Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue No. 42 - Evidence - April 9, 2019
OTTAWA, Tuesday, April 9, 2019
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, met this day at 5:16 p.m. to give consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Good evening, everyone. Welcome.
Before we begin, I want to have a short conversation about the bells that are ringing, calling us to the Senate for a vote at one minute after six o’clock. I spoke to our whip. In consultation with Senator Gold, who may comment in a moment, we have received permission to continue sitting if we have three from each side who are willing to stay. I’m one of them. We have three from the other side who are willing to stay. We can continue on with our meeting and we don’t have to leave to vote. We have witnesses and a long evening ahead of us. If we go back over to the building and then come back here again, that would take another 20 or 25 minutes. They can survive without us, or that’s the word on the street. I know it will be tough, but I am sure they can do it. I’m throwing that out to you. We do have agreement on our side.
Senator Gold: As the liaison for the Independent Senators Group, I would ask my colleagues on the Independent Senators Group if they consent to stay behind and not go to the chamber for the vote. In my capacity, I do have to go for the vote or to be seen to be going to vote. As long as we’re balanced, everybody is happy.
The Chair: Striving to have everyone happy is a full-time job here, so if we can do that here at the Fisheries Committee, it’s a plus for us.
Senator Duffy: It’s out of respect for our witnesses, Mr. Chair.
The Chair: Exactly. It doesn’t work well often, Senator Duffy, but it is working this evening. I’m happy and we’re happy.
Once again, good evening, everyone. My name is Fabian Manning. I am a senator from Newfoundland and Labrador. I am pleased to be the chair of this Standing Senate Committee on Fisheries and Oceans. Before I give the floor to our first witness panel this evening, I ask the senators who have joined us to introduce themselves.
Senator McInnis: Tom McInnis, Nova Scotia.
[Translation]
Senator Poirier: Rose-May Poirier from New Brunswick. Welcome.
[English]
Senator Duffy: Mike Duffy, from Prince Edward Island.
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Busson: Bev Busson, from British Columbia. Welcome.
Senator Gold: Marc Gold from Quebec. Welcome.
The Chair: The committee is continuing its study on Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence.
In our first panel this evening, we are pleased to welcome three witnesses: By video conference, Ms. Christina Burridge, Executive Director, BC Seafood Alliance; at the table is Chelsey Ellis, as an individual, B.C. fisher person; and also Gerard Chidley, Owner, Captain, FV Atlantic Champion, G&D Fisheries Ltd. from that wonderful province of Newfoundland and Labrador.
On behalf of the committee members, I thank you for being here today. I understand you all have some opening remarks you’d like to make. I remind you that we try to keep those to around five minutes so that we can engage our senators in questions, of which I’m sure they will have plenty for you. With that, I will allow Ms. Burridge to go first with her opening remarks, and then we’ll go to our witnesses who have joined us at the table.
Christina Burridge, Executive Director, BC Seafood Alliance: Thank you, Senator Manning.
The BC Seafood Alliance is the largest commercial fishing organization on the West Coast. Our full members are associations representing the owners and operators of commercially licensed vessels in most major fisheries in B.C. We really appreciate the opportunity to provide our perspective on a bill that makes significant changes to the Fisheries Act. We support the habitat provisions, as these were subject to thorough consultation, but we have strong reservations about the enabling provisions regarding licensing and social policy.
My comments focus on, first, an amendment to the purpose section, proposed section 2.1; two, making sure that changes to Indigenous participation and co-management respect the authority of the minister to be the sole manager of fisheries in a common property resource; three, rebuilding plans; and four, stability and predictability for all participants, including Indigenous participants in the fishery.
First, regarding amending the purpose, the current text does not provide a clear purpose but only tools. We suggest the purpose needs to be defined, as it is in the New Zealand Fisheries Act and in other common property resource jurisdictions, to include use. Section 2.1 would then read:
. . . the conservation and sustainable use of fish and fishery resources through the proper control and management of fisheries and the conservation and protection of fish habitat, including preventing pollution.
On Indigenous participation and co-management, the right to manage fisheries resides in the minister and cannot be downloaded to others except in clearly defined ways. Parliament should be careful that it is not giving unconstitutional powers to the minister to delegate management to Indigenous organizations. A patchwork of separate fisheries management authorities on the West Coast, for instance, would be disastrous for conservation and the use of the resource by all Canadians. There must be a single manager.
The recent Ahousaht et al. decision on the West Coast confirms that while the nations have a right to fish and to sell fish, that right is narrow, and bilateral negotiation of what the right means in practice are unacceptable because DFO cannot represent the interests of other sectors.
The decision also states that voluntary licence relinquishment is the best means to reconciliation in the fishery while the cost of reconciliation cannot be borne by commercial fishing families alone. Indigenous participation in the West Coast fishery is already strong and will grow further. Roughly one third of all licences are held by Indigenous organizations or individuals. Any changes to fisheries management or licensing policy will affect them too.
We also recommend narrowing the provision of confidentiality of any traditional knowledge. Confidential bilateral negotiations should not be used to suspend or close a fishery despite peer reviewed science, as happened in 2018 with the Central Coast herring fishery.
On rebuilding plans, we believe the current draft correctly maintains the minister’s discretion, but we are concerned that the $107 million allocated for the work is inadequate, especially if it is distributed equally amongst the regions rather than by the stocks on the Auditor General’s list. Without proper resourcing, the department is setting itself up for embarrassing failures that will tarnish Canada’s reputation.
Lastly, on stability and predictability, the enabling provisions regarding licensing policy and social policy have already been destabilizing, with millions of dollars in investment on hold on both coasts. Without stable access, there is no incentive to invest in new vessels, new environmentally friendly gear, new products or new markets. Worse, there is no incentive to invest in the resource. Many of our fisheries contribute $1 million or more to DFO science every year.
Unlike the habitat provisions, these changes to the act were made with minimal consultation and were rushed through with little opportunity for input. They contributed to the recent warning by a Norwegian seafood investment fund of “the high political risk” of investing in Canada.
The fish and seafood sector provides sustainable food for Canadians and the world. We look to government to give us three things: stable access to resources, a modern, stable and responsive regulatory regime and market access. The licencing provisions and any attendant regulations will discourage flexibility and innovation and are counter to the operational reality of fishing. Government and industry need the ability to respond to change.
Thank you very much, everyone.
Chelsey Ellis, as an individual: Mr. Chair, thank you all very much for this opportunity to speak to you tonight.
I’m a third-generation fisherwoman from a small fishing village in Prince Edward Island. I spent my early years on the water, fishing lobster and scallops with my family. In 2009, I completed a biology degree that was heavily concentrated in marine science and took a position in the U.S. working for the National Oceanic and Atmospheric Administration as a fisheries observer. I then joined the P.E.I. provincial government as an oyster biologist while working on the side as a seafood traceability coordinator for Atlantic Canada. I have been working in coastal communities in British Columbia for the past seven years as a seafood traceability coordinator, a fisheries biologist, an electronic monitoring program coordinator and a commercial fishing deckhand. I have worked in 11 different fisheries on two coasts in both Canada and the U.S. I am currently working towards my 150-tonne Master ticket and am a member of the B.C. Young Fishermen’s Network.
I’m here today to offer my unique perspective to the proposed changes to the Fisheries Act. I’m supportive of many of the provisions in this bill, but I want to specifically touch on the reference in proposed section 2.5 to the consideration for the social, economic and cultural factors in the management of fisheries, as well as the preservation and promotion of the independence of licence holders in commercial inshore fisheries.
Commercial fishing is the backbone of my community in Prince Edward Island. The provisions in place on the East Coast help to protect and promote independent owner-operators. This provides meaningful and important livelihoods that support people in place.
As you have heard from other witnesses, this is in stark contrast to the West Coast. In British Columbia, owner-operator and fleet separation policies have not been put in place and the socio-economic aspect of the fisheries has been severely neglected. This has led to a steady increase in licences and quotas being transferred out of the hands of active fishermen in coastal communities.
While working in the B.C. commercial fishing industry in many sectors and wearing different hats, I have learned how the two coasts differ in species mix, gear type, coastline and history. Despite the differences, preserving and promoting the independence of active fish harvesters on any coast provides many tangible and intangible benefits to the coastal communities they belong to.
Canada continues to lead the way in creating some of the most innovative fisheries management tools in the world. On the East Coast, these management tools have gone hand-in-hand with balancing the socio-economic values to create dynamic and thriving fisheries. We have the ability to improve West Coast fisheries by creating similar frameworks that are unique to B.C. and uphold the socio-economic balance that is crucial to a vibrant fishery.
We are at a pivotal moment on the West Coast. The inter-generational knowledge transfer that is integral to our fishing communities is at serious risk. The majority of young coastal community members are not entering the workforce because they do not see a future for themselves in the industry. For the few young fish harvesters trying to persevere, it is getting harder to earn a living and find safe, reliable and professional crew to work with.
Fisheries on the West Coast have been labelled as too complicated to reverse or as having unique challenges compared to the East Coast. There has even been reference to it by the honourable fisheries minister as a scrambled omelette that is pretty much fully baked. I hope that the idea of something being complicated or challenging isn’t what’s stopping our government from making positive change that would benefit Canadians for generations to come. This definitely isn’t a situation that happened overnight, and we can’t be expected to fix it overnight.
Our government can act now and take steps in the long-term direction of promoting or preserving the independence of active fish harvesters in all our fisheries. This could be achieved by putting concrete measures in place that prioritize and incentivize licences and quotas to be held in the hands of those who are taking the risks and working the long, hard hours to bring in our valuable Canadian seafood.
On the West Coast, being a licence holder does not necessarily mean that you are an active fish harvester, own a boat or even live in a coastal community. Without measures in place to support and promote owner-operators, we have ended up creating an environment that, by nature, favours investor and corporate ownership over ownership by independent harvesters. This creates a threat to the long-term sustainability and safety of B.C.’s fleet. A system that increasingly only allows for renters rather than owners on the water will result in overall lower product quality, decreased environmental stewardship and higher risk of injury at sea.
The knowledge required to be a commercial fish harvester is extremely specialized and unique. To extract the full value of this amazing resource, we need to attract those who have the skills and the passion to create a safe, positive and successful work environment. That’s why I would suggest that Bill C-68 include the following amendment:
That when making a decision under this act, the minister may consider, among other things, the preservation or promotion of the independence of owner-operator enterprises in all commercial fisheries.
This would be a positive step forward to maximizing the social, economic and cultural benefits to harvesters, coastal communities and future generations of Canadians who are called to this work. For many who work in the industry, commercial fishing isn’t just a job, it’s a lifestyle and, in many cases, a deep-rooted family tradition. It’s also a platform to challenge yourself and to explore and exceed what you thought were your personal limitations. It’s a meaningful living that connects people to place and creates personal identity.
I am optimistic that the passing of Bill C-68 and the recommendations from the House of Commons’ review of the regulation of the West Coast fisheries will create an even brighter future for our fisheries, ensuring that Canadians will be able to have the same positive experience I have had with commercial fishing for generations to come.
I passed around a handout to the committee clerk. I have been working on the West Coast for the past seven years, and I have photographed and interviewed those who work in the industry. I’m leaving with you a small sample of their voices, explaining why they love to fish and their hopes for the future. Thank you very much.
Gerard Chidley, Owner, Captain FV Atlantic Champion, G&D Fisheries Ltd: Good evening senators, support staff and fellow presenters. Thank you for the opportunity to appear in person to provide what I hope will be valuable commentary, along with some recommendations to this process. As witnesses, we are given the unique opportunity through the Senate committee to influence in a positive way the future direction of our fishery.
My presentation today will focus on the operational side of Bill C-68, as seen from an independent licence-holder. I will focus on policies that impact the operation of a family-run business in Newfoundland and Labrador, such as the owner-operator policy, substitute operator policy and fleet separation policy. I will also comment on the precautionary approach and ecosystem-based management, if time permits.
I am the licence-holder in our family-run business where my son is captain on the vessel and my licence designate for the operation. Gerard Jr. runs the operation at sea under the same licence conditions as if I was on the vessel, and I run the business operation from shore. We have been doing this jointly for 20 years, and now we find the discussions on the owner-operator policy and its enforcement will put me in a position where I will have to go back on board the vessel, therefore eliminating one crew member. This is after 40 years invested at sea.
I and others like me have invested in our enterprise for the future and have created opportunities for our family members to have a future in this fishery without having to risk all and endure financial hardship due to the cost of investing in an enterprise. Having reached the point where the enterprise can be operated by your family member, you should be feeling a sense of pride, not a threat from a policy that is meant to protect you.
We operate at sea for multi-day trips with a crew of six men. We not only need a competent person operating the vessel at sea but also on shore. We no longer get a one-pager for our licence conditions; we carry a briefcase at sea and one in the office. This is 2019, and we operate in the global environment with multiple ocean users.
To determine the succession plan for my enterprise, I sought advice from CRA on transferring my enterprise to my son as an inter-generational transfer. I will use this as an example. I was told that if I transferred for any less than the current market value, I, the licence-holder, would be responsible for the tax on that value or any portion thereof at the time of transfer or sale. So not only would I bankrupt my son, I would also bankrupt myself for selling the property.
The present cost of an enterprise in our region and the resource transition we appear to be in from shellfish to groundfish does not make for a wise investment at this present time. The options are few. I, like others who are focused on running a family-run business, have taken out insurance policies to pay for estate taxes for our enterprises to our family members upon our demise. So you wonder why the discussions on the owner-operator policy concerns me and other independent licence-holders in a family-run business.
My recommendation is that a clause be added to the owner-operator policy, granting a licence-holder operating a family-run business shore captain status. This would ensure the licence-holders that they would not be under any threat from any interpretation of this policy.
I’ll speak next about the substitute operator policy and designation policy. It’s an important policy for independent licence-holders who have had a long career at sea and now find themselves in a position to allow a new entrant the opportunity to run the vessel for a few years and potentially build up some equity and valuable experiences before investing in an enterprise. This is certainly way to encourage young people to engage in this fishery. It should be promoted, not prevented. My recommendation is that an independent licence-holder who finds himself in this position would apply for a casual designation for the extent of the season.
The fleet separation policy is by far the backbone of survival of our inshore fishery and communities. I have been a supporter of this concept, and have been for a long time. This policy has afforded us the title of independent licence-holders. This policy has come under serious threat over the last number of years due to the legalization of control agreements. By this, I mean that this has been accomplished by allowing financial transactions to be exempt from the control definition.
