Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue No. 44 - Evidence - April 30, 2019
OTTAWA, Tuesday, April 30, 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 5:04 p.m. to give consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Good evening. My name is Fabian Manning. I’m 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 McInnis: Senator Tom McInnis from Nova Scotia.
[Translation]
Senator Poirier: Senator Rose-May Poirier from New Brunswick.
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Senator Wells: I am David Wells from Newfoundland and Labrador.
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Francis: Brian Francis from Prince Edward Island.
Senator Moodie: Rosemary Moodie, Ontario.
[Translation]
Senator Petitclerc: Senator Chantal Petitclerc from Quebec.
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Senator Campbell: Larry Campbell, British Columbia.
[Translation]
Senator Gold: Senator Marc Gold from Quebec.
[English]
The Chair: Tonight our committee is continuing its study on Bill C-68, an act to amend the Fisheries Act and other Acts in consequence. I would now ask our guests to introduce themselves.
Siegfried Kiefer, President and Chief Strategy Officer, ATCO Ltd. and Canadian Utilities Ltd.: I am Siegfried Kiefer. I am President and Chief Strategy Officer for ATCO Ltd. and Canadian Utilities Ltd.
Patrick McDonald, Director, Climate and Innovation, Canadian Association of Petroleum Producers: Patrick McDonald. I am the Director of Climate Innovation for the Canadian Association of Petroleum Producers.
Janice Linehan, Manager, Environmental Policy, Suncor Energy Inc., Canadian Association of Petroleum Producers: Good afternoon. I am Janice Linehan, Manager of Environmental Policy at Suncor Energy.
The Chair: Thank you, witnesses, for taking the time to join us here this evening and to help us in our deliberations on Bill C-68. We certainly look forward to hearing from you. I understand you have some opening remarks, and then we will have some questions from our senators. I would advise senators that I don’t like to cut off debate, but we have a busy evening ahead of us and must try to keep our questions pointed. I would say the same to our witnesses with their answers. The floor is yours.
Mr. McDonald: We’ll try. Good afternoon, honourable senators. As I noted, I’m Patrick McDonald, the Director of Climate Innovation at CAPP. You may know that CAPP is a member-driven organization. Our members produce about 80 per cent of Canada’s oil and natural gas resources, both onshore and offshore.
Joining me today from one of CAPP’s member companies is Janice Linehan. I note that Suncor Energy has both onshore and offshore production.
CAPP, on behalf of our members, welcomes this opportunity to provide our perspectives related to the review of the Fisheries Act via Bill C-68. Just for information, we provided a written brief last week, which all of you should have available.
To start, I will provide a bit of an overview of CAPP and of our industry. Our industry is the largest single private-sector investor in Canada. We have been building safe projects within Canada for a number of years under the current regulatory frameworks and previous regulatory frameworks that existed.
Last year, our members invested $41 billion in the Canadian economy via capital projects, but four years ago our members invested $81 billion in projects.
Our sector has been very active in a number of the legislation reviews that are ongoing here and that are currently moving through the Senate: Bill C-68, Bill C-48 and Bill C-69, just to name a few. Broadly speaking, there are a number of pieces of legislation that are making the regulatory system more complex. We feel that some of these changes are not meaningful to the rigorous environmental standards our industry is already subjected to. At the same time, the bills are impacting the ability of our sector to attract investment capital. We really want to take this opportunity to present our view to the Senate committee to ensure that changes can be made to reduce uncertainty and enhance the attractiveness of our investments.
For Bill C-68, CAPP has targeted opportunities for amendments in three areas. These three areas seem to be fairly consistent with other organizations that have intervened on this subject. The first area is in regard to the definition of fish habitat. Within the bill currently there is a subclause 1(10) that creates a new subsection which deems water flow to be fish habitat.
This new clause was added by the House of Commons, in our view, without adequate review in terms of the potential legal or operational considerations. As currently written, this subclause could increase regulatory uncertainty and really impact the functionality of the definition of fish habitat within the act.
The second area is in regard to the permitting of designated projects. Within the act, there is a new requirement for an introduction of this term “designated project.” However, we have yet to see the list of what these designated projects are. With the introduction of these designated projects, our understanding is this new requirement would require permits for every activity of a designated project underneath the Fisheries Act, even if that activity or work didn’t impact fish habitat or have a negative impact on fish habitat. When implementing these new permitting requirements, we’re interpreting that they would, first, add a great deal of complexity for low-risk items. As proposed, they would not enable all of the operational statements or codes of practice to be utilized by these designated projects. That’s an area where I think there is opportunity for improvement.
The third area is in regard to implementation of the bill itself. As Bill C-68 proceeds, it will be necessary for government to undertake many actions prior to the bill coming into force. There would have to be a complete implementation and transition plan from the current act, regional staff would have to be trained and a number of key policies, guidelines, tools and subsequent changes to regulations would have to be made.
We want to ensure that these changes to the legislation and regulations have no further impact on the jobs and the impact that we have seen in our industry. We’re requesting that the implementation is done in a manner to minimize uncertainty. One example of minimizing that is just ensuring both the industry and folks have clarity about things like regulations and that we have those in place, and that they understand them well in advance of the bill’s coming into force.
One piece is seeing what would be on the designated project list. Another would be that as these regulations are changed, they actually go through the gazetting process instead of being moved through quickly to a Canada Gazette, Part II. CAPP supports a regulatory regime administered under the Fisheries Act that maintains regulatory certainty, adheres to clear timelines and increases Canada’s competitiveness with other jurisdictions, as well as providing clear, consistent and achievable approval conditions, and really limits the opportunity for legal challenge.
Those are the same five points that we made years ago when we were presenting to the parliamentary committee on this.
In conclusion, again, in regard to a number of pieces of legislation, as an industry we want to limit the uncertainty that our members are seeing so they can get to that investment confidence. Right now, Canada is attracting more uncertainty, not capital. We have lost and will continue to lose investment within Canada unless we can ensure that our regulatory framework provides clear rules, timelines and decisions that stick.
Thank you for the opening comment. I look forward to your questions.
Mr. Kiefer: Thank you. We’re pleased to be meeting on the traditional unceded territory of the Algonquin Anishinabe people. Thank you, senators, for meeting with us today and hearing our views with respect to Bill C-68.
For those of you who don’t know ATCO, we are a proud Canadian company founded more than 70 years ago, based in Alberta. But we are today a global company with 6,000 employees. Our business provides integrated solutions for electricity, housing and structures, logistics, pipelines, liquids, ports and transportation, as well as retail energy.
ATCO has long championed the development of hydroelectric infrastructure, and we operate today the Oldman River Hydroelectric Plant in southern Alberta, jointly owned with the Piikani Nation. This plant provides clean energy to 25,000 households in Alberta.
The Canadian electricity sector is, on average, 82 per cent non-greenhouse gas emitting, with roughly 60 per cent of that energy coming from hydropower; however, there are several jurisdictions in Canada today where fossil-fuel-fired electricity is still the predominant form of generation. We believe that hydro will play a key role in the replacement of those fossil fuel generation facilities in the future to enable this transition and to provide backup supply for other forms of intermittent renewable energy, like solar and wind.
To advance hydropower, producers need a framework and assurances that they will be able to reliably operate their existing hydro facilities and to build new power stations to meet the energy demands that we require to migrate to a cleaner energy grid.
ATCO is concerned that in its present form, Bill C-68 will create uncertainty — as you’ve heard my colleagues at CAPP express — in terms of the scope and the application of the act, the regulatory process that will be followed and the compliance requirements with the act as well. We believe the bill will also constrain the operation of existing hydropower projects and stifle investment in new hydropower projects.
Honourable senators, you have before you our brief. We have worked very hard to try to put together a package of amendments with clear, targeted outcomes to improve the bill without sacrificing its objectives. In the package of amendments, you will see that we see three key issues that need to be addressed. I will touch on each of these three issues briefly.
The first issue, as you have heard, is water flows. Bill C-68 adds the quantity, timing and quality of water flows to the definition of fish habitat. This expansive definition of fish habitat will result in an uncertain scope of application of the act, and we believe extensive litigation. Read strictly, the inclusion of water flow suggests that habitat may be harmfully altered even by temporary alteration or impairment of water flow in any body of water where fish are known to exist. This is true whether or not that water body is natural or artificial. As a result, efforts to maintain compliance with the act may lead to unreasonable and unnecessary constraints on operations of existing hydropower facilities where flow may be altered in response to a number of factors, including load demand, weather events and, more importantly, public safety. It may also make it very difficult for parties to undertake routine repair or maintenance work on existing facilities, or to obtain facility renewal licences.
Further, Bill C-68 gives the minister broad powers to act when an obstruction in a waterway affects fish or fish habitat, including ordering an owner to maintain water flows upstream of an obstruction. In most cases, the owner of an obstruction will not have any ability to control water characteristics or flows upstream of their facility. Water flows are already managed through a variety of provincial and interprovincial mechanisms. The new provisions on water flows are unnecessary and will create potential for jurisdictional overlap and conflict.
The second issue I would like to address is fish versus fisheries. The new purpose statement in Bill C-68 is the proper management and control of fisheries and the conservation and protection of fish and fish habitat. This establishes conservation as an end in and of itself rather than as a means to advance the proper management and control of fisheries. If not corrected, this language will create conflict between the purpose of the act and the reasonable authorization by the Department of Fisheries and Oceans of activities that may incidentally kill or harm fish or fish habitat with no effect on fisheries’ sustainability. Bill C-68 should focus on population-level effects to fish and not on individual fish.
The third issue is balancing costs and benefits. Bill C-68 does not reflect any consideration of broader matters of public interest, such as economics or the costs of compliance with the act. Two provisions in particular demonstrate this. Proposed section 35.1 prohibits work on any part of a designated project, except in accordance with a permit, even where such work will not impact fish or fish habitat. This broad prohibition is unnecessary and does nothing to further the objectives of the act.
The second example would be proposed subsection 38(4), which creates a duty to notify of the death of any fish in any circumstance. There should be clear exemptions to this obligation, particularly where death of fish is part of the incidental take associated with the normal operation of long-existing facilities.
These provisions are unduly onerous and will result in unnecessary administrative and regulatory compliance costs and be a burden for both the Department of Fisheries and Oceans and facility owners.
Finally, the factors in Bill C-68 that a decision-maker must consider when making certain decisions under the act do not include the potential economic benefits of a project or the costs of compliance with the decision. To ensure an appropriate balance of considerations, these factors should be included in the decision-making under the act.
In addition to the issues I have highlighted, we believe that clear policy and regulatory guidance will be critical to the successful implementation of this bill. If passed, we would urge that the federal government consult affected parties in this regard to ensure concerns are understood and addressed in the regulations.
To conclude, ATCO appreciates the work of the Senate committee, and we would strongly encourage the committee to consider the amendments we have put forward. These amendments aim to increase the certainty for proponents and for current owners of facilities, which in turn will allow projects to advance and will aid in Canada’s transition to a lower-carbon economy.
I thank you for listening to our remarks and I look forward to your questions.
The Chair: Thank you, Mr. Kiefer and Mr. McDonald. The deputy chair will ask the first questions.
Senator Gold: Welcome and thank you for your testimony.
This is a question for the panel, generally. It has to do with the question of fish habitat. Bill C-68, as it was originally introduced in the House of Commons, defined “fish habitat” as meaning water frequented by fish and other areas in which fish depend directly or indirectly, et cetera. An amendment — and you’re not the first to criticize this provision — was passed. It’s the so-called “deeming” provision, which says:
For the purposes of this Act, the quantity, timing and quality of the water flow that are necessary to sustain the freshwater or estuarine ecosystems of a fish habitat are deemed to be a fish habitat.
We understand your and others’ concerns about that. Is there an acceptable middle ground between the bill as it was before the amendment and the bill with the deeming provision? In particular, I would ask for your comments on a proposal we have received as a committee and that I gather has been circulating for some time among some industry and agricultural associations. It comes from the Forum for Leadership on Water. It proposes to remove the deeming provision entirely but to insert into the definition of fish habitat that I read at the beginning of my question so that it would read as follows: “That fish habitat means water frequented by fish” and it would add “and includes the quantity, timing and quality of flows of these waters, and any other area.” It then retains the rest of the definition in the act.
Would this be an acceptable middle-ground solution? Does it address your concerns?
Mr. Kiefer: First, I’ll declare I’m not a lawyer, and I am not the best, if you will, in terms of the legalese associated with phrasing correct regulations.
Water flows today are already governed by a significant number of agreements between provinces and between countries. The potential overlap that the mention of water flows creates with respect to fish habitat is an area that concerns me greatly in that the jurisdiction is not clear as to who would then govern over an obligation — where British Columbia has an obligation to send a certain amount of water flow through the Columbia River system, where they have an obligation to flow water into Alberta through the watersheds that are there — versus this act in terms of protecting fish habitat.
My concern generally is that getting into water flows creates that overlap between jurisdictional obligations. I would prefer to avoid it in this act.
