Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue No. 43 - Evidence - April 11, 2019
OTTAWA, Thursday, April 11, 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 8:03 a.m to give consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: I am Fabian Manning, a senator from Newfoundland and Labrador, and chair of the Standing Senate Committee on Fisheries and Oceans.
Before I give the floor to our witnesses, I invite members of the committee to introduce themselves.
Senator Poirier: Rose-May Poirier, New Brunswick.
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Busson: Bev Busson, British Columbia.
Senator Campbell: Larry Campbell, British Columbia.
Senator Gold: Marc Gold, Quebec.
The Chair: I believe we’ll be joined by some other senators later.
I ask our witnesses to introduce themselves, and then we’ll begin with their opening remarks.
Terry Toner, Director, Environmental Services, Nova Scotia Power, Canadian Electricity Association: I am Terry Toner, Director, Environmental Services, Nova Scotia Power, representing the Canadian Electricity Association.
Channa Perera, Vice President, Policy Development, Canadian Electricity Association: Channa Perera, Vice President, Policy Development, with the Canadian Electricity Association.
Anne-Raphaëlle Audouin, President, WaterPower Canada: Anne-Raphaëlle Audouin, President, WaterPower Canada.
Daniel Gibson, Senior Environmental Specialist - Renewal Generation, Ontario Power Generation Inc., WaterPower Canada: Good morning everyone. Dan Gibson. I work with Ontario Power Generation Inc., and I chair the fisheries working group for WaterPower Canada.
The Chair: The committee is continuing its study of Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence. We’re pleased that you have joined us here this morning. On behalf of the members, I thank you for taking the time.
I understand we have some opening remarks. We will begin with Ms. Audouin first. The floor is yours.
[Translation]
Ms. Audouin: Good morning, everyone. Thank you for inviting us today. My name is Anne-Raphaëlle Audouin, and I am the President of Waterpower Canada. With me is Daniel Gibson, from Ontario Power Generation, who chairs our organization’s fishery task force. Waterpower Canada is the national voice of the hydroelectric industry. Hydroelectricity is at the heart of electricity production in Canada. Our industry represents more than 60 per cent of all the electricity produced in the country. Because of hydroelectricity, Canada has an electricity infrastructure that is one of the cleanest, most renewable and most reliable in the world. As hydroelectricity produces almost no greenhouse gases, it will play a central role in achieving our decarbonation targets.
Studies show, in fact, that Canada must electrify its economy and further reduce the emissions from electricity production. We therefore have to double, if not triple, that production by 2050. Hence the need for a major expansion of the country’s hydroelectricity infrastructure. Our industry is ready to meet the challenge. Canada has vast hydroelectric potential that is as yet unharnessed. However, electricity producers need a reliable framework to effectively and safely develop their existing facilities.
Hydroelectricity producers must have the assurance that they will be able to put new generating facilities into operation. If Bill C-68 is passed in its current form, its impact on our industry’s ability to operate its current stations and build new ones will be catastrophic. Hence the need to improve the bill. We support the objectives of the Fisheries Act in ensuring the viability of fish resources. However, the act must remain compatible with the various management authorities. With that condition, and that condition only, will the act be able to protect the fisheries, ensure an efficient and effective approval process and contribute to reconciliation.
Today, I will present the five following recommendations to your committee.
[English]
First, we recommend the removal of the flow amendments, otherwise known as clause 2.2. We understand that flows are important aspects of aquatic ecosystems and fisheries protection. Under the current Fisheries Act, hydro-power project authorizations often include conditions on flow. Moreover, Bill C-68 contains other provisions strengthening the minister’s power regarding flows. However, clause 2.2 distorts the legal and scientific understanding of fish habitat and could profoundly change the interpretation of the act. It could force the minister to make decisions on flows in conflict with the needs of other water users and with the authority of other jurisdictions. The result could be problematic for hydro-power operations. Furthermore, where hydro-power grids combine thermal generation and hydro power, limitations on hydro power would lead to more greenhouse gas emissions.
Second, we recommendation is the minister be obliged to consult other jurisdictions with overlapping powers on flows before making orders under clause 34.3. Flow management must respond to multiple demands and not exclusively those of fish habitat protection. For example, public safety through flood prevention is fundamental. A variety of water management regimes in Canada are overseen by provincial, regional, municipal, Indigenous and international bodies. It should not be left to the minister’s discretion whether or not to consult with those authorities when considering making an order.
Third, we recommend the designated project provisions of the bill be clarified or removed to ensure that only those works, undertakings and activities that potentially have severe impact on fish populations are designated.
Fourth, we recommend that the bill allow third party banking. WaterPower Canada agrees with DFO that habitat banking and certified habitat credits benefit proponents, fish and fish habitat. The bill’s provision for proponent-led banks is too limiting. Bill C-68 should authorize third party banking to stimulate substantial capital investment in habitat maintenance, restoration and expansion.
Our industry is very concerned that the pre-2012 prohibitions against habitat alteration and fish death, as proposed in this bill, would challenge the government to make the Fisheries Act workable. If Parliament passes this bill, it is essential that ample time be given to the Department of Fisheries and Oceans, DFO, to consult with stakeholders on regulations and the policy framework in which the act will operate.
Fifth, we recommend that there should be a minimum of one year between Royal Assent and the coming into force of the provisions of the key sections of the act that apply to our industry.
In conclusion, I reiterate the remarks I made to the Senate committee dealing with Bill C-69 a few months ago. The hydro-power industry has much to contribute to Canada’s sustainable and economic development. This will only be possible, however, if we can develop good projects in a timely way and operate our existing facilities with the flexibility necessary to meet the needs of consumers. This, in turn, will only be possible if Bill C-68 is improved.
Thank you for your time and for the opportunity to present our recommendations this morning.
Ms. Perera: I am here with Terry Toner, my colleague from Nova Scotia Power. Terry chairs the CEA Environmental Stewardship Task Force, and he has over 35 years of experience in environmental science.
CEA is the national voice of electricity. Our members include generation, transmission and distribution companies, as well as technology and service providers from across the country. The sector employs approximately 81,000 Canadians and contributes $30 billion to Canada’s GDP. Over 80 per cent of our electricity generation is non-emitting, making it one of the cleanest in the world. We are uniquely positioned to help advance Canada’s clean energy future and decarbonize other sectors of the economy. We want you to ensure this bill does not stifle that opportunity.
We urge you to consider amendments to several provisions, including the revised fish habitat definition, environmental flow requirements, and the duty to notify.
Let me turn to Terry Toner, who will share our full recommendations.