Under PIIFCAF, the independent licence-holders were assured that any new licence opportunities would go to them, but that has not been happening. In most cases, the controlling person or company has the resources at their disposal to have first-hand knowledge of new fisheries and emerging fisheries. We cannot go down the road to where our B.C. counterparts find themselves, paying so much for a product in the water that the economic viability is lost to rent extraction. This is not a fishery I want for our future. My recommendation is to begin to eliminate these control agreements and DFO pay due diligence to requests for all licence transfers to ensure beneficial use remains with the licence-holder.
Vessel registration policies vary from region to region and, mostly, were a good management tool at the time they were instituted. We find ourselves in 2019 where most, if not all, species are on individual quotas or trip limits, just to name a few of the management tools used in today’s fisheries. We are now in a position that the licence-holder should be able to decide for themselves the type, length of vessel and for how long they want to register, as long as it does not exceed their vessel length on their licence. If we are not impacting other harvesters’ operations and have our own species allocations, and are adding economic opportunity and value to the fishery, it should be encouraged. That should be the focus of our fishery of the future.
I can cite examples where we are losing considerable economic value in our industry because of our archaic policies that need to be cleaned up in the new Fisheries Act. We all too often focus on managing people rather than focusing on the mandate we are given to ensure the long-term sustainability of our fish resources and long-term viability of our fishing industry. Our recommendation on this side is for DFO to remove the requirements for a 12-month registration of vessels in Newfoundland and Labrador and replace it with a 30-day registration. This will allow harvesters to create economic opportunities in other fisheries that they are licensed to prosecute.
The precautionary approach is an effective management tool for some species but may not be the answer for all. It is most effective and successful when developed with harvesters at the table. Scientific inputs alone will not result in an improved method for species management in this forum. This process has a very prescriptive format with rigid boundaries where actions need to be taken depending on the biomass the species finds itself. The problem exists that all species depend on the interaction with others, whether it be predator-prey or forage species considerations.
With the PA, we are still managing in the single species mind frame where decisions must be made with the ecosystem in mind. We cannot expect all species to be 100 per cent rebuilt at the same time. The current PA doesn’t allow for this, so my advice is not to rush to make any decision here that could seriously impact the economics of our industry. My view, and some of like-minded licence holders, is that the PA is being used as a tool in the absence of quantifiable and defensible scientific advice. This is not what we are signing on for.
As an example, we have had a successful crab fishery in Newfoundland and Labrador for nearly 20 years, jointly managed with DFO science, harvesters’ participation and input and DFO management at the table. This process should be applauded, not replaced. Our recommendation is the PA process be continued to be explored as an effective management tool, with harvesters at the table from the formation of the limit reference points to the peer review process. Where historic data exists, the models should be run to ensure applicability in the management of that species using the precautionary approach process.
The Chair: Thank you, Mr. Chidley, and to all our witnesses.
Senator Gold: Thank you all for joining us. I am sure I speak for all my colleagues when I say that it is wonderful to have you here with the diversity and depth of your experience and what you bring to our study of this bill. It is really helpful. Thank you for all that you have done and what you bring to our work. Time is tight, so I will restrict myself to one question to one witness. I had many, but I’m sure my colleagues will ask them.
This is for you, Ms. Ellis. It’s a clarification on your recommendation and then a more general question. You recommend to amend section 2.5 of the proposed act to read “the preservation or promotion” as one of the criterion that the minister must take into account. It would be “the preservation or promotion of the independence of owner-operator enterprises in all commercial fisheries.” Is that to replace the current language that speaks of licence holders, who may or may not harvest fish and only applies to inshore East Coast fisheries, or is it in addition to that?
Ms. Ellis: That would be to include those, not as an addition but as a complete amendment. I think that furthering or promoting owner-operator enterprises in all our fisheries would be beneficial. That’s not to say that it must be, but preserving or promoting it is the issue.
Senator Gold: I wanted a clarification for the record. That leads me to the broader question. You expressed your disagreement with the minister’s view that the situation on the West Coast is a scrambled omelette that is pretty much baked. Would you not agree that there is a different history and different traditions in the fisheries on the two coasts? Do you have a view as to why that may be? Is it the case that large-scale operators have a greater voice on the West Coast or the East Coast? How would you explain the sense of some, including the minister, that it has evolved so differently?
Ms. Ellis: It might seem that there are different priorities in the management. I feel that socio-economic aspects of the fisheries have been put into the management on the East Coast, but I haven’t seen the same on the West Coast. It’s just a different mandate in the two different regions on what sort of things they are looking to get from the fishery. It is a lot of the history as well.
Senator Gold: Ms. Burridge, do you have anything that you might want to add to that?
Ms. Burridge: The history is very different. For instance, processors have always been able to licence this since we went to limited entry. I believe on the whole that has added value to the fisheries. I do not think that an operator would work in a practical sense in B.C. The owner-operator fleets we have at the moment, with a couple of exceptions, are generally the worst-performing fleets in B.C., mainly because there is not very much available harvest for them to catch.
I do agree with Ms. Ellis that we need to have a conversation about how risks and benefits are shared. I don’t think it should be done through legislation.
Ms. Ellis: When measures were put into place and they went to limited entry licensing, there was a percentage cap on licence ownership at 12 per cent. I feel that hasn’t necessarily been upheld or maybe it has lessened in the following years. There were concerns about it when things were first brought in, and I don’t think those concerns have been met.
Senator McInnis: Thank you all for coming here. Mr. Chidley, don’t go away. I have a question for you later on.
I wanted to ask Ms. Burridge a question with respect to her comments and particularly the involvement of the Indigenous community in fishing. In paragraph 2, page 2, “Indigenous Participation, Co-Management,” you say, “The right to manage fisheries resides in the minister and cannot be downloaded to others except in clearly defined ways. Parliament should be careful that it is not giving unconstitutional powers to the minister to delegate management to Indigenous organizations. A patchwork of separate fisheries and management authorities on the West Coast would be a disaster.”
It’s funny you mentioned that because I made some notes when I was going through the act with respect to that. Clause 3 in the proposed act references 2.5 at page 4. It is an outline of what the minister must take into consideration when making decisions under this act. He has to take into consideration the precautionary approach, the community knowledge and the traditional knowledge of Indigenous peoples. Sometimes I think they don’t take the latter as much as they should. They seem to be quite knowledgeable about the fishery. If there is a conflict between the Indigenous knowledge, the science and the community knowledge and the Indigenous peoples, who reigns supreme?
More specifically in dealing with your comments, when I read in the act, 2.3, “Indigenous Peoples of Canada.” Permit me, Mr. Chairman to read these. I think they are important, the rights of Indigenous people of Canada, 2.3.
For greater certainty, nothing in this Act is to be construed as abrogating or derogating from the protection provided for the rights of the Indigenous peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
And further, the duty of the minister, 2.4:
When making a decision under this Act, the Minister shall consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.
Now, that doesn’t give carte blanche to the native community, but it gives them a right. What I want to ask you: What were you referencing when you went into that? You’re not suggesting that they’re giving carte blanche, total control of the fishery to the natives, are you?
Ms. Burridge: I think what I’m suggesting, senator, is that what we see on the West Coast is that peer-reviewed science is being outweighed by Indigenous knowledge, and I think we have to find a better way to balance that. In the example that I gave, we have a peer-reviewed stock assessment and we have a target catch. They did not want that fishery, so in the name of reconciliation it was suspended. Suspending that fishery cost coastal communities $12 million. Forty per cent of the herring fleet is Indigenous, so there are some profound impacts here, and I think the committee needs to be careful. Obviously we will have to work through this. I absolutely agree that Indigenous peoples will have more influence on fisheries management in the future.
Senator McInnis: That’s what it is saying, is it not, the bill, but those clauses I read are treading on different grounds. I appreciate what you’re saying.
Mr. Chidley, I feel bad for you because you’re trying to get CRA to agree with something, and that’s a challenge in itself. God bless them, wonderful people, but — This situation certainly reeks of common sense, that you would have a shore captain. I don’t understand all of the ramifications. But in fact what happens is your son and other family members, a crew of six, I think I read, and you’re on shore, and you’re every bit a part of the business. So today, what they have are these controlling agreements, and I’d like for you to distinguish between the controlling agreement and what you’re suggesting. Because now, what you do, you put it in a will, and the will is probated and they pay the succession duties or whatever it is, and then it is transferred by way of your will. So why is it that Revenue Canada does not see you as an integral part and why is it necessary for you to be on board the vessel?
Mr. Chidley: It’s not that Revenue Canada wants me on board the vessel. It’s the Department of Fisheries and Oceans.
With regards to the control versus the independent operator, with the independent operator, the beneficial value of the licence and the beneficial workings of the licence remains with the licence holder. That is all intertwined into the fleet separation policy for the less than 65-foot fleet versus the commercial-industrial fishery, like the OCIs of the world are involved in. That is an over 65-foot policy. In our fleet and in our region, the owner-operator policy is the one that governs.
The problem is right now the way the legislation reads is that the person that owns the licence has to operate the vessel on board the vessel. That totally flies in the sense of operating a business. We’re in 2019. We’re not in the 1970s any more. When you have a crew of men on board, you’re actually dealing with everything from problems within some of their own families and your own and with DFO and other issues that come up at the time. The guy at sea cannot do that, but the person who is involved in the control agreements, the controlling party, has someone on shore always dealing with that. They have legal teams. They have their own advisers. Before the ink gets dry on the Fisheries Act, there is someone in legal circumventing what we’re now about to discuss, but I can’t do that because I don’t have the wherewithal and the means to do it because I’m an individual licence holder that now could get put back aboard a vessel.
Senator McInnis: What has Fisheries and Oceans told you about this?
Mr. Chidley: They restrict us to a 60-day policy, or 120 days maximum. That’s only four months. If I run out of days, then I have to go to a doctor and get a doctor’s note, and I won’t lie for anyone. I’m not sick. If I get sick, God wills it, and that is not my problem then. But I’m not going to lie for anyone just to be able to stay ashore. I’d sooner get my day in court and challenge. But the problem is after 120 days, they just won’t issue the permit to my son to operate the vessel.
Senator McInnis: How many like situations are there?
Mr. Chidley: In our community, a tremendous amount. There’s mostly father-son, father-daughter issues. We’re building the enterprise for the future, and this would not be actually one for all. This set-up was done at one point in time in Newfoundland and Labrador before, and there were some guys that were granted the shore captain status, so there is nothing new, but they failed to do it now. This is at a time when we’re trying to encourage young people to get involved in the industry. How can they become involved in the industry if their father is going to be forced back aboard the boat again, therefore replacing a crew member? There’s no point having any more than you can fully employ.
Right now, we can make a better business case having my son and the crew operating that vessel and me watching the shore, because two or three points on the litre of fuel means a big difference on the 10,000 litre per trip, and five cents on bait, when you’re going 6,000, 7,000 pounds per trip, that’s a lot of difference. So you’re always into that negotiation point. The cost of food alone. One time we’d bring $400 worth of food in the back of a pickup. Now we carry it in a little grocery cart. That’s the difference. Now we’re running the business, and this is what the person has to be on shore for.
To go with the letter of the law with the owner-operator policy, for all intents and purposes, my son will be forced into debt because I’m going to have to sell the operation because next year I will be 65. I’ll have to sell the operation. He’s running the show at sea now, totally as competent as I ever was. I mentored him into that, and that’s the way we want it. So I get put into a position that all our savings and everything is going to be gone because I will have to pay it in taxes and he gets put in debt, and for what? We’re trying to manage people, not the fishing resources. That’s what the problem is.
Senator McInnis: How long have you been at this?
Mr. Chidley: Six years old was the first trip —
Senator McInnis: No, no, I’m not talking about that. How long have you been trying to get this amendment?
Mr. Chidley: Since I’d say 2004. This has gone through many different colours of governments and many different discussions at the regional offices at DFO. There’s not been a policy, and why? Because a 150-year-old Fisheries Act says we can’t do it. We have the opportunity here to get this right. I wouldn’t rush at getting it signed off and delivered just to say that we got Bill C-68 passed.
Senator Poirier: Thank you all for being here. I have a couple of questions, and I’m sure the chair will let me know when my time is up.
My first question is for Ms. Burridge from the BC Seafood Alliance. You talked about stability and predictability touching the provision regarding the licensing policy. I had questioned the previous witness on the proposed modifications, which we were told by the minister would be made by the regulations, and the witness from last week seemed satisfied. Could you please elaborate on your concerns concerning the modification to the licensing policy, and in your view, what would be the best approach to improve the licensing?
Ms. Burridge: In my view, licensing policy should be policy and should not be in legislation at all. I think that DFO’s priorities should be stock assessment, conservation and enforcement. How people run their business is not, I think, a matter for the law, so long as it is legal.
Senator Poirier: Thank you.
Ms. Ellis, will Bill C-68 help the West Coast fisheries to adopt to a similar fleet separation to strengthen the independence, and if not, how can Bill C-68 be amended to achieve that goal?
Ms. Ellis: I think the passing of Bill C-68 will be helpful because of the clause where it says the minister can take into consideration the socio-economic and cultural factors in the management of the fisheries. I’m hoping that will give strength to a deeper look into the West Coast fisheries and how the socio-economic aspects are faring. I think the amendments that could also help the West Coast would be to be putting in amendments that include promoting and preserving owner-operators in all of our fisheries, not just commercial, inshore and Atlantic.
Senator Poirier: This one is to all three. I want your opinion on part of the bill that has been barely touched. It is on the licensing in the fisheries. Bill C-68 is proposing a wide range of modification to the licence, and we talked about that. When reading the appropriate section, it’s not clear. Last week, I questioned the minister on Tuesday, and his answers were really not clear, either. Like most of his answers, he says it will be put in the regulations, for which the timeline is also not clear. Is that worrisome for your respective associations? Have you been consulted on the language used for the licensing articles in the bill? I’d like to hear from all three of you.
Ms. Burridge: I think that gives me concern too. The licensing provisions are enabling provisions. The minister can already do any of those things under his discretion. I don’t think it needs to be in the legislation. In terms of have we been consulted, we put in comments on the East Coast preservation of the independence of the inshore fishermen, so I guess that counts as consultation. But really speaking, all these social and licensing parts were dropped into the bill at the last minute, following a very extensive consultation on the habitat provisions, so I do not feel this was appropriately done, and I wouldn’t want to see further changes without full consultation with people on the West Coast.
Ms. Ellis: I’m concerned, just seeing that things are too complicated or more complicated, but I am optimistic about the minister’s comments that the House of Commons is looking into it with a review and I’m hopeful for some positive things to come out of that.
