Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue No. 46 - Evidence - May 16, 2019
OTTAWA, Thursday, May 16, 2019
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, met this day at 8:04 a.m. to give clause-by-clause consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
The Chair: Good morning. I welcome everyone back as we continue clause-by-clause consideration of Bill C-68. I will start by asking all the senators to introduce themselves.
Senator McInnis: Senator McInnis from Nova Scotia.
Senator Bovey: Patricia Bovey from Manitoba.
Senator Busson: Bev Busson from British Columbia.
Senator Campbell: Larry Campbell from British Columbia.
Senator Harder: Peter Harder from Ontario.
Senator Francis: Brian Francis, P.E.I.
Senator Ravalia: Mohamed Ravalia, Newfoundland and Labrador.
[Translation]
Senator Petitclerc: Chantal Petitclerc from Quebec.
[English]
Senator Wells: David Wells, Newfoundland and Labrador.
[Translation]
Senator Poirier: Rose-May Poirier from New Brunswick.
[English]
Senator Gold: Marc Gold, Quebec.
The Chair: I’m Fabian Manning from Newfoundland and Labrador, chair of the committee.
We will continue with clause 21. I believe we have an amendment from Senator Poirier.
Senator Poirier: Yes. Regarding clause 21 on page 18, I move:
That Bill C-68 be amended in clause 21, on page 18, by replacing lines 19 to 25 with the following:
“ter and the water flow downstream of the obstruction or thing that are significant for the conservation and protection of fish and fish habitat.”
The amendment concerns the upstream and downstream. The committee heard evidence from hydro stakeholders that the proposed paragraph of 34.3(2)(g) in Bill C-68 gives the minister broad power to act when an obstruction in a water flow affects the fish passage or the ability to protect fish or fish habitat. Under this provision, the minister can order the removal of an obstruction or order a specific flow regime. He or she has the power to require the owner of the obstruction to maintain the characteristic of the water upstream of an objection.
Stakeholders, including the Canadian Electricity Association, said that it is largely unrealistic and, in many cases, the owner of an obstruction will not have the ability to regulate the water characteristic upstream of the obstructions. Terry Toner, Director of Environmental Services at Nova Scotia Power with the Canadian Electricity Association, said that one of the provisions in paragraph 34.3(2)(g) talks about upstream quality, and in many cases, they have “zero ability to control that.” The temperature in the river or the reservoir is probably what it will be, so placing that level of detail at a legislative level is concerning to them. They stated that they often have the view that the legislation is the enabler and sets the basic ground rules that are then further defined in the regulation and further still refined in an individual permit organization. To include it at this high level or perceptions with all the legal structure we have within Canada is where the challenge comes.
I do believe we have an amendment to this portion of this bill, asking the industry to control upstream water characteristics, which, in many cases, they have no ability to do. We should not have a provision in this bill around which industry signals to us that they don’t have the ability to do it. It’s unfair to put them in this position. I believe it to be a reasonable demand by the various stakeholders. They are asking to modify this provision to make it more workable and realistic.
The Chair: Any comments or questions?
Senator Gold: Thank you, Senator Poirier, for the explanation. It was comprehensive. There are two things that I noticed — two changes — and I wonder if the officials could give us some help in understanding the consequences of those.
The first is to remove the reference completely to upstream. That’s obviously one major change. The other is that the original language — this would be at line 20, after speaking of the characteristics of the water flow upstream and downstream — things that are “necessary” for the conservation and protection. Instead of that, you have substituted “sufficient.” I’m wondering whether that is a change in the standard.
In your answers, would you also comment on the opening lines of proposed subsection 34.3(2), because it’s all in the context if the minister has to consider that this is necessary in order to preserve fish habitat. There is, presumably, an informed discretion that surrounds the exercise of the minister’s discretion here.
Could you comment on what impact the proposed amendment would have on the intent of the bill and how it might operate? Thank you.
Nicholas Winfield, Director General, Ecosystems Management, Fisheries and Oceans Canada: As was explained, it’s a very reasonable amendment in terms of the logic presented. It is recognized that the ability to manage anything upstream of a hydro dam with respect to flow is not possible. This follows the logic of the bill and the amendments that were put forward. It is a logical and reasonable proposal that has been put forward.
Senator Gold: Thank you. Any comments on the change from necessary to sufficient, which would apply generally to this clause?
Mr. Winfield: It is a term that requires discretion, but the change in terminology is reasonable and allows officials to make an interpretation and advise the minister accordingly.
Senator Gold: Thank you very much.
The Chair: Any other comments or questions? Is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Our next amendment, Senator Harder, PH-21.18.
Senator Harder: In light of the amendment we have just adopted, I would withdraw this amendment.
The Chair: Okay.
Next we have an amendment from Senator Harder once again, PH-21.20.
Senator Harder: Colleagues, this is a consequential amendment to an upcoming motion containing proposed amendments to clause 23. The forthcoming proposed amendments to clause 23 provide authority for the minister to make the final determinations about which works, undertakings or activities of any designated project will require a permit. This authority would occur subsequent to the exercise of the Governor-in-Council in authority under paragraph 43(1)(i.5), which identifies these projects that are subject to the designated projects regime. This proposed regime for designated projects will provide improved certainty for proponents and Canadians as to which projects will always be subject to the permitting requirements under the Fisheries Act. The forthcoming proposed amendments to section 35(1) will confirm that only those works, undertakings or activities that the minister considers likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat will require a permit. This means the permitting process wouldn’t necessarily be applying to the entire project. It would apply only to the aspects that actually relate to fish and fish habitat.
Therefore, I move:
That Bill C-68 be amended in clause 21, on page 20, by replacing line 12 with the following:
“35.1(3) In the case of a work, undertaking or activity that is part of a designated project and that is designated by the Minister under subsection 35.1(2); or”
The Chair: Thank you, Senator Harder. Any comments or questions? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Shall clause 21, as amended, carry?
Hon. Senators: Agreed.
The Chair: Moving ahead to number 26 on your list. Amendment from Senator Harder, PH-22.21.
Senator Harder: Has 22.21a been deleted?
The Chair: Yes, it has.
Senator Harder: Senators, this is a consequential amendment to the forthcoming amendment on designated projects in clause 23. Therefore, I move:
That Bill C-68 be amended in clause 22, on page 21, by replacing line 27 with the following:
“35.1(3) In the case of a work, undertaking or activity that is part of a designated project and that is designated by the Minister under subsection 35.1(2); or”
The Chair: Thank you, Senator Harder. Any questions or comments? Is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Next we have number 27, Senator Wells. DC-22.22.
Senator Wells: Colleagues, this amendment, originally proposed by Senator Christmas via Senator Griffin with some discussion with Senator Bovey and other colleagues, would allow DFO to collect an offset payment in lieu of creating an offsetting habitat bank. This would be particularly useful in areas where an appropriate offset project is not available or not cost effective. For instance, where there might be a project that could result in habitat damage or, having a deleterious effect, another project could be supported in the best case scenario nearby or in the same watershed. As we heard from the Canadian Wildlife Federation, offset payments would be compiled into a fund dedicated to habitat protection and restoration.
Colleagues will note that this amendment is entirely consistent with the other two amendments proposed on service areas and third party habitat banking as proposed by Senator Christmas and Senator Griffin. Under this amendment, funds would need to be spent either as close as practicable to the work, undertaking or activity, or at least within the same province where the work occurred. It would still be in the hands of the minister for final decision on this. This amendment does not mandate how the government should collect or spend the money. It simply establishes a structure by which private sector funds, determined and accepted at the discretion of the minister, can be accepted to support restoration projects.
Colleagues, just like the proposed third party habitat banking amendment, use of the offset payments would not, in the opinion of the stakeholder groups we heard from at this committee and privately, add significantly to DFO’s fish habitat program costs or administrative burden. In fact, I think it would support it. It would provide regulatory speed, flexibility and certainty for project proponents.
Colleagues, prior to becoming a senator, I was involved in a private sector project where a pond was being used by a mining company. They set aside money for a salmon ladder project hundreds of kilometres away, unrelated. In this case, this would allow that money to be banked for restoration projects in the area where damage might or could occur. In the case where there are no proponents for habitat restoration, it could be used elsewhere in the province or in the country.
Other benefits of this amendment include an increase in resources available for aquatic habitat restoration, an increase in support for large-scale strategic and effective restoration projects and a reduction in the net loss of fish habitat. I encourage all colleagues to support this amendment, which came to fruition as a collaborative effort across different groups.
