Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue No. 39 - Evidence - March 19, 2019
OTTAWA, Tuesday, March 19, 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 6:10 p.m. to give clause-by-clause consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Good evening, senators. The first order of business is do we have an agreement that the committee go through clause-by-clause consideration of Bill C-55?
Hon. Senators: Agreed.
The Chair: Any contra-minded? Carried.
Before we begin, I would like to make all senators aware that we have government officials from the Department of Fisheries and Oceans Canada and Natural Resources Canada in the room with us, should any senators have any technical questions to raise as we go through the bill clause by clause. We will ask people to join us at the table if we need to have that.
I’m not sure if everybody is familiar with the process of clause by clause. I know we have some new senators with us. I will run through a few things.
If at any point a senator is not clear where we are in the process, please feel free to ask for clarification. I want to ensure that at all times we all have the same understanding of where we are in this process.
In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of the clause. You’ll find in one of our amendments we had that happening here this afternoon.
If a senator is opposed to an entire clause, I would remind you that in committee the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill.
I would also remind senators that some amendments that are moved may have consequential effects on other parts of the bill. It would be useful in this process if a senator moving an amendment identified to the committee other clauses in this bill where this amendment could have an effect. Otherwise it would be very difficult for members of the committee to remain consistent in their decision making.
I want everybody to know that we have six amendments we’re dealing with here. All the amendments have been run through the Law Clerk’s office in regard to where they fit. That doesn’t say that somebody can’t move an amendment from the table. That can be done also. If you do, it will be on hold until we get it figured out.
If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to the argument, decide when there has been sufficient discussion on a matter of order and make a ruling.
The committee is the ultimate master of its own business within the bounds established by the Senate and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend upon your cooperation, as I always do. I ask all of you to consider other senators and keep remarks to the point and as brief as possible.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which obviously provides unambiguous results.
All senators are aware that any tied vote negates the motion in question.
Are there any questions on anything that I have touched on here this evening so far? Is everybody clear?
Senator Munson: Yes, sir.
The Chair: If so, we can now proceed. I doubt if we are all clear, but we’ll say we are anyway.
Bear with us, Chantal and I. We brought in some expert help this evening if we need to have it.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Senator Poirier: I’m on page 3.
I move:
That Bill C-55 be amended in clause 5, on page 3:
“(a) was lawfully carried out in the three-year period immediately”; and
“(b) was lawfully carried out in the three-year period immediately”.
Basically what it’s doing is changing the “in the year immediately” on both lines to a “three-year period immediately.” And I think everybody has a copy of that.
The Chair: Are there any comments or questions?
Senator Gold: Although I think I understand the intent of it, it would be helpful, senator, if you briefly explained the rationale for it.
Senator Poirier: Yes. Basically, it’s extending the freezing of the footprint based on the previous 12 months to the last three years in order to take into account the rotational fisheries. We’ve heard from witnesses to extend the freezing of the footprint, for example, Christina Burridge from the BC Seafood Alliance. If you remember, she urged our committee to extend the footprint to protect the rotational fisheries, such as the sea cucumber where they were fished once every three years. We also heard from Jerry Ward on this issue. He said fish know no boundaries. Some fish stock, such as shrimp and turbot, are shared with Greenland and they tend to swim back and forth. The fish move around based on water temperature and salinity. Where there are fish today may not be the same down the road.
This gives more flexibility to the rotational fisheries to be adapted to the potential MPAs. We heard from witnesses that 12 months is too restrictive. We will be allowing the 12 months for more predictable activities. We should give the same flexibility to rotational fisheries, as some of the things we’ve heard.
They are saying it would be unfair to punish certain rotational fishery harvesters to 12 months because of the nature of the fisheries. Giving them three years is a fair approach and inclusive to all different types of fisheries.
If you remember correctly, the BC Seafood Alliance had even talked six years. They came with the notion of the six years but they said they would be happy with three years. They are the ones on the sea with the knowledge of the fisheries. I feel it’s important to listen to them when a government bill can harm their activities. I think they need to be listened to.
Those are some of the reasons and rationale behind answering to some of our witnesses.
Senator Gold: Chair, this is in the spirit of being thorough because when this issue was raised at our February 5 meeting, Mr. Morel, the Assistant Deputy Minister of the Department of Fisheries and Oceans, in responding to this important and legitimate concern — and I think he was probably pointing to subclause (c) — said:
That’s exactly why we put in the act “authorized” versus the activities that are happening. When they are authorized and you have a fishing licence that is valid and conditions have been renewed, even if you don’t fish they are still authorized and they will be considered effective. Freezing the footprint will not affect these kinds of conditions.
In other words, the definition of “ongoing” includes, in subparagraph (c), “was not carried out” but “was authorized and continues to be authorized.” That may not be good enough but that was the answer that they gave for the rotational fisheries.
Senator Poirier: I understand that. I think some of the witnesses had concerns. It’s their livelihood. It’s their income. I mentioned two or three who have concerns about it. It’s to give them the security. Like I said, their will would have been six years, but knowing that would be difficult. I think we went with three years. They would be willing to accept that or be happy that at least we were doing that.
They felt that 12 months was really not enough and it could cause issues within the industry.
Senator Gold: Thank you.
Senator Bovey: Given that we have representatives from the ministry here, could they respond to a question that I have? I’d like to know if three years was part of their deliberations and, if so, why did they settle on one year as opposed to three years? I’d like to know what the department’s researchers thoughts were as to why they came to the decision of 12 months.
The Chair: Would somebody from the department like to join the table?
Jeff MacDonald, Director General, Oceans and Fisheries Policy, Fisheries and Oceans Canada: Thank you, Mr. Chair.
The Chair: Did you hear the question proposed by Senator Bovey?
Mr. MacDonald: I believe the question was what was the thinking for one year versus other time periods?
Senator Bovey: Yes, and was three years considered? What was the rationale and the substantive thinking that came to a 12-month solution as opposed to a longer one?
Mr. MacDonald: We considered two things in the drafting of the bill. One was whether to use the word “current” or “ongoing.” We settled on the word “ongoing” because “current” leaves the impression that the activity had to have been occurring on the day before the order or recently before the ministerial order was signed, whereas “ongoing” allows the interpretation to include that the activity is current but not necessarily happening within that period. That complements paragraph (c), which is related to the ongoing activity that may not have occurred in the past year but that has been authorized.
The approach in crafting this concept of freezing the footprint was based on permitted activities. A fishing licence is an authorization by the minister under the Fisheries Act. It is valid as long as the licence fees are paid and other basic conditions of eligibility are met.
That permit to fish is granted until it’s withdrawn. Even if a fishery has not been prosecuted in the past 12 months, for a variety of reasons — either because of the presence of the species or because of concerns over conservation and the fishery may be closed for a period of time — the fishing licence is considered valid and would fall under paragraph (c) in this part of the act.
In terms of the time frame, we proposed one year to ensure there are limits to what’s captured in the frozen footprint. The longer the period of time, the more you have to go back and research what activities have taken place. In some cases, if an activity took place once in the past three, five, seven years, you have to go back and research and document that in order to say that activity was authored at that time and could still be considered an ongoing activity.