Mr. Chidley: Consultation is kind of a mean word in one sense. Does consultation to a half dozen or a couple of groups make your commitment fulfilled? Consultations, we didn’t hear a lot about changes to licensing aspects with this because, in fact, Bill C-68, I would probably say encompassing environmental issues, it’s probably one of the quieter things. That’s probably why you haven’t seen many independent fishers in front of you, because people weren’t focused on it because it has been on the go so long and it gets not defeated on the order table but cancelled or change the government. You are hoping that finally when they get to something, it’s not rushed ahead.
This would have been a great assignment for a group like the defunct FRCC that used to be here to take it to the field and see what changes were necessary as opposed to having the Senate bring people in. In my mind, we need to do further consultations on it because it’s not the look of the car; it’s the nuts and bolts that keep it together. I agree with the previous speakers. That’s the problem where we go with licensing conditions is it’s how they operationalize everything. We haven’t seen that. You’d like to see some of that before you could actually pass solid judgment on it.
The Chair: I want to remind senators and our witnesses that we are on a time limit. I don’t like cutting off discussion. I like to hear what everyone has to say, but I do have the gavel, and if I have to use it I will.
Senator Busson: I have a couple of questions, one specifically for Ms. Burridge. I’m interested in your approach, certainly, being from British Columbia and the huge industry that is the West Coast fishery. I noticed one of your recommendations for amendments was around purpose. You made two recommendations in section 2.1(a) and (b). In (a), clearly the conservation and sustainable use of the fishery. I can see why you would want that in the amendment. I’m looking at section (b). It says:
The conservation and protection of fish habitat, including preventing pollution.
The act actually says, “protection of fish and fish habitat.” Is that an intentional omission from saying “fish and fish habitat?” Would you comment on that, please?
Ms. Burridge: It is really not. I didn’t mean to exclude it. I’m trying to get it really short, I suppose. From my perspective, the important thing is including sustainable use, because that’s why we have commercial fisheries.
Senator Busson: Thank you. I was wondering if there was a reason why you omitted the “fish” in the second one. I thank you for that.
I have a quick question for our guests here, and thank you for coming. We heard from other witnesses, and we hear from you both today, the difference between the West Coast and the East Coast, and how you recommend, Ms. Ellis, that we try to have a model more in comparison to the East Coast. At the same time, I’m hearing from you, Mr. Chidley, that you’re being forced into a model that almost looks like a West Coast model. Am I hearing that properly from your side, that you’re losing the ability to do the things that make the East Coast fishery more profitable and more open and user-friendly to generational fishing?
Mr. Chidley: This last number of years, it has been happening, and it’s all about circumventing the regulations, the control agreements and the definitions. There is always a willing participant, like the dance. There is always a willing participant. If you have a level 2 harvester who can see a 10 per cent share, it’s better than getting 4 or 5 per cent as a crew member. The company says, “We’ll give you 10 per cent of the value of whatever has landed to put this licence in your name, and we’re going to finance the vessel for you.” The vessel may be worth $1 million but she will be financed for $5 million. That’s the difference in the licence. They didn’t finance the licence, which you are not allowed to do, but they financed the infrastructure to catch the fish.
Senator Busson: It’s a workaround.
Mr. Chidley: It’s a workaround. That’s the problem with the way this was done. The control agreements got legalized because financial commitments were taken out of the definition.
Senator Busson: Without putting words in your mouth, I have concern that the viability of the East Coast fishery is perhaps at risk by continuing to go down that road and maybe put you in a position where you’re looking at economic factors like on the West Coast that make it impossible.
Mr. Chidley: That’s the concern. I’m a member of the Fish, Food and Allied Workers Union, and I think the president may have appeared not too long ago. I would think that Keith probably addressed some of that and the concerns that are out there.
We’re doing our best to prevent any further erosion by continuing to make the focus that this should not be happening. As one of the recommendations I made, DFO should be doing their due diligence. When someone comes to the table and says, “We want to transfer this licence,” if this licence has only been transferred out of one name into the other, then you should be able to ask, “Who was paying for this in the past?” You should be able to actually go into the inner workings of who had the licence before, who was paying for it and now who is going to, because that’s the only way this gets stopped, to prevent the transfers of those licences. You can transfer the wealth away. In the offshore fishery, which we call the one I’m in the 40-foot to 65-foot fishery, there is a significant amount in that. Even though they say, “No, there are no control agreements,” that’s not a fact. I can name a lot of them, but DFO says that there are no control agreements under the definition.
Senator Busson: Ms. Ellis, I’m assuming from what you’re saying that you have a very unique perspective from your scientific background and as a deckhand, as a fisher person. Do you ever look forward to a day when you might captain a vessel? You’re going for your ticket. Is that a possibility in your world, or is it financially off the map?
Ms. Ellis: I remain optimistic, for sure, whether I get to participate with my family on the East Coast or whether I participate in some way on the West Coast. Right now, if I wanted to keep moving and progress on the West Coast, I would have concerns. To be an independent owner-operator, which is what I would hope to be, I think there will be fewer people who are able to do that. The environment isn’t very supportive for those who want to remain independent and maybe sell their own catch locally or to communities, just have that same sort of experience. I would be hesitant to invest in the West Coast fisheries as a young fisherman.
Senator Christmas: Last week, we had a witness from the Canadian Council of Professional Fish Harvesters, and they had mentioned to us that one of the challenges in the fishery is succession planning. There were no young people being attracted into the fishing industry. I notice in your remarks, Ms. Ellis, you mentioned that the majority of young coastal community members are not entering the workforce because they do not see a future for themselves in the industry. You’re basically reiterating what the independent fish harvesters were telling us last week. Could you take a few moments to explain why you think young people are not being attracted into the commercial fishery?
Ms. Ellis: I think that young people aren’t being attracted into the industry because it’s very hard to make your way off the deck and into the wheelhouse and to actually own your own operation. Commercial fishing takes a very heavy toll on your body, and I’ve seen a lot of people who have wanted to remain in the fishery and are still working on deck at 40 years of age in some aspects. Even me, one season, I’m pooped at the end of it. I think that being able to transition from the deck into the wheelhouse in a way that you can afford it would keep more people in it.
When I prawned fish, I was with a crew of four professional fish harvesters, and all of them have left the industry since for other jobs that are able to provide them more financial security, such as taking their fishing masters tickets and working in tailing ponds in the oil fields. It’s a really beautiful life, and I really hope that people will be able to experience it.
Senator Christmas: Likewise. I hope there is a way we can keep the industry thriving and alive with young people.
I know my time is limited, but I’m trying to understand something that Mr. Chidley had mentioned. The way I understand the owner-operator policies, this new act will convert that policy into regulation. It will convert it into law. I had assumed, and maybe I’m mistaken, that roles like a shore captain were recognized in the existing owner-operator policy, but I get the sense from your long struggle with this that that’s not the case. Is it correct that you’re telling me that if the existing owner-operator policy is simply converted into regulations and becomes law, that there is no place for shore captains in this new regulation or policy?
Mr. Chidley: There is about, I would hazard a guess, maybe 1 or 2 per cent of the captains who are licence holders in Newfoundland and Labrador were grandfathered years ago into shore captain status by a DFO official. But that was it, cut and dried, done. Everyone after that is under a policy. We have so many designation days that we can use per year, and that’s 120 days.
Under the new Fisheries Act, if you put the owner-operator policy into regulation, the people who have the shore captain status now are correct — you are correct in what you’re saying — but the rest of us will be under the new regulation and have to be back aboard the vessel. That’s the difference.
What we’re looking at is there’s an opportunity here for anyone who has run a family business and has been doing it for so long to be granted shore captain status under the new act. People who want to bring new entrants into the fishery and the independent operator part of it, when they find themselves in the position to be able to apply for a seasonal designation — which is not the same as a shore captain, but it gives the opportunity for other people to come on board the vessel and take an opportunity to run it and to see if this is what they want to do in the future before they invest the $3 million or $4 million to do it.
Senator Christmas: Thank you, Mr. Chidley. I’d like to follow up with you later and see how we can find the right words to reflect that.
The Chair: Ms. Ellis, when you mentioned 40 years old, most of us in the Senate don’t think 40 is very old. If you look around the table, you see a lot of grey hair. In Senator Duffy’s case, maybe little hair.
Senator Duffy: Thank you, Mr. Chairman. I’m envious of all of you guys on the hair front.
Ms. Ellis, I’m sure you know this. On P.E.I. we have 1,200 inshore fishermen dealing with the lobster fishery, and they’re all individual operators. If we adopt this proposed change, are we in danger of seeing them wiped out and replaced by corporate fishing vessels?
Ms. Ellis: Not with the passing of this bill, I don’t believe. Without the passing of this bill, I think there would be the threat of that. I think the bill is helping to promote independent owner-operators, in my understanding of it.
Senator Duffy: Mr. Chidley, farmers want to hand down their farms to their families, and they get special tax treatment from Revenue Canada. Is that essentially what you’re seeking?
Mr. Chidley: Except that it doesn’t go far enough because that means point of sale, and I’m not interested in selling. I’m interested in giving my enterprise to my family, my son, because through blood, sweat and tears, in 20-odd years, we built a new vessel in 2003. We started fishing in it before we owned the vessel, and now we find ourselves in a position that it would be a great time to do such a plan, to put it in his hands. It is my retirement, but I don’t want to have my retirement cost him his life. In actual fact, that’s what it ends up doing. It takes a terrific toll on a person when you owe $4 million or $5 million. That’s what it takes now to build and operate an enterprise like ours.
Senator Duffy: Do I understand that correctly, that it would cost your son $4 million or $5 million to take over the family business?
Mr. Chidley: Yes. That’s on my value. The market value could be $6 million, but if I sell it to him for $3 million, now he’s in debt for $3 million and I’m responsible for the taxes on the other $3 million. Welcome to what we’re dealing with.
Senator Duffy: Then how can we help you?
Mr. Chidley: One of the recommendations I have is that we have it in place that I’d be granted shore skipper captain status. That allows us to operate the vessel as we have been doing it for the last 20 years. Then he won’t have to take out a loan. It’s going to end up with him anyway through natural attrition with my demise, but I’m not going anywhere yet. The two of us are still running the business. Even at 64, I’m still fishing. I’m still on the go with this stuff. I still make the odd trip on the vessel, but that’s going to be his livelihood. I didn’t buy the enterprise to sell it. We bought it to run it in the future.
There’s the work in the community alone that our vessel provides. Every time it comes to the dock, there are, 60 people working, and we don’t sell off the southern shore. We put all our product on to the southern shore. It’s processed in Cape Broyle and sold overseas. That’s the difference. People look forward to the boat when she comes in, so if it gets sold to someone else it could end up going to the south coast, the northern peninsula or Atlantic Canada.
Senator Duffy: Chelsey, you’ve seen both coasts and you understand what the fishery means to all of our thousands of small communities and harbours that are dotted all over Atlantic Canada. You’ve also seen the West Coast. What I take from your remarks is that you want to bring that same kind of community spirit to the West Coast.
Ms. Ellis: That’s correct. I think that if we had licences and quotas being held in the hands of active fish harvesters, then I think it would start to create a flow of benefits back to our communities.
The question that I would have to Mr. Chidley is, would a taxation scheme be more beneficial than to create that? For you to be able to transfer that? I feel like having shore captain might leave a very vulnerable position, as we are on the West Coast, for the legal opportunity to have someone onshore being the person who owns and controls the licences and someone out there fishing it for them. Would there be an opportunity to have a better system for succession planning and would that be helpful?
Mr. Chidley: It would, except my focus is on family-run business. This is a family-run business from day one, and that has to be identified specifically as a different category, because it is a different category. There are people who run businesses who are opportunistic for selling. I’m not doing that. There’s a number of people on the southern shore where I come from that are running family. I can name seven or eight. The sons are running the boats, and they have had those enterprises awhile. The whole idea behind it is that they’re looking at a way to be able to stay ashore and let their sons run it, and it ends up with their sons after they pass on. Unless there’s a taxation policy put in place to allow us to transfer it without impediment for taxes. That’s what it is right now, an impediment.
Senator Duffy: In reading your brief, Ms. Burridge, you talk about stability and predictability. You say that the current policy has destabilized the industry, with millions of dollars that has not been invested because people don’t know where it’s going. What’s your encapsulation when you see people on the East Coast trying to maintain a traditional fishery that employs local people, families and local harbours, compared to the big time that we see on the West Coast? What is your message? Can the two live together?
Ms. Burridge: I think what works on the East Coast will not work in British Columbia. It simply cannot be transferred. I would leave you with the message that one of the fundamental differences is the dramatic decline in harvests that we’ve seen in B.C. over the last 25 years. Shellfish harvests are down by 32 per cent. Groundfish harvests are down by 42 per cent. Herring harvests are down by 50 per cent. Salmon harvests are down by 66 per cent. That’s the root of our problems, and I don’t think that is going to fundamentally change. We have overcapacity. It’s not possible that every boat go fishing.
Ms. Ellis: There is great wealth to be captured within the B.C. commercial fishing industry, and I think that it is being captured. I just think that the ability for some of that wealth to be taken away and extracted out of our communities is having very serious negative effects on the viability of our fleets. People aren’t investing in new boats. They are not buying new boats. People aren’t having the money to put back into their businesses and have safe crew to work with.
I still remain optimistic. British Columbia has phenomenal fisheries and phenomenal products that I think could be creating substantial wealth for our coastal communities.
Senator McInnis: Mr. Chidley, what is your job description?
Mr. Chidley: Education-wise, I have a Fishing Master Class 1 and a merchant marine certificate. It used to be called ON 1 and it is now called Master, Near Coastal, which allows me to captain any Canadian-registered vessel no matter what type. I’m an independent fish harvester, and I own the fishing vessel.
Senator McInnis: What do you do when you go into work?
Mr. Chidley: I ensure that all the business that a vessel — right now, on my phone, I track the vessel constantly. The VMS, it is called, vessel monitoring system. We’re constantly looking at weather reports. Even though she has satellite communications the whole time with the state of the art, we’re always watching. This time of the year especially, the first two months and the last two months of the year, are your most challenging times. You have ice and icebergs that you’re dealing with, and you’re routing the vessel around because sometimes the updates that he’s getting at sea are not as accurate as I can give from land. You probably have to route around a flow of ice because that’s the quickest way through, is around it.
Senator McInnis: So you direct him from shore.
Mr. Chidley: We direct him that way. But the operation of the vessel at sea is totally his and under the same licence conditions that I would operate if I was aboard the boat. Then we manage the business onshore in regards to doing settlement sheets and taxation stuff for the crew. You are the intermediary that deals between the vessel and the company that you are selling to, and the fuel companies and everything else. That’s what I do.
