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POFO - Standing Committee

Fisheries and Oceans


Proceedings of the Standing Senate Committee on 
Fisheries and Oceans

Issue No. 38 - Evidence - February 28, 2019

OTTAWA, Thursday, February 28, 2019

The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act, met this day at 8:36 a.m. to give consideration to the bill.

Senator Fabian Manning (Chair) in the chair.


The Chair: Good morning. My name is Fabian Manning. I am a senator from Newfoundland and Labrador. I am pleased to chair this morning’s meeting.

Before I give the floor to our witnesses, I would like to invite the members of the committee to introduce themselves.

Senator Francis: Brian Francis, Prince Edward Island.

Senator Busson: Bev Busson, British Columbia.

Senator McInnis: Thomas McInnis, Nova Scotia.

Senator Campbell: Larry Campbell, British Columbia.


Senator Petitclerc: Chantal Petitclerc from Quebec.


Senator Bovey: Patricia Bovey, Manitoba.

Senator Christmas: Dan Christmas, Nova Scotia.

Senator Gold: Marc Gold, Quebec.

The Chair: The committee is continuing its study of Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act.

This morning, we are pleased to welcome Brett Favaro, Research Scientist, Fisheries and Marine Institute, Memorial University of Newfoundland and Labrador; and Mr. Bruce Hatcher, Professor, Chair in Marine Ecosystems Research at Cape Breton University.

Welcome, and thank you for taking the time to join us. We are sorry for the mix-up we had a little while back. We were trying to organize a meeting at that time, but sometimes situations are out of our control. Sometimes we are just pawns in the game.

On behalf of the members of the committee, I thank you for being here. I understand you each have some opening remarks. I’m going to go with Mr. Favaro from Newfoundland first if that’s okay, seeing as I’m the chair. We’ll get to Mr. Hatcher shortly after.

Please begin, Mr. Favaro.

Brett Favaro, Research Scientist, Fisheries and Marine Institute, Memorial University of Newfoundland: Thank you, Mr. Chair and committee members, for inviting me to speak to you today. My name is Dr. Brett Favaro. I’m a research scientist at the Fisheries and Marine Institute of Memorial University.

I spent most of last Monday, before our initially scheduled meeting, reviewing the testimony of other witnesses. My hope is to try to introduce some new ideas to the discussion after making some quick points to reinforce things already said.

First, as a conservation scientist, I am speaking in support of Bill C-55. Its primary achievement is to give the minister the ability to rapidly designate marine protected areas, or MPAs, in places where protection is warranted and before we wait for scientific certainty about the merits of protection. I heard concerns raised about this precautionary approach.

To be clear, precaution is not new to Bill C-55. The bill itself never uses the world “precautionary,” and the term “precautionary approach” appears in the existing Oceans Act where it’s defined as erring on the side of caution.

In Bill C-55, the language is simply made more explicit so as to direct that an absence of scientific certainty not be used as an excuse to postpone action. This is sound policy. Science is slow. It takes a long time and a lot of work before scientists will ever say something is certain, but certainty is not an appropriate minimum requirement to make a decision.

For example, if we discover a reef on the sea floor, we can be pretty sure the reef serves as a habitat for fish and, therefore, would be worth protecting. We are not certain about the role that reef plays in the ecosystem until we study it in depth.

If we destroy that reef before we can study it, then we have lost something we cannot get back. Being precautionary is really being prudent. Introducing this clarifying language brings the Oceans Act into line with what already exists in DFO’s sustainable fisheries framework.

Second, while area-based protection has a lot of benefits, it can also impart short term costs on whoever would have fished or drilled there had conservation not happened. To that end, I’m concerned that Bill C-55 appears to provide a mechanism to compensate only the oil and gas sector if they are excluded from newly protected areas. Several witnesses have noted the need for local buy-in and support and providing compensation to one industry but not another is a recipe for conflict.

Third, I echo the calls of West Coast Environmental Law, Oceans North, WWF Canada and individual scientists who have addressed this committee and stated the need for minimum standards for an MPA. While it would have been ideal to put this into the law itself, it should be taken into account when the law is implemented.

Where I’d like to take this discussion is sustainable development, which is articulated in part 2 of the original Oceans Act. I’m the Newfoundland and Labrador representative on the federal sustainable development strategies advisory council. I spend a lot of time thinking of ways to grow our province and country in ways that can grow sustainable prosperity. I think there is an opportunity here to look beyond Bill C-55 and consider how the Oceans Act can be used to guide development. Rather than focusing on what we can’t do, let’s look ahead to what we can. According to the United Nations Intergovernmental Panel on Climate Change, or IPCC, humanity has to reduce the energy produced from oil and gas by 37 per cent by 2030 to keep the planet below 1.5-degrees Celsius of warming, which is considered a safe threshold. By 2050, fossil fuel must be all but excluded from our energy mix. The more we exceed 1.5 Celsius, the more our country will suffer. This fact means that policy in the 21st century will be guided by the concept of decarbonization which involves the detachment of economic activity from emission of greenhouse gases.

The ocean is a key piece of any decarbonization strategy. It can provide us with low carbon food through fishing and aquaculture. It can provide us with zero-emission energy through offshore wind and tidal. It can even potentially provide metals and other materials through underwater mining, which may be necessary to build the zero-emission technology which will defeat climate change. Not all these activities can or should be done everywhere. The cost of getting it wrong could be severe.

I believe a renewed commitment to integrated planning, as articulated in the Oceans Act could provide a way forward. Rather than just thinking of Bill C-55 as a way to conserve specific ecosystems, let’s take the opportunity to recommend a nationwide integrated planning exercise be established and amply funded. This would position Canada with a plan that can tell us where we can do specific activities, including priority areas to develop industries like offshore wind while siting them in locations that do not harm bird populations and potentially even enhance the fish populations.