Therefore, I move:
That Bill C-68 be amended in clause 23, on page 22, by adding the following after line 25:
“35(11)(1) If a work, undertaking or activity is authorized or otherwise permitted under subsection 35(2) or 35.1(2), the person carrying out the work, undertaking or activity shall provide to the Minister, to offset the harmful alteration, disruption or destruction that results from such work, undertaking or activity, an equivalent or greater
(a) physical offset;
(b) payment in lieu of offset; or
(c) habitat credits.
(2) Any amount received as payment in lieu of offset under subsection (1) is to be used for habitat conservation or restoration within the province, or as close to it as practicable, in which the work, undertaking or activity is located.
(3) The Governor in Council may make regulations for the purposes of subsections (1) and (2), including regulations respecting the calculation of amounts for payment in lieu of offset.”
The Chair: Thank you.
Senator Bovey: Thank you, Senator Wells. I would be very interested to know from the officials their perspective of what the impacts of this amendment are, and will it affect the time line of the implementation of the bill? Perhaps you can enlighten me. Not being a full-time member of the committee, I would like a little bit more background.
Mr. Winfield: In Bill C-68, there is currently a habitat banking section that relates to the creation of habitat banks. They are referred to as proponent-led habitat banks because there is no exchange of money between the proponent and the Crown. These offsets are established as credits and maintained in a ledger and in a system. The proposal put forward here very much aligns with a model that is used in the United States, where private lands are actually acquired and there is a transfer of money between private entities.
The challenge with this proposal is that it would require changes to other pieces of legislation, such as the Financial Administration Act, because now there is a transfer of money between proponents and the Crown and a monetization of both private land and public lands, which is under Crown tenure. The challenge here is around the monetization of physical habitat in jurisdictions that are not entirely within the federal purview. That is the challenge with the scheme. Habitat banking in itself is currently in the act and is supported. To advance this scheme would require significant policy work to move forward.
There is an opportunity in the bill, with a five-year review, to actually think forward as to how well the banking scheme currently works as is proposed in Bill C-68, so this doesn’t foreclose future thinking around this, but it would require consultations with provinces and private landowners in order to develop this scheme.
Senator Bovey: Thank you. I think my question has been answered. I appreciate that.
Senator Wells: I want to make clear there is also a coming into force section that would not be on Royal Assent of the bill but would be on proclamation of cabinet. So all that preparatory work could be done by the department.
Senator Gold: Thank you for the explanation. I want to make sure I understand the range of issues this might implicate. You mentioned changes to other legislation. I gather it also engages a question of federal-provincial relations. Does it also potentially engage question of Indigenous rights, either on land or offshore?
Mr. Winfield: Correct.
Senator Gold: I understand the intent behind this, which is salutary. I would be hesitant, though, to move ahead without having more information from all the stakeholders. I think we, as a committee, have an opportunity, whether it’s through observations or taking up a study — I hasten to stay in the next Parliament rather than at the end of this one — to take a serious look at how we might adapt what I take it is the American model to our situation with Crown land and all the relevant constitutionally protected stakeholders. I think it’s an interesting area, but I would think it’s premature. Even with the proclamation clause, there is too much constitutionally mandated consultation to move forward, in my judgment. I don’t think I can support this.
Senator Busson: Just for my clarification — and you probably explained it but I may have missed it — would it be the minister’s discretion to decide (a), (b) or (c), so what kind of offset would be chosen for a particular project in the first place?
Mr. Winfield: Having just seen this proposal for the first time and reading it, I would assume yes, but I would need to confirm. I would assume that if the proponent is suggesting that they cannot conduct a physical offset and they are looking at alternatives, it is the proponent that would propose to the minister an alternative means of achieving compliance with the act, and it would be the minister who would determine whether or not that is an acceptable approach, so yes.
Senator Busson: Does this amendment create a right for the proponent?
Mr. Winfield: It provides options for the proponent that the minister would determine whether or not it’s adequate. At this moment, the minister doesn’t have the tools and policy rationale to be able to determine which of these three options could be selected.
Senator Wells: I want to say, Senator Busson, that the minister maintains the unfettered right to make a decision on whether it’s physical offset payment in lieu or habitat credits. I think in real life that would happen in consultation with DFO because they are not going to propose something or go far down the road to agree on something that wouldn’t be acceptable to the Department of Fisheries and Oceans. That’s in real terms, in my experience, at DFO. That’s what could happen.
This goes to Senator Gold’s comment about maybe looking at it in a future Parliament. You will know the current Fisheries Act has not been updated since 1867, so the possibility of this coming back for review in the next Parliament is remote. The coming into force, which would be at the discretion of cabinet, not at Royal Assent, which might be typical in many cases, would allow that policy work to be done. I’m sure cabinet would not move forward unless the preparatory work was done by the department and therefore recommended by the minister to cabinet.
Senator Gold: I take your point. However, I’m still concerned with the possible knock-on effects in terms of the impact of other legislation, about which we have heard no testimony; and the issue of the appropriate boundaries between federal and provincial jurisdiction; and the potential impact, again around which we have heard nothing, from stakeholders and especially Indigenous stakeholders, because this amendment talks about “in the province or as close to as possible.” It makes no mention whatsoever of whatever rights Indigenous communities might have as against their province or against the Crown land and so on.
I do feel that we in the Senate are playing a somewhat more robust role than Senates in the past and could very well take the lead in a study and even introduce amendments to the Fisheries Act, assuming it’s within the scope of our constitutional power, which I suspect it would be, in the next Parliament. If they are well founded and well considered, I would hope that whoever the next government is would look at them with favour.
I appreciate your comments, Senator Wells, but I still maintain my reluctance to support this amendment.
Senator Wells: In my discussions with Senator Christmas, he indicated that he gave consideration to the Indigenous aspect. Not to speak for him, but to pass on something that may seem obvious.
Senator Gold: Thank you.
The Chair: Any other comments or questions? Is it your pleasure, honourable senators to adopt the amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Just to make sure we have the numbers straight, we will now proceed to a roll call. The clerk will call the members names, beginning with the chair and then going in alphabetical order. Senators should preferably indicate whether they vote for or against or abstain. The clerk will announce the vote, and I will announce whether it is defeated or passed.
Chantal Cardinal, Clerk of the Committee: The Honourable Senator Manning?
Senator Manning: Yes.
Ms. Cardinal: The Honourable Senator Bovey?
Senator Bovey: No.
Ms. Cardinal: The Honourable Senator Busson?
Senator Busson: No.
Ms. Cardinal: The Honourable Senator Campbell?
Senator Campbell: Yes.
Ms. Cardinal: The Honourable Senator Francis?
Senator Francis: No.
Ms. Cardinal: The Honourable Senator Gold?
Senator Gold: No.
Ms. Cardinal: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Cardinal: The Honourable Senator Petitclerc?
Senator Petitclerc: No.
Ms. Cardinal: The Honourable Senator Poirier?
Senator Poirier: Yes.
Ms. Cardinal: The Honourable Senator Ravalia?
Senator Ravalia: Yes.
Ms. Cardinal: The Honourable Senator Wells?
Senator Wells: Yes.
Ms. Cardinal: Abstain, 0; yea, 6; nay, 5.
The Chair: The motion is carried.
Shall clause 22, as amended, carry?
Some Hon. Senators: On division.
The Chair: On division; okay.
Moving along to No. 28, an amendment from Senator Harder, PH-23.22.
Senator Harder: Colleagues, the amendments in this motion anchor the amendments which necessitated consequential amendments to clauses 21 and 22 and to the upcoming consequential amendments proposed to clauses 27 and 31.
These amendments provide the authority for the minister to make the final determinations about which works, undertakings or activities of any particular designated project will require a permit. This authority would occur subsequent to the exercise of the Governor-in-Council authority under paragraph 43(1)(i5), which identifies those projects that are subject to the designated projects regime. This amendment will confirm that only those projects, works, undertakings or activities that the minister considers likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat will require a permit. This means that the permitting process wouldn’t necessarily apply to the entire project; it would apply only to the aspects that actually relate to fish and fish habitat.
Therefore, I move:
That Bill C-68 be amended in clause 23, on page 22, by replacing lines 15 to 25 with the following:
“35.1(1) The Minister may designate as a work, undertaking or activity that is associated with the designated project, any work, undertaking or activity that the Minister considers likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat.
(2) The Minister shall designate any work, undertaking or activity that is part of a designated project and that the Minister considers likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat.
