Proceedings of the Standing Senate Committee on
Fisheries
Issue 2 - Evidence
OTTAWA, Thursday, October 31, 1996
The Standing Senate Committee on Fisheries, to which was referred Bill C-26, respecting the oceans of Canada, met this day at 9:30 a.m. to give consideration to the bill.
Senator Gérald J. Comeau (Chairman) in the Chair.
[English]
The Chairman: This is the first meeting of the committee to examine Bill C-26, an act respecting the oceans of Canada. We have with us witnesses from the Department of Fisheries and Oceans.
Before we begin, I should like to acknowledge Dr. Parsons' recent work with the International Union for the Conservation of Nature. This work was done in Montreal regarding endangered species, especially fish. On behalf of the committee, we appreciate your hard work to ensure that Canada has a solid argument on this important subject.
Dr. L. Scott Parsons, Assistant Deputy Minister, Science, Department of Fisheries and Oceans: We have passed around some information intended to facilitate your review of the bill. It describes the legislation, summarizes the major features and outlines the major amendments to the legislation during its progress through the House of Commons.
Before getting into the bill, I would draw your attention to the first page of the overview, which provides a synopsis of the consultations and the briefings that were held before the legislation was drafted, as it was being drafted, and once it was introduced in the house and became a public document. These consultations were quite extensive. We could return to that topic later, if you wish.
This act will establish a framework for oceans resource management and marine environmental protection in Canada. In order to establish this framework, three basic elements are required. First, Canada must define the oceans areas which it proposes to manage and protect. Second, the principles which will guide Canada in managing its oceans and resources must be clearly set out. Third, Canada is consolidating some of its oceans programs to improve the effectiveness of its efforts. These elements correspond to the three parts of the Oceans Act.
The preamble of the act provides the context and intent of this particular piece of legislation. It recognizes the three oceans of Canada as a common heritage of importance to Canadians. It highlights the need to focus on the understanding of oceans and of marine resources and their dependence on marine ecosystems. It reflects a commitment to conservation based on a holistic ecosystem approach and a precautionary approach. It also highlights the collaborative approach which will be used to develop an oceans management strategy and, subsequently, in the implementation of ocean management plans.
Part I deals with the four maritime zones: the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. These sections also describe Canada's rights and responsibilities within each of these maritime zones. A map which shows the zones is contained in the overview.
First, there is the territorial sea, with which you will all be familiar. It consists of the 12-mile nautical zone which extends seaward from the base lines. In this zone, Canada has full sovereign rights and responsibilities. "Full sovereign rights" in this context means that this area is considered Canadian territory and all federal laws apply as if this territory were part of the land mass of Canada.
The second zone -- one which did not exist prior to this legislation but is consistent with the Law of the Sea Convention -- is a contiguous zone which is an additional 12 miles beyond the territorial sea. In that zone, Canada does not have full sovereign rights but does have rights to prevent the infringement of fiscal immigration, sanitary and customs laws on Canadian territory.
The third major zone is the exclusive economic zone. In 1977, Canada set out a 200-mile fishery zone. This involved some, but not all, of the powers that would have been provided under the Law of the Sea Convention under the exclusive economic zone provisions of the law of the sea. This extends out to 200 miles. Canada's rights in the exclusive economic zone pertain to the exploration and exploitation, conservation and management of both living and non-living resources in the water column, the subsoil and the seabed below these waters.
In Canada's case, the exclusive economic zone covers a surface area of 4.7 million square kilometres, which is equivalent to approximately half the Canadian land mass.
Turning briefly to the continental shelf, it is defined as the seabed and subsoil of the submarine areas extending beyond the territorial sea of Canada. It extends seaward either to the outer edge of the continental margin, which is considered to be the submerged prolongation of the land mass of Canada underneath the ocean, or to a distance of 200 nautical miles from the base line of the territorial sea, whichever is greater. There is a maximum distance to which that could apply, namely, 350 nautical miles.
Canada has sovereign rights over the continental shelf for the purposes of exploring and exploiting the non-living natural resources on the seabed and in the subsoil. It also has rights with respect to sedentary species. Those species are those which, at the harvestable stage, are either immobile under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. Examples would include Iceland scallops. There was an issue a few years ago with the United Sates with respect to Iceland scallops on the Grand Banks. Snow crabs is another example.
The continental shelf estimate on just the Atlantic and Pacific, not including the Arctic, is approximately 5.2 million square kilometres or approximately 57 per cent of Canada's land mass.
As all of you are aware, on the Atlantic coast the continental shelf extends beyond the 200-mile zone. In some areas off the coast of Newfoundland and Labrador it is expected, when it is finally defined, to extend to the maximum allowable distance of 350 nautical miles.
On the Pacific, the edge of the continental shelf is within the 200-mile zone because of the different topography on these two coasts. In the Arctic, work is still underway with respect to defining its extent.
Part II of the Oceans Act deals with an oceans management strategy which is intended to apply to estuaries, coastal and marine ecosystems and, as set out in the legislation, to be based on three guiding principles: sustainable development, integrated management and precautionary approach.
"Sustainable development" is defined in the legislation in the manner that the Bruntland Commission defined it in 1987, meaning that development will be conducted in such a way as to meet the needs of the present without compromising the needs of future generations.
"Integrated management", in this context, refers to the collaborative development of long-term plans for the management of activities occurring within the estuaries, coastal and marine waters. This implies close coordination and collaboration amongst all those with an interest in oceans and oceans resources.
The precautionary approach is being imbedded in this legislation and also in Bill C-62 on the Fisheries Act, which has been recently tabled in the other place. This is consistent with the approach that Canada has pursued in the last several years in achieving a United Nations convention for the protection of straddling stocks annihilated by migratory species. Precautionary approach principles are built into that convention.
In Part II of the act, the Minister of Fisheries and Oceans is designated as the federal lead for the development of a national strategy for the management of these ecosystems. The minister is required to collaborate with other interested parties, including provincial and/or territorial governments, other federal departments, non-governmental organizations, aboriginal organizations, coastal communities and others with respect to the development and implementation of such a strategy. The minister is directed to lead and facilitate the development of plans designed to implement such a strategy and to collaborate with other interested parties in both of these activities.
It is envisaged that regional plans will be designed to integrate conservation development initiatives which affect estuary, coastal and marine waters. These plans are referred to as integrated management plans.
I should like to stress that the act recognizes that regulators, users, and all others with a stake in the oceans, need to work closely together in the development of an oceans management strategy and its implementation.
Part II of the act also would provide the minister with some basic authorities and management tools to be used in the context I was just discussing. They include the ability to set aside marine areas of particular importance or vulnerability through the designation of marine protected areas; to establish marine environmental quality standards, the objectives of which would be to maintain ecosystem health; and to foster the development of these integrated management plans, to which I referred as blueprints, for the management of activities affecting estuaries, coastal and marine waters.
I will say a few words about marine protected areas. As I mentioned, the minister would be given authority under this legislation to establish marine protected areas. This would be out to the limit of the exclusive economic zone -- that is, 200 nautical miles. Within these areas, specific measures could be applied by geographic area, by feature, by species and by resource activity, and various measures could be introduced to protect vulnerable resources, unique habitats, endangered species, areas of biological diversity, and so on. These are all set out in clause 35. There is also a provision to implement marine protected areas on an emergency basis, if necessary.
With respect to the marine environmental quality guidelines provision to which I just referred, the minister would be given authority to establish and enforce such guidelines, criteria and standards. Essentially, marine environmental quality refers to the physical, chemical and biological condition of the marine ecosystems -- that is, things such as water quality, levels of contaminants in the water, fauna, bottom sediments, and so on.
Part III of the act deals with the powers, duties and functions of the minister. In summary, the responsibility of the Minister of Fisheries and Oceans, for all matters relating to oceans not otherwise assigned by legislation to other departments, is set forth in Part III. In particular, the new responsibility of the minister for Coast Guard services is recognized and set out in the Oceans Act. This reflects the merger of the old Department of Fisheries and Oceans and the Coast Guard component of the Department of Transport into a new Department of Fisheries and Oceans, something which occurred approximately one and one-half years ago.
The authority of the minister to coordinate ocean science policies and programs for the government and to conduct specific activities in delivering his mandate for hydrography and marine sciences is also recognized.
There is also a provision which is being introduced widely in legislation these days which reflects the government's policy for recovery of costs, in that the minister would be authorized under this legislation to fix fees for the use of services, facilities, products, rights, privileges and regulatory processes provided under the authority of this act.
I mentioned Coast Guard services and the fact that this recognizes the minister's responsibility for that. The Coast Guard services are listed in the legislation. Mr. Turner is here and is prepared to speak to that.
I also mentioned the marine scientific activities. The Oceans Act establishes the role of the minister in developing an ecosystem-based approach for oceans. As such, he is required to promote the understanding of oceans, of their resources and habitats and of the processes which affect them. There are a number of other specific points relating to that aspect. The bill sets out provisions with respect to his role with respect to hydrographic services as well.
As all of you are aware, over the last few years the government, through the program review process, has been directing departments across government to downsize programs, to streamline programs, to refocus programs on client needs more clearly, perhaps, than was the case in the past, to take measures to increase the efficiency and the effectiveness of services provided, and to recover costs from those who benefit directly from certain services to lessen the burden on the taxpayer. In this bill, the Minister of Fisheries and Oceans will be given the authority to recover costs for the provision of three types of services, but only services that are provided under the authority of this legislation. They are: the use of services or facility for which the minister is responsible; the use of products, rights and privileges under the authority of the minister; and the use of regulatory processes and approvals granted by the minister.
Before fixing costs for recovery of these services, the minister is required to consult with the clients who may be affected. Any fee provisions are to be published in the Gazette and are subject to review by the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations. I will not elaborate on that further now as it may be a matter we get into during questions.
My final point concerns a summary of the amendments that were made to the legislation as it was dealt with by the House of Commons Standing Committee on Fisheries and Oceans and also during the debate in the house itself. During both these processes, amendments were made which have served to strengthen the bill and to improve the clarity of certain provisions of the bill. The handout lists those provisions. However, I should like to draw to your attention three or four key ones.
The first is the recognition of the role of stakeholders. The preamble and the body of the bill include modifications to meet the requests of witnesses who appeared before the standing committee for a clear definition of interested persons and bodies, setting out the requirement to collaborate with provinces and territories, for example, aboriginal organizations and others, and highlights the role of stakeholders in the development and implementation of the proposed new strategy.
Another area in which there was some significant change was the marine protected areas provision. Section 35 of the legislation was significantly modified to provide a better definition of marine protected areas, broadening the concept beyond fishery resources strictly, by outlining more clearly the measures which could be prescribed in these areas, and by establishing a federal lead for marine protected area provisions. The last is necessary because there are other marine protected area provisions, using the term loosely, which are not encompassed in this legislation. For example, Parks Canada and Canadian Heritage has the concept of national marine conservation areas which, in a sense, are an extension into the marine of the land concept of parks. Under this legislation, the Minister of Fisheries and Oceans would have a coordinating role with any marine protected area provisions which extend into the marine area.
The other key provision is that one of the amendments introduced was the requirement for a comprehensive review of the provisions and operations of this Oceans Act to be initiated three years after enactment of the act and to include a full review of the implications of the act, how it is being implemented, whether changes are required, and so on. The committee is to report back to Parliament with recommendations as to changes in the act or its administration. This review and reporting requirement is similar to provisions that are now emerging in other statutes and provides the opportunity for continued evolution of the legislation after it has been in effect for a period of time.
Clearly, the success of this new legislation will depend on the willingness of the federal government and provincial, territorial, aboriginal and other partners to work together to achieve common goals and objectives. We believe that the Canada Oceans Act is a first step toward reorienting Canada's approach to oceans management. We look forward to the outcome of the review of this legislation by this Senate committee. We welcome your questions, Mr. Chairman.
Senator Stewart: Mr. Parsons, you used the expression "not otherwise assigned". Could you give us some examples of areas of relevant jurisdiction which are otherwise assigned?
Mr. Parsons: There are other federal government department ministers and departments which have legislation which impact on marine areas. Natural Resources Canada, for example, has resource technical surveys legislation which deals with the question of geology and geological issues in the offshore. Under its legislation, Parks Canada would have certain legislation that would impinge on marine areas.
At the moment, led by the Department of Indian Affairs and Northern Development, there is an Arctic Waters Pollution Prevention Act, about which Mr. Turner could speak.
There are a number of other pieces of legislation of this nature.
Senator Stewart: Yes, I understand that. I wanted the examples.
From the part of the country from which I come, it is the Fisheries Act in which we are most interested. How would you define the jurisdictional boundary -- not in geographic terms but in substantive terms -- between that act and this proposed statute?
Mr. Parsons: That is an important question and one which has been raised by witnesses who have appeared before the other committee with respect to this bill.
The short answer is that the Fisheries Act, which is currently being amended and which is before the House of Commons at second reading stage, is the piece of legislation under which fisheries will be managed. Under that legislation, the question of conservation of fisheries resources in general is being dealt with, as is the establishment of conservation measures for fisheries, the allocation and licensing issues which pertain to fisheries, and so on. The new concept of partner arrangements is being developed under that legislation. The management of fisheries will be regulated through the Fisheries Act and not through the proposed Oceans Act.
Senator Stewart: Let me ask about fees in this connection. You made reference to the clauses in the bill which authorize the minister, subject to the regulations of the Treasury Board, to fix fees. The clauses are 47, 48, and 49.
First, there are fees to be paid for a service or the use of a facility provided under this act. Would a wharf used almost entirely by commercial fishermen be a facility provided under this act?
