Proceedings of the Standing Senate Committee on 
Fisheries and Oceans

Issue No. 45 - Evidence - May 7, 2019


OTTAWA, Tuesday, May 7, 2019

The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, met this day at 5:08 p.m. to give consideration to the bill.

Senator Fabian Manning (Chair) in the chair.

[English]

The Chair: Good evening, my name is Fabian Manning. I’m a senator from Newfoundland and Labrador. I am pleased to chair this evening’s meeting. Before I give the floor to our witnesses, I would like to invite the members of the committee to introduce themselves.

Senator Wells: David Wells, Newfoundland and Labrador.

[Translation]

Senator Poirier: Good evening. My name is Rose-May Poirier, and I am from Saint-Louis-de-Kent, New Brunswick.

[English]

Senator Christmas: Dan Christmas, Nova Scotia.

Senator Francis: Brian Francis, Prince Edward Island.

Senator Busson: Bev Busson, British Columbia.

Senator Boniface: Gwen Boniface, Ontario.

Senator Campbell: Larry Campbell, British Columbia.

[Translation]

Senator Gold: I am Marc Gold from Quebec.

[English]

The Chair: I want to advise senators that we may be called back to the Senate for a vote at any time. We will suspend for that period and reconvene after the vote.

I would ask that our guests would introduce themselves and who they represent.

Gary Swanson, Senior Environmental Specialist, Manitoba Hydro: Gary Swanson, Manitoba Hydro.

Serge A. Buy, Chief Executive Officer, Canadian Ferry Association: Serge Buy, Canadian Ferry Association.

Domenico Iannidinardo, Chair, Canadian Association of Forest Owners: Domenico Iannidinardo, Canadian Association of Forest Owners.

The Chair: Thank you for taking the time to join us as our committee continues to study Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence.

On behalf of the members of the committee, I understand you have some opening remarks. Following those, we will have questions from our senators.

Mr. Swanson: Good afternoon, members of the Senate Standing Committee on Fisheries and Oceans. Manitoba Hydro is appreciative of the opportunity to provide a submission on Bill C-68, proposed amendments to the Fisheries Act.

I have been a fisheries biologist for 34 years, starting in 1985, working for Manitoba Fisheries branch doing impact assessment work for hydro projects in northern Manitoba, and then as the provincial head of management for Manitoba’s fisheries programs.

Since 2007 I have managed Manitoba Hydro’s aquatic ecosystem and approvals section. Speaking to this issue on behalf of Manitoba Hydro, we are advocating for reasonable changes that will ensure clarity of roles, achieve fisheries sustainability objectives and protect the interests of our customers.

As a provincial Crown corporation, and the sole supplier of electricity to retail customers in the province, Manitoba Hydro has a mandate to provide for the energy needs of Manitobans in an efficient and economical manner. We achieve this mandate through a cost-recovery model. The costs incurred by the utility are paid for by our customers via the rates they pay.

With regard to Bill C-68, the first point we would like to make is that Manitoba understands that inland fisheries matters are subject to the jurisdiction of both Canada and the provinces, with matters of fisheries sustainability falling under federal responsibility, and matters that do not affect the conservation of a fishery falling under the provincial authority to manage its property.

To that end, Manitoba Hydro suggests the purpose statement be revised into one that is coherent where it is clear that the protection of fish and fish habitat is part of Canada’s responsibility to ensure fisheries sustainability.

As the two separate sections are currently stated, we reasonably foresee they will create conflict and needless scope for legal challenges and are contrary to indications from DFO that the habitat provisions will be applied at fishery or fish population level. Our specific recommendation for a revised purpose statement is as follows:

The purpose of this act is to provide a framework for the proper management and control of fisheries with due consideration for the conservation and protection of fish and fish habitat, including by preventing pollution.

Without the clarity achieved through this revision, we fear we will return to the previous context for prohibitions against harmful alteration, disruption or destruction, otherwise known as HADD, of fish habitat and the killing of fish. Where reviews were extensive, decision-making criteria were arbitrary, and offsetting requirements did not account for the level of effect on fisheries sustainability. Instead, a surface area accounting of any habitat that changed was arbitrarily applied times a factor of four.

The costs of these processes were ultimately funded by our customers via cost recovery. It is important to note that pre-2012 it was documented by the Auditor General’s office to not have delivered measurable benefits to fisheries reported in 2009.

Second, Manitoba Hydro believes that the definition of fish habitat should not specifically designate quantity, timing and quality of water flow as a fish habitat. These concerns are already managed through a variety of provincial and interprovincial mechanisms, and Manitoba Hydro believes the original version of subclause 2(2) in Bill C-68 should be reinstated without the ecological flows reference.

A strict interpretation and application of subclause 2(2) would result in the need for increased generation from greenhouse gas‑emitting resources as a result of constraints on hydroelectricity production.

Hydroelectric generation in Manitoba that is surplus to the needs of Manitobans is sold through export arrangements to neighbouring jurisdictions, reducing their greenhouse gas emissions while simultaneously providing a revenue source that keeps rates lower for Manitobans than it would otherwise be.

A high-level analysis indicates that a requirement to pass 80 per cent of weekly average incoming flow would reduce operational flexibility and result in increased costs over time in the order of $3 billion to Manitoba Hydro’s customers due to lost generation and new infrastructure requirements.

Finally Manitoba Hydro is of the opinion that protections were not actually lost in the 2012 amendment to the Fisheries Act. It imposed changes which will remain in the statute and that arguably increased the onus on industry to ensure protection of fisheries. These amendments broadened the HADD prohibition to include activities as well as works and undertakings; increased onus to notify, intervene and report; increased penalties and established a longer statute of limitations.

Manitoba Hydro is not opposed to the return to the HADD version of the fish habitat protection provisions, provided that Bill C-68 is clearly targeted at fishery or fish population protection, and the fish habitat management program does not revert to protection of individual fish and metres squared of fish habitat as a surrogate for fisheries management and conservation.

In conclusion, Manitoba Hydro considers that the key to providing protections for fisheries lies in the clarification of the Fisheries Act as a fisheries sustainability statute. From Manitoba Hydro’s perspective, the most important change that is required is for the purpose statement to be appropriately modified so the Fisheries Act can then be more clearly seen through the pith and substance lens of fisheries conservation. Thank you.

Mr. Buy: Thank you for inviting the Canadian Ferry Association to present our sector’s view on Bill C-68.

The Canadian Ferry Association represents ferry owners, operators and industry suppliers. Annually our members transport over 55 million people, 21 million vehicles and billions of dollars of goods.

Listening to where various senators come from around this table, I don’t have to spend a huge amount of time convincing you of the importance of ferries for Canada. Let me tell you that ferries help people get to their destinations such as schools, work, medical appointments and more. They are often the only linkage that enables goods to reach remote regions. They are indeed, on occasion, the only linkages for remote communities.

Our members include eight provincial governments; two Crown corporations; municipal governments of all sizes, including the cities of Toronto, Halifax and Vancouver; Indigenous organizations and private corporations. However, ferries are often forgotten in policies and legislation.

If the late John Candy was still with us, we would send him a letter of complaint. The movie Planes, Trains and Automobiles forgot to include ferries. It made it easy for some to ignore a Canadian reality — ferries are a crucial part of our transportation infrastructure.

This leads me to raise our concerns about Bill C-68. First, let me confirm that we agree with the general objectives of Bill C-68 — the protection of fish and their habitat.

Both directly and in collaboration with other groups, our members have invested and continue to invest considerable resources for the protection of fish and their habitats. Our members also actively engage in consultation with various organizations, including Indigenous groups on activities.

Our concerns focus on one key issue — designated projects. Bill C-68 allows for the creation of a designation project list that would include large, major projects and associated activities that would require a permit.

The list would be created by regulation following the legislation. There is uncertainty as to whether ferry terminals would be included in the list.

We do not disagree with some projects having to obtain environmental assessments. While Fisheries and Oceans Canada indicate a future regulation will provide greater certainty, our sector would prefer the certainty prior to the legislation being passed. With hundreds of millions of dollars to be spent in the rebuilding of ferry terminals across the country, our members are understandably concerned about the lack of clarity. Will their projects be affected? Will there be additional requirements? Will the approval process be changed significantly? Will there be delays? We have asked DFO to provide responses, and none were forthcoming.