I recognize Bill C-55 is mostly about MPAs. I also recognize this committee has a mandate to consider issues pertaining to fisheries and oceans in our country more generally. I conclude by saying the urgency of the climate crisis demands more of all of us. We must act decisively and urgently so that Canada can lead this transition from the front rather than playing catch up with the rest of the world. The economic opportunity in doing so is tremendous. The Oceans Act gives us the tools to do it — provided we choose to use them. Thank you.

The Chair: Thank you.

Bruce G. Hatcher, Professor, Chair in Marine Ecosystems Research, Cape Breton University: Esteemed honourable members of the Senate committee, thank you for the opportunity to speak with you. I’ll make a claim, although I wouldn’t have argued to go ahead of Brett, but my great-great-uncle Bert Hatcher was the president of Memorial University for some period of time and Hatcher House is named after him. Both my grandfather and my father are Newfoundlanders. I didn’t have the good fortune to be born there but I identify with the place for sure.

The Chair: Thank you very much. My uncle lived in Nova Scotia and he told me that most people in Nova Scotia were Newfoundlanders who got lost on the way to Toronto.

Mr. Hatcher: North Sydney is stark evidence of that especially with the ferries having sailed for four days. Thanks for this opportunity.

I’ll start by saying I really appreciated Brett’s comments. With the possibility of some academic quibbles, there is nothing I disagree with in the observations, both of the details related to this bill and also in the broader context of the intent of the Oceans Act and where it would be great to see it go. I see Bill C-55 as an incremental step in achieving the potential of the Oceans Act, which essentially is good policy that has been — let’s be generous and say — inadequately implemented.

I provided some fairly copious information to the committee, albeit at somewhat late notice, but our delay may have given the committee a chance to look at it. I’m going to assume you have, like a good professor does, that my students have read the notes. I’m not going to read my speaking notes, but I’m going to highlight the main points and will refer to them in addressing details, questions or comments.

In outlining this document, which I hope you have in front of you, I think you can see that I have some experience in Canada and also elsewhere with marine protected areas, in their design, implementation, and the research on them. There is a great deal of good evidence about all aspects of marine protected areas in all of the world’s oceans. We are not doing something here that has not been done elsewhere. That’s the essential message that I have from my experience elsewhere.

I lay out for you the basic assumptions that I feel have to be made about the intent of the Oceans Act. Quite simply, regardless of our level of ignorance, it is wise policy to set aside areas of nature, of ocean space, which is more or less protected from human activities that could compromise the functions and structures of those ecosystems in ways we do not and will never fully understand. That comes to the fact that marine protected areas could be called the most common and substantive expression or application of the precautionary principle to ocean governance. Certainly not the only one. MPAs are not by any means complete or sufficient in their capacity to protect the things we know we need to maintain in ocean ecosystems. As I have attempted to summarize in the notes to you, the evidence of the utility of marine protected areas as a management practice and the benefits that flow from the designation of marine protected areas, the evidence is there to demonstrate that this is good policy and we should continue to move ahead on implementation.

The issue comes in the trade-off between the costs of designing, designating, managing, and monitoring marine protected areas against the benefits. Simply put, it is much easier to document the expenses incurred than to document and quantify the benefits obtained.

To apply a gross generalization, the confidence we have in the ability to do that equation in a convincing fashion, which usually means converting it into dollars, decreases as we move from the equator to the poles. It is harder to do this in temperate and particularly cold ocean waters, whether we are going north or south of the equator.

This has been a problem when we are having discussions, which are essentially cost/benefit trade-off discussions, about whether MPAs are wise policy and whether particular MPAs in particular places are a good management solution.

I have a bottom line in there, which really reflects that observation that there is much to gain and little to lose over the time scale of climate change from continuing to identify and designate marine protected areas.

I finish with the critiques I have of the bill as presented. I confess I did not read the actual piece of legislation. I read the summary. I’m not really a policy or legal statute law expert. I really have only two concerns. One is this doesn’t go far enough but I don’t think that is something this committee can change. We should be aware that this is an incremental step to many of the things that Brett summarized that he would like to see implemented as the Oceans Act is further used to help Canada maintain the goods and services of the ocean to not just the people of Canada but to the people of the world.

It is a small piece that essentially says the minister may designate a potential or a planned or intended or interim MPA, which will be either made permanent or presumably rejected after a five-year trial period. My criticism is if this country’s past efforts at monitoring, measuring the effectiveness of MPAs to achieve their stated goals is any indication, we are unlikely to have the information we need after five years. So this will not be what it could be, which is an exercise in adaptive ecosystem-based management, a lofty and an achievable goal but not if you don’t collect the information necessary to decide whether your experiment, your interim MPA, is working.

I thank you for your forbearance and look forward to your questions.

The Chair: Thank you. As usual, we’ll go to our first questions from our deputy chair.

Senator Gold: In keeping with the theme of this morning, though from Quebec, my wife Nancy can jig a cod with the best of them. I feel very much at home. Thank you for your testimony. I have a question for each of our witnesses. I have lots of questions but I’ll save those for round two.

To Mr. Favaro, thank you very much for broadening the scope in your remarks to recommend that we consider, putting words into our mouths, recommending a study on a more integrated approach to planning for management and care of our oceans. As a committee, we are well-known for taking on issues that are important, longer range, as we have recently in our study on search and rescue. Thank you for that suggestion and rest assured we’ll take it under consideration.

To the bill, in terms of legislating standards for MPAs, earlier this week we had testimony from a witness from the shipping industry who said ships could potentially face some safety challenges if MPAs prohibited shipping-related activities along a shipping lane, for example. The witness, Mr. Lewis-Manning, president of the Chamber of Shipping of British Columbia, suggested that an MPA might have an emergency clause that would allow infringing an MPA, for example, if a ship had to dump or take on more water to change its ballast given some unforeseen weather event.