Senator McInnis: All the supplies, everything?
Mr. Chidley: Everything. And the worry.
The Chair: That finishes up our conversation with our witnesses, and I want to thank them. It’s great, number one, to have people that actually are here at the table that make a living from the ocean. It’s always great to hear from you. I want to thank our guests from British Columbia joining us by video conference. As I say to all our witnesses, sometimes after being here and on your way home, you think, “I wish I had said that,” so feel free any time now or in the next couple of weeks to send in additional information you may have or think about to our clerk in written submission. We can include that as part of our work here.
As we prepare for our second panel, I have a couple of notes for senators. We hope to have joining us by video conference the National Chief of the Dene Nation. There are some technical issues. With us in person is Ms. Cynthia A. Westaway, Counsel/Director of Westaway Law Group who is representing the Dene Nation. If we cannot hear from the Chief, my understanding is that Ms. Westaway has the Chief’s opening remarks to present to us. Hopefully we will find our way to the Chief. We also have Mr. John Helin, Mayor of the Lax Kw’alaams Band. We’ll start with the opening remarks from Mayor Helin. Hopefully we will then have a connection; if not we will go to Ms. Westaway with the Chief’s remarks.
John Helin, Mayor, Lax Kw’alaams Band: Thank you for allowing me to speak before you this evening.
My community is on the northwest coast of B.C. We are a First Nations community and I am the elected mayor of the community. We have a population of over 3,800 members, one of the biggest bands in B.C. We are situated between the Skeena and Nass Rivers, which are two of the biggest sockeye-producing rivers after the Fraser River in the south. For thousands of years, we have lived off fish. Sockeye has been a staple in our diet.
After years of regulation, after contact, we have been more or less drummed out of the fishing fleet for salmon. In my community, we have a fleet of 70 to 80 gill netters who can’t make a living anymore fishing for salmon with gill nets. We have a fish plant in my community that, at its peak, employs up to 100 members in the village. We’re having a lot of challenges keeping that operation going. We diversify. We update the fish plant to process other fish. It’s always a challenge. Right now, we’re producing or processing groundfish. It’s doing fairly well so far but, because other fisheries are coming into the area where we usually fish, it cuts back on the fish we’re allowed to catch; hence, we’ll lose the opportunity to fish and the opportunity to put our members to work. That fish plant was built in 1974 in the village. It’s the only one left on the north coast of B.C.
I was listening to previous witnesses talking about owner-operator and other stuff. I’ve been coming to Ottawa since I was elected a little over three years ago, meeting with different ministers on the fisheries, starting with Minister Tootoo and Minister LeBlanc. It seems that everything we say falls on deaf ears.
At one of my meetings with Mr. LeBlanc, he said something that struck me: I don’t want to happen on the East Coast what is happening on the West Coast as far as regulating fisheries. That was pretty stark to me, for him to make that comment. We feel left out in B.C. because we don’t have the political clout that other areas of Canada have. I point to the Atlantic Fishery Fund. We don’t have a Pacific Fishery Fund. The way we’re treated — we hear words like “consultation” and “reconciliation.”
Right now, we’re taking direct action against a non-native fisherman who is permitted to fish herring right in front of our village, while every single one of our fishermen agreed to tie up this year because of lack of fish. We have written letters with our neighbour from the Coast Tsimshian asking DFO to shut it down. That falls on deaf ears. Yet they allow that guy to fish right on our doorstep. There was a seine herring fishery in our bay in the 1970s and 1980s. That fish was wiped out and, to this day, that stock has not come back. Herring is a staple not just for people but for other fish in the sea that feed off herring. It is alarming when DFO allows one guy to go out fishing and everyone else agrees to tie up.
There are a lot of problems with DFO. A few years ago, our band took DFO to court over allowing us to sell fish. We have food for social and ceremonial rights, but we’re not allowed to sell it. Yet there are bands around us that have commercial rights in salmon, in roe and in kelp. We have interior bands on the river that are allowed to go out and fish halibut commercially. That’s under the PICFI program. It is a band-aid program run by the feds where they try to get more commercial allocation of different species to the bands on the coast. We were told by Ottawa we were the poster boy of that program. What do they do? They take more of the quota away from us and give it to other bands who don’t have the fishermen to fish out the quota so they lease it out to non-native fishermen.
There are a lot of problems, and I know that I only have five minutes for my opening remarks. As I said, I have come before committees in the past. Hopefully you got the brief that we presented before. It offers solutions. We want to work with whoever we have to work with to improve the lot of our members. It’s all about positive steps. We think we can work in conjunction with DFO.
We were working with DFO locally to sign a comprehensive fisheries agreement. We have never signed one since losing the fisheries case. After we lost that case, all of our fishermen were targeted on the water. I call it racial profiling of our members. It got so bad that one of the enforcement guys boarded my son’s boat when he had his 10-year-old kid on the boat. The guy pulled his gun on the deck of my son’s boat without provocation. That went to court and was tossed out. That shows how we are treated in our own traditional territory. When you talk about reconciliation and consultation, they’re just empty words for us.
Hopefully, coming before committees like this, we can make the improvements that we want. You talk about traditional knowledge and science-based information. We have been there for thousands of years. We asked DFO to work with us to shut down a fishery because we’re scared of the stocks that are not returning, and then they allow one boat to go out fishing owned by someone who is non-native. What does that say about consultation? Hopefully, the message gets through to the people who need to hear it by my coming before you today.
Thank you.
The Chair: Thank you, mayor. We are certainly looking forward to engaging in some questions shortly.
Ms. Westaway, we have not made a connection with the chief. Would you present his opening remarks? If he can join us later, he will.
Cynthia A. Westaway, Counsel/Director of Westaway Law Group, Dene Nation: I will share some words from the National Chief of the Dene Nation, Norman Yakeleya. He is here to speak in support of Bill C-68. He is here in spirit but not on some phone line.
There are approximately 15,000 Dene in the N.W.T., and they are signatories to Treaty 8, signed in 1899; and to Treaty 11, signed in 1921. The years since those signings have been hard ones, often bitter, with slow progress to fight for rights of people the lands, the water and the animals have sustained for hundreds of years. Yet we have honoured our treaty commitments as others did not.
We signed our treaty 120 years ago for as long as the sun shines, the river flows and the green grass grows. What is important is that the spirit and intent of this treaty commitment does mean air free from pollution; water that is clean, abundant and can sustain all living things that exist in the water; land that is healthy and can sustain all that live on it, including the Dene people. This is what existed when our forefathers signed the treaties and this is what we fight to protect this very day. We see Bill C-68 modernizing the Fisheries Act as very important to meet these treaty commitments.
I read a recent Hill Times op-ed on Bill C-68. There was a line in the article that caught my eye. It said, “Simply put, fish need water, and a modern Fisheries Act should say so.” Our rights to hunt, trap and, in this case, fish will be empty rights if there are no fish because their habitat and the water to sustain that habitat are not legally protected.
We have learned the power of laws over the last 150 years, both good and bad. Bill C-68 can be a good law. The Dene want it to be a good law. The next federal election is less than 200 days away. The Dene support a good law that we passed in the life of this government. Having Bill C-68 die on the Order Paper would be a terrible waste. Our legal counsel are here to assist in answering any legal and technical questions.
The chief will be on the line to respond to any leadership or political questions people might have. Then he turns the final minutes over to me.
I am Cynthia Westaway. I am legal counsel and have a certified expertise in Indigenous law from the Law Society of Ontario. I’m here to speak today on behalf of the Dene, but we also represent First Nations across this country and other Indigenous groups.
We do see the modernization of the Fisheries Act as very positive and very necessary. We have made submissions. The Dene have been active and involved in this process. They have not sat back, that is for sure.
The four key points we wanted to raise in our opening are also what the national chief has raised, and that’s around the Indigenous legal rights. You can’t fulfill a treaty right without the fish and habitat to do so. We also want to talk about proposed section 2.2 and the flow of the water and the importance of the protection of the flow of the water and the urgency of the situation now. The fish can’t wait, and neither can the treaty rights-holders. What I heard from my colleague here today already is that local expertise is really important. We can’t have decisions made elsewhere that don’t make any sense to the regional environment. Those are the four main aspects of my remarks today. I will try to be shorter so you will have more time for questions.
Basically, with the protection for waters, habitat and fish, we cannot forget the direct relationship not just to native interests, as some of the questions were asking this morning or later on this afternoon, but the historic and modern treaty rights that are constitutionally protected. This is a special public interest and a special constitutional right. We cannot forget that when looking at the importance of the habitat, the water flow and the fish.
We see Bill C-68 as a very important step to complying with the United Nations Declaration on the Rights of Indigenous Peoples. As a declaration, UNDRIP is something that Canada has supported unequivocally and that needs to be alive, and it will be alive here in the Dene and their capacity to govern, to lead and provide leadership in the management of the fishery, in the monitoring. If those are all, as part of this act, alive and well, we will have implemented the important parts of UNDRIP, and now is the time. We’re looking for ways to do that.
With 2.2, of course, we’re asking the senators to please appreciate the delicate fabric of what must be protected. We have read singularly focused economic interest pieces from other industries that, with great respect, we say are rather foolish. We need to have that balance. The Dene have a strong cultural and sustenance fishery, and they also have a commercial fishery. They think the management of the flow as part of the habitat to ensure that you have the quality of the water, the quantity and the timing of when it flows cannot be left out. That’s a critical part of the habitat. If you do that, you will lose your treaty rights. You will lose your fishery and your commercial fishery. They are tied together like a blanket.
We say that industry already has the technical knowledge they need to measure flow and don’t interfere flow with the wrong time. It is just a matter of making sure its law and not just policy. We’ve seen a lot of policy in the past, and we’ve seen different governments fulfill it or not or starve it by failing to fund it. We do need to have it in legislation right now, and this enabling legislation will give us the tools and flexibility to do the regulations that can give it life.
We do see the federal legislation as an important key backstop for environmental protections. Just like the crisis we have in climate change today, we can’t have gaps. Sustainability and the resilience require this federal legislative backdrop.
To close that point on proposed section 2.2, we say that all of the fundamental requirements for water flow need to be there to protect the fish, the feeding, the spawning and the rearing. I know that the mayor will be able to enlighten us. If you have fish that spawn here and rear here, you can’t protect just one area of the habitat. They have to go through the life of the water, and the flow is very important.
We think this is urgent. We think there is no time for delay or time to filibuster. We need to move forward in an urgent way to advance Indigenous rights and to work together on a nation-to-nation relationship. We don’t think consultation after the fact is much use to anyone. We need to be involved in this collaborative type of process, making sure we sit together and do these regulations together. The Dene are very experienced. We have worked on the transboundary water agreements and the N.W.T. Wildlife Act co-drafting. We have sat together and made the best laws.
My last point is that when you have regional expertise, when you have Indigenous knowledge, traditional knowledge, you will have the best results and you will be able to protect your commercial and your sustenance fishery and your rights. We used have to go three provinces away to find a federal fisheries officer who would delegate it to an uncaring provincial officer sometimes. It’s not going to work. You need to have that traditional knowledge and that local expertise.
We have great scientists in the Dene Nation and we have great traditional knowledge experts. Most of the time, they work really well in tandem. Where there would be a conflict, we have never seen more peer-reviewed reliable science than those that come from the traditional knowledge holders. It has been peer reviewed for thousands of years in a cultural context. Science can do small studies on one area, but there is always a weakness in those studies. Indigenous knowledge can put it together.
The Inuit told us that there was global warming when the seals were diving on an angle 35 years before science could tell us. We need to listen to the elders and to the traditional knowledge.
That’s our main opening, but we’re here to hear your comments and any questions you have about how the fishery would operate for the Dene in a way that moves this country and this nation forward.
The Chair: Thank you, Ms. Westaway. Before we go to Senator Gold, I will remind everyone that we are on a time limit and we have another panel before the night is over. I don’t like to cut off conversation, but let’s try to keep our questions and answers as succinct as possible. Senator Gold, our deputy chair, will begin our questions.
Senator Gold: Welcome both of you. Thank you for your testimony. I have two questions, one for each of you.
Mayor, thank you for putting in context the way in which the operation of laws and policies are affecting your community. It’s helpful for us to understand the real world consequences of the legislation we’re studying. Your comments seem to relate mostly to the question of DFO policies or implementation and how they do their business. Are there areas within Bill C-68, which is what we’re studying, that raise specific concerns for you? Or do you think as others have said? Ms. Westaway said that it’s basically a step in the right direction. I wasn’t clear from your testimony what your focus is on Bill C-68.
Mr. Helin: Overall, generally, it goes in the right direction. More specifically, when something becomes law, it becomes law, and we try and deal with it in all our areas. Again, we’ve got a regional director that I’ve met with three or four times, and her higher-up says she will get back to us on specific questioning. That never happens. Whatever we have to deal with, we want real answers. We don’t want the politics; we don’t want the merry-go-round. Our people are starving. How do we get them off poverty? It’s real. Playing politics is not the right thing for us to do. The bill, like I said, generally would be acceptable, I think.
Senator Gold: Thank you.
Ms. Westaway, I take it that’s generally your view as well from your opening remarks. I have a narrow, technical question because concern has been expressed — and we’ll hear it in other panels coming forward — about the particular provision that was introduced in the other place, the deeming provision on habitat, what would be new section 2.2. You mentioned, in passing, something that I thought might be relevant to that. Do you or the Dene Nation have a position on that particular provision that would deem, for the purposes of the act, that the quantity, timing and quality of the water flow that is necessary to sustain freshwater or ecosystems are deemed to be a fish habitat? Is that something you support, or do you see challenges with that?
Ms. Westaway: Absolutely. The DFO policy already considers the flow and the quality of the water and the timing of the water levels to be part of the habitat. We see the language as adding clarity to make sure that everyone is clear that you have to manage that flow. We’ve seen our fishers with nets that are ruined by flooding. The water levels and the water flow are critical to the commercial vehicles, to the people fishing for their dinner every day without a grocery store, and certainly for the protection of the species. The flow and the water levels, you have to look in our rivers or spend a bit of time in Manitoba, and you know that it’s just critical to the wellness of the fishery and fishers.
Senator Gold: Your focus is largely on the flows of water that are habitats for fish as opposed to some concerns from the agricultural sector that you dig a culvert to do some water overflow and all of sudden that becomes a fish habitat.
Ms. Westaway: Have you ever been to Saskatchewan where every culvert is a duck and fish habitat? There are places we have to remember that people are living off those fish and ducks that are on the side of the sloughs on the farms. We can’t presume that they shouldn’t be protected. Certainly there are smaller areas that you might consider as a farmer here in the south not to be habitat. Those are northern and western habitats. It really has to be a local decision.
