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POFO - Standing Committee

Fisheries and Oceans


Proceedings of the Standing Senate Committee on 
Fisheries and Oceans

Issue No. 39 - Evidence - March 21, 2019

OTTAWA, Thursday, March 21, 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 8:06 a.m. to give clause-by-clause consideration to the bill.

Senator Fabian Manning (Chair) in the chair.


The Chair: Welcome to our guests, one of whom had to leave because of illness. Josée Annie Verville will be the replacement.

We are continuing with our study on Bill C-55. Tuesday night we finished up with Senator Patterson presenting his amendment. I trust that all committee members have DP1 at the top of the page.

Senator Patterson gave a very detailed explanation of his amendment, but I will give him three or four minutes to present a Coles Notes version for a couple of senators who may not have been here the other day.

Senator Patterson: Thank you, Mr. Chair. I’ll try to be concise. This is a modest amendment that only proposes consultation and cooperation. The reason for this amendment is that we have heard Premier Savikataaq and before him we had a letter from Premier Taptuna from Nunavut saying that consultation was not happening.

The committee received, and I’ll ask to pass this around, a lovely coloured chart from the officials and the minister talking about proposed steps to designate an interim protection area. It talks about the federal, provincial and territorial multi-stakeholder bioregional processes already under way. In the proposed steps, the minister says they will consult with adjacent jurisdictions and stakeholders, and that would include Indigenous rights holders.

If the officials and the minister say they’re already proposing to do that, let’s put it in the bill to make sure it happens. We have heard these promises from governments before in the Senate. On Bill C-17, the government made promises about the YESAB the process in Yukon that haven’t been delivered on. On Bill S-3, gender discrimination under the Indian Act and the promises to get rid of the 1951 cutoff when we were looking at it in committee didn’t happen and still hasn’t happened. On Bill C-45, the cannabis bill, the promises from the government that they would look at the rights of Aboriginal people to have a piece of the excise tax and to deal with treatment centres is still a work in progress. So I’m saying let’s accept and welcome these great promises, but make sure it happens by putting it in the bill.

We know the High Arctic Basin is the next marine protected area. It was in the budget two days ago. It’s 100,000-plus square kilometres, a huge area. The Government of Nunavut has told us they haven’t been involved. As far as rights holders are concerned, I know we received a last-minute letter from West Coast Environmental Law saying that all Indigenous rights are protected under section 35.

The Chair: Excuse me, Senator Patterson. I just want to make sure that everyone is aware and has received a copy of this. Go ahead, sir.

Senator Patterson: I draw special attention to Inuvialuit Regional Corporation President Duane Smith who said that Aboriginal rights holders should be consulted. Land claims agreements don’t always take care of these issues. In particular, Mr. Smith said this was required and that my proposed amendment would allay the concerns he presented to us in his testimony.

For context, this is required because the Inuvialuit Final Agreement does not contain the same express requirements as newer land claims agreements for the quid pro quo establishment of IIBAs, Inuit impact benefit agreements, where areas are set aside for conservation. The Inuvialuit Final Agreement was one the first comprehensive claims agreements and it does not provide those assurances.

Out of an abundance of caution, colleagues, and only requiring what the government has pledged already that it will do, the amendment proposes consultation and cooperation. It’s a pretty modest amendment. Perhaps there’s a new government or new players coming in this fall. I don’t think promises made in committee or in testimony are enough assurance, especially for rights holders in the offshore. We haven’t received testimony from Nunavut Tunngavik, the rights holder in Nunavut, Canada’s longest coastline, but I can tell the committee that there is also a concern about the requirement to consult with them.

We’ve heard from the Inuvialuit. That alone should be enough to allow us to approve this modest amendment. The government is already proposing to do it. Let’s cement that with this reasonable amendment to require consultation and cooperation with adjacent jurisdictions and adjacent rights holders. It’s a modest proposal, and I would urge my colleagues to support it.

We are in an era of reconciliation and respect for Aboriginal rights. We’ve had an Aboriginal organization from the Beaufort Sea tells us that this amendment would satisfy the concerns they expressed to us very clearly. I tabled the letter at our last meeting saying that the amendment would ensure that rights holders are adequately notified, consulted and, where appropriate, accommodated where a marine protected area is proposed. This is from an organization that has already participated in the development of two marine protected areas and is concerned about how that has been implemented.

That’s my proposal, Mr. Chair.

The Chair: Thank you, Senator Patterson.

Senator Bovey: Thank you, senator, for the Coles Notes version of your compelling speech of the other day. I want to put on record that Senator Patterson and I have spoken. He knows the questions I’ve had in my head and heart as we look at this amendment. I have some questions, though, if I may, for Mr. MacDonald or for anyone at the table.

In looking at what Senator Patterson has defined as a modest proposal, is there anything in this proposed amendment that is not already in the bill? Then I will have further questions, if I may.

Jeff MacDonald, Director General, Oceans and Fisheries Policy, Fisheries and Oceans Canada: Some aspects of what is proposed with regard to the obligation to cooperate with other levels of government, boards, agencies of the Government of Canada, provincial and territorial governments and affected Aboriginal organizations are in the Oceans Act already in section 33.

Other aspects related to the notice and publication of regulations and the intent to regulate are already part of a different statute known as the Statutory Instruments Act that guides all departments and agencies in the preparation of regulations. Because regulations are statutory instruments, they have the force of law behind them. We are obliged to follow the Statutory Instruments Act when we are proposing regulations. Further to that, as a result of that legislation, there is a cabinet directive on regulations which lays out more specifically what all departments and agencies proposing a regulation must follow in terms of the process.

Members may be familiar with the tail end of that process, such as prepublication in Canada Gazette Part I and then final publication in Canada Gazette Part II. Prior to the prepublication period, departments and agencies are responsible under the cabinet directive for identifying stakeholders impacted by regulations, including Indigenous peoples. We need to meaningfully consult and engage with them throughout the development, management and review of regulations.

To answer your question, that particular aspect is not found in the Oceans Act but is found in the Statutory Instruments Act, which all departments and agencies must follow when they’re proposing regulations.

Senator Bovey: What is in this amendment is already covered by law.

Mr. MacDonald: That is correct, yes.

Senator Bovey: Let me twist the question and put it another way. Is there anything in this amendment that contradicts what is already either in this bill or in Canadian law now?

Mr. MacDonald: Thanks to the fact that we’ve had an extra day to look at the amendment, we have some observations. It is much broader than what is in the Statutory Instruments Act. For example, in the proposed amendment, subparagraph (c), it says:

. . . provide written notice of the proposed order to every jurisdiction whose lands or interests may be affected by the order.

One of the words that caught our attention was “interests,” because that is a very broad term.

Senator Patterson: What did you say?

Mr. MacDonald: The word “interests.” When we say to every jurisdiction whose lands or interests may be affected by the order, which is broader than what we find in the Statutory Instruments Act, for example, because “interests” is a very broad word and could mean many different things and is subject to broad interpretation.

Senator Gold: For clarification, could you give us the equivalent language in the Statutory Instruments Act so that we can compare it?

Mr. MacDonald: I don’t have the Statutory Instruments Act in front of me. I have a summary of what we are obliged to follow. This is the cabinet directive where proposed regulations have the potential to adversely impact potential or established Aboriginal or treaty rights, for example. Under section 35 of the Constitution Act, departments and agencies must satisfy the Crown’s duty to consult and, where appropriate, accommodate those rights of the Aboriginal peoples of Canada.