Mr. Parsons: The clauses of the act to which you are referring would provide the minister with authority to set fees for the provision of a service or the use of a departmental facility. The kinds of services or facilities that might fall under this would be, for example, in terms of facilities recovering the cost of a vessel if that vessel was made available for specific purposes. Concerning services, clearly the provision of ice-breaking services and other various marine services provisions would fall under this section. However, the provision of a small craft harbour service is covered under other legislation at the moment.
Senator Stewart: That is my question. I want to get behind your belief.
Mr. Parsons: I will have to check on the small craft harbours aspect.
There has been a great deal of discussion and debate over the last year or so with respect to the imposition of increased access fees in fisheries. Those access fees were implemented under the existing provisions of section 8 of the Fisheries Act and would continue to be implemented in the context of the Fisheries Act legislation. There is nothing in this legislation which provides authority for access to fisheries resources per se that is covered in the Fisheries Act, and fees pertaining to access to fisheries and license fees is a matter which falls under the Fisheries Act, not under this legislation.
Senator Stewart: You will give us clarification on that question?
Mr. Parsons: I will check on the small craft issue.
Senator Stewart: Going to clause 48, we have fees in respect of products, rights, and privileges. Could you give us an example of a product?
Mr. Parsons: Yes. An example of a product would be hydrographic charts.
Senator Stewart: What about rights?
Mr. Parsons: An example of rights and privileges would be costs associated with the establishment and maintenance of oceanographic databases, for example, access to databases or inventions.
Senator Stewart: We then get to fees in respect of regulatory processes or approvals.
Mr. Parsons: This particular provision is standard language that Treasury Board is widely requesting be inserted in legislation now.
This talks about fees for mandatory or optional regulatory processes or approvals that provide specific benefits to users and other primary beneficiaries. We set it at appropriate or reasonable costs. Costs could include issuance of certain types of permits, but permits that fall under the scope of the authority of this legislation, not under some other legislation.
This is a limited provision of this bill. There is not much in this bill that would pertain to that compared with some of the other examples.
Senator Stewart: Under clause 50(3), we have the provision that any fee set under the act is to be referred to the Standing Joint Committee on Statutory Instruments.
Mr. Parsons: Yes, Scrutiny of Regulations.
Senator Stewart: However, the review is to be conducted only by the House of Commons. Under clause 50(2), the review is to be initiated only by the Standing Committee on Fisheries and Oceans.
Mr. Parsons: In clause 50(2), we are talking not about the regulations per se but the review provision.
Senator Stewart: Yes, exactly. It is only the House of Commons which is interested in that.
Mr. Parsons: I believe, but I stand to be corrected, that that is similar to provisions contained in the Canadian Environmental Protection Act.
Senator Stewart: Yes, but this bill must stand on its own merits. Let us say the Senate set up a committee called the Standing Committee on Fisheries and Oceans. Does that mean that the review would them come to that committee also?
Mr. Parsons: That is an interesting twist. The Standing Committee on Fisheries and Oceans that is referred to here at the moment in the legislation which is in front of you is clearly the standing committee of the House of Commons.
Senator Stewart: I have another question, but I do not want to take too much time. I will leave it until later.
Senator Oliver: I was interested in the response you gave to Senator Stewart that management of fisheries will be controlled by the Fisheries Act that is now in the other place and not by this act, namely, the Oceans Act. It may well be that we should hold this act until we see the Fisheries Act, because there is some overlapping. There are a number of fishermen and fisheries organizations that have concerns about this act and the fee structure, and so on, and it might be interesting to look at both of them at the same time to determine whether there might be conflicts. I was fascinated by your response to Senator Stewart.
I am from Atlantic Canada. In the past, one of the main concerns in terms of policy development and fishing in the oceans of Canada has been that those who are most directly involved have not had an opportunity to have a fair say in how they are regulated and controlled. There has always been way too much discretion in the minister and in the senior bureaucrats. The senior bureaucrats set policy regulations, and those such as fishermen who are actually involved in the enterprises of the oceans did not have a part.
There are six or seven clauses in this bill which give too much discretion to the minister. Instead of saying that he "shall" do something, it says he "may", and then it goes on to give him this huge discretion. I am referring specifically to clauses 25, 26, 29, 32, 35(3), 47 to 50 and, in particular, 49.
Perhaps we could start with clause 29. It uses the words "these other persons and bodies". The word that you used throughout your presentation today and the word used in the statute is the word "collaboration". In that context, does that mean that once the minister exercises his absolute discretion in these clauses as I have outlined them, the groups which have an interest must agree? Is that what the word "collaboration" means? It does not say he needs their consent or cooperation; they just must collaborate. Does "collaborate" in that context mean they must agree with him?
In terms of these other persons or bodies, how will that be determined? Who will appoint them? Who can have a say? If there is a group which has a vested interest and has material input to be made to that, how can they get in to the ministers and other persons and bodies in clause 29?
Mr. Parsons: First, with respect to your point about collaboration, that means working closely together.
Senator Oliver: Does it mean consent or cooperation?
Mr. Parsons: It does not mean consent, but it does mean cooperating and collaborating and working closely together.
You referred to absolute discretion. That phrase appears in the existing Fisheries Act, but it does not appear in this legislation.
Senator Oliver: It is implicit in this legislation by the use of the word "may".
Mr. Parsons: The minister, in his absolute discretion, may issue licences, et cetera.
Senator Oliver: Absolute discretion is implicit in this act with the use of the discretionary word "may". "The minister may", opens up a huge, wide discretion for the minister. That is what is troubling.
Mr. Parsons: I did not get a chance to write down all the sections you cited. You also cited Part II, Oceans Management Strategy. The intent here is to work together with stakeholders in an inclusive process, not a process which excludes stakeholders.
Senator Oliver: What could be done to this statute to strengthen it so that it says that stakeholders are not excluded? Is there a way that we could more clearly define these other persons or bodies to make it more inclusive and less discretionary on the part of the minister?
Mr. Parsons: As it is currently drafted and amended, it does put an onus on the minister to engage in an inclusive and consultative discussion process with all stakeholders.
Originally, the wording of these clauses used the phrase "other interested persons and bodies", which was intended to include provincial and territorial governments. In the discussions that occurred in the standing committee in the other place, this was amended to make a specific reference to provincial and territorial governments, affected aboriginal organizations, coastal communities, and so on. The "other persons and bodies" phrase was left there to ensure that people or stakeholders with an interest would not be excluded from this process.
Senator Oliver: If we could find more descriptive language, would you and your department be amenable to an amendment to more clearly include these stakeholders to clarify the language and to strengthen it?
Mr. Parsons: Of course we are amenable. The Senate has its own powers and authorities. Should it choose to make proposals or amendments, that is its prerogative.
The changes that have been made do cover the concern that you are raising. That is my personal opinion.
Mr. Michael Turner, Acting Assistant Deputy Minister and Acting Commissioner, Marine Services, Canadian Coast Guard, Department of Fisheries and Oceans: The wording that is used was intentionally chosen after much consideration to try to deliver a message that went beyond the traditional notion of simply "consultation". The word "collaboration" was intentionally chosen to clearly indicate that the minister had a duty or a responsibility to seek out and work with other bodies that would have an interest in these matters.
As you will appreciate, legislation must be written in a way which stands for the longer term. It was not felt possible to identify specific organizations or groups. Rather, an attempt was made to provide wording that was broad enough to make it clear that all possibly affected organizations, coastal communities, boards, agencies -- that is, everything one could squeeze under that umbrella -- should be included in that collaborative effort. Additional words are then added to allow for any other organizations that may come along with an interest in the matter and ask to be included in such consultation.
The present wording is intended to go beyond the normal, more traditional approach of the minister consulting with parties that want to make some kind of presentation to him and then having discretion to simply do as he wishes. It is an attempt and an effort -- perhaps not a perfect one -- to make it clear that there is an onus to work with all other parties in developing the strategy.
[Translation]
Senator Rose-Marie Losier-Cool: Mr. Chairman, my question is somewhat along the same lines as that of Senator Oliver. When you talk on pages 29, 30 and 31 of working with other federal departments on developing a comprehensive oceans management strategy, to which departments are you referring? What authority or legislative powers do these other departments have over fisheries and oceans?
[English]
Mr. Parsons: There are a number of other departments which have such powers and with whom the Minister of Fisheries and Oceans will be working. Examples would include, for example, Canadian Heritage, Parks Canada, particularly the relationship with the marine protected areas provision. Another example would be the Minister of the Environment, who has responsibility for dealing with land-based sources of pollution which go into the coastal zone. Obviously, there must be a close working relationship between these departments, particularly in the coastal zone area.
Mr. Turner: The most obvious one in our case would be the Minister of Transport, who has responsibility for the Canada Shipping Act sections relating to the regulation of commercial ships and all vessels, including fishing vessels. That includes regulation of their operation, which may have a direct impact on areas of interest under the oceans management strategy.
[Translation]
Senator Losier-Cool: Do you mention Environment with respect to habitat protection?
Mr. Parsons: Yes.
[English]
Senator Robertson: In the past, Department of Fisheries and Oceans had a strategy to protect and manage the marine resources and the habitat. What does this act do that is different from past approaches?
Mr. Parsons: Prior to this legislation coming into effect, the Department of Fisheries and Oceans had the Fisheries Act, which was the vehicle that it used to manage.
There were some other pieces of legislation, but that was the primary management piece of legislation. That focuses on the management of fisheries, the conservation of fishery resources, and the protection of fish habitat on which fish depend.
This piece of legislation is much broader in scope. It picks up on the oceans part in the Minister of Fisheries and Oceans mandate in a much more tangible way. Although the Minister of Fisheries and Oceans had the title of Minister of Fisheries and Oceans in the past, to a large extent, the oceans side of that was kind of words standing there without much import in practice.
Through the merger of the Canadian Coast Guard with the old Department of Fisheries and Oceans, what we now have in practice is truly an oceans-focused department, a department whose scope goes beyond the traditional focus on fisheries. Fisheries is still there, but it is part of a much broader scope and ambit.
This piece of legislation was also spurred to some extent by a study that was done for the Prime Minister by the National Advisory Board on Science and Technology, which did a review of Canada's policies with respect to oceans. That board concluded that there had been a significant gap and that legislative action should be taken to fill that void. With that conclusion, as well as some reorganization within government, these things came together and were the genesis of this piece of legislation.
Senator Robertson: Does this act impact on provinces' responsibilities in Canada's maritime zones? For instance, in Canada's Atlantic province, how does it impact what has been our provincial responsibilities and have they generally supported this legislation?
Mr. Parsons: There have been discussions with the provinces during the course of the development of this legislation.
The legislation does not impinge upon provincial rights or jurisdictions in any way.
It implicitly recognizes that the provinces, territories and others have certain powers and responsibilities. The intent of the legislation is to bridge these issues. For example, in the coastal zone, where you get into issues where the federal and provincial governments, municipalities, and so on, are involved, the intent is to develop an integrated planning approach which would bring these groups together to the table as partners, forging a partnership for the future.
Senator Robertson: I wish to go to another issue at this time.
What countries have ratified the United Nations Convention on the Law of the Sea?
Mr. Parsons: A sufficient number of countries have now ratified the Law of the Sea such that it is legally in force. The number that was required was 60. To date, more than 60 countries have ratified the convention. I do not have the exact number with me as to how many have ratified, but in 1982, 151 states signed the convention. I can get that information to you, because the status changes with other countries coming on stream.
Senator Robertson: When did we ratify?
Mr. Parsons: That is a good question. Work is under way on drafting legislation that would lead to ratification of the UN Convention on the Law of the Sea by Canada. I cannot give you the exact date as to when that will occur, but our colleagues in Foreign Affairs are working on legislation.
Senator Robertson: Have you any idea when it will be considered appropriate to ratify? What seems to be holding up our participation in that ratification?
Mr. Parsons: At the moment, the people who are drafting this legislation are looking at the necessary changes to Canadian statutes, which must be made in order to bring those statutes in line with the provisions of the Law of the Sea convention. They are moving in that direction. They are drafting legislation, but I cannot give you a date as to when it will be introduced.
Senator Jessiman: Is Bill C-26 a necessary step towards Canada's ratification of the United Nations Convention on the Law of the Sea or not?
Mr. Parsons: I would ask the legal advisor from the Department of Justice to comment upon that.
Mr. Alan Willis, Specialized Legal Advisory Services (International), Department of Justice: It is not an essential step; nevertheless, it makes a contribution to our being able to ratify because it implements the basic jurisdictional zones that are created by the 1982 convention, including the exclusive economic zone and the contiguous zone.
Senator Jessiman: You said that you consulted with the provinces and the territories. Do they all support it or do any of the provinces or territories not support it?
Mr. Parsons: To my knowledge, one province stated some difficulty with this, namely, Quebec.
Senator Jessiman: Clause 47(2) reads:
Fees for a service or the use of a facility that are fixed under subsection (1) may not exceed the cost to Her Majesty...
For clauses 48 and 49, the fees there are not limited in any way. Is there a reason? If so, could you tell us that reason? Will you make a profit?
Mr. Turner: The section to which you are referring, which has a restriction on it, is the normal operation of the government of Canada with respect to not recovering more for a specific service than that specific service costs to provide. There are numerous examples. For example, it could be making available a ship, in my case from the Coast Guard, to carry out some function for the private sector. We put a fee in place to cover that cost and the cost that is recovered cannot be more than the total cost to us to provide it.