I’m very excited about the agreement section. That’s something that we’re hearing from the mayor here. When everybody is pulling their boats off the water, here is that agreement between Lax Kw’alaams and DFO to make sure that they’re working together and there’s not one fisherman who is outside of the preservation. That agreement section, that water flow section, is critical to the Dene Nation.
Senator Gold: Thank you very much.
Senator Poirier: Thank you both for being here.
I have a couple of questions for the mayor. When they appeared before the committee on April 2, the Minister of Fisheries and Oceans and the Canadian Coast Guard said there was an intention in Bill C-68 to ensure that there’s a strong Indigenous participation. In your view, would the Fisheries Act, as amended by Bill C-68, ensure this strong Indigenous participation? Either one can respond.
Mr. Helin: No.
Senator Poirier: No?
Mr. Helin: No. On any of those bills. That’s why I say, what is consultation?
Senator Poirier: Ms. Westaway, do you have anything you want to add?
Ms. Westaway: The tools are there, but what I’m hearing the mayor say is it’s all about the good faith and meaningful consultation. You can’t have lip service. We would have to have agreements where the mayor’s community was consulted regularly and where the Dene were consulted every year. We’re looking at those types of opportunities that are in the bill, but it requires people, and DFO has to fulfill it with good faith.
Senator Poirier: Mr. Mayor, in your opening statement, you talked about the improvements you want. Does or can Bill C-68 address the improvements that you want?
Mr. Helin: I would say not specifically. You talk about owner-operator of a quota or of a fishing vessel. In B.C., we’ve got Jimmy Pattison, who owns a lot of the quota and boats, and he’s moving his operations to Alaska because it’s cheaper to do business there, shutting down a fish plant in Prince Rupert that employed a lot of people from Prince Rupert.
I will use halibut for an example. If you want to buy a pound of halibut quota right now, it will be $130 a pound. Do the math. We can’t afford to buy quota. How do we get access to quota? It’s not just halibut; it’s geoduck and all those species that are worth money that we don’t have access to.
Senator Poirier: Is there an amendment that you see could bring the improvements you want on Bill C-68?
Mr. Helin: But you have to have the ear of the people — the fisheries minister, the regional director, the local fisheries officer in Prince Rupert. We don’t seem to have that. We want to work with people to improve that, but it doesn’t seem to happen.
Senator Poirier: If I understand right, there’s been no consultation with your group on Bill C-68?
Mr. Helin: No.
Senator Poirier: Thank you.
Senator Busson: Senator Poirier covered what I wanted to ask. I know the whole area of Lax Kw’alaams and Metlakatla, and your communities are clearly built on the water. They’re built for fishing. It’s almost tragic that you describe a life that has alienated you from that for a great deal of time.
We hear words like “co-management,” “consultation” and “participation,” and obviously, from your answer with my colleague, that’s not happening. It talks about the duty of the minister to include the rights of Indigenous people as he makes his decisions around the fishery. I would suspect that that would be good news for you, from your perspective.
Mr. Helin: Just getting a meeting would be good.
Senator Busson: You said that your fish plant was just about defunct because of the lack of fish. Is that issues around stock, quota or market share?
Mr. Helin: All of the above.
Senator Busson: Clearly, you need some partnership in managing the fishery.
Mr. Helin: Yes.
Senator Busson: You’re in one of the most pristine and fish-wealthy areas of our country.
Mr. Helin: I heard one of the witnesses speak before me about making a good living. Another one was talking about the age of the fishermen. The gill net fleet I talk about, the age of those fishermen is late fifties, sixties, 70-year-old people trying to make a living, who can’t even pay for the fuel for their boats. That’s how bad it is.
Senator Busson: Thank you very much.
Senator Marc Gold (Deputy Chair) in the chair.
The Deputy Chair: Honourable senators, I’m pleased to announce we’ve finally been able to establish the video link with National Chief Norman Yakeleya from the Dene Nation. We welcome you to the committee, chief. Can you hear me?
Norman Yakeleya, National Chief, Dene Nation: Thank you, senators. Modern technology, from smoke signals to cellphones. It’s working now.
The Deputy Chair: We’re glad to have you with us. I should tell you, chief, that because we weren’t able to reach you at the beginning, your opening remarks were presented by Ms. Westaway. We’re in the middle of senators’ questions. I’m not sure if you’ve been able to follow the proceedings up to now. Is there anything you’d like to say before we return to the senators’ questions?
Mr. Yakeleya: Thank you, Mr. Chairman. I’ll follow and listen to your guidance and your process, and if you have any questions after, I’d be happy to answer them. Let’s continue on. I understand that our speakers did a wonderful job, so I’m just here to be amazed at this technology. Carry on, Mr. Chairman.
The Deputy Chair: Thank you, chief. We appreciate your indulgence and your confidence in our technology.
The next question comes from the sponsor of the bill, Senator Christmas.
Senator Christmas: Mayor Helin, I was somewhat troubled by your comments that you’re having a lot of problems with the Department of Fisheries and Oceans and that you definitely feel left out from the B.C. fishery and you had to resort to taking DFO to court. Am I wrong to say that the relationship between your community and the DFO has broken down?
Mr. Helin: It’s been broken for years. We’re trying to repair that relationship, but when you have something like that one guy going out fishing right in front of our village when we’re saying please don’t fish because we’re worried about stocks, and they say they want a new relationship, what does that tell you? They say the direction is given from Ottawa, and the guy absolves himself from Prince Rupert of making that decision after writing letters to ministers and regional directors imploring them that the stocks are in trouble, please keep it shut.
Senator Christmas: I understand that you did meet with Minister Tootoo and Minister LeBlanc?
Mr. Helin: Yes.
Senator Christmas: And now we have a minister from the B.C. coast. Have you met with Minister Wilkinson?
Mr. Helin: I haven’t met with him as of today.
Senator Christmas: I can certainly understand your frustration. I’m from a small Mi’kmaw community from the East Coast, and I can still clearly recollect those days. Where you’re at today is where we were. Unfortunately, it took some court cases, but we finally have a viable commercial fishery on the East Coast and our relationship with the DFO has improved dramatically. Maybe I don’t have a question in my mind, but I was trying to throw you a line to say that there’s hope and that things can change.
There is one thing I did want to run by you, just to see your reaction. As you know, Indigenous people have been left out of the Fisheries Act. There’s never been mention about Indigenous peoples in the Fisheries Act. This particular bill proposes, for the first time, to include some provisions for Indigenous people. For instance, the minister would be required to consider Indigenous knowledge when making his decisions. If this bill is passed, one of the minister’s requirements is, before he makes decisions, he has to consider Indigenous knowledge.
Mr. Helin: Right.
Senator Christmas: He has the tool available to make agreements, which you’re seeking, with what he calls Indigenous governing bodies. I assume your community would qualify under that definition. He also agrees in this legislation that before any adverse effects impact Indigenous people, he has to take that into consideration. Those are just a few of the major changes being introduced by this bill. I know you’re in a difficult position, but given that there is some mention of Indigenous people in law if this passes, and Indigenous knowledge, Indigenous governing bodies, and the ministry would now be legally required to consider the impact on Indigenous people, does Bill C-68 give you any comfort that the future would be better?
Mr. Helin: Again, it’s the simple stuff, just having meaningful meetings. Like I said, I’ve been to Ottawa I don’t know how many times meeting with ministers, deputy ministers and top officials in the DFO, and you go away hoping for an answer that you never get. Like I said, you can have laws and you can have policies, but what does that mean on the ground? So yes, you have to have the faith.
Just from your remarks, what you’re saying, what I get is that where you started from years ago, are you saying I could become a senator?
The Deputy Chair: Sir, be careful what you wish for.
Senator Christmas: It must look glorious on your end, but I can tell you, we could all be here very late tonight.
Mr. Helin: It’s got to be better than being a mayor.
Senator Christmas: I’m not sure if the national chief wants to jump into this discussion or Ms. Westaway, but I understand recently the Department of Fisheries and Oceans has created a new region for the North, an Arctic region. I know this goes a little off this bill, but do you see that development being positive for the Dene people?
Mr. Yakeleya: Thank you.
[Editor’s Note: Mr. Yakeleya spoke in his Indigenous language.]
In my language, I said thank you. My people and outside is beautiful. People are now going to start preparing their fish nets. When the lakes open up, they will be setting their fish nets for different fish in the North.
I want to thank you, senator, because when the Minister of Fisheries opened the office in the Northwest Territories, they forgot a major key player in the discussions with the Dene Nation. I brought that up to the minister. We have two big lakes, Great Slave Lake and Great Bear Lake, that are freshwater, the best fish you ever come up here to fish. And we have the Mackenzie River with different fish, so I made note of that to the minister. You know what? I must say that the federal minister acknowledged their oversight. As soon as that was acknowledged, he had his office start working with us on repairing the reconciliation. It takes a lot. I want to really thank the federal minister for this oversight and automatically having one of the officials come over. We talked about the issue of not having the Dene Nation involved in this new office in the Northwest Territories, and we made reconciliation by working together. We’re just waiting now to have an MOU drafted and be approved by both the Dene and Fisheries and Oceans. We’ll start working on a new path of reconciliation. It takes a lot for a minister to acknowledge his oversight. I think I gave him a pretty good spanking in the newspaper, in the press, but he was big enough to acknowledge, and now we’re on a new path of reconciliation with the Department of Fisheries and Oceans.
This bill here certainly supports the modernization of the fisheries, and we want to work with our brothers and sisters across Canada. Our people love fish. They were born on fish and they are going to die on fish. Fish is a very important diet for our people. Fish is life. Water is life. We want to protect the flows of the water, and modernizing the Fisheries Act will go a long way with the Dene people, as about 75 per cent of our diets are based on fish. Thank you, sir.
Senator Christmas: Thank you, National Chief. I agree with you that you have some beautiful lakes in N.W.T., and the Mackenzie, of course, is beautiful. Thank you for those comments.
Senator McInnis: Thank you very much for coming.
I have nothing profound to say, I’m just disappointed with what I heard. A great deal of it is not law, it’s policy. I harken back to the days in another life that I had when I happened to be the Attorney General to receive the Donald Marshall, Jr. Royal Commission Report — and Senator Christmas will remember this, although he was just a child at the time — and there were 82 recommendations, and a great number of them were put in place. One of the things we did early on was to put a tripartite forum together where we had constant dialogue with the native community, the provincial government and the federal government. There’s nothing like regular meetings and communication to stem conversation and correct problems. I would strongly recommend it to you. I’m not sure where it is today, but when Donald Marshall Jr. had to go to the Supreme Court of Canada over a fight about getting eels. It was incredible, but it was landmarking. I think there was a case in B.C., and there was a Supreme Court of Canada case there as well.
You’re on good ground for communication. You now have a minister on the West Coast. We always coveted that position on the East Coast, and he reminded me that we’ve had it for 16 years, he had it until the next election and then we’ll get it back.
What I detect from your challenges that you have, taking quotas, giving it to another person, is this is local, this is not right and this should be able to be corrected, without any doubt at all. There are many precedents, but there is one in particular in Nova Scotia that we used, and it was very effective.
The one thing I want to comment on with respect to habitat and the definition in the act — and I’m not opposing it. I’m just querying one word in particular in the definition: “fish habitat means water frequented by fish and any other areas on which fish depend directly or indirectly to carry out their life processes . . .” The word “indirectly” is a very wide word. Then I see the deeming aspect of it, that for the purpose of this act, quantity and timing and quality. What do you mean by the “timing” in the act? I haven’t been able to get a clear understanding of that, of the water flow that is necessary to sustain the freshwater estuary ecosystem.
Ms. Westaway: My colleague will be able to add to the real-life story, and the chief as well, but the timing is the seasons and the timing in the life of the rearing of the spawning. Timing is hugely important. When the ice flows, when the bass are spawning, we’re looking at those kinds of issues and what the flow and the protection is there. The timing is very important.
“Indirectly” is when there’s a food source. Of course, we have lots of fish that are not part of a fishery. We don’t fish and eat them, but they are eaten by other fish or they are eaten by animals. They are eaten by the local communities. While they’re not a commercial entity, they are still part of it and must be protected as part of an ecosystem. What the Dene are saying is that we have to protect the ecosystem so that we can have the fish to have our commercial fishery and our food fishery.
You know about the timing of water flow.
Mr. Helin: What we learned from our elders is when they look at the snowpack around the rivers and the streams, it’s an indication of good water quality, good water flow, and you’ll have a good return in those systems. If you look at the berries, when they come out, the timing, the amount and type of berries, that’s another indicator for fish. There’s all this traditional knowledge around science.
I beg to differ with the chief. We have the best fish on the coast of B.C., and those fish go out in the Pacific Ocean where other nations catch that fish. We don’t control that. There are a lot of different factors at play on what returns and what doesn’t.
Senator McInnis: Thank you for that. I’ve learned something tonight. I will say that the bill ensures a strong Indigenous participation. It’s mentioned in two or three different places. Some might think it’s too much, but sometimes I think that we should listen more to the Indigenous populations when it comes to fish. They seem to know a fair bit about it. In any event, thank you for that. I wish you luck in the future. It’s a wonderful area where you live, and you should probably change to an MP.
Senator Fabian Manning (Chair) in the chair.
The Chair: I’ve been a little lenient with Senator McInnis seeing as he’s celebrating his seventy-fourth birthday today. To be spending it with us this evening, what better place could you be?
Senator Petitclerc: Thank you for your presentations and for being here. It’s very helpful.
I have a question on how to harmonize Indigenous knowledge with scientific evidence. Ms. Westaway, you mentioned that a little bit. Clause 3 of the bill talks about consideration for ministerial decision-making, and some have noticed that what it says is that the minister may consider, among other things, the application of precautionary approach and ecosystem approach, may consider community knowledge and the traditional knowledge of Indigenous people and social, economic and cultural factors. Are you satisfied with that “may,” or should it be “shall” instead of “may?”
Then I want to hear a bit on your perspective on Indigenous knowledge with scientific evidence. Is that dealt with properly by DFO now? Will this bill help in that regard?
Ms. Westaway: We are happy with the “may” because we think that this bill puts into legislation what the law of the Supreme Court is already, that there is always a right to be a participant and to be consulted.