Mr. Toner: First, the revised fish habitat definition, which adds “quality, quantity and timing of water flow”, is problematic for hydroelectric operations. The definition, if read strictly, could include virtually any and all bodies of water, including those that were never intended to be frequented by fish. Further, while the protection of fish and fish habitat is a top priority for utilities, there are other key factors such as managing flow levels to ensure public safety and performing normal operations and necessary maintenance. Already existing practices provide the necessary protections for safe flow levels. This revised habitat definition could lead to substantial overlapping of jurisdictional oversight. If this provision is maintained, it will severely limit the generating capacity of hydro-power facilities, making it necessary in some areas to backstop on coal or natural gas facilities.
First, CEA urges the government to delete clause on flows and reinstate the provision as published in the first reading of Bill C-68.
Second, the purpose statement should focus on the management and control of fisheries. As currently drafted, the protection or conservation of fish and fish habitat is set out as a distinct and self-contained purpose, whereas it should be subsidiary to the responsible and proper management and control of fisheries. To address this, we recommend combining the two clauses so that the objective of the act is clearer.
Third, duty-to-notify provisions should not be unduly burdensome. The reporting of the death of any fish in any circumstance is unreasonable. This requirement places the death of a single fish on the same level as significant impacts on fish and fish habitat. We suggest that the provision outlining the duty to notify accounts for the incidental take of fish deaths that occur within the scope of normal operational activities.
Fourth is conflicting flow provisions. The proposed subparagraph 34.3(2)(g) gives the minister broad powers to act on an obstruction in a waterway that affects fish or fish habitat, including the ability to maintain specific characteristics upstream of a dam. Flow orders are already regulated under a variety of jurisdictions, and this provision could lead to conflicting mandates. We recommend that the minister’s power regarding flow orders be limited to requirements that are within the reasonable control of the obstruction owner, and that the minister consults with other jurisdictions in advance of ordering flow regime changes.
Fifth is carrying out designated projects. clause 35.1(1) states:
No person shall carry on any work, undertaking or activity that is part of a designated project except in accordance with a permit . . .
This prohibition will delay timelines and shouldn’t apply to the parts of a project that pose no risk of death of fish or harmful alteration, disruption or destruction of fish habitat.
Last, the regulations and codes of practice that will be released alongside the act will be integral to the effectiveness of Bill C-68. CEA urges the government to engage in consultations on the accompanying regulations to the bill and to ensure that the concerns raised are appropriately addressed well in advance of the bill coming into force.
Ms. Perera: In conclusion, we urge the committee to consider these practical amendments so that we can effectively comply with the requirements of the act at existing and new facilities, protect fish and fish habitat, and advance Canada’s transition to a low-carbon economy. Thank you.
Senator Gold: Thank you for your presentations and your very focused and helpful recommendations.
My questions are for both of you. My first one has to do with the fish habitat and the question of flow. Your recommendations are clear, but we heard yesterday from a witness with extensive experience in fish habitat policy and commercial fisheries policy. She told us that environmental groups had been reaching out to industry associations to try to work out some of the concerns that had been expressed with this clause on regulations and codes of practice introduced in the other place. She said that not every puddle will be deemed a fish habitat.
Could you comment on that? Have any of you been involved in any dialogues with environmental groups on this issue? Is this an up or down issue — take it down, leave it in — or is there some middle ground you think might be achievable?
Ms. Audouin: Conversations are ongoing. The doors are always open for those cross-sectoral discussions between industry and non-governmental organizations. Discussions have happened. However, the rest of the bill is a different discussion, but the hydro-power industry feels that section, in particular, is problematic because of the risk it poses in terms of interpretation. Mr. Gibson can provide more details on that. We are providing for full removal. It is a very specific instance where we feel it’s not salvageable.
Mr. Toner: I had a conversation with that individual yesterday at another meeting. Of course, we are continuing to talk with all people interested in the bill.
For us, this was added after the bill was introduced. It was at the house committee. We think this subject is already well covered off in the bill with the provisions that were already there. As Ms. Audouin said, at the end of the day there are the challenges it presents in terms of unintentional consequences and the fact that we already believe it is and has been addressed. As has been said, many permits and other vehicles of authorization we receive through the years have conditions related to flow. We think it’s already well addressed and that the additional potential for unintended consequences and conflicts don’t add enough value.
Senator Gold: Thank you. The next question has to do with your comments and recommendations with regard to designated projects. If I understand them correctly, you would restrict these prohibitions only to such work that in fact would or may result in the death of fish or in the harmful alteration, disruption or destruction of the fish habitat, known as HADD.
Could you comment on who would decide that? If your recommendations were accepted and the legal authority was limited, who would decide whether a particular project could have that potential impact? Could you provide us with some examples from your industry and experience of the kinds of actions or projects that would not cause HADD to habitat?
Mr. Gibson: When it comes to projects, it’s important to note that hydro-power facilities are not salient. They do not sit on the landscape for a hundred years and don’t need maintaining. Many projects occur on an annual basis at a hydro-power facility that do not pose a significant risk to fish and fish habitat. If they fall under the umbrella of hydro power as a designated project, all interactions with the natural environment need to be approved. It creates a delay in the scheduling of important and essential work. That is everything from maintenance on block dams to maintenance on sluice gates.
Some of these items come up quickly. To add a regulatory layer on top of the existing regulatory process we already go through for those routine maintenance objectives is a fear of our industry. To rely on regulations after the fact when we are creating this vagary at the legislative level, it’s consternation for the industry. We would then have to advocate at the regulatory level what is in and what is out. We would rather have the clarity here.
Mr. Toner: When you use the words “designated projects” in particular, we are waiting to see what that list would be. One of the challenges is that we are also waiting for the same under Bill C-69 for the projects that might be designated as requiring project lists for that one. Until we know what that list is, or if it’s a list that is only larger projects, that would be helpful.
We are mostly concerned about the fact that one of the provisions in the bill would suggest that until we get the permit, we really aren’t allowed to do anything on the project. There are many activities on a new project you could do that are not in conflict with fish or fish habitat.
Senator Gold: I have a comment. I come from Quebec. I have toured, with great pride, our James Bay facilities, so I have some feel for the industry and its importance to our society and to our aspirations for a cleaner energy and a better environment.
I also saw up close and personal how dramatic a change a project like that and even smaller projects could make on the natural environment, on water flows, diversions, damming and fish. You don’t have to answer, but it strikes me it’s nonetheless important that there be some regulatory framework within which projects of the kind you and your associates undertake go forward, because they have a huge impact on fish habitat, almost by definition, in terms of the sources of power you rely on.