(3) The Minister may issue a permit to carry on any work, undertaking or activity designated under subsection (2) and attach any conditions to it.
(4) No person shall carry on any work, undertaking or activity that is designated under subsection (2) except in accordance with a permit issued under subsection (3).
(5) The Minister may amend, suspend or cancel a permit issued under subsection (3).”
The Chair: Thank you, Senator Harder. Any questions or comments?
Senator McInnis: If I may ask a question of the officials, in 35(2), it’s, “The Minister shall designate any work, undertaking or activity that is part of a designated project and that the Minister considers likely to result in the death of a fish.” The word “likely” and “shall” as opposed to “may” — why is that?
Mr. Winfield: The scheme itself involves the creation of regulations that link to designated projects. Subsection 35.1(1) is the section that allows the minister — should I stop speaking?
Senator Harder: The bells are ringing, but we’re not sitting.
Mr. Winfield: The scheme is essentially to, first, identify the projects on a designated projects list in regulations, and then the minister further refines those components of the project that require a permit. So 35.1(1) is the subsection that essentially puts granularity on subsection 35(2), which links the regulation, and 35.1(1) narrows down the application to those elements that impact fish and fish habitat.
So the minister “shall” designate a work or undertaking — i.e., he will create the regulation — but the “may” part is that he will further refine this to make it link to the components that impact fish and fish habitat.
Senator McInnis: Thank you.
The Chair: Any other comments or questions? Is it your pleasure, honourable senators, to adopt the amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Shall we do a roll call once again, honourable senators? We all know the process.
I’m not sure what’s going on with the bells. We’re not even in the chamber. As a member of the House of Assembly in Newfoundland said, maybe we’re having a coup.
Ms. Cardinal: The Honourable Senator Manning?
Senator Manning: Abstain.
Ms. Cardinal: The Honourable Senator Bovey?
Senator Bovey: Yes.
Ms. Cardinal: The Honourable Senator Busson?
Senator Busson: Yes.
Ms. Cardinal: The Honourable Senator Campbell?
Senator Campbell: Yes.
Ms. Cardinal: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Cardinal: The Honourable Senator Gold?
Senator Gold: Yes.
Ms. Cardinal: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Cardinal: The Honourable Senator Petitclerc?
Senator Petitclerc: Yes.
Ms. Cardinal: The Honourable Senator Poirier?
Senator Poirier: No.
Ms. Cardinal: The Honourable Senator Ravalia?
Senator Ravalia: Yes.
Ms. Cardinal: The Honourable Senator Wells?
Senator Wells: No.
Ms. Cardinal: Abstentions, 1; yeas, 7; nays, 3.
The Chair: The motion is carried.
Number 29 is withdrawn. Let’s move on to number 30, Senator Poirier and RMP-CPC-23.22b.
Senator Poirier: This proposed amendment clarifies that carrying on a work, undertaking or activity that is part of a designated project is only prohibited where such work, undertaking or activity may result in the death of fish or the harmful alteration, disruption or destruction of fish habitat.
This slight modification will ensure project proponents and facility operators are not subject to regulatory encumbrances, and it removes unnecessary burden to the regulatory process. The prohibition of a designated project should not apply to parts of the project that pose no risk of death to fish or the harmful alteration, disruption or destruction of fish habitat.
The risk that gives rise to the designation of the project, therefore, the perception, as added, brings needed clarity to the provision and a balance where the intent is to protect the fish and fish habitat. It lightens the administrative and financial burdens by ensuring the provision is focused on the goal to protect fish and fish habitat.
Stakeholders, such as the Canadian Electricity Association, have recommended this amendment, and I believe, honourable senators, it would lighten the administrative burden and not cause undue delay. The focus is put where it is needed, and that is on the protection of the fish and the fish habitat. This amendment simplifies things for the industry. We heard evidence that the new designated projects section of Bill C-68 will be overly onerous for the stakeholders. The proposed amendments clarify that carrying on a work, undertaking or activity that is part of a designated project is only prohibited where such work, undertaking or activity may result in the death of fish or the alteration, disruption or destruction of fish habitat.
Some of the witnesses we heard from — one was Terry Toner, mentioned earlier, on April 11 at the committee meeting — and ATCO on April 30 at the committee meeting, also — had concerns that if this goes forward and it’s not changed, it would just make it complicated.
Therefore, I move:
That Bill C-68 be amended in clause 23, on page 22, by replacing line 16 with the following:
“or activity that is part of a designated project and that may result in the death of fish or in the harmful alteration, disruption or destruction of fish habitat, except in”
The Chair: Thank you, Senator Poirier. Any questions or comments?
Senator Gold: Given the amendment we just passed, I would like officials to explain what this may add or detract from the amendment and set of amendments Senator Harder just proposed. In particular, does this remove the decision as to what activity may be harmful to fish, et cetera, from the minister, which is what I understand the bill, as amended, proposes, to the proponent or activity? What are the effects, generally? Does that include giving to the operator the decision to decide prima facie whether he, she or it can proceed without a permit as opposed to giving them to the minister with the officials support behind him or her?
Mr. Winfield: The motion that was previously moved addresses the issue that has just been raised by adding specificity in section 35.1(1) that it is the work, undertaking or activity that is associated with the project that is the subject of the designated project, so the changes that are being proposed here have actually been addressed in the previous motion.
Senator Gold: Yes, I understand. The question is, what would be the impact on the bill as amended if we were to accept this amendment? Does it change things? Does it move any decision-making away from the minister? Is it redundant or does it complicate the bill?
Mr. Winfield: It is redundant.
Senator Gold: Thank you.
Senator Bovey: That was my question. It seemed redundant to me, but I just wanted the clarification. So it’s already covered.
Mr. Winfield: Correct.
Senator Poirier: Thank you. The amendment was to simplify things for the industry. If it was covered by Senator Harder’s amendment, then we don’t need to go forward with it. If it’s covered there, and the assurance is that it has, I’m satisfied. Thank you.
The Chair: Senator Poirier has withdrawn the amendment. Shall clause 23, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 24 carry?
Hon. Senators: Agreed.
The Chair: We are now at clause 31 with an amendment from Senator McInnis, TJM-CPC-25.27.
Senator McInnis: This is a consequential amendment. At our previous meeting, we approved the definition of “incidental take,” which means the death of a fish caused by the normal operation of work. This amendment is a duty to notify the death of a fish other than an incidental take.
So I move:
That Bill C-68 be amended in clause 25, on page 27, by replacing lines 27 and 28 with the following:
“scribed by the regulations of the death of fish — other than an incidental take or otherwise authorized under this act — or of a serious and imminent”
So I so move that consequential amendment.
Senator Campbell: The only question I have here is what effect — I’d like the officials to answer, if they can — this amendment would have on the reporting of incidental fish killed.
Mr. Winfield: The section that is being referred to here is a duty to notify, essentially informing the minister that something has taken place. In this case, it is referring to a fish kill or death of fish, which is associated with many industry activities but the hydro industry in particular seeks to manage this issue because it is simply part of the operation of hydro dams that some fish will be killed.
The language being used around incidental harm or incidental take is extremely challenging to define. What is a normal operation? For example, if there is maintenance works on a hydro dam that requires shutting down the hydro dam entirely and dewatering the area downstream, this could be considered a normal operation. It could result in a substantial killing of fish downstream of the dam. To capture this as an incidental harm not requiring a duty to notify limits the ability of the minister to inform the public of controls that may be in play to limit such harm to fish downstream of hydro facilities.
The intention of having a duty to notify is to allow the minister to be aware and to be able to take corrective measures if required. The language proposed around incidental take not requiring notification then limits the ability to take corrective action should there be a kill, a death of fish downstream of a facility or of any other industrial activity. This is not limited to hydroelectricity.
Senator Gold: I was also trying to understand the impact. We addressed an earlier amendment, and I just don’t remember exactly what your comments were in the original.
Mr. Winfield: We didn’t discuss the earlier amendment but it was the definition around what is an incidental. There was no debate on that issue, but this section requires that definition in order to have effect.
Senator Gold: Perhaps you could explain. I think we understand the concerns of the hydro industry that if they have to call every time they find one dead fish in their environs, that seems to be a heavy burden. How does it actually work in practice? Are their concerns addressed otherwise than through an amendment of this kind?