The “may” is there, we understand, because traditional knowledge has to be shared in the right way and at the right time. If the minister “shall” demand that Indigenous knowledge be shared, that would maybe interfere with the right hearing and the right way — there should be ceremonies and there are ways to do it. When Indigenous people want to share the knowledge in the right way, they will be allowed to do so and be asked to do so, and that’s one of the requirements, but it’s not going to be taken or kept somewhere else away from the knowledge holder. That’s why the “may” is there, and that’s something we actually asked for in the cross-country consultations.
As far as science, again, Indigenous people, especially the Dene, are asking for more access to science and more funding to make sure that when there’s a spill we have the best scientists there to help us measure the oil in the water. That will be married and used with traditional knowledge. I don’t see us as anti-science. Chief, maybe I’ll let you address that, but I see us using both always.
Mr. Yakeleya: I want to say, Mr. Helin, you do have the best fish. I want to say that to you.
I wanted to say also the Indigenous traditional knowledge is very key to this fishery bill here because there are special people in our communities that have that knowledge and that relationship with the fish. As a young man 30 years ago, I did a fish study with the Department of Fisheries, and we caught some Arctic ciscos across the Mackenzie River from my community, which is about two miles wide. When we took the tags out, some of the Arctic cisco fish were sent to Vancouver. We found out that they came from Prudhoe Bay, Alaska, and they were spawning one month earlier than their normal stage of spawning, so we know that the fish are changing.
The elders, the old past chiefs, talk about a time in history when we are going to put our fish nets in the water and when we pull our fish nets from the water, there’s going to be lots of debris on our fish nets and there’s not going to be any fish, or when we do pull our fish nets there will be fish in our nets that are rotten. I was 17 years old when I heard that. That was about 40 years ago, and I can see now the wisdom of what they were talking about.
It is very key to have the traditional knowledge in the Department of Fisheries and into this act here. It would be very wise, Parliament, ministers, to go to the traditional knowledge holders, especially around fish. As I said earlier, the minister and his department are going to work with the Dene on the traditional knowledge of our land, especially the water. Our water is alive and it’s our blood, and we need to make sure that the flow, the quality and the quantity as per our land claims and per our treaties stay intact, and we support the bill.
We want to work with the scientists, with our people. We have to share and make a clear distinction. We have special knowledge that has not yet been told to the world. We want to make sure that when we tell you our special knowledge, that it’s going to be used in a good way. We want some protection around that special knowledge into this bill here so that all of Canada will benefit. Then I can invite Mr. Helin to Great Bear Lake or Great Slave Lake and we can go fishing for some of the best lake trout in the world.
Senator Duffy: Thank you all for being here and again, chief, our thanks for putting up with the technical glitches.
Mr. Mayor, this has been a fabulous exposition for the people watching at home to understand the frustrations of dealing with government bureaucracy, not just DFO but the whole machinery of government. You mentioned the herring fishery and how your band voluntarily tied up their boats to conserve the stock. The person who is out there fishing despite the concern about the precarious nature of the stock, is that a corporate fisher or is that an individual person?
Mr. Helin: I think it’s a combination of both.
Senator Duffy: So there is more than one boat out there?
Mr. Helin: There is just one boat. To understand the fishery, it’s the same boat. What he does is he goes out and catches herring with a big net, a seine net. He takes that fish to a pond, a pond that’s anchored close to shore, puts the fish into the pond, goes and gets kelp and puts the kelp in the pond, and the herring spawn on the kelp.
Senator Duffy: Kind of a fish farm.
Mr. Helin: More or less. We have been trying to provide solutions to DFO around other species we could be able to do that with, but falling on deaf ears.
Senator Duffy: Is this person out there fishing — are we in danger of fishing out the herring because of this activity?
Mr. Helin: You talk about traditional knowledge and science-based information, and the lady asked the question before, and we’ve got a really good fisheries technical team. Most of them are members. Where we don’t have the expertise, we hire it. I’ll use the abalone fishery as an example. Abalone is a mollusk that sticks to rock and it feeds on kelp. Our people lived on that, like salmon, for thousands of years. In the early 1980s, non-native fishermen petitioned DFO to give them permits to fish them commercially. They dove on them. We only fished them at low tide and they were around forever. Once you put a dive fishery on those species, they just about wiped it out.
Senator Duffy: Like a vacuum cleaner. Do you have geoducks around your place?
Mr. Helin: Yes. Right on our front door.
Senator Duffy: Over on Vancouver Island, they have people in dive suits walking on the ocean floor just scooping them up.
Mr. Helin: We have them right on our front door, but we don’t have the commercial licence to fish them. We do, in our brief, talk about geoduck farming. There are solutions out there that we want to look at.
Senator Duffy: Do you think the geoducks are in danger?
Mr. Helin: No, I don’t.
Senator Duffy: It’s valuable.
Mr. Helin: Very valuable.
Senator Duffy: Finally, we’re hearing so much about reconciliation, and those of us who are not of native heritage are learning so much more about what life is like and what it all means for your people. Have the people on the front line from DFO and other government departments taken on the message that we’re in a new era, or are we seeing institutional resistance? People at the top say, “We have to do things differently,” but if the people down the food chain, down the ladder, don’t get the message, then it is kind of a waste of time.
Mr. Helin: That’s why I like coming to Ottawa, and they still don’t get the message. The thing with the regional office and the local office, Prince Rupert, that fellow is retiring at the end of May. To him, I don’t think it really matters what happens because he’s there for another month or so and he’s gone. So those issues that we talk about that are important to us we see falling on deaf ears.
Senator Duffy: Do we have enough Aboriginal people in DFO?
Mr. Helin: Not that I know of.
Senator Duffy: So there is more to do, lots more to do.
Ms. Westaway: Senator, there are people who have worked hard on this bill and consulted with us and are trying to make a better way. They established this advisory panel. That’s why we say it can’t be up to government to do this anymore. Your people are retiring. They are going to move around. Somebody gets knowledge and they are gone the next day. It has to be the regional leadership of the Dene and the Lax Kw’alaams that are leading the monitoring and the co-development of how the fishery is managed. We cannot have an advisory panel under this act with five people on it from five fisheries. He has to be on that panel for the local expertise. I think we can’t look to the department to do this. It has to be done by the regional leadership who have that knowledge.
Senator Duffy: Break down the walls, us and them. We are all in this together.
Mr. Yakeleya: Thank you very much, senator, and very good points that you brought up. From my experience with the Department of Fisheries and Oceans when we had our discussions several months ago with their department, their regional office has been very open to asking for Indigenous qualified, certified staff people to apply for positions within the set-up of the office in Yellowknife. He certainly reached out after I made a press release and set up that Dene Nation was not being considered, and they certainly corrected that part of their reconciliation.
You made a really good point. The people in the front office see this. However, it’s the bureaucracy that’s a little slower catching up to the minister’s words or the committee’s words. What I know that works is when there is legislation, either “may” or “shall,” the bureaucracy has to follow it. That’s the only reason that I see that works.
We could have good discussions, but if nothing is legislated, it would only be a good discussion. So we need legislation that’s strong and that supports the reconciliation, the Indigenous people, the treaty rights to fishing, the harvesting and the commercial rights. Now, as Minister Bennett made a comment at a chief’s assembly, it’s time to put the colonial boat on the shore and let it sit there and let’s put a new boat, our Indigenous boats, to fishing, and let’s support that. Certainly, for you as senators and Parliament and the government, there is some work to do. I know from experience that the only way we can see some movement is if it’s legislated, and then it gets people to move. Otherwise, we just have good discussions, but we are beyond good discussions, Senator Duffy, and we would like to see this bill, delivered with your colleagues, to see the light of day before the writ is dropped.
Good to see you, senator.
Senator Duffy: You too. Thank you for your wise words.
Senator Munson: I would like to follow up on Senator Duffy’s question. Mayor, you talked about empty words and reconciliation, and the chief of the Dene talked about this issue as well. Do you think a mechanism can be put in place, or can this committee recommend a mechanism if this bill is not strong enough? I sometimes feel I’m living in one country and two systems, like China and Hong Kong. Senator Christmas talked about a thriving fish industry off the coast of Cape Breton, and took court cases to get there, and you talk about starving people on the West Coast. This is the same country. So as a committee, is there anywhere within our work or the work within Bill C-68 that can be done to put in place to get away from these empty words.
The words of the minister here on April 2 was that Bill C-68 would ensure strong Indigenous participation. When you talk about advocacy, it begins with the people on the ground. When you have boards, it doesn’t mean anything if you have two of you and eight bureaucrats from Ottawa and five locally. To me, the majority has to be on the ground, the way advocacy works these days on many issues. I’d just like to throw that out for a brief discussion.
Mr. Helin: I would like to respond by saying that with anybody I meet with, whether it’s business, politics or whatever, get to know me, I get to know you, build that trust and that respect. Understand who we are and understand who you are, and make those commitments that are real, that are not just good meetings, like the chief says. It takes both sides, three sides, whatever it takes to make something work. And I will go back to whether it’s the policy or law, they are just words. How do you put them into action that improve the livelihood? You talk about the East Coast and the West Coast, and for me, it’s night and day because I see what happens on both coasts. When the Fisheries Minister makes a decision to buy some quota from a big operation in Newfoundland and wants to give it to First Nations out there, it speaks volumes to me on the West Coast. It’s not happening on the West Coast. How do we improve things? That’s what we want to see.
The Chair: Chief, would you like to make a comment on that?
Mr. Yakeleya: Thank you, senator, and certainly I want to support Mr. Helin, and I think that’s a very key component to the legislation. You’re the smarts around the table here as to how do we put this reconciliation clause in the bill to start seeking the specialists’ advice from our First Nation as to what works. We know there could be some framing of the work that would ensure that our knowledge is taken seriously and that it means a lot. I would say if we had a wish list, it’s to bring some good people together and work out a mechanism, with the honourable senators, to make this bill go through. That key can open policy, but our first from the Dene is our treaty rights, the right to hunt, fish and trap, and that is the treaty right that we would come under and support this type of discussion.
I really like what you said. That’s really good news for us. I’m not too sure the logistics of this bill, where it will go, but if there is any way to get some leaders together. We have the young lady Cynthia who can be part of this working mechanism, and I would certainly support that. Thank you for that question.
The Chair: Thank you, chief, and I want to thank our other witnesses. Being from Newfoundland and Labrador, I may be biased but I think we have the best fish. I want to thank you for your time here this evening, adding to our discussion on Bill C-68. Some great advice and suggestions have come forward, and certainly much opportunity for us to think about what you have said to add to our deliberations. I want to thank you for your time, to our witnesses and to the chief. Sorry about the technology mix up in the beginning, but it’s way beyond my pay scale.
Welcome everyone to our last panel for this evening. We’re running a little bit behind time but we should be okay. I will ask if the witnesses to introduce themselves first before we begin our testimony.
Susanna Fuller, Senior Projects Manager, Oceans North: Susanna Fuller, Oceans North.
Rupert Kindersley, Executive Director, Georgian Bay Association: Rupert Kindersley, Georgian Bay Association.
David Browne, Director of Conservation Science, Canadian Wildlife Federation: David Browne, Canadian Wildlife Federation.
Rick Bates, Chief Executive Officer, Canadian Wildlife Federation: Rick Bates, Canadian Wildlife Federation.
The Chair: We understand you had some opening remarks, starting with Ms. Fuller.
Ms. Fuller: Thank you very much. I thought I was going to go last so I had a lullaby or bedtime story prepared, but now that I’m going first I will give my statement.
Thank you for inviting me here today. Having Bill C-68 this close to becoming law is a very exciting moment for me. I’ve seen efforts to update and modernize it, though not as comprehensive as this current effort, die on the Order Paper twice before. The Fisheries Act is extremely important to Canadians. The act has not had such a comprehensive updating since it first came into force in 1868. Canadians care about fish and fish habitat, which are both incredibly important to biodiversity and aquatic ecosystems. Together, commercial and recreational fisheries contribute over $12 billion to Canadian economy per year as of 2017.
Bill C-68 is not the complete legal overhaul that has been requested to fully support reconciliation and incorporation, as we heard from the last panel. The current proposed amendments go a long way to meet the recommendations of Indigenous and First Nations communities who presented and made submissions to the House of Commons fisheries committee and significantly improve on the current Fisheries Act. Implementation is another matter. There have been broad consultations and agreement on the general direction of this bill. You have an important and historical job ahead of you in passing Bill C-68.
My perspectives and my points come from four experiences. First is my upbringing in Atlantic Canada and understanding the importance of the fishing industry and the people who fish in coastal communities. Second is my engagement over six years of the National Fish Habitat Coordinating Committee. Third is my involvement, largely through commercial fisheries advisory committees, to attempt to implement aspects of DFO’s sustainable fisheries framework in hopes of achieving sustainable fisheries with low impacts on the marine ecosystem. Fourth is acting as a representative on the Species at Risk Advisory Committee, which led to an assessment in 2015 of how marine fish not listed under the Species at Risk Act were or were not protected and managed under the Fisheries Act.
The results of this assessment were that while DFO has the tools to recover depleted fish populations, it has not been legally compelled to use these tools until Bill C-68. Without a legal requirement, it doesn’t seem to get done. Perhaps the most egregious example of this is that 28 years out of the catastrophic collapse of the northern cod, which put approximately 35,000 fishermen, fish plant workers and others out of work, there is still no rebuilding plan for this population. Listing under the Species at Risk Act would legally require a recovery plan and prohibit harm to the species. It would also shut down numerous Atlantic Canadian fisheries. Bill C-68 serves as an important triage for depleted species.
These perspectives provide the basis for my comments in support of Bill C-68. You have heard support from my colleagues who presented already to you for the provisions in the bill that consider socio-economics, and in particular the support of the owner-operator provisions of current policies in place in Atlantic Canada. We need a diversified fishing industry that includes the small businesses run by individual fishermen and their families who make up so much of the fabric of our coastal and rural communities.
On the habitat protection provisions, we could all agree that one of the most important elements of fish habitat is water. The proposed habitat definition in Bill C-68 includes water flows — we heard in the last panel the importance of those flows — and thus enables much needed collaboration on the ground between proponents and groups working to improve habitat for species such as wild salmon and American eels, and allows for a significant opportunity for environmental and conservation organizations to work with industry associations on regulations and codes of practice related to flows.
On the third point, while DFO has laudable policies for the application of the precautionary approach, reducing bycatch, rebuilding fish stocks and protecting sensitive areas, these policies need to be upheld and supported by law. Many of the elements required in Bill C-68 for consideration by the minister will help to ensure that decision-making supports the implementation of these policies.