Mr. Toner: If I might respond, both organizations are very interested in seeing the right process for the right project. There are several instruments for that. There is the Canadian environmental impact assessment process that is being developed. There are provincial processes. Even within the Fisheries Act under the bill, there are designated projects which we believe are intended for larger projects and authorizations designed for ones that might still create the potential for there to be an impact. Then there are other available mechanisms such as codes of practice and letters of advice.
We are simply wanting to understand what exactly will be the precision of that. Quite frankly, we don’t know that right now. That uncertainty has created some concern for us.
Mr. Gibson: We wanted to champion a bit more through this process the level of regulatory control of flow already existing in Canada. You can go from coast to coast from B.C., right through to Ontario and right through Quebec. We have an International Joint Commission agreement with the United States that dictates flow on the St. Lawrence River, the Lake of the Woods Control Board in northern Ontario, and the Ottawa River Regulation Planning Board. A lot of federal and provincial bodies are already managing the flow.
I take your point well. Sometimes there are dramatic changes to watersheds when it comes to managing and controlling the flow of water for various purposes, whether it be navigation, pleasure craft operation, irrigation or fisheries, for that matter. I take your point well. As an association, we feel at times that what has been lost in the discussion is the amount of regulation that already exists when it comes to flow.
Water management planning in Ontario factors in upward of 13 to 15 different stakeholder or interest groups on a watershed. Quite often, hydroelectricity is not the top priority. The Nipigon River in Northern Ontario, for example is managed exclusively for the world-class coaster brook trout fishery. That is the top-of-mind fishery, and all other priorities fall in behind that. I agree that hydroelectricity plays a role in managing water and can have some dramatic effects at times, but it is only one attribute of flow management considered when managing these systems. That’s something that we as an association have continued to speak about with DFO or whoever will listen.
Senator Poirier: I have a few questions. If I run out of time, I am sure you will let me know. My first question is for WaterPower Canada. In a letter you submitted to then Minister of Fisheries Dominic LeBlanc, you highlighted three major impacts on both existing and new hydro power. Could you elaborate on the impact for wind and solar generation resulting in more GHG emissions.
Ms. Audouin: In our submissions, we try to always highlight the role that hydro power plays for this country. In my introductory remarks, I noted that hydro power is 60 per cent of the total clean and renewable electricity that is generated in Canada. It is huge. It makes us the second largest generator in the world, and it makes our grid one of the cleanest in the world.
If we have regulations in place that make working those facilities and developing those new sites more difficult, we see a real risk. In this case with Bill C-58, it could jeopardize new development and the workable operational viability of those projects. The cascading effect is that we would not be able to contribute as much as we are now to the decarbonization of the economy. That’s what the comment in that letter pertains to.
Senator Poirier: I am going to question a little on the regulatory process. Like you said, in Canada we already have a high standard regulatory process for hydro-power projects. By adding the water flow provision to the bill, it will effectively make any new and future project impossible to complete if understood correctly. Have you had discussion with DFO and Minister of Fisheries on the water flow clause of Bill C-68 and, if so, were they open to amend it?
Ms. Audouin: I will let Dan Gibson elaborate on flow in particular, further to what he said earlier. We have talked to DFO, one of our key government stakeholders. The discussion is ongoing. A public statement made in the Senate a few weeks or months ago that the government, through a member of the Senate, voiced its openness to amend clause 2.2. All of us are waiting to see what that might look like.
Mr. Gibson: I appreciated the question earlier on the flow aspect. The attributes of a fish habitat are diverse and many: flow, temperature, substrate, velocities, aquatic vegetation, degree days and productivity. These are all attributes of habitat, but in isolation they are not habitat themselves. They all contribute.
You talk about a flow provision and you talk about future projects in Ontario. To your question specifically, when you open up and broaden the term “habitat”, you are able to isolate it down to a single attribute of that habitat. You create the opportunity for challenges at the project level when your project proposes any change to the existing flow regime of a river system, managed or otherwise. It is not just for greenfield facilities, but it is for building a hydro-power facility on an existing waterway that is already managed. If your project proposes any change to the existing management, you open up the opportunity for somebody to challenge it on a Fisheries Act provision because you are holding water back or you are changing the flow regime timing quality.
Again, allowing that challenge to occur on an attributive habitat creates many cascading problems, figuratively and literally, on the landscape for future projects.
Senator Poirier: On the water flow insertion in the bill, it’s my understanding this clause was done late in the committee process Green Party MP Elizabeth May, but the government left it in the bill at third reading. Did you have discussions with the minister on why they kept it in the bill? Has DFO or the minister indicated to you how they intend to enforce the quantity, timing and quality of the water flow?
Mr. Gibson: I had the privilege of speaking with, I believe it was, the parliamentary secretary to the minister on this issue. They continue to reiterate the independence of the parliamentary committee to introduce changes or amendments to the bill, and they want to support that independence.
That being said, it goes without saying that we’ve had to do a risk or am impact assessment of the perpetual flow changes. We’ve had to articulate what we believe would be a provision of flow in the Fisheries Act and what that would mean to our industry. We look at instantaneously passing flows.
I’ll cite some statistics here. OPG, for example, predicts a loss of between 0.8 and is 1.4 terawatts of clean, renewable power in our province if this flow provision is introduced and implemented the way it is currently written. That would come at a cost to the ratepayer of about $72 million a year.
More important, what has to come in place of that loss of hydro power is a peaking source of energy. We can’t necessarily backstop the loss of that power with solar and wind, as much as we would like to do so. We would honestly be backstopping that with another peaking source of power, which is at this point natural gas in Ontario. You would be looking at adding millions of tonnes of CO2 back into the grid, which is largely GHG emissions free at the moment.
Senator Christmas: I understand a number of countries have laws already in place that manage water flows, that balance to meet the hydro-power generators and the needs of fish and fish habitat. Do we have a unique situation in Canada, or why do you feel this is problematic here? I’ll open the question to both organizations.
Mr. Toner: Thank you very much for the question. It’s always a good one.
Every country has a certain degree of uniqueness in the way they’re constituted, whether in states or provinces; how things are administered constitutionally; and how laws have evolved. From our point of view, we’ve already experienced some of the changes, previous to the previous changes that were in the bill. We understand the return of the HADD provisions, and they include flow. From our point of view, the bill, as introduced in first reading of these provisions in subsection 2(2) or subclause 1(10), depending on the way you look at it, really comes to roost in the detail provided in subparagraph 32.3(2)(g).