You may also have situations -- for which the other section is intended -- in which the government has certain intellectual property rights, for example, or certain work that is being done by its own public servants or in its own laboratories, under the responsibility of Dr. Parsons, for which the developmental costs may be fixed at a certain level but for which the value of the intellectual property is far in excess of the actual cost of having developed or invented it. In those cases, you do not want to restrict the government in its ability to bring in revenues from licensing or sales of technology or inventions or an intellectual property. The intention is to allow more than the direct cost of developing that idea.
Senator Jessiman: With no limitation whatsoever, though.
Mr. Turner: Whatever the market would bear.
Mr. Parsons: An example of that would be in the area of biotechnology, where researchers and department subscience laboratories working in the aquaculture area have made significant developments in terms of developing technologies which enable the growth of fish in a way which is beneficial to the aquaculture industry. A lot of that work is patentable. There are potential benefits to the government from that. These provisions would allow for the government to reap some rewards from this investment.
Senator Landry: In the table of contents, at number 6 on page 20, you say that there is a penalty of $500,000 for contravening the regulations in a marine-protected area. What happens when it is the other way around, when it involves the Department of Public Works, the Department of Tourism, or Parks Canada?
Mr. Parsons: If they committed violations?
Senator Landry: Exactly.
Mr. Parsons: If they committed violations, then they would also be subject to charge and to penalty.
Senator Landry: I am making a study on the causeway. I find that for some of those causeways, no consideration was given at all for fishways.
Senator Stewart: The Canso Causeway, for example.
Senator Landry: Yes, the Canso Causeway, for one; but I am looking at several of them. There is one -- and, I will not reveal the actual location because I am making a study on it now -- that was a natural harbour that could take in a schooner with 200 tonnes of coal in 1880 without any problem. All these causeways originated between the fifties and the sixties. I think the idea, which was not a good one, came from Europe and no consideration was given to the fish stocks. I could name you one harbour, which I found was the worst, in which they killed all the shellfish, clams, oysters, and so on. They have been after the department for 10 years and more but have not received a response.
Mr. Parsons: There are provisions in the existing Fisheries Act. Two amendments contained in the existing Fisheries Act were introduced in the 1970s. They deal with the protection of fish habitat. These are powerful provisions. There is a process whereby, if someone proposes a development or activities which could harm fish habitat, harmful alteration, disruption or destruction of fish habitat cannot occur without authorization of the Minister of Fisheries and Oceans.
Since the Canadian Environmental Assessment Act was introduced under the Minister of the Environment more recent than that, if a decision was made to issue an authorization to allow such activity to occur, those particular provisions in the Fisheries Act would now trigger a review under the Canadian Environmental Assessment Act. Various stages of review can occur. There can be a screening to see whether there would be adverse impacts and perhaps the project could proceed. There could be a requirement for a comprehensive study much more in-depth than that, or there could be a requirement for a panel review where you set up an environmental assessment panel. With stipulated panel members, you conduct public hearings. The panel makes a report, and then the results of the panel review recommendations are considered by the Department of Fisheries and Oceans. Recommendations are then made to the federal cabinet.
A vivid example of that at the moment would be the proposed mine-mill project in Labrador with respect to Voisey's Bay and the mining development there. The federal and provincial governments are working together to put in place a joint panel review to assess the environmental impact of that project. That will take place over perhaps one-and-a-half years. That panel will then report their recommendations on the extent of adverse environmental impacts and on what kinds of mitigative measures might need to be put in place to minimize those impacts or avoid them. The government would then take that into account and respond in terms of giving the final approval for going ahead.
That is what modern legislation permits. In earlier days, those sorts of provisions were not in place.
Senator Landry: Exactly. Could you provide me with some of those acts and send them to me at a later date?
Mr. Parsons: Yes, most certainly.
Senator Stewart: To reinforce Senator Landry's point, when the Canso Causeway was built connecting the mainland of Nova Scotia to Cape Breton Island -- or whichever way you want to put it -- no provision was made for a fishway or even a tideway. The Department of Transport denied that it had any effect on adjacent lands, but ex gratia payments were made nevertheless. That did not meet the complaints of the fishermen who felt that the lower end of the gulf became an enclosed body of water, which had an effect upon fish stocks. Every once in a while one hears that complaint. There was a great deal of indifference when that causeway was built. That is a footnote to Senator Landry's point, which is a good one.
I wish to return to the whole question of fees. When I look in the interpretation section, I read that a marine installation or structure includes:
(c) any other work or work within a class of works prescribed pursuant to paragraph 26(1)(a);
I turn to the aforesaid provision, and I read that:
The Governor in Council may, on the recommendation of the Minister of Justice, make regulations
(a) prescribing a work or a class of works for the purpose of the definition "marine installation or structure" in section 2;
I have forgotten what the logical term is for this, but it is something close to being tautology; that is, two equals two. A marine instruction is, in effect, whatever the Governor in Council says is a marine installation or structure. That is hardly a descriptive definition, but that ties into the whole question of fees.
Mr. Parsons: At this point, I should point out something which I did not point out in my introductory remarks, namely, that a number of existing pieces of legislation have been modified and incorporated into this Oceans Act. One example is the Territorial Sea and Fishing Zones Act, which is administered by the Minister of Foreign Affairs. For example, you were referring to clause 26. If you turn to clause 25, it talks about regulations being made on the recommendation of the Minister of Foreign Affairs pertaining to the zones, the base lines, and so forth. Clause 26 pertains to recommendations being made on the recommendation of the Minister of Justice. This relates to the incorporation into this act of an existing piece of legislation, the Canadian Laws Offshore Application Act.
Mr. Willis is an expert on this, and I will ask him to explain how this relates.
Mr. Willis: The main point is what Dr. Parsons said, namely that this definition, plus the regulation-making power to expand on the classes of marine installations and structures, has simply carried forward from the existing legislation and is not new.
Going back approximately 10 years, when the Canadian Laws Offshore Application Act was developed, we thought it was essential to anticipate and provide enough flexibility to take account of new kinds of technology. While the basic concept of a marine installation or a structure to which Canadian laws would apply under this definition was primarily related to oil and gas rigs, as well as pipelines and the various known forms of technology that are listed in paragraph (a), we thought it was useful to have a power to broaden that and to identify new types of off-shore structures that might come into being in the future, such as artificial islands.
I have seen statutory definitions that are more tautologist in the sense that they give no definition at all and give a blanket power to the Governor in Council to define. Here, at least, we have two fairly precise categories to which we may add by way of further definitions.
Senator Stewart: Could the term "facility", as used in clause 47, be included under the general category of "marine installation or structure" as in the interpretation as amplified by clause 26(1)?
Mr. Parsons: If you look at clause 47(1), it states that:
The Minister may, subject to any regulations...fix the fees to be paid for a service or the use of a facility provided under this Act by the Minister, the Department or any board or agency of the Government of Canada for which the Minister has responsibility.
This other clause 26, as Mr. Willis was describing, was incorporated from the Canada Laws Off-shore Application Act and is intended to apply. That would not fall under this clause 47 provision. This is a regulatory power with respect to offshore installations and structures, which had its origin in derricks, oil rigs, and so forth.
Senator Stewart: You are saying that the term "facility" in clause 47(1) does not fall within either the definition set for in the interpretation section or in clause 26(1)(a).
Mr. Parsons: I was referring specifically to clause 26(1)(a). If you could direct me to the interpretation section, I will check it.
Senator Stewart: It is on page two and reads:
(c) any other work or work within a class of works prescribed pursuant to paragraph 26(1)(a);
Mr. Parsons: Were you referring to the definition of a marine installation or structure there?
Senator Stewart: Yes.
Mr. Parsons: That is intended to apply with respect to the clause 26 provisions.
Senator Stewart: Yes, but my question is with respect to the relationship between the clause 26 provisions and clause 47. Is there an overlap there?
Mr. Parsons: No, there is not an overlap. Perhaps Mr. Willis could explain it more explicitly.
Mr. Willis: The definition in clause 2 of "marine installation structure", as well as the supplementary powers under clause 26(1)(a), would take effect only where the expression "marine installation or structure" appears in the legislation. In clause 47, we are not using that particular phrase, so I would not see a relationship between the two.
Senator Stewart: We can take it, then, that there is not an overlapping relationship?
Mr. Willis: That is correct.
Senator Stewart: To shift to another area, we have definitions of Canada's maritime zones. These were described for us quite clearly at the beginning of the presentation. Honourable senators know that the Foreign Affairs Committee has been interested in Canada's failure to achieve a working plan arrangement with the European Union.
Evidently, we did not receive the signature of a working plan agreement with the European Union on June 26 of this year because of the Estai incident. Did the Estai incident occur outside Canada's maritime zones?
Mr. Parsons: Mr. Willis could correct me on this, but, yes, the Estai incident occurred outside the 200-mile fishery zone which exists.
Senator Stewart: The present bill would not have any bearing whatsoever upon an incident such as that? The jurisdiction purported to be exercised by this bill stops at the outer limit of Canada's maritime zones. Is that correct?
Mr. Parsons: With respect to Canada's rights and responsibilities pertaining to an exclusive economic zone, it would stop at 200 miles. With respect to continental shelf rights and responsibilities, it would go beyond 200 miles on the East Coast.
Senator Stewart: But the continental shelf would not have affected the Estai incident?
Mr. Parsons: The Estai incident is a fisheries protection issue. The relevant legislation at the moment in Bill C-29. This legislation would not in any way touch or infringe upon that.
Senator Oliver: I should like to follow up on the word "facility" that was raised by Senator Stewart. You concluded that there was no overlap.
In the other place, the Area 19 Snowcrab Fishermen's Association of Chéticamp appeared. They had great difficulty with this word "facility." They said:
We find the wording set out in part III, clause 49, wherein the minister is authorized, subject to Treasury Board regulations, to fix fees for a service or use of a facility, to be ambiguous. We can find no definition of a facility.
Clause 50, which also gives the minister the ability to charge fees for products, rights and privileges, also gives us some grave concerns with respect to partnering agreements and double fee structures. Our understanding of public-private partnering is that many services that have heretofore been provided by the government's largesse may be contracted out to the private sector.
They go on to say that they do not mind paying for things which are legitimate, but:
In cases where fishermen pay for the cost of services such as dockside monitoring, data collection, and scientific research, we take the position that fees for products, rights and privileges, if they are with respect to those services, must be adjusted accordingly...
So that there is no discrimination or double jeopardy as a result.
Are the concerns raised by these crab fishermen in the other place legitimate concerns? If they are, how can they be corrected by amendments to this statute?
Mr. Parsons: The honourable senator is quite correct in referring to the testimony by these witnesses before House of Commons standing committee. They were among several groups who raised questions about whether certain provisions in the Oceans Act would be the vehicle for partnering in fisheries or for charging fees for certain access-to-fish-resources issues, and so forth.
Those issues were discussed at great length with them. In addition to their appearance before the standing committee, there were also meetings between departmental officials and the crab fishermen representatives. There were briefings subsequently in the region which went a long way to allay the concerns which had been raised at that point during the proceedings.
There was confusion at one point in the minds of a number of people about the relationship between the Fisheries Act and the Oceans Act. This is, in part, where this occurs.
Senator Oliver: You said to Senator Stewart today that things in relation to fisheries will be covered by the Fisheries Act which is now in the other place.
Mr. Parsons: That is correct. In the briefings and subsequent discussions which occurred with these and some other witnesses, it was made very clear by officials before the standing committee and by the minister in the House of Commons that this act is not intended and cannot be used to regulate fisheries. A much more comprehensive and amended Fisheries Act is coming forward which deals with the issues of partnerships and partnering; and with the minister's powers to conserve and to protect fish habitat, which deals with the question of allocating fish resources, licensing provisions, and so on. It is explicit in there.
Senator Oliver: Is there any overlap in these two statutes?
Mr. Parsons: No, there is no overlap in them. That point was explained.
This concern was raised as the standing committee in the House of Commons began to review the bill and to examine it clause by clause. After examination of the issue, it was concluded that there was no overlap on that issue.
Senator Oliver: Is there an overlap on any issue between the two acts?
Mr. Parsons: No.
Senator Robertson: Are there any contradictions between this act and the Fisheries Act which is coming to us? I presume the Fisheries Act will be immensely concerned with the economic opportunities, for example, in Atlantic Canada. Is there anything in this legislation that would contradict the thrust of the department in exploring all economic opportunities?
Mr. Parsons: No, there would not be anything in this act. There is nothing in this act which would adversely impact in that way. The intent of this act -- I talked about guiding principles and sustainable development -- is a balance between the conservation aspect and the developmental opportunities. These acts have been drafted by people who are knowledgeable of both acts. Great care has been taken to ensure there is no overlap.
Senator Robertson: We do not have to remind ourselves often that, even with the greatest of care, there can still be some ambiguity.
Mr. Parsons: I would be the first to admit that, yes.
Senator Robertson: In terms of the integrated management plans involving stakeholders through active consultations, when the consultation process does not produce agreement does the act provide for a dispute settlement process? What happens when it breaks down?
Mr. Parsons: The underlying approach in this act is that development of these integrated management plans will occur through a process of collaboration -- that is, working together.
There will be differing views. On certain issues, some provinces will have views that differ from those of the federal agencies concerned. The intent is that that would work through a process of discussion and a consensus would be achieved. If there were no consensus, there would not be action to accept. For example, if, in the case of marine protected areas, the Minister of Fisheries and Oceans deemed that a fisheries resource or habitat, or any of the other things that fall under the MPA provisions, were at risk and in need of immediate attention, there is an emergency provision for that and regulation-making power for the longer term.
In terms of the generic approach toward coordinated and collaborative integrated planning, there are no similar provisions in this act for the Minister of Fisheries and Oceans to say, "To heck with what you say; this is what I will do."