This brings us to our first proposal that the Canadian Ferry Association would support amendments that would further define designated projects. This definition would make it clear to operators and ferry owners what projects would and would not require additional oversight.

While the Canadian Environmental Assessment Agency recently released information on designated projects, we know this is only a guideline and we would prefer the certainty that only legislation provides.

Senators, we have heard many times in discussions with various government officials that we should not worry that the regulations will provide clarity and that we should not fear, that everything will be fine. However, the “don’t worry, be happy,” attitude does not provide relief to operators who are planning projects that will provide services to populations throughout the country.

As an example, please allow me to let you know how things are done on Bill C-69. That legislation designates projects as major work orders or minor work orders. Cable ferries may be deemed as major works but never told that there may be another way in-between minor and major works. How will we know if our members are designated as major works? We need to ask the government on a case-by-case basis. This information was released yesterday after a month of us asking for it. And, really, it provides no greater certainty for our members.

The same appears to be entirely true for Bill C-68. We believe that the government should have taken the time to reflect and prepare for the legislation, better consult and provide certainty to all sectors prior to the introduction of the bill in the House of Commons.

Senators, my soon to be four-year-old daughter, Audrey Buy, likes to watch a program on TV called “Daniel Tiger’s Neighbourhood.” She often quotes from it: “Sometimes it’s good to go slow.” I agree. The government should have taken the time to evaluate the impact of this legislation and the way it will work prior to introduction. It has not — not sufficiently.

We have also reviewed previous testimony and proposed amendments from other stakeholders. Our board of directors had a meeting in April and agreed to support amendments championed by the Canadian Wildlife Federation as it relates to third party habitat banking. At least, that gives us an option. The Canadian Ferry Association believes this would provide a sensible way for proponents of projects to comply with the legislation. It provides clarity and certainty for project proponents such as ferries operators and ensures that, should an offset be required, the conservation and restoration is undertaken by those with direct knowledge of the situation such as conservation and Indigenous groups, et cetera.

For those reasons, our second proposal is for the Senate to agree to the recommendation presented at this committee by the Canadian Wildlife Federation as it relates to third party habitat banking. Thank you.

Mr. Iannidinardo: Thank you for hosting me as the chair of the Canadian Association of Forest Owners, CAFO.

The Canadian Association of Forest Owners represents companies and individuals who own about 3 million hectares of forest land in Canada and also manage about 15 million hectares of Crown land. We work closely and formally with the 450,000 wood lot owners and farmers who manage smaller pieces of forest across this great country. Private forests contain abundant, high-quality wildlife and fisheries habitat. Healthy wildlife and fisheries habitat is an indicator of healthy and productive forest ecosystems which, in turn, turns into healthy and successful businesses for owners.

CAFO members are maintaining fish habitat on private land at their own expense, by foregoing some of the economic uses of adjacent stream side zones with retention and special management areas.

When examining the Fisheries Act, CAFO has seven priorities for the committee to consider.

Forest owners include a range of small and large wood lot owners and farmers who have different capabilities to respond to regulatory and implementation requirements. With this in mind, the act should include the most efficient and effective ways to engage with forest owners to ensure they have their understanding and support.

The Fisheries Act must be based on results, not process. The new act will work if it considers the variation of forest types, habitat, ecosystems and includes flexibility and results-based approaches for cooperation with forest owners. Best management practices, combined with existing forest management laws, regulations and the use of forest certification systems, including regular independent third party audits, will greatly reduce the risk for fisheries and their habitat.

Risk assessment should be used to streamline the application process and the overall implementation of the act. Requirements for application and reporting need to reflect and be commensurate with the project’s level of risk.

It is important to coordinate changes and implementation with the provinces to avoid duplication and simplify applications, reporting verification and other requirements. A single point of entry into the system will greatly improve the willingness of forest owners to engage and greatly increase the likelihood of success.

Forest owners have particular interest in manmade structures because of the requirement to build roads for harvesting and managing forests. Drainage ditches, reservoirs and irrigation channels have previously been subject to legislation as natural water bodies. This resulted in lengthy and costly application processes for permits and authorizations and resulted in compliance and enforcement instead of stewardship. The definition of “fish habitat” should be restricted to watercourses where fish are present.

It will be essential to create a clear, consistent, transparent and easily understood act. Briefings, presentations and plain language explanatory documents will greatly improve the understanding of changes and the likelihood of acceptance and implementation of those changes. When regulatory changes require additional departmental resources, there should be corresponding increases in staffing and infrastructure to allow for timely processing.

With specific respect to the species at risk, under the Fisheries Act, there are challenges that should be addressed as part of the act changes. These include definitions of habitat, such as manmade structures; the lack of land owner consultation during recovery planning; the debatable identification of species at risk by COSEWIC; the failure to distinguish between public and private land; and a focus on forestry operations when other activities are the cause of the problems.

Finally, the Fisheries Act will achieve desired results through investments in stewardship programs, coupled with regular reporting and verification; conservation agreements similar to those found in the Species at Risk Act; and programs that incent the provision of ecological goods and services will be important to include in this act.

Thank you for your time today.

The Chair: As usual, the first question is from our deputy chair, Senator Gold.

Senator Gold: Thank you, witnesses, for your testimony and very helpful comments.

I’ll have a general question for all three of you which I will offer in a moment. Perhaps I might begin with a more particular question to you, Mr. Iannidinardo. I have an observation and then a question.

In a number of your suggestions for priorities that the committee should look at, it was not entirely clear to me — maybe you will elaborate — if it’s for the committee to consider or for the department of fisheries to consider, or whether these are things that you think might be helpful for us to pass on in our report by way of observations?

You’ve talked about the definition of fish habitat, and least in the past you suggested that it should be amended to exclude manmade water bodies and structures. Could you elaborate on what manmade water bodies might be involved in forestry and why those bodies should not have the same implications for fish populations or for the definition of fish habitat more generally? Then I will ask my general question.

Mr. Iannidinardo: I can answer your first general question. This is a summary of what we submitted to the house committee on this act. I summarized that here. Some of the things are already in motion on the proposed changes and we are supporting those here; some of them are not, so I have called them out again for your attention like the one about manmade habitat structures. Forests, for the most part, are managed through ground-based operations, harvesting and stand tending is done through the use of roads for access. Those roads involve bridges, culverts and ditches. In certain cases, those ditches or some of the infrastructure around the culverts or bridges end up looking like fish habitat or somewhere where fish could live. But they would not normally and in most cases they never do.

What we found previously — and our members wanted to make this point very clear to lawmakers and particularly for the Fisheries Act — is that there was an inordinate amount of paperwork and process required to get approvals as if there were fish there and as if there was habitat to be destroyed or disturbed through regular forestry operations and, of course, there was not. I’m highlighting that on behalf of our members that in this instance we make sure that is clear.

Senator Gold: All of your suggestions, including suggestions for amendments, are helpful. We’ve heard similar concerns from other groups. We understand the government appears to be open to amendments dealing with flow, habitat and things like that.

Apart from the specific concerns that you have outlined helpfully to us, what is your assessment of the bill as a whole? To what degree are there elements in it that you find to be an advance and which you would support?

Mr. Buy: On our side, senator, we view the general objectives of the bill as being good. We think it would certainly have benefited from more time in consultations and preparation. We would probably have avoided some of the pitfalls we are seeing now. We are significantly concerned that, because a certain clock is ticking, some things are going to be pushed through, which will give us a flawed piece of legislation that will impact negatively on various sectors.

Mr. Swanson: I would say that we support the objectives and the sustainability. We indicated that on previous occasions.

I think there is a vagueness in the statute, which is left with essentially “trust me” statements that things will work out and we’ll cover that off in policy or regulation. Recent history indicates there is a lack of clarity and consistency, and it would benefit from foundational clarification statements that would keep it from straying too far.

To the point previously made about time, I’m not sure the bill needs more time, unless that would provide more clarity. A number of subjects are included in it that will mean different things to different people. I get that the clarification should come in policy. If we know from our perspective that, in the end, all our conversations are going to be about fisheries sustainability and that there is not a push too far into the precautionary principle such that it’s more about protecting every fish and every square metre of habitat.

I’m not saying that is the intent or the objective. In the past that has been the application at a regional level. I think there are opportunities to make some of those statements a little clearer upfront and bring more clarity and certainty.