Some of the conditions asked for are things that the dam owner can’t necessarily guarantee. As a quick example, last summer was very dry across the country. It was certainly dry in the East. Water temperatures in rivers, whether or not we have hydro, were very elevated. One of the provisions in subparagraph 34.3(2)(g) talks about upstream quality. In many cases we have zero ability to control that. The temperature in the river or reservoir is probably what it will be, so placing that level of detail at the legislative level is concerning.
I often have the view that the legislation is the enabler and sets the basic ground rules that then are further refined in regulation and further still refined in individual permit authorizations. To include it at this high level of precision, with all the legal structures we have within Canada, is where the challenge comes.
Every approval we have in Nova Scotia has a flow provision. Therefore, it’s already being addressed specifically for those rivers, so we don’t by requesting the changes we’re asking for that we’re getting away from flow control. We’re simply saying that such precision is probably best handled further along in the process.
Senator Christmas: Correct me if I am wrong, Mr. Toner, but your preference is that the details should be left in regulations.
Mr. Toner: The ultimate details should be in regulations. Once you put it in law, it only allows certain things to happen in regulations or permits. We’re saying we’ve lived with and understood that flow will always be an important provision. We think we have that already existing in the tens of thousands of megawatts that are in place.
Flow is absolutely important, but we think it was already captured in the wording in the bill. The unintended consequences concern us the most.
Senator Christmas: Ms. Audouin, did you want to add anything?
Ms. Audouin: It is a very good question, and I concur with what Mr. Toner just explained.
As the hydro-power industry, we feel we are already embedding flow into everything we do: water management plans, permits and decisions made. It is part of almost daily operations and definitely project planning.
We need to be clear that clause 2.2 deems flow to now be part of fish habitat. It changes the definition. That’s really where the red flag is raised. Now you’re taking one attribute of fish habitat, and you’re raising it beyond and above all the other ones. You’re creating a double standard. That double standard could change the interpretation of the act to a level that would make it completely unworkable and, frankly, quite dangerous.
Mr. Gibson: I would like to add that the management of river systems has changed. When we go to a managed system, we’re no longer greenfield. We can no longer accept the ebb and flow of a spring freshet like we would have before settlements and cities were created. Decisions are made on a seasonal basis. If flow was a provision of habitat and it was the measure by which we were enforcing the Fisheries Act, flow decisions made on a weekly and daily basis would be in counteraction with that. They are outside of our power, but when it comes to a federal regulatory body like the Lake of the Woods Control Board in Lake of the Woods and down through Winnipeg, it is a highly regulated system for protection of property and flood mitigation. When we are given an order to pass flow, we must pass it.
Decisions are based on many other factors that would come into direct conflict with having to manage our systems primarily based on the Fisheries Act definition of flow. We did an exercise in one of our national meetings about to whom we are emboldened when it comes to flow across the country. There were no fewer than 30 different agreements, agencies or subnational regulatory agencies overseeing this already. They are managing that based on a large consortium of interests on the watersheds. To elevate flow to the top of the pile on across the board is very problematic at the watershed level. I’ll give a great example of the Trent-Severn Waterway through Ontario. The primary function of that flow management is for pleasure craft operators, the top priority. The management of aquatic resources and fisheries is lower on the list. It’s a federal waterway.
As a hydro-power producer on the system, we’re sixth or seventh on the list at times. We’re not being elevated to the top. It’s not a conflict necessarily of generations to habitat. It’s just an honest assessment of what it would look like on the landscape.
Senator Christmas: Are you familiar with a 2013 report of the Canadian Science Advisory Secretariat that pointed out the urgent need to establish an environmental flows framework in Canada? It made those comments because of its concerns about climate change and the impact of climate change on fish and fish habitat.
Are you familiar with the report? Could you comment on what that science report said about environmental flows and the impact of climate change on fish and fish habitat?
Mr. Gibson: I can. I am quite familiar with the study. I leave it was Dr. Smokorowski who led that study. It was largely based on research conducted in Wawa, Ontario. They looked at the Michipicoten River and the Magpie River. They looked at peaking, essentially. They looked at the divergence of flows over a course of a diurnal day. They did put forward some excellent recommendations.
There is a need for flow management and science around the regulation of flow. We don’t dispute that at all. If you look at all of our facilities, there is a large consideration of that science framework within our operations. However, it has to be taken into context with the other elements of our system.
I can think of another system of Bark Lake and Kaministiquia River in Thunder Bay. We undertake what is considered to be a “reservoir drawdown” in the late winter and early spring. We create a bathtub effect in our upstream reservoirs in anticipation of a massive release of snow melt. If we are not allowed to undertake that practice to manage the system in an appropriate way, we create massive risks of flooding downstream in the city of Thunder Bay, simply because the city has been built around the management of the system.
That being said, many of the science recommendations from that study can be observed within the water management plan of the Kaministiquia River.
Senator Busson: I am interested in comments that are made in your report around talking about the death of fish and your concern about the way that subject is being dealt with in Bill C-68.
You go on to make a suggested amendment that talks instead about the incidental take of fish deaths. Would you explain the difference and how it operates now in your industry?
Mr. Toner: I’ll start on that excellent question.
The challenge we have is that facilities have been built and approved based on the review of the day with an understanding that there is not zero mortality from very few of our facilities. We understand what that is. We monitor what that is. We tend to feel it’s appropriate if something unusual occurs and there’s an unexpected mortality of fish. It is actually a signal or a symptom that says we need to investigate this further. With the wording proposed in the bill, it would basically suggest that if you see one fish every day, you should call the emergency number and go through all the steps.
It is an administrative burden with very little gain because it’s already understood. Informally across the country there have been agreements to have an incidental take approach, but with the refresh of the bill, with the focus on the wording that’s there and with the increased scrutiny, appropriately so from environmental groups, First Nations and others, we need to clarify this one and get it so that the intended aspect is what the legislation is getting at.
Senator Busson: I am trying to imagine what that would look like. Are you proposing that each project have its own sort of benchmark measure of what’s acceptable or what’s expected, and then anything above that would be reportable? Is that how that might work?
Mr. Toner: To some degree. Obviously, a tremendous number of facilities already exist. Quite frankly, they have an understanding of what that is. For new facilities, clearly the regime would be discussed as a new facility was being reviewed and so on, but it would be actually appropriate to have it somewhat at the specific facility or river section. It really depends on what are the fisheries management objectives for that river, what is the status of the various species present, and what do the studies of these facilities demonstrate? Are populations increasing or decreasing?
If there is a real concern for a species, let’s not forget it’s probably listed and dealt with under the Species at Risk Act, which is also administered by the Department of Fisheries and Oceans.