Mr. Winfield: It is typical for a proponent to report. If there is a fish kill, usually it is the public who informs the department or the proponent directly informs. We are not looking for single fish culls in terms of a fish has died downstream of a dam. We are looking at significant population-level impacts of concern, so we establish procedures and policies to be reasonable in the application of this section. It is understandable that, without that policy framework and guidance, it could be seen as overly burdensome, but we take a reasonable approach with respect to the identification and the reporting of fish kills.
Senator Gold: Thank you very much.
The Chair: Thank you, Senator Gold. Any other comments or questions?
Senator McInnis: If I could, this is some of the evidence that we heard, and I’m quoting here from Nova Scotia Power:
The challenge we have is that facilities have been built and approved based on the review of the day with an understanding that there is not zero mortality from very few of our facilities. We understand what that is. We monitor what that is. We tend to feel it’s appropriate if something unusual occurs and there’s an unexpected mortality of fish. It is actually a signal or a symptom that says we need to investigate this further. With the wording proposed in the bill, it would basically suggest that if you see one fish every day, you should call the emergency number and go through all the steps.
I could go on. Essentially, they’re taking it fairly responsibly now.
Mr. Winfield: Yes, I understand the interpretation is quite focused on one single fish. As I said, our policy guidance approach is not to base it on a single fish.
The first point you raised around having been approved under other legislation or for historical dams built in the 1920s, 1930s and 1940s, unfortunately, fish populations are in decline and standards have changed. We have species at risk legislation and other legislation that seeks to manage population sustainability. To state that a project was approved several decades ago and therefore we should accept the standards of the day unfortunately doesn’t really quite meet the conservation test of the act and the purpose of the act.
Senator McInnis: So what would you say if there is an incidental death of fish?
Mr. Winfield: We have regular communication with most hydro facilities when it comes to fish populations. We are asking for a reasonable approach of reporting fish kills that are of significant nature that require our attention. The death of a single fish does not require public reporting unless it’s a large-bodied fish species at risk such as sturgeon, which has occurred in some of the dams of the Columbia River.
Again, we have a very good dialogue with the industry. We will establish rules around reporting for the death of fish that is reasonable in nature. I think that is the approach that we will be taking.
Senator McInnis: You will be taking or that you are taking?
Mr. Winfield: We currently take and will continue to take, but this enforces it and codifies it in legislation.
Senator McInnis: The problem I have is that we heard evidence here from, I would say, responsible businesspeople, such as the Canadian Electricity Association and others, that believe there should be a definition of “incidental death of a fish.” So there is obviously some concern to them. I could read more of their evidence. I just don’t get that everything’s fine.
Mr. Winfield: I understand the concern around regulatory burden, the duty to report and not applying this on a de minimus approach. This section around duty to report is currently applied for pollution events, and there are standard approaches to report whenever there is a pollution event. There’s a prefillable form and an email that’s sent immediately identifying an issue, which allows the government to work with the industry to remediate the issue.
In terms of burden, as I say, we have regular communication with the industry. We would seek to make this as efficient as possible. But the raising of the language and putting it into the statute creates a great deal of uncertainty around whether there can be any intervention when a fish is killed, because the broad definition of “incidental take” means that defining what is a normal operation and what is an acceptable level of fish kill are not set out in this language. It’s very broad, and it prevents the government from taking action should there be a significant fish kill, because it could be argued that it is a normal, incidental harm that is as a result of the operation of a facility that may have been authorized many decades ago. We just know that that clashes with conservation objectives for populations of very large public interest, like Atlantic salmon, for example, where the public expects the government to respond. The mechanism for us to intervene is through the notification process.
But I completely appreciate the concern about being reasonable, efficient and not taking a de minimis approach to the issue.
Senator McInnis: So am I to take it, then, subliminally, that you agree with it?
Mr. Winfield: We agree with the outcome but not with the construct. The construct of putting it into the act, therefore, creates a high degree of uncertainty around our ability to actually manage fish populations where there is a hydroelectric or other industrial facility. Essentially, if there was a large fish kill, with the definition here, there would be no duty to report it and therefore no ability for government intervention.
Senator McInnis: I think if we look at “incidental take,” it means “the death of a fish caused by the normal operation of a work,” and it goes on further. I don’t have it in front of me.
Mr. Winfield: Right. So it’s “the normal operation of the work” that is complicated for us, because “the normal operation of a work” of a dam built several decades ago could be to completely shut down the dam and de-water all of the area downstream of that dam. That could be deemed a “normal operation” of the day when that dam was constructed 10, 20, 30 or 50 years ago. It is that issue that we struggle to make sense of when it comes to application.
Senator McInnis: I’m sorry, I’m not going to beat this to a pulp here, but you say you work with them on a regular basis.
Mr. Winfield: Yes. We have memoranda of understanding with the Canadian Electricity Association and with many of the industries, province to province. We have an ongoing working relationship with most of the major facilities, especially where we have populations of concern and large public interest in conserving fisheries around hydro dams.
Senator McInnis: I live just below one. It’s been there since 1925.
Anyway, Mr. Chair, where are we at, then? We approved clause 1, page 2, the definition of “incidental take.” This was a consequential amendment. Where are we at with that?
The Chair: We’re to a point where anybody can comment further, and then we’re going to accept or reject it, I guess.
Senator McInnis: I’m in the hands of the clerks, I would think. In a way, the definition that we approved before was consequential to this one in the sense that this is the operative provision. It seems to me that if we are free to accept or reject this one, that would then render the clause that we approved earlier kind of meaningless, but I don’t know what the mechanism would be.
If this amendment is defeated, then it would have no legal consequence for the bill; we’d have this sort of dangling definition. I’m not sure what the drafting procedure is. Perhaps it could be dealt with in the other place. I don’t really know. This has to go back to the Commons.
But I think we’re free, notwithstanding what we approved before, to vote on this one, because it really is the operative provision. The other one is the definitional one. I would suggest we proceed to the question.
The Chair: Okay. I have been advised that, if necessary, if the bill hasn’t been adopted, we can go back and vote on the other amendment again. I wasn’t aware we could do that, but we live in a democracy. That’s what it’s called. It’s as long as the bill hasn’t been adopted, that is my understanding.
Senator McInnis: Do you want me to read the previous one? Does everyone remember what it was?
The Chair: No, we need to vote on this one first.
Senator McInnis: This one. Really?
The Chair: Yes. You don’t believe me?
Senator McInnis: I just thought we’d go back and deal with the definition, but anyway.
The Chair: Unless you believe it affects this vote here.
Senator McInnis: It would certainly make this irrelevant if it’s defeated.
The Chair: We go back if we need to go back. On this particular vote on this amendment, do you think you have something to add to this vote?
Senator McInnis: If we went back and voted on clause 1, it would make clause 25 irrelevant.
Senator Gold: If we vote on this one now, that will determine whether the previous clause is or is not relevant. I think we need to vote on this one and then everything will follow logically.
The Chair: Okay. Are we clear?
Senator McInnis: Yes.
The Chair: I’m glad someone is.
Is it your pleasure, honourable senators, to adopt the amendment?
Some Hon. Senators: No.
The Chair: We’re going to do a roll call, I believe.
Ms. Cardinal: The Honourable Senator Manning?
Senator Manning: Yes.
Ms. Cardinal: The Honourable Senator Bovey?
Senator Bovey: No.
Ms. Cardinal: The Honourable Senator Busson?
Senator Busson: No.
Ms. Cardinal: The Honourable Senator Campbell?
Senator Campbell: No.
Ms. Cardinal: The Honourable Senator Francis?
Senator Francis: No.
Ms. Cardinal: The Honourable Senator Gold?
Senator Gold: No.
Ms. Cardinal: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Cardinal: The Honourable Senator Petitclerc?
Senator Petitclerc: No.
Ms. Cardinal: The Honourable Senator Poirier?
Senator Poirier: Yes.
Ms. Cardinal: The Honourable Senator Ravalia?
Senator Ravalia: No.
Ms. Cardinal: The Honourable Senator Wells?
Senator Wells: Yes.
Ms. Cardinal: Abstentions, 0; yeas, 4; nays, 7.
The Chair: The motion is defeated.
We’ll go back to number four. You don’t have that one in your package now unless you have it from the previous time.
Senator Gold: It’s the definition of insanity.
The Chair: Senator McInnis, do you have it? I’m going to ask Senator McInnis to read it, as I realize everyone doesn’t have it. If anyone has a misunderstanding or is unclear, please ask and we’ll make sure to make a copy of it. We can make copies very quickly here, I have been told. We are going to give copies to you.