Finally, and as previously mentioned, for the first time, Bill C-68 ensures that rebuilding plans for depleted fish populations are required, finally bringing Canada in line with other developed fishing nations. In Atlantic Canada alone, there are 40 fish stocks considered endangered or threatened by the committee on the Status of Endangered Wildlife in Canada. Many of these are formerly valuable commercial fish species, and some continue to be commercially fished. To date, there is one rebuilding plan available to the public.
In closing, DFO used to have a tag line that says, “No habitat, no fish.” This bill allows a new formulation of that tag line. The new tag line might read, “No habitat, no fish; no fish, no fishermen; no fishermen, no rural tax base.”
As noted, I support the bill as it is written. It’s not perfect, but we don’t want the perfect to get in the way of the done. My suggestions for improvements would be to ensure the goal in the rebuilding section is to rebuild stocks to healthy levels in section 6 and to add a requirement for an annual report to Canadians on the state of fish stocks with additional wording in 42.1. Here’s an example of a report to U.S. Congress by NOAA, that’s easy to read and nice big pictures. DFO does provide this information, but in very big Excel spreadsheets that aren’t accessible to most people.
Finally, the proposed five-year review is incredibly important, as it will ensure that we do not have decades, or in some cases centuries, that go by where the Fisheries Act is not improved. This will be critical as the implementation of the act is assessed in terms of how its provisions respond to the ever-increasing impacts of climate change on our aquatic ecosystem.
With that, I’ll close. Thank you.
Mr. Kindersley: First of all, I agree with everything Susanna just said. Thank you very much for having me here today.
For over 100 years, the Georgian Bay Association, GBA, has advocated on behalf of the eastern and northern shores of Georgian Bay and the North Channel of Lake Huron. We now represent around 3,000 families and reach at least 18,000 individuals.
GBA supports a strong, vibrant and sustainable aquaculture industry in Canada. Our evidence provided will prove to the committee that the open net pen freshwater aquaculture operations in Georgian Bay and the North Channel of Lake Huron, which I will refer to as open net fish farms, are not sustainable and should not be permitted, particularly in the context of the Canada-U.S. Great Lakes water quality agreement.
Bill C-68 is a major positive step forward to reinstating the protections contained in the 2007 Fisheries Act for wild fisheries, the aquatic environment and fish habitat throughout Canada. Therefore, GBA is fully supportive of the contents and the intent of the bill.
The primary purpose of our submission is to clearly demonstrate to the committee how the open net fish farms damage the aquatic environment.
GBA maintains that the open net fish farms pollute and degrade the quality of the waters and sediment by depositing fish feces, excess feed, pharmaceuticals and chemicals used to clean the nets into the water and under the cages. This accumulates over time and turns the naturally high oxygen, low nutrient, oligotrophic water eutrophic and, consequently, uninhabitable for wild fish. These operations must therefore be moved on to land, into sustainable, closed containment systems, to protect the native fish and their habitat in the ecologically significant areas of Georgian Bay and the North Channel.
Accordingly, it is evident that open net fish farms are not being properly managed and controlled. We would therefore ask the committee to recommend that the Department of Fisheries and Oceans and Environment Canada take back their lead management role of these operations, which they used to have.
Examples of harm caused by open net fish farms: To date, two open net fish farms at La Cloche Channel and Grassy Narrows, near Manitoulin Island, have been closed but continue to cause damage to the aquatic ecosystem. This satellite image was provided by the then environmental commissioner of Ontario and shows La Cloche Channel 10 years after the open net fish farm cages were removed. The methane created by the fish manure in the sediment below the cage sites is still sufficient to melt the ice above where the cages used to be and visible from space. It’s a satellite image.
A third open net fish farm at Lake Wolsey, an embayment of the North Channel, operated by Mike Meeker, who has appeared before this committee in the past, has been creating annual toxic blue-green algae bloom since 2015 and should also be closed down. We understand that this farm attempted to sell contaminated fish grown at this facility, but they had to be disposed of following positive testing for toxins, a risk to public health and safety. That’s the picture there. The rest of the aquaculture industry would like to see this facility closed down too, as it is giving them a bad name, and the potential health and safety issues are a threat to their reputation. This picture was taken by K. Hille in September 2006 and shows the aquaculture cage and the phytoplankton bloom in Lake Wolsey.
Other negative environmental impacts of open net fish farms include the release of high quantities of antibiotics and other chemo-therapeutants; assisting the growth of invasive species such as zebra and quagga mussels, which are a major threat to wild fish stocks and their habitat in the Great Lakes; and numerous and ongoing fish escapes from torn nets caused by vandalism; shifting ice conditions and violent storms, whose frequency and ferocity now increase annually due to climate change impacts. These cultured fish, genetically selected to be voracious eaters, then compete with native fish for food and habitat.
The State of Michigan concluded that open net fish farms pose too great a risk to water quality and made no financial sense to the government. As a result, no U.S. Great Lakes states allow open net fish farms.
We applaud the return of the precautionary principle within Bill C-68, but it must be applied. Why take the risk of polluting the water when fully sustainable land-based alternatives for growing trout are available to this industry?
We recommend including two additional provisions in the bill:
Restore the environment assessment triggers to those previously contained in section 36 of the act prior to 2012 and include non-point source phosphorous loads as a HADD in section 35.
Add a clause concerning Great Lakes protection to ensure continued remediation and reductions in phosphorous loading. This second clause should therefore specify compliance with the Canada-U.S. Great Lakes Water Quality Agreement, Ontario’s Great Lakes Strategy, the Great Lakes Protection Act, the Canada-Ontario Great Lakes agreement and the Lake Huron Lakewide Action and Management Plan.
In closing, we hope that the evidence we have provided will lead you to consider our concerns, recommending and supporting the action suggested once Bill C-68 is enacted, and incorporating the two amendments to the act outlined above. Thank you.
Mr. Bates: Good evening, senators, staff and guests. Our organization, the Canadian Wildlife Federation, is known and respected for providing a balanced voice on environment and wildlife conservation issues.
Minister Wilkinson indicated that the government is open to amendments, particularly where they provide improved certainty for proponents and better protection for fish habitat. We are recommending three closely related amendments that build on existing provisions in the bill. They strengthen certainty for industry and improve fish habitat across Canada. Our amendments focus specifically on the mechanisms within the Fisheries Act for offsetting harm to fish habitat. These three amendments are:
First, we propose expanding the ability to create habitat banks to more than just project proponents. In other words, allow any organization to create a habitat bank and then sell the credits to the project proponent.
Second, complement this by allowing the payment of a fee in lieu of doing an offset for certain projects and dedicate all revenues collected to aquatic habitat restoration. The Environmental Damages Fund already exists and could be used for this purpose.
Third, clarify in law that fish habitat destruction authorized under the Fisheries Act can be offset by the proponent creating the offset themselves, buying the offset from a habitat bank, making a payment in lieu, or a combination of these three.
I want to clarify that Bill C-68 includes new provisions for habitat banking. However, as currently written, the bill limits the opportunity to create a habitat bank exclusively to project proponents. In other words, if you plan to build a road over a series of rivers, only you as the developer can create new habitat as a bank to offset the habitat you may destroy in the future. DFO will then award you credits for that restored habitat, which you hold in your bank until you can use those credits to offset any damage from the roads you build.
The main problems with this are that it requires the developer to invest a lot of money up front to create the bank of habitat credits. These developers are not in the business of habitat banking, so they are unlikely to want to tie up capital in habitat restoration. This means that the actual creation of habitat banks will be very limited. Offsets must last a very long time, essentially in perpetuity. This means that the developer will need to monitor and maintain that offset over its lifespan, which diverts their focus from their core business.
These ideas are not new. Habitat banking has existed in the U.S.A. since the 1980s, in Germany since 2002 and in Australia since 2008. Our proposed changes will have many positive impacts, including:
For proponents, they increase certainty for projects, as developers could purchase an offset credit that has already been approved by DFO or pay a fee. This eliminates questions of whether their offset will meet DFO’s requirements. Plus, they gain the certainty of knowing their costs up front. This will also get faster project approval because developers won’t need to spend time and money to design, develop and wait for approval from DFO. They simply buy an offset.
For local economies, establishment of a new sector, habitat banking companies. These could be operated by private companies, Indigenous people or non-government organizations. It will also help limit the growing bill that taxpayers will eventually have to pay to restore aquatic habitat.
For our lakes, rivers and coasts, habitat banking can pool offsets from multiple projects to allow for larger-scale habitat restoration and greater gains for fish production. Fees paid in lieu of doing an offset would be earmarked specifically for habitat restoration.
We see the many benefits of these amendments as easy to capture, as we believe the administrative impact on DFO is very manageable. The concept of habitat banking is already in the bill, so implementing third party habitat banking would be incremental to work DFO already needs to carry out. DFO already has to monitor offsets created under the act and to enforce authorization conditions. It may actually take fewer DFO staff to monitor a few larger habitat banking projects than to monitor many individual offsets.
The initial draft of our proposed amendments is attached to the briefing notes you have.
In closing, I’d like to thank you for your work here today and for your work on this important bill. We look forward to your questions.
The Chair: Thank you to our witnesses.
Senator Poirier: I have a couple of questions. My first one is for Ms. Fuller. In your speaking notes, one of your suggested improvements is to ensure the goal is to rebuild stocks to healthy levels. Could you elaborate a little bit on this suggestion for us?
Ms. Fuller: Sure. In the Department of Fisheries and Oceans Sustainable Fisheries Framework, there is guidance on rebuilding that includes a precautionary approach framework. That precautionary approach framework has stocks in three zones. One is critical, not good, red; cautious is yellow; and green is healthy.
Our concern in proposed section 6 right now is that it’s to rebuild at just above the critical zone, which is just above, which means that we don’t know a stock could actually continue to rebuild unless the goal is actually to get it healthy. For example, cod fisheries were open in 1998 to Newfoundland, and fishing increased fairly quickly. There were fairly high fishing levels when it started to rebound after the initial collapse, and it went back down quickly, so we’d like to make sure there’s a longer-term view to rebuilding those stocks. And I am mindful that not all stocks can be rebuilt at the same time and together, but that we should aim for healthy.
Senator Poirier: Great. Thanks.
The next question is open to anyone who feels they would like to answer. The minister appeared before the committee on April 2, as well as the Canadian Coast Guard, and they explained that there was $107.4 million over five years that had been announced in the Fall Economic Statement and that a further $17.6 million per year was also announced on an ongoing basis. These funds were committed to help implement the Fisheries Act. In your view, are the proposed funds sufficient to implement the Fisheries Act as far as you’re concerned?
Mr. Bates: It’s a lot of money. Historically, as an addition to the department, some of that money is directed to important projects. The proposals we’re recommending won’t cost much money at all so would have a negligible impact on any of that. It’s hard to say, without knowing their budget intimately, whether that would be enough, but I think as a starting spot that’s pretty good.
Mr. Kindersley: The only comment I would have is that some of those funds go towards the Great Lakes. It’s not all spent on the West Coast and the East Coast where a bulk of DFO work exists. There needs to be some attention on what’s happening in the Great Lakes to preserve and protect them.
Ms. Fuller: It’s a significant investment. We’ve seen reinvestment in DFO science and management, and there’s a lot of work to be done in rebuilding plans. I will say, however, that some of the hard work doesn’t cost money; it’s decision-making that is hard. That money needs to be matched with difficult decisions.
Senator Poirier: Thank you.
Senator Griffin: My question is for Mr. Bates. Third party involvement is already in place in a number of provinces — and I’m sure you’re aware of that — so there would be no net loss of fisheries habitat in freshwater fisheries. For instance, that came into place in Prince Edward Island when I was a deputy minister there, and the very enlightened policy was brought into place to have no net loss of wetland habitat, and that where it couldn’t be avoided altogether and had to be impacted, the proponent could pay a sum in lieu. However, the Prince Edward Island government frequently contracts with Ducks Unlimited to do the actual work, since they are the experts and the proponent is not. Are you aware of that elsewhere in Canada?
Mr. Bates: Offsetting for wetland habitat, I believe, exists in a couple of other places on the Prairies. I don’t know of other places.
Mr. Browne: There’s certainly different types of habitat banking for different types of habitats that people have piloted in the provinces, and DFO itself has a short list of maybe 10 things that you could call habitat banks that it has created over the years. It is something that’s been happening in Canada to a limited extent. Obviously, we think it’s good for the environment and for wildlife and for our fish so we’re here proposing that the bill allow for more of that to happen.
Senator Griffin: Thank you.
Senator Munson: Thank you very much for being here. It has been a long day of testimony.
I will get into an Indigenous question in a moment. There’s a specific one that we have in our brief, which is the chemical corporation in our brief provided to this committee explains that including “water flow” into the definition of fish habitat potentially represents the most significant expansion of the definition of fish habitat in the history of the act. That brief also states: “The proposed amendment will not have a corresponding environmental benefit or increase the protection of fish and habitat beyond simply serving as an overall deterrent to development.” Do you agree with this statement?
Ms. Fuller: I know there has been some concern about some industry associations and interests on the flow provision because it is new. I will also say that we all can agree that regulating water flows and being able to have some control of that is extremely important in order to achieve other aspects of the act. I think there has been quite a bit of genuine outreach between environmental organizations and industry associations to try and work out some of the concerns in the regulations and the codes of practice. However, water flowing over fish is probably the most vital piece of habitat that fish need, so having the department have at least the jurisdiction and have that in the definition is quite important. There is a report from I can’t recall which year, but DFO’s own scientists recommend that flow is quite important to the health of fish at various life history stages. It doesn’t mean every puddle.
Senator Munson: I wanted to get a better understanding.
To you folks at Canadian Wildlife Federation, you talked about a recommendation to expand the proposed habitat banking system to enable third parties to participate. Who are the third parties? How does that work?
Mr. Bates: It could be a private company, it could be an Indigenous peoples organization or it could be a conservation organization as well.
Senator Munson: You heard the Indigenous testimony just before you folks. What did you think of that when you see the discrepancies on both sides of the country? There seems to be a sense of satisfaction after Senator Christmas talked about serious court cases and determination to build a fishing industry. I can’t believe I heard the words “starving people,” but there are people who do not have proper nutrition and others along the West Coast who are not getting their fair share of what is still wealthy in the sea. What did you make of that when you heard that kind of testimony? Everybody wants this act, it seems to me. Maybe there are a few who don’t. It is progress. But it seems to me, when it comes to 2019, that we have failed. We have failed the West Coast Indigenous people and in the North.
Mr. Kindersley: My impression was that it was not so much the act, or the previous act even, but the implementation and some local issues that were the heart of the problem that was discussed earlier.
This act is excellent in the way it details involvement with the First Nations. That’s certainly the direction we have taken as an organization, and it’s very rewarding.