Can you comment generally on whether MPAs should have some emergency exemption related to ship safety?

Mr. Favaro: I know there was some language about shipping in the bill. I don’t remember exactly what it said. As far as the principle of whether we should not compromise life and limb and safety, absolutely. Whatever legal mechanism there needs to protect people is absolutely the case. I suspect the minister wouldn’t put an interim MPA in the middle of a shipping lane. I feel like that would be an unwise decision, unless there was something discovered in that area that was super important.

I think this bill allows for more rapid designation of MPAs where something needs protecting in a rapid manner. I think that’s the underlying principle. I watched other witness testimony, and there is always this concern: What if the minister decides they want to put a protected area in this area I really like to work in? We entrust the minister to make wise choices about where these would go. I imagine these would not be done in a frivolous manner. It’s just that we don’t have the full suite of scientific evidence in place to fully explain what the benefits and costs would be of that MPA.

Senator Gold: Thank you for your answer. Mr. Hatcher, in the written remarks that you provided to us in your notes, you mention that the bill’s definition of ecological integrity that’s in 35(1.1) defined the criterion of the condition in which the structure, composition and function of ecosystems are undisturbed by any human activity. You explained that such a criterion is impossible now and in the foreseeable future. Can you clarify what you are suggesting in this regard?

Are you recommending that this part of the definition be removed? Are there better words that better capture what is doable, desirable and feasible?

Mr. Hatcher: Quite simply, I see danger in identifying, at the front end, a goal for a piece of legislation that is inherently unattainable and can be used against what I feel is an incremental and good piece of legislation.

The point simply is we are long past a situation where there is anywhere in the ocean to which that statement can apply. So this is just about the words. It is not suggesting we should not try to achieve a situation where there are parts of the ocean where the negative impacts of human activities can be kept as small as they possibly could be. But that’s not a very elegant way to say it and I’m sure that lawmakers or yourselves can find some way to qualify that statement without taking away the aspiration but not making it an expected outcome of the application of the legislation, because it can’t happen and it’s not realistic to say so.

The Chair: Yes, Professor Hatcher.

Mr. Hatcher: Could I make a comment on the first question we heard about shipping?

The Chair: Go ahead.

Mr. Hatcher: The United Nations Convention on the Law of the Sea is what it is, but the strongest and best piece and the most universally accepted piece of that international legislation is no nation will impede the safe transit of legal ocean shipping. Probably those are not the exact words, but the maintenance of access to navigable waters is something that exclusive economic zones and territorial waters are not able to interfere with.

The reason I make that comment is I don’t believe it’s necessary to create some emergency clause that says should a ship while passing through a marine protected area get into a situation that endangers human life at sea, undertaking action that results in pollution or something that is a violation of the rules of the MPA, I don’t believe it’s necessary to have such a clause because — and, of course, you’ll have to get someone who knows the law to look at it — but I believe it’s already a given that those precautions will overrule the relatively recent Oceans Act on that matter. That’s my view.

The Chair: Thank you, Professor Hatcher.

Senator Petitclerc: Thank you both for your comments.

Professor Hatcher, you mentioned something that resonated with me and triggered a question. You said this bill is nothing that has not been done before elsewhere. I want your comments and perspectives on how we are doing worldwide when it comes to ocean protection and specifically with this bill. Are we leaders when it comes to best practice? Is this bill audacious? Are we catching up with the rest of the world? I want a bit of a global perspective.

Mr. Hatcher: Who should speak first, Mr. Chair?

The Chair: I’ll let you go first this time.

Mr. Hatcher: A brief answer to an important question: Canada is not a leader. Canada is more than halfway down the list of, shall I say, OECD countries in terms of the amount of protected ocean space and in terms of the metrics of the quality of the application and enforcement. In particular, Canada lags greatly in the context of multiple use zoning of ocean space.

In the Australian example, which is often cited as the best example in the world, this thing they call the Great Barrier Reef Marine Park, some 35,000 square kilometres of ocean space, is not all a protected area. It is an area in which there are many hundreds of clearly demarcated zones, some of which are totally protected from any human incursion except the licensed non-invasive entry of scientists to do studies that don’t damage or kill things to trawl fishing. This is the idea that humans have used to partition our use of terrestrial resources, that is, multiple use zoning.

Brett referred to that in his comments, and I ask him to elaborate. That’s my feeling, that Canada is batting below average. We have some things to be proud of, but we are not leaders.

Mr. Favaro: I was going to use the Australia example as well as a leader. The term used is “marine spatial planning.” The term in the law is “integrated management.” Marine spatial planning refers to, essentially, parcelling out pieces of areas in a city, this is where your industry, commercial and residential will be, you do that for the ocean. Some of them are parks where you don’t do anything at all.

Within Canada there are some interesting examples, like in northern British Columbia the MaPP B.C. project where Indigenous governments got together with the provincial government of B.C. and sometimes with the DFO and sometimes not with DFO and brought all the data and traditional knowledge and came up with their own zone plan for what can be done and where.

These can drive investments. This isn’t just about protection. I cite the example of Rhode Island in the United States. There is the Ocean SAMP project. They basically took their ocean area and determined where you could, for example, set up offshore wind, where you could fish or do this or that. By doing this, it sets up the ability to invest in the type of projects that have been assessed as being a good project to do in that type of space.

That’s what I was referencing in the integrated management. We are not leaders in this, but I think we could be. The language is in the law to facilitate this. It will require implementation and funding to support these projects.

Senator Petitclerc: Just very quickly, is it your belief this bill will take us closer to where we should be?