On the other hand, if the time period was too short, you may run into circumstances of activities that are seasonal in nature and therefore occur at certain times of the year. We felt one year would capture activities that would be regular but seasonal and at the same time would still not make it so lengthy that we require a tremendous amount of research to find out what was the footprint that we’re capturing. We’re capturing it not just in space but in time. One year was proposed for that reason, namely, to ensure that we didn’t affect seasonal activities. At the same time, it’s congruent with the way we normally manage fisheries, where licences are renewed on an annual basis. As long as the licence fees and the other eligibility criteria are met, then a person holding a fishing licence would be considered an ongoing activity, whether a fishery had been prosecuted in the previous year or not.
Senator Poirier: Thank you for that. I understand what you’re saying. One of the complaints that we heard through a lot of the witnesses is about a lack of communication with the people in the industry and the people that are out in the sea in that they know what they’re doing. They have the knowledge about it. When something is happening that could affect or harm their activities, their livelihood, it’s important that we listen to them.
As I said, they had concerns about fish travel, water temperature changes and sea cucumbers. These are all issues they raised. I really want to reinforce, if we’re consulting with our industry, that it’s important. They are the ones who have the knowledge first-hand. They’re out there and know what they’re dealing with. If we’re communicating with them — and they often say we don’t do enough — as we have done here, by bringing them in as witnesses; and when they have told us these things that affect them, we should listen to them. They were asking for six years but would accept three. I’m asking you to please consider the possibility of listening to our fishermen and see what we can do here.
Senator Bovey: Mr. MacDonald, we heard a lot about the sea cucumbers. Can you talk about the sea cucumber? Put that mix into this between the one and the three years? Having seen them off many boats in the West Coast, I’m well aware of their nature. Can you tell me what the difference is, just for the sea cucumbers? I think we understand the rest.
Senator Poirier: They fish every two years. That’s what they told us in committee.
Senator Bovey: What does that do to the one-year licence, if it’s a once-every-three-year fishery?
Mr. MacDonald: I’m not familiar with the management of the sea cucumber fishery. I am familiar with the way that our licensing system operates. I could ask my colleague how it’s enforced, if you like.
The Chair: We’re going to ask whoever is in the back representing departments to come up to the table because we’re not going to play musical chairs here all evening. We can then get answers to any questions that we have. You can stay with us for the duration of the questions.
I want to welcome you all here. If there are any questions from any of our senators that any of you feel you can answer — and it may not be directed towards you because the question may be brought forward by a senator and they will not necessarily know who will give the answer — please free to do so.
Senator Bovey: We don’t need long answers. We’re trying to get to the pith of it.
Mr. MacDonald: Fisheries licences are issued on an annual basis, regardless of whether the fishery is prosecuted that year or not.
When I was describing the eligibility requirements for holding a fishing licence, they may vary from different regions in DFO in terms of, for example, in Newfoundland, whether one has professional status or not. That’s an eligibility requirement. In other provinces you don’t necessarily have those circumstances.
The one thing that is common is licence fees and those are paid on an annual basis and they must be paid in full. If licence fees are paid in full, and other conditions are met, then the permit is valid regardless of whether a fishery is being prosecuted that year or not.
We have many examples of fisheries that have been under moratoria for a long time, nevertheless there are Canadians that hold licences for that fishery. They continue to pay the fees so that their fishing licence remains valid, even if there’s no fishery taking place. That’s how the regime is administered.
The Chair: Does anybody else want to add to that?
Mr. MacDonald: The sea cucumber would be the same situation where the sea cucumber harvester would have to pay the licence fees for their licence on an annual basis because that’s the way the licence fees are administered. They are regulations. They have an annual schedule. We’ve made changes over time on how one pays the fees, but they have to be done on an annual basis.
Senator Gold: Just to understand on the policy question. Do I understand correctly, then, that a fisher’s concern that the footprint be frozen one year — I understand the concern, it’s livelihood for sure — but do I understand your answer to mean that in fact the amendment may not be necessary because if in fact it is a rotational fishery, which is only prosecuted every three, four or five years or whatever it might be, that’s so long as that licence is valid that the freezing of the footprint at any moment in time will include that activity under paragraph (c) as an authorized activity? Do I understand correctly?
Mr. MacDonald: That would be correct, Mr. Chair.
The Chair: Is there a limit on, say, for example, we’re talking about the cod in Newfoundland, just to get it out there, is there a limit on how many years you can have a licence even if the fisheries is not prosecuted?
Mr. MacDonald: The only limit, Mr. Chair, would be related to the other eligibility requirements. We have a number of other eligibility requirements in different DFO regions as it relates to, for example, owner-operator and fleet separation policies. As long as you’re in compliance with those eligibility requirements then there’s no limit in terms of how long one can hold a licence as long as one pays the fees and fulfills the eligibility requirements.
The Chair: Regardless of the fishery itself, it’s prosecuted for three, four, five or six years?
Mr. MacDonald: That’s correct.
Senator Poirier: I have a follow-up question. If you’re saying there’s no issue there and that there’s no danger. I heard the word “may” and “may” is not a guarantee to me, it’s a possibility. If we leave it at carried out in the year and not make the amendment to three, if you say it’s not going to change anything then what’s the big issue of changing it to three? It’s not going to change anything there either, other than give a reassurance to the fishermen that we’ve heard them loud and clear and that we’re responding to the concerns they have put out there. To me, instead of “may,” it gives them a guarantee that they will be safe for three years. If you’re saying there’s really no difference then what’s the big deal?
Mr. MacDonald: I’m just explaining the rationale as to why we chose one year. The frozen footprint, as I was saying, it’s not just the area that’s being proposed but it’s also the length of time. When we would be preparing a ministerial order, we would have to outline what were the activities that took place that are considered ongoing activities. The greater the time period, the more work is required in the regulatory phase to articulate the ongoing activities.
If, as I explained, we made it too short, then we could conceivably miss seasonal activities. If we made it too broad, we would end up having to research and document one-off activities that take place in a much wider time frame. That’s where the one year came from.
With regard to fishing activities, the licensing regime is on an annual basis. While the one year was not chosen to coincide with just fishing because there are other activities that could be taking place in the area, it addresses the matter as it relates to whether or not holding a valid fishing licence would be considered an ongoing activity. That’s why we put that in there.
Senator Poirier: Just following that again. You mentioned that too short would be too short but the time of the 12 months would give you a time to actually look at it to see if there are any issues going forward. But if the fish is only fished every three years, you’re not going to do it every 12 months either way. In the instance of the sea cucumber, from what the fishermen were telling us, they fish it only every three years. For them that three years is their short period because it only comes every three years. I can’t see what would be the added issue. I’m having a hard time understanding what would be the added issue at that point.
Senator McInnis: I hope this is on point. When you’re older you remember these things. I remember when they didn’t fish sole because people didn’t eat sole. Never mind now if you don’t know whether you’re having haddock or sole. Fisheries change.
What would happen in a situation where there was the development of a fishery and there wasn’t a licence. If a licence were permitted, how would this all shake out? Would they be able to develop that fishery?
Mr. MacDonald: I’m not sure of the question.
Senator McInnis: If there was another species that all of a sudden people had an appetite for, would they be able to commence that new fishery? There wouldn’t be any previous licences.