The difference is between rights and interests. It’s a very different legal term when we talk about someone’s interests. That tends to make what is proposed in the amendment much broader than what we would see in the cabinet directive on regulation.

Senator Bovey: While we’re getting this right, I have two other questions.

The Chair: I’ll give you all the time you need. Just give me a moment, please.

In my discussions with several members, some of these are a word here or a word there. It complicates things. I want to make sure that everyone has ample time to ask a question.

Senator Bovey is asking Mr. MacDonald a question. I will give ample time for someone to ask questions. Just let us know here at the table. I don’t want to interrupt the conversation because I am trying to get as much information as we can.

Senator Bovey: Building or picking up on what Senator Patterson said about the concerns of lack of consultation, could you just walk us through the process? I know some of us have been walked through the process before. For record this morning, it would be helpful for the committee to be clear as to what is the process, Mr. MacDonald.

Mr. MacDonald: If I may, is that the process for the establishment of a marine protected area?

Senator Bovey: Yes.

Mr. MacDonald: I’ll try to be short. It is a lengthy process.

Senator Bovey: Coles Notes or a high-level summary of the key steps so that everyone is really clear as to what is what.

Mr. MacDonald: Sure. There may be circumstances where the government itself is proposing a marine protected area, or we may have other levels of government, Indigenous groups or stakeholders proposing an area for protection. Regardless whether it’s initiated by the government or by others, the initial area we look at tends to be drawn from the scientific work done by the department with regard to identifying ecologically and biologically significant areas of the ocean.

When we look at what are the important biodiversity features of the ocean, that’s an initial conversation which is usually initiated either by the department or by others because of a general interest in protecting that particular part of the ocean.

What happens then is that a lot of information gathering takes place. That’s an iterative and collaborative process. We may have sources of information as the Government of Canada which can help. We may rely on traditional ecological knowledge that Indigenous groups may have or that coastal communities may have. We may do additional scientific research, either ourselves or other organizations. We may gather data from the fishing industry. We may gather data from the shipping industry. There are a lot of different sources of data. Once we bring all that to bear, that is when we bring together more formally a stakeholder advisory group where we share our analysis and engage in feedback.

That can go on because the ocean is a very complex place. It’s obviously very three dimensional and a lot of activities tend to take place. A healthy debate takes place as to what the conservation objectives should be for protecting an area. It is only at that point where we start to enter into more formal mechanisms. The first one, traditionally, has been going from an ecologically and biologically significant area to the identification of an area of interest. An area of interest doesn’t have any legal status yet, but it is well known in policy as an important step in the process.

A current example of an area of interest would be on the offshore Pacific west of Vancouver Island. In May 2017, the minister announced an area of interest. Since then we have been working with Indigenous groups, stakeholders, the fishing industry, the transportation industry and environmental organizations in that area, in terms of refining the boundaries of the area of interest and clarifying what are the objectives. In order to prepare for a full regulatory process, we also need to articulate the socio-economic impact of establishing that protected area and clearly identifying what would be the management plan.

Then and only then we go through the formal process of proposing the area as a marine protected area under the regulatory authority found in the Oceans Act. It’s at that point we also need to demonstrate under the cabinet directive on regulation all the information I shared before. It is a prerequisite for the Treasury Board Secretariat to accept our regulations. Internally, we have to work closely with the Treasury Board Secretariat to ensure that we have fulfilled all the requirements in the cabinet directive before the regulatory package is presented to the Treasury Board committee of cabinet. Further to that, once that is done, we then enter into the prepublication period where the public once again has a final comment period prior to the regulations coming into force.

Senator Bovey: I have a final question. Going back to my life in the not-for-profit sector, our boards of governors have their policy documents and their procedural documents. What I am hearing is that the policy is enshrined in the bill and you have the steps for implementation or the procedural steps.

If this proposed amendment is already duplicated in legislation, but wanting to capture the concern that everything is out there in the public to see for consultation and for cooperation, tell me, would it be appropriate to have an observation attached to the bill as it goes back to the House of Commons requiring a government response?

Mr. MacDonald: I am not sure I understand the question. Is your question related to the proposed amendment?

Senator Bovey: Yes. Wanting to capture the spirit of it, but if it’s already duplicated, how do you capture the spirit to make sure the action is really strong? Could that be done through an observation?

I found in my time in the Senate — and I won’t go back to the particular bill — that we could have saved ourselves a lot of heartache if a report with amendments that were rejected was in fact enshrined in an observation so that action had to be taken.

Mr. MacDonald: In that case, Mr. Chair, I am really in your hands of the committee.

Senator Bovey: I put that forward as a consideration. Obviously I am trying to look at how we make sure all the concerns are captured but not necessarily repetitively.

The Chair: Mr. MacDonald may not be in a place to answer that. We decide whether we are going to have amendments.

Senator Bovey: Everybody knows my thought process. Everything is completely open.

Senator Patterson: Senator Bovey raised three points, and I hope I can remember them all. The first one was that this could be taken care of by an observation which requires a government response.

Observations don’t require government responses. Recommendations require government responses. I mentioned the examples that come to recent mind: Bill C-17, Bill S-3 and Bill C-45. Observations haven’t been delivered on. I don’t know if it’s fair to ask the witness that question, but I will just put that on record.

I would like to ask the witness a question. You said that this was taken care of under the Statutory Instruments Act. I would like colleagues to refer to the proposed steps that I circulated from the department. You’ll see in the sixth proposed step, I hasten to say, that there will be a publication in the Canada Gazette, to which Mr. MacDonald referred.

If you look at the timeline here, colleagues, the policy development process has taken approximately one year. This is the department’s own timeline. The regulatory development process takes one to two years. The star under number six is about halfway through the one-year to two-year period. We have two years, according to the department’s own timeline, before this statutory instruments requirement to consult kicks in. That’s an awfully long time if adjacent stakeholders have not been consulted or notified.

I remind members again that we heard from Premier Savikataaq and his predecessor Premier Taptuna, also wrote a letter to the committee that this was not happening with respect to the High Arctic Basin, the largest Marine Protected Area that we’ll see.

Finally, this is the second question for Mr. MacDonald, or maybe I should stop and let you answer my concern on the timeline on the statutory instruments requirement.

The Chair: Perhaps you could put your two questions forward, and then Mr. MacDonald could answer them.

Senator Patterson: Very good, sir. You’ve spoken about a cabinet directive on regulation which in effect sets out the requirements for consultation. Again I would say that a cabinet directive can be changed at the stroke of a pen in a cabinet meeting. This is not the solid guarantee I am seeking to be put into legislation. A directive like government policies can be changed easily and without public involvement.

Would you agree a cabinet directive is something that can be easily changed without public input or notice, and therefore not something that we can rely on or the public can rely on?

Mr. MacDonald: With regard to the timelines and for illustrative purposes in the presentation we’ve provided to committee members and to the committee, we were outlining in this document where the interim protection MPA would serve a useful purpose. I described earlier the process that we go through to get to the point where we’ve identified an area of interest.

