Welcome, everybody. This is the Standing Committee of Fisheries and Oceans. Pursuant to Standing Order 108(2) and a motion adopted by the committee on Monday, September 19, 2016, the committee commences its study to review changes made to the Fisheries Act. That's what we're doing today.
Our format is as follows. Instead of having two separate hours of witnesses and guests, we will include for the whole two hours all the guests that we have today. We have five organizations. We'll expect 10 minutes from each organization, and I trust you've chosen your spokespersons.
First, we have the Government of Newfoundland and Labrador, with the Honourable Steve Crocker, Minister, Department of Fisheries and Forestry and Agrifoods. He is no stranger to this committee and has already been with us on the cod study. We also have with us Elizabeth Barlow, director, aquaculture development, Department of Fisheries, Forestry and Agrifoods.
From Manitoba Sustainable Development, we have Dr. James Duncan, director, wildlife and fisheries branch. He's joining us by video conference from Winnipeg. Dr. Brian Parker, senior fisheries manager, wildlife and fisheries branch, is also joining us by video conference.
From Ecojustice Canada, we have Margot Venton, staff lawyer and director of marine programs, who is joining us by video conference from Vancouver.
From the Atlantic Salmon Federation, we have Dr. Stephen Sutton, co-ordinator of community outreach and engagement, and Charles Cusson, Quebec program director.
Finally, from Oceans North Canada, we have Trevor Taylor, director of fisheries conservation, who is also the former minister of fisheries and aquaculture in Newfoundland and Labrador. I hope you don't mind me throwing that in. I just thought it would add some perspective.
Also joining us is Mr. , who is from the riding of Chatham-Kent—Leamington. He is replacing Mr. today.
As I said at the beginning, I have 10 minutes for each of you. We're going to start at the top.
Minister Crocker, will it be just you for the 10 minutes?
Thank you to the standing committee for the opportunity to be here regarding the review of the Fisheries Act. I have distributed some copies of my presentation. If you're going to be following along, I'll note that I may skip some sections in respect of the time limit.
The Newfoundland and Labrador seafood industry was worth more than $1.2 billion in 2015, with aquaculture accounting for $161 million. It directly employed over 17,000 individuals throughout our province.
Newfoundland and Labrador is experiencing a regime shift from shellfish to groundfish. The province's seafood industry will require supports to seize the new opportunities afforded by this shift, including investments in innovation, technology transfer, infrastructure, and skills development to ensure that it is sustainable and globally competitive.
Seal populations have been growing substantially since the 1970s and are having a significant impact upon our marine ecosystem.
Not surprisingly, sustainable marine resources are vital to Newfoundland and Labrador's current and future prosperity. It is imperative that the need for economic development is balanced with environmental protection.
The existing federal Fisheries Act was enacted to give the Government of Canada the authority to manage Canada's fisheries and protect the habitat that supports them.
The province supports the federal government's efforts to open the Fisheries Act to reform Canada's system for fisheries management. Opening the review to only lost protections and modern safeguards does not give the opportunity to address the issues of all stakeholders.
We have always maintained that fisheries management decisions, for which the Fisheries Act gives DFO the authority, should be based on sound scientific advice and should respect and reflect the rights of harvesters as adjacent and historical users. Therefore, I recommend that these be incorporated in legislation as key principles for access and allocation decisions.
The current owner-operator and fleet separation policies are important elements of Atlantic fisheries policy. They maintain harvester independence while ensuring that benefits from fish resources accrue to active participants. Enshrining these policies in legislation will support the viability of our coastal communities.
Newfoundland and Labrador was the first province in Canada to recognize fish harvesters as professionals. In 1996, the province passed the Professional Fish Harvesters Act, which recognized the special skills and experience required to become a professional fish harvester. Currently, DFO policy requires that a harvester be certified as a level II professional fish harvester in order to receive the transfer of a core enterprise. Our province recommends that this, too, be recognized in federal legislation.
In June 2012, the federal government passed amendments to the Fisheries Act, which DFO stated were in line with DFO's core mandate and increased regulatory efficiencies and did not obstruct economic development. Under the revised legislation, protections have been limited to fish species that can be defined as being part of a commercial, recreational, or aboriginal fishery, as well as applying only if fish will be seriously harmed. DFO is restructuring its habitat program, which is now the fisheries protection program, and is reducing regional habitat offices from 68 to 15 across the country.
The current mandate of DFO's minister includes the direction to work with relevant ministers to review the precise government changes to the Fisheries Act and the Navigable Waters Protection Act, to restore lost protections and incorporate modern safeguards, and to review Canada's environmental assessment processes. There is a good deal of interplay among these pieces of legislation, and it is important that we avoid duplication.
The Canadian Council of Fisheries and Aquaculture Ministers agreed to create a task group to review the changes made to the federal Fisheries Act and conduct a detailed assessment of these amendments. My officials have been engaged in a review process, and I understand that the recommendations from this task group will also be presented to the standing committee.
At this time, my department is in consultation with other provincial departments to determine what protections have been lost, if any, and what further analysis is required. Following discussions with the provincial Department of Environment and Climate Change, I have several general points to communicate on the issues of fish habitat protection.
