Thank you, Mr. Chairman, co-chairs, members.
My name is Otto Langer. I am a fisheries biologist. I've been involved in fisheries biology across Canada for about 50 years now. I spent about 33 of those years with the Department of Fisheries and Oceans and Environment Canada.
Some of the comments I make will go beyond DFO and amendments to the habitat section of the Fisheries Act, and the entire Fisheries Act. I think a lot of my comments relate to Environment Canada, and at times even to Transport Canada.
Habitat and water quality has been a political football in government in the 50 years I've been around. When certain governments are in place, they want to turn off the civil service, and would like to hide the Fisheries Act. When I was with government, at times we were told that no one wanted to see a copy of the Fisheries Act on our desk. Unfortunately, the resource base suffers when we see these ups and downs. Now we're into about a 16-year down cycle, unfortunately.
Looking at the Fisheries Act and amendments we can make to it is only a quarter of the issue. You need good legislation; however, you need good political direction with some balance of science in that political direction. You need a strong will within the agencies to do the job. Right now that doesn't exist. You need the organization and the resources to do the job.
We've reached a low point in the last 50 years. Our legislation has gone downhill. Political direction has been terrible in the recent past. There is no will in DFO or in Environment Canada to do the job. The organization is suffering a lot, and the resources have been cut, especially in 2012.
I've done a great deal on the history of the Fisheries Act and how the work has been done, including affidavits to the B.C. Supreme Court. I was considered an expert on the habitat pollution provisions of the Fisheries Act. That was tendered as an affidavit. I'm not going to go into that. I think my brief is 100 pages long. I just want to dwell on the first seven pages.
Prior to 1967, and my joining the Department of Fisheries and Oceans from the University of Alberta, there was no real habitat law of any sort in the Fisheries Act, other than to look at blockages from dams, low flows below dams. A section of the Fisheries Act said that when you were logging, you couldn't put debris in the stream. However, we were losing a lot of streams in British Columbia due to gravel companies, logging road builders. They were mining gravel directly out of the spawning beds of salmon streams. So in 1967, the government was convinced to put through an order in council, and the B.C. gravel removal order was put in place. That is the beginning of a habitat law in Canada.
Then in 1976, some of us campaigned for a couple of years to get habitat protection into the Fisheries Act, and Parliament, in its wisdom, passed the habitat section, which we called HADD, harmful alteration, disruption or destruction of fish habitat. We saw that as a giant step forward. That seemed to create a lot of confusion in Canada.
That was followed up with a defining policy, which some people referred to as the no net loss policy. It was a national fisheries policy, and it received a lot of good feedback from around the world in being one of the first sustainable development policies on earth.
In the 1960s and 1970s we went from a rapid net loss of fish habitat to no net loss and the HADD provisions of the Fisheries Act. We didn't achieve zero loss. We were at the point of what I would call a slow net loss. In the 1980s, we reviewed projects through the FEARO process, the federal environment assessment review office. We had no Canadian environmental assessment act. We had regional screening coordination committees.
Quite a good job was done without legislation, just orders in council. In 1995, CEAA came along. Unfortunately CEAA was greatly watered down in 2012. For instance, in British Columbia, it went from 495 to five reviewable projects. An example is a jet fuel terminal in the Fraser River. Probably one of the worst places to put a jet fuel terminal is in the middle of a world-class estuary. In 1988, when the airport consortium tried to put it in, the federal government held a proper FEARO review, and the project was rejected as too great a risk to the Fraser River.
In 2011, the feds weren't even there. They had delegated the reviews on the Fraser River to the Vancouver Port Authority, and the feds didn't do a review of any sort. Environment Canada and Fisheries just disappeared from the scene. The project is now approved and it's 10 times larger than what was rejected in 1988.
There's something wrong in Canada right now in terms of where is DFO; where is the legislation, and we're at a point of rapid net loss of habitat again.
One big thing that we lost in CEAA was the fisheries law trigger. If there was a harmful alteration, it triggered a proper environmental review. The Harper government did remove that, and that was a giant setback. That also applied to the Navigable Waters Protection Act, as that act and the Fisheries Act did complement each other.
In summary, I'd like to say that here we are in 2016 and we've lost habitat protection provisions in the Fisheries Act. We've lost connections between habitat protection needs, between CEAA, between DFO, Environment Canada, and NWPA. We've lost habitat protection offices and staff. There's no habitat enforcement, despite what the DFO bureaucrats and past ministers have said. We have next to no public review in terms of environmental assessments. Key habitat protection has been delegated to the industry—it has self-compliance—and to the federal harbours. Now we've put the wolf in charge of the sheep. That's where we sit in Canada.