Mr. Gibson: Your question has good merit. When we talk about operations of hydroelectric facilities, a fish is not always a fish. Sometimes a low population of fish needs to be addressed on a single fish basis. As Mr. Toner said, oftentimes these species are listed.
Whether or not you’re having a population level effect at the local level, when you are talking about coexistence and looking into the hydro-power industry, you’re seeing those conversations are already happening. They are happening with our local Minister of Natural Resources in Ontario, our local DNR individual or even our local DFO representative where some evidence is presented that perhaps more than just a simple incidental impact is occurring. Those conversations begin around whether or not a Fisheries Act authorization should be pursued. Those conversations are already happening on a regular basis.
I do appreciate the question. It’s a good one.
Senator Busson: Thank you.
Senator Poirier: This question is for the Canadian Electricity Association, Mr. Toner. How exactly did DFO respond to your concerns that Bill C-68 will discourage new investment in hydro power?
Mr. Toner: Our discussions so far with various levels of the department on up through almost the minister have been very non-committal. I think that’s the best way I would describe it.
One of the examples I would suggest is that we’ve had ongoing comment with regard to the regulation on authorizations. We’ve seen recently the second version of a discussion paper that does not address a fundamental concern we raised with them, which basically is that existing facilities may now, under the increased scrutiny, benefit from an authorization. They have existed for a long period of time with known conditions and with probably very limited incremental impact.
In that regard, we’ve been advocating that under the regulation we think there should be either a scoping down, an alternate pathway for existing or the ability to at least examine the context of it. So far, I had a meeting earlier this week over at the department. There is no guarantee that will be addressed. That concerns us greatly.
We think we will want to get more authorizations. It’s 2019, and many of these facilities, as you recall, were built before the provisions came into the act. They came in the 1970s. Most of our facilities were built in the 1920s, 1930s, 1940s and 1950s. They have existed. They were built under the laws of the day. We’re looking for a response at the regulatory level, and so far we’ve not had any response from them that has given us confidence that it will be addressed.
Senator Poirier: Both of your organizations, in your presentations, recommended a number of amendments. Were those amendments also presented to the House of Commons committee, assuming you were all witnesses at the committee? Were all those amendments presented there? Were more presented there? Were some accepted that were presented, or were they all kind of pushed aside?
Mr. Toner: The Canadian Electricity Association presented approximately five or six in maybe a little more detail. We wanted to keep it to the ones we thought they could wrestle with, and I think we went out for five. That’s the easiest way to describe it. That’s why we’re here again to talk to the chamber of sober second thought.
Mr. Gibson: I assure you they were presented. I delegated before the committee twice on behalf of WaterPower Canada, on behalf of my company. In fact, we actually presented a few more. Our position has always been that we want to support the government’s review of the Fisheries Act. We want to support the government’s intentions to improve it. Therefore, we haven’t brought all of the recommendations back to the Senate today, simply because we understand that we are in the final hour here. We want to lay out our case for some of our primary concerns.
We had concerns around going back to HADD, harmful alteration, disruption or destruction of fish habitat at the time, but we understand the larger conversation for our industry is around flow. That’s what we wanted to focus our real push today on.
Ms. Perera: When we went before the House of Commons, we didn’t have the same issue with the habitat definition. Obviously that wasn’t discussed in detail there, and this happened after our discussions with the department. Even they were very concerned about adding flow to the habitat definition. That is now a major concern for us. If you think about it, even the department didn’t have the time to do any kind of analysis in terms of the implication of changing the definition of habitat.
Ideally they should look at the impact assessment of adding this new definition. What are the economic and social costs? They didn’t have the time to do it. Based on all the evidence we have shared with you, that is why we think you should seriously consider dropping this definition and going back to what the department suggested in the first round of this bill.
Senator Christmas: I noted that your associations spoke in support of third party habitat banking. Could you elaborate on why your association is in support of third party habitat banking?
Mr. Gibson: I’d love to. If I can, I’ll answer the question by using an example. The idea of a hydro-power project coming online is a long-term project. We have the ability to plan a decade in advance. The idea is for our industry to look at the fisheries management objectives for the system we’re working on with the regulatory agencies well in advance of our project. We can look for the greatest return on investment as part of our project. We see habitat banking as a great opportunity for that.
I’ll use an example that’s not hydro specific but is within our company, OPG, and I like to use it. When we were looking at permitting a nuclear facility in Darlington, we had a 10-year or a 15-year lead time to plan that facility. We were looking to disrupt or have a major impact on the shoreline. We were not concerned about the impact of alewife on the Great Lakes Basin. We were concerned about species at risk like longnose gar and other species we wanted to protect. We got together with the regulator. We focused on the principles and the ideas of what was needed in the Great Lakes Basin. We determined that coastal wetlands were the greatest return on investment for our project. We embarked on a project in the Bay of Quinte restoring a few hundred hectares of coastal wetlands, which created more productivity than we could have imagined on our specific site.
Broadening the ideals of impacts and broadening the ideas on how to compensate and offset those impacts created a forum where we may be able to work on a remedial action plan site in exchange for our project so that we could get more done and we could get better conservation and restoration outcomes. Quite often those involve species at risk. It’s one of our fundamental reasons for supporting that.
Senator Gold: Your answers spoke to the thrust of my question, which was about the day-to-day interaction between your industry, Fisheries and others. We deal with legislation often in this committee, but it’s important we hear from the actual les implications sur le terrain and the impact and consequences for people. Thank you, and I yield my time to Senator Poirier.
Senator Poirier: Could you tell me what the impact would be of an assessment of Bill C-68 water flow, if you have an impact assessment of what would be the effects of the flow with Bill C-68?
Mr. Gibson: Much of this flow provision is in anticipation of what it will be defined as. When OPG, Ontario Power Generation, looked at our generation portfolio on hydro power, we determined that we would take an 80 per cent instantaneous passage of flow as a principle for meeting the objectives of the new definition of “fish habitat.” We would no longer be peaking and holding back water or meeting grid demands, outside of the greenhouse gas emissions impact which would bear out. We’ve detailed the impact on our organization in terms of flood mitigation and the role we play in flood mitigation. Everyone can remember the spring of 2017 in Ontario and the Ottawa Valley. We had a once in a generation flood event. We had the capacity to hold water on the watershed with our water management plans. We have detailed some impacts. One of the outcomes was that the city of Montreal would have been under a metre more of water if we had not had the ability to store water on the watershed because of flooding in the Great Lakes. We’ve detailed that in terms of the impact on an 80 per cent flow threshold by only peaking or holding back 20 per cent of the system and allowing 80 per cent to continuously pass through.