Our concern and the main reason for bringing forward this bill, as Senator Patterson has laid out, is that there is quite a bit of time between the moment when we’ve achieved a degree of agreement that this is what we should be protecting, as we see in the policy development process, and this is the delineation of the area that we should be protecting. It takes quite some time to go from there to the formal gazetting of the regulations. During that whole interim period, the area that everyone has agreed needs to be protected has no legal status as a protected area. The idea of interim protection was that you would be able to make sure that there are no new activities in that area freezing the footprint until we’ve finalized all those things.

It’s illustrative and our timelines are based on the average amount of time it has taken. When regulatory processes have taken a long time, it’s sometimes as a result of working on the details of the management plan. There’s an agreement among the stakeholders with regard to the objectives, but how we’re going to monitor or how we’re going to enforce, et cetera, begs a lot of questions. In some cases it’s a question of what resources we have. In other cases it’s a question of identifying who is going to do what. The government has a role to play, as do many other levels of government, Indigenous groups, stakeholders, et cetera.

Going into a full regulatory process, we have to articulate all those things prior to the examination of the regulations under the Statutory Instruments Act. While we didn’t put a star there denoting consultation, we were choosing our words very carefully there. Consultation means the formal consultation between the Crown and the Indigenous people whose rights are affected. It does not imply that there isn’t a lot of dialogue and engagement that takes place during the process. The points of engagement are actually throughout this process, with the sole exception of when the cabinet confidence is invoked, which is when the formal regulatory proposal is being considered by cabinet.

With regard to the question on cabinet directives themselves, it is true it is the government issues those directives, but they draw that directive from the Statutory Instruments Act. Thank you to whoever brought me a copy of the Statutory Instruments Act. If we look at the examination of proposed regulations, the act itself lays out the process by which any proposed regulations submitted by a minister must be reviewed, both by the Privy Council and the Department of Justice, to ensure that we have fulfilled the requirements of any policy and that what we’re proposing is ultimately congruent with the overriding statute, which in this case would be the Oceans Act.

That’s not the last word either. The Standing Joint Committee for the Scrutiny of Regulations is Parliament’s review of regulations to ensure that the government is satisfied we have adhered to the statute in question. It’s also Parliament’s last check to make sure that the government is following the directions that Parliament gave through passing these acts.

Senator Patterson: I have a further supplementary question arising from Senator Bovey’s comments. Mr. MacDonald, I am not sure if you’re aware of this point, but I would put it to you that the Standing Joint Committee for the Scrutiny of Regulations is idle, impotent, inactive and dysfunctional. Need I say more? I don’t know if you want to respond, but as a parliamentarian I can tell you that committee is functus. That is another adjective I would use. It ain’t working. It is not working. It is not operational. It is a red herring, with respect.

I have a second question for Mr. MacDonald. Senator Bovey referred to section 33 of the Oceans Act. It’s all taken care of in section 33. I would like to quote subsection 33(2) of the Oceans Act briefly.

In exercising the powers and performing the duties and functions mentioned in this part, the Minister may consult 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.

My amendment says, “the minister shall.” I will make no apologies about it being stronger language than the language in section 33 that Senator Bovey has told us should provide us with comfort. There’s a big difference between “may” and “shall,” is there not?

Mr. MacDonald: Just for clarification, Mr. Chair, when we were examining this clause on Tuesday, I pointed out subsection 33(1), the chapeau. There is a number of subsections in the Oceans Act. It’s there that we find the “shall” in exercising the powers and performing the duties and functions assigned to the minister by this act. Subsection 33(1) covers the entire Oceans Act:

 . . . the Minister

(a) shall cooperate with other ministers . . .

The section that Senator Patterson is referring to is subsection 33(2). They’re speaking specifically about the part. That part means Part II of the Oceans Act, which is related to the integrated management of oceans. Subsection 33(1) covers the entire act is there where the minister shall cooperate. Whereas in the development of integrative oceans planning, Part II, is where the minister may consult with other ministers. That’s the difference between “shall” and “may.”

Senator Patterson: This is my last supplementary question for Mr. MacDonald. The “shall” in subsection 33(1) is about cooperation. The “shall” in my proposed amendment is about consultation and cooperation. Would you not agree that the amendment includes the requirement to consult as well as to cooperate, and therefore is stronger and better language to respect rights holders in the offshore including Aboriginal organizations?

Mr. MacDonald: With regard to that question on the consultation, we are obliged under the Constitution Act to consult. It is underscored in the Oceans Act non-derogation clause.

With regard to the section related to internal protection, there was an amendment made by the house which is found in the bill. It underscores the need to use the interim protection authority in a way that is not inconsistent with land claims agreements. Our duty to consult is clear. It’s outlined in the Constitution and it’s underscored on a couple of occasions in the act and in the bill.

Senator Campbell: Normally I wouldn’t engage on this issue, but I have to say that what Senator Patterson is saying is absolutely true. For the 14 years I have been here, we’ve fallen back on the Charter of Rights, consultation and all the rest of it. All of the bills he mentioned went with advice to the government that this is what should be done, and nothing has been done.

When the leader of a territory comes here and says to us, “We have not been consulted,” it’s shocking to me that the government ministry doesn’t get a hold of that leader immediately to find out the exact context. What consultation didn’t take place? I personally don’t think that Indigenous nations should be having to go to the Supreme Court every time they’re not consulted. When are we going to wake up?

In this case here maybe it’s time that we started sending a message to all governments, not just this government. This has been going on for a long time. All governments have to be aware of this obligation. It’s simply not enough to mouth it; it has to be real. In this case I am supporting the senator.

I would ask if it would give you any comfort if the word “interest” were taken out of that amendment. That seems to be a word that has significant connations. I don’t know whether Senator Patterson would be agreeable to that. I am just looking at it. Immediately you said “interest” would cause a problem. If that’s the case, is there someplace for us to move here?

It simply is not enough for us to send little memos and asides to the government and expect them to do it. They don’t do it. We know that. I am not even blaming Fisheries. You can take government agencies across the board. This has been going on for years. My question is: If we took out the word “interest,” would that give you any comfort?

Mr. MacDonald: I am in the hands of the committee whether they want a debate on the amendment. All I can say is what is in the Oceans Act and what is in the Statutory Instruments Act.

Senator Campbell: No, the question I asked is: Would it give you any comfort? I didn’t ask for an explanation. Would it give you any comfort not to have that in that amendment?

Mr. MacDonald: All I can say is: If Parliament were to pass this amendment and we were to propose regulations under the Oceans Act, we would have to follow the process outlined in this amendment. At the same time we would also have to follow what is already in the Statutory Instruments Act. It would create quite a lot of duplication of effort. We would have to adhere to both processes at the same time because it is found in two different statutes.

Senator Campbell: Mr. MacDonald, you’ve already heard that I don’t think you’re following it under the Oceans Act. I don’t think it’s being done. If it were being done, we wouldn’t have two premiers, one ex-premier and a premier, complaining that they have had no consultation. This is significant for the North because of the huge amount of area that is being considered and the effect it will have on Lower Canada and Upper Canada too. That doesn’t seem to be happening. Either that or the premiers are mistaken and have got bad advice. I simply have difficulty believing that.

Senator Anderson: I will backtrack a bit, but I also repeat the sentiments of Senator Campbell. In answer to the first question you said “meaningfully consult” and review. I would like a definition of what that means from your side.