Mr. Favaro: Yes. What this bill does is if we discover, let’s say, a new glass sponge reef somewhere, something that is irreplaceable and an important habitat-forming organism on the sea floor, the minister can say, “We don’t have time to mess around here. If one trawl net goes over this, if one person sets their fishing gear on this, it is gone.” This is so you can draw a circle around that and set this aside and figure out what we can actually do safely in this area. I think that’s important and an incremental step in the right direction.

The Chair: Just some advice from our people in technology. When witnesses are speaking, we can’t speak; when we’re speaking, the witnesses need to wait for a moment to switch over because the technology doesn't allow to hear both people at the same time. Please be aware of that.

Senator Bovey: Thank you very much. I’d like to thank you both for your presentations. It was very interesting. There were several words that floated to the top of both your presentations. First of all, Dr. Hatcher, your maps were amazing. I am one who believes in maps and visuals. I want to thank you for the presented material.

The words that have floated to the top, for me, is that you both are in support of this legislation. I hope I’m hearing that right. I have a couple of questions. The first one is, is there a situation where you feel an MPA might not fulfill the objectives that you cite as being important for MPAs?

Mr. Hatcher: Yes, a good example of that is the situation where the existing uses of the ocean have been shown to be of social, cultural and economic significance. They involve extractive or other kinds of uses that either do result in significant compromise to biodiversity and productivity or they have high potential. To use an MPA approach in such a situation causes two problems. First, at the outset, it is a contradiction of the “P” in protected, when the protection is partial, minimal and not really in the spirit of what an Oceans Act MPA is intended to be.

This is happening quite a lot. Canada’s newest and largest marine protected area is the St. Anns Bank Marine Protected Area off Cape Breton and halfway to Newfoundland. It has a whole bunch of areas in which bottom-set fishing, even bottom-mobile gear fishing, is permitted. I feel it degrades the meaning of marine protected area to draw that line around that multiple-use area — that marine spatially planned-use area — and to call it a MPA; it’s a bit of a cheat, really.

I have to say to this committee that part of this reflects, at least in my politically simplistic interpretation, an effort to boost the hectare or the square kilometre number to reach the magic 10 per cent by 2020 goal, for which this nation is declared at the highest level of world governance, and we’re going to do whatever we have to do to get that number, even if it involves areas that are not marine protected areas; they’re multiple-use zoned areas.

I think we already have a lot of examples where an MPA is not the right management approach.

Mr. Favaro: I believe the question was for both of us. I will add to that. The other kind of place marine protected areas might not work in doing what we want them to do is if a species we’re trying to protect swims really far — it has a large range — and we’re only protecting a small area of its range. The fish would just swim in and out of the MPA.

The MPA could be too small. Perhaps we’re not encompassing the area we want to be protecting.

To expand on the previous point that was made, if you are somebody who wants to show that MPAs don’t work — not you, specifically, senator, but anyone — but if you’re a theoretical person who wants to show that MPAs don’t work, you can put in MPAs that don’t protect against the thing we know to be causing the harm. Then you study that MPA and find that you are not achieving anything with it, and then use that to undermine the concept of MPAs more broadly.

The idea of setting habitat aside for protection is completely fundamentally sound. If you allow the thing to still impact the habitat, it makes not work. It makes the whole concept appear to not work.

This is why it’s important to be clear. It’s why a lot of groups have called for minimum standards for MPAs. That way we know, if the label is used some minimal bar has been met for what that area actually means.

Senator Bovey: One of the slides you submitted was one comparing the Land Protected Areas to those on the high seas. There’s a graph you gave on how MPAs are managed. You talked about adaptive management. As I look at the words you used, both of you talked about implementation, monitoring and raising the alarm — maybe I’m being too alarmist using that word — that not enough is being done to monitor and manage the MPAs my sense is that we have — and those going forward.

Can you both talk a bit to what implementation, monitoring and the need for extra funds — how do you quantify that? What is the implementation that’s not happening that could be happening?

Mr. Favaro: I’ll jump in with a specific example. There is a marine protected area in Labrador called the Gilbert Bay Marine Protected Area. I attended a science meeting where they were assessing whether this MPA was “working,” and they had a few different metrics for what “working” means. One of the problems when you’re studying MPAs is you can’t study just inside the MPA. Let’s say fish are going up within an MPA, is that because of the MPA or because you managed the fishery better in some other way? Or is the ocean just getting more abundant? Are there environmental conditions leading to this?

They did not have a comparable site adjacent to the MPA that was studied at the same time. You could never tell if the MPA was the thing that was causing that to work.

One specific example of sound MPA design is to make sure that when you’re funding the follow-up, when you’re studying whether protecting this area has resulted in an increase in fish population, say, you must also find a comparable site — and we can talk about what that means — not in the MPA and study that as well. That way, you’re studying the two in parallel to see if it’s the MPA that’s working or some other measure that’s causing the benefit.

Mr. Hatcher: It’s a good point made there. That really was my bottom line: I echo the need to follow up on this. It comes back, however, to a fundamental good about the MPA approach: It’s one of those things that can primarily be measured in terms of outputs, not outcomes. The goal is to have certain levels of protected areas. Success is measured by how many hectares of protected areas you have.

Success is not measured by change in the number of species in the ocean. It’s not measured by change in the productivity of the ocean. It’s not measured by the flow of benefits to adjacent communities. These are not things that are stated as the metrics.

It’s just how many hectares are protected, with a rather sloppy definition of the word “protection.”

This boils down to the idea that if we cannot afford to implement — including that essential, very expensive and time-consuming measurement of effectiveness — if we can’t afford to do that, should we not bother to create marine protected areas? I think the world has spoken on that. Many countries with much fewer resources, both financial and human than we have, have gone ahead with ambitious plans.