Continued, improved, and increased engagement and collaboration between DFO and provincial and territorial departments and agencies are essential for the development and implementation of clear and effective legislative policies. Engagement and collaboration are critical to balancing the need to reduce red tape with restoring any protections that may have been lost. Our province is currently a member of an FPT committee on lost protections that consists of regional DFO officials and provincial officials from several departments. It is imperative that venues such as these exist to share information concerning potential lost protections.
DFO requires only that proponents partake in an online self-assessment to determine if their project avoids or mitigates impacts on fish. This requirement translates to an unrealistic expectation that proponents must understand the types of ecological and biological impacts their projects are likely to cause. At a minimum, proponents should be required to register projects through a self-assessment process so that follow-ups would be possible. However, DFO staffing capacity throughout our province is small, and the majority of the regional offices have been closed. Therefore, there are not enough fish habitat specialists to do the follow-up checks to verify if the proponents' self-assessments are accurate.
Most importantly, we do not believe that the self-assessment protocol currently in place can offer full protection to inland waters, fish, and fish habitat. A more rigorous, systematic, and regionally based assessment conducted by DFO officials should be considered. In addition, from a wider enforcement perspective, DFO should provide resources sufficient to enforce the Fisheries Act at the regional level.
I would now like to discuss issues pertaining to our aquaculture industry. Balancing the needs for our aquaculture industry—so important for economic development—while protecting the environment is key. I would like to point out that the aquaculture industry has a vested interest in environmental stewardship. We are looking to the future for the opportunities that exist for new growth. The aquaculture industry provides exciting opportunities for economic diversification in Newfoundland and Labrador.
We currently have successful aquaculture operations, and we have seen great benefits for the regions and other parts of the province from this industry. This industry is an important contributor to the social and economic viability of our province and its rural communities.
The Government of Newfoundland and Labrador recently launched “The Way Forward: A Vision for Sustainability and Growth in Newfoundland and Labrador”. Throughout our vision, we have committed to growing our aquaculture industry by doubling salmon production and more than doubling mussel production. Newfoundland and Labrador is open for aquaculture development. We want to attract companies with clear plans and the ability for sustainable development in aquaculture sites throughout our province.
In 2015, after review, the aquaculture activities regulations, or AAR, came into force. Under the current regime, the activities of licensed aquaculture operations specified in the regulations are authorized and exempt from section 35(1) of the Fisheries Act. As stated, the AAR clarifies conditions under which aquaculture operations may install, operate, maintain, or remove an aquaculture facility, or undertake measures to treat fish for fish health reasons, as well as deposit organic matter under sections 35 and 36 of the Fisheries Act.
Our department is pleased with the improved clarity of the AAR in regard to aquaculture activities. Our interest is to continue to work collaboratively with DFO to improve the federal and provincial governance framework around aquaculture. Any review of the Fisheries Act should take the AAR into consideration and ensure that any proposed changes do not duplicate or conflict with the applications of the AAR.
Further discussions will be required on the implementation of this review for the aquaculture industry. In addition, I note that the Senate committee's recommendation to pursue “national” legislation on aquaculture may have unknown implications on this review and for the aquaculture industry at this point.
In closing, I am pleased that DFO has invited Canadians to take part in the online consultation on fish habitat through the Government of Canada's online consultation site. I would like to thank DFO regional staff for assisting the provincial government during this review process.
Again, thank you to the committee for this opportunity to present this afternoon.
Bonjour. I'm Dr. James Duncan, the director of the wildlife and fisheries branch of Manitoba Sustainable Development. With me today is my colleague, Dr. Brian Parker, senior fisheries manager.
First of all, on behalf of Manitoba Sustainable Development, I'd like to say that we appreciate the opportunity to participate in the review of the Fisheries Act.
Manitoba is actively participating in the Canadian Council of Fisheries and Aquaculture Ministers task group for the review of the 2012-13 changes to the Fisheries Act. We appreciate the opportunity to collaborate with our federal, provincial, and territorial counterparts as we work toward a common goal of restoring protections and incorporating modern safeguards into the Fisheries Act.
Manitoba Sustainable Development supports the federal review and welcomes opportunities to improve the use of scientific evidence in environmental decision-making.
The federal authorization process is required for many development projects. It is an important process and should provide a balance between facilitating investment and creating local jobs and protecting provincial fisheries.
Manitoba Sustainable Development has developed recommendations with the goal of strengthening the protection of fisheries while at the same time improving clarity and reducing regulatory red tape. These recommendations also have taken into account ongoing task group discussions.
There are five recommendations with this presentation.
Recommendation number one is about the definition of serious harm and other key terms from a sustainable development perspective.
Our first recommendation relates to how key terminology is defined under the Fisheries Act. Projects should be assessed from a sustainable development perspective, with consideration given to the balance of ecological, economic, and social impacts of the fishery. Therefore, we feel there is an opportunity to have clear definitions of key terms from a sustainable development perspective.
For example, under the Fisheries Act, proponents are prohibited from activities that result in “serious harm” to fish or habitat unless an authorization has been granted. However, the current definition of serious harm is subject to interpretation. “Serious harm” is currently defined as follows:
|| the death of fish or any permanent alteration to, or destruction of, fish habitat.
However, it's been difficult to determine with certainty when this prohibition applies: for example, to one fish, or to one population of fish, or to an assemblage of fish species. There is also some lack of clarity regarding the nature of impacts to habitat, specifically, what constitutes a permanent alteration and whether an alteration is necessarily implicitly negative.