I have used the example of Bark Lake near Thunder Bay where we practised that winter drawdown in the late winter and early spring to anticipate that spring flood. If we don’t have the ability to flush that water out, draw the lake levels down so they can fill up with the spring freshet, we create not only an insurance risk for the City of Thunder Bay but a massive flood risk to the infrastructure downstream.
I can speak specifically to terawatt loss simply because when you pass your fuel downstream, you pass your water downstream and you’re not able to hold it back to meet the grid demand. There is a loss of green electricity in the province that has to be backstopped with something else.
Mr. Toner: Another thing to think about is that Canada is an interesting and beautiful country. Not every province is identical. The same is true of the electoral grid and the sources of electricity. In each province, it plays a different role. In Ontario, B.C., Manitoba, maybe even Newfoundland and Quebec, hydro is a significant piece of the generation. In other provinces it is part of it but a very important part. The same argument around flood control would be made in New Brunswick. If they were not able to do what they could, then Fredericton would be under water. Last year, even in spite of that, was under a fair amount of water.
In Nova Scotia we have a smaller ability. We don’t have long rivers. You are never more than 50 or 60 kilometres from the sea. We use hydro in Nova Scotia for peaking, mostly, except during the rainy season. Replacing that would be with natural gas or coal. That’s not where we’re going.
We have obligations under other acts and regulations for greenhouse gases that are taking us to a much different make-up, including import from other provinces. The ability to have some control to use the hydro for what it was actually built for in the first place and understanding that there will still be specific studies, we get our hydro sites renewed provincially every 10 years. The federal government, through DFO, participates.
Each of those is an opportunity to tweak the requirements based on it now being 2019 and emerging trends. There’s already a fairly robust regime in place in a large number of areas. That’s why this last-minute addition coming right out of committee was a bit of a surprise to all of us. It concerns us. Other than the work that Dan Gibson referred to, we haven’t had a chance to get a real good analysis. We know it is problematic.
Senator Poirier: I have a question for WaterPower Canada. On your website it says that over the next 20 years, hydro-power project development could benefit Canada with over $125 billion in investment and millions of jobs.
How will Bill C-68 affect this important potential for hydro power over the next 20 years?
Ms. Audouin: That’s a very good question. Hydro power employs more than 100,000 people across the country. We are always in the top five infrastructure projects in the country. It is a huge provider, both in terms of billions generated for the Canadian GDP and in terms of jobs.
WaterPower Canada represents all the hydro-power producers in Canada. When we talked to our producers across the counter, everyone raised a red flag. Everyone is very concerned about Bill C-68. We talked about flow at length, but the fundamental issue is that the bill or the act was never drafted or intended to include that section. It was never within the intention of the drafters to include a section on flow. It was added at the last minute with no prior discussion and no prior consultation, which could probably have alleviated some issues.
I cannot stress enough that it would be a dramatic consequence on the industry, both with regard to that clause 2.2. There are other issues that we feel can be addressed through regulations. There are definitely things that we urge this committee to look at and amend before it goes into force so that we don’t have to wait for regulations to make it workable for the industry.
Senator Poirier: Thank you.
Mr. Gibson: That is a great response. I can only add that I would remind the committee that 60 per cent of Canadians rely on hydroelectricity for their source of power on a daily basis. That is largely in response to grid demand. At eight o’clock in the morning when everyone turns their lights on, that is when hydro power really kicks in with its value.
As we look to electrify, I would add that I think some of the government’s goals are to electrify more industries in our country. The transportation fleet needs to be electrified. Perhaps home heating will be electrified in the future. That will come with support from on-demand power from hydro power.
WaterPower Canada has done an excellent job of articulating the thirst and desire for Canadian clean energy exports, one thing which our company didn’t do. As our neighbours to the south as they look to transition off coal, they are looking to Quebec, to Ontario and to Manitoba for clean energy exports to help them with their transition off coal and gas. Our industry needs to be there as a growth industry to support that transition.
The Chair: I thank our witnesses for a very engaging conversation. When we talk about the Fisheries Act, we sometimes do not realize the overall impact it is having on other industries. I am certainly delighted that you came to put forth your perspective this morning.
As I say to most of the witnesses that come here, when I remember to do so, if there is something after the day that you think you should have left us with, feel free to pass it on to our clerk as we continue with our deliberations on Bill C-68. Once again I want to thank you.
In our second panel this morning we have Mr. Campbell and Mr. Maurice. My understanding is that Mr. Maurice has some opening remarks. The floor is yours.
Jeffrey Maurice, Director of Policy and Planning, Department of Executive - Policy and Planning Branch, Nunavut Tunngavik Incorporated: Nunavut Tunngavik Incorporated, or NTI, is a land claims organization that represents roughly 28,000 Inuit under the Nunavut Agreement.
In 1993, the Nunavut Agreement and the Nunavut Political Accord were the sources for the Nunavut Act which created the territory of Nunavut. Nunavut joined Canadian Confederation on April 1, 1999. Just last week, the Government of Nunavut celebrated the twentieth anniversary of signing the agreement. In my personal opinion, this is what makes Nunavut Inuit unique, in the sense that we hold section 35 rights while being taxpaying Canadians participating in public government.
The 1993 Nunavut Agreement is the key driver for Nunavut Inuit participation and the decision-making processes for non-renewable and renewable resources through institutions of public government. One of these IPGs that is responsible for fisheries and resource management in and adjacent to marine areas is the Nunavut Wildlife Management Board. Article 15 of the Nunavut Agreement deals with marine areas that form part of the Nunavut settlement area, as well as the adjacent areas. Article 15 speaks to the fair distribution of commercial fisheries and licences in adjacent areas to Nunavummiut or Nunavut residents.
Inuit are intrinsically a marine culture. Historically we have fished diverse numbers of species in our inshore and midshore waters. Nunavut Inuit also participated in the offshore fishery since 1998. Nunavut fisheries currently generate over $127 million annually, or over 2 per cent of Canada’s GDP. NTI has been working toward a new Nunavut fishery regulation since 1999 to make regulations consistent with the Nunavut Agreement. Over a 20-year period, we have had 17 drafts of these regulations and have sat on 14 different working groups.
On Bill C-68 specifically, NTI is optimistic with regard to many of the proposed amendments to advance Indigenous reconciliation, in particular the use and protection of Indigenous knowledge when the minister makes a decision, enabling the agreements between Indigenous governing bodies to carry out the purposes of the act, as well as the creation of advisory panels which may include Indigenous peoples. This will allow Indigenous peoples to participate in national policy discussion.