Mr. MacDonald: We have a policy on developmental fisheries in the Department of Fisheries and Oceans. It’s called the New Emerging Fisheries Policy. It’s very rare that we develop a new fishery because most of our fisheries are fully subscribed. But when we do it’s usually as a result of additional scientific research on discovery of a stock. Some commercial harvesters are given a special licence to see whether that stock is at commercial levels. All of those things are part of that policy, prior to opening up a full commercial fishery if it’s deemed to be at a scale that the stock can sustain. That is clear and distinct from the establishment of marine protected areas.
If we were in a situation where you had an interim protection MPA and there were no licences to fish that particular species, then you would not be allowed to fish that particular species in that particular area during the time that the interim protection MPA is in force because it would not be an ongoing activity.
I hope that answers the question.
Senator McInnis: It does and it doesn’t. If it’s in an MPA, is it not locked in? That’s what we’re saying in these sections. You say the developmental fishery would override that. Am I hearing that correctly?
Mr. MacDonald: What I was saying was this clause applies just to the period of time for an interim protection MPA. That time period is only five years. After that five years, the minister either has to recommend to the Governor-in-Council a full MPA or repeals the order. Because it’s time limited, the issue of a developmental fishery would have to be addressed in the development of the management plan of an MPA.
Senator Bovey: You, Mr. Chair, wanted us to think about consequential effects. I have a consequential question.
If the period was three years, would there be a concern about conservation? One of the reasons for this is conservation of stocks and breeding grounds and the growth of the fishery, shall we say. If it was a three-year period, is there a danger that might impair the conservation of a particular area or fish?
Mr. MacDonald: With regard to fisheries management decisions, it is true that sometimes when we are developing an MPA it’s for reasons of protecting species. That’s what you see in section 35 of the act.
In other cases, you are protecting habitat, and in some cases it’s both.
When it comes to fish species that we may need to protect, the minister of Fisheries and Oceans and Canadian Coast Guard has two hats, so even if he’s regulating an area under the Oceans Act, he can still at the same time regulate fishing activities. If there are activities that are causing harm to the stocks that are being studied, he has the authority under the Fisheries Act to curtail those activities for the sake of protecting those stocks.
It may have a secondary effect of helping address the conservation objectives of the marine protected area, but it would be under the Fisheries Act that he would make those decisions with regard to species. That would be the same circumstances in an interim protection MPA, if it was discovered during the time of that five-year period that there was a level of fishing harming the conservation objectives. He could still adjust the level of fishing in order to make sure that the conservation objectives were being met.
Senator Poirier: When the department drafted or worked on this bill and decided to go with the 12 months, did you consult with the rotational fish harvesters to see if they had issues with the 12 months? Did you have discussion with the people who are out on the sea and working this every day? Did you talk with them?
Mr. MacDonald: Yes, we did have discussions with fishing associations. We had discussions, obviously, with officials in the Department of Justice because we were trying to find the right balance.
We also, obviously, spoke internally with those who managed the fisheries, especially at a regional level. Many of our fisheries are managed at the regional level and not at the national level. We took into account the seasonality and the fact that some fisheries are not on an annual basis but are on a less frequent basis.
Senator Poirier: You spoke with the people for the sea cucumbers and the companies and all of these people.
Mr. MacDonald: We’ve spoken with representatives from the British Columbia —
Senator Poirier: They didn’t tell you they preferred the three years at the time like they told us here in committee?
Mr. MacDonald: They raised concerns about the rotational fishery. Then we explained that we felt that paragraph (c) addressed the issue in the sense that it wouldn’t affect their ability to prosecute the fishery because having had a valid licence would make it an ongoing activity. During the five-year period of an interim protection MPA, the rotational fishery could still take place within those five years, even if it hadn’t been taking place the year before, and even if it hadn’t been taking place the first year of interim protection. It could still take place in the second or third year, depending on when the fishery was taking place, when the stock was present in the area and when the licences were valid beforehand.
Senator Gold: I’m trying to square a circle here. I think we need to be responsive to the anxieties and the concerns. We have heard, frankly, and it’s no disrespect, that communication isn’t always what we would hope in some regions and in some cases.
I’m reluctant to support an amendment that I’m satisfied actually isn’t necessary. How do we respond to legitimate concerns, and communication might be one way? I wonder whether it would be acceptable to have — I’m going to see this in a number of areas; we’ve heard this a lot — an observation underlining the necessity for early and ongoing communication consultation and the like with stakeholders. I think with respect to stakeholders in this case, we are talking about rotational fisheries but also Indigenous communities or territorial governments or provincial governments because that’s primordial. I’m inclined not to support an amendment which just doesn’t seem to me necessary legally but to find a way to respond to the very understandable and legitimate concerns that stakeholders have shared with us. It’s just an observation.
Senator Poirier: It’s important to consult but also listen to what they have concerns about. You can’t just consult and not listen. I respect your position.
Senator Gold: We had one witness testify about that. I think that was the only witness we had.
Senator Poirier: I named three just in my notes a while ago.
Senator Gold: I defer. You mentioned Christina Burridge.
Senator Poirier: Christina Burridge from the BC Seafood Alliance; there was Jerry Ward. Two, sorry, that I mentioned to you.
Senator Gold: I stand corrected. Thank you.
Senator Patterson: May I join this discussion?
Mr. Chair, I think we heard clearly from Mr. Ward about the impact of climate change in the Arctic, that species are moving northward. He mentioned shrimp and turbot in his evidence. I think we’ve also heard about Atlantic salmon, Pacific salmon; there’s orcas now in the Arctic with diminishing ice. I’d like to ask: With the clear evidence we have of climate change, which affects water temperatures and, as I understand it, salinity and currents and other things, isn’t it preferable to have a bigger window to be able to assess the trends when we have these movements of stocks? Mr. Ward said, and I just happen to have his quote here:
Fish know no boundaries. A couple of these stocks, in shrimp and turbot, we share with Greenland and they tend to swim back and forth. With the changing environmental conditions, we are concerned about freezing the footprint without adequate science, because these fish move around based on water temperatures and salinity. So where we are fishing today, in five years’ time, you may not be able to fish there. They may not have moved north or south, or even east or west. We are seeing it on a regular basis, of course. That’s a real problem for us in that area.
I think he was speaking to lengthening that time.
I wonder if it might be of significance in the Arctic, particularly with climate change occurring.
The Chair: Would you like to address that, Mr. MacDonald?
Mr. MacDonald: I’m not sure what I should answer on that question. If we’re talking about clause 5, we’re talking about the proposed amendment for the length of time. The length of time for the frozen footprint is really a function of how one applies the interim protection MPA. I think Senator Patterson’s question is really related to how we manage a spatial tool when the environment is becoming more dynamic. That’s really a broader question. I’m not necessarily a climate or a stock scientist. I can’t explain what’s taking place in the ocean. I can say that some arguments we have heard with regard to marine protected areas and their boundaries is that they need to be reviewed once they’re established.
We heard not just for MPAs but for marine refuges, and in this context of an interim protection MPA, one of the reasons the tool was being proposed is so that we can afford interim protection to an area and take the time to really come to a clear understanding of not just the conservation objectives but also how to create a management plan with the partners that are managing the MPA, so that when we do designate it as a Governor-in-Council area, we actually have addressed some of those issues that would inevitably come up, especially for a marine protected area, of which the primary purpose is to protect certain species which are more dynamic than, say, habitats, for example, which tend to migrate in a much slower way.