Senator Poirier: Again, thank you all for being here.

My first question is for Manitoba Hydro. Mr. Swanson, in your presentation, you say the water flow provision could result in increased costs over time — in the order of $3 billion — to Manitoba Hydro customers due to the loss generation and new infrastructure requirement.

What is the new infrastructure requirement that you are talking about? Could you elaborate a bit?

Mr. Swanson: I will first qualify and say I’m not a resource planner from the hydro planning side of things, but it’s thermal, essentially. If you’re not able to deal with demand in the moment, then there needs to be something else to back that up. As was referenced, an emitting greenhouse gas resource would be required to back up the lost operational flexibility from an ecological flows provision. That’s an example of an ecological flows provision that could be discussed, implemented or imposed.

Senator Poirier: In your brief, you commented on the so‑called lost protections arising from the 2012 changes to the Fisheries Act and that they were overstated. Could you elaborate on that more concretely?

Mr. Swanson: Prior to the 2012 amendment, the word “activity” was added to the prohibition, which is significant. It is no longer a prohibition against harmful alteration and destruction of fish habitat for works and undertakings; it also includes activities.

From a utility perspective, it has implications for how we operate. That brings into the statute a broader range of assessments and considerations. Manitoba Hydro is not opposed to that; we would just prefer the clarity of having to deal with those questions and issues around fish population and fishery-level effects as opposed to an almost arbitrary application of that to all flows. I think that’s the concern industry has, is that the extreme interpretation that all flow is fish habitat and therefore should be protected is still one possible interpretation with the way the wording currently is.

Senator Poirier: Thank you.

My next question is for the Canadian Association of Forest Owners. I too will not try to pronounce your last name, because I will probably say it wrong. My apologies.

In your submission to the committee, you offered a few priorities for the committee to consider. At the top, you list engaging forest owners. Would you elaborate? Has the government not consulted with you at all on this?

Mr. Iannidinardo: The government has not yet had any formal sitting with the Canadian Association of Forest Owners or with our partners, the Canadian Federation of Woodlot Owners. We have submitted information to the committee and would like to have further consultation.

Senator Poirier: Have the other two witnesses been consulted? Have you had consultation with government prior to the bill being presented as is?

Mr. Swanson: Yes, primarily through industry associations.

Mr. Buy: I would not call a call — and potentially a call back after two months of delays — consultation. The answer would be no.

Senator Poirier: Thank you.

Senator McInnis: Thank you for coming this evening. My question is for Mr. Iannidinardo.

You consider your operation to be quite a large one. You represent 450,000 woodlot owners and farmers. As a matter of interest, you manage 15 million hectares of Crown land. What do you do? Do you do the silviculture for them and that type of thing?

Mr. Iannidinardo: Our members who have private land of some form, many of them also have public land tenures, forest management areas, tree farm licences. That includes harvest rights, reforestation responsibilities and stand tending — the whole spectrum.

Senator McInnis: Risk assessment should be used to streamline the application process. The requirements for applications and reporting should reflect the project level of risk. What would you suggest? Who would be doing this? You would be dealing now, I suspect, with Natural Resources, and now you would be dealing with DFO.

How would that operate? Would an officer or an expert in forestry and Riparian rights and that type of thing come and say the risk here is not very high, and what would that mean?

Mr. Iannidinardo: The process currently exists, in general, with Fisheries and Oceans Canada in cooperation with provincial governments that have authority over works in and about streams, for instance. There is usually a provincial connection. In some provinces there is tight coordination between federal and provincial approvals. What we are promoting here is that also happens with this new opportunity to update the act. More specifically, the categorization of risks — for instance, a small culvert with no fish anywhere nearby versus a big bridge with fish all around and navigational concerns.

They are different levels of approval, professional involvement and different accountabilities for the proponent.

Structuring that spectrum of risks and examples is very important so that the federal regulators are not overwhelmed with applications and the proponents can keep going with their basic day-to-day business, except for higher risk and involvement with professionals.

Senator McInnis: Isn’t this going to be somewhat complex?

Mr. Iannidinardo: Fisheries and Oceans has a long history of working through complex applications and categorizing that. We want to see that continue and elaborated by this opportunity, so that perhaps there are 10 categories of projects with clear definitions and the first five of them can be done with very quick turnaround or notification types of engagement with government. And maybe the last five are complex enough that they require specific on-site reviews or approvals from Fisheries and Oceans.

Senator McInnis: You also say that if there are no fish present, it shouldn’t be fish habitat?

Mr. Iannidinardo: Yes, that’s our basic principle. If there are no fish present and it’s a man-made water body, then it should not be treated as fish habitat for purposes of this act.

Senator McInnis: This wouldn’t be near Riparian or streams or —

Mr. Iannidinardo: Streams are streams and they’ll have their usual levels of protection. This is about man-made structures such as ditches and reservoirs in some cases. Roads and ditches are mainly what forestry operators would be creating that may look like streams.

Senator McInnis: I live in the country in Nova Scotia. When you go through a stream or you’re building a road in the woods, there’s an awful lot of underground brooks and certainly in Nova Scotia there’s a lot of rock. There are fish in those. It seems to me that it would be somewhat complex. There are fish in many brooks.

Mr. Iannidinardo: If there are fish, this is not what we’re talking about.

Senator McInnis: I know.

Mr. Iannidinardo: If it’s a man-made structure for which fish populate after they’re constructed, I think that’s a different category.

Senator McInnis: Good luck with that one.

The Chair: Our vote is at 5:54, colleagues, just for anybody who doesn’t know. We are at 5:43 now.

Senator Christmas, do you want to ask a question?

Senator Christmas: Yes.

The Chair: We have five minutes.

Senator Christmas: Mr. Swanson, I’m just trying to get my head around this provision that Senator Poirier just mentioned. In your comments you mentioned a high-level analysis indicates that, for example, a requirement to pass 80 per cent of weekly average incoming flow would reduce operational flexibility.

What is that 80 per cent weekly average incoming flow?

Mr. Swanson: It would vary at different times of the year and in different water bodies. The idea is that instead of being able to hold water for peak release and power generation, you would have less flexibility and would have to spill more water such that you were reaching that 80 per cent level. That spilt water is not generating electricity and isn’t stored for potential future.

We have a big system so there’s a big implication. The analysis was to look at generation lost and extra infrastructure, but it doesn’t include what would happen where we’re also operating those structures to facilitate flood relief and drought protection, things like that. It’s quite a broad, expensive context to think about, ecological flows.

Senator Christmas: All right. Thank you.

I have one more quick question. I appreciate your submission on behalf of the Canadian Ferry Association. In your testimony you mentioned, sir, that some information was released to you yesterday. I’m trying to understand what that information was.

Mr. Buy: I mentioned that was on Bill C-69, senator. Basically on Bill C-69 we’re being told that they have those two categories — major works, minor works — but you can also be in between. The point, senator, was to highlight the uncertainty and the fact that the government is making policy as it goes on this bill and provides no clarity.

For us, it’s a major concern. This work should have been done prior to the legislation being presented. Consultation should have been done prior to it.

I worked in the Senate a number of years ago, senator. It was known as the chamber of sober second thought. We hope that the sober second thought will prevail on this and say, “Put the brakes on and let’s wait to make good policy on this.”

Senator Christmas: Let me make sure I understand this correctly. Yesterday the designated project list was released. I thought that would have given the clarity that industry wanted. You’re saying it didn’t?

Mr. Buy: No, senator. Again, two things, Bill C-69 and Bill C-68; maybe I should not have confused with Bill C-69, but that provided some clarity. The Canadian Environmental Assessment Agency provided other information, but as indicated by them when we called, it doesn’t mean that our other projects will not be seen under Bill C-68 as a designated project.

We have no more clarity than we had yesterday or the day before and probably not until after the bill has been passed.

Senator Christmas: After the regulations.

The Chair: We’re going to suspend now and reconvene immediately after the vote and Senator Wells will have some questions. I will ask the witnesses if you would stay around for a few moments.

(The committee suspended.)


(The committee resumed.)

The Chair: I call the meeting back to order. Sorry for the interruption but it’s out of our hands.

Senator Wells: Thank you, witnesses. Mr. Iannidinardo, on the definition, which, in the legislation currently written, is water frequented by fish, you are suggesting watercourses where fish are present?