The Province of Manitoba is developing drainage regulations to streamline approvals for low-impact drainage works. These regulations will authorize routine maintenance of roadside drainage channels. It is important to balance protection of fish habitat with the need for timely approvals of water management projects such as man-made drainage works. For example, an agricultural producer could offset the impact to a stream by taking mitigation actions such as riparian area soil conservation.
I'll let my colleague Brian continue with the rest of the recommendations.
Recommendation number two in is regard to harmonization and flexibility to reflect provincial interests.
This recommendation is to ensure there is better harmonization and flexibility. For example, it is important that local interests are considered before implementing a prohibition under the act. There may be opportunities to simplify the process that provinces and territories must follow to request and use a proposed exemption to a prohibition, especially for projects or decisions that support mutual objectives.
The review of the act should also explore opportunities to improve the sharing of information on local issues and impacts. In some instances, the ability to communicate local issues and perspectives may have become more challenging due to the thematic focus within the federal fisheries protection program. For example, federal staff who are based in Manitoba may have the expertise to review a local oil and gas project, even though the project would typically be assigned to staff located in another province.
Provincial and territorial input is essential in determining impacts to the long-term sustainability and productivity of fisheries, including the determination of the cumulative impact of smaller projects. Greater flexibility in submitting and sharing information will facilitate evidence-based decision-making in support of mutual objectives.
Recommendation number three relates to the consistency of monitoring, with clear standards and rationale.
As part of the Fisheries Act review, steps could be taken to improve the consistency of monitoring requirements for proponents, which include providing them with clear standards and rationale. Consistent monitoring processes will support proponents in acquiring the data they need to move projects forward without undue costs or delays. For example, a template could be developed that provides guidance around essential information for monitoring to assist proponents in collecting high-quality meaningful information that is needed for timely decisions.
Recommendation number four relates to transparency and information sharing.
We also feel there may be opportunities to improve transparency by sharing more information with provinces and territories. In general, we believe that information should be provided to jurisdictions before it is provided to a proponent. This will give a province or territory an opportunity to facilitate or, if needed, to interject.
There are also opportunities to improve data sharing related to monitoring and compliance, especially in regard to serious harm to fish. For example, a tracking site, such as a public registry, could be developed to share information on proposals, project status, and other activities, including cumulative impacts. Additionally, improved clarity around policies and procedures on the interpretation and implementation of the Fisheries Act would be useful for proponents as well as provincial and territorial jurisdictions.
Our last recommendation relates to alignments of responsibility and related resources.
Like many other jurisdictions, Manitoba Sustainable Development has limited capacity to undertake additional activities related to assessment, monitoring, and compliance. If provinces are expected to perform additional work adequately, such as assessing risks to fish habitat, then additional resources from the federal government will be needed. That said, a more co-operative approach to the review process could also help to reduce duplication and allow jurisdictions to use limited resources more effectively.
I'll turn it back to Jim.
Good afternoon. I would like to thank the committee for this opportunity to present on the important issue of fish habitat protection.
My name is Margot Venton. I am a Staff Lawyer with Ecojustice Canada and also the Director of our Marine Program.
Ecojustice is a national charity dedicated to protecting the environment through the use of Canadian law. My perspective on the Fisheries Act is informed by almost 20 years of experience in advising clients and representing clients on marine species, fisheries, and aquaculture issues. I have also been counsel in a number of legal cases interpreting or seeking the enforcement of the Fisheries Act.
My presentation today will focus on the changes we hope to see through this modernization process, and specifically our recommendations for achieving a broad, precautionary, and enforceable legal protection for fish habitat in the act, through an express habitat protection provision that guides ministerial discretion to authorize harm to habitat through legislated criteria and that also addresses cumulative harm and cumulative loss of fish habitat. A more detailed discussion about why these changes are necessary will be included in our brief, which we will file with the committee later.
Fish habitat is obviously essential to healthy fish populations and, by extension, to healthy fisheries. The habitat protection provisions were added to the Fisheries Act in 1977, as you all know, in response to the devastating loss of wild salmon populations on the Atlantic Coast. The 1977 provisions were organized around the central prohibition against the “harmful alteration, disruption, or destruction” of fish habitat, the HADD provision, which cast a wide net intended to catch the myriad ways in which fish habitat can be harmed by human activities. Judicial interpretation of the HADD provision was clear that the offence was harming fish habitat, even temporarily, and did not require proof of either permanent damage or harm to fish directly.
Now, as we all know, in 2012 the provision was amended to change the focus from harm to fish habitat to “serious harm to fish”. This serious harm to fish provision is not expressly about habitat protection. The scope of protected habitat is actually limited by the requirement that it be habitat of a commercial, recreational, or aboriginal fishery, and enforcing the provision requires proof of permanent harm to habitat or death of fish.
Unfortunately, the changes to the act were also accompanied by significant budget cuts, in particular to the former habitat branch of DFO, as well as a significant policy shift toward self-assessment and streamlining of approvals.