I will cite a country I lived in for four years, St. Vincent in the Grenadines. To be honest, when I was there, I think there were eight people who had degrees in Marine Science in the entire nation. They had been aggressive in designating these marine protected areas as articles of faith in the face of ignorance about how the ocean works and in the face of an incomplete understanding of the effects of human activities. It is a wise choice to say, “Regardless of what we don’t know and what we can’t know, we are going to take some places and stop fishing, mining and dumping in those areas.”

How many hectares or kilometres of protected areas you have becomes the end metric.

I hope Canada, as one of the wealthiest countries in the world, where I can’t go into a bar in Halifax and not find five PhD scientists around me, we can do better. But we’re not.

Senator Bovey: In assessing, monitoring and implementing the MPAs in areas where Indigenous consultation is absolutely critical, does your scientific monitoring include Indigenous knowledge?

Mr. Favaro: In fact, I think the northern coast of British Columbia example shows that Indigenous leadership can help to find where these areas should go in the first place.

There was an interesting study where they took all the western scientific data, so to speak, and the Indigenous knowledge, and they had both groups map out where they would put MPAs. The two overlapped well.

This needs to be a component, absolutely. Indigenous knowledge has been repeatedly shown to be critically important and very effective in picking where and how to manage these different areas. I would say, absolutely, they should be involved.

Mr. Hatcher: I agree that the northwest coast of British Columbia, for a number of reasons, not least of which the very maritime nature of the Indigenous peoples of that area, is debatable — but I don’t think it’s a tough debate — the best example of true integrated approaches and marine spatial planning that incorporate marine protected areas, but also incorporate Fishery and Transport regulations, and incorporate not just understanding and knowledge but Indigenous techniques that have been used and proven in the past.

This is also a recurring story in the developing or least-developed nations of Oceania, of archipelagic states in the world where there is long and strong evidence of the existence of protected spaces and zoned access to resources and timing of the use of resources, which existed long before colonization, the Law of the Sea, the United Nations or any of that, long before empire. So no question about that.

Your question was, though, if I am I aware of the formal incorporation of Aboriginal traditional ecological knowledge, Aboriginal ways of governance, and the management of human activities formally in MPA management in this country. Not in my experience. Not on the East Coast, anyway.

The Chair: Thank you, Dr. Hatcher. Just a couple of points: Many of our questions have been asked to both professors. The people here responsible for technology tell me that I need to identify who is going to speak first. They have the job to keep track. This is all new to us here. I will do that from now if the question is for both professors.

I don’t want to curtail the wonderful conversation we’re having here this morning. We have about a half hour left and three more senators with questions. I ask the questioners and the people who are answering to remind themselves of that.

Senator Busson: My question is for Mr. Favaro. I was really struck by both of your presentations and want to thank you for boiling down a lot of scientific knowledge to give to us, the great unwashed, on the scientific method. I really appreciate, and as Senator Bovey said, your maps and charts in both of your presentations.

I had hints from Mr. Favaro. You talked about the possibilities. There were words about climate change and decarbonization as this presentation unfolded. I’m very interested to hear whether MPAs would either be incremental, complementary or an alternate part to the world that you described where in the ocean, zero-emission technology would take place, and that somehow there is a hint that we’re missing or there is something else or another chapter to this book. I’m wondering if MPAs are part of that, or is that another whole conversation?

Mr. Favaro: One of the things that is important to understand about climate change is though I framed my remarks largely in terms of thinking, for example, where you might build an offshore wind farm which will provide you with zero-emission power, you would want to put it in a place where it doesn’t harm biodiversity, so not in the middle of a bird migration route. That’s one aspect.

There has been a lot of research that has shown that improving the integrity of biodiversity can itself help fight climate change. For example, preserving bottom habitat. If there’s a rocky reef somewhere that we know is important to provisioning fish populations, as climate change worsens, it will be harder to find these places where we can go fishing and do aquaculture.

This type of integrated planning is really important to consider how we would build that resilience going forward.

As a piece to that as well, which has been brought up by other witnesses, climate change will happen whether we’re successful at decarbonizing or not. There will be some amount of climate change. This will mean that adaptive management is important, as Dr. Hatcher brought up. The place that might be ideal to protect now may shift in a poleward direction in some cases.

We need to be on top of this. If the thing that we’re trying to protect is in one spot and then it moves, we need to be considering how will we make sure that we’re not losing that benefit by putting that MPA there in the first place.

The Deputy Chair: Dr. Hatcher, do you have anything to add or should we move to the next witness?

Mr. Hatcher: No. I think that was a good question and a good answer.

Senator Christmas: Thank you, Dr. Favaro and Dr. Hatcher, for taking the time to join us. We appreciate your testimony and views about Bill C-55.

I have a question for both of you. I will start with Dr. Favaro.

You had echoed your support for minimum standards for MPAs. Should MPA minimum standards be enshrined in the Oceans Act? If so, in your view, which minimum standards should be reflected in the act?

Mr. Favaro: I would defer to the guidelines under the International Union for Conservation of Nature, the IUCN.

For the first part of the question, should it be in the law, I will leave that procedural question to you. I understand we’re late in the process, and it’s probably unlikely that the law will change much.

Would it be nice to see that in the law? Yes, it would be nice for it to be in the law, but I don’t know if that’s feasible. As a scientist, I will respond, yes, we should have minimum standards. Whether that’s possible is out of my hands.

What might those look like? First of all, I would defer to the briefings given by Oceans North. There is an alliance of NGOs that I know submitted materials on this, West Coast Environmental Law articulated their thoughts on it.

There is the IUCN. They have different levels, and they have articulated precisely what those different levels are. I think there are seven or eight levels. Dr. Hatcher might be able to fill in my memory blanks there, but they range from complete no-take zones down to different types of areas that you’re allowed to do less impactful activities. Maybe you can do ecotourism there but not fish.