Mr. Iannidinardo: Yes, that’s part of our submission. We want to make a distinction between watercourses where fish might be able to survive in versus watercourses where there are fish.

Senator Wells: Something that is a river versus a ditch, if we may colour it black and white like that?

Mr. Iannidinardo: Yes.

Senator Wells: I don’t know a lot about the forest association. What about in areas where forests are inundated by floods, where you normally would have a watercourse where fish are present and that river being swollen into a forest? It’s important we not just define what a river or a watercourse frequented by fish is, or where fish are present, but also be careful that we don’t capture forests when they are inundated by floods, which happens frequently in various parts of the country?

Mr. Iannidinardo: There are a variety of fairly well understood ecological definitions of what types of trees can grow where it floods very rarely. Those areas would not be considered part of riparian areas; they are just infrequent floodplains or flooding areas that would not be treated as fish habitat.

Senator Wells: When we consider your proposed definition — a watercourse where fish are present — we have to consider that in light of a river that takes not its normal course and perhaps inundates a forest?

Mr. Iannidinardo: We sent in additional language to the house committee that was more particular about ephemeral streams or very rare flooding situations. We could make that available to this committee.

Senator Wells: That would be helpful. Thank you for that.

Mr. Buy, if I have this right, you would be looking for separate status or an exemption for ferry terminals?

Mr. Buy: We are looking for clarity — which ferry terminals are going to be considered? It would not be believable for me to come here and say that all ferry terminals should be excluded. Is Duke Point or North Sydney going to be excluded, or are smaller terminals going to be included? Is a cable ferry, which runs on both sides, be part of the process? What is going to be included and excluded? That is the definition we are looking for. I would not ask for an exemption for all ferry terminals. That would not be the right thing to do.

Senator Wells: What about areas where ferry terminals may not yet be built? Because they are hard to identify at this point because this legislation is for the future.

Mr. Buy: I would say that where ferry terminals are built now, we would believe that the work has already been done. We don’t need to redo the work. In the Langdale terminal, which is probably going to go for extensive renovations, we don’t want to delay construction for two or three years. That’s our concern at the present time.

For a new ferry terminal, some due process has to happen. We would hope it could be streamlined, but we’ll have to see.

Senator Wells: Thank you.

The Chair: I want to thank you for your presentations and your discussions with our senators. As I say to all our witnesses, if you believe there is some information you may want to add or send to us, feel free to contact the clerk with that.

We now welcome our second panel for this evening. We have, by video conference, Terry Teegee, AFN Regional Chief for British Columbia. We have Ken Paul, AFN Director of Fisheries.

Welcome back.

Mr. Paul was here on Bill C-55, if memory serves me correctly.

We have the Director of Land, Water and Resources for the First Nations from the Treaty 2 Territory, Joseph Maud. From Eel Ground First Nation, we have George Ginnish.

On behalf of members of the committee, I thank you for being here today. I understand we have opening remarks, beginning with Chief Terry Teegee, and then we will have questions from senators.

Terry Teegee, AFN Regional Chief for British Columbia: Good evening, senators. I want to first thank you for taking the time to allow my colleagues and myself to present today.

I just want to acknowledge the territory that I’m in right now. I’m in my BCAFN offices in Lheidli T’enneh Territory in Prince George. My office is right on the shores of the Fraser River. In our language we call it Ltha Koh, meaning everything drains into the river.

My name is Terry Teegee. My hereditary chief name is Maxweeum Tsimghee. I’m also the chair of the National Fisheries Committee. My AFN colleague Kenneth Paul and I are happy to present today on Bill C-68.

Our brief submission will address four key areas. First is protection for First Nations inherent rights and constitutionally protected rights under section 35 and the commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples. In particular I want to acknowledge Bill C-262, the Romeo Saganash bill.

We will address full inclusion of Indigenous knowledge. We know, as Indigenous people, we can contribute to the knowledge base not only as part of what we call western science but also as part of Indigenous knowledge systems.

The third issue we want to address is for the deeming habitat provision to be expanded to include environmental flows and the importance of water flows in the inland in terms of the many water systems that contribute to the habitat of fish.

The fourth matter is achieving reconciliation through rebuilding fish stocks, habitat restoration and the protection of habitat.

The first point I really want to reiterate is the protection of our inherent rights as Indigenous people as it relates to the Constitution under section 35 and also the recognition of our rights as Indigenous people under the United Nations Declaration on the Rights of Indigenous Peoples. In particular, we have the right to make decisions on the use of lands and resources within fresh water and oceans along the shores of Canada within those models. Our governance models and legal systems are recognized not only by governments but also by the Supreme Court of Canada.

The Assembly of First Nations, the AFN, recommends that the provisions dealing with section 35 rights be strengthened to ensure that the minister and Governor in Council must uphold or protect section 35 rights and decision-making under the act and where making regulations or orders under the said act.

Further, the AFN recommends the current definition of rights be expanded to include inherent rights held by First Nations as well as those recognized and affirmed in international agreements.

In the past, there has been consistent failure by the Department of Fisheries and Oceans to implement Supreme Court of Canada decisions. One particular example is the Sparrow decision. After conservation needs are met by the DFO, the first priorities are First Nations, for example, food, social and ceremonial uses. We have yet to see that fully implemented. This decision was made well over 30 years ago. We as First Nations have to see this principle consistently implemented when decisions are made by DFO, and that First Nations have top priority.

Lastly, the AFN recommends that the Fisheries Act is amended using the minimum standards outlined by the United Nations Declaration on the Rights of Indigenous Peoples as part of a reconciliation framework for this legislation and eventual implementation of several procedural guarantees such as free, prior and informed consent within the act.

The second matter is in terms of Indigenous knowledge systems. Indigenous knowledge has been passed down for millennia, for many generations, for hundreds if not thousands of years, with detailed observations of the ecological systems within our traditional territories and the accumulated knowledge of our oral histories held by many First Nations. These should be deemed as being on equal footing with western science.

First Nations were and remain today very careful observers of the fish and the fish ecosystem. Our lives depend on the many fish species that come into the waterways of British Columbia and other areas of Canada. We have the knowledge to monitor and gauge the effects on fish populations from not only climate change but perhaps development.

When a community has closely watched a specific species of fish in a particular inlet for thousands of years, they develop a level of knowledge that is unprecedented. That should be taken into consideration.

The mismanagement occurs in many cases because DFO is overconfident in terms of what western science is stating about fish populations. You know from past experience that high numbers usually do not come back in terms of the populations, especially here, out in the Fraser, where we’ve seen many times that high levels were expected to come back for the many salmon species to rear their stocks and to go to spawning areas. That is not the case. It is not uncommon for DFO to reject the direct, experiential knowledge of First Nations fisheries — knowledge based on DFO scientific evidence — only to have the concerns of the First Nations fisheries and local knowledge of those areas to be correct.

For these reasons, AFN strongly supports the inclusion of consideration of Indigenous knowledge in Bill C-68.

The third matter is the AFN strongly supports the inclusion of the quantity, time and quality of the water flow under the deeming habitat subclause 2(2) in Bill C-68.

Environmental flows are vital to the proper functioning of freshwater ecosystems and maintenance of flow is essential for healthy fish populations. We know this to be true both in Indigenous knowledge and western science. Ravine ecosystems and the fisheries they sustain are placed at increasing risk with alteration of the natural flow regimes. Many First Nations communities in the B.C. Fraser River watershed have not been able to harvest specific salmon due to conservation concerns in recent years.

The lack of water quantity due to climate change and development can increase water temperatures in a river, which has detrimental effects on the ability for salmon to return to their spawning grounds. Additionally, the timing of salmon returns is a distinctive life history trait that contributes to the overall biodiversity of Pacific salmon. The timing of environmental flows is therefore critical to the protection of fish and fish habitat.

The fourth matter is moving towards reconciliation and achieving reconciliation through rebuilding fish stocks, habitat restoration and protection of habitat. Since the first settlers came to Canada and, in particular, out here in Western Canada, overfishing has decimated the stocks of salmon species. The Fisheries Act regime has played a key role in encouraging unsustainable fishing practices. In addition, there is a long history of First Nations being denied access to our own fishing grounds for food, social and ceremonial uses.