There's a lack of connection of fish to the overall ecosystem health. If we go to DFO, we'll see how they have an ecosystem management branch that means nothing. We're doing less ecosystem work now than we probably ever have in the past, and the laws and the agencies are fragmented so much we can't bring the ecosystem together.
The recommendations I would make are the following:
Restore section 35 to the act to be more or less worded as it was in the past. That was a giant step forward to protect habitat in Canada, and it was basically neutered or butchered by the past government.
We should retain generally the definition of what is fish habitat in Canada.
We should eliminate the 2012 provision that it's illegal to permanently or seriously harm fish habitat or fish exposed to a commercial, aboriginal, or recreation fishery.
Fish habitat law now should relate to any waterway in Canada that supports fish or a fishery, not just fish exposed to a type of fishery.
Any significant harmful alteration or destruction of habitat must be subject to a proper environmental assessment under CEAA. It must be meaningful, transparent, and allow maximum public input. That's not the case right now.
We should develop a habitat violation ticket system for lower-level violations and retain the general provisions for major offences.
We have to restore reasonable resources and scientific capability to DFO. That's so essential. We've had a terrible recruitment of many managers in the last 12 years. They're not there to do the job; they're there to basically play political football. The present minister has to get over that problem somehow. A lot of key people who had a lot of experience were basically laid off. The agency has to dig itself out of the hole.
We need to have a proper and effective enforcement program. We have next to nothing.
In my brief, on page 8, there's a graph indicating where enforcement investigations have gone in Canada. They've gone right downhill from about 1,800 in 2002 to about 300 in 2010, and they're now almost at zero, especially when it comes to prosecutions. I think in 1998, we had 48 convictions in Canada; under habitat law in 2008 we had one; in 2015 we had zero. If that doesn't indicate a problem, we have a real problem on our hands.
We have to recognize DFO as being separate from fish farming. I think fish farming should be given to another ministry, like agriculture. DFO is still in a great conflict of interest where it promotes fish farming and pretends it also protects habitat.
The last comment I'll make before I close is that I know you'll be meeting with DFO civil servants and high-level deputy ministers. In the 33 years I have worked with DFO, things were good in the first several years. It was almost—I hate to use the term—the golden years, but people had the will, and they did the job, and I think they were quite honest. Now we find politically inspired staff at very high levels in the agency, including the regional offices. I think there's a tremendous lack of honesty in DFO, and the public has no trust in them at all. I think all you have to do is look at some of the material they produce on the Internet that's available to all Canadians.
We look at page 4 in this document on projects near water. It talks about how the amendments to the Fisheries Act in 2012 brought everything together and consolidated it. Well, the exact opposite has happened. Now pollution is looked after by Environment Canada. Serious offences are looked after by DFO. Aquaculture is looked after by another part of DFO. If it involves any nuclear facility, the Canadian Nuclear Safety Commission handles the Fisheries Act on that. If it involves an energy project, the National Energy Board looks after the Fisheries Act on that.
Certain provinces, such as New Brunswick, Nova Scotia, and Prince Edward Island, look after the federal fisheries. We've delegated half of that protection to the national harbours, 17 of them in Canada. How can the bureaucrats say that they consolidated it and brought it together with the Harper changes? The exact opposite is happening. In my experience in the government, when we pretend we've brought it all together and we say this, you can be 90% certain that we are going in the opposite direction. That's what's happening right now.
Thank you for the opportunity to speak here today. It's a pleasure to be here with Mr. Langer, whom I've known for many years.
My name is Linda Nowlan, and I am a staff lawyer with West Coast Environmental Law in Vancouver. As an example of the type of work I do for this organization, which has been here for more than 40 years—I haven't been with it for 40 years, though—I've given a dozen workshops around the province on fish habitat protection law for community and streamkeeper groups.
We've prepared two briefs. The first is “Scaling up the Fisheries Act: Restoring Lost Protections and Incorporating Modern Safeguards”. The key messages from this brief were endorsed by over 45 groups. I sent a copy to each of you earlier this year. The second is a new one: “Habitat 2.0: A New Approach to Canada's Fisheries Act”, presented jointly by West Coast Environmental Law and FLOW Canada. FLOW is the Forum for Leadership on Water, and I am pleased that Tony Maas is here today from FLOW.
A summary of the review we commissioned on international best practices on fish habitat is included as an appendix to our new brief. I am going to review the six recommendations in “Habitat 2.0”, but first I'm going to do a bit on background.