The combined effect of all of these changes has, in our opinion, diminished the protection of fish habitat in Canada. The amendments created confusion about whether and how the law operated to protect fish habitat. As just one example, we recently received a call in our office from a community member in the Lower Mainland concerned about silt pouring into a fish-bearing creek from a construction operation. It was obviously bad, but the questions she had were, did it constitute serious harm to fish, did there need to be dead fish floating on the water, and did they have to be commercially fished fish? We didn't really know the answers to all her questions, and she could get no clear answer from DFO.
We say that the protection of fish habitat under Canadian law must be effectively restored to ensure future functioning of aquatic ecosystems and healthy fish populations for future generations, but I'd like to make the point that the previous HADD provision was far from perfect, and simply returning that provision to law is perhaps not the best option. Ecojustice would like this review and modernization process to result in five key changes to habitat protection under the Fisheries Act.
First, we would like to see a habitat protection provision that is broad and expressly aimed at the protection of habitat.
Second, we would like to see a protection provision that is precautionary: “serious harm to fish” sets an excessively high bar, in our opinion.
Third, the discretion to authorize harm to fish habitat must be guided by scientific considerations and key environmental law principles and must require some positive action on the part of DFO, such as permits or other authorization.
Fourth, habitat protection provisions should address, and must address, the cumulative harm to fish habitat.
Finally, the provisions must be enforceable and, of course, must be enforced.
Habitat protection needs to be broad. Protecting fish habitat by protecting commercially fished species ignores the scientific reality of viable ecosystems. All parts of an ecosystem need to be protected in order to function as a whole and support healthy fish populations, including populations of commercially fished species.
Thus, Ecojustice recommends reverting to the breadth of the previous prohibition against harmful alteration, disruption, and destruction of fish habitat. We further recommend ensuring that potential harm to fish habitat caused by fishing not be ignored under the provisions. We recommend guiding with enforceable science-based criteria the current exception in paragraph 35(2)(d) to automatically authorize any harm to fish habitat that results from doing anything authorized under the act. That includes fishing and aquaculture.
As an alternative to this recommendation, at least with respect to addressing harm to habitat caused by fishing, it would also be possible to include mandatory consideration of the impact of various fishing methods as part of the fisheries authorization process as well. At the moment, the habitat provision is the only place in the act where habitat protection is addressed in any way.
Our second recommendation is that habitat protection needs to be precautionary, because it is not always clear at what point harm to habitat translates into harm to fish. We recommend including the precautionary principle as an express principle that guides decision-making with respect to habitat protection.
Discretion to authorize harm to habitat needs enforceable limits. A broad prohibition against harming fish habitat will, of necessity, require provisions authorizing harm to fish habitat. The power to authorize harm to fish habitat, however, must be guided by clear principles based on science. Discretion under the Fisheries Act is generally a problem. Many different independent reviews of the act have flagged that issue again and again. Discretion to authorize harm to habitat under HADD, the old provision, was near absolute. The 2012 introduction of some limited criteria to guide decision-making under the act was a good thing, but it needs to go further to expressly reflect habitat concerns.
Thus, we recommend adding science-based considerations to guide any authorization of fish habitat, including consideration of cumulative effects on fish habitat of individual authorizations; consideration of the long-term stability of ecosystems; consideration of the habitat needs for struggling or recovering fish stocks and aquatic species at risk; and consideration of the predicted effect that climate change is expected to have on the habitat in question. These considerations should be set out in the habitat provision or in regulations under the act, but should not be relegated to policy documents.
As I mentioned previously, habitat protection must address cumulative harm and loss of fish habitat. The current habitat protection provisions do not require, or even really allow for, the consideration of cumulative effects of multiple activities on fish habitat. Up until 2012, cumulative effects of individual proposed works and undertakings were considered as part of the environmental assessment process that preceded the issuance of a HADD authorization. Since the amendments in 2012, authorizations of serious harm to fish no longer trigger any environmental assessment.
Thus, we recommend first some form of assessment for all of these authorizations, but as a precondition to individual authorizations and individual assessments, we recommend DFO establish science-based thresholds and objectives for fish habitat at the watershed and ecosystem level before issuing individual authorizations for those watersheds and ecosystems.
Our fifth and final point is that habitat protection provisions must be enforceable and enforced. Monitoring and enforcement is a critical part of any effective regulatory regime. It is extremely disheartening, from our perspective, that there have been no charges laid since the serious harm to fish provision came into force. Various witnesses throughout these hearings have mentioned that problem and have proposed different solutions, and obviously we echo the recommendation that DFO be properly fiscally supported.
In addition, we would recommend adding clear provisions that allow concerned citizens to request that DFO investigate an alleged fish habitat violation and to also add a provision that allows concerned citizens acting in good faith to take action in the courts to enforce the act where DFO is unable or unwilling to do so. Canada is a big country, protecting fish habitat is a huge job, and citizen enforcement provisions have worked effectively in other jurisdictions to improve compliance, enforcement, and environmental protection.
Good afternoon, everybody.
The Atlantic Salmon Federation is pleased to have this opportunity to speak to the committee today. The Atlantic Salmon Federation is dedicated to the conservation, protection, and restoration of wild Atlantic salmon. We work closely with our regional councils in Atlantic Canada and Quebec and with over 100 local watershed organizations and salmon conservation groups, which represent thousands of volunteers.