In light of the government’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples and to pursue measures that are to achieve reconciliation, the AFN recommends that if the minister makes a decision that relates to any measure designed to restore or protect habitat or fish stocks, that the minister is required to give priority to fish stocks and fish habitat that are relied on by many Indigenous people.

In closing, we concur with the submission presented by Regional Chief Norman Yakeleya —

The Chair: Chief Teegee, I’m not sure if you can hear us.

Mr. Teegee: I will end my presentation there. I thank the committee and urge you to consider the submission we have presented today. We look forward to answering any questions.

Thank you.

The Chair: I think, Mr. Paul, would you like to follow up?

Ken Paul, AFN Director of Fisheries, Assembly of First Nations: He was acknowledging Regional Chief Norman Yakeleya of the Dene Nation, and we are supportive of his submission.

The Chair: Sorry, we had technical trouble, something else that is out of our hands.

Mr. Paul, do you want to follow up with anything?

Mr. Paul: [Indigenous language spoken]. I just wanted to say thank you for this opportunity to speak on the traditional territories of Algonquin Anishinaabe.

The Chair: Thank you, Mr. Paul.

Joseph Maud, Director, Treaty 2 Territory: First, I want to acknowledge the traditional territory of the Algonquin nation.

I am Joseph Maud, the Secretary for the Care and Protection of the Natural World at the First Nations in Treaty 2 Territory Government, which is situated across the two provinces of Manitoba and Saskatchewan.

I’m here today to relay the messages from our people that represent the spirit and intent of Treaty 2, made on August 21, 1871, which was based on mutual commitment to live together, and peace and friendship remains.

The Treaty 2 Territory is defined by its lakes and rivers. The treaty describes the boundaries that include the mouth of the Winnipeg River, Lake Winnipeg, Berens River, Lake St. Martin, Lake Manitoba, Lake Winnipegosis, Waterhen Lake, the Shell River, the rapids of the Assiniboine River included in the territory is Lake Dauphin and Clear Lake.

We are glad to see that Canada is finally mandating the protection of the Lake Winnipeg Basin, considering it is dying from pollution and interference with its natural process. A large area of the southern basin lies in Treaty 2 Territory and historically has been a major aspect of our natural economy and lives. We expect the Ministry of Fisheries and Oceans will support a nation-to-nation relationship with us based on respectful cooperation and partnership and recognition of our inherent rights.

We have always known that proper management and control of our fisheries is required to maintain a healthy quality of water, not only for humans but for all other life that depends on it. The conservation and protection of fish and fish habitat in Treaty 2 Territory, including by preventing pollution, is crucial.

We expect that the proposed fisheries act, Bill C-68, will provide protection not only for today, but lasting many generations to come. We recommend that the Senate Committee amend the bill to ensure the process of authorization of projects in and near water bodies which might result in the death of fish or harmful alteration, disruption or destruction of fish habitat be broadened to include spawning and migration of fish and must include the meaningful involvement of First Nations in Treaty 2.

It is easily conceivable that a project that does not actually kill fish or alter habitat may still cause significant disruption of spawning and migratory habit requirements of fish so that an entire fishery could be severely diminished.

We are concerned about the definition of Indigenous governing bodies and how that definition is applied. Who says who is and who is not an Indigenous governing body? Who decides? Is a strong fishers’ organization less qualified to advise the minister than the head of an organization? The draft bill must be revised to clarify these significant questions.

Consequently, we strongly recommend that the bill be amended by adding this proviso declaration: “If that province has laws that are deemed equivalent to those provisions or regulations with the proviso that such a declaration has no force and effect in relation to rights and interests protected by section 35 of the Constitution Act 1982, and subject to section 91(24) of the British North America Act, we assume that clause 6 of Bill C-68, extending the application of this declaration of equivalent provisions to the laws of Indigenous governing bodies that are, in effect, in the territories governed by these bodies, is not intended to apply to Treaty 2 Territory or the territory set out in Treaty 2.”

We support the repeal of the definitions of “aboriginal” in the bill. The term is the product of the doctrine of discovery. While it is unfortunately used in the Constitution of 1982, it should not otherwise be uttered with respect to the people of Treaty 2 Territory.

We wish to be sure that the term “fish habitat” defined in clause 1(5) is interpreted to mean fish habitat as it was at the time of the treaty, including those areas which have since been taken up by settlers and impacted the wellness of the habitat in waterways due to settler civilization, the natural fish habitat has been dramatically affected and requires severe remediation for its and our continued survival.

When water is poisoned with chemicals, sewage and garbage, fish die, they get disease, and become deformed. They are unable to be what the Creator intended them to be, sustenance for us and other life.

I would like to highlight that diversion of waterways is an ongoing issue, such as the runoff from fields along the Missouri River hundreds of miles away in the United States. It is then diverted into the Assiniboine and then further diverted into Lake Manitoba and Lake Winnipeg. Remember, water flows north into the Hudson’s Bay and the Arctic and Atlantic oceans. That diversion of waterways and the detrimental impact is not only national but carries with it global impacts.

We highlight two concerning issues. The Department of Fisheries maintains that the new fisheries act reflects what we heard over hundreds of meetings with partners, stakeholders and Indigenous groups. However, there are Nations within Treaty 2 territory that are dependent on fish and their habitats. We are unaware and have not had meaningful consultation on the amendments, nor we were advised on the advanced stage of the revisions, although this bill has affected our inherent rights.

The department states in its media releases that the proposed act would strengthen the role of Indigenous peoples in project reviews, monitoring and policy development. While there are some very positive points in the bill, we find little in the bill which would strengthen the role of our people with regard to our fisheries and our rights and involvement in project reviews, monitoring and policy development. We ask the department to point out where that evaluation is in error.

At the same time, we feel that the bill is generally positive, an improvement, and we do not wish to delay its passage. However, our inherent rights must be respected and adhered to.

Having said all of this, made all these recommendations, the sad fact is that very little of your good work will apply in our Treaty 2 Territory. We have no way of knowing, but our hunch is that neither was the committee informed of this situation which we face and that the committee, you senators individually, are being asked to contribute to the continuance of grave injustices.

The protection, ownership, allocation, use and management of fish and fish habitat in Manitoba are governed by the Canadian Constitution, treaties, federal and Manitoba legislation. Treaty 2 provided for a portion of the lands in the territory to be taken up for immigration and settlement providing compensation was paid by Canada. The Constitution of Canada provides that any law of Canada which contradicts that arrangement is of no force and effect.

Joint management for fisheries must occur. First Nations in Treaty 2 Territory request and are ready to enter into discussions with Canada immediately. The duty to consult must take place regarding these amendments. It could be reasonably argued that compensation would be paid by Canada for the use made by settlers of waters and for the fish taken by settlers. Over the years, the impacts have been so negative that the very productive fisheries which once sustained our lives have virtually disappeared.

The current law on fish property is a provisional resource. Treaty 2 was made in 1871 without any mention of natural resources. However, the Natural Resources Act of 1930 pretended to give legal effect to each of the prairie provinces. This legal effect has never been consented to by our First Nations in Treaty 2.

Mixed federal and provincial jurisdiction: The Canadian Parliament has assumed its exclusive constitutional jurisdiction to make laws for the conservation of fish, including setting fishing seasons, quotas, size limits and gear restrictions. It does not; Manitoba does.

Fish management and administration: While Canada in its practices assumes it has ultimate legal authority and responsibility for fish and fish habitat conservation matters, to this pretension, most of the day-to-day management and administration of federal fish regulations has effectively been delegated to Manitoba officials, the Minister of Water Stewardship, the director of fisheries and fisheries officers employed by Manitoba. They are the ones who arrest us when we exercise our inherent rights. We remind you again that we never ceded our sovereignty, our self-determination, our self‑regulation in regards to managing and controlling our natural resources.

Reconciliation measures required; that is my last point.

We recommend the following measures: Canada must implement the immediate consultation with First Nations in Treaty 2 to create a joint management initiative to address the concerning waterways and its habitat, i.e., the restoration regulation requirements, monitoring, et cetera.

We thank the committee for listening. We look forward to your address of our concerns in relation to Bill C-68 with regard to Treaty 2 Territory. We also inform you that our concerns regarding our inherent rights we have identified in today’s presentation will be forwarded to the ministers. We expect that consultations will be implemented.