The Chair: No two MPAs will be the same. You couldn’t have a rule across the board per se because you could have different climate issues, different species, different activities, and different prosecution of fisheries. The minister’s determination of the process for the MPA for the five-year period.
Mr. MacDonald: When we first look at an area we know is important from a biodiversity point of view, that’s really when our dialogue begins with communities, our planning partners, industry associations et cetera.
It is to come to a common understanding of what should be the conservation objective and also what is the area of study. Those conversations take place and these are the types of issues that inevitably come up at the early stages, way before you get to the point where you are designating it either as an MPA or an Interim Protection MPA.
The Chair: Due to the power invested in me by the Queen, I’ve heard enough. I’m going to ask the question: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: All those in favour, raise your hands for now? All those against? The motion is defeated.
Shall clause 5 carry?
Senator McInnis: I have an amendment. I don’t know what you have for number 1, but I have the one with respect to the premier signing off. Is that the one you have up front?
The Chair: Nova Scotia, offshore petroleum. It is TM1, honourable senators.
Senator McInnis: I move:
That Bill C-55 be amended in clause 5, on page 4, by adding the following after line 20:
“(2.1) No order may be made under subsection (2) to designate a marine protected area that would include any area of the sea that is included in the definition offshore area in section 2 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act unless the Premier of Nova Scotia has given prior consent to the designation in writing.”.
I also have an amendment which is analogous, except that it deals with the Canada-Newfoundland — do you want to deal with that separately?
The Chair: We will do that later. One at a time.
Senator McInnis: The reason for this amendment is to attempt in advance to prevent confusion and disruption, because the Atlantic Accords are supreme over the Fisheries Act and the Oceans Act. I can well imagine, if an MPA were put in place, the disruption that would be caused if the province in conjunction with a petroleum company were to conduct seismic testing, drilling and eventually the production of oil and gas. If you think that is not a real possibility, let me just give you — and I did this in committee, but it is worth mentioning again, in the last 20 years in Nova Scotia, we have received $4 billion in revenue from petroleum projects and $5 billion spent on goods, services and work commitments. Now, the offshore geoscience shows that Nova Scotia offshore holds an estimated 8 billion untapped barrels of oil and 120 trillion cubic feet of untapped gas. It is there. They haven’t found it. But they will.
What this would do, if an MPA were in the process, that the Premier of Nova Scotia would have to sign off and consent to it. I say the premier. I talked to some legal experts. I thought it would be best to have the legislature sign off on it, but they tell me, no, that governments come and go, as we know. They thought the best answer would be the premier.
That’s the logic and the reason for it. And you know, there is a map, which I didn’t bring with me, that shows the potential of 18 MPAs off the coast of Nova Scotia, running from the north into Cape Breton, through to Yarmouth. It is a real possibility. The reason is simply to have the Government of Nova Scotia sign off on it.
I know the Premier of Nova Scotia appeared before the review panel and talked extensively about it. He did not talk about the Accords Acts, but I asked the question of Natural Resources officials and I have since checked and it is a fact that the Accords Acts are supreme. If the Government of Nova Scotia agrees within the 200 nautical miles to conduct oil exploration, they can do it, and they can’t be stopped. That doesn’t matter whether it is in an MPA or not. That’s why, up front, get the provincial consent to do so. I move that amendment.
The Chair: Any further discussion?
Senator Bovey: Thank you for this. I guess we’ve often talked about the balancing acts we all have before us. Perhaps, Mr. MacDonald, you can confirm for me what I thought was the case: That there are agreements between Canada and Nova Scotia existing and that they are supreme? That they reign, in this case, over and above any other MPAs?
Mr. MacDonald: I’m just going to repeat what my supervisor said in the committee before, which is correct. The Canada-Nova Scotia Offshore Petroleum Accords Acts and the Newfoundland one, both have a clause in them which say they supercede any other federal statute. That’s in that legislation, to answer the question.
Senator Bovey: In my understanding would that mean that this proposed amendment is already covered off by other agreements that are supreme?
Mr. MacDonald: The way we operate right now is, when we are working in an Accord area, when we have an area that we want to propose as a Marine Protected Area, we do work closely with the Canada-Newfoundland and the Canada-Nova Scotia Offshore Petroleum Boards, where they share their information about prospectivity and we have our information on the biodiversity. Part of the analysis when we want to establish a Marine Protected Area is we take into account the economic potential when we are designing the area.
In certain circumstances, for example, St. Anns Bank, when the original area that we proposed, based on the feedback we got back from the Nova Scotia Offshore Petroleum Board, we actually removed the northern part of what we were originally proposing because there was some petroleum prospectivity there. The area that we did designate, it does say there’s no oil and gas allowed. It did not require an explicit consent by the province, but certainly they understood that that’s what the regulations were going to say, and they were satisfied that their concerns about prospectivity had been addressed by the fact that we had changed the boundaries in order to take into account the higher prospectivity in the northern part. We managed that through trying to make the two statutes work together.
Our understanding of the way the supremacy clause works in the Accords Acts is that if there is a conflict, the courts will try to make the two statutes work together. It is only when the courts cannot make the statutes work together that they would then see what Parliament said, and they would say this one overrides that one. We try to avoid those situations by jointly planning the different mandates that we have under the Offshore Petroleum Accords Act, which is also a federal statute, as well as the Oceans Act.
Senator Gold: Senator McInnis, just a question for clarification. The example you gave was to avoid the conflict, confusion or embarrassment — or all of the above — were an MPA to be established and subsequently oil or gas exploration was sought, which would be allowed under the agreement as it has been explained.
Would your amendment also cover or grant to the premier a right of prior consent? If, for whatever reason, the premier decided that fishery concerns or the impact of an MPA on a particular community or fishery community — having nothing to do with oil and gas — were to be given priority over the protection of the environment. Do I read your amendment correctly that it wouldn’t require the premier to invoke oil and gas exploration which would be covered by that, but it could be for any reason?
Senator McInnis: No, see, it is the Canada-Nova Scotia Offshore Petroleum Resources Accord. It is not to do with the fishery. It is to do with the petroleum resources.
Senator Gold: I understand. You are a more experienced lawyer than I am here. It says no order may be made to designate a Marine Protected Area that would include any area of the sea that is included in the definition, unless without prior consent. It doesn’t require, anywhere in that area, even if the reason for doing it has nothing to do with potential oil exploration. I presume that in section 2 of the Canada-Nova Scotia Offshore Petroleum Resources Accord implementation Act is a large area.
Senator McInnis: Absolutely. It’s 200 nautical miles all around the province of Nova Scotia.
Senator Gold: My question is, though it refers to the area defined by the act, it doesn’t actually refer to the rationale for granting or withholding consent to offshore exploration. Am I reading this right to think this would allow the premier of Nova Scotia to block the establishment of an MPA in that 200-mile area for whatever reason, including impact on fisheries or a particular fishery?
Senator McInnis: Currently, there is a large MPA in the works. It is 2,100 kilometres. The premier appeared before the panel and spoke against it because, obviously — and he was alluding to this — the geoscience says that that could be a ripe ground for gas and/or oil exploration. That could be many areas that are offshore.