Canada's wild Atlantic salmon populations have been declining for many years, largely due to the impacts from human activities. Populations in most areas are well below historical levels, and some are listed or are in the process of being listed as threatened or endangered. Many commercial, aboriginal, and recreational fisheries have been closed, and significant social and economic benefits have been lost.
Despite this, wild Atlantic salmon are still worth about $150 million to Canada's GDP, and they generate the equivalent of 3,800 full-time jobs. These numbers of course would be much greater if populations were recovered and fisheries were reopened.
Halting the salmon's decline, recovering populations, and restoring lost fisheries will take significant resources and hard work, backed up by strong legislative and policy frameworks to address the threat from human activities. Unfortunately, at this time, we believe that the Fisheries Act and its administration are not sufficient to address some of the most important human impacts on wild salmon populations. There are several reasons for this.
First, the focus on preventing permanent alteration or destruction of fish habitat is not sufficient. Atlantic salmon have specific habitat requirements at specific points in their life cycle and at specific times of the year. Temporary alterations to key habitats at times when they are needed can have substantial and long-lasting impacts. For example, temporary disruptions to water quality, flow, or temperature at key times during the fall of the year could render important spawning habitats useless when they are needed and have significant impacts on salmon productivity for years into the future.
Despite that, such alterations to key habitat would not be considered serious harm under the current act, simply because they are not permanent. This leaves the door open for human activities to cause significant impacts on salmon productivity through temporary alterations to key habitats. We believe that legislation needs to protect key habitat at the time it is needed. It should not matter whether that alteration is temporary or permanent.
Second, the act's focus on preventing the death of fish is not sufficient. Many of the human activities that impact salmon have non-lethal effects. In other words, these are impacts that affect the long-term health and productivity of salmon populations without actually causing the death of the fish that are being impacted. Impacts from open net salmon aquaculture are a good example of this. They're only one example of this, but we will use this one.
One of the major problems with net-pen aquaculture is that farmed fish escape and interbreed with wild salmon. When those farmed fish interbreed with wild fish, the gene pool of wild populations is weakened, leading to reduced fitness in future generations and decreased abundance. All of this happens without actually causing the death of the wild fish that have been interbreeding with the farmed fish, which means that these sorts of non-lethal impacts are not considered serious harm under the Fisheries Act. We believe that legislation that does not protect fish from all of the significant ways that they are impacted by human activity will not ensure the protection, sustainability, and recovery of wild salmon and the fisheries they support.
Third, in the administration of the act, there is too much reliance on project proponents to self-assess and notify DFO regarding impacts on habitat. People undertaking potentially damaging activities are typically not qualified to understand the complexities of salmon habitat requirements or to judge when their activities may have caused serious harm. There are also disincentives for people to report harm that they may have caused, yet the self-assessment tool currently used by DFO places most of the responsibility for protecting fish habitat with the project proponents. This provides significant opportunities for projects to proceed without sufficient oversight from monitoring and enforcement.
We believe that this situation results in ongoing and cumulative habitat loss that is undocumented and unmitigated, and it makes it nearly impossible to assess future project impacts in light of previous damage. There needs to be a greater presence of DFO on site at proposed project locations to assess the potential damage prior to work being conducted, and there must be better monitoring of impacts during and after activities.
Fourth, we feel that the act grants too much discretionary power to the minister to exempt works, undertakings, activities, deleterious substances, and water bodies, and to grant authorizations to cause harm to fish or fish habitat. Currently, the minister's discretion can be exercised without sufficient guidance or processes to ensure that the impacts of those decisions are known, understood, monitored, or mitigated. There's no automatic mechanism to ensure that discretionary decisions are made with information about the full range of costs and benefits, or that the public is informed about such decisions and can participate.
Without a rigorous and transparent process to guide the application of ministerial discretion, it is difficult for the public to hold the minister accountable. There need to be meaningful safeguards to ensure that the minister does not consistently prioritize the desires of project proponents over the needs of wild fish and the people who depend on them.
In summary, we have a number of recommendations for changes to the Fisheries Act and its administration.
In the first instance, we believe that there needs to be a restoration of protections and administrative processes that were removed in 2012, including the following: restore provisions that prevent the harmful alteration, disruption, or destruction of fish habitat and remove the requirement that impacts must be permanent; reduce proponent project self-assessment and increase the capacity for government oversight and monitoring of projects and impacts; and, re-establish ministerial authorizations for causing harm to fish or fish habitat as triggers for an environmental assessment process.
In addition to restoring lost protection, there is also a need to introduce modern safeguards to address issues that have not been covered in previous versions of the act. In particular, we recommend the following: expand the definition of harm to incorporate non-lethal impacts; limit and guide ministerial and administrative discretion through the incorporation of clear and meaningful guiding principles and decision-making criteria, as well as opportunities for public education and public input; and, include provisions and processes for the designation of critical fish habitat that cannot be altered or destroyed.
Finally, we recommend that a revised act include purposes for restoring lost or depleted populations and re-establishing fisheries. A modern Fisheries Act should be aimed at more than just preventing impacts and maintaining the status quo. It should acknowledge that significant impacts have occurred to fish habitat, fish populations, and fisheries and aim to be restorative where possible.
Thank you, Mr. Chairman.
Oceans North promotes science-based and community-based conservation of Canada's northern seas consistent with Inuit land claims and traditional practices.