In 1977, former fisheries and environment minister Roméo LeBlanc introduced a fish habitat regime to Parliament, and he explained why he was doing that: “The chain of life extending to the whole open ocean depends on bogs, marshes, mudflats, and other 'useless-looking' places that ruin your shoes. Biologists have likened these areas to the cornfields and wheatfields on the ocean.” He urged Parliament to protect “the irreplaceable nurseries of fisheries well-being”, and these words ring true today. All parties supported that bill and urged the minister to give it swift passage, which it did receive. Fish and their habitat need help more than ever today, so the government's commitments to restore the lost protections and introduce modern safeguards are very welcome. Both of our briefs address both topics.
The Committee on the Status of Endangered Wildlife in Canada, or COSEWIC, ranks freshwater and marine fishes very high on the danger list. In fact, the chair of COSEWIC says that, as a group, they are the second most endangered group of species in Canada, and that the leading cause of risk for most of these freshwater fishes is habitat loss and degradation. The numbers get worse every year, and the numbers of fish at risk have increased since the amendments. I have other examples of fish decline after the 2012 legal amendments, which I'd be happy to address in questions.
For more background, I'd like to draw the committee's attention to the words of the Supreme Court of Canada, which in 1992 emphasized that environmental protection is “one of the major challenges of our time”. In 1997, the same court said that this was “a public purpose of superordinate importance”. That decision referred favourably to the need for national environmental standards, and that's what Parliament intended.
Parliament saw fit in the Constitution to give exclusive legislative authority over seacoast and inland fisheries, as one of “the great questions which affect the general interests of the Confederacy as a whole”, to the national Parliament. Those are the words of John A. Macdonald, stated during the Canadian Parliament debates on Confederation in 1865.
The 1868 Fisheries Act included provisions to protect fish habitat, not just fisheries. Our brief contains a number of examples from published legal cases across the country that show why we need strong habitat protection to deter harmful activities that damage fish habitat, destroy it, or alter it, sometimes temporarily.
Fish habitat protection is not only a national concern, it is an international legal obligation, which is another reason that we need national standards that only the federal government can promote. I won't go into the full range of treaties that spell out this obligation. Some are in the brief.
There is wide agreement that the 2012 amendments in the Fisheries Act weakened habitat protection—weakened, not eliminated. Perhaps the best summary of how the amendments were viewed came from Mr. Justice Cohen, who conducted a three-year judicial inquiry, from 2009, into the cause of low sockeye return to the Fraser River. I'd be happy to say more about the Cohen commission's findings and Mr. Justice Cohen's findings in questions.
There are two ways in which the current act is not an effective legal tool to protect fish habitat. First, the sole court case I could find interpreting the new standard finds it weak. Again, I'm happy to talk more about that in questions.
Second, and Mr. Langer touched on this, enforcement is not occurring. It appears that there has not been a single charge laid relating to a violation of the new section 35 since the amendments came into force in November 2013. That comes from information from the DFO annual reports to Parliament over the past two years.
The reason for the lack of the charges is unclear, but many experts believe it's due to uncertainty about the meaning of the new statutory language. If you don't know what it means, you're not going to go lay a charge about it.
In contrast, in 2001-02, 54 charges were laid. I have more numbers if you want them. Contrast this record with recent convictions and fines levied against offenders for violating the prohibition on depositing deleterious substances into fish-bearing waters. Last year, 92 charges were laid under that provision, with a further 28 laid for violation of the metal mining effluent regulations. One guilty plea resulted in the largest environmental fine in Canada, $7.5 million from a Quebec mine operator. Prosecutions are an essential part of the regulatory tool box. If we don't have any, there's a problem. Clear language in the law is needed for successful prosecutions.
Now I will go through our six recommendations quickly, focusing on the first four.
The first is to restore the prohibition on HADD. You've heard most witnesses recommend that. Restoring these terms will provide guidance due to the existence of 40 years of judicial interpretation of those terms, but a new HADD section could also modernize the act.
We recommend that if HADD is reinstated by Parliament, it include new features. Incorporating relevant sections from DFO's numerous unenforceable policies on habitat protection directly into the act would help fill the legislative vacuum noted by leading marine law expert Professor David VanderZwaag.
We could have an expanded and modern definition of fish habitat in the act. We could put factors into the act which must be considered when authorizing HADD. For example, how important is the habitat? Is the impacted habitat type in low supply, of high value to fish production, or both?
Second, the act must protect key elements of fish habitat, including environmental flows. The Fisheries Act should provide a legally binding national flow standard to conserve the quantity, timing, and quality of water flows, also known as environmental flows.
CSAS scientists point to this issue as a deficiency in the current regime and say that a national standard is needed. The act should define conditions of flow alteration that constitute HADD based on science advice from the Canadian Science Advisory Secretariat and used by DFO. Our brief contains more information on that. These are key changes, and if enacted, they will demonstrate the government's commitment to modernize the act.