Senator Robertson: Should that happen, we will have to figure that out.
Mr. Turner, search and rescue falls under your jurisdiction?
Mr. Turner: Yes. We work in close cooperation with National Defence. The Minister of National Defence is the spokesman for search and rescue in the House of Commons.
Senator Robertson: Those of us who live on the Atlantic Coast are concerned about the adequacy of search rescue with the antiquated equipment that we have.
Mr. Turner: You may be referring to the antiquated equipment which has wings on top -- helicopters. Those pieces of antiquated equipment, I am pleased to say, are not part of the Coast Guard. Our search and rescue equipment is in fairly good shape along the coasts in Atlantic Canada, particularly the shore-based life boats. For example, in the maritimes we are about two-thirds of the way through a program to replace older 44-foot search and rescue life boats with a brand new generation of 54-foot, more capable, more powerful and faster life boats capable of providing better service.
Senator Robertson: That is good.
Mr. Turner: In the offshore, we are facing a major challenge with respect to maintaining salvor coverage because of the budget situation we are in. With the integrated fleet of the department that is now under the Canadian Coast Guard, we are trying to ensure that we make the best use of every vessel that remains within the department and the fleet and we are working closely with our colleagues in DND to make sure that adequate salvor coverage is provided in the offshore.
Senator Robertson: If we want more information about helicopters, we must wait for the Department of Defence?
Mr. Turner: That would be the best course of action. We do play a limited role with our helicopters in search and rescue.
Senator Oliver: Were these 54-foot boats made in Atlantic Canada?
Mr. Turner: They were made in a couple of different locations. A couple were made in Georgetown in Atlantic Canada; others were made in a plant in Ontario. They are a standard design which we have been building for Eastern Canada. We are about to embark on the construction of a new series of small vessels of roughly 48 feet which are based on the U.S. Coast Guard's latest life boat design. The tender has not been awarded for those vessels yet. A number of those will be put on the West Coast and some in the Great Lakes. The ones that were felt to be best for the East Coast were the larger 54-foot vessels because of the more extreme conditions one experiences in the Atlantic in the winter time compared to the Inside Passage, for example, in British Columbia.
The vessels we are using to modernize the fleet on the East Coast are the larger, more capable, self-righting lifeboats of the Arun design. They seem to be working out extremely well. The units which have been delivered so far are performing at expectation or above and we are looking forward to completing the replacement program for those units along the coast.
Senator Stewart: I wish to ask a question about provincial involvement. Clause 26(1) reads:
The Governor in Council may, on the recommendation of the Minister of Justice, make regulations...
(k) making federal laws or laws of a province or any of their provisions applicable, in such circumstances as are specified in the regulations,
Could you give us examples of where a provincial statute would activate that power of the Governor in Council? Are we talking of things such as sewage disposal, for example?
Mr. Parsons: I will turn to Mr. Willis on this. These sections derive from the Canadian Laws Offshore Applications Act.
Mr. Willis: This section is carried forward from the Canadian Laws Offshore Application Act and is not aimed at any particular category of provincial statutes. It is designed to be extremely flexible to allow the application of any provincial statutes that might be considered necessary.
I can give a couple of examples. In the offshore legislation, under the Atlantic Accord and for Newfoundland in the oil and gas sector, certain provincial taxation statutes as well as provincial labour relations statutes have been applied to the offshore. That was done through special legislation but could, in future instances, be done through this provision.
Senator Stewart: That does assist.
I wish to return to something to which I referred earlier, namely, the matter of the review. Clause 52.(1) says:
The administration of this Act shall, within three years after the coming into force of this section, be reviewed by the Standing Committee on Fisheries and Oceans.
We are told that that means the committee in the other place. It goes on to say:
(2) The Committee shall undertake a comprehensive review...
I find this kind of provision offensive. In effect, it means that the Senate is telling the House of Commons what it is to do. In the same way as we would be offended if they undertook to tell us what we should do through our committees, I assume that they would have grounds for feeling that way.
In this case, I gather that this is a provision which originated in the House of Commons. They are placing statutory implications into the operation of their own house. It is bad, but I suppose if they want to inflict this kind of unconstitutional blemish on themselves, that is their business -- at least, as far as we as senators are concerned. As citizens, we may think it is bad.
I will not suggest that we ask to be included in here. I think it is improper for statutory intervention into the proceedings of either house. Each house is master of its own business. If they want this, that is their business. I would not suggest that we undertake to amend, although initially I thought of suggesting that we do so.
Senator Robertson: Do we have other examples of that, Senator Stewart?
Senator Stewart: The classic case is the example that goes back to the review of the distribution legislation in 1963 or 1964. It required that the House of Commons shall do such and such. In the days when people paid attention to important constitutional principles, that kind of statute would never have been enacted. I do not blame the drafters; they are following the pressure from people in the other place. I think it is bad.
Senator Robertson: I have to agree with you.
Senator Stewart: However, it is there.
Senator Petten: Mr. Parsons, you mentioned the extra 12-mile zone and you referred to the 350 miles that our continental shelf goes out into the ocean.
Does this bill in any way affect the legislation now in place that looks after the straddling stocks? If I remember correctly, that legislation was Bill C-29, which was put in place approximately two years ago. Does this bill have any effect on that act, either in terms of cutting it out, shortening it, or whatever?
Mr. Parsons: My understanding is that this legislation as drafted would not in any way impinge on Bill C-29. Perhaps Mr. Willis could confirm that.
Mr. Willis: Yes; that is correct.
Senator Landry: Your mention of Coast Guard rang a bell for me. Is it the same Coast Guard that patrols the zone and line for crab fishermen?
Mr. Turner: The Coast Guard is now part of the Department of Fisheries and Oceans. Therefore, yes, it is the Coast Guard because it is the department that regulates the fishery activities -- not as part of our program but, rather, in our case, as part of the service and support we provide in the conservation and protection arm of the fisheries management section of the department. In a program and legislative sense, that is a responsibility of the department and of the assistant deputy minister in his program. We provide the support and the vessels on which fisheries officers travel. For example, in the future, they will be Coast Guard vessels because all the department's vessels will be part of the Coast Guard fleet.
Senator Landry: Mr. Mifflin was complaining about how expensive it is to continue to patrol those zones. If some of those lines could be dealt away with, a lot of money could be saved. For example, with regard to Zone 26 on Prince Edward Island, I wonder whether or not the inshore fishermen catch their crab inside or outside the line. The crab still swims on both sides of the line. If that line were eliminated, it would save a lot of money.
Mr. Parsons: Senator Landry has put his finger on a sensitive and controversial issue. I refer to the management of the snow crab fishery and, in particular, the question which has been around for many years concerning the access of Prince Edward Island fishermen to the full resource in what is called Zone 26.
As many senators are aware, that has become a particularly controversial issue in 1996 -- not that aspect of it necessarily, but the whole business of how the snow crab fishery in Zone 26 was managed. Discussions are under way with participants in the fishery, which, hopefully, will lead to some improvements in the management plan for 1997.
There are quite a few people in Prince Edward Island who feel that the line should be removed and that they should have free and unrestricted access to all of Zone 26. That is a very ticklish fish management issue for which I am not equipped to provide a resolution today.
Senator Landry: The same people who were against putting the line in are now against removing it.
Senator Robertson: Does this bill in any way affect the aquaculture industry?
Mr. Parsons: There are no specific provisions in the bill which would directly impinge on aquaculture. However, in respect of the generic business of developing integrated management plans for activities in the estuarine coastal waters, one would see the aquaculture industry and the stakeholders in it as part of that process. As you know, there is conflict between traditional users of fish resources, for example, and those involved in the aquaculture industry, particularly in some areas. I can see a potential application down the road in the sense of integrated management plans being developed through discussion and collaboration.
We are into a situation where, for example, the provinces regulate the aquaculture industry in terms of determining the sites, leases, and so on, whereas the federal government regulates the wild fish resources in terms of conservation measures and licensing access to the wild fish resources.
There must be management and collaboration in that area to ensure, on the one hand, that the wild fish resources are protected while, on the other hand, economic opportunities from the aquaculture industry, which has been quite a boon in parts of Atlantic Canada, in particular the Bay of Fundy area as well as in British Columbia, are also realized.
The Chairman: I wish to return to a question that was raised initially by Senator Stewart. I did not view it in the way that he explained it. I am referring to clause 52 whereby the House of Commons would be subjecting itself to enact certain measures. I do not think we should put ourselves in that position.
On the last page of the briefing binder that was submitted to us some time ago there is noted something with regard to the Coast Guard marine fees report. It states that the study report will be submitted in November 1996 to the Standing Committee on Fisheries and Oceans and the Standing Committee on Transportation for review and that the report will be released publicly.
Is there any reason the other house of Parliament was excluded from receiving such a report? Given that we are still one of the two houses of Parliament, would it not be appropriate for the second House of Parliament also to receive this report?
Mr. Turner: I am sure the minister would be more than pleased to submit copies of the report to this committee or to senators generally. There was no intent to exclude, rather, simply to indicate to all those who are interested that the department has every intent of inviting scrutiny by Parliament of the impact study that is currently under way.
The Chairman: You might tell the drafters of bills under your jurisdiction that this has been creeping in more and more. We saw it with regard to regulations connected with the EU bill, whereby under the act any regulations would only be submitted to the House of Commons. It is my contention that until such time as the Senate is changed, or whatever might happen to it in the future, we are still constitutionally mandated to respond to legislation that comes before us. It is quite offensive for the Senate and senators to be excluded specifically from receiving legislation or from being able to scrutinize it.
It appears almost as if we must sign a blank cheque saying, "By all means, submit this only to the House of Commons and not to us." That is just a point I make in passing.
Mr. Turner: I wish to clarify something on that point. The material we are proposing to submit to the standing committees of the house, in either fisheries or transport or some combination thereof, is not in any sense legislation; it is simply an economic impact study that has been done. There is no legislation expected to arrive arising from that.
The Chairman: I stand corrected. I may have used the incorrect wording there. The spirit of what I am saying is that it might be appropriate when such undertakings are made to one of the two houses to make them to the other house as well.
On page 29 of the bill, clause 42(j) says:
conduct studies to obtain traditional ecological knowledge ...
What is "traditional ecological knowledge" as opposed to ecological knowledge?
Mr. Parsons: This was an amendment which was introduced in the standing committee of the House of Commons.
The reference is to the knowledge of fishers and their understanding of how fish resources behave, their migration patterns and distribution. In other words, in addition to the traditional kind of hard and rigorous scientific approach as a traditional science, to ensure that fishers' knowledge, aboriginals' knowledge, and so forth, are brought into the process when debating the status of fish stocks and assessing the status of fish stocks.
One vivid example of that, which has been under way now for two years throughout Atlantic Canada, is the so-called Sentinel Survey Program where, in stocks that have been under moratoria, a limited number of fishers with a limited amount of fishing gear have been engaged in a program jointly with scientists where scientists and fishers together designed the program. They do some limited fishing to provide some kind of relative index of whether or not the stocks are recovering.
The Chairman: It struck me as being different. I had not seen such qualifiers in legislation before.
Mr. Parsons: You are correct in that respect. There may be some other pieces of legislation, but this is one of the first times I am aware where there is explicit recognition that in terms of this kind of process, you will take into account the knowledge of people who earn their living on the sea and who know so much about the oceans and the sea. They have knowledge, and that knowledge should be taken into account.
The Chairman: Clause 35 refers to marine environmental quality guidelines. It also refers to the power of the minister to issue a cease or delay order on any kind of activity in certain areas. It limits the length of time that the minister can limit any kind of activity to 90 days. Do I have that correctly?
Mr. Parsons: Are you referring to clause 35 with respect to marine protected areas?
The Chairman: Yes.
Mr. Parsons: Yes. This would provide the minister with the authority to designate certain areas as protected areas for special protection for the number of reasons that are listed there.
It also provides in clause 36 for an emergency power whereby, if the minister is of the opinion that a marine resource or habitat is or is likely to be at risk, to the extent that such orders are not inconsistent with a land claim settlement that has been given effect, the emergency order could be brought into effect. But that emergency order would cease to have effect 90 days after it is made.
I remember the timing being discussed in the standing committee of the house. I do not recall all the details, but various times were discussed. That is what was finally settled on. The intent would be that you could put in an emergency order and that emergency order could stand for a long period of time without it having to go through the normal process. In other words, if you thought that such a marine protected area was necessary, for whatever reasons, then before the 90 days ended you would have to put that through the regular process of regulation making such as due notification, and so on.
The Chairman: A few years ago the Georges Bank drilling question arose. I do not have all the details in front of me, but the minister of the environment at the time simply issued an edict saying that there will be no drilling on Georges Bank for "X" number of years.
Given that we are now amalgamating a number of acts, are we now limiting the kind of power that the Environment minister had at that time to stop any drilling on Georges Bank?
Mr. Parsons: No, this particular legislation would not limit that kind of power.
The Chairman: Henceforth, the minister will be responsible for setting the environmental guidelines for marine protected areas. He will also be entering into partnerships for the exploitation of the resources. The minister will also be responsible for reviewing when people are brought in. In other words, the minister will have many different hats.
Are we perhaps setting up a system whereby the minister might have too many hats? On the one hand, he is wanting to exploit, for Canadians' benefits, the value of resources but, on the other hand, he is responsible for issuing the partnerships, and so on. In other words, are we issuing him too much power and not perhaps creating a division of power? Rather than creating a division of power, we are creating an amalgamation of power.