What this would do would simply say the premier has to have a reason for this. What is the geoscience? What’s your best knowledge?
Now, the alternative would be to approve the MPA, let it go through the process — and trust me, it is not easy. It is extremely controversial. If you go through that, and you put it in place, then you can imagine what would happen. They will do it. If seismic testing is conducted in drilling and so on, in that marine protected area. It’s better to come clean up front, have the negotiation, the discussion and then make a determination as to whether it should proceed or not.
I can tell you, in Atlantic Canada — particularly in Nova Scotia and Newfoundland — the offshore holds tremendous future benefits to the provinces. I can recall this back as far as when I was in government, it was the same thing when gas was found. They don’t know where they are going to find it. They know there are tremendous resources there.
An MPA will not stop them, ultimately. What I’m suggesting is that there has to be more thought put into where we are going to put MPAs.
Senator Gold: Senator, if I may, I understand that. I take your point 100 per cent about the potential and properly exploitable potential for the benefit of all citizens and ultimately of the country. But if I were the premier, I might just say no and wait to see what happens I wonder if that wouldn’t tip the scales too much against the protection that might be appropriate for the environment under circumstances where if the exploration is to take place that it can take place. It will take place. Because the accord is paramount to whatever MPA process is in place.
Senator McInnis: See, but what I am —
Senator Gold: What am I missing?
Senator McInnis: No, it is a legitimate argument, except that the purpose of the amendment is to prevent this hostility, frustration and consternation that’s going to be caused by disrupting an MPA that has been done properly by the officials who are now on the ground there. Better to have it out now and make the determination. You know, it is a very serious consideration that has to be given to this.
We all want to conserve. I can tell you they will conduct the exploration. It will be done and it will cause a lot of confusion and a lot of anxiety.
I know you know this — although Atlantic Canadians are much more reasonable — that though the premier is an elected official, I’ve not seen one, when it comes down to it, that they become reasonable and very reasonable and have open discussions with Fisheries and Oceans Canada and those that are sponsoring these MPAs. This would not be a carte blanche. This would not be a, no, we are not doing it. I think it would be set up that there would be proper discussions.
I can tell you governments want revenue and there will be no greater thing for the province of Nova Scotia to become a “have” province on the resources they have control over. That’s what we are talking about here and they will be doing it. We are putting people to all this effort and all I’m suggesting is, in advance of doing that, let’s have a discussion as to the legitimacy of this, and stop the disruption down the road that is sure to come.
The area is 2,100 kilometres, there is one MPA. As I said, there is a map that shows potential MPAs that would cover the entire tip, Cape Breton to Yarmouth. I can and will provide you and the sponsor of the bill the map to show you.
This is a precautionary approach. I think it is a strategic approach. I think it is an important approach to do. If someone has a better mechanism in implementing this to get the consent of the province, then let’s hear it. Maybe we don’t have to pass this amendment tonight. But it was one of the things that I thought of immediately when I asked the question of the senior witnesses from Natural Resources. I immediately called and got legal advice on it as well.
It’s not to put an amendment in just to slow down the bill or change it or anything. It’s a responsible amendment in my mind. I think we should do it.
Senator Christmas: As a fellow Nova Scotian, I have a right to jump into this conversation. I appreciate Senator McInnis’ need or desire to see this bill provide a lot of clarity. It is unfortunate if a court has to be brought in to weigh different bills and try to come to a judgment, so I support Senator McInnis’ desire to make sure that it’s clear. Being a Nova Scotian, I understand and appreciate that the accord does have supremacy over other federal statutes. I think what Senator McInnis is trying to do is take that clarity one step further and ensure that the Oceans Act also reflects that so there is no need for a judge to go bouncing back and forth.
The only problem I have — and I would take Senator McInnis’ judgment on this — is the last part “unless the premier of Nova Scotia has given prior consent.” The premier being in the office that he holds he would have broad authority. I think it leaves that section too broad, where he could cite perhaps almost any reason to not give that consent in writing. It may not be just for oil and gas exploration. It could be for other reasons. It could be for social reasons or the fishery or shipping. There could be numerous reasons that he could cite for not giving consent.
What I would suggest, instead of the premier giving written consent, is perhaps we should consider having the Canada-Nova Scotia Offshore Petroleum Resources Board give the consent in writing. Their jurisdiction is clear that it is only for oil and gas. And, of course, Nova Scotia is a party to that board. Their views and opinions would obviously be taken into consideration.
I throw that is out as a suggestion, perhaps to add clarity to this clause, if it were the petroleum board that gave the consent in writing.
The Chair: Senator McInnis, you asked for more advice. You got some.
Senator McInnis: Are you sure you want the petroleum board? That’s putting the fox in the hen house if I ever saw it. I appreciate that. I’m not sure that would be the proper vehicle. If there is some other vehicle that could be put in place, I’d like to know what it is. I worry what Bill C-69 is going to do with that board in any event.
Senator Gold: Well, this is watered-down version. I’m concerned about the consent. There is a continuum between ignoring people, engaging, consultation and consent. I don’t want to presume that I know how you would answer this, but is prior consent in writing required or is something slightly less veto-ish — that’s not an English word, is it? It is not a French word either.
The Chair: That’s not even a Newfoundland word.
Senator Gold: It’s something that underlines the importance of proper involvement and consultation and it is such that whatever decision is made through the process, even though we’re told that’s what takes place, it’s clear that it must take place before something can be designated.
Is that strong enough to meet your concerns? It would have to be reworded somehow.
Senator McInnis: Yes. I know you understand this but let me say it. The premier can do it anyway.
Senator Poirier: That’s right.
Senator McInnis: They have the authority. How do we soften that?
Senator Gold: As I understand it, the premier can authorize oil and gas exploration because of the accord. Currently, the premier wouldn’t have the ability to say despite all of the science and all of the other — I just don’t want an MPA in my backyard but that’s the legal effect of this clause.
Senator McInnis: In fact, they can do that at a time when an MPA is in place.
Senator Gold: With regard to oil and gas.
Senator McInnis: Absolutely; that’s what this is. It’s not with respect to the fishery. It’s with respect to the offshore petroleum resources.
Senator Gold: It’s with regard to the area defined in that but it does not require the premier to invoke — this may be a law professor’s concern —
Senator McInnis: Yes, it is.
Senator Gold: Please forgive me for that. As drafted, it gives an unfettered power in the premier to say no to an MPA for whatever reason. I believe that was Senator Christmas’s observation. The reference to offshore petroleum accord is only for the purpose of designating the area over which the premier would have a veto.
Senator McInnis: Yes, which is all around the province of Nova Scotia.
Senator Poirier: He already has it. That’s what I mean, he already has it.
Senator Gold: I’m repeating myself.
The Chair: I will try to really muddy the waters now. To be clear, Senator McInnis, because your next amendment is pretty much the same thing as it relates to Newfoundland and Labrador’s accord as it is to Nova Scotia’s. At the present time, the Government of Newfoundland and Labrador and the Government of Nova Scotia can commence drilling — no, you’re telling me they can’t in an MPA? I didn’t know that. You’d better fill us in.
Mr. MacDonald: To clarify, Mr. Chair, the authorization of an oil and gas activity in the offshore area is given by the Canada-Newfoundland Offshore Petroleum Board, which is a creature of both the federal and the provincial governments. It’s not a provincial decision. It’s a federal-provincial decision. The federal decision maker is the Minister of Natural Resources.