You also mentioned “where appropriate.” I wanted to know what “where appropriate” meant and who decides where it is appropriate? In dealing with negotiations in the past, the decisions weren’t made by an Indigenous group. They were told to us as an Indigenous group and the decision was made for us. I just want some clarification as to what that means.

Mr. MacDonald: I am not really in a position to reply. I am not here as an expert in terms of the consultation processes. I can tell you as a practitioner of what we’re expected to do. When we talk about consultation, it is a higher bar than just engagement. It requires an agreement between the two parties to actually come and discuss a particular subject. That needs to be formal. It requires us to explain what is being proposed, to listen, to reflect upon and to demonstrate that we’ve taken into account any rights that may be infringed by the action. Then we’re obliged to also demonstrate how we’ve accommodated those rights if the action proposed takes place.

That’s just in layman’s term. If the committee wants more on meaningful consultation and what it means, I am probably not in the best position to give you the exact government policy. In practice it means what I have outlined and described.

I am also in a position to talk about the bill. If you want, Mr. Chair, I could respond to the questions about what we have done in the Arctic, but I don’t know if it’s appropriate at this venue.

The Chair: We’re getting a feel around the table for what is actually in the law versus what people conceive as being followed. That’s where we have a grey area. I don’t know if anyone can totally explain grey areas. Explaining black and white is hard enough in this place.

I am not sure, Senator Anderson, if that was the answer to your question. It may not be the case that Mr. MacDonald is in a position to give you the answer you are looking for.

Senator Anderson: That was kind of the answer I expected. There will be an obligation, a legal obligation, to do it.

Senator Christmas: I’ve been thinking about Senator Patterson’s amendment. I was trying to recollect some of the evidence we heard at committee. The two individuals that came to mind were Duane Smith, the Chair and CEO of the Inuvialuit Corporation, and Premier of Nunavut, Joe Savikataaq. I checked the testimony of those two witnesses. I was trying to recall the adequacy of the consultation processes that we already have and whether or not they were met in developing this legislation.

On February 6, Senator Gold asked Mr. Smith about the adequacy of the consultation process around the MPA designations. Mr. Smith when referring to the oil and gas moratorium, he said:

It is fairly ignorant in regards to my region. I say that because the government slapped a moratorium on my region without any consultation to begin with. The reason I say “ignorant” is because we have had a final agreement with the federal government for almost 35 years.

The land claims agreement in the Inuvialuit region is the second major modern treaty we’ve had in Canada. Talking to that land claims agreement, Mr. Smith said:

We have a co-management body that deals with offshore marine management and research. It’s called the Fisheries Joint Management Committee. It has Inuvialuit, territorial and federal government representation.

In referring to this process that has already been in place for 35 years, he said:

The federal government is ignoring that process of responsibility that is already in place with the co-management process.

When Senator Patterson asked about the impact of the unilateral actions, Mr. Smith:

The present bill as it’s drafted doesn’t respect the rights within the final agreement that’s in place. It actually goes backward because there was no real consultation.

When referring to this particular bill, he said:

There needs to be some mechanism or process placed within this bill to recognize our rights and numerous court rulings that point out requirements for adequate consultation.

Senator Patterson once again followed up with Mr. Smith and asked him about the degree of consultation. Mr. Smith referred to the oil and gas moratorium and said:

. . . if you consider a phone call 20 minutes before the announcement of the moratorium being put into place consultation, then that was the extent of the outreach that was conducted by the federal government in working — or lack of working with us — in regards to the development of this moratorium. We had companies that had rights on the offshore to explore at that time, and basically that was a signal for them to shut down. So in reality, there was no consultation on that.

. . . again, it depends on what you mean by the extent of consultation.

Referring to Bill C-55, he said:

We were put on notice that this bill was being drafted, please provide comment; come to us and provide it if you do have any comment. If I recollect, there has been no outreach to the region that will be affected by this bill, and I think that there should be because we are a democracy. So the draft bill should be reaching out to the people that it will effect for them to provide adequate input into it.

That was the CEO of the Inuvialuit Regional Corporation, a rights holder, who was trying to implement the land claims agreement. He’s saying the standard under the land claims agreement is much higher than what’s prescribed in Bill C-55. He wanted assurance in Bill C-55 that at least it would meet the higher standard.

Perhaps I could turn again to our other witness, the Honourable Joe Savikataaq, Premier of Nunavut. He too was responding to a question from Senator Patterson about how they wish to be involved in the process for MPAs. The premier said about Bill C-55:

We’re not against it. We want to be part of the process. We’re the Government of Nunavut and this is our area. And it’s no different from the provinces putting up an argument on their issues if a huge chunk of their coastal area is to be taken away without their consent and almost without their knowledge.

At this point I jumped in and asked the premier if he felt something should be inserted in Bill C-55. I suggested to him: Should be a collaborative structure in the bill? Should there be a working group or something that would help identify the areas before any final decisions were made?

The premier responded:

I think that’s a good recommendation as long as we would be part of the process. The working group would have to have Nunavut representation on it.

As I keep stating, we are not against marine protected areas. We want to be part of the process right from when they start figuring out which areas they want to protect and what they want to protect it from. A working group generally works very well; they do all the footwork and then it goes up to the political level. That’s where it starts to take form, once they’ve done their work.

Both of these witnesses want to have some kind of comfort or some mechanism within this bill that enables both the Indigenous rights groups and the territorial government to be involved in part of the process of designation of MPAs.

This speaks to me that what we have in place is currently inadequate despite the duty to consult, despite section 35 rights and despite the processes we have in place. We know as parliamentarians that the duty to consult has really failed Indigenous people quite miserably despite all the legislation and the court rulings.

I find Senator Patterson’s amendment is quite modest. It has no reference to rights. It is simply trying to define and elaborate a process in which the rights holders and the territorial governments affected by this bill have a clear and defined process on how they can be engaged.

Fellow senators, I support this bill. I agree that there might be some tweaks here and there. As someone who has been involved in Indigenous politics for about 40 years, I have a hard time trusting government. Perhaps we could be more detailed, more elaborate and more definitive. At least the two areas of the Northwest Territories and Nunavut and their two territorial governments should be given ample assurance and comfort that the designation of MPAs would have to follow some detailed process to ensure that they’re involved, engaged and tare consulted.

Senator Poirier: I don’t really have a question. It’s more just a comment to add to the debate.

I’ve been listening very carefully to all the ongoing debates. I’ve listened very carefully to Senator Patterson’s presentation last week. I listened very carefully to the witnesses we had on this issue and have listened again very carefully to Senator Christmas’ refreshment of some of the comments that we have heard.

The biggest thing I seem to be catching around here is that maybe we shouldn’t take this amendment because it already seems from the officials’ and the governments’ points of view covered in the two different acts, the Oceans Act and the other act that’s out there already. Even though it’s covered in the acts that they will be protected, obviously from what we are hearing it’s not working. The people from the area, or the people who understand the issues and have been there, have told us that what’s there doesn’t work.

I guess my argument is if it’s already there and you think you shouldn’t put it in again because we’re duplicating, what’s the big deal? Why are we even hesitant to put this back if it’s just reinforcing and just strengthening what’s already there? Other than a couple of words that I hear about “shall,” “may” and “interest,” I have not seen any big concerns coming. What’s the big deal with refusing this amendment?