Mr. Parsons: The minister would have two major hats. One is his authorities and responsibilities with respect to the fisheries. That is covered in the other piece of legislation to which I referred, which is coming forward in an amended form and may be further amended after hearings, and so on.
The second major hat is his hat as Minister of Oceans. This piece of legislation pertains directly to that. It attempts but does not pull together every vestige of things that relate to oceans within the Government of Canada. We talked earlier in response to another question -- I think it was from Senator Stewart -- about the authorities of certain other ministers.
The Fisheries Act specifically, Bill C-62 which is currently before the other place, deals with conservation. There is a section which deals with the minister's obligations to protect the fish resources. There are sections that deal with allocation and licensing powers, and there are also provisions that deal with this partnering issue, which is an issue on which there are differing views among people across the country, all people who participate in the fishery. Some people are strongly in favour of these partnering initiatives; some people oppose them. There will be hearings and discussions on that, and I would not like to predict the outcome of those discussions.
The Chairman: It serves the purposes of protecting the oceans by sometimes having a healthy division of powers. For example, the ministers sit around the cabinet table. One says, "I am here to protect the ocean." The other minister might say, "I am here to oversee the exploitation of the benefits of the ocean." Sometimes it creates a healthy environment that the two people are not the same person. I am not suggesting that the current minister would be in conflict with those two conflicting concerns, but it may happen that a future minister might not feel the same responsibility toward the oceans as someone else.
Are we creating a situation in the future where a minister might come around and use his hat of exploitation more than his hat of conservation?
Mr. Parsons: I do not see that occurring for the following reason: Within the fisheries part of his responsibilities, he has and has had the responsibility to conserve and protect the fish resources and to protect the habitat on which the fish resources depend for survival. At the same time, he has had the responsibility to control the exploitation aspect.
In a sense, that is inextricably intertwined. It is difficult to envisage a situation where you would have a minister who is only responsible for conserving and protecting the fish resource and another minister dealing with the exploitation issues related to fish resources.
The Chairman: I do not want to prolong this, but my impression was that this is the current case with the Minister of the Environment being responsible for such things as dumping at sea. If I understand correctly, if people now wish to have permission to dump at sea, there must be a concurrence from the environmental department. Under the new legislation, it will simply need clearance from the Fisheries department.
Mr. Parsons: I should clarify that point. You could have used some other examples that did not fall in this category; however, in the particular example you used about ocean dumping, the ocean dumping provisions remain under the Canadian Environmental Protection Act even when this legislation is passed. That issue was discussed. Consideration was given to incorporating the ocean dumping provisions into the Oceans Act. At one point it appeared that that would proceed, but there was a conclusion that the ocean dumping provisions would remain.
I am commenting on that specific example. There could have been other examples that illustrate your point.
The Chairman: I will look into those.
Someone asked me to ask you if the Titanic is within our economic or territorial zone.
Mr. Parsons: The Titanic is beyond the 200-mile zone. I forget the exact distance, but it is well outside the 200-mile zone.
Senator Stewart: It is outside our jurisdiction?
Mr. Parsons: Yes.
The Chairman: We cannot put in place a cease and desist order on it, then.
I thank you for appearing here this morning.
I should like to ask the committee members their wish for the future. Would you be willing to permit the steering committee look at future business?
Senator Robertson: Certainly.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: If you have any suggestions to make to the steering committee, please do so. They are Senator Petten, myself and Senator Perrault.
The committee adjourned.
OTTAWA, Tuesday, November 26, 1996
The Standing Senate Committee on Fisheries, to which was referred Bill C-26, respecting the oceans of Canada, met this day at 4:20 p.m. to give consideration to the bill.
Senator Gérald J. Comeau (Chairman) in the Chair.
[English]
The Chairman: I call the meeting to order. Responses to questions asked of officials of the Department of Fisheries and Oceans at our last meeting on Bill C-26 have been circulated to members of the committee.
This is the second meeting of the committee on Bill C-26. We have three witnesses this afternoon. We will hear from them in two segments.We will begin with Mr. William Moreira of the Independent Inshore Lobster Fishers of Nova Scotia. The second group to appear will be from the Canadian Shipowners Association, and third, the Chamber of Maritime Commerce.
Senator Robertson: Mr. Chairman, we have the list for which we asked. Would you request a list of the countries which have not signed?
The Chairman: Yes, we will do that.
Welcome, Mr. Moreira. Please proceed.
Mr. William Moreira, Counsel, Independent Inshore Lobster Fishers: Thank you, senators, for the invitation to appear here. I have the honour to appear on behalf of a friend and client, Mr. Henry Surette, who was scheduled to appear here. However, as his lobster season started yesterday, he was unable to come to Ottawa today.
I will commence with a short but necessary disclaimer. I am the co-chair of the Canadian Maritime Law Association's committee on fisheries. I am the national chair of the Canadian Bar Association's section on maritime law and I am a teacher of fisheries law at Dalhousie Law School. I must put on record that I am not here today representing any of those organizations. I have no mandate to speak on their behalf. I have, however, the mandate to speak on behalf of Mr. Surette and his colleagues who are fishing today.
I hope that my opinions and knowledge concerning the industry might be of some help to the committee.
Senators, the concern of the inshore fishery, by which I mean the small vessel, independently-owned sector of the Nova Scotia fishery, with the proposed oceans act is with respect only to Part II, clauses 28 to 39, and what is perceived to be the potential which exists in Part II for a further, a second or a superseding regulatory regime to be imposed on the fishery in addition to that which already exists under the Fisheries Act.
My friends and colleagues at the Department of Fisheries and Oceans, as recently as upon my arrival in this building this afternoon, took me to task for my interest in the proposed oceans act, saying that the fisheries already has its own well understood regulatory regime and that the fisheries should not perceive as a threat the various provisions of this proposed act.
I hope that is so, although perhaps not for the reasons that my friends think.
The concern is that there exists the potential for inconsistency of regulation of ocean resources under the Fisheries Act regime and under the coming oceans act regime, that there is potential for different decision-makers to be addressing the same issue or problem and for inconsistent decisions to result. As one in the trenches, or on the ships where this industry is carried out, one must, of course, be concerned and cautious to apply all applicable laws regardless of from which piece of legislation they might emanate.
To be specific, senators, the concern of the small vessel sector in Nova Scotia arises from clauses 31 and 32 of the bill. Those are the clauses which create potential for problems for the industry.
Clause 31 requires the minister, in consultation with several others, to develop and implement plans for the integrated management of all activities -- and I underline the word "all" -- in, among other places, marine waters. That necessarily implies, I suggest, the integration of the management of fishery resources with the management of other marine resources. Because of that requirement in clause 31 of the bill, we say that therefore this bill and that section has a fisheries management purpose quite extraneous to and in addition to that which presently exists under the Fisheries Act.
Second, clause 32(c)(i) empowers -- does not "require" but "empowers" -- the minister to create advisory or management bodies for purposes of implementing these integrated management plans. The concern here is with the word "management". There presently exists, with respect to the fishery, any number of advisory bodies which report to and give advice to the minister and his officials. Those exist and they work -- I think it is acknowledged that they work quite well -- without the need for any specific legislative sanction. To the extent that the proposed oceans act will specifically authorize the minister to consult and to take advice from citizens, user groups and industry with respect to his mandate under the act, that is all to the good. Frankly, that has been the function of that bureaucracy in the way that it has evolved to date and in the way it should continue to operate. However, the concern is with the delegation of management authority to unspecified groups which the minister may appoint for that purpose.
"Management", as used in clause 32(c)(i), must imply something more than advice, and could potentially, in our view, lead to the management decision-making empowerment of bodies appointed by the minister pursuant to that subsection.
In fairness, I must emphasize that departmental officials, including both the former and current minister, have written to me and to others who have expressed this concern assuring us that there is no plan or agenda within the department to supplant or replace the present fishery management regime as it exists under the Fisheries Act with something new under the proposed Oceans Act. I have no trouble accepting the department's word when it says that. However, the rhetorical question which we pose in response is, "If you were going to create these bodies and empower them to manage resources, what ocean resources are they going to manage without affecting fish" -- because we say there can be no management of ocean resources without affecting or touching or impacting the fishery -- "and what authority is it proposed that these bodies should be given under the scope of their 'management mandate'?" If it is advisory only, if the decision-making power for purposes of management under the Oceans Act will continue to repose in the minister, as it does in the Fisheries Act, then the need for the word "management" in that clause is superfluous, unnecessary, and potentially, in our respectful submission, dangerous. I do not want to sound like a lawyer by focusing on only one word out of the many thousands that are in this bill, but that is a word which we say is either unnecessary, and therefore should be deleted, or has potential to do far more than what we are told by departmental officials is intended by the Oceans Act, and, because of that potential, is therefore cause for concern.
One last comment, if I may: The bill, very clearly, in addition to its empowerment of the minister and his department -- I do not wish to sound patronizing -- is laudable because of its mandate for consultation by the minister and his officials with others, particularly other governments, other levels of government, other departments within this government, and I must think that the drafting people very deliberately included "with aboriginal organizations and with coastal communities". There is no dissent or objection to that mandate being given to the minister by this act; however, the reality, I suggest, senators, is that, both presently and historically, the fishing industry is the principal user of Canada's ocean resources, and it will presumably continue to be so. All other resource use in Canada's oceans, I suggest, must be secondary to that traditional and ongoing use by the fishing industry.
Given that pre-eminence of interest in ocean resources on the part of the fishery, we find it a very significant omission and a deficiency in those sections in the bill, particularly sections 29, 32 and 33, where these directed consultation mandates are to be found, that the fishing industry and fisher organizations are not given equal prominence and equal recognition as those deserving of consultation on these issues, at least with aboriginal organizations and coastal communities.
I do not think there is a serious fear that the primary resource user, that being the fishing industry, would be excluded from these consultations. However, one wonders what the policymaker and the draftspeople had in mind in allowing that omission to appear in those sections of the proposed act.
Senators, those are my prepared remarks.
Senator Perrault: Mr. Chairman, Mr. Moreira has suggested that there could be flawed ministerial discretion in choosing individuals to serve on proposed boards. Similar boards have been created time and time again in the history of Canada. I see nothing ominous in the process which has been outlined in this particular measure before us.
Your remarks, to a certain extent, were anticipated, so I should like to put the views of the minister in this regard on the record, if I may. Integrated ocean management, a concept central to the Canada Oceans Act, means ensuring that ocean activities are coordinated, that they fit together, and that they relate. Integrated ocean management plans are regional plans developed in collaboration with stakeholders -- which surely must involve the fisher people -- to manage activities occurring in and affecting estuarian, coastal and ocean waters and designed to reduce user conflicts and sustainably manage ocean eco-systems. Region-specific advisory bodies are needed to ensure that this happens, and there needs to be an even representation of interest on these bodies -- emphasis on the word "even" -- from fish harvesters, environmental groups, aboriginal organizations, and coastal community representatives.
I do not think the fear you have expressed, that somehow the fisher people will be left out of the process and shunted to the side, has any basis in fact. I am pleased to provide this assurance on behalf of the minister.
Everyone will be involved in the design process and planning of the integrated management plans, but because not everyone can comment on every change or decision to be made, people from their own ocean stakeholder groups will be chosen to represent them on advisory boards. As I said, there are hundreds if not thousands of advisory groups that operate in this manner across Canada today.
I do not think there is reason to fear this process. This is probably one of the best things to happen to the fisheries industry in Canada. This is the assurance I provide on behalf of the minister: The minister will recognize stakeholder group representatives based on recommendations made to him by members of the stakeholder groups themselves.
I know the lobster fisher people will wish to have input into that process. This must happen. He will not just arbitrarily choose anyone he wants. A review process has been written into the proposed Canada Oceans Act to ensure that it is not arbitrary or that the minister does not have too much discretion in this area.
I am pleased to put that on the record on behalf of the minister and the government. Does that statement lessen your apprehension about this exercise?
Mr. Moreira: No, senator. I do not disagree with a word you say. As I attempted to differentiate previously, the minister obviously cannot have too much advice from too many people. We have no problem with advice-giving bodies, and we have no real concern that the fishing industry or any of its interested sectors would be excluded from that advice-giving process. The concern we have is the decision-making process by those to whom the advice is given.
Senator Perrault: There is a lack of confidence in the minister's discretion and judgment.
Mr. Moreira: I would say quite the contrary. At the moment, in fishery management, everything is at the discretion of the minister. One can debate into infinity whether a better system can be devised, but the point is that that is where the decisions are made, that is where the management authority resides, and that, for fishery management purposes, is where it will continue to reside. That is a given, and that is accepted.
The concern is what additional decision making entities stand to be created? If the decision is not to be made by the minister, as we say it should be, then the risk of inconsistent decisions and the inconsistent application of policy arises because you have the empowerment of decision-making in different people or in different entities. That is why I say the word "management" is either superfluous or dangerous.
Senator Perrault: Do you think it is right for you to anticipate all this trouble and turmoil? You say there is a possibility that other boards will be appointed as well. Do you take no comfort from this statement by the minister? Are you afraid that your clients will not be given adequate representation on this board?
Mr. Moreira: Certainly, that is a concern because, at the moment in fisheries management decisions, it is typically only the fishing industry which is consulted. If I were here representing environmentalists or offshore miners I would say that the fishing industry is not the only stakeholder and they should not have the whole of the consultation pie to themselves. Any dilution, if I can put it that way, of the influence of the fishing industry is necessarily threatening to the fishing industry. However, I do not think I can convince you -- and it is not my thesis today -- that for that reason such broadened consultation should be avoided. We are all realistic enough to know that that will not happen.