The Chair: As I said, I’m doing my best to muddy the waters. The Canada-Nova Scotia or the Canada-Newfoundland Petroleum Board can decide to conduct drilling in an MPA at any time. Is that what you’re telling us? They have the authority under the accords to do that?
Mr. MacDonald: The accord legislation says that activities authorized under this are supreme, so they supersede other federal statutes, yes. There is a whole lot of administration around the authorization of the drilling activity, which is —
The Chair: That’s a different kettle of fish, yes. Basically the boards can authorize.
Mr. MacDonald: Yes, they authorize.
The Chair: That’s the top law. Okay.
Senator McInnis, if I follow what Senator Gold is saying, he believes that what you’re putting forward here extends beyond oil and gas and it gives the premier of Nova Scotia, the premier of Newfoundland what you’ve written here, even though it falls under the petroleum board but the fact is how it’s written, Senator Gold believes it gives carte blanche for the premier of either province to deny or not to give consent for whatever reason he or she may want to do at that time, and not necessarily on oil and gas but on anything? Am I reading you correctly?
Senator Gold: That’s how I’m reading it. It may not be the intent but that’s how I’m reading it.
The Chair: I’m trying to figure out how we’re reading things. Is there any way that you can change what you have here to meet the goal you’re trying to reach?
Senator McInnis: I would like to have the opportunity to do that. I said that earlier. We’re not in that big a rush. We want to get this done, but I would like to explore it a bit further. As I said earlier, I’m not interjecting here to try to delay —
The Chair: No, I’m concerned from Newfoundland and Labrador of the same concerns you have in relation to Nova Scotia. I want to make sure we’re all clear on what we’re saying and what we’re trying to do.
Senator Bovey: Coming from the Prairies — which are the friendliest of all — I see what you’re getting at but I think we’re already there. From what I understand with the Canada-Nova Scotia Offshore Petroleum Resources Accord and the one with Newfoundland to ensure that is understood in the bill — isn’t all we need something to recognize that the accord is in place with Nova Scotia and Newfoundland, with the offshore petroleum resources that reigns supreme. I know this is not legalese. If it’s already the case and we’re trying to underline that yes, that is the case, isn’t that —
Senator McInnis: It’s more than that. What we’re trying to do here is be proactive. We’re trying to say, look, the province of Nova Scotia, we’re putting an MPA in place off of Cape Breton Island just outside of Danny’s home.
Let’s have a discussion about that beforehand, not have the province go in and start drilling in the middle of an MPA.
I can imagine what that would cause.
Senator Gold: Scientific work that goes on to identify the biodiversity changes, the next step is to identify an area of interest. At that point, before anything is designated — before anything is deemed a temporary — that’s when discussions, consultations and all of that with the premier and others would take place.
If that’s all we’re trying to accomplish to make sure that there isn’t just a unilateral definition — it’s Tuesday morning, we’ve just decided, with no discussion, here’s a protected area for the next five years. That is not how it’s done, as far as I understand.
If we’re trying to be proactive and avoid unilateral decisions on the part of the department of fisheries, which would then result in conflict because of a decision to pursue oil and gas, why isn’t the consultative process, either in place or reinforced somehow or other in this bill, sufficient?
Senator McInnis: I just want to tell you something.
This is just one article opposing the MPA and the number of groups that are opposing it in Nova Scotia. The premier opposed this for the very reason that I directly spoke about tonight. This is a major issue.
They will go through what has happened here, and it’s done, this Oceans Act is to enable the Government of Canada to get to ten per cent. That’s the point. Otherwise, the old system would be fine. This is the reason they’re doing it. They freeze the footprint. Now, and what I’ve said before, is reverse onus. There it is, prove it shouldn’t happen. That’s exactly what the people down in my neck of the woods are going through. It’s not a proper system. It’s one — forgive me — for a government to get to a milestone, and they’re not, unfortunately, listening to the fishers and many of the residents and the people that make their livelihood there. There’s so much uncertainty.
This consultation process that took place over five years, and then the order becomes regulations — wouldn’t it be better, as opposed to going through all of that, to get that consent from the province of Nova Scotia? That’s what I’m saying.
This is a long-haul process. We’re putting the cart before the horse when in fact it can be snuffed out just like that at any time. If I had my way, I would try to determine where we could put — in conjunction with the province — some MPAs. We all have to be protectionists and we have to be conserving and so on. In fact, sometimes I think Fisheries and Oceans are being too much that way. You have to do it and not as much in management.
This has to be done in conjunction with the province. This amendment would be this government acting responsibly.
I can’t speak for the premier, but he went to Saint John and spoke against this before the panel. As opposed to doing that, he can shut it down at any time when he wants, if they are going to drill or whatever. Why don’t we reasonably come up with an amendment that will enable there to be that discussion that takes place? That’s all we’re asking.
It will eliminate all of this anxiety and consternation that’s taking place. I was in a meeting on Saturday and there had to be 250 people in the room. There should have only been 150. That’s how upset people are about this.
Mr. MacDonald: I would just offer for the committee that this bill is fairly narrow in scope. The Oceans Act is an enabling piece of legislation. The process I was explaining, when we coordinate with the offshore petroleum boards when it comes to the initial design of MPAs and where they are located. I refer you to section 33 of the Oceans Act. It says specifically in section one, subsection (a):
In exercising the powers and performing the duties and functions assigned to the Minister by this Act . . .
For the entire act, the minister:
(a) shall cooperate with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements;
That’s at the heart of the Oceans Act when it was originally passed. It’s not coming up in Bill C-55, but it is why we take that approach when we design marine protected areas, for example. It’s because that’s what the minister shall do according to the Oceans Act. Whether we’ve achieved that is a different subject but in terms of what the current bill is proposing and what the law currently says, that’s there.
Senator McInnis: The only question with respect to that is why was it necessary for the premier of Nova Scotia to go before the panel and plead his case? Who is in touch with him in advance, or anyone in the government? No one. With respect.
The Chair: There’s an answer somewhere in the air but it hasn’t found its way to the table.
I would say for now we have exhausted that discussion.
Is it your pleasure, honourable senators to adopt the motion in amendment?
Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: All those in favour of adopting the amendment, raise your hands?All those contra-minded, raise your hands. The motion is defeated.
Shall clause 5 carry?
Senator McInnis: I have the Newfoundland clause. I want to repeat what I’ve said —
The Chair: No, not with the power invested in me. Even the fact that it’s Newfoundland and Labrador, I think we’ve gone through the process.
Senator McInnis: I won’t proceed with that.
The Chair: We will now move to amendment TM2, Newfoundland and Labrador. I’m going to read it to make sure everybody is aware.
It is moved by the Honourable Senator McInnis:
That Bill C-55 be amended on clause 5, page 4, at line 20 by adding the following after line 20:
“(2.1) No order may be made under subsection (2) to designate a marine protected area that would include any area of the sea that is included in the definition offshore area in section (2) of the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act unless the Premier of Newfoundland and Labrador has given prior consent to the designation in writing.”.
Is it your pleasure honourable senators to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: All those in favour, raise your hands? All those contra-minded, raise your hands?The motion is defeated.
The Chair: Shall clause 5 carry?