I am going to support the amendment. It’s good to support it. It’s great to listen to the people on the ground. I’ve been an advocate of that all along. I’ve seen issues in New Brunswick and all lands where people haven’t been consulted and seen the results from it. I don’t see why we have to continue discussing this issue for hours and hours and hours when the importance of this amendment to strengthen what needs to be done is obvious.

I wanted to put that on record.

The Chair: Thank you, Senator Poirier. To your point of discussion, I understand that to some people this is a drawn-out process. As chair, I try my best to give everyone ample opportunity to state their case, as did Senator Patterson on his amendment, and to allow them an opportunity to say why they agree or disagree.

On Tuesday night I knew this conversation was going to be long. This is why we adjourned the other night so that we could have ample time this morning to do it properly.

Senator McInnis: I am not going to be repetitive, but I think Senator Christmas said a lot of what I wanted to say.

I am currently part of the discussion of an MPA. It is most important to understand that this amendment is before an order. It’s not during; it’s before. I can tell you the anxiety and the fear of rural communities when they hear after a designation for an order has been made that consultations are starting. What this is saying is that before an order may be made this investigative work will be done.

You may not have experienced it. I am experiencing it. People are terribly upset. It’s tearing communities apart; it’s terrible. They don’t know if there’s going to be a block of the lobster fishery. They don’t know if they’re going to have to get another career. Have social and economic studies been done to determine if people will have to be trained? What about ecotourism? All these types of things are tearing communities apart.

Four different groups have been formed. If you drive down the eastern shore of Nova Scotia, you will see professionally made four-by-eight and four-by-four signs saying: “No MPA.” Why? It is because they weren’t consulted in advance. No one came out and talked to them. As Senator Christmas said, they don’t even know what’s being protected.

They’ve fished there for hundreds and hundreds of years. The waters are pristine. Why, all of a sudden, are we doing this, and what are we doing it for? That’s the important thing. This is all well intended, all the consultation and all that type of thing, if in fact it takes place. It does not in its entirety. I tried to find out from the band that’s covered the area of the MPA. I’ve been unable to, but I rather suspect they have not been consulted at all. Yet all of this has taken place.

There are all kinds of precedents where legislation has been mentioned in this piece of legislation and in this piece of legislation. There is absolutely no problem with that. You don’t have to consolidate everything. Another piece of legislation to reinforce would be extremely important.

At the end of the bill, you could also reference other pieces of legislation to ensure they’re brought in as well. For me, this amendment is wonderful, and it’s something that we should embrace.

Senator Gold: I have a couple of observations. I am struggling a little. I understand the importance of the amendment to allay concerns. It’s more than that, but I understand that.

The first questions of Senator Bovey covered the two sides of the coin. Is every jot and tittle covered in legislation and directives? If so, it might be just fine because the process is not satisfactory or satisfying to stakeholders. It has legal significance. Does it add something of legal significance above and beyond what the current law provides? I am hearing Senator Patterson say, “In your interpretation it requires consultation,” and we’ve heard the back and forth. The overlay between allaying concerns and legal significance is important.

The point of the bill is to provide for interim protection pending the full regulatory process that has been described. I have concern with the uncertainty about how much more might be in the amendment than is currently in the law. Apart from the important significance of sending a strong signal to government, as Senator Campbell and others have pointed out, what this would do to the regulatory process? I would be as concerned as legislators should be concerned if the consequence of an amendment is to actually compromise the actual purpose of the bill. I am not saying that it does, but I am a little concerned about the difference in language that may exist between the current Statutory Instruments Act and the proposed amendment. As a legally trained student of these things, a notion of interest is a very broad one and can mean many things.

I want to put a concern on record. Salutary though the objective is, in many cases it reflects what the law and Constitution require us to do and what the processes ought to be. Sometimes they are; sometimes our testimony suggests they have fallen far short.

My enthusiasm is tempered by a legislator’s concern that if we pass this there will be consequences within the processes that may have the effect of compromising the purpose of the bill, which is to provide for some temporary protection of the environment. I want on record that I sense this amendment has the support of most people around the table. I suggest that we move to deal with it. We may get it back with tweaks. We may get it back with a thanks but no thanks. We’ll cross that bridge when we come to it.

I have a concern based upon my ignorance of exactly how the internal regulatory machine will cope with duplicative language which has a strong symbolic message. If I were reassured that it absolutely duplicates word for word, part of me says it’s not necessary and I like economy. If it doesn’t and I don’t know exactly what the consequences are I think we ought to be concerned. It is not necessarily to give us pause going forward. I may choose to abstain because I deeply support the objective with regard to our Indigenous peoples and First Nations and with regard to the legitimate interests of territorial and provincial governments. I am nervous not knowing exactly what are the consequences are. They have tried to lay it out but it is circumscribed by their role before us.

It’s our decision to make. I wanted to share those preoccupations.

Senator Bovey: Could I ask one yes or no answer question?

The Chair: I don’t know if that’s possible, but let’s try.

Senator Bovey: Mr. MacDonald, we’ve heard about no consultation on the High Arctic Basin from one perspective. Could I ask you, from your perspective, was there consultation? Yes or no.

Mr. MacDonald: Yes.

The Chair: Anything is possible here.

Senator Patterson: I’ve said a lot already. I don’t want to add too much, but I have a couple of points.

First, there was a reference to the term “interests.” I would point out that in the amendment the word “interests” relates to the proposed order. It’s not as broad as some might fear.

Second, I’ll be candid here. This is about the offshore. The word “interests” reflects what I believe are the interests of Aboriginal rights holders adjacent to the offshore as well as territorial governments. There is a section in the Inuit land claim, the Nunavut agreement, that basically acknowledges the Inuit helped establish sovereignty for Canada in the High Arctic. Inuit are a marine-based economy. They have interests in the offshore.

Thank you, Senator Christmas, for reiterating what Duane Smith said about those interests, which were actually recognized in their agreement, perhaps in a limited way, with the establishment of a working group that has not really worked. The Inuit of Nunavut similarly had a provision in their land claim agreement that allowed for the establishment of a marine protection committee, which has not been put in place. It doesn’t exist, even though it was in the agreement. Yes, “interests” has meaning, and it’s about interests of the rights holders in the offshore.

First, I will just mention that when the Government of the Northwest Territories was negotiating devolution in the 1980s I was premier of the Northwest Territories. We signed what was called an enabling agreement for a Northern Accord. I was thrilled that was signed by a minister of the Crown. I was thrilled that they acknowledged that the Government of the Northwest Territories had interest in Hudson Bay because Ontario and Quebec were lusting after what was thought to be resources in Hudson Bay. So, yes, interest does have meaning, and it’s about the offshore.

Second, there is this business of emphasizing consultation. In another committee we’re looking at Bill C-69, the new regulatory process for major projects in Canada. This regulatory process is covered by the same Statutory Instruments Act and cabinet directive, yet there is a whole chapter in Bill C-69 on Indigenous rights and consultation which hasn’t so far become an issue in the committee’s consideration of the bill. If it’s okay for Bill C-69, let’s err on the side of caution and put in what might be duplicative, according to some views. If it is good enough for Bill C-69, why don’t we do it here?

The last point is people invoke section 35. The West Coast Environmental Law group invoked section 35. Mr. MacDonald has invoked section 35.