Mr. McDonald: We can build upon that a little bit.
In terms of the level of complexity, if we’re looking at the initial definition, when it went into committee it was something that our members broadly did not have a concern with. When it came out of committee, I think there have been a number of concerns raised by a great number of our members and other organizations. Again, our recommendation is that the amendment be struck and repealed.
As far as a middle ground, as we are a member-based organization — and I’m an engineer and not a lawyer either — we would have to take a bit of time to consider that wording. I have not seen that wording yet, but I would be happy to consider it and get back to the committee. Again, in our view, the cleanest approach right now would be to strike the clause.
Janice?
Ms. Linehan: I’ll add briefly. Again, we have not seen the proposed wording. I think what you are hearing again and again is the importance of words and how they are potentially interpreted. Getting into a new definition like this, has it been assessed? Has it been reviewed in terms of the legal implications or the operationalization of that?
Being asked that question on the spot, I would have to venture to “no.”
Again, with the ATCO response in terms of water flow, people aren’t debating the importance of flow in terms of habitat and fish. It is where it defines “flow” as “habitat” where we get into some trouble. That’s where the discomfort lies, and so I think the answer we will go back to is “no.” We would like to go to our request to repeal it.
Senator Gold: Thank you. I wasn’t trying to spring anything on you. It was just that we received this recommendation, and this is the first opportunity we have had to test it with representatives from groups that have expressed discomfort, if not opposition, to that. Thank you. If you have any further reflections on it, you can contact the clerk and we would be pleased to receive your comments.
Mr. McDonald: If we could get that official wording —
Senator Gold: It’s not official, but it’s a recommendation. The clerk can provide that to you. Thank you.
The Chair: If anything of this nature or anything else comes to light after we leave here, please make it available to the clerk, and she will make it available to all of us.
Senator Poirier: Thank you all for being here. My question is for ATCO. In regard to hydro power in Canada, how do you think Bill C-68 will impact the development of hydro power going forward? Also, what do you believe to be the unintended consequences of Bill C-68 for you?
Mr. Kiefer: That’s a great question. We have studied hydro power since the 1980s, personally and as a company; it’s one the first projects I undertook when I joined the company.
It is a challenging proposition in a province that is, if you will, not blessed with the kind of water resources that Quebec, Manitoba or British Columbia has. Nonetheless, Alberta does have several waterways on which hydro power would make economic sense in today’s context.
The effect of Bill C-68 on our assessment would be that we would not propose a hydro development under this act today. The reason is the lack of clarity on the three matters that I put in front of you that present, in my mind, an inability to bring the economic benefit associated with disrupting the flow of a waterway, which every hydro project does.
I think Bill C-68 would have the effect of withdrawing analysis and proposals around developing new hydro projects. In fact, today we’re already seeing existing hydro facilities challenged to try to understand what their compliance would need to be under this proposed act for their renewal licences. We have an example in Saskatchewan where they have a hydro facility that was built in the 1950s and is not able to receive its renewal licence at the moment because of the uncertainty in the new act. That would be our primary concern, that this act would create a level of uncertainty around scope and application such that they would withdraw the investment proposals around hydroelectricity.
Senator Poirier: In your opinion, would you say that Canada already has the high standards of regulatory process for the hydro power products?
Mr. Kiefer: No, I would support many aspects of Bill C-68, outside of the three that we’ve mentioned as significant flaws, as being an improvement over where we are today.
We’re not asking you to consider the bill as not being an improvement. I think it is an improvement in many aspects, but there are three critical flaws that need to be addressed.
Senator Poirier: If I’m understanding correctly, the part that’s the biggest concern is adding the water flow provision in the bill and would effectively make new future projects impossible for you to complete or have difficulty?
Mr. Kiefer: I would say that it’s really the three elements: the water flow, the impact to individual fish versus fish populations and the lack of consideration of the economic benefits associated with a project on a waterway. Those three things combined are the things that would hold back investment, in our minds.
Senator Poirier: Have you had discussions on these concerns with the DFO and the Ministry of Fisheries on these water flow clauses of Bill C-68? Did they give you any interpretation of the clause and are they giving you any indication that they would be open to amending Bill C-68 and removing that part?
Mr. Kiefer: We have had extensive conversations with the Department of Environment and Climate Change Canada and the Department of Fisheries and Oceans. I think they are cognizant of the implications of some of the wording that has been introduced in the act. They did not give me assurance that if we were to rewrite it the way we proposed that it would be acceptable to them, but I think they are sensitive to the issues that we are raising. That’s the strongest assurance I could get out of them.
Mr. McDonald: To build on that, we have engaged as well with the department. Soon after the new clause was added, we submitted a letter to the minister and received a response that they were aware of concerns related to this and that the bill was, again, obviously proceeding through the Senate and that, if it was maintained, there might be an ability to look at this in the regulations.
What we have been messaging in all of these reviews is that addressing issues of the legislation within regulation is not appropriate practice. If there is an issue within the bill, it’s better to get it resolved within the bill as opposed to trying to address those later on through regulations.
Senator Campbell: Thank you for coming today. Are we taking a hammer to something that’s not that significant? I would like to know how many times, to your knowledge, we have had massive fish kills, for instance, from hydro electric plants, and what were the circumstances of them? It seems like we’re going in the opposite direction. Can anybody tell me how many times, or what the number of events are or anything like that? I haven’t heard anything.
Mr. Kiefer: I don’t know if I have enough specific examples. We operate a large industrial water system off the North Saskatchewan River. It feeds the industrial heartland in Alberta with water for many of the processes involved there in the various plants. Annually, we have to pass an inspection and a test where you take a peeled mandarin orange and drop it into the intake, and it has to come out of the other side undamaged for us to continue to operate our intake facility. That’s the test. It has been in place for 10 years, and we haven’t damaged an unpeeled mandarin orange yet. So I think we hold ourselves to high standards in this country.
Regarding the challenge in the wording to get to protecting individual fish, do we see dead fish in the North Saskatchewan River? Yes. Do they die of natural causes? Yes. Do people fish in the river? Yes. There are lots of causes. If we take on the administrative burden of identifying every fish that we find that has passed away in the river, I think we’re just asking for a whole lot of administration over something that is not consequential. If we had a situation where we were killing large numbers of fish and affecting the population of fish in a body of water, then, yes, we should all be concerned about that and we should report that, find the root cause and correct the problem.
I think we’ve kind of strayed into language that takes us to an extreme position as opposed to a reasonable one.
Mr. McDonald: To build on that, in terms of the additional regulatory process, that was the second area that I highlighted in my opening comments. Right now, if a project is designated — and, again, we don’t have clarity on what criteria or what those types of projects would be — they could require authorizations for any work or undertaking that wouldn’t even potentially cause an issue if it didn’t have an impact on fish habitat. If we’re undergoing an authorization process for something that doesn’t impact fish habitat, that would be unnecessary and could be seen as a hammer.
Ms. Linehan: I think you’re right in asking that question. I think we have to have our eyes on the prize. What’s the intended environmental outcome or benefit of some of the changes in here? We need to question some of that, because it looks to be adding a lot of administrative burden in some cases where we’re not getting the clear environmental benefit or clear environmental outcomes that we’re looking for.
Senator Campbell: I’ve never heard of HADD before, harmful alteration, disruption or destruction. This reinstates that whole idea. As with so many bills that we get, there are no definitions. They say, “We’ll wait for the regulations.” That’s like waiting for your fairy godmother to show up and everything will be perfect once the regulations come in.
First of all, should it be defined in the act and not the regulations? What has been going on in the absence of HADD? They say they are reinstating it. Obviously it wasn’t there and now it is back. What has been happening in that period that has caused everyone to get all “nudgy” about this and say they will go back to that because it’s important.
Ms. Linehan: In terms of HADD, it’s what we know from the previous act and we know how to work within it. There is a lot of previous experience, both from the proponents and from the government in terms of working within the HADD.
In terms of it having to be defined in the act, again, there is a lot of experience and existing legal interpretations out there. So I don’t know whether it would add anything by defining it.
Senator Campbell: Because this bill comes in, that doesn’t mean that HADD is gone. Am I correct?
Ms. Linehan: No, HADD is back. HADD was the previous one that came in with serious harm and our impact on commercial, Indigenous and recreational fisheries, so there was a change. But now we’re going back to what was previous to that.
Again, it comes up in terms of our comments on implementation and transition. That transition, back then, wasn’t overly smooth. For us in particular, it’s not a big concern to go back to HADD.
Mr. McDonald: Our operations and industries have been operating in the current regulatory framework and the frameworks before it, so there is that experience there. When we get levels of uncertainty rising is when we bring in new definitions that have to be tested, and folks aren’t clear on what those pieces mean. In terms of the HADD, our members are comfortable working within that.
Mr. Kiefer: I would add a subtle concern. With the addition of water flows into the definition of habitat, HADD takes on a whole new meaning for industry and precedent in the courts. You have to be careful in legislation. I call it a bit of a system. A small change here has tremendous impact throughout the act.
So HADD, under the previous definition of fish habitat, everyone understands what it means. Under the new definition, I don’t think we understand what it means. That’s the uncertainty that is currently in Bill C-68 before you. So that would be my caution to you.
Senator Petitclerc: I was also worried about the death of fish. That was my question as well. Just to complete the question that you already answered quite well, is it the understanding in the industry that this would be enforced by DFO? How do you see that working, or do you not see that functioning well?
Mr. Kiefer: My concern would be that the focus of the act to protecting individual fish versus population changes enormously the focus of industry, and we could lose sight of the forest because we’re lost in the trees.
There are fish deaths around facilities, and there are fish deaths without facilities that occur in nature. The language has gotten so precise about any fish kill, in any circumstance, that I’m not certain it benefits industry, the environment or the government to have that level of reporting. I would see it as overkill. Maybe that’s a bad word to use. But it is certainly using a sledgehammer to affect a situation.
Fish populations are something the industry understands. We understand how they are monitored. We have a lot of history in this country of monitoring fish populations. Frankly, I think we’re very good at it.
I travel the world a lot. Our business is quite international. I would put our standards around fisheries and oceans on par with the best in the world, if not better.
Senator Petitclerc: Are you suggesting that this reporting of dead fish be removed from the bill, or are you thinking of some sort of compromise?
Mr. Kiefer: We have recommended that we leave in place the incidental kill philosophy, which is in the current legislation, in this new bill. It permits for incidental occurrences but forces an obligation to report any systemic issue that you may have relative to fish populations. I think it strikes the right balance with the incidental kill language that we recommended.
It doesn’t remove the obligation to be concerned about fish populations. It puts a strong obligation on you to continue to monitor and report things, but it is not down to the individual fish.
Senator McInnis: Thank you very much for coming.
I think I know what they’re getting at with respect to the quality of water and the water flow. I experienced years ago, where there was a hydro system and a series of hydro dams and we were fighting to get the fish upriver, and the problem was getting the release of some water. I think that’s what they’re talking about, and I understand it.
My problem with this is one of jurisdiction. I fail to see how your operation, unless it’s built on tidal waters, falls into the domain of the federal government. It strikes me that these operations, if they are upstream on freshwater, falls to the domain, in our instance, to the Province of Nova Scotia and the provinces.
I rather suspect, if you’re building a hydro operation on a river, that you would be dealing with the province that you’re building it in, and I suspect that they have certain controls, terms and conditions as to that operation. I’d like to hear your comments on that.
I’m not going to get into Bill C-69 tonight, but I happened to sit on the committee last week at hearings, and I heard Mr. McDonald from your operation of the tremendous loss of investment that has taken place as a result of that. And I’m hearing tonight with Bill C-68 that potentially there will be no additional hydro plants constructed if there are not some amendments here.
When you have these situations in legislation coming in, were you consulted in advance? Normally, politicians are not trying to figure out a way to get you. They try to do things legitimately. My experience with legislation is that it normally emanates from an interest group, whether environmental groups or whatever, or, in fact, industries such as yours that you’re looking for.
Where do you think this came from, and were you consulted at all? Those are just a few questions.
Mr. Kiefer: Great insight, senator. Certainly, when you look at water flows and water flow agreements, they have been the domain of provinces. Any hydro facility that has an impact on water flows does indeed operate under strict guidelines from the province and has to be negotiated with anyone downstream of that water flow.
British Columbia, with their Site C project, had to negotiate the water flows with Alberta in order to allow that facility to come into place and service. Those agreements are quite specific about annual flows and flows in times of distress or flooding. They cover a lot of different conditions, some of which I mentioned in my remarks in terms of different things that impact your desire to flow water.
Yes, I would agree with you that the provincial jurisdictions and regulations, if you will, around water flows are quite mature in this country and are being dealt with responsibly between jurisdictions.
In terms of consultation, I have this saying — and maybe it’s not appropriate — but just because I’m not paranoid doesn’t mean the world isn’t out to get me. It’s a joke around regulation and the source of regulation.