Who will make the decisions? I respectfully submit that the proposed oceans act is not specific on that matter. If it is not the minister, then there is a problem, not because the minister makes good or bad decisions but because you have too many cooks.
I submit that this legislation leaves open this door for decision making authority to be directed elsewhere than to the minister's desk for fisheries purposes, or for any purpose which potentially impacts the fishery. I do not accept that that can be found only within the four corners of the Fisheries Act and not at all in this proposed act. Those decisions, for the sake of consistency, have to repose on the same desk.
You prefaced your comment, senator, by saying that we have all kinds of what I have called administrative tribunals, although I do not think those were your words.
Senator Perrault: They are advisory groups.
Mr. Moreira: No. You talked about the delegation of decision-making authority to boards for which there is ample precedent in legislation, and I agree with that comment. However, I suggest that in other legislation where such delegation of decision-making authority exists the mandate of the decision-maker and the processes by which he makes decisions and the policy parameters within which his decisions must be made are much better defined than in this single word, in this single clause which I have lifted out of the oceans bill. It is the lack of specificity as to decision-making which I say makes the oceans bill different from those other pieces of legislation by which "boards" are created.
Senator Perrault: Do you fear that there will be a proliferation of auxiliary boards which will dilute the decision-making ability of the minister?
Mr. Moreira: If those boards are given that decision-making authority, then, yes, that is a concern.
Senator Perrault: That has been anticipated, too. The reference to advisory or management bodies can only be construed as a body whose purpose is to oversee the implementation of integrated management plans developed under the authority of that act -- that is to say, cooperative planning and management strategy developed with the agencies, other levels of government, and organized groups that are responsible for activities occurring in or affecting the oceans and their resources.
This does not seem to be a plan to establish a number of advisory groups vested with enormous power that could dramatically change the fishing economy and the lives of fisher people across the country.
Mr. Moreira: Senator, I accept the assurance that you have given this afternoon, and that we have received on other occasions from others within the department, that what we fear is not intended by this bill and that that is not the legislators' purpose, to which we say: Why do you have to say "management" then? Why cannot the minister just be advised on these issues, reserving to himself or to his department as presently structured the authority to make decisions?
Senator Perrault: Essentially, the power will be held by the minister to make those decisions. He may be assisted in the process by a number of advisory groups. I am sure that the lobster industry deserves to have representation on the board that will be established and will be given a fair hearing by the minister.
Senator Oliver: Mr. Chairman, at the outset, I would like to welcome Mr. Moreira as a fellow member of the Nova Scotia bar. One of the reasons that my learned colleague Senator Perrault anticipated your questions is that many of the concerns that you have raised about clause 32 and others are identical to the concerns that I raised in my second reading speech on this bill in the chamber. When the government officials were here the last time, I put your questions to them and they said:
The management of fisheries will be regulated through the Fisheries Act and not through the Oceans Act.
So no one who has a fisheries concern should be concerned about this proposed oceans act. As you know, the Fisheries Act to which he referred is now before the House of Commons at second reading stage. My question is this: If you are familiar with that bill as it has been introduced in the House of Commons, do you feel that that fisheries bill in its present form will allay the concerns and anxieties that you have expressed here today on behalf of your client Henry Surette?
Mr. Moreira: No, I do not, senator. I am familiar with that bill. I think that that bill will enhance greatly the quality of fisheries management in Canada. I am not here to criticize that bill.
However, the concern is that if the purpose of this oceans bill is to manage ocean resources, and if the department says, "Because we have the Fisheries Act the Canada Oceans Act will manage ocean resources other than fish," there is not much left for the oceans act to do, I suggest. I do not say that with any intention of demeaning or belittling the concerns of industries other than the fisheries industry. However, because I suggest one must accept that fish will be among the resources, the management of which the proposed oceans act will mandate, it will have, therefore, an effect on the management of the fishery. It will not be used to decide who gets a licence or what quota will attach to that licence or what the season will be. I have no trouble accepting that. However, it will, at the least, I suggest, create a layer of policy or of resource management considerations within which fishery management, as we presently understand it and as it exists under the Fisheries Act, will be required to operate.
I do not think that the proposed oceans act or the Fisheries Act deals with which governs in the case of inconsistency. However, I think the reality will be that the most restrictive rule will be the one with which industry must comply, regardless of which statute or which regulatory regime it comes to be created under.
I accept what the department officials say, but I say that their position is logically untenable.
Senator Oliver: What advice do you have for us as legislators knowing that there are these two bills which have some overlap and some interconnection? Would you say that we should wait for this Fisheries Act, see what amendments are made to it in the House of Commons, and then try to read the proposed oceans act and the Fisheries Act as, perhaps, amended together, to see if there is an overlap, and then ensure that nothing is done to the detrimental effect of your client and others in the fisheries? What recommendations for amendments, redrafting or changes would you suggest to clause 32 of Bill C-26?
Mr. Moreira: I would suggest taking out the word "management". I do not wish to harp on this issue, but with that word removed, those clauses of Bill C-26 become vehicles by which the minister is assisted in obtaining information and advice in order to make decisions.
That is a very narrow answer to your question. In broader terms, one must ensure that there is consistency of treatment on a broad-brush or a macro level between the two pieces of legislation. One must recognize, as I have attempted to articulate this afternoon, what it is that which can be done under Bill C-26 which can have a ripple or a consequential effect on an industry specifically governed by another act.
I do not think it is necessary to have the two bills on the table and compare every word and comma to ensure consistency. I think it can be dealt with on a larger plain by saying: Who are decisions made by? In the fisheries context, they are made by the minister, except in cases where authority is delegated to provinces or departmental officials. Ultimately, a regime of personal responsibility is created.
I cannot conceive that this legislation will be amended in the House of Commons in a way that would take away that feature. Ministerial decision-making capability has been a hallmark of fisheries management since Confederation and is likely to continue.
My clients, like everyone else, find many ministerial decisions which we feel we can criticize, but none of us has been able to devise a better regime to replace it.
The challenge with respect to Bill C-26 is to say we have a very well-defined decision-making structure in place which affects what I respectfully suggest to the committee is Canada's principal ocean-based industry now and is likely to continue to be so for a good many years. Therefore, let us make sure that Bill C-26 neither diminishes nor creates potential inconsistency with that decision-making structure; that is, everything rests on the minister's desk or on the desks of those to whom he delegates.
Frankly, senator, I think that was the purpose of the proposed oceans legislation, because of the reference to the many things that the minister is to either do himself or is to be the leader in having other departments of government so do.
Senator Oliver: I would also suggest other advisory groups or management.
Mr. Moreira: Yes. The minister is the responsible party under the proposed legislation. As a result of that, I am satisfied that big picture consistency already exists. I am suggesting that one must be cautious to pick at the details, to ensure there are no loopholes and no scope of deviation from that consistency.
Senator Bryden: I hesitate to intervene, because I am not as familiar as I should be with this proposed legislation, but there are a couple of points. The minister that you talk about is the Minister of Fisheries and Oceans?
Mr. Moreira: Yes.
Senator Bryden: Under both of these acts, are we dealing with the same ministry?
Mr. Moreira: Yes.
Senator Bryden: It is also a little strange to hear someone representing the private sector coming in and saying that they would like to see more unfettered discretion in the hands of the minister and less input from the communities, the stakeholders and so on. You are suggesting that we remove the only operative term that is in here, the word "management", and stick to an advisory role. It sounds strange to me.
Normally, what we hear in these committees is that all is well and good, but all of the discretion is left in the hands of the minister and his officials. There is no real power, no real authority in the people, in the communities alongside the oceans, in the stakeholders, including the fishers. Can you explain that to me? This sounds very strange.
Mr. Moreira: There is a certain amount of the "devil we know" here, senator. The realistic answer to your question is that we do not anticipate in the foreseeable future the business end of fishery management under the Fisheries Act being carried on in any way other than it has always been carried on, and that is subject to the minister's absolute discretion.
If one accepts that as the reality, then one's approach to Bill C-26 becomes tempered by it.
Given that as the reality by which our industry will be regulated, with particular attention to the small vessel sector, how do we ensure that we do not create avenues by which special interest groups, which are much better funded and much better organized than the small vessel sector of the Atlantic fishery, can either dominate or, even worse, actually make decisions which affect our industry?
Senator Bryden: If I may ask a supplementary question, you are saying or implying something which is enlightening and yet troublesome. In the views of many people, for too many years, the oceans have been a mine for the fisheries. That is, the virtual purpose of the existence of the oceans was so that people could go and take fish out of it.
Mr. Moreira: That is a very fair comment.
Senator Bryden: To my understanding, there is a large concern which has developed over years, that there is more to the oceans than a gravel pit for fish, that, in fact, the ocean has a significant impact on our environment, on our coastline, on what happens to our ozone layer, on water birds and mammals and on transportation. It is perhaps time that the oceans were treated with a broader perspective than simply as a resource to be mined.
The impression I get is that Bill C-26 attempts to give a broader perspective rather than simply treating the oceans as a fish resource; the Fisheries Act regulates all of that. This legislation will give other stakeholders, including people who live in downtown Toronto, some ability to realize that this huge expanse of our globe is more than just fish.
I followed you when you were saying, if you were going to mention stakeholders, put the fishers in there. Maybe it should be explicitly mentioned; I do not know. What you may be arguing against is the broader perspective which Bill C-26 is attempting to take into account.
Given the fact that it is administered by the same ministry, I really cannot see what your major concerns are here.
Mr. Moreira: The concern is the recipients' end or the view of the present "haves" to this broadening of the public policy base, if you will, for oceans management. I do not think that I or any representative of the fishing industry can be heard to say, with any credibility or legitimacy, that no interest but ours should influence ocean management. We would like it that way but we do not seriously ask for it. The concern is to make sure that the imbalance of the scale is not over-corrected. Let us not have the fishery managed by environmentalists, although I am not particularly throwing rocks at them.
Senator Bryden: I thought fishers were the greatest conservationists that we have.
Mr. Moreira: Only inshore fishermen, senator.
Senator Bryden: I will go along with that.
Mr. Moreira: I do wish to respond to your point. The concerns that you have articulated are acknowledged as legitimate by any responsible member of the fishing industry. Our concern is that we should not allow them to hijack the regulatory regime to the detriment of a well-established industry. I do not really have a concern that that will happen under the proposed oceans act. I suppose any number of bad things can happen in our system but, as a rule, reason prevails, and they do not.
Senator Perrault: Mr. Chairman, some of us will not rest content until the witness leaves the meeting today fired up with zeal for this new measure. May I provide you with additional assurance that this is the minister's view about "management"? That word troubles you.
Mr. Moreira: Yes, it does.
Senator Perrault: There is absolutely no authority in the proposed oceans act relating to decisions pertaining to access to and allocation of the fisheries resources. These are matters that flow from the DFO's powers and the Fisheries Act.
These words may provide even more comfort: Any attempt by the Department of Fisheries and Oceans to use the Canada Oceans Act as a fisheries management tool would not withstand legal challenge, either at present or under the new Fisheries Act, which will have a complete, detailed regime for fisheries management agreements. I think the minister is spelling out very clearly that there will be no dilution of powers as a result of this measure.
Mr. Moreira: I do not wish to argue with you, Senator Perrault, but accepting that that is so, what then will the proposed oceans act do? What will it empower? Suppose it creates a regime of use restrictions: There shall be no commercial activity given in a given area of the ocean at a given time of year. That is a restriction on what would otherwise be fishing activities traditionally carried on in that part of the ocean. It has nothing to do with the management or the regulation of the industry, I agree.
Senator Perrault: You still have fish harvesters. He talked about even representation of interests on these bodies. It is not a matter of excluding the fishers or even the small-boat owners from any role at all.
Mr. Moreira: I agree.
Senator Perrault: As Senator Bryden so eloquently stated, there are many other issues relating to oceans that demand the urgent attention of all of us in public life. It is time we started doing something for the environment.
Mr. Moreira: I do not argue with that point of view.
Senator Oliver: I noticed that when you were giving your introductory remarks, you had several pieces of yellow paper. Is that a formal address or speech that we could have?
Mr. Moreira: It is just my notes to myself.
Senator Oliver: Is it something that you could table with the clerk so that the committee can have the benefit of your research on this point?
Mr. Moreira: Yes, of course.
Senator Oliver: How many inshore lobster fishery people do you represent here today?
Mr. Moreira: Today, three, to whom I spoke before I came. However, I typically speak to organizations, the membership of which is less than 1,000 but more than 500. I do not wish you to think that all inshore lobster fishers are sitting in this chair.
Senator Oliver: When I was making my remarks on clause 32, I said that one way that fishers might get some comfort is to say that it should be clear in the legislation, perhaps by way of an amendment, or by way of regulation, that independent fishers or groups of fishers could qualify to form some management bodies so that they could be consulted. What is your view on that?
Mr. Moreira: I can imagine the "me, too" from others. I do not think one needs to be that specific. One of the issues of which, I am sure, the committee is well aware, but which we have not discussed, is the divisiveness within the fishing industry. I do not know that this legislation, or any, can address that issue.
The present Fisheries Act bill, in one or two contexts, talks about representative fishery organizations, and this is another debate I have had with people in the department: as to whether "representativeness" is a difficult word to deal with, much like "management". However, I think the concept of representativeness is important. If one accepts what I say, which is that the industry's interests must be given legislative recognition similar to that presently afforded to aboriginal organizations in coastal communities, then certainly one must qualify that as representative fisher organizations, because no one organization represents all or even any significant piece of the industry. If one says it is important to have the fishery industry at these consultations, one must have at least four divergent viewpoints represented or else one would not be consulting the industry at all. I suggest that the concept of representativeness is one on which to focus, to ensure that the diversity of interests within the industry is legitimately recognized.