The Chair: Thank you, Mr. Maud.

George Ginnish, Chief, Eel Ground First Nation: Good evening, ladies and gentlemen, senators. I want to acknowledge that we are on the Algonquin Anishinaabe territory. I thank you for the invite, the opportunity to give you a perspective from the Mi’kmaq in Atlantic Canada.

I’m Chief George Ginnish, chief of the Natoaganeg First Nation Eel Ground, we’ll have a test on that later. I also chaired the Mi’gmawe’l Tplu’taqnn Inc., which will be questioned too. We represent eight of the nine Mi’kmaq First Nations in New Brunswick.

Mi’kmaq are the official inhabitants of Mi’kma’ki, a territory which includes large portions of the Atlantic provinces, Quebec and the northeastern United States. We have occupied these lands and waters since time immemorial. We are signatories to the peace and friendship treaties signed between our ancestors and the British Crown between 1725 and 1779. Today we are working to implement our treaty rights through rights implementation agreements with Canada.

We have proven our Aboriginal and treaty rights to hunt, fish, harvest and gather in our territory for food, social and ceremonial purposes, as well as for the purposes of trade and earning a livelihood. Yet 20 years after the Marshall decision, our treaty right to a moderate livelihood has yet to be implemented.

Today, our fisheries and waters remain central to our way of life. Our people follow the most important traditions of our ancestors including the harvesting of eels, salmon, other fish and waterfowl. We have been stewards and guardians of these waters for millennia.

Many of our people eat food from our local fisheries on a regular basis, which means the protection and nurturing of habitat in harvesting areas is essential. Protection of the habitat is of great importance for more than just the fisheries but for the game we feed on and the nutrients in the habitat.

Our waters and fisheries are under increasing pressure because of overharvesting and because of our activities on our lands and waters that are harmful to fish, aquatic species and their habitat. American eel, sturgeon and salmon, once plentiful species that the Mi’kmaq relied on, are now endangered.

At the same time, we have to fight with DFO for limited access to abundant species like striped bass and snow crab, which can support the rebuilding of our community economies.

Mi’kmaq hunting, fishing and resource use was and remains in accordance with our cultural values and our laws. These values were established to protect and sustain the ecological integrity of the environment. Our right to fish and fish in a sustainable way is essential to our cultural, spiritual and physical survival as people. Through these processes we seek to ensure a healthy environment for our future generations.

Our organization has, to date, attempted to participate through this review of the Fisheries Act at every opportunity that we’ve been given.

Our submissions have been based on the following principles: a nation-to-nation relationship between the Mi’kmaq and Canada; the spirit of partnership and cooperation embodied in our treaties, including shared decision-making in certain areas and exclusive Mi’kmaq jurisdiction in others; and shared stewardship of our lands and waters, including a lead role for the Mi’kmaq in monitoring and enforcement.

I highlight the need for early engagement, a challenge in regards to consultation at many tables; adequate funding for meaningful participation in the form of both ongoing capacity funding and participation funding for particular projects; meaningful inclusion of Mi’kmaq Indigenous knowledge and rights as part of any process; a holistic and comprehensive approach to regulatory processes that includes cumulative and regional impacts; and the need for free, prior and informed consent of the Mi’kmaq as outlined in the United Nations Declaration on the Rights of Indigenous Peoples.

In January 2017, our organization made written submissions to the Minister of Fisheries and Oceans as part of the minister’s review of the Fisheries Act. In September 2017, we provided further written submissions as part of the review of the act. However, we were not afforded an opportunity to appear in front of the House of Commons standing committee as part of the initial review of the Fisheries Act or the hearings for Bill C-68, nor did we have the opportunity for direct face-to-face engagement with DFO.

We appreciate the opportunity to speak today and share our concerns.

We see positive changes in Bill C-68, including restoring the HADD provisions of the act, the requirement that any decision under the act consider the adverse effects on our Aboriginal and treaty rights and the expanded powers of the minister to enter into agreements with Indigenous governing bodies, which would be essential to reaching appropriate arrangements with the Crown regarding our rights and our stewardship of our waters.

Despite these positives, we continue to have concerns with other aspects of the bill, including defining “Indigenous fishery.” Bill C-68 will remove the definition of “Aboriginal fishery,” only to replace it with a definition of “Indigenous fishery,” which is limiting and problematic. The definition only includes fish harvested for food, social or ceremonial purposes set out in land claim agreements. The new definition does not recognize Mi’kmaq fisheries that are protected under the Peace and Friendship treaties. The Fisheries Act should not be enshrining discrimination against Indigenous groups who have signed historic treaties with the Crown. The definition of “Indigenous fisheries” should include all fisheries protected under the treaty, whether or not the treaty is historic or pursuant to a modern land claims process.

The wording of proposed section 2.3 of the bill is also of concern to our organization. The wording in this section is different than found in section 35 of the Constitution Act and that found in proposed section 2.4 of the bill. The wording “the protection provided for” in proposed section 2.3 should be deleted, as it is unclear and seemingly appears to limit the protections the act gives to our section 35 rights.

Also, it is our position that the Fisheries Act authorizations should be triggers for environmental assessments. We have seen a number of projects in our territories, including the dredging of waters and large-scale mining projects, where environmental assessments were critical and where the Fisheries Act authorization was the primary trigger for environmental assessment. Authorization under the act being triggers for an assessment would operate to provide the required review and consideration of all factors of a project, which is crucial to ensuring our constitutional rights are protected.

Finally, as the traditional stewards and the guardians of our territory of Mi’kma’ki, our people are in the best position to provide relevant knowledge, make decisions, monitor and enforce protections with respect to projects in our territory. The Fisheries Act must change to recognize this reality. Thank you.

The Chair: Thank you, Chief Ginnish.

We’ll go to our first questions from our deputy chair.

Senator Gold: Thank you very much, chiefs and gentlemen. Thank you very much for being here. You’ve raised a lot of issues. I’ll just zero in on a couple, knowing that my colleagues will address many others.

My first question has to do with the inclusion in the act to the reference of Indigenous knowledge, which is one of the considerations that may, though not must, be taken into account. I wonder if you could just give us your comments generally on whether you think that’s a step forward, whether you think that there are different ways in which it would be better expressed and how you see it being integrated into the decision-making mechanisms under the act. It’s really a question to any or all of you who might want to address it.

Mr. Ginnish: I could share my perspective, because we have a situation now on the Miramichi River where our traditional cultural food, salmon, is at great risk. We have challenges with how an emerging species has threatened the salmon. In going forward, we have advised DFO and other groups that Indigenous knowledge has to inform the process, that there has to be an IK study done for the Miramichi River going forward. We have demanded it for years, and to this point, it has not happened.

There are a number of partners that want to manage. From our perspective, we’ve been left out of that co-management; it’s been a term that really hasn’t applied. For the health of our river going forward, Indigenous knowledge is absolutely critical. It can’t be “maybe” or “may;” it has to be.

Mr. Paul: Although it’s good that it’s already considered under the act as a “may,” we should support “shall” as well. This would ensure engagement with Indigenous peoples on these important matters.

Senator Gold: Chief Teegee, would you agree with that?

Mr. Teegee: Yes, I would say so. The experience that we have here in terms of the historical knowledge of many species that come back to the inlands in British Columbia, you could see the changes that have occurred over many decades, if not millennia. I think that accumulated knowledge will allow First Nations and also maybe government and industry to make better decisions in some of these issues that are happening out here in British Columbia, in particular the use of waterways for mining or the use of the waterways within the oceans in terms of tanker traffic and whatnot.

I think the traditional knowledge, whether it’s over here on the West Coast, inland, on the East Coast or in the North — it’s that accumulated knowledge that really demonstrates that there are people out on the land right now and there are people out on the waterways who are using the lands. There are firsthand observers who have not only accumulated the historical knowledge, but it’s the knowledge of the local people out on the land right now.

What better way to gain knowledge that than to already have people out there?

Senator Gold: Thank you. My memory may be failing me, but I recall that an earlier witness explained the use of “may” rather than “shall” on the basis. Of course, the knowledge is proprietary to each of your communities. It was suggested that putting it into “must” or “shall” language would be inconsistent with the fact that this is knowledge that your community owns and can choose to share or attach conditions to in terms of disclosure and things like that. I may have it wrong, but I think we had testimony to that effect. I’m looking around for confirmation. Does any of that make any sense to you?