Canada has a terrific track record of protecting its environment. You look around the world, we have wonderful spaces, resources and lands in this country. We also enjoy a standard of living that is significantly above most parts of the world. Why? Because we know how to develop resources responsibly. That includes making economic trade-offs at times and being balanced in our approach to issues relative to development.
This country would not be where it is today without having developed the resources it has.
We need to ensure that legislation going forward has that balance in it, and that’s why we mentioned the economic considerations in Bill C-68. We mentioned them in Bill C-69 as well. I can’t imagine any project will have zero impact in developing it. There will always be some level of impact. What can you do to mitigate it and make it as little as possible? Those are great considerations that legislation, regulation and the authorities that govern it should strive to achieve. We should not be in a position of saying that we will not develop our resources, because that is to the detriment of our future prosperity.
Mr. McDonald: To build on that, we are not operating on hydroelectric dams but from an oil and gas industry perspective. I will start with the consultation question. The genesis of all of this federal and environmental regulatory review, both Bill C-69 and Bill C-68, was to meet the government’s mandate to restore lost protections and regain public trust in the overall environmental system and to the lost protections of the Fisheries Act.
Though there would be differing opinions on what protections were lost and if there are any major incidents since the last change to the Fisheries Act, to your point, Senator Campbell, I haven’t heard anything. There wasn’t a switch that turned as soon as it changed and now all of a sudden all the fish habitat has been impacted.
We have been participating actively in both the Bill C-69 and Bill C-68 consultations. In terms of the level of concern on Bill C-68 in particular, we’re starting to raise it, given the introduction of this fish habitat definition change and with the inclusion of this designated project.
Again, what we’re seeing is a challenge to get investment, and a lot of that is based on regulatory complexity. It’s definitely impacting us, and what we’re seeing is a great deal of complexity added without an improvement in the rigorous environmental performance that we have.
As with hydroelectric, our industry is recognized worldwide for our robust environmental standard. Being a former regulator of the oil and gas industry, I have direct experience with how rigorous the compliance and enforcement regulations are. As such, when we move towards these pieces, we need to move through these consultations. We have put in a number of pieces of feedback, and not all of that feedback has been accepted.
On this piece, as soon as we knew about it we raised the issue around the definition of fish habitat, yet we’re still here talking about it today and seeing if it is an issue.
Again, we need to move through the process, get these changes made, and then we can get it forward on getting investment back and start building projects in Canada. Right now Canada is getting a reputation that major projects can’t be built, and it is because of these legislative changes like Bill C-48, Bill C-69 and Bill C-68 that we’re talking about today.
Mr. Kiefer: Bill C-68, despite hundreds of submissions, the only amendment that came to Bill C-68 was the expansion of the definition of fish habitat to include water flows. Even in Bill C-69, where there were thousands of submissions, over 100 changes were made as a result of those submissions. That has not been the case with Bill C-68. It has come through pretty much as drafted, with that one exception, to the Senate.
Senator Wells: Thank you, witnesses, for appearing and presenting evidence. Mr. McDonald, you said in your submission that subclause 1(10) of Bill C-68 creates a new subsection regarding water flow and fish habitat, and that the new subclause was added by the House of Commons without adequate review and consideration of potential legal and/or operational implications. We hear that a lot.
I know you’re an engineer and not a lawyer, but can you tell me not the legal but the operational implications for existing facilities if this were to become law?
Mr. McDonald: For the operational implications, I will defer to my colleague.
Ms. Linehan: Again, existing facilities are a little unknown. In terms of water flow itself being defined as fish habitat, you would probably get into debate about areas where water is flowing that wasn’t previously defined as fish habitat and now going forward will impact it, so you would have to compensate or offset it. You would have to mitigate it, all of those sorts of things. If there was a revision or, again, not understanding how the transition of that would work with existing facilities, there are definitely implications for existing and new facilities.
Senator Wells: With that unknown, would you be in favour of grandfathering the existing facilities that were permitted under the current regulations?
Ms. Linehan: Good question. I might have to get back to you on that.
Senator Wells: Because the investments have already been made, and the power is being produced or whatever is happening is happening.
Ms. Linehan: Yes. If the scope of what we understand to be impacted doesn’t change, that would be favourable.
Senator Wells: My next question is with respect to the low bar that could be set for HADD. Because “harmful” can’t be easily defined, or it can be the lowest bar you can find, which can be harmful — the death of one fish or the speed of flow at a hydro project.
Is the issue in reintroducing HADD to the discussion that it’s a really low bar for interfering in a project?
Mr. McDonald: It gets back to the reasonableness test and standard. Our operations, under that framework, operated for many years, and people executed projects and had authorizations or undertook measures to mitigate or avoid the impacts so their projects could be built.
Yes, there is a little uncertainty to that definition but, given the historical experience of our operations with that, that would be something that we would be comfortable moving forward with, senator.
Mr. Kiefer: My only additional comment is on the HADD standard. Depending on how you define “fish habitat,” it has worked for many years in this country. Altering the definition of what constitutes “fish habitat” creates a whole different standard that HADD could implicate in terms of existing operations and new proposals. To me, that’s the dangerous ground in Bill C-68 today. Expansion of the definition of “fish habitat” now creates a new test for HADD in terms of a standard that projects need to meet.
Senator Wells: Is this a question of fixing something that is not broken?
Mr. Kiefer: I would characterize it that way. We have very good standards around fisheries, oceans and waterways in this country today. We have constructed very responsible projects under that construct.
I would reiterate that Bill C-68 does improve some things. This is not an act that should be thrown away. It needs to be modified in the critical areas we have mentioned in order to make it a good act for the country to implement and adhere to.
Mr. McDonald: In terms of fixing something that is not broken, we can’t point to any examples because nothing stands out to us where things like major issues of fish kills are ongoing. There is always room for improvement on legislation. The bill has a five-year review term, which makes sense because we might better understand things. This bill undertakes such a significant change on how these pieces will be implemented by the proponent and interpreted by the regulator, and now it is introducing legal risk. If someone isn’t aware if they will get an authorization, then when they get the authorization there could be challenges to it.
The level of complexity of the review is not really adding any environmental benefit. We are held to a very high environmental standard in all areas of operation, whether it be emissions, land usage or water flow. We need to be very mindful when we’re doing these, because that’s the Canadian way. We always want to make things better and that’s great, but we need to make sure we’re not overcomplicating things at the expense of our ability as a society to maintain and advance projects that will fundamentally improve economics and benefit communities across the country.
Senator Wells: Okay. Thanks very much.
Senator Christmas: Thank you for appearing this evening.
Mr. Kiefer, I read an article recently about ATCO and its partnerships with Indigenous groups and companies across the country, as you mentioned. I want to compliment you on your forwardness and the progress made in working with Indigenous people in Canada. It is well noted by many Indigenous people. I wanted to compliment you on that.
Mr. Kiefer: Thank you.
Senator Christmas: I want to go back to the death of fish for just a moment. We asked the witnesses from Fisheries and Oceans Canada about the death of fish. They said the prohibition on death of fish would be based on fish population health. Therefore it may differ from one area and one stock, that kind of thing.
Is that how industry understands death of fish would be enforced by DFO?
Mr. Kiefer: I would say, no, that’s not how we understand it. Legislation is challenged through the court process, not through the Department of Fisheries and Oceans. We have worked with the DFO for many years on many projects. They are very talented people. We think they are very good at what they do.
However, the actual legislation is tested in front of the courts in terms of compliance. We are seeing an increase in the level of activity associated with any project through interest groups that have concerns about specific matters but do not necessarily have a grasp of the overall implications of a project.
Our concern would be more around the ability for challenge, given the new wording in the legislation and given how specific the wording is to any fish under any circumstance. Again, I’m not a lawyer, but to me those words mean that you could find one dead fish downstream from a facility and then challenge that facility on whether it caused that single fish fatality.
That would be our concern. It is not so much that the Department of Fisheries and Oceans staff are unreasonable people or that they don’t have a good balance in their mindset, but the legislation is a legal construct within which others can challenge that reasonableness.
Senator Christmas: The interpretation you just gave is similar to a submission I have seen from Manitoba Hydro. They talked about reporting the death of any fish in any circumstance as overly onerous. That definition says that if you saw one dead fish it was a violation of the act. I’m trying to work through how that provision would be applied and interpreted. Of course, we asked the department that question. They came back and said, no, it’s meant to be more of a general population.
I just want to make note for the record that there is a scale of interpretation of “death of fish.” Maybe that’s something we, as a committee, need to look at.
Mr. Kiefer: In our suggested amendments we have included incidental death of fish as part of the definition. That makes it clear. Rather than being subject to interpretation, it makes it clear as to what you are to interpret as the death-of-fish clause.
Clarity is an important point in all legislation. Words can be misinterpreted by everyone.
Senator Christmas: Right. Thank you for providing those amendments. We appreciate that.
Mr. Kiefer: Thank you.
Senator Christmas: Mr. McDonald, I want to come back to a point you made in your remarks about the permitting of designated projects. You elaborated somewhat, but I want to give you the opportunity to elaborate further. Can you make it clear why CAPP is looking for more clarity on the designated projects?
For instance, I have heard that clarity would be added if there were a list of designated projects. Do you share that view? How would you want to achieve greater clarity with designated projects?
Mr. McDonald: Having a list to understand the expectation or the types of projects subject to this would be helpful. Would it answer all of the questions? I would say no. In terms of this piece, we’re looking for the outcome that the designated project provision is really providing here. Is it improved? Is there less habitat destruction? We’re interpreting it that, yes, we would have designated projects. Folks who might not have required authorizations in the past may now require permits? So that’s one factor.
The other factor is that they might be requiring permits but not really impacting fish habitats. We’re going through this regulatory, administrative burden on some regulatory process with the department and with proponents for a limited or null improved environmental outcome.
Maybe Janice would want to build on that as well.
Ms. Linehan: I agree. As I mentioned earlier, we are questioning where some of these changes get us in terms of environmental improvements and/or decreasing regulatory burden.
When you look at the designated project provision, right now it requires a project that will be designated, and likely oil and sands mines would be on the designated project list. We impact fish and fish habitat. But right now and previously, we could do things with low-risk activities like clear-span bridges, culverts, beaver dam removal, and those sorts of things didn’t all specifically require separate permits.
Right now, the understanding — and, again, this is an interpretation of how this would function — is that we would require permits for all those sorts of separate activities. Again, in terms of implementation, it just doesn’t seem to make sense. Then add the fact that designated projects aren’t allowed that mechanism for codes of practice or what previously existed as operational position statements for those low-risk activities. It actually excludes designated projects from being able to utilize those, which has to be an unintended consequence in my mind. That doesn’t make sense.
Mr. McDonald: If it is not a designated project, those operations would be able to use the codes of practice and wouldn’t require a permit.
Senator Christmas: One general question. Mr. Kiefer had mentioned that apart from those concerns that he had mentioned, he is supportive overall about this bill and this act. Would CAPP share the same view, apart from those areas that you are very concerned about? How do you feel about the rest of it?
Mr. McDonald: In terms of the act itself, there are a lot of positive pieces in there: the ability to introduce amendments to permits, which wasn’t there before; and the application and managing of a credit system where folks can now do this. There are a lot of pieces in there that are positive.
However, as it stands, and as written right now, with these pieces that now introduce this litigation risk and administrative burden for little benefit, overall it is challenging. If those things were addressed through some targeted amendments, we wouldn’t have concerns with this thing moving forward.
Ms. Linehan: Again, one of the benefits is that it formally recognizes codes of practice and standards, until we realized that the designated project provision basically excludes those projects from utilizing that. Again, that was a positive, but based on the way it’s written right now it’s really not for major projects.
The Chair: That clears all that up really well. Senator Campbell, see if you can straighten it out for us.
Senator Campbell: My question was answered by Senator Wells’ question. I think to sum it up, in a couple of instances here we have a solution looking for a problem. I think that’s something that we, as a committee, are going to have to deal with, specifically with HADD and the death of fish. I thank Senator Wells. As always, he is ahead of my game. I thank you again. Thank you, chair.
Senator McInnis: You mentioned earlier about the coming into force. I read the act a few weeks ago, but I think the proclamation clause has some sections in it which would mean that those would come into force later on. However, with those that are not referenced, because it’s silent, my understanding is that when the bill receives Royal Assent, it’s law. I don’t see the proclamation clause right here, but I think that’s what it says. In other words, you look at it sometime at the end of June.
Mr. McDonald: In terms of the coming into force, there is a clause in the bill that enables the Governor-in-Council to identify the date where those other clauses come in. Again, I haven’t undertaken to the fullest every clause on that list, but the coming into force clause gives the Governor-in-Council that flexibility.
If we’re looking at that bill as a whole, right now we’re looking for any regulations that need to be changed. One thing we’re looking for is having clarity on the wording, and before the bill comes into force we want to see those regulations come in as a package. You don’t want the bill coming into force without the availability of those regulations. It will give more uncertainty to those who need to meet it and more uncertainty to the department who has to administer it. If the consequential amendments to the other acts and regulations are not available, it should at least be halted until those things are complete, in our view.