They’ve already done all that work. My suggestion is rather than doing all that work again, let’s defer to the international organization, of which many Canadians contributed, and use their standards as a guide.

Whether that’s done in the law or in the implementation, that would be my starting point.

Senator Christmas: Thank you, Mr. Favaro.

Dr. Hatcher, I read your notes. On page 7 at the bottom you make a statement here that I would like you to, perhaps, elaborate. You say the omissions from Bill C-55 of explicit requirements for scientific and socio-economic monitoring during the interim period and provision of dedicated funding for same constitute the significant shortcomings of the proposed legislation.

Can you elaborate as to why you believe these shortcomings need to be addressed?

Mr. Hatcher: Yes, thank you. They need to be addressed because if we continue to designate marine protected areas either in the way we have in the past, which is when you look at the complete cycle, a 7- to 10-year process, which results in something monolithic and essentially unchangeable, or it is so difficult to change no one will open that Pandora’s Box.

Keep in mind Dr. Favaro’s observations about how, with a changing ocean climate, it makes sense to have some flexibility in MPA boundaries.

As we look at this incremental change that allows the rapid ministerial designation followed by, if you wish, a five-year trial period, if we do not ensure the information required to make a good decision at the end of that five-year trial period is collected, packaged and made available to decision makers, then we will just have this cacophony that we currently have as we lead up to designation, of last-minute interventions from people who want to have this place left where they can continue to fish or they don’t want anything to interfere with their right to drill for oil, or whatever.

Those who make the decision will not have any basis to say no, we are sorry, the benefits of this are such that we are going to say no to that particular extractive use or whatever it is.

We will continue on in this rather unsophisticated approach in which the MPA is an article of faith and all we have to do is say that some 10 per cent of our total ocean hectares has some level of protection. We don’t know if it’s working but hey, we got our 10 per cent. We should be doing better than that and here is a chance in a piece of legislation.

If I may be permitted just a little aside. As an old professor, a lot of my former students are now in the Oceans and Coastal Management Division here on the east coast at the Bedford Institute of Oceanography. I’m not going to quote them. I will tell you that they are hamstrung. They know what needs to be done. They cannot do it.

It’s not because the will or the intelligence is not there. It’s not even because their leaders don’t have a clear understanding of the kinds of information. It’s because there’s no damned money. There is no money to do the work. That’s the issue I see. I believe, and I may be wrong, that it’s possible in an act such as this to specify or direct the department to allocate resources to a particular thing. That’s my suggestion here.

Senator Christmas: Thank you very much.

Senator McInnis: Nice to hear both of you. You are obviously very knowledgeable in this particular area.

I have a couple of quick questions. I think, Mr. Hatcher, you said that there are 160,000 MPAs in the world. I think I read that you said that. You said that 10 per cent is the goal to get to, by 2020, of our ocean frontage, and that’s not great. And we are down the line some. I’d like to hear what you have to say about what it really should be, what percentage.

I also want to ask this question: Normally MPAs are there to maintain our ecosystem integrity and using the precautionary approach means that science doesn’t have to be done. It’s not a prerequisite to going forward. Science, presumably, sets up the goals that are to be monitored. If the science is not done and completed in five years, is it completed?

What science or investigative work is done prior to the Department of Fisheries and Oceans coming out and saying this particular area is going to be an MPA and let’s now go forward and do the consultation and all that type of thing.

I’m sorry, those are three questions, but could you comment on those?

Mr. Hatcher: I’ll try to give snappy answers.

Ten per cent is a good goal because they are not there yet. It absolutely is the minimum. Many countries have determined that they should surpass that. These are not primarily scientific arguments. They are more management and risk, bet hedging arguments. We really don’t have the science.

Canada has a lot of ocean space. It’s much more about which 10 per cent than the actual total. I would much rather have 7 per cent of expertly selected areas than 20 per cent of all the places that nobody wants to go because there is nothing there.

On the second aspect, I would not want you to feel that the precautionary approach says we don’t need science. I don’t think there is any implication of that. I have suggested the way that MPAs have been used as an implementation of the precautionary approach is one that can go ahead in the absence of science, but that’s not the same as saying, particularly if we are going to do things the way that Bill C-55 suggests, that we don’t need science. There the nuanced application of the precautionary principle is that, in the absence of complete science — and I would argue the science is never complete — we should not avoid making decisions which err on the side of caution.

And can you repeat the third question? I’m sorry.

Senator McInnis: How do you monitor it if you haven’t done the science? I guess that’s the question. The science, presumably, sets up a series of goals, correct? How are you monitoring this if the science hasn’t been completed over a five-year period? When is the science done? If it isn’t done, what are we monitoring? What are we looking at? What are we protecting?

Mr. Hatcher: Brett, why don’t you answer that one? You have been more directly engaged than I have.

Mr. Favaro: How you do monitoring is the fourth question, I believe. I believe the first question was what area there should be; the second was on this issue of science not having to be done; and the third was what investigative work is done to establish your priority areas in the first place.

I’ll start with your most recent one.

Usually, monitoring is done through objectives laid out for an MPA.

The objective may be habitat integrity. We want to make sure this rocky reef on the sea floor that has lots of sponges on it still has them after an extended period of time. You would monitor that, whether you are scuba diving or doing it with a submersible. You do that over time and make sure it’s stable or increasing.

Maybe it’s a local fish population. Maybe it’s an invertebrate. You can put whatever you want as your response variable — the thing you’re trying to measure — provided it makes some ecological sense. You will see objectives are different across different ecosystems because you are trying to protect different things. That was to my point earlier about needing to fund monitoring outside of the MPA so you can tell if the MPA is doing anything. Maybe it’s just good fishing regulations otherwise that is causing an improvement.