Where NTI does have concerns is where the wording proposed in the bill is to ensure that Indigenous rights are not abrogated or derogated from. In particular, clause 2.3 of the bill is not worded appropriately in our opinion. The problem with this clause is that it does not say that the statute cannot abrogate or derogate from the rights of Indigenous peoples, but only from the protection provided for those rights through their recognition and affirmation of section 35 of the Constitution Act, something that it would arguably not be able to do.
Clause 2.4 might be called a derogation clause. In part it reads:
. . . the Minister shall consider any adverse effects that all decisions may have on the rights of the Indigenous peoples . . .
However, how could this decision have such an effect? We are truly startled to see such a clause and further mystified by the thinking behind it. In this context, I would draw your attention to the December 2007 final report of the Standing Senate Committee on Legal and Constitutional Affairs.
The Senate committee reviewed the history of non-derogation clauses from their first appearance in federal legislation in 1986 and noted a distinction between the wording used from 1986 to 1998 and from 1989 to 2002. In essence, until 1998 non-derogation clauses were clearly just non-derogation clauses. After 1998, rather wording began to be used that was rather similar to that used in clause 2.4 of the current bill. In particular, Bill C-33, now the Nunavut Waters and Nunavut Surface Rights Tribunal Act, includes non-derogation clause wording like that found in the current bill. This was strongly criticized by NTI at the time the bill was presented.
In order to take section 35 rights seriously, in 2007 the Senate committee recommended that the Interpretation Act should be amended by adding non-derogation provisions that would read:
Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.
However, the government has adopted very similar positive wording in two bills since then. Bill C-91, the act respecting Indigenous languages, includes the following clause:
This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.
Identical wording can be found in Bill C-92, the act respecting First Nations, Inuit and Metis children, youth and families, which we support, by the way. Both these bills are currently before the House of Commons. The current non-derogation wording of this bill, when compared to the language of the other bills we have referred to, indicates we are again facing what the Senate committee in 2001 called an ad hoc approach to non-derogation clauses.
We therefore ask you to give serious consideration to removing the proposed wording in clauses 2.3 and 2.4 and replacing it with wording similar to that in Bill C-91.
Thank you for your time.
The Chair: Thank you for your presentation. For everyone’s information, Alastair Campbell, Senior Policy Adviser with Nunavut Tunngavik Incorporated, is also here.
Senator Gold: The issue of the right wording for the clause to which you referred has been vexing the government for some years, certainly since the Senate report that you kindly alluded to. For the benefit of those of us around the table, myself included, who may be less familiar with the nuances than you are, the government has not yet taken up the recommendation the Senate committee proposed to have a standard clause in the Interpretation Act that would make unnecessary or redundant the inclusion of these specific clauses. That recommendation still stands and should be taken seriously.
That being said, we have a situation where we have a number of different formulations, often depending on when the act was first enacted with that clause. Do I understand your position with respect to the original formulation of the clause which was changed in the 1980s to speak the protection afforded to provide for the rights? Would you actually prefer that? I know you have a clause you would prefer even more, but is it your view that the current language proposed is less protective of rights than the original clause that we saw in the first decades or so?
I recall dimly that the language was thought to be somewhat more protective of rights than the original clause. Could you could share with us your relative acceptability or unacceptability of the older clause versus this clause? We know you recommend the clause that is currently in those bills. That’s certainly within our purview to adopt, but I would like you to share your view on how you see the utility of this clause versus the previous clause.
Mr. Maurice: Thank you, Senator Gold. More important, we want to see some consistencies on interpretations. Whether we prefer the old one, the existing one or the one presented in Bill C-91, consistency is something we would like to see. To answer your question simply, yes, we prefer the old one. I’ll let Alastair Campbell elaborate, if he will.
Alastair Campbell, Senior Policy Advisor, Nunavut Tunngavik Incorporated: This is dealt with in the Senate committee report from 2007. From around 1986 to some time in the 1990s, the language used varied from statute to statute but generally provided for the recognition and affirmation of Aboriginal treaty rights. It also provided that they would not be abrogated or derogated from.
In 1987 or 1988 things changed and the language used was that it would not abrogate or derogate from the protection provided by the Constitution. When the Senate committee looked at this, it said, first of all, that adhocracy was developing with one term being used here and another formulation being used there.
Eventually, in the face of this criticism and our interpretation of the Nunavut Waters and Nunavut Surface Rights Tribunal Act, the proposed language was very similar to what is in this bill. It did not say anything new. Whether or not it was there, it added nothing. It only appeared to say something. If it did say anything, it merely introduced an element of ambiguity and uncertainty.
At that time NTI argued for the clause to be dropped from that bill, and the Senate Committee on Energy, the Environment and Natural Resources moved to delete it. That deletion was carried through by the Senate and the House of Commons. From that time, there were no uses of non-derogation clauses until recently when for whatever reason government seemed to think that they needed to do this again. They introduced old language that had been strongly criticized.
In terms of the position NTI has taken, as part of the Land Claims Agreements Coalition, mostly an organization of modern treaty signatories, has taken a position that the Interpretation Act should be amended as the Senate committee recommended including a section in the Interpretation Act that would apply to all statues. That would mean that we would not have to keep our eyes open, as each statute goes through, to determine whether or not a non-derogation clause is needed, whether this one is different from that one, or whether this one is better than that one. We would have a standard clause in the Interpretation Act that applies everywhere.
There seems to be some sympathy from government to do that, but it’s not happening yet. In the absence of that, we would prefer non-derogation language like that used in the other bills we have referred to.
Senator Gold: I understand. I beg the committee’s indulgence. My question was far too lengthy. I could have been much crisper. I want to be clear, though.
At least, for the moment, we are not to have that innovation and change to the Interpretation Act. It’s beyond our scope in any event. I understand you have a preference for wording that appears in some other acts that are currently in the pipeline, but do I understand that this language protects your rights less? Does it really add anything? If at the end of the day this is what remains in the act, I want to hear from you that you don’t feel your constitutional and other rights are threatened by this language. That’s my concern.
Mr. Maurice: That’s exactly what we are trying to achieve. The existing wording in Bill C-68 doesn’t take it far enough, in our straightforward opinion.
Senator Gold: Fair enough.
Mr. Campbell: I should qualify my comments. I am not a legal counsel. However, I have talked to some major players in the Aboriginal legal field, and the very clear opinion I have received from them is that this clause does not add anything.