My name is Trevor, as you know, and most of my working life, to put it in perspective, has been in one way or another involved with the fishery. I have spent a considerable number of years on fishing vessels as a crew member and captain. I have sat on ministerial advisory councils, including the Fisheries Resource Conservation Council, when we closed down pretty well every fishery in Atlantic Canada in the mid-nineties—an unpleasant task. I have also been minister of fisheries and aquaculture in Newfoundland and Labrador, which was a slightly less unpleasant task. Suffice it to say that I've been around long enough now to have seen just about everything once and a lot of it twice, as my former deputy used to say.
My presentation today will focus on, number one, the lack of connection between the Fisheries Act and the Oceans Act; the disconnect between habitat protection and the impact of fishing; the reliance on ministerial and departmental discretion rather than legislative direction in the implementation of fisheries policy; and finally, the public disclosure of information related to the management of the fishery.
Apart from all the criticisms that have been directed at the 2012 amendments to the habitat protection provisions of the Fisheries Act, there are two much more fundamental deficiencies in the way in which the act deals with habitat protection, which Margot alluded to.
First, relevant provisions of the act are insufficiently proactive. They have little to say about the identification and positive protection of critical habitat.
Second, as judicially interpreted, the HADD provisions of the act do not apply to fishing practices which themselves are destructive of fish habitat. This is a particular concern in marine areas since, as the West Coast Environmental Law's “Scaling up the Fisheries Act” report recognizes, “Fishing practices still have the greatest impact to marine habitat, according to marine cumulative impact studies.”
DFO's own sensitive benthic areas policy recognizes the same concerns when it states that “the greatest impact to the most vulnerable benthic habitats, communities and species in a given area can be caused by the first few fishing events”.
Currently, the Fisheries Act and the Oceans Act read as two solitudes. The Fisheries Act is firmly rooted in the 19th century, when it was primarily written, while the Oceans Act acknowledges the huge expansion in Canada's marine areas as a result of the Convention on the Law of the Sea in 1982 and, along with that, an important set of international responsibilities.
There is also a significant normative difference between the two statutes. While the Fisheries Act seems isolationist and fails to acknowledge the importance of principles and objectives, the Oceans Act celebrates the importance of the oceans and Canada's global responsibilities and references the ecosystem approach and other important principles. The committee might draw inspiration from revisiting the preamble to the Oceans Act and asking how the ideas and goals expressed in that statute might also inform a reformed Fisheries Act.
I'll just point out to the translators here that all of the “H's” are in that statement, but I'm from Newfoundland, and they just mightn't be in the spots that you're used to.
Voices: Oh, oh!
Mr. Trevor Taylor: These two statutes ought not to be two solitudes, and the committee would make a significant contribution if it could identify concrete ways in which the two statutes need to interact.
The act no longer has a general statement of objectives or purposes. Neither does it have a preamble to offer a statement of the shared premises on which the act is based. We have already referred to the preamble to the Oceans Act. The Species at Risk Act contains both an extensive preamble and a short and succinct statement of purposes.
While we acknowledge that it will be more difficult to draft a statement of purpose for the Fisheries Act, we think it is worth the effort, because a statement of purpose serves to highlight the important normative goals that act is aiming to achieve.
If an objectives or purposes section seems beyond the remit of the committee, the committee should at least consider adopting a preamble that sets out the shared premises on which the act is based. We'll not provide a complete text for either, but we offer both an example of a purposes statement and a couple of preambular clauses, all of which speak to the central significance of habitat and habitat protection, as included in the papers you have in front of you.
The law on any subject comprises both rules and principles. Principles help fill in the gaps between the rules and provide guidance to those who must exercise discretionary powers and interpret and administer the act on a daily basis. Principles also provide guidance to courts in fulfilling their authoritative interpretive role. There is no statement of principles in the Fisheries Act. By contrast, statutes such as the Oceans Act do contain useful statements of principles.
In the case of the Oceans Act, the statement of principles is contained in part II of the act and is dealing with the duty to develop a national oceans strategy for the management of estuarine, coastal, and marine ecosystems. Section 30 of the Oceans Act speaks to principles of sustainable development, integrated management, and the precautionary approach. Similar principles are freely acknowledged and applied in numerous DFO policy and management documents. For example, the department's sensitive benthic areas policy has a section entitled “Guiding Principles”, which refers to ecosystem management, a precautionary approach, and science-based management.
Finally, it is important that the Fisheries Act acknowledge respect for aboriginal and treaty rights and provisions of modern land claim agreements, as well as the goal of reconciliation. While the act has been amended to refer to the Nisga'a agreement and some other B.C. land claim agreements, it was never amended to take into account many other modern land claim agreements, such as the Nunavut agreement. This has required the beneficiaries of this agreement and others to resort to litigation to establish that the minister's broad discretionary powers are in fact limited by the terms of Nunavut agreement and other land claim agreements.
One of the characteristic features of fisheries administration in Canada and the protection of fish habitat is that there is an unusually large disconnect between the Fisheries Act and the policies of the department. Thus, the act is completely silent on such things as the development of integrated fisheries management plans, the opening of new fisheries, the protection of sensitive benthic areas, and the allocation of quota.