Our third recommendation is to protect key areas of fish habitat. The new act contains a mechanism to designate ecologically significant areas by regulations. Unfortunately, this provision has not yet been used. It's a good provision. We recommend that it be used.
For example, eelgrass beds of particular significance could be designated as essential fish habitat, and therefore off limits to development. Flora Bank at the mouth of the Skeena River is an example of this type of habitat. I would be happy to talk more about that during the question period as well.
Various DFO policies indicate that some habitat areas should be off limits to development. These include the two wild salmon policies on either coast, the policy for managing the impacts of fishing on sensitive benthic areas, and the policy on cold-water corals and sponges.
Another potential no-go zone is limited and imperilled spawning habitat for marine shore spawning forage fishes such as surf smelt, capelin, and Pacific sand lance. For example, in Washington State, such beach habitats are listed and protected as critical wild salmon habitat.
Our fourth recommendation is to protect fish habitat from key activities that can damage habitat, such as destructive fishing practices and the cumulative effect of multiple activities. We adopt Dr. Fuller's evidence to this committee on the first point. On the second point, cumulatively, minor works are considered to pose the greatest threat to fish habitat. To ensure that the cumulative impact of minor works and activities are understood and considered, we recommend, as have other witnesses, that the act require the creation of an accessible database so that DFO knows what's going on out there with cumulative impacts, and can then take more steps.
We agree with Mr. Langer that for the minister to fulfill his mandate to restore lost protections, environmental assessment triggering needs to be restored to the Canadian Environmental Assessment Act.
Our fifth recommendation is to protect fish habitat from key threats, such as a changing climate.
Our sixth recommendation is to modernize the governance of fish habitat. Specific provisions on co-governance and co-management of fisheries must be developed collaboratively with first nations. This limited committee consultation process is not the appropriate forum to develop those provisions. That must be done through a nation-to-nation consultation process.
In conclusion, a new approach to habitat, “Habitat 2.0”, would ensure healthy fisheries for generations to come, the overall goal for the mandate in the mandate letter by the Prime Minister. Implementing these six recommendations would help achieve that goal.
I will end as I started, with words of wisdom from the former fisheries minister in 1977, the Honourable Roméo LeBlanc:
||If our laws can protect the water, if we give the fish a place to live, we can have a better place for man—
||The work of constant monitoring and restraint where necessary is hard, but the alternative prospect of forever losing stocks or species of fish is not acceptable.
|| The fish and their waters are a public resource. With the changes to the Fisheries Act that I am asking for, my department will be better able to carry out the public responsibility of guarding them.
Thank you, deputy and Mr. Chair. Hello, bonjour
, committee members.
My name is Tony Matson, and I am the chief financial officer for the Department of Fisheries and Oceans and the Canadian Coast Guard. We are delighted to appear before you this afternoon to provide an overview of the Department of Fisheries and Oceans' supplementary estimates (B) for 2016-17.
I am pleased to be here today with the associate deputy minister of fisheries and oceans, and the commissioner and deputy commissioner of the Canadian Coast Guard. I have prepared very brief remarks. This should allow plenty of time to go through any questions that the committee may have.
Before I provide a quick synopsis of the financials, I would just offer a simple reference that we are currently in the midst of the second supply period. Section 26 of the Financial Administration Act requires all spending to be approved by Parliament. Supply bills are referred to the committee, where the contents are studied before voting actually takes place, hence our presence here today.
In these estimates we are seeking Parliament's approval for a total of $26.5 million. This would bring our approved authorities to date to $2.607 billion, as $2.581 billion had previously been approved by Parliament through the main estimates, supplementary estimates (A), and transfers from central votes to our carry forwards from last year.
The funding summary is presented on page 2-31 of the supplementary estimates publication,
or page 2-70 of the French version.
To summarize, we are seeking $19.9 million in operating expenditures, $1.6 million in capital expenditures, and $5 million in grants and contributions.
Budget 2016 provided funding over five years starting in 2016-17 to Fisheries and Oceans Canada and Natural Resources Canada to support maritime conservation activities, including the designation of new marine protected areas under the Oceans Act.
We are seeking $11.8 million in these supplementary estimates toward achieving our target of protecting 5% of Canada's marine and coastal areas by 2017, and 10% by 2020. This commitment is clearly reflected in the mandate letter of Minister LeBlanc.
Budget 2016 also provided funding over five years starting in 2016-17 to seven federal departments and agencies to adapt to climate change impacts by implementing programming focusing on building the science base to inform decision-making, protecting the health and well-being of Canadians, building resilience in the north and indigenous communities, and enhancing competitiveness in key economic sectors.