Mr. Kiefer: We would support that as well. It’s the clarity that needs to come into force.
Senator Gold: I have a comment for the benefit of the committee and the witnesses. As I read the coming-into-force provisions, it provides that those clauses relating to the new project permitting process are those that will only come into force on a date to be fixed by the Governor-in-Council, which would give the department time to do the work to develop the policies — which I think everyone wants to see — to provide greater clarity to the impact of this act on projects and the like. That’s how I read the act. Those provisions won’t come into force until policies and standards are in place. Thank you, chair.
The Chair: I want to thank our witnesses for the great discussion. There were a couple of things that were asked of you. As I said earlier, if you could find the time to send the information into our clerk, that would be appreciated. Furthermore, if there is something that you think about after you leave that you wish you had told us, please send it along to our clerk as well as we continue with our work.
We will begin our second panel. We have two witnesses who are appearing before us by video conference.
I will ask our witnesses to introduce themselves and who they represent. We will then have opening remarks and some questions from senators.
Justyna Laurie-Lean, Vice President, Environment and Regulatory Affairs, Mining Association of Canada: Justyna Laurie-Lean, I’m with the Mining Association of Canada.
Pam Schwann, President, Saskatchewan Mining Association: Pam Schwann, President, Saskatchewan Mining Association.
Brady Balicki, Lead, Environmental Science and Risk Assessment SHEQ, Compliance and Licensing, Cameco Corporation, Saskatchewan Mining Association: I’m Brady Balicki with Cameco Corporation.
Ms. Laurie-Lean: Thank you, senators, for this opportunity to share with you the views of the Mining Association of Canada on Bill C-68.
In our written submission, we highlight three issues: one, the House of Commons amendment that would deem characteristics of water flow to be fish habitat; two, the impracticality of the designated projects provisions as currently drafted; and, three, the importance of careful preparation for implementation prior to the amendments coming into force.
We were encouraged by the statements of Senator Harder and Minister Wilkinson that the government is open to amendments on water flow and designated projects.
MAC’s concern about the water flow amendment centres on the wording of proposed subsection 2(2), which is difficult to interpret in the context of the habitat provisions of the act.
We do not question the intent of the amendment. However, we believe that the wording would lead to years of confusion and litigation, without contributing to improved protection of fish habitat. The quantity, quality and timing of water flow are already within the scope of the Fisheries Act.
Since you will hear concerns with the water flow amendment from many witnesses, I will focus my remarks on the designated projects provisions. As currently worded, they are unworkable, creating administrative burden without enhancing protection of fish habitat. To explain, I would like to share with you an illustration of the suite of instruments available to allow exceptions from the prohibitions in proposed subsection 34.4(1), “Death of fish,” and subsection 35(1), harm to habitat. You should have received these handouts.
This illustration is based on the presentation by Fisheries and Oceans Canada, and it visualizes how the instruments under the act are graduated so as to minimize unnecessary burden for proponents and for the department. This approach promotes avoidance of harm. A proponent could avoid the time and expense of project-specific authorizations by following any relevant codes of practice or regulations.
This approach also encourages proponents to choose, where feasible, lower impact designs, such as a clear-span bridge rather than a culvert.
The new designated projects provisions depart from this concept by creating a new prohibition. In contrast to the prohibition of harm to fish or habitat in subsections 34.4(1) and 35(1), the designated projects provisions rest on a new prohibition in proposed subsection 35.1(1) of all works, undertakings and activities that are part of a designated project regardless of potential harm. Any work, undertaking or activity that is part of a designated project would not be able to proceed without a permit. They would not be able to proceed based on any of the other compliance instruments such as standards or regulations.
For example, a clear-span bridge can be installed, maintained and removed without affecting fish habitat. There are recognized best-management practices for how to do so, and an individual would be able to proceed with maintenance work on a clear-span bridge based on such a standard. But a mining company would require a permit if mining were a designated project under the Fisheries Act.
There is no reason to believe that a mining company would be less able than an individual to follow a standard. By creating such unnecessary administrative burden, this provision would reduce the incentive to avoid harm, since the administrative burden imposed on designated projects would not be related to the degree of harm that may occur.
We urge you to amend Bill C-68 to limit the requirement for permits for designated projects to only those works, undertakings and activities that are likely to harm fish or fish habitat. This can be achieved in several ways. The option we propose in our submission is to provide for the minister to designate which works, undertakings and activities within each designated project would require a permit. The effect of such a change would be to turn the designated project provisions into a mandatory project review.
In addition to the above changes, it is essential that the exception in subsection 34(3) be removed so that all provisions of the act would apply to all works, undertakings and activities regardless of the project they are part of. Removing this exception would allow common, low-impact works, undertakings and activities that are part of a designated project to proceed based on the act’s other compliance instruments such as standards or regulations.
Turning now to preparation for implementation of the amended act, our concern is informed by our experience with previous changes. Most of the fish and fish habitat protection instruments we just discussed already exist under the current act but have not been operationalized. The department has relied almost exclusively on project-specific reviews and authorizations. These are time-consuming for proponents and the department.
In the absence of standards, codes of practice and regulations, the department will be flooded with project-specific requests for reviews and authorizations. Demand will exceed the department’s recently increased resources. The result will be growing complaints about delays and overwhelmed officials struggling to deal with too many applications without the capacity to focus on promoting compliance and protection of fish and fish habitat.
It is in the best interests of fish, fish habitat and Canada’s economy that the department take the necessary time to prepare for coming into force. Thank you.
Ms. Schwann: I would like to thank the committee for the opportunity to speak to the Saskatchewan mining industry’s perspective on Bill C-68. I would like to introduce you to my colleague Brady Balicki from Cameco, who is here with me today.
Our association represents over 35 member companies that explore for and produce minerals including potash, uranium, coal, gold and other minerals in Saskatchewan. We have over 20 active mines throughout Saskatchewan as well as corporate offices in Saskatoon and Regina.
Mining and mineral exploration are important to Saskatchewan’s economy, employing over 27,000 people in rural, northern and urban communities and purchasing more than $1.5 billion annually from Saskatchewan businesses and contributing over $1.7 billion in provincial, federal and municipal taxes in addition to supporting community activities.
We have a particularly successful and important story we want to share with you about the importance of the mining industry in northern Saskatchewan. At the start of 2018, approximately one in every five jobs in this broad and sparsely populated region was related to mining. During 2017, the most recent year we have data on, the northern mining industry purchased $261 million from companies owned or in joint venture with Indigenous economic development agencies or Indigenous entrepreneurs.
At northern Saskatchewan mine operations, 41 per cent of all workers are of First Nations or Metis heritage, one of the highest rates of Indigenous employment in Canada and earning an annual payroll of $89 million. Through the employment and business participation, alongside educational and cultural support, the mining industry in northern Saskatchewan is a model of economic reconciliation with Indigenous peoples.
The SMA and our members have been actively engaged with the federal government during the review of Bill C-68, providing briefs to both the House of Commons Standing Committee on Fisheries and Oceans and, most recently, this committee. This is an extremely important issue for our industry, particularly in northern Saskatchewan.
The SMA works closely with our counterpart, the Mining Association of Canada. We are in support of the provisions they identified. There is quite a bit of consistency between our presentations.
The SMA is proposing three amendments and one recommendation we believe are crucial to the continued success of the Saskatchewan mining industry. First, remove the term “water flow” from the definition of “fish habitat”; second, remove the term “water frequented by fish” from the definition of “fish habitat”; and third, remove “designated projects.”
Before I outline some of the rationale for these amendments, I would like to reaffirm our members’ ongoing commitment to the protection of fish and fish habitat. Our concerns with the proposed act relate to how some of the changes would set aside decades of jurisprudence and operational practices. In our opinion, the proposed act would prompt numerous court challenges and years, if not decades, of uncertainty for DFO, industrial and agricultural operators, as well as rural and urban municipalities, further eroding investment in Canada.
A number of proposals to amend the current act appear to be trying to address perceived gaps in the protection of fish and fish habitat. In our members’ experience, the gaps were not in the act but rather in the lack of regulatory support documents, department resources and education that are necessary to ensure the provisions of the act operate as intended.
In addition, there is an ongoing need for the equitable enforcement of the act’s provisions across all sectors — municipalities, forestry, agriculture, recreation — and not just the focused attention on the mining sector.
In our 2016 brief to the House of Commons standing committee, we highlighted this issue: The Saskatchewan Mining Association believes that the closure of district offices was one factor in the perception that protection for the fisheries resource was lost. The SMA would support the re-establishment of district offices versus the current regional areas of expertise, as having access to local DFO officials who are knowledgeable about Saskatchewan water bodies, industries, Indigenous communities as well as the overall needs of the fisheries resource would improve both enforcement of the act as well as public confidence.
I will move on to our specific amendments. First, with respect to the term “water flow,” it is our opinion that subclause 1(10) was added without adequate review or due consideration by the House of Commons with respect to the legal and operational implications of this substantive change. This provision would result in new and significant regulatory uncertainty and undermine the functionality of the fish habitat provisions of the act. Our views on this matter are supported by a number of sectors. The SMA submits that the proposed addition of “water flow” to the definition of “fish habitat” is not needed, as DFO already considers water flow to be a characteristic of fish habitat under the current act. This is the reason that a number of existing operations are required to maintain a minimum year-round flow based on the specifics of the receiving water body.
Therefore, our recommendation is the removal of subclause 1(10) of Bill C-68, which would remove the term “water flow” from the definition of “fish habitat.”
Our second amendment is with reference to the proposed addition of the term “water frequented by fish” into the definition of “fish habitat,” along with the proposed definition of “harmful alteration, disruption or destruction of fish habitat” that significantly and unnecessarily broadens the scope of the act. Along with the proposed addition of “water flow” mentioned above, this proposal further jeopardizes years of jurisprudence and operational practices, and would unnecessarily place further administrative, operational and financial burdens on industry, municipalities and DFO. By including “water frequented by fish” in the definition of “fish habitat,” locations that are not essential for fisheries’ life cycle processes would become subject to the act, even if those locations only experience water every 5 to 100 years.
A few years ago, a local TV station ran a story showing small fish swimming past a farmer’s feet as he stood ankle-deep in water in the middle of one of his flooded fields, a situation you’re all too familiar with right now in Ontario, Quebec and New Brunswick. We’re thinking of you here. We don’t have the water issues you’re having right now.
A similar situation also happened in Richelieu, Quebec, where DFO officials told farmers that their newly flooded fields were deemed fish habitat and they might be subject to fines if they killed fish while pumping out their flooded fields. I’m sure it was never the intention of the act to impede the agricultural community from conducting their regular work on essential agricultural lands because of a flood event, but that is what can happen if wording in the act is loosely defined or not aligned with the intent of the bill.
Including “water frequented by fish” in the definition of “fish habitat” could have similar unintended consequences. Our recommendation is the removal of the phrase “water frequented by fish” from the definition of “fish habitat.”
The third amendment is with respect to designated projects. You’ve already heard from my colleague Justyna from MAC with respect to the designated project provisions. I would like to provide an example that may help explain our concern with adopting this term. We understand the drafters may have been trying to mirror the terminology used in Bill C-69 and the impact assessment act, but since these acts are essentially as similar to one another as apples are to oranges, using this term in the Fisheries Act will inadvertently require permits for works, undertakings or activities that would never require approval had they not been part of a designated project.
The example I would share involves routine culvert maintenance. In this scenario, routine culvert maintenance at a roadway that is not part of a designated project would not require a permit and could be completed immediately, in accordance with established codes of practice established by DFO, which would minimize potential impacts to fish and fish habitat. In contrast, that same activity completed on a roadway for designated projects would require a permit obtained through a complex process, subject to administrative and regulatory timelines instead of using the established codes of practice that would accomplish the same outcomes of a permitting process in a more efficient and effective way.
As the outcome is the same for both scenarios, the introduction of the term “designated project” serves no practical purpose and represents another impediment to projects proceeding in Canada. Our recommendation is the removal of the designated projects provisions.
With respect to our recommendation on transition times, our experience with the 2012 amendments to the act emphasize that planning for and executing the transition to the amended legislation is critical to avoid confusion and the imposition of unfair costs on proponents. Although not specifically identified as an amendment in our brief to this committee, the SMA strongly encourages the committee to amend the coming-into-force provisions of the Fisheries Act to be no earlier than one year after Royal Assent. This time could be used by DFO to develop an implementation plan that includes adequate guidance and training for both DFO staff and the regulated community prior to the coming into force of any amendments. When amendments to the Fisheries Act were last made in 2012, DFO personnel were being trained in the new provisions at the same time as stakeholders. Clearly, this is less than an optimal situation.