Senator Jessiman: Are you concerned that the wording "aboriginal organizations" is in these very clauses and that "fishers" per se is not expressed?
Mr. Moreira: Correct.
Senator Jessiman: Do you not think that you are included in "coastal communities and other persons or bodies"?
Mr. Moreira: No.
Senator Oliver: That could be anything.
Mr. Moreira: I am not suggesting that fisher organizations are excluded. It may be a matter more of appearance than reality. However, it is cause for considerable comment that what I am calling "the primary user" is not equally recognized.
Senator Jessiman: Would it help, then, if we described you either immediately before or immediately after "aboriginal organizations"?
Mr. Moreira: We would like to go ahead of other levels of government, senator, but we would like to be in there somewhere.
Senator Jessiman: Have you discussed this particular point with the department or suggested that your name be there?
Mr. Moreira: No. The department and I have never moved much beyond discussing "management" .
Senator Jessiman: It does not seem a big thing to satisfy you by just adding that name.
Mr. Moreira: As I said to Senator Oliver, one can imagine the chorus of "me, too". If there were an environmentalist or an oil driller or a ferry boat operator sitting in this chair, he would likely be making a similar argument.
Senator Jessiman: If we had fishers organizations in the bill, with the aboriginals before them, would you still want "management" out?
Mr. Moreira: Yes. This is not mine to negotiate. The management concept is a stand-alone concern for the reasons I have attempted to explain.
The Chairman: As I understand it, you have received assurances from the department and from the minister. Many of them are in writing, are they not?
Mr. Moreira: Yes, they are. I am thinking of one letter in particular from the minister personally.
The Chairman: Could these letters be used in any future legal proceeding? Let us say a management regime is set up which is detrimental to the cause of the people you represent. Could the assurances made this afternoon by Senator Perrault on behalf of the government and the minister and other assurances such as this be used as a way of interpreting what this legislation means?
Mr. Moreira: I hope one never has to find out. If the process -- I hesitate to say "degenerated" -- evolved in such a way that that became necessary, then certainly one would attempt to do so, but I do not know with what success.
We all hope that whatever is done will not create problems of such a degree that that kind of prospect arises. I do not know the legal answer to your question, but if I were going to court to challenge it, I would certainly want more than the minister's letter.
The Chairman: I appreciate on behalf of the committee the time you spent in preparation for this briefing.
Mr. Moreira: It was a pleasure. Thank you for the invitation.
If I may respond to Senator Perrault one last time, I do leave, as I came in, with a great deal of enthusiasm for this bill. I speak certainly for most maritime lawyers when I say that.
The Chairman: I would invite our next witnesses to come to the table at this time.
[Translation]
Réjean Lanteigne, Manager, Marine Operations, Canadian Shipowners Association: Mr. Chairman, as you mentioned, I am Captain Réjean Lanteigne of the Canadian Shipowners Association. I am accompanied by Jim Campbell of the Chamber of Maritime Commerce. We have taken the liberty of preparing a written presentation that is being distributed now.
[English]
I do not have the intention of repeating what is in our written presentation, but I will touch on the salient points. It is my understanding that Mr. Campbell will do the same.
This presentation is a joint presentation by both of our organizations. We also made a joint presentation to the House of Commons Standing Committee on Fisheries on the same subject.
Our presentation today will deal with three concerns that we have with the oceans act. The first of these is in regard to the amount of power being delegated to the minister by the new legislation, more specifically, his power as it relates to the service provided, the ocean management strategy, and the amalgamation of the Canadian Coast Guard with the Department of Fisheries and Oceans.
We did not touch on these issues last year when we appeared before the house committee because most of them surfaced after we had examined the final version of the bill which came before you last October.
Other concerns we have are the enshrining of the Coast Guard into this legislation and the service that the Coast Guard provides, and last but most important, we are concerned with the fees being charged for these services.
At the end of our joint presentation, we will be answer any questions you may have.
At the outset, honourable senators, I would like you to understand that neither this presentation nor the one we made last year are protests, but rather, should be viewed as constructive criticism. We continue to agree with the initiative this government has undertaken to bring the economy of this country under control. We are reassured to note that recent indications seem to imply that we are succeeding.
We also give our utmost support to the initiative of creating an oceans act in line with the United Nations Convention on the Law of the Sea. This is a very positive approach.
To give you some background on our organization, the Canadian Shipowners Association had its beginning in 1903 when it was then called the Dominion Marine Association. Our name was changed about 10 years ago when we established that it was too difficult to translate Dominion Marine Association into French. Our present name is more reflective of our membership. Currently we have 12 members operating 108 commercial ships, seven of which operate under foreign flags. We basically operate in the Great Lakes, the St. Lawrence River system and the Canadian Arctic. Last year, we carried close to 70 million tonnes of cargo, which is a bit less than CN and a bit more that CP. I have also provided you with a copy of our 1995 annual report which lays out all the statistics, our membership and the issues.
I would like to address our first concern, which relates to the ministerial powers in the legislation and the reorganization of the Department of Fisheries and Oceans. The scope of the deliberation of this committee has increased considerably as a result of the reorganization of the Department of Fisheries and Oceans. With the amalgamation of the Coast Guard and its related services within DFO, it now has responsibilities in regard to marine transportation, over and above its traditional responsibilities for fisheries. It provides a service which has been established to ensure the facilitation of marine trade, commerce, safety, and pollution prevention.
Previous to this amalgamation, these services, related policies and statutes were the responsibility of the Ministry of Transport. The Minister of Fisheries, under this proposed legislation, can establish fees, decide which services to provide and do other things that can have an enormous impact on our operation, which is marine trade and commerce.
One of our main concerns about this legislation is that the minister can do all these things with very little compulsory consultation with our industry. We feel there is far too much power vested upon the minister without parliamentary or Governor-in-Council oversight.
Many activities take place in our navigable waters in Canada and around the world. If we look at Part II of the bill, and more specifically, clause 29, we see a legislative requirement placed upon the minister to consult at large other ministers, boards, agencies, provincial governments and aboriginal organizations, to name a few. This is all done in relation to the ocean management strategy. It is interesting to note that this ocean management strategy does not concern itself with marine transportation as such. It refers to activities, none of which are marine transportation.
We have some problem with that situation. It is only when we reach Part III of the proposed oceans act, which lays out the power, duties and functions of the minister, that transportation becomes a specific concern and the minister is required to provide services that ensure the facilitation of this marine trade, commerce and safety.
Marine trade, commerce and safety is not part of an integral part of the ocean management strategy, where all our activities take part in the rivers, the gulf and in the Canada economic zone. Consultation, imposed upon a minister in Part II, should apply also to marine trade, commerce and safety if those marine activities are expressly mentioned in Part II? If such an approach would be acceptable, in our view there would be little need for clause 41 of the proposed oceans act.
In consideration of the fact that these new responsibilities have been added to those of the Minister of Fisheries and Oceans, and that our framework of regulations with which our industry operates has now been fragmented between two departments -- namely, Fisheries and Oceans and Transport -- we would prefer this legislation to ensure that the management of this important part of the Canadian economy is done in a balanced and appropriate way, with other components of the ocean strategy.
For the reasons given, we would recommend that clause 29 of Part II, which imposes compulsory consultation upon the minister, should also apply to marine trade, commerce and safety.
As an alternative, we would welcome a new section in the legislation that would impose upon the minister the development and related consultation that would lead to a waterway management strategy. I will return to this point later.
The second concern is the enshrining of the Coast Guard, and the service that the Coast Guard provides in legislation. Last year, before the house committee, we put forward three recommendations: First, that consideration be given to the following in relation to the redrafting of then proposed section 41, namely, that the Coast Guard should not be enshrined in the legislation; second, that the Commissioner of the Coast Guard be given greater discretion in the exercise of power of the minister -- but that that power should be limited by a requirement to be contained in the legislation to provide services that are safe, economical and efficient; and, third, that the service provided should not deal expressly with the Coast Guard, as in the current legislation.
The new version of the bill shows that the first recommendation was considered favourably by the House of Commons. The second recommendation, namely, to limit the discretion of the commissioner or the minister, did not fair so well. And the third recommendation has also not been appropriately addressed.
Dealing with the second recommendation, namely, limiting the powers of the minister or the commissioner -- and this would have applied last year -- we stated previously that there should be enough flexibility in the legislation to permit the services described to be provided by someone other than the Coast Guard if the provision of these services is shown to be cost effective, economical and efficient. We further stated that there should be enough flexibility in the legislation to curtail services provided by the Coast Guard if it is determined that they are no longer required or that they could be better provided by other means.
We feel that the new term, "Coast Guard services", continues to link these services to the Coast Guard. That is a legislative imposition that is not required. We would prefer that a term such as "services" be used rather than "Coast Guard services" or, alternatively, as I expressed earlier, that proposed section 41 be taken out of the legislation all together and replaced with an appropriate section that imposed upon the minister the development of a waterway management strategy concept.
The fact that these services are presently provided by the Coast Guard is an organizational and historic decision in which the industry had no say. It should not be a legislative imposition. There are other ways to provide some of these services, and the minister should be able to make use of such means as leasing and contracting out.
The best example of such flexibility is the current initiative to have local airport authorities provide airport services. Another example which will be before the Senate shortly is the move to commercialize the St. Lawrence Seaway and ports in Canada.
Subsequent to the changes that were made to the bill prior to leaving the House of Commons, and for the reasons given here, we wish to make two recommendations to this committee: First, it is recommended that the services enumerated in clause 41 should not be enumerated in the restrictive or limited manner as they are at present, to ensure that the minister has greater flexibility and greater responsibility within his powers. Second, it is recommended that the term, "Coast Guard services", be changed to "services". Alternatively -- and preferably -- we would welcome an obligation imposed upon the minister for the development of a waterway management strategy, much in line with the waterway management strategy that is found in clause 29 of Part II of the bill
Mr. Jim Campbell, General Manager, Chamber of Maritime Commerce: First, the Chamber of Maritime Commerce is a unique organization. I represent over 100 shippers, ports, and marine carriers -- both domestic flag and foreign flag -- from Alberta to the maritimes. We look toward to working with the government at all levels to try to find an efficient, safe and cost effective way in which marine services and marine policy can be developed for marine commerce in Canada.
We have been involved with both this particular piece of legislation and with the Coast Guard over the last two years in trying to work out a mutually agreeable foundation for the delivery of these services that the Coast Guard is obliged to supply under this piece of legislation and to try to find a fair, equitable and competitive fee structure that would be assigned, as we see in clause 47, to those services.
I wish to start my presentation with the expression of support for everything that Captain Lanteigne has said so far. I would emphasize the importance of including marine trade, commerce and safety in Part II, thereby ensuring, by legislative obligation, that the consultation process will take into consideration all organizations and interested parties, as discussed by the previous witness.
The captain and I both represent organizations that are made up of companies with wide and, at times, differing interests. We know it is impossible to please everyone. We also know that compromises can and should be made at times to benefit the most amount of parties possible. It is not our intention to make things more difficult for the Minister of Fisheries and Oceans.
In fact, we have worked diligently and openly to try to find a mutually agreeable solution to this continually growing complex problem of marine services and the development of fees. We believe that it is absolutely essential that all interested parties, those using the resources of our oceans for commercial purposes and those using them for other purposes, have a say in how the oceans management strategy unfolds, and also a waterways management strategy, if that were to be included.
As representatives of a marine mode of transportation which has been shown time after time to be the most environmentally responsible, we are obviously supporters of the environment and would back any legislation which would ensure safe movement of our vessels. However, we are also ardent supporters of healthy trade and commerce for Canada, and we hope that adjustments will be made to this legislation to ensure the future of that activity.
The industry is prepared to pay, and in fact has been paying since July, fees which go toward the delivery of Coast Guard services. Last year, we opposed the then clause 49, now clause 47. Unfortunately, there have been no changes made whatsoever.
Clause 47(1) gives the minister authority to fix fees for services rendered by the Coast Guard as per clause 41 of this bill. Clause 47(2) is a pedantic clause which says that the fees for the service should not exceed the cost to the Crown. As we have said in the past, we have no problem with that. Our difficulty is that we think it costs the Crown too much to provide the services.
Unfortunately, everything I said last year is applicable this year, more than 12 months later. The provision in clause 47 first appeared in clause 4 of Bill C-75, a bill to amend the Canadian Shipping Act which was debated 10 years ago and was never passed, due in large part to the strenuous efforts of the former Minister of Fisheries and Oceans, Brian Tobin. The Minister of Transport at the time said that the clause as presented required modification. Ten years later, it still does.
It is interesting that after a decade has passed we are discussing this same provision. Only the participants and organizations have changed. The Coast Guard is now part of the Department of Fisheries and Oceans rather than the Department of Transport. As mentioned earlier, we now have the Marine Advisory Board which advises the minister on various commercial marine issues. In spite of these changes, the position taken by the industry today is in essence the same as it was then. We are as frustrated as any of you would be if you were in our position.
The industry is prepared to pay for a portion of the services provided to it. We do not believe that it is fair to have to pay for more than those. Clause 47 remains an open provision. As Mr. Tobin said in 1986, "it is a gun to the head of the Canadian marine community."