Colleagues, section 35 says that the existing Aboriginal rights of the Inuit, Indians and Metis of Canada shall hereby be recognized and affirmed. That was a wonderful, happy result that we all celebrated in 1982. Then we took no less than three years — and I was involved in every one of those meetings — to have federal, provincial, territorial ministers and Aboriginal organizations meet to define section 35. What are those rights? What do they mean? Put flesh on it. We absolutely failed. Slowly, some meat has been put on it through a court process. I agree with Senator Campbell that we don’t want to subject Aboriginal people, or anyone else, to undertaking to crystallize their rights. Section 35 doesn’t give me any comfort.

For all these reasons and the examples of failed consultation, I would respectfully recommend that we support this amendment. I am glad we’ve had a good debate. I think it will provide a lot of assistance maybe to the department and maybe to the general public, in saying that all angles of this was given thoughtful consideration. On balance, I am delighted to hear expressions of support from my colleagues. Thank you.

The Chair: Thank you, Senator Patterson. I believe we have all had an opportunity to have our say on Senator Patterson’s amendment. I thank you all for a very detailed discussion. It’s my role as chair to make sure that everyone has an opportunity. We certainly gave ample time to this very important amendment. It’s a learning process for all of us for sure.

Is it the pleasure of honourable senators to adopt the motion in amendment?

Senator Patterson: Could I ask for a recorded vote, Mr. Chair?

The Chair: Honourable senators, we will now proceed to the roll call. The clerk of the committee will call members’ names, beginning with the chair and going in alphabetical order. Senators should verbally indicate whether they vote for, against or abstain.

Afterward, the clerk will give the results of the vote. Then it is my duty, as chair, to declare whether the motion is carried or defeated, but that will speak for itself.

Chantal Cardinal, Clerk of the Committee: The Honourable Senator Manning?

Senator Manning: Yes.

Ms. Cardinal: The Honourable Senator Anderson?

Senator Anderson: Yes.

Ms. Cardinal: The Honourable Senator Bovey?

Senator Bovey: I am going to abstain.

Ms. Cardinal: The Honourable Senator Christmas?

Senator Christmas: Yes.

Ms. Cardinal: The Honourable Senator Francis?

Senator Francis: Yes.

Ms. Cardinal: The Honourable Senator Senator Gold?

Senator Gold: I abstain.

Ms. Cardinal: The Honourable Senator Senator McInnis?

Senator McInnis: Yes.

Ms. Cardinal: The Honourable Senator Senator Patterson?

Senator Patterson: Yes.

Ms. Cardinal: The Honourable Senator Petitclerc?

Senator Petitclerc: Yes.

Ms. Cardinal: The Honourable Senator Senator Campbell?

Senator Campbell: Yes.

Ms. Cardinal: The Honourable Senator Poirier?

Senator Poirier: Yes.

Ms. Cardinal: Abstentions, 2; yeas, 9; nays, 0.

The Chair: The motion is carried and the amendment is adopted.

Shall clause 5, as amended, carry?

Senator McInnis: I have two amendments. Let me deal with the first one.

The Chair: They are TM3 and TM4. We’ll do TM3 first. Does everyone have a copy of TM3?

Senator McInnis: I move:

That Bill C-55 be amended in clause 5, on page 4, by adding the following after line 32:

(4) Despite section 35.2, no order may be made under subsection (2) unless the minister

(a) is able to delineate the exact geographical location of the proposed marine protected area and make a precise determination of any habitat or species requiring protection in that area; and

(b) posts a report of the information referred to in paragraph (a) on the departmental website.”

If I may just say a word or two about the amendment, it makes it mandatory for the minister to determine what exactly is to be protected within the proposed so-called area of interest prior to the designation of the order and to precisely determine what habitat or species is to be protected. Finally, the department’s findings must be posted on the website.

Hearsay and unfounded statements can and do create turmoil among stakeholders. Businesses and communities at large have tremendous concern and worry. Rumours of geographic areas to be covered are a problem. What footprint covers and no-take zones may be in play? Will aquaculture companies that employ a lot of people be shut down? In my mind and for many others from the province that I represent, it’s important to get as many details up front. We hear that the department does that, but I have to tell you that they did not in this instance.

We cannot continue to create a veil of uncertainty as to what the MPA or the interim MPA will hold for the communities in these areas. It pits community groups against other community groups. As I said, when you have a challenge to your livelihood you don’t know if you’re going to be able to fish or not fish.

In this particular area that I am referring to, there are 800 lobster fishermen. That’s the income and that’s the community. It’s not just the lobster fishermen. It’s the gas stations. It’s grocery stores. It’s the people who buy vehicles. It has a detrimental effect on all of these types of things. People have a great deal of consternation and anxiety over the fact that they don’t know what’s coming. They don’t know exactly what area will be covered. They suggest that this area is 2,100 kilometres. It’s a big area. It covers an awful lot of small rural communities. They simply don’t know what their future is.

In advance of any footprint being put into play, this would do some research to lay out where it is going to cover, what are the effects on the community and what exactly it is going to be protected. It can be said by the department that they do this. The people in the department are all nice. Don’t get me wrong. This is not a shot against them. They can say it’s done, and it’s not done. It’s not completed. It’s not consulted. With respect to the Indigenous people, I couldn’t get a hold of Chief Gloade last week, but from what I am indirectly told there has been no consultation with the Indigenous communities in this particular area. That’s what I’ve been told. It’s not absolute, and I so qualify.

That’s why I am trying to prevent this turmoil. As I mentioned on Tuesday evening, at a meeting on Saturday afternoon there had to be 250 to 300 people in attendance. As I say, there is this veil of uncertainty. There has to be a better way to do it. We hold this up as starting in year one, the time of the order that’s in play. At the end of five years, the minister then has to bring it into regulations and the Governor-in-Council has to approve it. It may be rejected. It could be rejected, or they could become regulations and a full-blown marine protected area.

In advance of all of this, we are saying: Do the work they say is being done, but it’s not enshrined in any legislation that I can see. That’s the whole purpose. In advance, make it law that they have to come up with the criteria I mentioned in the amendment.

Senator Gold: I have three questions about this amendment for our officials that are here. I will ask the first two together.

First, were this amendment to be enacted, generally speaking, how would this change, if at all, the process contemplated for temporary MPAs? I mean how would it change both the terms of the details and the time it would take. Every area is different, but answer it anyway you wish with as much detail as you can.

Second, and depending on your answer, would it compromise the objective of this bill? As I understand, it is to provide for some interim protection before all of the work? If you’ve described it then we need not rehear it. Would it compromise or frustrate the objectives of the bill which is to create this interim or temporary protection? I would really be grateful for you to help us understand that better.

Mr. MacDonald: It would change the process. This proposed amendment directs the minister to delineate the exact geographical location of the proposed marine protected area and make a precise determination of any habitat or species requiring protection in that area. It would put us into a loop in the sense that the whole purpose of the process we go through to establish a marine protected area ultimately, in regulation, is iterative. We are trying to determine through our processes the precise determination of the habitat or species and the exact geographical location at the final end of the process.

It presupposes that we know that information before we enter into the final consultation period. It would put us into a loop where we would never be able to prove that the minister delineated exactly the geographical location and the precise determination for the proposed MPA because the MPA has not yet been established. We get into a loop in terms of trying to be exact and precise at a moment in the process when we are trying to determine that information.