Senator Poirier: Thank you both for being here this morning. Do you think the scope of Bill C-68 reflects the needs of the North?
Mr. Maurice: Yes, the bill speaks to Indigenous reconciliation. That’s why we are optimistic in terms of the wording and the inclusion of partnerships with Indigenous organizations. We have had some challenges in the North, as I alluded to in my presentation. We have spent 20 years trying to negotiate a set of Nunavut fisheries regulations that reflect the Nunavut Agreement and Inuit right. This bill allows an environment for appropriate policy development that would further enhance the socio-economic circumstances of Inuit in the North.
Senator Poirier: Do you think the act adequately incorporates traditional knowledge into the decision-making process?
Mr. Maurice: It’s certainly a lot more than what we have had before, which was nothing. More important, we will have a challenge at our end in terms of Indigenous organizations appropriately recording Indigenous knowledge and having databases or sources from which we can draw to participate meaningfully in that process.
Senator Poirier: How can DFO offer more support to the North?
Mr. Maurice: At the end of the day, it’s money. NTI is a small organization. It has been left out of various Indigenous fisheries programs. We have not had the opportunity to access Aboriginal fisheries funding. Recently we saw the AICFI and the AAROM funding the roll out that we could potentially access and tap into, but historically Nunavummiut have not accessed fisheries funding in the past.
Senator Poirier: Have you had the opportunity to share your concerns on Bill C-68 before the House of Commons committee?
Mr. Maurice: Not presently, I don’t think. This is our first kick at the can. I know this is late in the game at third reading but, to be fair, there was a lot of engagement and consultation on Bill C-68 in the North. There was a lot of dialogue and engagement leading up to it.
Senator Christmas: Thank you for appearing before us, and thank you for commenting on clauses 2.3 and 2.4. It’s appropriate that you did so. As mentioned, Nunavut is a section 35 governing body. This issue hasn’t really been raised, at least in the context of this particular bill. I know some witnesses will be following you, especially from the East Coast, who have great concerns about those two clauses.
I am not a lawyer, so as a layperson I am going to try to explain, at least in my own words, what your concerns are with the non-derogation clause. Please correct me if I am wrong. I want to make sure I understand it as best as I can.
This particular non-derogation clause 2.3 talks about abrogating or derogating from protection. That was the most recent version of that non-derogation clause. The older ones talked about abrogating or derogating from rights. In my simple mind, I am saying this current version only talks about protection, and the older version talks about rights. Is that correct? Is my simple version or understanding of this clause how you understand it?
Mr. Campbell: In a nutshell, yes. In the older version and the Bill C-91 version, the bill doesn’t abrogate or derogate from rights. This version doesn’t abrogate or derogate from protection provided for those rights by the Constitution, which we don’t think it can do anyway. This appears to be doing something but it is not really.
Senator Christmas: I would like to explore clause 2.4, which talks about the minister considering any adverse effects the decision may have on the rights of the Indigenous peoples. In my reading of your comments, this is almost like a with prejudice clause where the minister can make decisions and override or not consider rights. Is that too simple? Am I missing something here? Is that how you read clause 2.4?
Mr. Campbell: Again, in simple language, yes. He has to consider the implications, but it doesn’t say what he has to do once he has considered them. This may have a negative implication for Aboriginal treaty rights. Does that mean I can’t do it?
Senator Christmas: I notice in your presentation that you called it a derogation clause. It is pretty obvious that it has the potential of overriding rights.
Mr. Campbell: It implies he can go ahead.
Senator Christmas: Again, I am struggling in a legal world, not being a lawyer. You recommend that clause 2.4 be removed from this particular bill. Is there a way to reword this particular section so as not to have unintended consequences of overriding rights?
Mr. Campbell: There may be a way. I don’t have that particular wording. Perhaps you could get legal counsel to suggest some options to you, or we could consider it and forward it to you separately. It would have to be very carefully worded.
Senator Christmas: Yes, I fully agree. My eyes were opened to how this could possibly be interpreted, and I thank you for bringing that through. I didn’t see that before. I appreciate that. Any kind of advice or expertise you can share with us would be appreciated.
Senator Gold: I have a comment, and I’ll put on my law professor’s hat. I understand the concern this clause may give rise to but, as I interpret it and as clauses like this have been interpreted in other contexts, I don’t think it would have that effect. It is not a derogation clause. On the contrary, it imposes an obligation which I think is implicit in the Constitution itself, frankly. It makes explicit the obligation that any decision must take into account any possible adverse impact on the constitutionally protected rights of Indigenous people. It’s not a licence to go ahead. The Constitution still says that you have to accommodate and deal with rights. There is a whole body of law that speaks to that.
I read this as a reinforcement of the duty that is already on every government official to take into account both the existence of the protected rights and their scope and the impact the decision may make.
Though I understand the concern that’s raised, from a legal point of view it can and ought to remain in the act as a salutary signal to ministers present and future that it is one of the things they have to keep front of mind as they deal with any issue or decision before them.
Senator Campbell: Thank you for coming today. The policy for preserving the independence of the inshore fleet in Canada’s Atlantic fisheries right now only applies to the East Coast. Would this recognition of the independence of inshore fleet impact fishers in Canada’s North?
Mr. Maurice: I think so but not right away. That is the short answer. I know that the existing policies are Atlantic wide, and that Baffin Bay and Davis Strait are part of the North Atlantic adjacent to Nunavut. I don’t think we’re quite there yet. Having this bill allowing Indigenous people to participate in an advisory process will create policies that are more reflective of Nunavut Inuit needs.
Senator Campbell: Would you like to be there? Would you like to have that tool in your drawer?
Mr. Maurice: Absolutely.
Senator Campbell: Is there anything holding it back right now?
Mr. Maurice: How do I put this?
Senator Campbell: It would seem like a relatively reasonable suggestion that this should be applied to other areas besides the East Coast.
Mr. Maurice: Correct, but I think the distinctive difference with Nunavut’s inshore versus the rest of the inshore is that Inuit hold fishing rights. Those fishing rights have been artisanal and small scale in recent history, but Nunavut is growing to the point where we’re starting to see more sustainable commercial fisheries development.
We will have to start having that discussion for our inshore, in terms of what it would look like from a rights-based perspective. As I said in my presentation, I think that is what makes Nunavut unique.
The Chair: I want to thank our witnesses for their presentations this morning. Certainly, once again, they added to our deliberations. If there is something that you want to forward to us afterward that you may have forgotten about today, feel free to send it to our clerk as we go forward with our work on Bill C-68.
I would ask members to stay for a moment to discuss future plans.
(The committee continued in camera.)