be about people. People should come first.
    I'll now turn my time over to Mr. Doherty.
    I don't even know how to follow up on that one.
    Chief Chamberlin, I appreciate your comment that the government, in consult, should be with the communities that are going to be the most impacted. The rural communities are going to be the most impacted.
    We'll go back to the aquaculture and the farm fisheries again. I'll ask in terms of the first nations that are dependent on the coastal communities, the first nations that have signed on in economic benefits to that.
    How do we weigh potentially moving those businesses and those opportunities from those communities to potentially land-based systems? There would be lost jobs potentially. How do you weigh that when you're having your conversations with colleagues?
    I weigh that quite clearly. My understanding, and this is first-hand knowledge in our territories and our neighbours directly to the south of us who are very supportive of fish farms. They don't live in the territories. They live in urban settings such as Campbell River. By and large they do their hunting and fishing at the local Save-On-Foods store. They do quite well.
    I see that the nations, not all but the ones in and around our territories, the ones that are absent from the territories, are the ones that are supporting the fish farms in the territories.
    Thank you, Chief Chamberlin. Sorry, I have to stop it right there.
    Mr. Donnelly, you have about four minutes, please.
    Thank you, Mr. Chair.
    Before I ask a question, I want to draw attention to a letter that I received, dated November 15, by Jordan Point, the executive director of the First Nations Fisheries Council of B.C. He outlines his concerns and confusion about how to actually get in front of this committee and make comment, or how to get the nations that are a part of his council in front of the committee. Our committee clerk responded, I think very well, on November 16, outlining that.
    However, I want to emphasize that obviously there is still a lot of confusion out there in the public about whether it's the website or what, in terms of how you get in front of this committee, how the decisions are made, how the witnesses are chosen, who is selected and who isn't. I just wanted to add that.
    My question in the short minutes that I have is for Dr. Fuller. I want to go to you about enforcement and improving enforcement. Could you clarify if, in your organization's mind, it's more of a legal issue of changing the act. Is it more of a resourcing the department issue, or is it a combination of both?
    I would say that it's a combination of both.
    I think you have to have a strong act, so that it is enforceable, and then there have to be resources, enforcement on the ground. I do think with the more people who work together, you get more compliance, but unless you have some enforcement, you get no compliance.

  (1715)  

    In terms of the legal part of the act, do you see any specific changes that are necessary around improving enforcement?
    I'd have to think a bit more about that. I can't think of the specific aspect of the act and the wording that I would suggest, but I will get back to you on that.
    You do want to see some improvement in the wording. Maybe there's some clarification, as well, from other organizations that want to see improvement on the defined rules of enforcement.
    Also, obviously if there's a lack of enforcement and we can't get good information because we don't have the enforcement officers, the boots on the ground as they say, it's really hard to make good planning decisions, etc. Would you agree?
    Yes, it's very hard to know if the act is being upheld, or whether the law is being broken, if you have nobody watching.
    In the one minute I have, maybe I'll ask this to Chief Chamberlin and Mr. Bonnett.
    What's the one thing you would like to see this committee do as a result of this consultation?
    One thing I'd like to see is the reinstatement of the HADD permitting.
    Thank you.
    Mr. Bonnett.
    Look at the emphasis on conservation and stewardship initiatives.
    Thank you very much.
    Thank you, Mr. Donnelly.
    With regard to the issue you brought up earlier, I also spoke to the gentleman in question in person. He expressed a great deal of interest. As we've mentioned in committee before, it's not written in stone. We do have additions coming up, suggested by you, and we'll address that in the next segment. Unfortunately, it will be in camera, but we will be addressing that very shortly.
    Thank you.
    I want to thank the witnesses for coming in, Mr. Black, Mr. Bonnett, Ms. Fuller, and Chief Chamberlin. We truly appreciate your coming here today.
    We're going to break for a few minutes to go in camera, and let's please be just a few minutes.
    Thank you.
    [Proceedings continue in camera]
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