Mr. Ginnish: From our perspective in Atlantic, and New Brunswick especially, while we would certainly respect that view, that is not the view we have in New Brunswick. We feel the need for Indigenous knowledge to be part of the management of our systems is overdue, and a lot of the damage and what we’re experiencing now is because it has not been part of the process.

Mr. Paul: From my understanding of how that would be applied, if it shall be considered, then it requires the department to engage the First Nations. It will then be up to the First Nations whether they have information to share. There will be protocols in place locally to provide protection and methodologies in place locally that have to be supported in order to get the appropriate information to the government. It will be a negotiation as to how that will be protected.

Senator Gold: “Shall” is not inconsistent with the proprietary nature.

Mr. Paul: It shouldn’t be. It will require the engagement, but it will still give the option to the First Nation to engage in the process.

Senator Gold: Thank you for that.

Senator Wells: Thank you to the panel who are here and Chief Teegee in British Columbia.

I want to go back to the question put by Senator Gold. It was a question that I had a couple of weeks ago in the study of the same bill.

It’s important that we utilize and gain from Indigenous knowledge. I understand that fully. What about where there is consideration of quotas, allocation or other science-based decisions where there is no Indigenous knowledge? For instance, on the northeast coast of my province of Newfoundland and Labrador, where if there was Indigenous fishing, there hasn’t been for more than 500 years, and no Indigenous communities in the area, or further offshore in setting quotas and consideration of allocations where there is no historical attachment hundreds of kilometres offshore.

We have to be careful about putting the in “shall,” which is a requirement, as opposed to “may,” which is a decision based on the minister of the day.

Would you see flexibility in areas where there clearly isn’t Indigenous knowledge? I recognize Indigenous knowledge in the Manitoba river system: Lake Winnipeg, the West Coast and the abundant salmon fisheries there, places in New Brunswick and Nova Scotia and certain parts of Newfoundland and Labrador. Would you see a requirement to try to add Indigenous knowledge in a place where there clearly isn’t any?

Mr. Paul: The understanding of Indigenous knowledge is very narrowly interpreted. It really isn’t just about the knowledge. From the Indigenous perspective, knowledge is an objective thing that you can obtain, write down in a book and capture. There is a whole embedded value system put into Indigenous knowledge.

In my work, what I try to make people understand is that when you are dealing with Indigenous peoples, if you are talking about a fisheries management plan, for example, you don’t just talk about Indigenous knowledge and box it into the science aspect. You have to look at the entire plan.

For example, Indigenous peoples take the precautionary approach as a general acceptance. They will not overfish. Cumulative effects are something that the Department of Fisheries and Oceans is struggling with, but Indigenous people see everything included there. That whole value system is all part of Indigenous knowledge, seeing yourself as part of the ecosystem instead of the ecosystem being something separate that you can manage.

When people ask, “Do Indigenous peoples have Indigenous knowledge for the offshore?” I say that if the Indigenous people were given the parameters about what is going on in the offshore and gave an approach on how to manage things such as migratory species, leases, things like that, they would be able to give you good information, which is all part of the knowledge base that could be shared.

That definition of Indigenous knowledge within the act has to be done in a way that Indigenous peoples and nations locally can define it for themselves and share it outward.

Senator Wells: I understand.

Chief Teegee in British Columbia, any comment on that?

Mr. Teegee: [inaudible] or any other species, including offshore. There is the notion that First Nations were landlocked or are very limited in the use of those species off the shores of British Columbia. Time again, even science is determining that perhaps we were maybe not as landlocked as we were deemed to be in the historical books, especially in terms of the wild salmon issue and how decisions are made in international waters. Many of the species that come back, whether it’s chum, coho or sockeye, they gain well over 99 per cent of their weight in becoming adults in the oceans and come back to these waterways in the interior of British Columbia.

All those decisions are quite important in terms of how First Nations, and for the greater matter, how government and industry, in particular the fishing industry, make decisions.

Indigenous knowledge, like my colleague Ken Paul said, it’s much more than just the scientific basis and the Western ideology of what knowledge means. It’s how we are connected as part of the salmon species. It is how we utilize the salmon and what it means to us in terms of sustaining our lives.

In many respects, the closest connection I could say in the Western world is that real spiritual and religious connection to something. It’s that connection that we have with the salmon and how it is revered. For many Indigenous communities across this country, how we look to really relate to the environment and especially those things that we hold near and dear to ourselves and that sustain us, such as salmon and many species across this country. That really contributes to Indigenous knowledge, and that’s quite important. That should be acknowledged.

How that relates in terms of decision-making is quite important as well, because, quite simply, it has to be acknowledged some way.

It is up to the autonomy and to each sovereign nation how that is protected, perhaps, or how that contributes to the overall mechanism in how decisions are being made.

Thank you for the question.

Senator Wells: I appreciate that answer. Right now there is the precautionary approach, which DFO considers. Then there is the ecosystem approach, which DFO also considers. So this would be more of a cultural ecosystem approach, Chief Teegee?

Mr. Teegee: I think so. I’m from a place that is about 1,000 kilometres from the mouth of the Fraser River in Vancouver. Two of the species, the early and late Stuart sockeye, have always been a staple in our lives and sustenance. For the past 30 years, we couldn’t fish like we used to. Quite simply, we haven’t fished that species in the last 20 years because of the overfishing in the oceans and on the way up to the Fraser, the warming temperatures and the many issues that these salmon are embattled with to return to the spawning grounds.

What those two species really means to us is we, when we make decisions, are on a very precautionary route in terms of conservation. We won’t fish those species anymore until those numbers go up to a substantial enough level where we can.

Last year was supposed to be a big year for those two runs. I believe the runs that came back were 25 per cent of the estimated numbers that came back from DFO.

More often than not, as I stated, DFO’s numbers are far higher than they usually are. There was only one year that I can recall in recent history that the numbers came back quite a bit more than what was estimated.

That was the Adams River sockeye run. Beyond that, more and more often runs are getting smaller and smaller. Some of these species such as the bomber and sockeye are now functionally extinct.

This is really important. We need an act like this because we have seen the recent report from the United Nations on biodiversity that nearly a million species are on the verge of extinction or listed as being extinct. A lot of species from the oceans and waterways are on that list.

Senator Wells: Thanks for that. You will recall that three years before the Cohen Inquiry, which you would be familiar with, on the study of the historically low runs of B.C. salmon — the Cohen Inquiry, just for my colleagues, was about a $25 million commission. The year after the Cohen Inquiry was published there was a run of 28 million salmon, which obviously had nothing to do with good DFO science or conducting the inquiry. That’s the kind of knowledge that I think would be helpful when considering quotas, allocations and the full biome that happens in the West Coast salmon fishery.

Mr. Ginnish: I want to briefly add that Indigenous knowledge goes hand in hand with the duty to consult. I have an email in front of me in relation to the Newfoundland Orphan Basin Exploration drilling. There is a traditional territory that needs to be looked at in a larger context. The discussion happens. We have an opportunity to be consulted and that’s where we want to be. We want to have that opportunity and that’s very important to any development. Even if our role is not as large, we have the opportunity and the project can say that, yes, we consulted and had a fulsome —

Senator Wells: If the important Indigenous knowledge contributes to the science — and that is the protection of the species under an ecosystem approach or precautionary principle — should that be held confidential if it’s not proprietary? If the minister is using that knowledge in consideration of a quota — not consideration of an allocation, but consideration of a quota. And it’s not proprietary, so it’s not commercially confidential or anything — should that be part of the transparency initiative by the minister? What’s your opinion? There is wording in the bill right now that says it should only be disclosed if it’s publicly available or necessary for the purpose of procedural fairness? I wonder if you have any comment on the transparency associated with Indigenous knowledge?

Mr. Paul: Wouldn’t that be part of the negotiation with respect to the disclosure agreements and the protocols with the First Nations as to whether or not it could be publicly available? That’s how I understand how that would apply.

Mr. Ginnish: I know we’ve requested IK — pardon the abbreviation — for a number of projects in New Brunswick. There is a higher order of information that can be shared. There is personal information that individuals, they may share on a condition of confidence. Like Ken says, it would have to be worked into the agreement. The people who need to see it would have to see it, and it would be part of that process. It’s kind of hard to have a one size fits everything in this situation.