I should like to read from a report of the House of Commons Committee on Transport. The report is now called the Keyes Report after the Member of Parliament from Hamilton. I do not think that we as an industry could put any more clearly or succinctly our concern about the development of both fees for services and the legislative enshrinement of those services found within this bill. That report states:
A large number of witnesses, albeit some of them very cautiously and reluctantly, recognized that increased cost recovery of CG services was necessary and inevitable. However, there were a considerable number of caveats: it must be fair and equitable, include all users (not only commercial shipping but recreational boating and fishing as well), clearly define the services required, who benefits, and those which are in the public interest, recognize the principle of "user-pay user-say," be phased in to give everyone time to adjust, and finally be sensitive to economic realities so as not to undermine the competitiveness of the marine sector; if charges are too high, traffic will divert to American waterways and ports. Moreover, they were unanimous in emphasizing that before any cost recovery program was put into effect the CG must not only put its own house in order, but must be seen to have done so. It must rationalize its activities to eliminate duplication and unnecessary services and drive costs down to the lowest-cost operation possible. Only then should the user pay.
That was written many months ago and is as true today as it was then.
We also have attached a more recent report of the Standing Committee on Fisheries and Oceans released on April 22, 1996. It is appended to the back of our presentation. You will find that many of the recommendations of that committee echo the Standing Committee on Transport report.
We believe that clause 47 should be expressly subject to clause 41, that is, the modified clause 41 to which Captain Lanteigne spoke earlier, which does not require the Commissioner of the Coast Guard to avail himself only of the Coast Guard to ensure the provision of services. If the minister, through the Coast Guard, is able to provide services in a cost effective and efficient manner, you can be sure the industry will be supportive of his efforts as long as the benefits are translated into less cost to the users of Coast Guard services received and not to offset other expenditures of the Coast Guard.
We recognize that the new clause 41(2) requires the minister to provide the services referred to in subparagraphs (1)(a)(i) to (iv) in a cost effective manner. We realize that this new provision seems to imply that those are the services we will be charged for. This is a problem we have had from the inception of this legislation. We are frustrated that changes were not made to this clause. It continues to say that these services will be supplied by the minister.
We believe that consultation with industry must be an integral part of the cost reduction effort of the Coast Guard and that there should be a duty placed on the ministry, by a provision in the act, to consult, probably with the Marine Advisory Board, in regard to the following: the services provided by the Commissioner of the Coast Guard and by the Coast Guard, the manner in which those services are provided, those services which are chargeable to the industry and those which are not, and the fees which are to be charged to the industry.
We believe that it should also be a requirement of the legislation that the fees that are imposed on users are fair and equitable. I realize that clause 41(2) establishes a cost effective test on the minister for part of the services that are provided, although we are not too sure what that means. There is no imposition anywhere that the minister provide the services in a fair and equitable manner. Users should have recourse to three separate tests before being required to pay for a service under this legislation. The fee should stand the test of cost effectiveness, it should be fair, and it should be equitable.
Last year, when we appeared before the House of Commons Standing Committee on Fisheries and Oceans, we said that this is a monopoly. For example, in regulatory infrastructure within Canada for cable, telephone and gas, both private sector supplied and public sector supplied, there is a safety net for the consumer. We are hoping that as a result of this legislation the marine industry and the port communities which rely on it would be given that same kind of consumer protection. We are not asking for anything more than we get with cable TV or our telephone service. We believe that this bill is the place for that protection. Unfortunately, it has not yet come to fruition.
For all these reasons, we recommend to this committee that consideration be given to the following: The fees provision should be expressly linked to the services of a modified clause 41; there should be recourse to an independent body -- some have suggested the new Canadian Transportation Agency -- to permit appeals by interested parties against the imposition of particular fees or increases to those fees; and the Marine Advisory Board or some other similar third party advisory committee be enshrined in legislation to deal with the issue of fees and to ensure consultation with industry, much the same as advisory committees of section 660.10 of the Canada Shipping Act.
We are looking for some consumer protection. There has been a fundamental change in the relationship between the marine industry in Canada and those supplying services to it in the guise of the Coast Guard. They are now a supplier of services and we are a payer for those services. We believe it would not be too onerous for the government to provide us with the opportunity to debate fees and services to be supplied in order to ensure a more equitable fee structure and a healthier marine structure within Canada.
Senator Oliver: You commented on clause 47. Clause 47 reads:
The Minister may, subject to any regulations that the Treasury Board may make for the purpose of this section, fix the fees...
It gives him a discretion. It is not a mandatory thing. Most of all, it says it is subject to the regulations of Treasury Board.
As you know from reading this particular bill, clauses 25, 26, 32, 35(3), 47 and 50 all deal with regulatory powers. The Standing Senate Committee on Banking, Trade and Commerce has made recommendations that, before regulations become law and are implemented, they be laid before the committee for study so that witnesses can appear, make recommendations, and explain where they may be weak and where there may be problems, and that that be done for a 90-day period before they come into effect.
What would you think of a proposal like that?
Mr. Campbell: There has been some suggestion of that type of procedure. You may well find the wording within the mandate of the Standing Committee of Fisheries and Oceans. They suggested in their last recommendation that the standing committee adopt for itself a monitoring role to oversee progress on these initiatives at regular intervals. They may be the body --
Senator Oliver: There are two parts to Parliament. There is the upper house and the lower house.
Mr. Campbell: Of course. We would accept any options available to us giving that objective oversight opportunity with regard to these fees.
Senator Oliver: In fairness, though, would you say that your preference would be the House of Commons?
Mr. Campbell: If you can work out and resolve an issue as early on in the process as possible, that is the most efficient way of doing it. Resources are limited on both sides, both within government and the industry, and if we can deal with it early in the process, we should not have to, as we are seeing here, come to your committee to deal with things that should have been dealt with back in the other place.
I would also like to add, as you suggested, senator, with regard to the minister being guided by Treasury Board regulations or guidelines, there are guidelines within Treasury Board with regard to the development and implementation of federal user fees. I believe that when the then Commissioner of the Coast Guard appeared before the standing committee back in April with regard to this bill he was asked that question, and he suggested that the Treasury Board guidelines were only guidelines.
Senator Oliver: I am interested in your interpretation of section 47. It indicates that it would permit the charging of fees for services, whether they are utilized in part or not. Have you discussed that with the department, and have they not given you some assurances about it? Surely you will not be charged for something that you do not use.
Mr. Campbell: At this point, we do not have that level of security, senator.
Mr. Lanteigne: I can only discuss this without prejudice because we are taking the department to court on this very fundamental issue.
Mr. Campbell: Perhaps I should answer, since I am not suing. This goes back more than two years now to when Minister Young was the Minister of Transport. He suggested a three-prong attack with regard to the development and implementation of user fees for Coast Guard services. He said, "Find out what industry needs, rationalize your services to reach that level, and then develop fees." We would suggest, and we would argue with anyone who wishes to argue the point, that the first two have been largely superficial, if you will, in their efforts, and they went right to the development of the fees.
We would suggest, as has Captain Lanteigne's organization, a very thorough inventory of one section of this service, the navigational systems within the Great Lakes and the St. Lawrence. They did an inventory. They went back and looked at what is actually needed for the safe and efficient movement of vessels through those waters. They found a substantial amount of redundancy within those services.
As far as we are concerned at this point, we are being charged for a system which is over-built and out of date considering the type of satellite and other navigational systems that are now available on ships. We would like to have confidence and security that we will not be paying for services that we do not need for the safe, efficient movement of vessels through Canadian waters.
Senator Bryden: Regarding Part III, clause 41, and Coast Guard services, I notice that they are to be provided by the minister and that the reference to "coast guard" and "coast guard services" is not in capital letters. I got the impression from what you were saying that what you read for that is the Canadian Coast Guard, meaning that sort of quasi-military body which runs red ships with white stripes on them.
As I read this, the minister is required to provide Coast Guard services, including aids to navigation systems and services. There is nothing that I have seen in here that prevents him from contracting that out. Indeed, they are doing that in relation to air traffic control. They have done it in relation to other things. Would that not fulfil the obligation?
Mr. Lanteigne: There is certainly nothing to prevent them from contracting any of these services out or from disposing of these services if they are no longer required. However, there is also certainly nothing which authorizes him to do so.
As far as air traffic controllers and the seaway and ports are concerned, specific legislation had to be amended to authorize the minister or the Governor in Council, as the case may be, to divest themselves of the service, commercialize the service, or for the creation of a not-for-profit organization to run the service. There is nothing in the bill preventing that, and there is nothing authorizing him to do so. There is nothing in the bill authorizing the minister to say, "This service is no longer required for facilitation of marine trade, commerce or safety, so I will no longer operate it and we will no longer have it." It is a balancing act, on the one hand offering a wide flexibility and, on the other hand, a narrow focus limited to certain services.
The main point that I want to make is that this country is rapidly moving to the same situation where our neighbours to the south moved about 20 years ago. The shipowners and shippers will find themselves in a situation where they have to deal with a plethora of organizations that are either wholly responsible or partially responsible for maritime trade or commerce or safety or pollution, all of them or some sectors of them. It is a difficult situation. Over the past 20 years, it has led to a very difficult situation for our neighbours to the south. It has led to substandard ports and substandard and unsafe waterways. It led them to having equipment which is under-capitalized and redundant and a U.S. Coast Guard which can hardly make ends meet with the budget that the U.S. Congress authorized for them. It has led their ports to having archaic processes and procedures. All of what I have just described is by their own admission and can be found in a report by the National Research Council in 1994. I will quote from that report.
It is entitled, "Minding the Helm", and states in part:
-- the marine navigation...system is...for the most part safe, but it can be made safer, there are urgent and compelling reasons to do so.
-- the marine navigation...system could be enhanced substantially through specific improvements in...waterways management...
It goes on to state:
Criticisms of U.S. ports generally come down to "no one is running the show" and "there are too many diverse parties to deal with in America" .
This has led the U.S. to promulgate unilateral legislation, something which affects our trade, notably tankers, contrary to internal convention which this bill is intended to enshrine. We would not wish that a repeat of the U.S. situation present itself in this country.
Senator Bryden: From what you have just said it does not sound like this bill will drive the shipping trade to the U.S.
Mr. Lanteigne: It will drive us into a U.S. situation. Hence the reason we would prefer instead of specifying a limited number of services to be provided that the proposed oceans act be looked at from the perspective of waterway management and that the minister be given specific responsibility for such management. That could cover Coast Guard services, which is only one of the services. Admittedly, it is a big service, including ice-breaking, nav-aids, dredging and others. There are others stakeholders, other parties, who have a say here. The seaway has a say. Politicians have a say. Ports have a say. The minister should be in a position to coordinate all these bodies from a management perspective.
Senator Bryden: There would be nothing to take away his ultimate responsibility to government and, finally, to the people. If it is more efficient for the minister to send out tenders and hire ice-breakers that cost less, therefore allowing him to charge lower fees for the provision of those services or, indeed, to have users pay them directly, is there anything wrong with that?
Mr. Lanteigne: There is absolutely nothing wrong with that, no.
Senator Bryden: There is nothing in this bill to prevent that.
Mr. Lanteigne: Nor is there anything to authorize it.
Senator Bryden: I do not mean to quibble, but the issue is whether it is required to be authorized. The minister is required to provide the services. Does he have to provide them through civil servants? He is not required to do that. He is required to provide the services. He can do it with employees, which is what he is doing now; he can do it with contractors, or by any means, as long as there is nothing in there to prohibit that basic Royal Prerogative which is vested in the minister.
Senator Perrault: Mr. Chairman, some interesting and important views have been offered by Captain Lanteigne and Mr. Campbell this afternoon. Perhaps we should meet with a representative of the department later in the week to answer some of the questions which have been posed. I do not profess to have all the answers to many of those questions. Perhaps other members of the committee feel likewise. Perhaps it would be a good idea to have someone from the department come here on Thursday or at some other time.
Mr. Campbell: We would encourage that, senator, because we feel this is a fundamental piece of legislation which will, if not dictate, at least somewhat control how marine interests will make a dollar over the next 20 years.
Senator Perrault: These gentlemen represent an important organization here.
I would feel better about it, Mr. Chairman.
The Chairman: As you were making that comment, senator, I noticed a number of nodding heads. We will be asking the department to respond to those questions, as well as to other questions raised by previous witnesses.
Senator Jessiman: Senator Bryden raised a question in which he said that air traffic controllers are really privatized in non-profit organizations. Would your clients be amenable to saying, "Okay, let us take it over," just as the airlines did with the air traffic controllers?
Mr. Lanteigne: We are having serious discussions around our management table to do just that, sir. Our first priority this year was to work with the Department of Transport to assume responsibility, hopefully next year, for the operation of the St. Lawrence Seaway. I see the process as a natural migration. Once the seaway operation is achieved and the necessary legislation is in place we would move on to assume our responsibilities for the service that we need.
Senator Jessiman: You have told us how bad it is in the United States. Is there any other place in the world where they have the problems that you are having with services in respect to coast guards and such?
Mr. Lanteigne: I presume it is happening in Russia, but that is not due to the same reasons.
The Chairman: I have a brief question. The previous witness noted that the body he represents had been excluded from a long list of stakeholders in Part II of the legislation. I note that your industry has also been excluded from that long list of stakeholders. Have you asked the department why two very important industries were excluded from the consultative process?
Mr. Lanteigne: The short answer to your question, Mr. Chairman, is "no". We knew at the outset that this bill was to have a framework related to the United Nations Convention of the Law of the Sea. We never thought at the outset that Coast Guard services and marine trade and commerce, which, at least in my mind, do not fit within the framework of the Convention of the Law of the Sea in its details, would be "captured" by the proposed oceans act in this way. We were surprised and we had to respond and react, hence we are before you today.
The Chairman: Thank you, Mr. Lanteigne and Mr. Campbell, for appearing this afternoon.
The committee adjourned.