While we are waiting for that, we had a witness in relation to shore skipper status. I had a conversation with Senator Christmas on that as sponsor of the bill. It was an issue that was raised here. Senator Christmas contacted the ministry, and we have a response from the minister in relation to that. I’m going to read it. We won’t be finishing the bill today, as you all know now. I’m going to read this into the record. If anybody has any questions or concerns, they can raise them at our next meeting.
It’s addressed to me as the chair and is from the Minister of Fisheries and Oceans. It states:
I would like to thank the Senators on the Fisheries committee for their study thus far on Bill C-68, An Act to amend the Fisheries Act, and I look forward to the continued debate in the Chamber once clause-by-clause is complete.
Over the past few weeks of committee testimony, there has been a diverse group of witnesses sharing their concerns and support to the Bill on a variety of topics. One of the issues that was raised during testimony, and indeed directly to my office by Senator Christmas, was on the issue of exceptions to the owner-operator policy for “shore-skipper” status in Newfoundland and Labrador.
I would like to reiterate this Government’s strong and continued support for maintaining the independence of our inshore fleet in Atlantic Canada and Quebec. This commitment is reflected in C-68 and the amendments we are seeking that will preserve and enshrine the policy and legislation. As you know, the Government has introduced provisions in the Fisheries Act reinforcing the Minister’s ability to consider social, economic, and cultural factors in decision-making as well as the preservation and promotion of the independence of licence holders in commercial inshore fisheries. Clarified regulation making authorities have also been proposed.
Draft regulations are under development to enshrine certain elements of the inshore fisheries policies. These proposed regulations will require licence holders to personally fish their licence, restrict licence issuance to only individuals and wholly owned companies and restrict the transfer of the rights and privileges associated with a licence. These proposed regulations will be put forward for consultation in Canada Gazette Part 1 for further comment by stakeholders.
Historically, as each of the inshore policies were introduced, it was recognized that the application of these policies in some specific cases, would be disruptive and therefore exceptions to policy were granted in a limited number of circumstances. For example, some licence holders were given “shore-skipper” status in Newfoundland and Labrador whereby an enterprise owner in the 12.2m (40’) Length overall or greater fleet were permitted to operate their enterprise from shore and have a designated operator in place. This policy ended in 1995 and those with the “Shore-Skipper” status were permitted to retain this status through a grandfathering approach for as long as they held their enterprise. There are only 5 remaining licence holders with “Shore-Skipper” status in the Newfoundland and Labrador region currently, out of the original 30. The remaining 5 licence holders with “Shore-Skipper” status will be exempted from the requirement in the new proposed inshore regulations to fish their licence personally.
The Department does recognize that there are times when it is not possible for licence holders to fish their licence personally and the Fishery (General) Regulations provide for licence holders to have a substitute operator designated to fish their licence for them. DFO regional licensing policies outline the types of substitute operator designations allowed and their time limits. For example, Newfoundland and Labrador Region allows 120 days “casual” substitute operator designation of which licence holders can avail themselves.
The use of substitute operators will continue to be permitted under the new regulatory regime. However, it should be noted that during consultation on the Inshore Regulatory Proposal, the Department signalled an intent to strengthen the application of the substitute operator policies and to pursue potential changes to the existing substitute operator policies in order to increase consistency across regions.
Stakeholder reaction to the Department’s intent to review substitute operator allowances were varied — ranging from support for a more strict regime to prevent erosion of the owner-operator principal to calls for increased flexibility to use substitute operators. There is currently no designated or substitute operator allowance for licence holders to allow someone else to fish their licences indefinitely as a “Shore-Skipper” and this will be considered by many inshore fish harvesters as a significant weakening of the owner-operator policy.
The Department will pursue further dialogue with stakeholders about the issue of substitute operator allowances in order to identify a strong and fair regime that will balance needed flexibilities while also striving to preserve the underlying objectives of the owner-operator policy.
Yours sincerely,
Minister Jonathan Wilkinson, Fisheries and Oceans
I just wanted to read that into the record, as that was an issue that was raised. As I said, we have time to follow up with anyone who wishes to have a discussion on the letter at our next meeting.
Senator Gold: Chair, can we proceed to the vote and try to get as much of this done today as we can?
The Chair: Yes.
Senator McInnis: On clause 1, page 2, I had moved:
That Bill C-68 be amended, in clause 1, on page 2, by adding the following after line 29:
“incidental take means the death of a fish caused by the normal operation of a work, undertaking, activity or designated project that was completed before the coming into force of this definition and was, at the time of its completion, authorized by law; (prise accessoire).”
The Chair: Is it your pleasure, honourable senators, to adopt the amendment?
Some Hon. Senators: No.
Senator Gold: I said “no” meaning I don’t support this amendment that we voted it in already.
Senator Poirier: Yes. It’s already been agreed upon.
Senator Gold: I know, but I understood we were going back to decide whether we would remove it because it’s been rendered irrelevant because we defeated the amendment. So could somebody clarify what the procedure is to remove the definition?
The Chair: Senator McInnis, you can either ask to remove it, or withdraw it, or have a vote.
Senator McInnis: Well, it’s not relevant.
Senator Gold: Would you be willing to withdraw the amendment?
Senator McInnis: Yes.
The Chair: Senator McInnis has withdrawn the motion. Senator McInnis, you need to request permission to withdraw your motion.
Senator Gold: We don’t want to have a coup here.
Senator McInnis: Colleagues, could I please withdraw the motion?
The Chair: Senator McInnis has asked to withdraw his motion. Are all senators agreed?
Hon. Senators: Agreed.
The Chair: Agreed. We don’t need a roll call on that one.
Does clause 1 now carry, as amended?
Hon. Senators: Agreed.
The Chair: I’m glad we have a wealth of experience here at the end of the table assisting me.
Shall clause 25 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 26 carry?
Hon. Senators: Agreed.
The Chair: On number 32, we have an amendment from Senator Harder, PH-27.30.
Senator Harder: Thank you very much. This amendment is consequential to the previous designated projects amendment and the amendment adopted in the house committee put forth by NDP MP Fin Donnelly regarding the flow of water. It also addresses the consequential effects of the renumbering of the designated projects provisions in clause 23. There are three separate amendments. I will move the first. I move:
That Bill C-68 be amended in clause 27, on page 30, by replacing line 13 with the following:
“35(2)(b) or (c) or subsection 35.1(3) or 35.2(7), or with”
The Chair: Any comments or questions on Senator Harder’s amendment? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Next amendment from Senator Harder, PH-27.31a.
Senator Harder: Again, what I just stated. I move:
That Bill C-68 be amended in clause 27, on page 31, by replacing lines 17 and 18 with the following.
“under subsection 34.3(1), an order of the Minister made under subsection 34.3(2) or (3) or a provision of a regulation made under subsection 34.3(7),”
The Chair: Thank you Senator Harder. Any comments or questions?
Senator Poirier: I’m wondering if this gives the minister more power. We have heard witnesses repeatedly say there should be time given for consultation and implementation of the bill, particularly when it comes to the regulations. What assurance and time frame is the government giving to stakeholders on the regulations and regional training?
Mr. Winfield: Sorry, I heard only part of the question. I think your question relates to how long before we develop such a regulation? Could you repeat the question?
Senator Poirier: It’s the power of the minister. I’m wondering if this gives more power to the minister. There are three amendments back-to-back with the others. I’m just wondering if this gives more power to the minister. We know that witnesses over the last few weeks have repeatedly shared that they have concerns given the time for the consultation and implementation of the bill, particularly when it comes to the regulations. They are asking what assurance and time frame is the government giving to stakeholders on the regulations for the regional training.
Mr. Winfield: I’m confused by the question because I’m responding to the motion. Is it related to this motion?
Senator Poirier: Yes.
The Chair: Do you want to repeat the question?
Senator Poirier: I can repeat it again. This motion seems to give the minister more power. I’m asking if that’s a fact and it does give the minister more power.
The second one, we have heard repeatedly from witnesses that there should be time given for the consultation and implementation of this bill, particularly when it comes to the regulations. I want to know what assurance and time frame is the government giving to stakeholders on the regulations and for the regional training.
Mr. Winfield: Thank you. On the regulation, these are enabling provisions. There has been no work moved yet on developing those regulations. The process of developing those regulations is first to enter into public consultations and then go through the process of regulatory development, which typically takes 18 to 24 months in a normal cycle. With respect to advanced notice to stakeholders of any regulation being developed, we are one to two years away from any regulation coming into effect, should we start on the coming into force of the act.