The principal implication of this, of course, is that the minister and the department have an extraordinary degree of discretion over the management of the fishery and the protection of fish habitat. It also means that parliamentary oversight is reduced, in the sense that Parliament fails to direct its mind to these important issues and to direct how the balance should be struck between economic interests and environmental protection.
It also means that there is little opportunity for oversight by the courts. Indeed, what we have instead are numerous decisions by the courts commenting on the breadth of the minister's discretion and declining to interfere with the exercise of that discretion, which is not bad if you're a minister, but it doesn't work a lot for everybody else.
Oceans North therefore takes the view that it is time for Parliament to provide more direction as to how the department should discharge its responsibilities in relation to important issues such as fish habitat and new fisheries. For example, in the case of the protection of important fish habitat, the act might impose on the minister the obligation to identify and protect ecologically and biologically sensitive benthic areas. Section 37 of the act references the concept of “ecologically significant areas”, but puts very little flesh on this idea, and clearly does not establish a duty on the minister to identify and protect such areas.
We recognize that the department has taken several steps to achieve the goals suggested here, including the sensitive benthic area policy and the coral and sponge conservation strategy for eastern Canada, and it has instituted closures in some sensitive benthic areas. These are significant and important initiatives; however, Oceans North takes the position that the Fisheries Act should mandate the minister to undertake these activities. Protection of marine habitat from harmful fishing activity should not be a discretionary matter.
Oceans North takes the same position with respect to new fisheries. The act has nothing to say about the idea of new fisheries, which might refer to fishing in an area where there is no history of fishing or to an existing fishery that proposes to target a new species. The department does, however, have several policies that address new fisheries. The most explicit statement is in the new emerging fisheries policy, but new fisheries are also addressed in the sensitive benthic areas policy and the policy on new fisheries for forage species. Oceans North suggests that the core ideas and process steps of these policies should be distilled and embedded in the Fisheries Act itself.
Finally, a critical piece to understanding how well our fisheries and marine habitat are managed is the timely access to information on the conduct of the fishery. Recently, the minister announced an initiative to make access to DFO fisheries science data more accessible. This is a worthwhile initiative, enabling those interested in the science on which fisheries management is based to have easier access to it. It wasn't that this information was kept from the public domain; it was just sometimes hard to access.
The same approach needs to be taken with management information. In trying to access information on the management and practice of the fishery—unlike science, however—some of the information is purposefully kept from the public domain. The department cites protection of proprietary information as the reason for keeping some information out of the public domain. This is not a valid reason. Information relating to the fishing activity of fishing vessels, areas fished, incidence of bycatch, incidence of small fish, and so on should be available for all vessels and each vessel. Accountability can only be ensured when full disclosure occurs.
In Iceland, by way of example, one can visit a website called “Fiskistofa”. I assume, in my superb command of the Icelandic language, that this means “fish stuff”.
Voices: Oh, oh!
Mr. Trevor Taylor: Sorry for making light of this. It is a very serious matter.
You can go to this website. I did it this morning. I ascertained exactly how much each vessel that is licenced to fish cod in Icelandic waters has for a quota and how much of that quota it has landed as of today's date.
We see no reason why in Canada we couldn't do the same. In Canada, however, you cannot get information below the level of the fleet sector. If the fleet sector has less than five vessels in it, you can't get it at all. When you can get the information, it is only after formally requesting it from the relevant person in the department—once you've identified that person—followed by lengthy time periods waiting for information to be compiled and cleaned of any reference to the vessel- or fisher-identifying feature. The Fisheries Act needs to require the timely disclosure of information, both on the science on which the fishery is based, and on the fishing activities and management actions that ensue.
Thank you very much for the opportunity to present here today.
I want to again correct the record. There are significant habitat protections in the new Fisheries Act, as follows. “Serious harm to fish” is defined as
||the death of fish or any permanent alteration to, or destruction of, fish habitat.
“Fish habitat” is defined as
||spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes;
The idea that the new Fisheries Act has no habitat provisions is clearly false.
I should point out that the mining industry, when they presented to us, were very clear. They said:
||...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.
They talked about the increased burden on mining project proponents.
I have also found a document that is the Auditor General's 2009 report regarding the old Fisheries Act. That auditor looked at 23 years of the old Fisheries Act. He or she says that the program's lack of success without sufficient support of science was likewise documented in the auditor's 2009 on the fish habitat management program, which indicated that the fish habitat management program actions over 23 years could not be demonstrated to have adequately protected fish habitat, and, by extension, fisheries.
We had some very interesting testimony—a week or so ago, I think—from the Canadian Federation of Agriculture, which talked about direct experience with the old Fisheries Act. Mr. Ron Bonnett is the president of the CFA. They represent 200,000 farmers across Canada. I will quote him now:
|| 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....
He went on to say:
|| There are also many accounts of inconsistency in enforcement, monitoring, and compliance across Canada with different...organizations, which led to a confusion and indiscriminate approaches to enforcement and implementation. Even at the individual [farm] level, there were different interpretations of the act based on one's familiarity with agriculture.
||... It is CFA's position that a complete revert to reinstate all provisions of the Fisheries Act as they were would be unproductive [and] re-establish the same problems for farmers, and...provide little improvement [in conservation]....
The municipal people I've spoken with right across the country express the same issues with regard to how the old Fisheries Act was done.