Senator Gold: I am going to try and understand it in vernacular terms, and here I invoke my late father who loved to fish.

Would the effect of this be to gut the bill?

Mr. MacDonald: It would gut the intent of the bill in the sense that we’re trying to bring in an interim protection so that for the five-year period we’re trying to be more precise with what exactly are the geographic location, the habitat and/or species. Because the bill is designed in a way where a minister after five years has to make a decision as to whether to recommend an MPA or to repeal the order, the intent of the five-year process is to get to the point to where the minister is satisfied he can be precise in terms of what is being protected and be exact in terms of the geographic location.

Senator Gold: It would make it impossible to achieve the objectives of this bill if what appears to be the final requirements for the designation of a permanent MPA have to be satisfied before a temporary one can be put into place.

Mr. MacDonald: That’s correct, yes.

Senator Gold: Thank you for that.

Senator McInnis: Just a minute now. This committee has been told that a great deal of science has been carried out in advance of any area of interest and footprint being put in play. We were told that. I think at one point you even said that, Senator Bovey. In advance of coming out, certain science and certain information was gathered. Otherwise, why would you even be in that area? Why would you come out when you have absolutely no information at all? You haven’t done any investigative work, really. You know that’s not true. Before you come out and put an interim MPA in place, lots of preparatory work was supposed to be done. Why would you be there? We were told that here.

Please explain that. How would this possibly gut a bill that you were to be democratic about? You are actually going to come out and tell the people in advance, before all the groups are formed, that this is where we’re going to put it; this is the area we’re going to cover; and, incidentally, this is the habitat and species that we’re concerned about and want protection for.

How would that gut the bill? I would like to hear an answer to that.

Mr. MacDonald: It guts the bill, in the sense that amendment for subsection (a) has words in it that are very specific. It says the exact geographic location and a precise determination of any habitat or species requiring protection in that area. Those three words, “exact, precise and requiring,” would put the onus on the minister to have to be exact, precise and talk about requiring at a moment in time when none of those things have been finalized. The purpose of the interim protection is to give some interim protection. It’s not turning the area into a protected area; it’s merely freezing the footprint.

But it allows the time for the minister, the stakeholders, the other levels of government and the Indigenous groups to be fully satisfied that we have been exact and precise, and that we know what is required at the moment when a full regulation is brought into place.

Senator McInnis: When I dealt with the clerk’s office, they suggested the words “exact” and “precise.” I am not wedded to them at all, but you know the geographical footprint would be approximated. In fact, it was said that this particular area was 2,165 kilometres, about 15 kilometres from mean tide. You had a pretty good idea. Someone did some preparatory work for that one.

With respect to the habitat, I agree with you. You would have a pretty darn good idea whether there are or sponges or what habitat is there. You would know that. It’s coming out now that there are certain kinds of grasses, eelgrass and these types of things. You had a pretty good idea on that, but I am not wedded to “exact” and “precise.” I am wedded to the whole purpose of stopping the anxiety and doing it up front before we have the footprint frozen. We were told the preparatory work was carried out.

Senator Petitclerc: Thank you for your concerns. I am trying to recall the academics and the marine specialist that we heard from. My worry is that in my recollection they explained that it was complex when it comes to evaluating ecosystems and changing the habitat. While it’s scientific, it’s not always that they can pinpoint one species, one habitat or one geographical decision. The indications say to them as experts that something wrong is happening and they need to protect that space.

An amendment like that would really restrict the ability to come to that conclusion. Sometimes it can be a change in temperature, a change in numbers, or something a way more complex than having one species. That is why I would be very hesitant that it would counteract what the bill is trying to do. I am very supportive about the goal of this bill, but that’s my general worry.

Senator Campbell: I am having difficulty understanding what is wrong with the terms “exact” and “precise.” I don’t think that it is definitive at the end of the day. You can say that this is where we are looking at putting this. Here’s where it’s going to be. This is the area that we’re looking at.

At the end of the day that allows the people who are there to have some idea of what’s going on, but I don’t believe it holds them to that as definitive. As you go into this, as you study it, as more people get involved and as more information comes forward, maybe it changes. At least you’re involving people in it, and they know where it’s going to be.

The idea that we throw out a big net and then narrow it down, I don’t think that is a wrong way of looking at it. The government hates words like “exact” and “precise” because they feel like they can never live up to them. That simply is not true. I don’t see how this guts it. I don’t see that at all. One of the problems we have going here is communications between government and stakeholders, for want of a better word, and there are lots of them. I don’t have any difficulty with this.

Senator Bovey: I agree with the sentiments expressed by Senator Petitclerc on this one.

Senator Gold: I heard what the witnesses suggested. I am going to put words in your mouth, and please correct me if I am wrong. I took from them was that this is the degree of precision that will be required, and properly so, for it to become a permanent MPA. It’s totally appropriate for that stage of the process when it’s going to become a permanent MPA, with all that implies for the stakeholders, the fishing and transportation industries, the Indigenous rights holders and others.

If I understand the point of this bill is to allow, under the precautionary principle, current activities to go on such as freezing the footprint. We’ve had discussion about that. This would be during a period where consultations, further scientific inquiry and geographical precisions take place. By definition, if we care about the consultation that stakeholders are demanding, properly so, and that the government is obligated to do, properly so, reinforced by an amendment that we’ve passed, that’s what will determine the exact geographical area.

We’ve had examples in testimony about how, through the better of the processes that have occurred up to now, the map has shifted with the input of Indigenous and other stakeholders with their own particular knowledge. Similarly, only when the science gets deeper and takes advantage of these consultations will we know exactly — and here my ignorance is going to betray me — whether it is sponge or that sea cucumber or the like. When I asked the question at the beginning, it was because I was concerned that the amendment would effectively make it impossible to implement this act. It would require a level of certainty or a level of precision the current Oceans Act already requires and therefore would render this act meaningless. For anything you would ultimately be able to do under this act, you don’t need this act to do it.

I was colloquial in my language of gut. I didn’t mean any offence. I hesitate to use the word, but I see this as almost out of scope because it really frustrates the purpose of the interim protection regime that is the only rationale for this bill.

I understand opposition to MPAs and the impact they have on communities. I know there’s great concern among communities in your province, Senator McInnis, and undoubtedly elsewhere. We have heard of the North, but our job is to ensure that any amendments we pass do not completely frustrate, if not compromise, the objectives of the bill.

I can’t support this amendment for that reason, unless I’ve misunderstood. I should end with a question. Do I understand your analysis correctly?

Mr. MacDonald: Yes, that’s part of it. The other part is related to the chapeau because it describes section 35.2 that lays out the precautionary approach which members have been alluding to.

If we are to use the precautionary approach under section 35.2, and then underneath it says you have to be precise and exact despite that, that’s how it becomes a loop. We are saying that the authority is there because we are acting out of precaution in a temporary way to make sure we’re protecting what we know is important. At the same time this amendment would ask us to be precise and exact and know in advance what requires protection.

Senator Christmas: I agree with you, Mr. MacDonald, that the three words you had outlined, “exact, precise and requiring,” would substantially change the process of a designated interim MPA. It strikes me that it would be contradictory to the intent and spirit of the act.