With respect to preparation before coming into force, you may be aware that in Budget 2018 investments were made in building up the staff contingency and developing training and outreach for our staff and working with stakeholders to prepare them for the coming into force. We have been actively engaged with our stakeholder community to explain what would come into force when, should the bill pass, and what will be our policy frame to implement those provisions. We are currently actively hiring, training and communicating with our stakeholder community on our coming into force and our state of readiness.
I would note the coming into force date has not been established at this time. This is a decision the minister will need to make, should the bill pass. It is a coming into force provision found in the act.
Senator Poirier: Is this giving the minister more power?
Mr. Winfield: This particular section?
Senator Poirier: Yes.
Mr. Winfield: This particular section we are referring to enables the minister to create a regulation for flow, so in that sense it does give the minister more power. The section we are referring to here and the motion that is being passed is simply to clarify the offence provision, that failure to meet the conditions of a regulation is an offence under the act.
Senator Poirier: Thank you for clarifying it.
The Chair: Any more questions or comments? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Next amendment is from Senator McInnis. TJM-CPC-27.30.31.
Senator McInnis: Is that not the one that was going to be withdrawn?
The Chair: No.
Senator McInnis: Which one is this?
Ms. Cardinal: It is clause 31 that is to be withdrawn.
Senator McInnis: That’s part of the designated project, which would be ranked as irrelevant.
The Chair: Are you asking for permission to withdraw?
Senator McInnis: Please withdraw it.
The Chair: Senator McInnis is requesting permission to withdraw. Do we have agreement?
Hon. Senators: Agreed.
The Chair: No trouble getting agreement on that one. We have another amendment proposed by Senator Harder PH-27.31b.
Senator Harder: This is the last in this order of consequential amendments.
That Bill C-68 be amended in clause 27, on page 31, by replacing line 29 with the following:
“section 35.1(4), or”
The Chair: Any comments or questions on Senator Harder’s amendment? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Shall clause 27 as amended carry?
Hon. Senators: Agreed.
The Chair: Number 36 has been withdrawn. We’ll move to number 37. We have an amendment from Senator Wells, DW-28.32.
Senator Wells: Colleagues, this is once again via Senators Christmas and Griffin. This relates to third party habitat banking, which I spoke about earlier. This proposed amendment will expand the legislated habitat banking system to allow third parties such as conservation groups to participate.
Colleagues, this goes to Senator Gold’s comment in my initial amendment regarding First Nations. First Nations would now, if this amendment passes, be included as a group that could participate or generate a project that leads to conservation. Groups like Ducks Unlimited, salmon enhancement groups — we have a few of those in Newfoundland and Labrador — wetlands preservation groups. This would open up to third-party groups dedicated to protecting the ecology. As the bill is currently worded, only a proponent can create the habitat bank. That’s already part of the legislation. This would expand it to third-party groups like First Nation salmon enhancement groups.
Habitat banking is an excellent example of a private sector solution to conservational challenge. In fact, because it would be administered by DFO, contributed to by private industry and private groups non-industry, it is an excellent example of a public-private partnership. While the habitat banking aspect of the bill is a positive one, it can be improved to fully unlock the potential of the private sector — not just companies but the private sector — in striving to achieve the best possible environmental outcomes.
The amendment would encourage restoration by those who have specific conservational expertise and foster our market for the credits, thus leading to additional ecological protection. Under this, they would be able to do it in a timely fashion because the proponent, under existing legislation, would not have to go out and find something. There would be groups ready and willing to do the heavy lifting on the ecological protection.
As we heard in committee, colleagues, this amendment has the support of several stakeholder groups, including the Canadian Wildlife Federation and the Canadian Ferry Association. The amendment is a win for industry and the environment and would provide guidance and clarity to the work that DFO already carries out. DFO already has to monitor offsets created under the act to enforce authorization conditions. It might actually take fewer DFO staff to monitor a few larger habitat banking projects than to monitor many individual offsets.
Colleagues, if there is any concern about requests for funds, around which the Senate treads carefully, there is no request for funding in this amendment. There is no line item in the budget. We are not telling the government how to collect the funds; we’re simply ensuring that the habitat banking structure and provisions as enshrined by law have the best possible structure to achieve the ecological benefits that it would carry.
Therefore, colleagues, I have an amendment to clause 28 on pages 32 to 34. I believe the amendment to be a friendly one, and one that improves conservation outcomes and increases certainty for industry. Obviously, it is more inclusive to the groups that are currently not permitted to contribute under the existing paradigm.
I move:
That Bill C-68 be amended in clause 28,
(a) on page 32,
(i) by replacing line 13 with the following:
“tivity that is carried on for the purpose of”
(ii) by adding the following after line 22:
“habitat bank sponsor means a proponent or any other person who proposes the carrying on of a conservation project. (parrain de réserve d’habitats)”
(iii) by replacing line 24 with the following:
“between any habitat bank sponsor and the Minister under section”
(iv) by replacing lines 27 and 28 with the following:
“proponent means any person who proposes the carrying on of any work, under-”
(v) by replacing lines 37 and 38 with the following:
“(a) establish a system for the creation, allocation, management, transfer and exchange of habitat credits in rela-”, and
(vi) by replacing line 40 with the following:
“(b) issue certificates respecting the”
(b) on page 33,
(i) by replacing lines 2 and 3 with the following:
“the Minister may enter into arrangements with any habitat bank sponsor.”, and
(ii) by adding the following after line 30:
“(e.1) the terms under which the habitat credits earned under the arrangement may be transferred or exchanged;”; and
(c) on page 34
(i) by replacing line 5 with the following:
“creation, allocation, management, transfer and exchange of habitat credits,” and
(ii) by replacing line 10 with the following:
(c) “respecting an arrangement with any habitat bank sponsor.”
The Chair: Thank you. Any comments or questions?
Senator Bovey: Thank you for this, Senator Wells. As before, I would like to ask the officials what the impact of this is. Is there an impact? What are the consequences if this amendment were approved?
Mr. Winfield: It’s the same discussion as per the previous motion on habitat banking. This does create a whole new institution, if you will, of private-sector habitat banking for which we do not have experience and on which we have not consulted to date with respect to the intention to move forward. We did hear a lot during the consultation on Bill C-68 of the interest in moving forward here, so there is certainly an appetite. But in terms of the general consequences, they are, as mentioned before, the issue around provincial jurisdiction and private property rights. Indigenous communities have raised concern around the privatization or transfer of aquatic resources as an asset on the open market.
That being said, the amendments that are being proposed here essentially create the logical structure for the motion that has previously been passed. This defines and amends the terms that are in Bill C-68 to allow third-party habitat banking to proceed.
So it’s the same discussion that we had before. This brings the logic to the model, but as mentioned, the model would be entirely new for Canada and it will therefore be open for much debate, for sure.
Senator Bovey: May I ask a followup on this one?
The Chair: Yes, Senator Bovey. Go ahead.
Senator Bovey: Putting my logical hat on, as before, you’ve clearly stated that this has an interprovincial impact. It’s certainly a very interesting proposal, but it doesn’t sound to me as if it has had the depth of study that perhaps it should have before it’s embedded in a bill and becomes legislation. I wonder if you would support an idea of an observation, perhaps, saying that this concept is certainly worthy of further study but that it might be premature and lacking some of the background that is needed to make it into legislation right now.
Mr. Winfield: I would agree. The components that we were not aware of are the implications to the whole management of money and what regulatory authority should be used to actually administer the funds.
Everything that’s been commented upon to date is accurate with respect to there being a lot of experience in the department working with proponents around habitat banking, but it is the scheme of identifying credits and managing those credits entirely as units of habitat as compared to money. As soon as we monetize the unit of fish habitat, then we get into some interesting discussions around who decides the value, who manages the money and how the money will be transferred and who is accountable. That is not typically the domain of the Department of Fisheries and Oceans Canada, so it does require careful consideration as to how we should move forward.
Senator Wells: I would like to comment on that further. This is exactly why this would come into force by a proclamation of cabinet, so that legwork could be done. This was advocated for by a number of stakeholder groups, including First Nations groups. In the absence of this, as a natural extension of the earlier amendment that was passed, third-party proponents of wetland preservation, ecological upgrades and things like that would be excluded. Right now, there is a like-for-like process in place that is solely decided by the proponent — a mining company or whatever company might be creating the deleterious effect on habitat — which is a negotiation between the Department of Fisheries and Oceans and the proponent. This simply adds beneficiaries of these expenditures of credits to other groups that have a stake in the ecological preservation of the area.