I'm asking you, Ms. Venton, given the problems that the agricultural community had with the Fisheries Act, the very grave problems—I represent an agricultural constituency—with inconsistencies, delays in permitting, and a general increase in costs to cash-strapped municipalities, why is it that you want farmers and rural communities to be subjected to what was a very inadequate old Fisheries Act?
Yes, please, bring us into the light. The Fisheries Act is a very.... I can't say even say that it's a very matter-of-fact document. With all due respect to Mr. Sopuck's observation about ministerial discretion, it does rely, and very much so, on ministerial discretion. Some might argue that this is okay in a benevolent dictatorship, but I don't know that it has much place outside of that. Others' absolute discretion is not something that we particularly like lots of days, right?
Everybody needs principles to guide them, and they need to be legislative principles. I was a minister, and I also sat in opposition for a period of time. It would seem to me that the Parliament of Canada is just as important as the ministers, and the members of the Parliament of Canada and their views on legislation and how industries, fisheries, and oceans and whatnot should be managed are just as important as the views of the ministers. I firmly believe that. We elect a House of Commons to establish broad principles to govern our land and our water.
Ministerial discretion exercised outside of broad principles is like driving down the highway and seeing a sign saying “maximum 50 to 70.” What does that mean? We have a sign that says “maximum 60,” or we have a sign that says “maximum 100,” and it tells us clearly what we are allowed to do. We need the principles. We need to understand why.... The people who manage the fishery in Canada.... I talk specifically about the marine environment, the fishery. People here are talking about the impact of the Fisheries Act on farmers and whatnot. I have nothing to do with that. It's not that I don't care, but my life has been the ocean.
We need principles that define how you should view conservation and how you should view harm to habitat, and not just serious harm. Can you imagine...? Many of us have siblings. For example, let's say my mother said to me, “Trevor, don't you do serious harm to your sister.” Well, now, I'd probably push that envelope a little ways. Well, I can hurt her a little bit, according to that.
Voices: Oh, oh!
Mr. Trevor Taylor: No, seriously.... I know I'm making light of it, but we need more clarity around this. The Oceans Act provides us with principles. It talks about the ecosystem approach. It talks about the precautionary approach. It talks about integrated fisheries management and integrated oceans management. None of that language.... That language is foreign to the Fisheries Act. There's a passing reference to it, without any clarity.
Again, to go back to Mr. Sopuck's observation—sorry to take up your time—part of the reason—
I think one of the issues with the changes made in 2012 is that proving that there has been harm or damage is very difficult, as was already brought up by somebody. It's very difficult to actually observe, in some cases, what those damages might be.
We have seen examples where there has been obvious damage to what we believe is key habitat, which has been reported to DFO, and DFO has come out, looked at it, and said, yes, that doesn't look very good, but unless we can prove that there have been dead fish—and we don't see any—or that habitat alteration is permanent, there's nothing we can do at the moment. It seems to be “wait and see”. The question is, when does something become permanent? Rivers do have a tendency to repair harm to themselves; it may take years, or it may never happen. At what point can you say it's permanent? In the meantime, while we're watching and waiting to see what happens, there's harm to fish happening.
We believe that when there's harm or damage caused to habitat, when it's clear that the damage has been caused, and when there's a reasonable expectation that the habitat alteration or damage has resulted in some impacts on the salmon population, that should be a point at which somebody steps in to say, “That needs to be repaired.” They need to say that we don't need to wait for that to be proven to be permanent, whatever that means.
In terms of that sort of an example, we would like to see that idea that it must be permanently removed. If it's causing an impact on salmon, then that's a problem for us. It doesn't matter if it's permanent or if we actually see the dead fish or not. We know enough about salmon and the way they use habitat—and experts in DFO do as well—to know or to have a reasonable expectation to know that there has been an impact when we see those sorts of things. Whether you can actually prove it by showing dead fish or not shouldn't be an issue.
To Mr. Sopuck's comments, I could mention that there's a major stream in my riding of Fleetwood—Port Kells in Surrey. Its headwaters are in the parking lot of the Guildford shopping centre. It happens.
Ms. Venton, in another committee, we are studying the Navigation Protection Act. I hate to the cloud the thought you had about citizen action in court, but that has been available through provisions of a part of the act since the changes were made, and not one court action has taken place, simply because it is too onerous for people to proceed in that fashion.
I wanted to basically throw out a question to everybody, though, and invite you to send us material and your reactions to it through the website.
I'll specifically ask Mr. Crocker and Taylor about this, because we're dealing with an issue of balance. A lot of the changes that were made were a result of a lot of input from rural municipalities in the Prairies who were concerned about the difficulties in getting public works done. Also, the farmers were having difficulties, as were mining operations, etc., which could be tied up for a very long time at very great expense by the regime that had been in place. One of the things we have been concerned about is trying to preserve what was good in those changes but to at the same time restore protections that a lot of people at least perceive are missing, if indeed they are.
My question is for both of you, and for everybody else to respond to off-line. What will be the essential elements of provisions that protect fish and protect habitat but that at the same time permit the public works, agriculture, and the commercial activities to operate within those protections? What are the essential elements that we need to effectively modernize the act, preserving the good part of what the Conservatives brought in, but restoring the parts that shouldn't have been taken out?