Senator Patterson: Shall I read the proposed amendment?
The Chair: Yes, you can, because you’re going to have to explain it.
Senator Patterson: I move:
That Bill C-55 be amended in clause 5, on page 4, by adding the following after line 32:
“35.11(1) Before an order may be made under subsection 35.1(2), the Minister shall:
(a) cause the proposed order to be posted on the Minister’s website, accompanied by a notice that invites the public to provide comments during a period, to be set by the Minister, of at least 60 days, beginning on the day after the day on which the proposed order is posted;
(b) ensure that the public is provided with an opportunity to participate meaningfully in informing the Minister’s consideration of the proposed order within the period set under paragraph (a);
(c) provide written notice of the proposed order to every jurisdiction whose lands or interests may be affected by the order and consult and cooperate with every such jurisdiction that requests a consultation no later than 30 days after the day on which it received the notice; and
(d) prepare and post on the Minister’s website a report that:
(i) summarizes the comments received under paragraph (a),
(ii) describes how the public was provided an opportunity for meaningful participation as required under paragraph (b),
(iii) lists the requests received for consultation under paragraph (c), and
(iv) summarizes the consultations that occurred under paragraph (c).
(2) For the purposes of paragraph (1)(c), jurisdiction means
(a) the government of a province;
(b) any agency or body that is established under an Act of the legislature of a province and that has powers, duties or functions in relation to the environment;
(c) any body — including a co-management body — that is established under a land claim agreement referred to in section 35 of the Constitution Act, 1982 and that has powers, duties or functions in relation to the environment; or
(d) any council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982 and that has powers, duties or functions in relation to the environment
(i) under a land claim agreement referred to in section 35 of the Constitution Act, 1982, or
(ii) under an Act of Parliament or an Act of the legislature of a province, including a law that implements a self-government agreement.
(3) For greater certainty, the requirement set out in paragraph (1)(c) to consult and cooperate with a jurisdiction includes, when appropriate, a duty to accommodate if the jurisdiction is a body or entity referred to in paragraph (2)(c) or (d)”.
I think, Mr. Chair, the committee members have a copy of this amendment. I have also provided the proposed amendment to the minister’s office, the office of the Minister of Fisheries and Oceans.
The Chair: Does everybody have a copy of amendment DP1?
Go ahead, Senator Patterson.
Senator Patterson: If I could speak to the amendment, Mr. Chair,Canada’s approach to creating MPAs and including the vesting of final authority with the responsible minister has not been well received by some. The Inuvialuit President Duane Smith raised before the committee his persistent objection despite the inclusion of a non-derogation clause during consideration by the House of Commons. Not all land claims are created equal, and the added cause does not help to restore the IRCs, that’s the Inuvialuit Regional Council’s, faith in the ongoing the IIBA, Inuit Impact and Benefit Agreement negotiations. These concerns were also raised in the House of Commons committee by Premier Bob McLeod of the Government of the Northwest Territories.
The Government of Nunavut, the GN, also raised the issue of the impact of this bill on devolution. As you know, that’s the process to negotiate transfer for management of lands and resources onshore. It includes a commitment to also, in the future, discuss co-management on the offshore.
Pre-commencement of devolution negotiations, an MOU was signed between Canada and the Government of the Northwest Territories and carried over to the Government of Nunavut to discuss and eventually settle the issue of co-management of the offshore.
We would love to have an arrangement like the Atlantic Accords but it would also involve the Inuit who have rights in the offshore and who establish sovereignty for Canada in the offshore.
I should say the Inuit and the Inuvialuit.
The lack of a requirement of express permission from the adjacent province — which means territory under the Interpretation Act — to proceed with the establishment of an MPA has been interpreted by the Government of Nunavut as an act of bad faith, given the ongoing nature of the current devolution negotiations.
We know that the government and southern interests are looking to Nunavut for yet another Marine Protected Area, which is why it is so important to the Government of Nunavut to ensure that this bill bring certainty to the process for the inclusion of the adjacent jurisdiction as a full-fledged decision maker.
While we were toiling in the Senate, my assistant was at the budget lock-up. I want to quote from today’s budget. It says, and I quote:
The Government is exploring the potential creation of a marine conservation area in the High Arctic Basin or Tuvaijuittuq (which means “the ice never melts” in Inuktitut . . . .
I’ll pause here to say that the budget said “Innu,” but I’m correcting them, as Inuktitut is the dialect spoken in the Baffin Region where I am from and the Innu are a First Nations group in Labrador, but I digress. I wanted to point out that small geographical error in the Minister of Finance’s budget address.
The budget goes on to say that the High Arctic Basin is:
. . . the last portion of the Arctic region expected to retain summer sea ice until at least 2050. The Government will work with the Government of Nunavut and Qikiqtani Inuit Association to advance this important conservation initiative, while also working to support the development of a conservation economy in the region.
Chair, committee members, the Government of Canada, in today’s budget, is already committed to work with the Government of Nunavut and the adjacent rights holder, the regional Inuit association, to advance this important conservation initiative. They have committed to doing what my amendment modestly proposes — consult and cooperate. They have said they will do that. I would like to quote from the DFO website:
Fisheries and Oceans Canada (DFO) and Parks Canada Agency (PSA) will work with Indigenous, Northern and international partners to explore the best ways to collaboratively —
That’s a word that resonates with my amendment.
— to collaboratively protect and manage this area, and to establish protected areas in Canada’s portion of the High Arctic.
I want to emphasize the word, “collaboratively.” There is a high degree of interest from Southern-based environmental organizations in this initiative. The World Wildlife Fund has been very active and they say this about the High Arctic Basin:
Limiting climate change is the most important thing we can do for ice-associated life, but we can also take action locally. We can avoid additional threats from activities such as oil and gas exploration, commercial fishing, tourism and shipping.
Now, Mr. Chair, I want to say, really — shipping? You know we depend for our annual resupply on shipping. Tourism is a newly developing, important source of economic activity for communities. We have the Crystal Serenity visiting the Arctic in recent years. And commercial fishery is a growing industry, as I think the committee has heard, which employs over 300 Inuit right now.
I make this point about the advocacy of the World Wildlife Fund and other organizations like the Lewis Pugh Foundation and Oceans North because I believe it is imperative that Northerners have the final decision on what areas are to be protected — or at least that Northerners have a strong voice in making the final decision on what areas are to be protected and what opportunities are to be foreclosed, perhaps, in the name of conservation.
I think this amendment will not increase the time it would take to establish an MPA. Instead it is seeking to bring certainty as to how that time will be used and what the process will look like. The government claims — and I think your committee has heard from the minister and officials — that the process is going to be inclusive. I think they presented a chart about the consultation process to be undertaken. My plea to committee colleagues is, why not codify that process and describe it in law?
With the greatest of respect to Senator McInnis’ amendment relating to the Atlantic, this is not a veto nor consent. It is collaboration and consultation.
When IRC President Duane Smith appeared before this committee on February 6, 2019, Senators Gold and Bovey responded to his submissions to the committee and asked whether he suggest changes to the process outlined in this bill? Senator Bovey, as well, asked in that vein.