I’d also like to make the committee aware that DFO has identified to stakeholders that government is not planning to allow a consultation period — that is no Canada Gazette, Part I review period — for proposed changes to the applications for authorization under paragraph 35(2)(b) of the Fisheries Act regulations. This lack of consultation is inconsistent with the federal government’s platform of a more transparent government. This is also deeply concerning, as the Senate has not yet completed its study of the act. Should you recommend any amendments to the proposed act, including the three we have identified, this will have cascading implications on the development of the regulations and related policies.
As we observed by the shortcomings by the 2012 rollout, it is critical that there is alignment among the act, regulations and policies. Government must take the necessary time to develop appropriate regulations, policies and guidance documents that would support the successful implementation of the revised act, including providing for consultation opportunities afforded through Canada Gazette, Part I reviews.
I’d like to close by thanking you for your study of Bill C-68. Brady and I look forward to answering any questions you may have.
The Chair: Thank you. As usual, we will take our first question from our deputy chair.
Senator Gold: Thank you, witnesses, for your testimony. It was very helpful.
This question is for both of you. I understand the concerns you have expressed about the coming into force of the bill. The concern is that it may come into force when the government has not yet implemented the necessary policies, standards and codes of practice applicable to non-designated projects. It will cause uncertainty and potentially stall things for the proponents of projects.
As I read the bill, the end of the bill says that the clauses on the new project-permitting process would only come into force on a date to be fixed by the Governor-in-Council. That would give the department time to do all the work that’s necessary before the system comes into force. Could you comment on that and whether that allays some of your concerns about this aspect of the bill?
Ms. Laurie-Lean: No, it doesn’t allay the fears. The concerns are whether, regardless of the water flow provisions in subclause 1(10), the definition of “fish habitat” has been changed by adding “water frequented by fish.” A number of other changes have been made, upon which there is no policy and guidance. The department is staffing up right now. They have new hires. They will require training. There is not a lot of time to train and they can’t really start training until after the bill receives Royal Assent and the regulations are developed.
I spoke of a complex pyramid or a refined pyramid of compliance instruments, but it all depends on populating and operationalizing that pyramid, and right now it is not there. Even ignoring the designated projects, everyone would have to apply for an authorization or review. There are none of the codes of practice, standards, regulations in place. If you don’t have those in place, everyone is forced to apply for an authorization. Based on past experience under the current act, we believe the department does not have enough capacity to process authorizations as thoroughly as merited.
As you can imagine, they will have lots more requests for authorization coming in. They did receive more resources but not so many that they will sit around and wonder what to do. They will be under so much pressure to process the ongoing applications that they will never have time to develop the regulations, codes of practice, et cetera, to make life easier and reduce the flow. That’s the concern.
Senator Gold: I want to make sure I understand your answer. Your answer would be the same even if — and I underline “even if” — amendments were introduced and passed that would allay your concerns about water flow and fish habitat? Your concerns would still remain?
Ms. Laurie-Lean: Yes. If you look at our evidence given when the House of Commons reviewed the current act and our submissions on Bill C-68, our number-one issue has always been making sure that you plan the implementation and operationalization and you put things in place to manage the workload. There are instruments right now that have not been operationalized because I don’t believe the department had enough capacity to do that. It takes time and people to develop regulations. You have to consult. If you don’t have that, you will never find the time when you’re barely keeping up, and then people start yelling.
The last transition was painful. Our members got caught in a situation where they had a completed application — and these are complex applications — into the department. They were assured it was fine as is. On the day of coming into force, they got a phone call to say, “Sorry, you have to rewrite your application based on the new language in the new act.”
So they did that. It took several months. Then they heard back, “No, sorry, you have to recalculate everything. It’s now different water bodies. You now have to account for the productivity of the fisheries.” How do we do that? They replied, “We don’t know; we haven’t worked that out yet.”
That is what we want to avoid. That is a real problem.
Senator Gold: Thank you.
Mr. Balicki: I would agree with what my colleague Justyna just mentioned. Following those previous changes, there were a lot of challenges faced by the industry as far as regional inconsistencies. That was a direct result of lack of transitioning and policy and supporting guidance that needed to be developed to support the change.
An extra year or more of time should be provided to help the department, with stakeholders in proper consultation, develop the appropriate guidance and policy. That will lead to better implementation of a revised act. It will ultimately lead to more certainty for the regulated community and enhanced environmental benefit.
Senator Poirier: Thank you all for being here tonight.
My first question is for the Mining Association of Canada. At any time, if the witnesses on video conference want to step in, please feel free.
In 2017, mining contributed $97 billion to Canada’s GDP. Do you think Bill C-68 will impact the development of future mining projects that contribute to the GDP?
Ms. Laurie-Lean: I couldn’t predict for you exactly by how much. It does depend on how good a job you do in reviewing this bill and then how good a job the government does in implementing it. It’s the aggregate of all the regulatory changes that will present a challenge. Even well-intentioned changes, changes for the better, can cause uncertainty. If the changes are not for the better, if people perceive increased gumming up of the decision-making process, that will further deteriorate the circumstances.
Investment in our sector has been going down. Initially, it was seen as a response to the commodity cycle when it went down earlier in the decade. Then commodity prices rebounded. We saw a big upswing in other mineral-producing countries, but we did not see the same upswing here in Canada. We are losing the relative competitiveness. It is not any one thing or any one government. It is all of them taken together that have created this atmosphere that Canada is no longer as competitive as other jurisdictions.
This bill, if it’s passed as is, would probably contribute to further deterioration. If those critical amendments to make sure it’s workable are passed, and if the department actually implements it as intended, with a graduated administrative burden commensurate to the level of risk in a reasonable fashion, then I think it would have neutral impact for our sector in terms of competitiveness.
Ms. Schwann: I support what Justyna said. We’ve been through about 10 years of regulatory review on some major acts and regulations. That does have a cumulative effect on whether investors will be investing in Canada or looking elsewhere. It’s the uncertainty and the timelines that are critical. There has been a lot of uncertainty in how we can move projects forward in Canada and in Saskatchewan as well.
Senator Poirier: On the designated project, it seems that this new clause is more technical but will also bring unnecessary burden, if I’m hearing right. Could you give us a concrete example of a project being approved pre-Bill C-68 and what it would look like with the new clause after Bill C-68? Can anyone give us an example?
Ms. Laurie-Lean: There are a number of projects that have proceeded. In the case of the Fisheries Act, it applies not just to new major projects. It is the ongoing work of facilities where they need to build a new water crossing or to expand their facility. A recent example raised quite a bit of concern for us; a mining project needed to divert part of a highway to maintain safety. They were asked to get approval under the Fisheries Act for moving the highway because they were moving the drainage ditches.
Senator Poirier: How would that be different after Bill C-68?
Ms. Laurie-Lean: Under Bill C-68, with the designated projects provisions as they are written now, we’re not sure that mining project could go ahead if it were a designated project. We are not sure whether existing operations could continue. We wouldn’t know whether changing a roll of toilet paper in the corporate bathroom is considered an activity that is part of the project. Does that mean it requires a permit? We were advised by DFO that a constitutional lawyer considering the constitutional heads of power would determine that changing toilet paper or putting a flag up a flagpole does not impact fish habitat, therefore it would not fall under the Fisheries Act.
Our members do not employ constitutional lawyers in Nunavut. They are just not that handy, and I can’t imagine having to make that decision every time. It’s just the way it’s written, it’s difficult to figure out how it would work.
Senator Poirier: Thank you. Do you want to add anything?
Mr. Balicki: I think we agree with the examples that were provided. Another one that comes to mind for me would be a culvert associated with a new major project. For example, under the old system, if you had developed a mine and there are associated roads or bridges, the repair or maintenance of the bridge itself would not necessarily require a permit. Under Bill C-68, if that bridge was associated with your mine, and there is maintenance that has to be conducted, there is a chance that the proponent would have to get a permit to go out and complete works that do not affect fish or fish habitat. I think that adds to the administrative burden, both on the proponent’s side and the department’s side.
Senator Poirier: Thank you.
Senator McInnis: Thank you very much for being here. I asked this question of the previous panel and I didn’t get an answer. Where do you think the idea of the amendments came from? Are there interest groups out there looking for these? You didn’t ask for them, obviously.
Ms. Laurie-Lean: We did not. I don’t know where the designated projects came from. I am not sure. It may have been a well-intentioned idea that it would align the Fisheries Act with the impact assessment act, but they are two very different acts and operate differently, so I don’t know whether someone simply didn’t think it through.
The water flow amendment was put forward by a number of environmental groups but in a different format. This particular wording, I believe, was developed by the House of Commons drafters, because I have not seen that wording in any of the submissions from other organizations.
I believe the move from serious harm back to HADD was sort of a response to the perception as to what “serious harm” meant and so on. The adding “water frequented by fish” to the definition of fish habitat, we have not been able to get a satisfactory answer from the department as to what the purpose of that was or what it does.
Senator McInnis: This amendment is going to really hit the municipalities of this country. If they want to replace a culvert, or anything that at some point in time may have seen a fish, it applies. They are going to have to have permits for this.
Ms. Laurie-Lean: If they are a designated project, yes.
Senator McInnis: Exactly, yes. It’s not just the mining.
Ms. Laurie-Lean: No.
Senator McInnis: This is going to have a real effect across the board. If you weren’t consulted in advance, why would you expect you’re going to be consulted prior to regulations?
Ms. Laurie-Lean: We are hoping we will be. There has been a discussion paper on the application for authorizations, but the most recent version said they would proceed directly to Canada Gazette Part II. We are concerned about that, because it means we would not see the actual regulatory language before it is final. It raises concerns that the department is planning to rush implementation. That would not allow enough time to consult on, develop and publish guidance, and make sure everyone has some input.
I’m not trying to criticize officials; I think they are excellent. They are hard-working and competent, but anyone can make a mistake. You should not create policy, guidance and regulations behind closed doors without consulting and engaging with those affected, interested or being regulated. And they would definitely not have time to train their staff out in the field if they rush coming into force.
Senator McInnis: Yes. They want to get back to pre-2012. That’s the intent here. I asked the question of the minister as to the logic. I understand why they wanted to, because in 2012 it was commercial, Aboriginal and recreational fisheries. It was narrow. So they want to go to a wider area, but they are adding things on to that that make it injurious and, quite frankly, cumbersome to enforce, not just a matter of time to train. I just think it’s going to be onerous, and I can see a great deal of litigation coming as a result of this. Do you have a comment?
Mr. Balicki: Yes, thank you. Just to add to your question, which is a very good one, I think a lot of this stems from a perceived loss of protection, and specifically with the flow amendment, flow is already included under the existing act. In fact, I was part of an environmental assessment implemented by the Department of Fisheries and Oceans in 2012 that required the maintenance of a minimum flow in a creek that could potentially be influenced by the mining operation. So the ability of the department to enforce conditions on flow has already existed, and there doesn’t need to be an amendment in order to satisfy that requirement this time around either.
Senator McInnis: Thank you.
Senator Campbell: Once the act is passed, I’m concerned about this issue of resources and DFO being able to develop regulations. You were commenting on that. Could you give me a little more insight into that? Do you think they are going to have to hire a whole bunch of people to be able to do this, or is it a matter of training the, I assume, thousands of people who work in DFO?
Ms. Laurie-Lean: I don’t believe it’s thousands. They had a very significant cutback around 2012. We’re not part of the department, but the impression was that they had only enough staff to administer the workflow that they had and not enough staff allocated to developing the instruments, operationalizing codes of practice or standards that would enable low-impact projects or activities to proceed without having to seek a site-specific authorization.
In the last budget they received a considerable increase in resources, and we see advertisements for hiring positions in DFO regional offices. But that won’t be enough if the changes brought by the act result in an increase in applications for authorizations and they are stuck doing the same thing, processing routine applications for low-impact projects, in such numbers that there will not be enough spare capacity to work on the codes of practice, regulations and so on.
If they did it the other way and took the time now and used those extra resources to develop these instruments for the routine items like culvert maintenance, clear-span bridge installation, those sorts of things, things that are of interest to municipalities and farmers and transport, that would cut out that big, fat bottom of the pyramid of numerous small projects that have little or no impacts. You would then have improved protection of fish habitat, because people would have instructions on how to do it correctly. Then you would have spare attention to work on those complex projects with significant impact where you do require an authorization.
Senator Campbell: To all the people on the panel, I suggested to the last panel that this was a solution looking for a problem when it came to HADD and fish habitat.
Does anyone on this panel have any idea why we’re seeing these changes in these amendments and in this act in particular? So far, I haven’t heard any legitimate reasons for it. It doesn’t make any sense to me. Do you understand it?
Mr. Balicki: That is another good question, and I think it ties into my previous point on the perceived loss of protection. In our opinion, the changes made in 2012 broadened the scope of the act. In fact, the mining industry tends to fall more on the risk-averse side. When you changed it to the “serious harm to fish” provisions, that actually resulted in a few more challenges for us, compounded with the fact that we lost some regional staffing in Saskatchewan here.