What investigative work is done? Right now they identify areas of interest that contain ecologically significant habitat. DFO, through some preliminary evidence, identifies a bunch of sea sponges on the sea floor. They are invertebrates that are important for habitat, and fish grow there, then you get to fish them because they grow in this habitat. They would say this is an area of interest and needs to be explored further. That would trigger the rest of the MPA process.

If Bill C-55 was passed and a really significant and important sponge reef was found, then perhaps the minister would be able to draw a circle around this and say, “We have to set this aside now until we figure out what it contained and then figure out what type of fishing we can safely do there without compromising it.”

The International Union for the Conservation of Nature’s World Parks Congress is a global consensus body that looks at this topic of area-based protection. They recommended that 30 per cent of the world’s oceans be subject to some type of marine protected area designation. Their target was quite a lot higher than even the stated target of 10 per cent. That’s an example of someone who advocated for a higher target.

Finally, on the issue of the science not being done, this is about the concept of certainty. The precautionary approach is about certainty. As a scientist, if I go and publish a paper, what is my criteria for certainty? Philosophically, it’s 95 per cent. If you look at the statistical analysis, we are trying to show there is essentially a 95 per cent chance this effect we are viewing is a real effect. If we were doing an MPA, we would want to be 95 per cent certain that the MPA is causing a beneficial effect. That is a high bar — a higher bar than most decisions we make in society.

The precautionary approach is really about bringing that bar down to something that makes sense from a decision-maker perspective. If you know a reef is there, you cannot be 95 per cent certain that this reef is super important for this one fish population. But you can be pretty sure, based on inference, based on the role we know reefs play in fish populations, that reef probably matters quite a lot. That’s the distinction I would make.

I don’t think anyone is saying you abandon science altogether. What it’s doing is lowering the bar for decision-making so you can act before you hit that 95 per cent certainty level, which may be unachievable if the reef is destroyed by industrial activity.

Senator Gold: I have a supplementary comment, lawyer to lawyer. I’m also a former academic in the social sciences. The precautionary principle and its relationship to the level of possible certainty in science, it’s really like the burden of proof I suppose. There is proof beyond a reasonable doubt, there is a proof on a balance of probabilities, and sometimes there is reasonable suspicion, which is even a lower standard but is nonetheless sometimes the right level of uncertainty to take some precautionary measures, whether it’s pulling somebody over whose breath smells of alcohol or what have you. That’s what I take this to be.

I also really appreciate how persuasively you have underlined the importance of putting the proper human and financial resources and others in place to make sure we get it right as the process unfolds so we know we are really achieving something and not just ticking off a box on a graph. Thank you.

Senator McInnis: It’s well put. MPAs or the designation of an area of interest without any notice causes a degree of consternation with the fishery and with a number of other individuals who make a living on the water. I’m living through one now; no notice, no investigative work, and it looks to me like it’s a committee of implementation not one of consultation. That is a challenge. The preparatory work I don’t think is there. I really don’t. That’s a real problem I have with this approach. I’m not sure what the problem was with what we have now. I have said this before in the committee. Yes, it took eight years, maybe it took ten, but they got it right, and they didn’t come in up front and designate. There is a lot of anxiety with many of the fishers in the community over this designation because they look at it as fait accompli.

Mr. Hatcher: Thank you for that. In a nutshell, Canadians do not love MPAs. The biggest impediment to the success of the intent of the Oceans Act has been the antagonistic relationship which has developed between the department and the large majority of ocean users. I don’t just mean fishermen and fishing interests, although they are the ones who, in Canada and throughout the world, usually feel the immediate effect of the closure of areas to extractive use.

I agree with you, honourable senator, the way this has been done includes a great deal of preparatory work by Fisheries and Oceans scientists, but also by managers. As well as mapping out where there are reefs and different kinds of ocean habitat, they also map out all of the human activities. But for the most part, these have been done in laboratories or at computers looking at data sets. They have not been done by talking to people who are users. The talking comes after the ecologically and biologically significant areas have been mapped out and done and a putative first choice has been determined for where the marine protected area should be. Then that becomes a subject of negotiation and discussion a posteriori which is quite adversarial and acrimonious for the most part. It is most unfortunate.

It requires a complete remake of the process by which the approach to that decision about what area of the ocean is made.

This act not only says nothing about the process by which identification is made, it allows a situation where the process that is currently in place, this EBSA — a desk study, leading to a proposed area which is then taken to the community — it allows that to be short circuited by ministerial decree for a period of five years.

Unless there is a very substantial change in what happens between the department and the user groups during that five years, this may backfire and result in fewer successful designations rather than more. Thank you.

Senator Gold: Thank you. I really appreciate that last comment because it does, in fact, resonate with this committee. It echoes, reflects and summarizes what we have heard, whether from Indigenous communities, from other stakeholders, the fisher community and others. I take it that, if I understand it correctly, what you are saying is the process that goes on behind closed doors or in the laboratories of scientific investigation of what area might be appropriate to consider is something that should be brought out into the open, and early engagement with relevant community stakeholders, governments would improve the climate within which these processes. Would you support a recommendation in our report that would call for greater and earlier engagement, consultation — there are many different words we could choose — with relevant communities and stakeholders in the process leading up to the identification of an area of an interest and certainly through the process whereby a decision might be made to give interim protection to an area?

Mr. Hatcher: I would absolutely. I would go further and say the successful designation and implementation of a marine protected area is not primarily a natural scientific process. It is a socio-political economic process. The department is unequipped to do that. That’s why the few successes we have here are in situations such as Brett described where really this is being done around DFO by other organizations and agencies. I saw you had your hand up, Brett. I’m handing it over to you.