I also agree that the minister should have a responsibility to communicate to the public the location of the proposed interim MPA and what species of value are within that area. I would be open to choosing better words other than “exact, precise and requiring.”

Are there other words, Senator McInnis, that could be used?

Senator McInnis: I am sorry.

The Chair: He is asking you something, I believe.

Senator Christmas: Yes, I was suggesting to Senator McInnis that other words could be used to replace “exact, precise and requiring” that might meet the intent of his amendment. I agree the minister should have a responsibility to communicate to the public the geographical location and the value of the habitat.

Senator McInnis: As I said earlier, those words can be taken out and can be dropped. I don’t like to use general terms, but you could even say, “is able to delineate the approximate geographical location of the proposed marine protected area and make an estimate,” or words such as those. The whole purpose of this is to it lay it to rest so that the individuals and the coastal communities know where approximately this is going to be. It’s hard to elaborate in stronger words that this is very important to them. The other is for them to know what exactly is going to be protected.

You could have a situation where there’s an aquaculture company there employing many people. Are they going to be told to leave?

The Chair: I think we know what you’re trying to accomplish with your amendment. I think we got that part. There seems to be some concerns about the wording. In order for you to do anything with your amendment, you need to move a subamendment to change the wording before we can even cast a vote.

Senator Bovey: Could I ask how an interim area is communicated, when you’re considering an interim area, in terms of the general area and objectives?

Mr. MacDonald: In terms of our practice with regard to areas of interest, when an area of interest is identified it is published on our website. We outline the general area that we’re interested in. We identify the habitat and the species that have been identified as worthy of conservation. We outline in a general sense the types of human activities that take place in that area. Also on our website we have a list of all the consultations we have done to date, the meetings that have taken place, the subject matter, and the types of organizations that have been present. We also put up a map of the area, including key ecological features, on our website. We’ve done it for both areas of interest that are heading directly for full regulatory. As well, if Parliament passes Bill C-55, we would do the same for areas proposed for interim protection.

Senator Gold: I thank you for that explanation because that is what we had heard in testimony. I totally understand how, despite that information, people could still be very concerned about their livelihoods. I thank you for refreshing our memory about the testimony.

The only other observation I want to make is quite apart from tweaking the language about “precise” and all of that. We are still making this notwithstanding the precautionary principle. That is at the heart of this approach to providing some temporary protection, consistent with ongoing activities, which I think is an important point. I speak now as a university professor, a former full-time academic. I mean scientific certainty is not possible in most cases. Even students of Einstein would admit that, especially as we learn more about science.

I am satisfied that the existing rules and practices communicate adequately to communities. They may not be happy with what they’re hearing and may legitimately object to their area of being designated as an area of interest. I cannot help but feel that this amendment would compromise the objectives of the bill. One can vote against the bill, but I am not sure we should be amending it in a way to neuter it, if I may use that term.

Senator McInnis: May I respond to something because you have mentioned twice now precautionary approach, with which I don’t agree. The two tenets of the fisheries and the Fisheries Act in the way they operate is that they are to be based on science and transparency. The precautionary approach is to say let the fact we haven’t discovered the science, what’s there and what effect it will, not deter our going ahead and interfering with the livelihoods of families.

That’s what it is, Senator Gold. I am telling you that you can’t have the department saying everything they do is based on science and transparency, and then bring in and invoke the precautionary principle. The precautionary principle is basically saying, “We didn’t get the science done, but let that not stop us from putting in the footprint and freezing it.”

Senator Gold: Respectfully, senator, I think we had evidence that was different. Lots of science goes into identifying an area of interest. At what stage of certainty does science have to be before we take some measures to protect, at least for a temporary period of time, while we pursue further scientific investigation, the socio-economic impact, the management plans, and so on and so forth? As I read the testimony and as I understand the principle, it is not to say we don’t care about science; we’re going to zoom ahead away because of an ideological commitment to environment over livelihood. Rather, we are not going to wait until the last jot and tittle of scientific certainty is achieved, which may never be achieved, before we take steps to protect at-risk environments that we’ve identified at risk by virtue of science. I may be wrong, but that’s how I understood the testimony we heard.

Senator McInnis: The precautionary approach, Senator Gold, is that the science has not been completed. That’s what happens. They move forward without having a fait accompli as to the science. In fact, it does not say anywhere that after five years the science will continue to be investigated. There are no words there at all.

The department either operates on the basis of or is predicated on science or it doesn’t. I simply don’t agree with invoking the precautionary principle. You and I should stand outside one windy night and have a debate on this.

Senator Gold: Why don’t we go outside?

Senator McInnis: Perhaps I may move an amendment to my amendment to my amendment or a subamendment.

Senator Petitclerc: Very quickly, I want to add my voice to Senator Gold’s. I have a very clear memory of the explanation of the precautionary approach by scientists who proved to us that science is indeed involved when it comes to the precautionary approach. It’s the certainty. They showed very well that when it comes to the environment and a lot of things 100 per cent certainty is hard to achieve, and that when you have danger and vulnerability in the environment you cannot allow yourself as a planet to wait for 100 per cent.

That’s my understanding of the precautionary approach from the witnesses we got. I wanted to put it on record.

Senator McInnis: My amendment does not touch that.

The Chair: I am going to touch on something for a moment. It’s 9:51 a.m. I’ve been advised by the clerk that we have to finish by ten o’clock because there’s another committee coming into this room. We are on TM3, with TM4 to follow, and now we’re looking at a subamendment. I am seeking guidance or advice. We have nine minutes to deal with this amendment plus another amendment. I don’t know how we can do that and do it properly. We’ll just continue until we shut down.

I have been advised that we can’t do the subamendment now because we don’t have the French text, and you won’t get it from me. Do you want to move a subamendment to your amendment?

Senator McInnis: Yes.

The Chair: Do you have it in French also?

Senator McInnis: We have people here who can do it, and I trust you.

The Chair: You could provide us with it.

Senator Patterson: It’s not in the job description.

The Chair: I want everybody to be aware that we still have another amendment we need to work on, and it is impossible to do so with the time available now.

For our next meeting on April 2, we have the minister who has confirmed his attendance to appear on Bill C-68. Believe me, I am not blaming anybody for this discussion because we need to have healthy discussion, but the plan for this morning, if things had gone a bit faster, was to discuss some of our proposed witnesses for Bill C-68.

We have two weeks in April, and I would ask the committee to give permission to steering to determine the witnesses for the first couple of meetings on Bill C-68, which includes the minister. The minister’s here for one hour, I believe, on April 2, so we will finish off the two amendments we have on Bill C-55 on April 2. I am asking for permission for steering to decide who we will invite as witnesses for the other three meetings that we have in April.

In the process of those three meetings, we will find time to discuss future witnesses for May and into June, whenever we can, on Bill C-68. I realize that’s not the perfect situation, but I am trying to find a middle ground here. We won’t have time to have a steering and come back to the committee to decide who witnesses will be for Bill C-68.

We should be able to determine who are our first few witnesses. We have requests. Is that agreed?

Hon. Senators: Agreed.

The Chair: If you have the subamendment, Senator McInnis, you will hand that into the clerk as soon as possible. We have one more amendment, which is TM4.

I thank all the senators for their great contributions this morning and the department personnel who joined us as witnesses to answer our questions. Thank you very much.

(The committee adjourned.)

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