When you’re looking at changes to the terminology, as you say, it’s not necessarily a loss of protection. It’s more in how it’s interpreted by staff across the country. So the increased training, the increased policy and guidance and consulting with stakeholders helps to minimize the challenges the industry faces. Overall, it helps to increase the compliance and environmental benefit.
Senator Campbell: Who perceives this? You said somebody perceives it. Who are they? Who perceives that this act isn’t good enough? Is it the government? Is it DFO? Clearly mining doesn’t perceive it and oil and gas doesn’t perceive it. ATCO doesn’t perceive it.
The last panel agreed there were some good things in this act, but there are also perhaps some really bad things in this act that we need to address. So who do you think perceives it?
Ms. Laurie-Lean: I don’t think that’s for us to answer, Brady, unless you want to. You would have to look through the testimony that was received by the House of Commons in their review. We are focused on an act that achieves the government’s objectives and is workable for us.
Senator Campbell: If this act passes, as it is, you will have problems.
Ms. Laurie-Lean: Correct.
Senator Campbell: I need to understand where this is coming from. I have no idea. But somebody clearly thought it important that these be in here, and I’m not hearing them.
Senator Gold: I’m going to change the subject a bit and take advantage of your expertise and experience to get your views on part of the bill that hasn’t been the subject of much discussion, much less testimony.
This has to do with alternative measure agreements. These are contemplated in clause 47 of the bill, which would introduce new sections into the act. Alternative measure agreements are described as agreements that are entered into between an Attorney General, either federal or provincial, and an alleged offender — somebody who has violated the act — to provide an alternative to a potentially long court process for persons charged under the act.
I want to know, from an industry perspective, do you have experience or could you comment on the advantages or disadvantages you see of this new measure? Fisheries and Oceans Canada has stated that the use of these alternative measure agreements will reduce costs and repeat offences. Do you have any comments on that view?
Ms. Laurie-Lean: Not really. By and large, as an association we don’t generally discuss enforcement. We aim for 100 per cent compliance with the letter and the spirit. That’s possibly why we experienced 2012 differently from everyone else. We actually had to apply for more authorizations than before. I’m sure everyone would hope they are not a repeat offender. I have not been part of any discussion about that.
Senator Gold: Thank you. I wonder about our guest from Saskatchewan.
Ms. Schwann: I would say that is not something we looked at either, because we are targeting compliance and are in compliance. It’s not something we focused our attention on as much as the other three requests that we had.
Senator Gold: Thank you.
Senator Christmas: This question is for whoever wants to address it. We recently received a brief from the Forum for Leadership on Water. It proposed some alternative wording aiming to address the uncertainty about the definition of water flows. They indicated in their brief that they had met with a number of industry associations to discuss this issue, and I have had people call me saying they have talked to industry associations about the whole issue of water flows. Have you seen any alternative language to this question of water flows? If so, what are your thoughts about developing a broader definition or interpretation of fish habitat?
Ms. Schwann: We haven’t seen any alternative definitions of water flow. We believe that water flow is adequately captured by the act. We don’t see any need for any expansion that may change the current regulations or operating procedures.
Senator Christmas: Thank you.
Ms. Laurie-Lean: It’s going to be a complicated answer. Sorry.
In terms of pure concern level, that FLOW alternative amendment would be considerably easier to interpret. So we wouldn’t cause that kind of gridlock of confusion for 5 to 10 years. From that perspective, it is an improvement.
However, as already pointed out, the necessity and so on, but also the fact that it ties itself to the water frequented by fish. While MAC has not asked for removal of that, partly out of trying to respect the government’s wishes but also to focus on the most critical amendments, that phrase we are concerned about has grown over time. The bill was tabled in February 2018, and the department has not yet explained to us what that addition actually does.
We’re advised by lawyers that when you add language to an existing definition, it has to mean something different from what the remaining language meant. It would mean adding “water frequented by fish” that is not necessary, directly or indirectly, to the life cycle of a fish. So what is that? What water frequented by fish would you be adding that would be unnecessary? That is confusing, and why would you add that? If you tack the “flow” reference to that “water frequented by fish,” we get nervous. Does that mean only the flow in the water frequented by fish that is not necessary to the life cycle of a fish, or would that now apply to all of it?
As Senator Campbell said, it’s a hammer looking for a nail. It’s difficult to interpret what it would mean. Whenever there is that kind of uncertainty it makes us nervous, but it is less difficult to interpret than as subclause 2(2) is framed right now.
The final thing I would mention is that as soon as that amendment was passed by the House of Commons, we wrote to DFO. One of the questions we posed was: Water quantities are already managed by provinces. Water quality is managed, by designation, by Environment and Climate Change Canada. What mechanisms would you put in place to ensure that there is coordination so we are not squeezed between two masters, potentially with conflicting instructions? We never received a response. So without that plan by DFO to manage quantity and quality of water flow in coordination with other parties that are already occupying that regulatory space, we fear we would end up being told, “No, you go tell them to do the other thing.” That’s an uncomfortable place where we don’t want to be.
Senator Christmas: Thank you.
The Chair: I want to thank our witnesses for adding to our discussion. As I said to previous witnesses, if there is anything that you want to send along to us after this afternoon, feel free to send it to our clerk, especially any proposed amendments you may have for this piece of legislation.
Before I welcome our next panel, I want to advise the members of the committee that, as most of you know, we are working on a timeline here, and we have received amendments from several of our witnesses over the past number of weeks. The clerk and analyst have been compiling those amendments, as we did with Bill C-55, so we have a package to deal with when the time comes. We have a fair number of amendments, as you would understand, from the witnesses who have presented. We will be receiving some more, as we did today.
The reason I am bringing this up is that if any senator has an amendment they want to bring forward, they need to get it to the clerk as soon as possible because we have to run it by the law clerk to make sure it has proper wording, not interfering with some other piece of the legislation and that we don’t have duplication.
As an example, with the witnesses today there was a lot of symmetry, so some of the amendments are the same. I wanted to let you know that certainly by next week — if possible, early next week — if any senator has an amendment, bring it forward. We realize on Bill C-55 we only had three or four possible amendments and ended up spending a fair bit of time on Bill C-55. I think we will have many more amendments on Bill C-68. So this is my last call for amendments from senators around the table, and we will get to a point where we won’t be accepting them. We can accept them up to the day we have the meeting, but I’m trying to get a push on here.
We just wanted to let everyone know that for anyone who sends an amendment to the law clerk, that they are also giving the law clerk permission to share the amendment with Chantal. Also, they can have them as part of the package that we’ll be dealing with here when we receive all the amendments together.
Chantal tells me it stays confidential. I believe her, so I hope you do too.
With that, we will begin our last panel and welcome our two guests . We have Terrance J. Paul, Chief, Co-Chair, Portfolio Lead for Fisheries; and we have Bruce H. Wildsmith, Legal Counsel.
I understand Chief Paul has opening remarks. Thank you for taking the time to join us this evening and for coming in a few minutes early. After your opening remarks, we will have questions from senators.
The floor is yours.
Terrance J. Paul, Chief, Co-Chair, Portfolio Lead for Fisheries, Assembly of Nova Scotia Mi’kmaq Chiefs: First of all, good evening, Mr. Chair, members of the committee, fellow witnesses and guests. Thank you for having us here today to discuss the implications of Bill C-68 on our fisheries. I represent the Mi’kmaq of Nova Scotia. As the co-chair of the Assembly of Nova Scotia Mi’kmaq Chiefs, portfolio lead on fisheries and as chief of my own community, Membertou, I would like to acknowledge the Algonquin Nation on whose traditional and unceded territory we gather today and who have been living on these lands since time immemorial.
As you may already know, the Assembly of Nova Scotia Mi’kmaq Chiefs consists of the chiefs from all 13 Mi’kmaq communities in Nova Scotia. Together we work with delegated authority to oversee any issues that are common to all of our communities, and today’s issue is a very good example of that. What brings us to the Senate committee today is our concern with Bill C-68.
First, this bill has a serious flaw in its definition of “Indigenous fisheries.” As defined in this bill, the concept of Indigenous fisheries is limited to those who fish for food, social, ceremonial and subsistence purposes only. With this definition, Mr. Chair, Bill C-68 continues to infringe upon our constitutionally protected rights to harvest and sell fish to support a moderate livelihood. We have been waiting nearly 20 years, since the decision in the Marshall case in September of 1999, for the implementation of our right to harvest for a moderate livelihood.
Clause 9 defines an Indigenous fishery as fish:
. . .harvested by an Indigenous organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Indigenous organization.
This definition of “Indigenous” fishery does not recognize and protect all fisheries unique to Indigenous people. That severely undermines the reconciliatory purpose of Bill C-68.
While Aboriginals will be able to participate in commercial and recreational fisheries, along with everyone else under the same licences, rules and regulations, this definition, identical to the Aboriginal fishery definition introduced in 2012, continues to deny us the opportunity to have any other fishery based on our constitutionally protected Aboriginal or treaty rights.
For Mi’kmaq specifically, this means that we will continue to be prohibited by the Fisheries Act from engaging in our rights, as affirmed by the Supreme Court, to fish for a moderate livelihood.
A moderate livelihood fishery is neither a subsistence fishery nor a commercial one. The Mi’kmaq right to fish for a moderate livelihood is based on a series of treaties made in 1760 and 1761, and was affirmed by the Supreme Court of Canada in its 1999 Marshall decision.
Our right to fish for a moderate livelihood is a constitutionally protected treaty right, recognized and affirmed by section 35 of the Constitution Act.
Bill C-68 not only disregards this, but it also leaves both our people and the Crown with serious compromises.
The 2012 amendments to the Fisheries Act introduced the definition of “Aboriginal” fishery. By indefinitely continuing this definition, Canada continues to deny our right to fish for a moderate livelihood.
In advance of our appearance before the Standing Senate Committee on Energy, the Environment and Natural Resources in 2012, we were told by the Minister of Fisheries and Oceans that, despite our constitutional rights, any unlicensed fishery would be regarded as illegal and subject to prosecution. This has proven to be true.
The continued denial of our right to take part in a moderate livelihood fishery has had major implications for our people. Many in our communities still trade or sell what they collect through hunting, fishing and gathering to provide for their families. This fishery is not about wealth. It never has been. It has always been about survival.
The continued failure to recognize our moderate livelihood fishery makes the proposed amendments to the Fisheries Act both under-inclusive and unconstitutional.
Before I turn the microphone over to my colleague Bruce Wildsmith to further discuss concerns we have with Bill C-68, I hope that you can recognize how strongly rooted our concerns are in the traditions, lives and culture of our people. A failure to recognize and protect our rights-based fisheries in Bill C-68 will affect the lives of our people and the foundation we have attempted to build, nation to nation.
May we suggest that, if “Indigenous” fishery must be defined in the act, then it be defined as:
Indigenous, in relation to a fishery, means fish harvested by an Indigenous organization or any of its members pursuant to the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982 or for any purposes set out in any rights implementation measure as agreed to by the Crown and Indigenous peoples.
We ask that you make the recommendation for the definition of “Indigenous” to be amended, ensuring that the constitutional rights of the Mi’kmaq are not overlooked and dismissed any longer.
My co-presenter, Mr. Bruce Wildsmith, legal counsel for the Assembly of Nova Scotia Mi’kmaq Chiefs, will now address other matters of concern with Bill C-68.
Wela’lioq. Thank you for your time.
Bruce H. Wildsmith, Legal Counsel, Assembly of Nova Scotia Mi’kmaq Chiefs: Thank you, Mr. Chair, senators and guests.
I want to pick up on the second aspect of the definition of “Indigenous” in relation to fisheries. Chief Paul has gone over the fact that the way the meaning or definition is structured, it involves two kinds of approaches. One approach is to define the purpose for which the fishing activity takes place, and it’s defined now to include what DFO loosely calls FSC fisheries, meaning food, social and ceremonial. What it does not include is the purpose that Chief Paul is speaking about, the one that derives from the Marshall Supreme Court decision in 1999 and the series of treaties made in 1760 and 1761 in the Maritimes with the Indigenous people in the provinces of Nova Scotia, New Brunswick, Prince Edward Island and the Gaspé area in Quebec, and are for the purpose of earning a moderate livelihood.
If you approach the definition from the standpoint of the purpose of the fishery, we’re saying it is under-inclusive because there is a constitutional right protected by section 35 and the Supreme Court of Canada decision, for the Mi’kmaq, the Maliseet people, the Passamaquoddy people and the Mi’kmaq in Prince Edward Island and the Gaspé, all of whom are beneficiaries of the same set of treaties to fish for a moderate livelihood. From a definitional standpoint, the purpose is under-inclusive.
The other thing that is in the definition is land claim agreements. We wanted to draw to your attention that through the department now of Crown-Indigenous Relations and Northern Affairs Canada, a new approach is being rolled out across the country for a replacement process for the comprehensive claims documents that resulted in these agreements.