Senator Petitclerc: It’s been partly answered, but what I’m trying to get at — and either the officials or Senator Wells can answer — is this: How relevant is this amendment without the one that we declined?
Senator Wells: As Mr. Winfield said, it’s a natural extension of the amendment that passed earlier. It has been advocated for by the Canadian Wildlife Federation, First Nations groups and a salmon federation in Newfoundland and Labrador. They would like access to do this wetland and river enhancement — ladder systems. Right now, that is held in the domain of negotiation between DFO and the company or group that’s creating the deleterious effect. This amendment, as a natural logical extension, expands the use of those funds or credits, which are subject to development of the system by DFO after consultation and not after coming into force but before coming into force, it opens it up for those groups to do the good work they do.
The Chair: Any other comments or questions on the proposed amendment? Is it your pleasure, honourable senators, to adopt the amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Let’s do a roll call.
Ms. Cardinal: The Honourable Senator Manning?
Senator Manning: Yes.
Ms. Cardinal: The Honourable Senator Bovey?
Senator Bovey: No.
Ms. Cardinal: The Honourable Senator Busson?
Senator Busson: Yes.
Ms. Cardinal: The Honourable Senator Campbell?
Senator Campbell: Yes.
Ms. Cardinal: The Honourable Senator Francis?
Senator Francis: No.
Ms. Cardinal: The Honourable Senator Gold?
Senator Gold: No.
Ms. Cardinal: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Cardinal: The Honourable Senator Petitclerc?
Senator Petitclerc: Yes.
Ms. Cardinal: The Honourable Senator Poirier?
Senator Poirier: Yes.
Ms. Cardinal: The Honourable Senator Ravalia?
Senator Ravalia: Yes.
Ms. Cardinal: The Honourable Senator Wells?
Senator Wells: Yes.
Ms. Cardinal: Abstain, 0; yea, 9; nay, 2.
The Chair: The motion is carried.
The next amendment is number 38D from Senator Wells, DW-28.33.
Senator Wells: Thank you, colleagues, for the support on the previous amendment.
This is again a follow-on and provides some clarity around habitat banking. Really, colleagues, we’re doing very much the early work on the establishment of this program. Of course, DFO will continue to widely consult in the full establishment of the regulations around it.
This, colleagues, refers to the service area for habitat banking. The service area is defined in Bill C-68 as “. . . the geographical area that encompasses a fish habitat bank and one or more conservation projects and within which area a proponent carries on a work, undertaking or activity.” That’s existing in the bill right now.
The Canadian Wildlife Federation, among others, their senior biologist, said that there’s cause for concern about how large a service area might be, given that this definition includes no specifications on the size of the service area. In fact, as it stands now, that service area would encompass all of Canada. As currently written, a service area would be that.
The intent of this amendment is to ensure that the benefits of an offsetting habitat bank, which is the way we’re going in that the habitat bank is there — the purpose is that the bank benefits remain local in comparison to the work, undertaking or activity. So, colleagues, a mining project near St. John’s could not be offset by a habitat project in Saskatchewan. It would keep ideally in the same watershed, if we’re going to do a like-for-like or a one-for-one. This amendment maintains needed ministerial flexibility so the minister has the unfettered right, while protecting local fish populations, and providing certainty to industry around where the credits can be used. I know certainly, colleagues, in Newfoundland, if there was a project that had a deleterious effect on an ecological area or on an area that contains fish, if the offset was used 3,000 miles away across many watersheds in another provincial jurisdiction, it wouldn’t make logical sense about a like-for-like program or attitude toward the bank. Habitat banking benefits should remain, as the principle of this, as local as possible, and use that as a guiding principle.
I consulted with the law clerk on this question, and the comment back was there wouldn’t be any issue because the way the amendment is worded, an offset habitat bank must be as close as practicable or within the same province. It still doesn’t limit the minister from having those funds expended in Saskatchewan, but, as a guiding principle, it keeps it either within the watershed area or certainly within the province.
Projects in the ocean — in case that question is on your mind — would be captured by the “as close as practicable” part of the amendment, and the minister would still have the needed flexibility to determine what is as close as practicable.
Thank you, colleagues.
The Chair: Thank you, Senator Wells. Any comments or questions?
Senator Wells: Let me provide the amendment first, if I may.
Therefore, colleagues, I move:
That Bill C-68 be amended in clause 28,
(a) on page 33, by replacing line 34 with the following:
“42.03(1) A proponent may only use their certified habitat”; and
(b) on page 35, by adding the following after line 2:
“(2) A proponent may only use their certificated habitat credit if the Minister concludes that the fish habitat bank and the work, undertaking or activity referred to in subsection (1) are located
(a) as close as practicable to each other; or
(b) within the same province.”.
I wanted to say, colleagues, “as close as practicable” would give that guiding principle to have it, if possible, in the same watershed or river system. In the absence of a project or project advocate for ecological upgrade, we can say within the same province, understood that if there’s no other activity in the same province that could be undertaken for remediation, the minister has that unfettered right to make it across Canada.
The Chair: Thank you, Senator Wells.
Senator Busson: Actually, that was my question. I’m up in the air. For instance, there are a lot of river projects between B.C. and Alberta that would probably extend into one province or the other, but this enables that.
Senator Wells: Exactly. It’s covered, Senator Busson, on the “as close as practicable.” It doesn’t limit it to within the province because, you’re right, there are watershed systems that transcend provincial boundaries.
Senator Busson: Thank you.
The Chair: Any other comments or questions on the proposed amendment? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 28, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 29 carry?
Hon. Senators: Agreed.
The Chair: Number 39 has been withdrawn. Shall clause 30 carry?
Hon. Senators: Agreed.
The Chair: We’re at clause 31 now, which is number 40 on your list. We have several amendments from Senator Harder on this one. I want to begin with your first, PH-31.37B.
Senator Harder: The next number of amendments are consequential amendments as part of the designated project scheme. The numbering of subsections in clause 23 shifted the addition of the amendments to section 35.1. Accordingly, when subsections 35.1 are mentioned in subsection 43(1) in clause 31, they must be aligned with the changes made in section 35(1).
Therefore, I move:
That Bill C-68 be amended in clause 31, on page 37, by replacing line 22 with the following:
“ferred to in subsection 35.1(3)”
The Chair: Any comments or questions? Hearing none, honourable senators, do we adopt the amendment?
Hon. Senators: Agreed.
The Chair: Senator Harder’s next one is entitled PH-31.37.
Senator Harder: I move:
That Bill C-68 be amended in clause 31, on page 37, by replacing line 27 with the following:
“35.1(3), or for the amendment, suspension or cancella-”
The Chair: We’ll take it. Any comments or questions? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Thank you. Senator Harder’s next amendment is entitled PH-31.38a.
Senator Harder: I move:
That Bill C-68 be amended in clause 31, on page 38, by replacing line 3 with the following:
“(c) or for issuing permits under subsection 35.1(3), or”.
The Chair: Any comments or questions? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Senator Harder’s next amendment is entitled PH-31.38b.
Senator Harder: I move:
That Bill C-68 be amended in clause 31, on page 38, by replacing lines 7 to 9 with the following:
“classes of projects that are likely to affect fish or fish habitat;”.
The Chair: Any questions or comments? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Thank you. Senator Harder’s next amendment is entitled PH-31.38c.
Senator Harder: I move:
That Bill C-68 be amended in clause 31, on page 38, by replacing line 13 with the following:
“35(5), or a permit referred to in subsection 35.1(5), as”.
The Chair: Any comments or questions? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Senator Harder’s final amendment is PH-31.38d.
Senator Harder: I move:
That Bill C-68 be amended in clause 31, on page 38, by replacing line 22 with the following:
“or (6), or a permit under subsection 35.1(5), as the”.
The Chair: Any questions or comments on the proposed amendment? Hearing none, is it your pleasure, honourable senators, to corporate the amendment?
Hon. Senators: Agreed.
The Chair: Thank you, Senator Harder.
Shall clause 31, as amended, carry? Sorry, number 46 is withdrawn. Senator McInnis has withdrawn that. Shall clause 31, as amended, carry?
Hon. Senators: Agreed.
The Chair: We’ll move ahead to clause 32, which is number 47 on your list. We have an amendment from Senator Harder PH-32.41.
Senator Harder: This is simply to replace the word “the” in front of “permissions” with “those” to correct a drafting error. Therefore, I move:
That Bill C-68 be amended in clause 32, on page 41, in the English version, by replacing lines 1 and 2 with the following:
“(2) The permissions, leases and licences referred to in subsection (1) — including their”.