Mr. Favaro: I live in St. John’s, Newfoundland and Labrador. There is never any controversy about ocean use here so I don’t know what anybody is talking about.

The Chair: Must live in a different part.

Mr. Favaro: While we are talking about the science being done “behind closed doors,” I think the science is a lot more transparent than what happens once people identify the area of interest and that ends up being a recommended area of interest or a proposed MPA. The example I give is the Laurentian Channel MPA. There was a fair bit of media buzz about this not too long ago, where the scientists put forward saying, “This is our starting point. There is this area of interest that’s fairly large where there is all this really sensitive habitat.” Then something happened between science and what management put forward, which was completely not transparent and resulted in a much smaller proposed area. I would argue if a recommendation is going to be made for transparency, which I think is a good one, it should not just hit the science. It should also hit any of the socio-economic and even management processes as well.

This is where I want to plug this concept of marine spatial planning once more. I’m in a bit of a conflict. My employer, the Marine Institute, offers a master’s degree in marine spatial planning. My colleague Geoff Coughlan runs that. It’s a really interesting program. This is participatory. You set up programs where people can put in their feedback. They can see the data for themselves. They can propose areas based on their own experience that might make sense to protect that would be a balance between conservation and immediate economic interest. There has been a lot of success with this around the world with these participatory processes where you have trust building, where you have engagement, where people are able to track how their suggestion made it into that final document even if it was not accepted. Even if they can just say, “Yes, I was heard but the decision on balance was to do it this other way.” I think that’s really important.

With my research in fisheries I do a lot of work directly with local industry and bigger scale industry, and this is something that comes up again and again is people want to feel heard and respected. That’s what a participatory marine spatial planning process can do. That’s why I brought it up in my remarks.

The Chair: Thank you.

Senator Francis: Good morning, gentlemen. Thank you for joining us. This question could be for both of you. The National Advisory Panel on marine protected area standards and other groups have recommended minimum protection standards for all Oceans Act MPAs. Activities such as dumping and the exploration for or exploitation of minerals and oil and gas have been suggested as activities to be prohibited amongst others. In your view, would mining for minerals or gas exploration activities near or within an interim protection MPA or Oceans Act MPA harm fish and/or fish habitat within those zones?

Mr. Hatcher: What’s the question?

Senator Francis: Would mining for minerals or gas exploration activities near or within an interim protection MPA or an Oceans Act MPA harm fish and/or fish habitat within those zones?

Mr. Hatcher: Thank you. Yes, unequivocally, many of the processes associated with — let’s take the most common — the exploration for and, if successful exploration, the extraction of seabed hydrocarbon resources — but this could also apply to the mining of sand or something else. It’s just not very common in Canadian waters — will involve processes that will do harm to ocean life. That is never in question. The question is: Is the fact that there will be harm done sufficient to preclude those activities in the ocean? That’s what the question is. These are always a trade-off. For example, we know that acoustic surveys, so-called seismic surveys, to look under the seabed create levels of sound that kill and disorient everything from microscopic plankton to whales. Does that mean we never do that? Or does that mean we do that in such a way that we minimize those negative effects, meaning the time of year we do it at, meaning we turn everything off if whales are sighted, that sort of thing? I think we need to recognize that we need to extract hydrocarbons from the seabed and that is part of our legitimate use of ocean space of the Canadian Exclusive Economic Zone.

Getting to the particular case of marine protected areas, I want to also say the construction of drilling facilities unequivocally provides a benefit in terms of the biomass and diversity and productivity of water column species. These are essentially giant offshore reefs that are constructed. If they are run in such a way that they do not pollute the water with contaminants and chemicals and sewage et cetera, which most of them now do not, then they actually create what are called fish aggregating devices, or FADs. There is no question they enhance biodiversity and productivity. There are pluses and negatives.

The general approach has been to say that if you have an MPA, there can never ever be oil and gas exploration or extraction. That was the decision made by the Australian Parliament in 1975 about the entire Great Barrier Reef. Very controversial decision. Pretty much caused the State of Queensland to threaten to leave the republic.

My personal attitude on this is we should not go in prescriptively saying no Canadian MPA may have an oil rig in it. I believe these are things that can be decided on the basis of that social-economic trade-off of balance of effect and benefit.

If you were to ask me, is it more important to exclude oil and gas production than it is to exclude bottom dragging? I’d generally say no. I’d say we’re going to have more benefit from getting the bottom draggers out of there than we are from the risk associated with oil and gas. That’s my personal opinion. I do not feel there is a cut and dried answer to whether these have a negative effect and if they do, should we ban them. That’s too simplistic.

Mr. Favaro: There has been extensive discussion about how MPAs are one tool of many that can be used to manage the oceans. I would like to draw attention to that analogy because tools are used for different things. A hammer is used for nails and a wrench is for twisting things, and so forth. An MPA is a special tool that chiefly protects habitat.

I will diverge from Professor Hatcher’s position, I think an oil rig that you’re drilling which impacts habitat could be called something else. It could be called a fishing closure for that area. I think it waters down the definition of MPA to call that an MPA. It would be similar to saying we have national parks and we will have a big oil rig in this one. It would confuse people about what a national park means. My slight nuance is that I understand there is going to be drilling, as someone who is concerned about sustainable development and climate change my personal view is that not should be encouraged as much as something like a wind farm. There can be fish aggregating, but it should not be called an MPA but a fisheries closure for the purpose of oil and gas drilling.

The Chair: Thank you. I want to thank our witnesses on behalf of the committee members. Before I say goodbye to our witnesses, I want to thank both of you for an interesting discussion, very informative and your wealth of knowledge is something we will benefit from. We look forward to hearing from you on some other issue down the road. All the best and thank you very much.

(The committee continued in camera.)

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