Colleagues, I have shared this amendment with the Inuvialuit Regional Corporation and the Government of Nunavut. After some back-and-forth with them and the Law Clerk, I have prepared this amendment before you today. The Law Clerk used language on consultation and accommodation currently found in Bill C-69 which is now before the Senate and tweaked that language to fit this bill.
My question: If the government is dedicated to this process — and I’ve given you some quotes about how they publicly committed as recently as in today’s budget — and is comfortable in laying it out in detail in another bill — namely Bill C-69 — why not in this one? Why not hold the government and future governments to a process outlined in the law?
If I may, Mr. Chair, I have a letter from Duane Ningaqsiq Smith, Chair and CEO of the Inuvialuit Regional Corporation, dated today. It is just in English, but I would like to briefly read the three paragraphs, if I may. It is supporting the proposed amendments to Bill C-55. It is addressed to you, Mr. Chair:
Thank you for considering my presentation to the committee last month. We appreciate the questions that you and your colleagues raised.
Since that presentation, IRC has worked closely with Senator Patterson and his office to find a legislative solution to the issues we and others have raised with respect to Bill C-55.
The text that Senator Patterson and his office have developed with our input help ensure that rights holders are adequately notified, consulted and, where appropriate, accommodated where a Marine Protected Area is proposed. As the Inuvialuit Final Agreement does not have the benefit of some of the key terms of more modern land claim agreements, and as a ministerial order under Section 35.1(2) of the bill could impose extensive impacts on our region, it is our position that this text is necessary to provide clear instructions to those responsible for implementing the Oceans Act over the long term. Non-derogation clauses, while essential, are not sufficient in this case.
I have copies of that letter, unfortunately in English only.
Mr. Chair, I just want to ask committee members to consider the key testimony we heard from two premiers, from Nunavut and the Northwest Territories — Canada’s longest coastline.
Honourable Joe Savikataaq gave this testimony before our committee on February 26:
I want to reiterate that we are not against the creation of protected areas but rather we need a decision-making role in the process. We have expressed our concerns with the general failure of Canada to involve the Government of Nunavut in this decision-making process, with respect to marine protected areas on a number of specific occasions . . . .
With Bill C-55, there is no consultation process. If it passes as is, the DFO minister can say that this area is protected, and then we have five years to justify why it should be one. We think that’s backwards.
Bob McLeod, Premier of the Government of Northwest Territories, testified at the House of Commons committee:
Bill C-55 has made it all the way through second reading in the House of Commons, and contains significant increases in Ministerial power and authority, and yet again, the GNWT was not consulted on its development. Specifically, we are very concerned with the amended ability for the Minister of Fisheries and Oceans to designate Marine Protected Areas by order and without consultation.
Mr. Smith testified here on February 6:
Inuvialuit are concerned that establishment of MPAs by ministerial order under the Oceans Act and the further limitation on development by prohibition order under the CPRA will reduce our meaningful participation in the future of our region and exacerbate these implementation problems we are already experiencing.
And you will recall Mr. Smith talked about having participated with Canada in the development of no less than two Marine Protected Areas and the implementation problems that they were experiencing. He knows of what he speaks. And the director of B.C. Seafood Alliance said:
. . . one of our concerns was that the bill sent to you for review did not provide that the minister must consult with those who would be affected by permanent MPA closures. Consultation is what we need in order to get durable solutions that all parties will support over the long term.
Mr. Ken Paul, Director of Fisheries, Assembly of First Nations, February 21, 2019:
The draft bill does not provide any requirement to consider Indigenous knowledge with respect to section 35 rights. In addition to concerns about the lack of protection for section 35 rights generally in Bill C-55, the proposed bill does not require or consider Indigenous knowledge or the protection of section 35 rights when making designations.
This is very problematic, especially given the breadth of some of the proposed legislation and order-making provisions.
To conclude, I think we have a duty in the Senate to propose constructive amendments. I believe this amendment is consistent with the process that was described by the Minister of Fisheries and Oceans, with a process that is on the DFO website, with the commitments made in the budget, talking about the High Arctic Basin. By the way, with the greatest of respect to Marine Protected Areas in, say, the Atlantic or elsewhere, with the High Arctic Basin proposed — and there are discussions well advanced within the department about preserving these areas. They have engaged the Inuit of the region — this is an area that is 109,000 square kilometres. This is, with all respect, twice size of the land area of the province of Nova Scotia. It is one third the size of Alberta. It will contribute 1.9 per cent of Canada’s entire marine areas if it becomes a protected area.
All the duly elected representatives of the peoples of Nunavut and the Northwest Territories are asking, modestly, is to be consulted and to have the opportunity to participate in a collaborative process, which I believe the government is publicly committed to doing. But we’ve got to put it in the legislation to provide that comfort and security and, frankly, respect for the adjacent jurisdictions. Those are my submissions, Mr. Chair.
The Chair: Thank you for your proposed amendment. I’m going to suspend the meeting for a few moments. It is kind of out of the ordinary, but I am allowed to do it, so I will do it. I am going to have a chat with the deputy chair because we are pushing on time. We still have another amendment. It is a very important debate. I do not want to cut off the debate, and I don’t want to hit eight o’clock.
I will suspend for a few minutes, and chat with my deputy chair, we will come back and have a plan that we will all go along with. Is everyone okay with that?
(The committee suspended.)
(The committee resumed.)
The Chair: I call the meeting back to order. I realize what I did may be a little bit out of the ordinary. I like to be different anyway, so it doesn’t really matter. In consultation with the deputy chair, Senator Patterson has made a large amendment, a compelling argument he has put forward. We felt that, starting the discussion here tonight, with seven people around the table who may want to ask questions, make comments, even from our guests and we are dragged into the night, that we may not get to it.
We will finish up our meeting this evening and reconvene on Thursday morning. We will be dealing Senator Patterson’s amendment on Thursday morning. Hopefully we will have an ample discussion, and any concerns anybody has raised, whatever the case will be, we will deal with. We have two amendments, two other amendments to deal with after that. This is the large amendment and it has taken some time for Senator Patterson to explain it and I —
Senator Patterson: I hope not too much time.
The Chair: My concern is that someone will start asking you questions and you will have to explain it all over again. I don’t want to start a discussion and then kind of end the discussion; I would rather that we were all here focused in on Thursday morning as the discussion starts and then we will have heard from Senator Patterson.
Everybody has understood his reasoning for the amendment, so now we can have that discussion all at once. I don’t want to split that discussion in half. With the cooperation of Senator Gold, that’s the process we’re going with.
Is everybody okay with that process?
Senator Bovey: Can we meet your objectives on Thursday if we start at 8:30? It’s your decision, not mine.
Senator McInnis: There’s Senator Patterson’s amendment and then I have two.
Senator Munson: Chair, I won’t be able to attend the Thursday meeting because I’m the deputy chair of the Internal Economy Committee and we meet at eight for two hours on Thursday morning. You’ll have enough to have substantial debate.
The Chair: I don’t like eight o’clock meetings either, to be honest with you. We have this amendment and two other amendments to deal with. When we looked at what we did here this evening, I think we will have to start at eight o’clock on Thursday morning.
Is everybody agreed? It’s 8 a.m. Thursday morning.
Senator Munson: You can ask the witnesses if they want to come.
The Chair: You want to drop by at eight o’clock on Thursday morning? See you here. We’ll have tea and coffee on.
(The committee adjourned.)