The Chair: Any questions or comments on the proposed amendment? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Shall clause 32, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 33 to 58 carry? There are no amendments on any of those, just to be sure everybody is aware.
Hon. Senators: Agreed.
The Chair: Moving ahead to number 48. There are some new clauses here being proposed by Senator Harder, under PH-58.1_60a.v3.
Senator Harder: Thank you, colleagues. This amendment coordinates the implementation of Bill C-68 with Bill S-203, the whale and dolphin captivity bill, and Bill S-238, the shark finning bill. The government intends to give Bill C-68 and Bill S-203 Royal Assent on the same occasion so that the coordinating changes come into effect immediately.
The coordinating changes repeal the import and export measures in WAPPRIITA, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, in Bill S-203, as I discussed yesterday, and in Bill S-238, if the latter passes, as the Fisheries Act measures come into force.
This amendment also grants certain exemptions to the federal government in relation to an offence in Bill S-203, particularly to authorize the possession of cetacean reproductive materials for scientific purposes. Under Bill S-203, only provincial authority may grant such exemptions. This adds federal authority.
Therefore, I move:
That Bill C-68 be amended on page 15 by adding the following after line 26:
“Coordinating “”Amendments
58.1(1) Subsections (2) to (8) apply if Bill S-203, introduced in the 1st session of the 42nd Parliament and entitled An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins) (in this section referred to as the “other Act”), receives royal assent.
(2) On the first day on which both section 2 of the other Act and this subsection are in force, the Fisheries Act is amended by adding the following after section 23.2:
“23.3(1) Subsection 445.2(2) of the Criminal Code does not apply to a person who conducts scientific research in accordance with a licence issued by the Minister under subsection (2).
(2) The Minister may issue a licence authorizing any person to conduct scientific research with respect to cetaceans and impose any conditions that the Minister considers appropriate in the licence.
23.4(1) Paragraph 445.2(2)(a) of the Criminal Code does not apply to a person who keeps a cetacean in captivity in the best interests of the cetacean’s welfare in accordance with a licence issued by the Minister under subsection (2). (
2) The Minister may issue a licence authorizing any person to keep a cetacean in captivity in the best interests of the cetacean’s welfare and impose any conditions that the Minister considers appropriate in the licence.
23.5 Subsection 445.2(2) of the Criminal Code does not apply to the employees of any federal entity set out in Schedules I to V of the Financial Administration Act who are performing their duties or functions in relation to scientific research with respect to cetaceans and to persons who are assisting them.
23.6 Paragraph 445.2(2)(a) of the Criminal Code does not apply to the employees of any federal entity set out in Schedules I to V of the Financial Administration Act who are performing their duties or functions in relation to the keeping of a cetacean in captivity in the best interests of the cetacean’s welfare and to persons who are assisting them.”
(3) If section 3 of the other Act comes into force before section 15 of this Act, then section 28.1 of the Fisheries Act is repealed.
(4) If section 15 of this Act comes into force before section 3 of the other Act, then that section 3 is deemed never to have come into force and is repealed.
(5) If section 3 of the other Act comes into force on the same day as section 15 of this Act, then that section 3 is deemed never to have come into force and is repealed.
(6) If sections 4 and 5 of the other Act come into force before section 15 of this Act, then section 7.1 and subsection 10(1.1) of the Wild Animal and Plant Protection and Regulation of International and Inter-provincial Trade Act are repealed.
(7) If section 15 of this Act comes into force before sections 4 and 5 of the other Act, then those sections 4 and 5 are deemed never to have come into force and are repealed.
(8) If sections 4 and 5 of the other Act come into force on the same day as section 15 of this Act, then those sections 4 and 5 are deemed never to have come into force and are repealed.
58.2(1) Subsections (2) to (7) apply if Bill S-238, introduced in the 1st session of the 42nd Parliament and entitled An Act to amend the Fisheries Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (importation and exportation of shark fins) (in this section referred to as the “other Act”), receives Royal Assent.
(2) If section 2 of the other Act comes into force before section 18.1 of this Act, then section 32 of the Fisheries Act, as enacted by that section 2, is repealed.
(3) If section 18.1 of this Act comes into force before section 2 of the other Act, then that section 2 is deemed never to have come into force and is repealed.
(4) If section 2 of the other Act comes into force on the same day as section 18.1 of this Act, then that section 2 is deemed never to have come into force and is repealed.
(5) If sections 3 and 4 of the other Act come into force before section 18.1 of this Act, then subsections 6(1.1) and 10(1.1) of the Wild Animal and Plant Protection and Regulation of International and Inter-provincial Trade Act are repealed.
(6) If section 18.1 of this Act comes into force before sections 3 and 4 of the other Act, then those sections 3 and 4 are deemed never to have come into force and are repealed.
(7) If sections 3 and 4 of the other Act are come into force on the same day as section 18.1 of this Act, then those sections 3 and 4 are deemed never to have come into force and are repealed.”.
Those were a lot of words to simply coordinate.
The Chair: Now that everybody is clear on that, are there any comments or questions on the proposed amendment? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Senator Harder, do you need a break? Okay, you’re on a roll. Let’s keep going.
The next amendment from Senator Harder is PH-58.1_60b.
Senator Harder: Colleagues, this amendment makes two legal clarifications that Marineland has requested, which are consistent with the legal intent of Bill S-203. The first is to clarify that Marineland owns the calves of whales that will be pregnant at the coming into force of Bill S-203, and the second is to clarify that the performance offence only applies to performances for entertainment purposes taking place in Canada and not to the sale of tickets for foreign shows.
Let me then move:
That Bill C-68 be amended on page 60, by adding the following after line 26:
“Coordinating Amendments
58.1(1) Subsections (2) to (4) apply if Bill S-203 introduced in the 1st session of the 42nd Parliament and entitled An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins) (in this section referred to as the other Act) receives royal assent.
(2) On the first day on which both section 2 of the other Act and this subsection are in force, the portion of subsection 445.2(2) of the Criminal Code before paragraph (a) is replaced by the following:
(2) Subject to subsections (2.1) to (3.1), every person commits an offence who:
(3) On the first day on which both section 2 of the other Act and this subsection are in force, section 445.2 of the Criminal Code is amended by adding the following after subsection (2):
(2.1) If a cetacean is gestating on the day on which this subsection comes into force, paragraphs (2)(b) and (c) do not apply in respect of that cetacean for the period in which it gestates and includes the day on which this subsection comes into force.
(2.2) Paragraph (2)(a) does not apply to the offspring of a cetacean if that offspring was born immediately after a gestational period that included in the day on which this subsection came into force.
(4) On the first day on which both sections 2 of the other Act and this subsection are in force, subsection 445.2(4) of the Criminal Code is replaced by the following:
(4) Every person commits an offence who promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive cetaceans are used, in Canada, for performance for entertainment purposes, unless the performance is authorized under a licence issued by the Lieutenant Governor in Council of a province or by an authority in the province as may be specified by the Lieutenant Governor in Council.
The Chair: Thank you, Senator Harder. Any questions or comments? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Our final proposed amendment is from Senator Harder, PH-59.60.
Senator Harder: Happily, colleagues, this is a shorter amendment.
Section 53 currently in clause 59 is a transitional provision related to the processing of applications for fish and fish habitat authorizations during the period before and after Royal Assent and after coming into force of the proposed fish and fish habitat protection provisions. For this purpose, section 53 needs to come into force on Royal Assent. In order to achieve this, reference to section 53 needs to be removed from clause 59.
Therefore, I move:
That Bill C-68 be amended in clause 59, on page 60, by replacing line 30 with the following:
“28 to 30, subsections 31(6) and (13), sections 52”
The Chair: Thank you, Senator Harder. Any questions or comments? Hearing none, is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chair: Shall clause 59, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that the law clerk and parliamentary counsel be authorized to make technical, numerical and typographical changes or adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Hon. Senators: No.
The Chair: Is it agreed that I report this bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you, senators. Before we leave, I’d like to thank all of the witnesses who have come before us on Bill C-68. I want to thank our departmental officials who have joined us on a couple of occasions to help clarify the situation. I want to thank our senators for their due diligence on the bill. I thank our staff here for all their assistance and help and our own staff and offices for their help in developing the amendments and so forth. It’s been a long bit of work, but we’re finished.
(The committee adjourned.)