So, yes, there are land claim agreements, but we are now engaged across the country in something which in the Maritimes is called a rights reconciliation process, leading to, hopefully in the case of fisheries, rights reconciliation agreements. On a national basis, the terminology is different from the federal Department of Crown-Indigenous Relations and Northern Affairs Canada, and they now refer to this process as a recognition of Indigenous rights and self-determination.
Chantal passed out something from the website of that department that explores new ways of working together. There are 27 pages in the original, but I only burdened you with the 4 pages leading up to the listing on their site of the different places and processes across the country where this is being undertaken.
On page 2, it says that there are 75 tables across the country talking about this, involving and representing 380 Indigenous communities and a total population of more than 700,000 people. I understand the figures are actually higher now, but this is what’s on the latest website.
If you look through these couple of pages, the one word that leaps out to me, and I hope leaps out to you, is the word “agreements.” Instead of a land claim agreement, this is a recognition of Indigenous rights and self-determination agreements. This would obviously encompass a broad range of subjects, but I can tell you, because I’m involved in it, that this process is undergoing in Nova Scotia, Prince Edward Island, New Brunswick and the Gaspé, and it’s undergoing in relation to fisheries.
If we’re going to have a definition in the statute that singles out agreements, surely what should be included are agreements reached with Indigenous governments across the country under the substitute process called a recognition of Indigenous rights and self-determination.
You’ll see in the written submission we provided to you, we refer to them as rights reconciliation arrangements or agreements, RRAs. That is the name they are being given in the Maritime provinces, and I believe Gaspé as well, because this process that’s been rolled out nationally started in Nova Scotia. It’s a made-in-Nova-Scotia process that officials in the former Department of Indian Affairs saw the wisdom of.
Because these negotiations were stalling across the country, they said that we need a new process. Maybe this is a process that will result in agreements where comprehensive agreements are not working very well, we can have sectoral agreements. Fisheries, as Chief Paul has pointed out, is one of the things that is near and dear to the hearts of Aboriginal peoples in the Maritimes. This is a process that is ongoing daily. In fact, Chief Paul was meeting today with the chief federal fisheries negotiator to talk about that process.
Work is continuing. It’s under without-prejudice protection so only the generality can be provided, but the generality is that it’s a live process, it’s undergoing and cabinet has approved it. It’s there.
So why would the definition that is in the amended Fisheries Act, which on the face of it would purport to encompass all of the fisheries that are unique to Indigenous people, not include the fruit of this new process as well?
The Chair: Thank you, Mr. Wildsmith. As usual, the first question goes to our deputy chair.
Senator Gold: Thank you very much for coming and accommodating our schedule. Thank you for the specificity of your recommendations as well.
I have related questions around the issues you raised. First, with regard to the definition of Indigenous fishery in Bill C-68, have you raised this issue in the context of your discussions with government, these discussions dealing with the rights recognition agreements and the process that you just described? Have you raised your concerns with government about this particular act? If so, what kind of response have you received?
Mr. Wildsmith: I could answer it this way: There is a negotiating process with chief federal negotiators and a chief federal fisheries negotiator. In the course of that process, one of the elements of discussion is how you give effect to these agreements. Saying how they relate to existing statutes or amending statutes has been something that is brought up in the course of that. All I can say is that’s where it went. Where it went from there, they or people in the Department of Fisheries and Oceans would have to respond to.
Senator Gold: I take it I shouldn’t press the point. We’ll have opportunities, I’m sure, to hear from them again, but I’m just interested to know if you were able to share with us what kind of reception you got to the notion of a more expansive and comprehensive definition of Indigenous fishery in the act.
Mr. Wildsmith: One thing we could say with certainty is that when these amendments were made, I think as Chief Paul said in 2012, it still was after the Marshall decision. We appeared in front of the Senate committee at the time and made the point that the Donald Marshall case around constitutional rights and the right to fish for a moderate livelihood were things that should be included, but they weren’t.
Senator Gold: You have also commented on both the apparent inconsistency in the act between clause 2.3, the so-called non-derogation clause, and then taking into account the impact of clause 2.4. I think we all understand that non-derogation clauses, whatever their language, are no substitute for clarity, precision and proper scope in legislative language, but they serve a function and appear in legislation.
The language in clause 2.3 is not the most recent but is a more recent version of a non-derogation clause than the one that first appeared post-patriation. Some think it’s more protective and some less protective. My question isn’t the fine terms of the non-derogation clause. My question is this: In your experience, when government falls short or fails to respect Indigenous rights, has it been because of the particular wording of a non-derogation clause, or is it more because the practices, policies or will haven’t been there to respect the rights that are recognized and affirmed in the Constitution?
The lawyer in me says, of course, language is really important, but the question is: “How important is the version of the non-derogation clause that appears in this act?” as compared to what is really at stake, which is how the government relates nation to nation with you and others in terms of giving real life to your rights?
Mr. Wildsmith: I haven’t seen a situation in my experience where anything turned on the precision around that wording. I recall two particular things. I recall two situations in which Crown lawyers were not respecting those clauses initially but, when it was called to their attention, they sort of withdrew what they were purporting to do that was inconsistent with it. They served a real value in that case.
I do recall another lay witness from the Department of Fisheries and Oceans on the witness stand who said, “Well, I thought they all meant the same thing.” In other words, it is without prejudice and non-derogation. They thought it was all the same and were not hung up on the wording.
Senator Gold: Thank you.
Mr. Wildsmith: Just to come back to capture the point we were trying to make in the brief, why is there inconsistent wording? What is the intention to have wording in the two clauses that are back to back that don’t seem to be the same?
As you would know, one of the fundamental principles of interpretation, whether it’s a document or a statute like this, is if you use different wording to try to express the same thing, there must be a reason for that different wording. It’s one of the things that lawyers get caught up on and ask, “What is the reason?” You can see in our brief that we didn’t purport to say there is a reason, but the authors and the promoters of the bill presumably will tell you what they think the difference is. They haven’t told us.
Senator Gold: So you have answered the follow-up question I don’t have to ask: You don’t know what their explanation is. Thank you.
The Chair: Senator Gold is a lawyer, too, so maybe he’ll find out for us and share with you.
Senator Campbell: Thank you for coming today. So the Marshall decision of 1999, what went on between 1999 and 2012 before they came up with this term “Aboriginal” fishery?
Mr. Paul: What went on?
Senator Campbell: You went 13 years from a decision that seems pretty clear and then all of a sudden, in 2012, the government decides they’ll put in the term “Aboriginal” fishery. What was going on? Were you allowed to fish? Were you allowed to make a reasonable living from it, or was it illegal?
Mr. Paul: One of our problems is that we are a very patient people. So the government, through the Department of Fisheries and Oceans, came up with interim measures. That’s what we have been fishing under, since we still fish under the DFO regulations like anyone else. They came up with this interim measure because they had nothing in place to deal with the court decision. The court decision was not what had been expected. Nobody in government believed we could win this case.
Senator Campbell: This is what I’m getting to. I’m not a lawyer, so I don’t understand some of the intricacies of this. It would seem to me that there is a Supreme Court decision that affirms that fishing for a moderate livelihood is based not only on the treaties of 1760 and 1761, but also on section 35 of the Constitution Act. Am I correct in that?
So effectively, DFO — and we, by extension — has been acting unconstitutionally against Indigenous peoples. Is that what I’m hearing?
Mr. Paul: I would say yes.
Mr. Wildsmith: Yes, and maybe to add some elaboration, shortly after that there was actual violence on the water when people attempted to exercise that right and were stopped by DFO enforcement officers. There was a big incident in Burnt Church, an incident in St. Mary’s Bay in Nova Scotia, and people were prosecuted.
Senator Campbell: Were they convicted?
Mr. Wildsmith: As Chief Paul was saying, part of the DFO response to it was that we could have an interim measure. The interim measure was that we will make practical access to the water for commercial fishing, and we will negotiate at a time in the future the actual application of the rights. That was the DFO response.
And they are still in that process, you might say. It took until 2007 to have a framework agreement to structure this with Canada as a whole, not just DFO. It took a six or seven years after that, something like 2012, 2013, before DFO came to the table and said, “We now have a mandate.” That mandate changed as of the appointment by then federal Minister of Fisheries Dominic LeBlanc last November when he met with the Assembly of Nova Scotia Mi’kmaq Chiefs and other chiefs in the Maritimes and said that cabinet now has a man named Jim Jones, a retired DFO regional director general from the Gulf Region, to be the chief federal negotiator and to negotiate with you. That happened last November. As I said, that process is ongoing.
What happened is that time and time again we asked, “Where is the moderate livelihood fishery?” On the tenth anniversary of Marshall in 2009, there was a major event, a press conference, speakers calling on Canada to say where the moderate livelihood fishery is? It has been 10 years now.
Senator Campbell: It has been 20 years since the decision.
Mr. Wildsmith: Yes, now it is 20 years.
Senator Campbell: Way beyond patience, chief. Way beyond patience.
Mr. Wildsmith: As the chief explained, if someone goes out and exercises that right, DFO says that you have no licence to do that. Therefore, it is illegal. You have contravened the Fisheries Act.
Senator Campbell: I don’t want to prolong this, but DFO can’t tell you you don’t have a licence to do that, because the Supreme Court says you don’t need a licence to do that. I don’t understand how we, as a government, can blatantly disregard a Supreme Court decision. I mean, it doesn’t make any sense to me. I’m not a lawyer. I’m not apologizing.
Senator Gold: We’re not the government.
Senator Campbell: We’re a part of it. Thank you for your patience.
Mr. Wildsmith: I might footnote, then, that there were prosecutions within the last year, and a Department of Fisheries official apparently gave evidence to say, “Well, we don’t have any regulations for this fishery.” Thereafter, the Department of Justice entered a stay in the prosecution.
Now those fishermen whose catches were seized, et cetera, have started a civil action saying that they were wrongfully prosecuted, and damages as a result.
Senator Campbell: Thank you.
The Chair: Something new every day, but there is a new definition for “interim,” that’s for sure.
Senator McInnis: Nice to see you Chief Paul. Mr. Wildsmith, you’re aging well. You look exactly the same as you did 20 years ago. I’m unable to say the same for myself. But it’s good to see you. You certainly have a reputation that precedes you. In my mind, you have done noble service for the native communities in our area.
The reason that the government has not included in the act what is being negotiated now is your negotiations are not completed. Is that correct? They are ongoing.
Mr. Wildsmith: I can’t speak for them about that, but part of the problem I would see is once you have an agreement, through this new process, it’s not mirrored in the Fisheries Act in any way.
Senator McInnis: You think we should be out front?
Mr. Wildsmith: Yes.
Senator McInnis: How do you see this reconciliation arrangement? Will that ultimately be enshrined in legislation?
Mr. Wildsmith: You ask a very good question, senator. That’s something that we ask all the time, and the answer that is being given is: Possibly, if there are legislative amendments required, there might be, but we’re presently operating within the existing statutory framework. Therefore, we can’t do anything that the Fisheries Act doesn’t really allow us to do.
Senator McInnis: Once this agreement is reached, will it be ongoing? Will there be additional changes down the road and so on? Will negotiations continue and always be open?
Mr. Wildsmith: What is hoped to be achieved is a level of certainty for a period of time. This is one of the big differences between the land claims agreements that were attempted to wrap up in a comprehensive way and a stake driven through the heart of it so that was the end of it, whereas this new process is an ongoing process that has time limits to it. At the moment, for the fisheries side of it, it could be anywhere from 10 to 25 years. That’s the nature of what is being discussed at the table. I think a minimum, from what we’re being told from the standpoint of fisheries and oceans, is 10 years once you have the agreement.
Senator McInnis: Okay. You are in the room — not you personally, perhaps, but others — representing First Nations with respect to these negotiations. You’re there with federal government representatives, presumably. Do these topics come up at all? Did they consult with you about Bill C-68? Was there any discussion whatsoever? I know you’re not there specifically dealing with the bill, but did you have knowledge of it? It strikes me that it shouldn’t be a challenge for Fisheries and Oceans to include “moderate livelihood” in the definition. That makes eminently good sense. The R. v. Marshall decision is common law now, and one would expect that they would have a challenge, as Senator Campbell mentioned, in convicting anyone operating or fishing under the guise of the way the late Donald Marshall Jr. did.
How is it that Fisheries and Oceans didn’t recognize that? You can bring in statutory law to change certain common law. We have seen that happen. But here, the common law was there. What right did Fisheries and Oceans have to change that and prevent you from operating differently from what Tom McInnis would do? You have to go get a licence, and if you don’t you will be charged. That’s not the common law in this country, and it wasn’t. So how did that happen?
Mr. Wildsmith: I think it’s a great question. I’m sorry, though, that I have no answer except that when it has been brought up, there has not been a positive response.
Now, in the negotiations that we’re talking about, the RRA could lead to the recognition of that right and its incorporation. At the end of the day, one hopes to know enough with certainty as to what exactly can be done on the water by the Mi’kmaq without fearing prosecution. That’s the kind of level of detail that we hope will be achieved in those negotiations but, at the moment, the standard response is that it’s not yet authorized.