We are seeking $2.6 million in these supplementary estimates to continue the work to assess the risks for the department caused by climate change in Canada's three oceans and major inland waterways, to fund research to understand the impacts of climate change, and to apply the science to facilitate departmental adaptation to climate change.
We are also seeking $3.4 million for the government's review of the Fisheries Act and early action to strengthen monitoring. The outcome of this initiative is to provide Canadians the opportunity to participate in the review of the changes to the Fisheries Act and to support the restoration of lost protections and incorporation of modern safeguards.
For the Canadian Coast Guard, we are seeking $1.7 million in funding to strengthen marine incident prevention, preparedness, and response in waters south of the 60th parallel. An additional $1.5 million is being sought for the procurement of two new survey and sounding vessels.
The remaining items listed on page 2-31 of the supplementary estimates,
or page 2-70 of the French version
are largely technical and routine in nature. This includes accessing royalties from intellectual property, or the re-profiling of funding to align financial resources to updated project timelines, or to match recipient requirements in the case of grants and contributions.
As well, we are seeking a relatively modest number of internal vote transfers that are net neutral to the overall departmental financial base. This is a clear example of sound resource management stewardship, where we are seeking your approval to use existing reference levels to meet our program demands by placing the funds into the right bucket.
As an example, the department is transferring $600,000 from its operating vote to its grants and contributions vote to support the Anqotum resource management program to develop a restoration project for Little Southwest Miramichi River, New Brunswick. This will create a habitat bank to offset possible damage incurred by small craft harbours projects that may harm commercial, recreational, or aboriginal fisheries.
We also have a small number of transfers to and from other government departments that are also net neutral to the overall government financial framework. These are listed on page 2-32 of the publication,
or page 2-71 of the French version.
I am confident that if there are any questions, we can get to them.
I would like to take this opportunity to thank you for allowing me to complement Mr. Stringer's opening remarks on our supplementary estimates for this year. My colleagues and I would be happy to entertain any questions you may have.
Thank you for the question.
It continues to be both of those things. What I would say—and I think I said this at the time, as well—is what's most exciting about it is that it's truly galvanized the department and the stakeholders, and even the fishing industry and others, to say, “Okay, this is going to happen. How are we going to make it happen? What sorts of things are we going to do?”
I would say two things. It's quite different for 2017, which is the 5%, and 2020, which is the 10%. We are now going through an exercise of identifying the sensitive areas that we have already identified through science. Those are corals and sponges. These are key rearing areas and spawning areas, and we're looking at areas that need protection. We are also looking at what the best tools are for those protections, understanding that creating formal MPAs, marine protected areas through regulations takes time. We're going to have to use other measures for the protection, and that's the exercise we've been going through this fall.
We've also been talking to the fishing industry, the oil and gas industry, the shipping industry, and others to make sure they're part of the discussion. We've been engaging with environmental groups and academics, who have a lot of this information. That's been the exercise. It's also about trying to figure out what the criteria are that we need to say that we've done this, and to be able to say that this counts as x per cent.
In addition, there have been a number of specific closures. There was a significant canyon closure off of Nova Scotia, which was announced, I think it was in early September. There was Darnley Bay in the north, which was announced very recently. There have been others.
The other thing I would say is that it's not just DFO, even in the federal government. Parks Canada does national marine conservation areas, and they are working on Lancaster Sound, which would get 2%. That's a major one up in the Northwest Passage. Environment Canada does national wildlife areas, and they're working on Scott Island, which is at the north end of Vancouver Island.
We have structure and organization within the government. We're working with environmental groups, and with industry. We're trying to figure out how we get to that 5% and how we get the more formal MPAs in place by 2020.
We're going to make sure we do hear from as many Canadians as we can.
Regarding funding, in terms of the engagement, as you know we have a federal-provincial table that's working on this, including deputies meeting with provinces today on the Fisheries Act and other issues. We have what the committee is doing. We very much look forward to that report, but there are other elements as well.
There are also indigenous consultations. In indigenous consultations, some of this funding is to support indigenous groups to come to the table, to work with us, etc. Also, there is the online engagement. The process of setting up that website, being able to pull the data off, etc., is covered in this funding.
Regarding the monitoring, there has been a challenge. We want to fully engage Canadians, take the time to think through what we want to do, yet we want to make progress immediately.
We said, let's at least enhance the monitoring; let's at least develop a monitoring protocol, start doing more, and commit to a report in terms of how we're doing in monitoring, so there are seven FTEs or seven people that have been brought on to be able to do that work.
That's what the $3.4 million is for.