Ms. Fuller: I would say we have failed our Indigenous people across this country in numerous ways, and access to fish and food, social and ceremonial fisheries, is incredibly important. The court case decisions both on the West Coast and East Coast have started to deal with some of the access issues. We’re a long way from getting to the right place on that. The key is trust — we heard that earlier — and relationships, and doing that at a local level or a fisheries-based level. My hope is that this act will start to enable the department to do that and enable Indigenous communities to have some power in that. We have a long road to a reconciliation, and this bill provides for some of that and puts things in law that are really mostly court case decisions at this point.
Senator Munson: Thank you very much.
Senator Petitclerc: Thank you all for your presentations. I have a question that is a little broad but just to help me and hopefully others with some perspective.
Mr. Bates, when you talked about the third party fish habitat banking and offset payments, you mentioned international examples, like Australia and Germany. I want to hear more about what it is that they do. Is it similar to what you are proposing for an amendment and could be implemented in this bill? Is it successful? Is it working well? Maybe a bit more information on that.
Maybe more as a general question, Ms. Fuller, you did mention that it is about time that we improved the Fisheries Act. I wanted to have some perspective on where we sit on the international level. Is this act bringing us to being leaders or not? Just give me a bit of perspective.
Mr. Bates: I just looked at a list a few days ago, and there are some 158 countries with offsetting provisions in their acts. There are far fewer that have habitat banking provisions. Of those offsetting provisions, some are active, where they have regulations and programs and supports, and some are not. Some are successful, and some are not. Typically the ones that have been around longer are more successful because they’re active. People are working at them and constantly refining them. The examples we used in my statement were ones with actual habitat banks and ones with a bit of history and countries that were a little bit comparable, the United States, Germany, others, where they have very successful programs.
The implications of not doing things like this are that the taxpayer gets stuck with a bill eventually, having to pay for these things, pay for restoration. An extreme example of that is Anhui province in China where my daughter is from. A couple of years ago, they invested $100 billion over eight months in one river to help begin to restore it. Those are the kinds of consequences at the extreme end when these things are not dealt with up front proactively.
Ms. Fuller: Briefly on bringing Canada closer to having good fisheries laws and the rebuilding provisions, other countries that are developed fishing nations that we talked to in international fishing negotiations, so U.S., Norway, New Zealand, Australia, all have rebuilding provisions. It’s a good check for Canada.
I would also say the factors that need to be considered — science-based decision-making, ecosystem approach, precautionary approach, Indigenous knowledge, local knowledge, socio-economics — those are all pieces of good fisheries management that Canada signed on to in UN agreements or FAO guidelines. Having those in our act brings us again closer. Yes, I would say that absolutely brings us closer to having a good Fisheries Act we can be proud of. The proof is always in the pudding, in the implementation, but this is a good start.
Senator Christmas: I have a question for each of you. I’ll start with Ms. Fuller.
I was quite intrigued by that report that you showed earlier, the fish stock report, and it didn’t strike me until you mentioned it. There was nothing in Bill C-68 that requires a report or any report on fish stocks. Is that correct?
Ms. Fuller: Proposed section 42.1 does require a report on habitat and implementation of the act to Parliament, but it is not very specific to section 6, so which stocks are in which condition and which are being rebuilt.
I actually have a copy of Oceana’s report. Right now, the best accounting of where we are in Canada is done by an NGO for a public resource. I would say DFO does now make the information publicly available. I think a bit of funding for a good graphic designer could get us a report quite similar to this. The information is there. It just hasn’t been done before and it is not actually required.
I do think, given the importance of fish and fish habitat to Canadians and for Canadians and the public knowing where we are once we have implemented this act, how do we tell in twenty years if we have been successful? Do we no longer have 40 stocks that are endangered and threatened in Canada and only have 20? How is that being reported to Canadians and Parliament over time? I think it would be a small but important amendment that DFO is already sort of doing but gives some clarity to it and some transparency and accountability to the public.
Senator Christmas: I know other pieces of federal legislation require some degree of annual reports for different areas of federal responsibility. It strikes me that having an annual report on the state of fish stocks makes sense to me.
Ms. Fuller: Right now, some of the data is included in the sustainable development report, but it is kind of strange because then it is Environment and Climate Change Canada reporting on fish and not DFO actually including that. Most coastal communities and fishermen won’t look at that sustainable development report to see how things are going. They want to see what DFO is doing.
Senator Christmas: Could I ask for your assistance in trying to come up with something that makes it clear and easy and accountable to Canadians on how are our fish stocks? For me, one of the most exciting parts of Bill C-68 is the rebuilding of depleted fish stocks. I really would like to see that.
Ms. Fuller: I’m happy to help.
Senator Christmas: Mr. Kindersley, I appreciated your commentary on open net fish pens. One of the criticisms I’ve heard over the years about open net fish pens, not so much about them, but the alternative of doing closed system systems was that it was the cost. The capital cost of doing a closed net aquacultural system is considerably higher than an open net system. Is that your view as well, or do you share a different idea on that?
Mr. Kindersley: Yes, that is largely correct. This is an industry that has matured because a lot of these new technologies have now been proven out financially, and that was the key element that was missing perhaps in the past 20 years or so. Once they can be shown to be operated profitably, they should attract the capital needed to expand that part of the industry. I believe that is where the growth comes from.
There are other problems with open net fish farms, such as they are usually a long distance from their markets and you have to truck them to market and then you’re burning fossil fuels to do that. That’s not a good thing if we can avoid it. The big advantage of land-based facilities is you can locate them near your market and you don’t have those big transports costs.
Also, in some of the aquaponics developments where they are growing vegetables or marijuana together with the fish, you’re making use of the phosphorous that’s coming from the fish feces. You’re recycling on the spot into growing things that humans can eat. That really is the direction this industry is going. Those are more profitable because they have two or more sources of revenue.
The big problem with the open net fish farms in Georgian Bay on the North Channel is they are very small operations. They do not have access to capital of any size. They are mainly family-owned businesses, and they are using basically antiquated technology that is not sustainable. We need more money to come into this industry. We need other people to get involved with better technology, better engineers and better scientists. This is a huge growth opportunity. It’s terribly important that we have a good aquaculture industry. We must stop fishing for wild fish commercially as much as possible. I know a lot of lives depend on that in various areas, but really that is not sustainable on a global basis. We are going to run out of fish.
Senator Christmas: Do we have any examples here of the Canadian aquaculture industry embracing the land-based systems?
Mr. Kindersley: Oh, yes, it’s happening. Sorry, there are quite a lot of examples and a lot of new technologies that have emerged recently. To try to get into it now I think would take too long. The ones that I think are the best are the aquaponics, where they are growing plants on the spot. Otherwise, they have to dispose of the polluted water from these fish operations, and that seems to be crazy when you can expand the facility to grow something.
Senator Christmas: Mr. Browne, I cut you off. You wanted to answer a question that I asked Ms. Fuller.
Mr. Browne: I just wanted to mention that it doesn’t require a report on the status of fish habitat either. In 2009, the Auditor General pointed out in their review of the fish habitat provisions that DFO didn’t actually know what the state of fish habitat was in Canada and therefore could not manage it or report on whether they had benefited or caused a decline in fish habitat over time. That is not in the act.
Senator Christmas: Mr. Bates, the whole concept of third-party habitat banking is obviously very intriguing. I’ve taken the liberty to bounce that idea off other people to see what they thought. One of the comments I received back puzzled me, and perhaps it was a bogus comment. One of the comments I received was that third-party habitat banking would more easily fall within provincial jurisdictions rather than federal jurisdictions because most land is provincially owned. How would you respond to that?
Mr. Bates: For fish habitat, it is DFO’s jurisdiction. To implement habitat banking for aquatic areas, DFO would have to be involved. For terrestrial areas, that maybe makes sense for provinces.
Senator Christmas: So even though the land is owned by the province — I understand fish habitat responsibility is a federal responsibility. But when it comes to land ownership, would that create a grey area between federal-provincial jurisdictions?
Mr. Browne: DFO has already implemented habitat banks on provincial lands. It didn’t when they did it back then. Perhaps it could somehow. Certainly the province has ownership of the jurisdiction over sort of the bottom of lakes and rivers, but the federal government has jurisdiction over fish habitat. I think it’s pretty clear.
Mr. Kindersley: I can only speak to wetlands in the Great Lakes, and particularly Georgian Bay, which has the most important wetlands in the Great Lakes by a long margin. First of all, if you are doing any offsetting, you have to be very careful, particularly with wetlands, because the quality of the wetland varies enormously. If you are creating a new wetland, which is actually feasible, the quality will be pretty low compared to an established one. I can’t speak to other kinds of fish banks, but I imagine that could be the case with them as well. Be cautious with this type of policy, is what I would urge.
In terms of ownership for the wetlands in the Georgian Bay water basin, for instance, some of it is federally owned because they own the ground underneath the water. But when you move inland — and a lot of those wetlands are very important — the ownership is all over the shop. You have conservation authorities and you have Crown land that is administered by the Ontario government, et cetera. So it’s a mixed bag.
Senator Busson: Just as a bit of follow-up, I’m curious about the habitat banks. It’s kind of an interesting topic. In the jurisdictions that do that — and you say we do it a little bit in Canada now — is there a big infrastructure of administration to make sure the bank is actually equalized, that the habitat taken and the habitat in balance on the other side of the equation is even or fair? Who would be the person or group that would ensure you’re getting the right remediation for the right sort of destruction, if I can use that word, in a habitat bank situation or when a company perhaps even buys an interest?
Mr. Browne: Any environmental consultant or habitat banking group, say in the United States or Australia, would tell you that the only way this works is if you have a strong regulator. If you have no one regulating the habitat and they don’t have a framework for how to regulate it, you cannot have habitat banking. You’re exactly right. You need a regulator that’s behind doing this and puts the framework in place to get it right. But is that a massive bureaucracy of people to check every credit? It hasn’t been in some countries. It takes people to decide on equivalency of credits, but you can build on work that has been done in other countries.
I would add that a bit of the legacy of Canada’s particular way of protecting fish habitat is that we have some of the best fish habitat scientists in the entire world. We publish the main journal in the world on this kind of thing, and we have a history of figuring out how to do this. I think Canada is very much up to the task. Everyone looks to us for this kind of information.
It needs to be resourced to create a system and framework for creating the banking provisions, but if you’re thinking of new inspectors and hundreds of people and staff on the ground, that’s not the way it has been run in other countries. It’s really the regulator putting the framework in place; and then private sector, NGOs or other individuals, the actors, fitting into the framework and getting the work done, if that makes sense.
Senator Busson: It does, yes. Thank you.
Senator Duffy: Thanks to our witnesses. This is fascinating information and it’s very helpful to us.
Ms. Fuller, I have a question for you. I was looking at your brief, and you talk about species at risk. We have a proposal in Atlantic Canada, on the Northumberland Strait — and you’re a Maritimer — by Northern Pulp to change the way they operate and, in fact, run a pipe into the Northumberland Strait, in a rich fishing area, through which they propose to pump something like 80,000 litres a day of what is so far still undesignated effluent; in other words, they can’t tell us what’s in it.
Here is my question: The Minister of Fisheries was here, and we raised this question out of concern — which is widely felt through the three Maritime provinces, by people in the fishing industry — that the damage that this pipe might do to the fish stocks, and to the lobster in particular, would be horrendous. The answer back from DFO seems to be, when you pull away the verbiage, that they can’t jump into this until after there is damage and that right now it’s in the hands of Environment and Climate Change, who will look at this and consider it. Now, there is no federal environmental assessment because the province still has it. We are hoping there will be a federal environmental assessment. But even if Environment and Climate Change got in, DFO would take a back seat because they only get involved after the damage has been done.
It seems to me that is retrograde or backwards thinking. While we want to get this bill through because the industry needs revitalization after 100 years, and all of the frustrations you have had in the past, it seems to me that if we don’t find some way to address this, we are not finishing the job we should be doing. Does anybody have any comment on that?
Ms. Fuller: I’m familiar with the Northern Pulp pipe. There are a few things. Number one, within Bill C-68 there are provisions for ecologically sensitive areas. You may recall there is a scallop ground buffer zone that is in the area where Northern Pulp would like to extend its pipe. Those areas are being counted toward Canada’s 10 per cent protection. Right now, they only regulate fishing activity. Fishermen have put them forward. There is no scallop fishing, protects lobster, a bunch of other species at risk, listed and non-listed.
There are a few things. If those areas are designated as ecologically sensitive areas, then the minister could make a decision that a new activity going through that may be a harmful alteration or destruction of fish habitat would not be permitted.
Senator Duffy: The Minister of Fisheries or the Minister of the Environment?
Ms. Fuller: The Minister of Fisheries could do that under Bill C-68, as I understand it. It has not yet been applied because Bill C-68 has to go through. This issue seems to be punted back and forth. Nobody wants to deal with it. It is a hot potato.
The Minister of Fisheries could also say that they think this activity alters fish habitat. That could happen, but until there is a federal EA — but in CEAA 2012, they removed the Fisheries Act triggers, so it makes it more difficult. But Environment and Climate Change Canada could say that under section 36, the effluent is a deleterious substance and not authorize it. There are a few ways of getting to it. There are also ways of centrifuging out all the flocculent matter and reducing the temperature of the water. There are other things the private sector could do.
The amount of flocculent will go into the Northumberland Strait, given the other issues going on, including it being one of the fastest-warming bodies of water in Canada, is too much. There are so many species in the southern gulf, including cod, thorny skate and American plaice that are in bad shape. We usually lose fish by death through a thousand cuts. I would say this is a potentially big one.
Senator Duffy: A big cut.
Ms. Fuller: But it’s punted right now.
Senator Duffy: Do you think there are provisions in this bill that would allow the Minister of Fisheries to act?
Ms. Fuller: I’m not a lawyer; I’m a scientist. I do feel that the ecologically sensitive area provisions could be used.
Senator Duffy: They are already being used to protect scallops?
Ms. Fuller: No. This bill would have to go through, and then you would declare the scallop ground buffer zones as ecologically sensitive areas to count toward our 10 per cent. You would have to make sure other activities are not impacting the intent of those areas, which the pipe could be seen as doing. Asking that question to the minister again would be a good idea.
The Chair: It has been a long evening, but certainly we had some great discussion and debate. I want to thank our witnesses. As I said to other witnesses, if there is something you think, after you leave today, that you may have forgot to mention when you were here, feel free to send it to our clerk as part of our deliberations as we go forward on the bill. Once again, thank you for your time this evening and for presenting your remarks, recommendations and possible amendments as we move forward.
(The committee adjourned.)