Senator McInnis: As mentioned earlier, I appreciate your patience and reasonableness but, Mr. Wildsmith, I also know your legal reputation. It’s a good one. This could have been challenged. No one likes to continue to appear before the Supreme Court on matters that have already been handled by Donald Marshall Jr., but I just fail to see why this wasn’t pursued just as a matter of principle. I shouldn’t say this, but it’s probably typical of the way you have been handled in the past, and it’s not fair.
Senator Poirier: Thank you both for being here. At the beginning of April the Minister of Fisheries and Oceans, when he appeared before the committee, said there was an intention in Bill C-68 to ensure that there is strong Indigenous participation. Since then the committee has received briefs and heard testimony from Indigenous groups that some agree and some disagree with that statement. In your view, would the Fisheries Act, as amended by Bill C-68, ensure strong Indigenous participation?
Mr. Paul: Not the way it’s presently worded. We still don’t have implementation of the right. What we have implemented so far is an interim process. The government’s interim processes are not too interim, really. I believe it’s the government’s interpretation of a court ruling to what is probably its narrowest meaning.
I’ll give you an example of that. The first mandate that Fisheries and Oceans received from the government — I’m not sure, but I think it was about 10 years after the decision. We finally got a mandate. I’m in the room, and I’m hearing this. The person representing DFO is saying that we finally have a mandate to implement your rights but, by the way, there is no new access. So they are going to implement our rights without being able to get access to the fish, and we’re supposed to swallow that. It is so blatant.
At that time, the same person I was talking to who represented DFO got another mandate when the government changed and just added that. Now we’re going to be talking about access.
Senator Poirier: So the minister’s intention, when he said Bill C-68 would ensure there is a strong Indigenous participation, if I’m understanding right, Bill C-68 does nothing for you guys. Is that correct?
Mr. Paul: Well, it doesn’t address the Supreme Court decision that we have a treaty right to fish for our livelihood. That’s not what is being discussed at the highest levels. I’m sorry, but this is how I feel because of the experience I have had over the years. In 35 years as chief, the bureaucracy that is in existence has had a certain way of thinking, and we’re not part of that thinking. It’s brand new to the bureaucracy. The bureaucracy was not ready for this decision. I said that because I was told by those very bureaucrats.
Senator Poirier: They haven’t been ready in 20 years, and I don’t know how long it’s going to take them to be ready again.
Mr. Paul: I think it’s sort of an “us versus them” thing. It’s as if we’re going to harm or damage the economy of the country when, from my experience and what I have done, we help improve the economy. There are studies that prove that.
I’m a member of the National Indigenous Economic Development Board. We have some benchmarks in a number of areas. What those studies say is that, at the end of it all, the Indigenous people in this country contribute in a positive manner rather than a negative one. We’re not costing the government anything, really. We give back more than we get from the government.
I feel the mindset is not there. For some reason, all Indigenous people are afforded is maybe a box to check off that you have consulted with the Indigenous people. We didn’t get agreement. They didn’t like what happened. They don’t agree with doing this, but you can still check the box off because you have consulted with us, but it’s supposed to be in a meaningful manner.
Senator Poirier: Thank you.
Mr. Wildsmith: If I could add to what Chief Paul said. When he said that we have these interim agreements or measures but now we have a mandate for access, all of the fisheries that are of interest to support a moderate livelihood are what are, in DFO language, referred to as limited-entry fisheries. That means that you can’t have new entrants in there without removing existing entrants because the fishery is fully subscribed.
The lobster fishery is an example of one that the Mi’kmaq would like to use as a basis for moderate livelihood, but all of the lobster fishing licences and opportunities are allocated now. Some are to First Nations for commercial purposes, but the point is that it’s fully subscribed. There are no new entrants allowed, so as soon as a Mi’kmaq fisher without a licence goes to fish, the answer is, well, conservation is at risk and we can’t have an unlicensed new entrant in there. We have to do something that allows this new entrant in. And the only way that they will allow the new entrant is to buy out the existing entrants.
If they have a lobster licence that’s $800,000, to get one licence, someone has to cough up $800,000 in order to make room for a new entrant. Part of the problem is how you get access to groundfish, snow crab, shrimps, scallops and lobster. You have to buy out people already there because it’s not politically saleable to take someone out without their agreement.
The Chair: It’s a very interesting discussion, and I will say to Chief Paul that in my time here Indigenous people around our table make meaningful and constructive contributions to our deliberations. We’re pleased to have people such as this sitting around the table.
Senator Christmas: Chief Paul, you represent the fisheries portfolio for all 13 chiefs in Nova Scotia. I would like for you to describe for the record what “moderate livelihood” fishery means. You made the remark that many in your community still trade or sell what they collect through hunting, fishing and gathering to provide for their families. This fishery is not about wealth. It has never been. It has always been about survival.
Most people understand what food fishery is, and most people understand what commercial fishery is, but can you explain, for the record, what “moderate livelihood” fishery is?
Mr. Paul: To me, it’s the ability of our people to provide for their families in a modern way, and that is to make enough out of the fishery to pay your bills, have shelter, provide for your kids with clothing like anybody else. Maybe have a vehicle in the yard, maybe two — I’m not making promises. It is like the way the rest of the world lives in a modern way, but not the 1 per cent of people who are above middle class.
It would be a middle-class income, really, where the Mi’kmaqs who are involved in the fishery are able to look after their families. They are going out to provide for their families, and that’s what all our people want.
Senator Christmas: Chief Paul, I know the assembly has done a lot of work on this. You have made efforts to carry out studies and have researchers go out and try to quantify what “moderate livelihood” fishery means. Could you explain how the assembly has come to that point of understanding what this definition means, and what it means specifically to our communities and families?
Mr. Paul: I can give you an example of perhaps any food fishery. We are certainly not where we should be on the food fishery. That’s just to provide ourselves with the food of fish.
As you mentioned, there was a study done several years ago on our food fishery. One glaring fact that came out of that is that in Nova Scotia, collectively, we are not getting a total of 800,000 pounds of fish annually. This is food that we are not able to get because of the safety of the water. If we put out our traps there, they will be cut the same night. That has happened. It’s on record.
We went to the DFO, and they couldn’t or wouldn’t do anything. We asked why. We should be afforded the same protection. “Sorry, bud, we live here.” That’s the answer.
It’s a sad way of finding out what your livelihood can’t be, and that’s part of it.
It would resolve a lot of the issues if we were able to do that as far as our food fishery is concerned. Even at that level, most times we’re not able to go out there. Not that we don’t want to. It’s what will happen to our gear and what will happen to us.
Senator Christmas: I know this is personal, but I think it is important. You were a good friend of Donald Marshall Jr., and unfortunately he didn’t live to see this fishery implemented.
If you had the chance to speak to Junior and ask him what he was trying to do by establishing this moderate livelihood fishery, what do you think he would have said?
Mr. Paul: He would have said a number of things. He was practically a brother to me, and he had a very difficult time in going through this process. I certainly was in touch with him when all this was going on, when his nets were being seized, his yields were being seized, and his boats. I remember talking to him daily on that and him calling me. Anytime there was a question of what he would do next, I certainly got legal advice on that. It was mostly, if not all of it, from Bruce Wildsmith here.
The statement I remember mostly about what he was advised on — and this is probably what he would say, to answer your question on what Junior would say, and it’s, “Keep fishing. Keep fishing.” Because we have a right to do that.
I’m not sure if the committee is aware that he spent 11 years in prison for a crime he didn’t commit. That’s a stark example of what society does to people who are not accepted. That is what was on his mind the most, not having to go back to that.
I talked to him about how important it was and what he was doing, and he believed in that, believed we had a right to fish. It was engrained in him. His father was the Grand Chief of the Mi’kmaq for over 30 years, and it was instilled in him to do the right thing.
I know that he already had a name. And when the government sees his name and the charges, they will pay attention, and we talked about that. This is why he continued. Because he continued to do it for all the people, for the Mi’kmaq, not for himself. He didn’t gain too much out of this fishery or from this decision.
In fact, I think it took a great toll on him. Later on, after the decision, he had to go through a double lung operation. It gave him another eight years. It took a big toll on him and his family, and many Mi’kmaqs were affected by that.
So my answer is, “Keeping fishing.”
Senator Christmas: Thank you, chief.
Senator Wells: Thank you, gentlemen, for appearing before us today. I will switch tracks a little bit and go to clauses 21 and 40 of the bill.
Clause 21 of Bill C-68 requires the minister or the prescribed authority to consider Indigenous knowledge that has been provided prior to issuing authorizations and permits.
In our legislative process we look at words like “require” and “may” and “shall,” “shall” being a directive. In this case this requires the minister to consider Indigenous knowledge.
Clause 40 ensures that the Indigenous knowledge provided shall remain confidential and stipulates the specific circumstances in which the minister may disclose this.
Given that our licence-granting process is supposed to be based on science, and now with the inclusion of Indigenous knowledge — which I would also grant as scientific because it’s based on historical knowledge — what do you think of this requirement that the minister not be transparent when seeking this Indigenous knowledge when considering licensing?
In the bill, clause 40 ensures that the Indigenous knowledge provided to the minister shall remain confidential and stipulates the specific circumstances in which the minister may disclose the information after consulting with those who gave the knowledge and identifying to whom the knowledge is to be disclosed.
I will preface the question, but to me it shows a lack of transparency in the process of making a decision, and I’ll say using the Indigenous knowledge, which is valid. We all recognize it’s valid, or certainly I recognize it’s valid in that decision-making. I know former Minister LeBlanc, for example, in his decision on surf clams, ran into some trouble because there was no transparency and the decision was rescinded.
What do you think of this lack of transparency requirement, where the minister doesn’t have to disclose the Indigenous knowledge which will go towards making his decision?
Mr. Paul: In general, I would say that Indigenous knowledge is proprietary, just like any other technical knowledge in the fishery. I will give you an example. Companies like Clearwater have proprietary information on how to prosecute that Arctic surf clam. That is understood. Why would their proprietary knowledge be transparent when it protects their knowledge on how to prosecute that fishery economically, efficiently and sustainably?
Senator Wells: With respect to the knowledge that Clearwater has, that’s granted back to the government for them to make decisions on harvesting areas and quotas. All that is delivered back to the government and it’s actually not proprietary: it’s reportable and published information.
Mr. Paul: The catch is, but not how they fished it.
Senator Wells: Surf clam dragging is well-known as well.
Mr. Paul: They have proprietary technology on that. No one else does it. No one else knows how to do it.
Senator Wells: You believe the Indigenous knowledge that has been provided prior to issuing the authorization should remain confidential and not be transparent to this common property resource?
Mr. Paul: If it’s proprietary to the Mi’kmaq, their knowledge.
Senator Wells: Can you give me an example of what might be proprietary in Indigenous knowledge that would go towards providing an authorization for a licence? I’m not getting it at all.
Mr. Paul: If you want an example, someone mentioned that decisions by the government, DFO in particular, are based on science, even though we’re over-subscribed so I’m not sure how much DFO is listening to the science. You read it every day in the papers.
By experience, our elders have tremendous knowledge about how the fish behave when they spawn and where they spawn. They take that into account whether we fish that fish, when the best time is to do that and not when they’re spawning. So this knowledge is utilized by the Mi’kmaq to sustainably fish for food, for the fish that we want.
Senator Wells: I won’t argue the point, but thank you for your input on that.
The Chair: To get back to your document that you shared with us earlier, you mentioned Nova Scotia, New Brunswick, Prince Edward Island and the Gaspé. For clarification, the discussion table in the region says “Atlantic.” Does that mean Newfoundland and Labrador will be involved and how? Do they stand alone on that?
Mr. Wildsmith: I know, senator, that the next 26 pages or so that we didn’t provide you is a list of all of those communities. I would have to look through it to actually see about Labrador. As you know, Canada takes the position that the Marshall decision and those treaties do not apply to the island of Newfoundland or to Labrador. However, I know there is an agreement that has been reached in Labrador with the Inuit, I believe, and I would be very surprised if there weren’t ongoing discussions with the Innu. I see the Metis are part of this.
The Chair: That’s fine. I will find that. I’ve been here for 12 years and there is a lot of bureaucracy and things that end in Halifax, so I’m making sure that they didn’t. That’s fine, Mr. Wildsmith, I will find it.
Thank you folks, and thank you to our witnesses for a very interesting conversation and the great contribution to our study of Bill C-68. I want to thank you again for taking the time to join us here today. As I have said to previous witnesses, if there is something that you think about after you leave here tonight that you wish that you had said or had told us about, feel free over the next week or so to send it to our clerk as we move towards home plate in dealing with Bill C-68.
Once again, thank you on behalf of our committee members. Thank you to all our witnesses. It has been an interesting evening. There is much information for us to contemplate over the next few weeks.
(The committee adjourned.)