Mr. Paul: As long as the bill is drafted in such a way to allow for those local agreements. Generally, Indigenous people want to share this information because we’re concerned about the health of the planet and the fish stocks.

Mr. Ginnish: If it’s going to have an impact, it can’t be top secret. It has to be part of the discussion.

Senator Wells: Thanks very much. I appreciate your responses and your knowledge.

Senator McInnis: I didn’t have a question. I have made some notes, and was thinking I want to go through them with you very quickly. I have been listening to native issues for many years. Let me quote some of the things you have said tonight. It seems to me you’d better rethink your strategy.

I’m quoting some of this:

It is 20 years after the Marshall decision and our treaty right to a moderate livelihood is yet to be implemented.

And following that, as you mentioned tonight, the Sparrow case, which was analogous to the Marshall case. Shared stewardship. You want a lead role for the Mi’kmaq in monitoring and enforcement, which sounds reasonable. You have been shut out of treaty rights. You have been shut out of any form of consultation with respect to the Fisheries Act review. You have been denied a face-to-face meeting with DFO officials. Then DFO, you say is overconfident about fish quantity, and that’s salmon in the Pacific I presume. DFO rejects native local knowledge.

The Miramichi, you didn’t say this but I presume you are alluding to the Largemouth bass as a predator with respect to Atlantic salmon. You are looking for co-management. And you want Indigenous knowledge to be taken into consideration and that it be mandatory.

You have referenced the Constitution treaties and other agreements and a duty to consult.

It just seems to me that I’ve heard this many times. There are certain things that can be accomplished by amending this act, taking in Indigenous knowledge and that type of thing. It seems to me there has to be a rethinking of the strategy as to why, for example, Fisheries officers will charge someone for fishing eels, as Donald Marshall Jr. did, but yet he took it to the Supreme Court of Canada. That’s the common law that we have today. He won the case, as traumatic as it was for him. Yet, you are still being charged. And that’s just an example.

You have this multiplicity of issues. The fact you were not consulted and were refused consultation with respect to the re‑look at the Fisheries Act seems to me damning. I don’t want to shed a bad light on it because we will do everything we reasonably can here, but it just seems to me that the door is being slammed a great deal in your face. And I don’t appreciate it. I’m sure no reasonable public servant would either. I have the highest regard for them. There is something wrong here.

You are the most patient people I have ever seen. You keep coming back and coming back. I’m not sure you are getting what you want. Some of these requests, like, for example, the Largemouth bass. We have a series of problems with the Atlantic salmon, everything from seals — but Largemouth bass, there is a market for them. It would be excellent for the Indigenous population in that area to fish them. It would help bring back the Atlantic salmon, but that has been denied as well. I didn’t mean to go on at length but you can make some comments if you will.

Mr. Ginnish: I would like to share with you, senator, that there is actually movement on the striped bass in the Miramichi. Our community in Natoaganeg has been given a licence to fish 50,000 fish this year as part of a response. We have been banging on that door for a number of years. Like anything, you have to be persistent. If you go away, you will not accomplish anything.

That has certainly been the case in our relationship with Fisheries and Oceans.

Many of our communities had signed interim agreements as part of the Marshall decision in order to improve the lives of our members. The intent was always to have further discussion to lead to treaty fisheries and achieve a moderate livelihood.

Take our community, for instance, where our after-tax family income is $25,000. If you go two minutes down the road, it’s $52,000. There is a huge disparity in terms of our communities being able to rebuild our economies. When you are funded solely through social programming and you are being denied access to an area that can enhance your community, it is maddening and insulting.

In our case, in 2025 it will be 300 years since our treaties were originally signed. We have long memories and lots of patience. In our case the patience is running out. We have been knocking on the door of Fisheries and Oceans for 15 years for access to other commercially lucrative fisheries. We are going to send out a crew this year without a quota to fish snow crab. We have a licence. We have no quota. We have been banging on that door for a dozen years.

Senator Mockler is well aware of what we have put forward in this regard. You try to negotiate in a peaceful, logical, reasonable manner, but our people are suffering. Poverty is their day-to-day reality.

I know I’m a little off topic here, but food security — 40 per cent of our First Nations in Atlantic Canada — of the 11 communities that worked with the University of Ottawa and University of Montreal — that is a study. That has been done. It’s not made up. You have the information there that shows how our communities are struggling, and what they need to be part of the Canadian economy to give our members meaningful work and opportunity.

We continue to make those arguments, and our chiefs do as well, that we want the opportunity. Give us the opportunity. Work with us. That’s what we’re asking, and that’s what we continue to ask until we move from where we are, further up, and our people feel they have the same opportunities that every other citizen of this country would feel that they have.

Mr. Maud: I want to echo my colleague. In Treaty 2 Territory, it has been very challenging for our people who are practising their inherent rights. Right now the pickerel are spawning in some of our creeks. Treaty 2 has been working with Manitoba Sustainable Development for our people not to be charged.

Our people, for the most part, practise sustainability. They try not to take the spawners, the large females, those that produce a lot of eggs.

It has been a real challenge; 40 to 50 per cent of our people are on social assistance. Now, while the fish are spawning, they use a rod and reel, and they feed their families. At the same time, in other years the province laid a lot of charges. We’re fighting an uphill battle.

There is a bit of talk about traditional knowledge. Some of our elders told me, and they told conservation officers in Manitoba, that we’re not going to clean out this one lake where our people go to fish for sustenance right now. We won’t clean out the lake.

As a matter of fact, last year we created a solution naturally. We collected the eggs from the female and the male. He has an incubator. We took half a million eggs, incubated them in his hatchery and brought them back to Dauphin Lake. We created a solution.

I wanted to highlight one of our communities, Skownan First Nation, my home community. It’s one of the nine communities of Treaty 2. Waterhen Lake, where my brother and 22 other treaty fishermen, five Metis — it’s the first eco-certified lake in North America. It’s the best-managed lake in North America, and also the best product, pickerel. Our fishermen have been practising sustainability since they were born, and their grandfathers and great-grandfathers. It’s well managed. They abide by some fishing quotas, but they have never overfished it. They restock and clean the lake. In 2014 it was recognized by the Marine Stewardship Council as being the first eco-certified lake in North America. Now two adjacent lakes are also eco-certified.

Our people know how to sustain a resource. Our Treaty 2 people have this knowledge. In this and other acts, there has been a failure to consult. I learned about these amendments just two months ago. I went to my first meeting. As I said, I live beside Waterhen Lake. My brother is a commercial fisherman. It’s the best-managed lake in North America. It’s managed by 17 treaty fishermen and five Metis fishermen — 22 fishermen.

Our people — our elders and our fishermen — know about sustainability. It’s inherent. They are the stewards of the land. They don’t overfish.

I wanted to bring that up and highlight one of our communities, Skownan First Nations. As I said, they have the first eco-certified lake in North America.

Our people are knowledgeable in the practices that have been passed down from generation to generation, and it will continue. However, there are projects and invasive species that could threaten our lake.

We are working with the feds and the province to combat invasive species. Treaty 2 is a good partner. We will sit down with you and with the Province of Manitoba. We will sit down with our non-Aboriginal neighbours and work out agreements. I thought I would share that.

Senator Campbell: Welcome. I’m glad to hear that there may be a solution to the striped bass issue. Thanks to a senator from New Brunswick, I visited Miramichi. Clearly, being from the West Coast, there are difficulties there. The sooner that happens, the better.

My question is: “shall” or “may”? Do you find any harm in it just being “shall,” period, end of the conversation? In fact, all of the stuff that Senator McInnis talked about — the Marshall and Sparrow decisions — they are ignoring you anyway, seriously. They are ignoring the Supreme Court. The government regularly ignores the Supreme Court.

What happens if we add “shall” to this? What is the downside? There is no downside from your side. I have yet to have anybody explain to me the downside from our side.

Mr. Teegee: I don’t think there is a downside considering the fact that First Nations are knowledge holders, they are sovereign and have autonomy. I think what was alluded to earlier by my colleague Ken is the wording “shall” is in there. To me, it’s a commitment. It’s a commitment from the government to include First Nations in the decision-making process. I believe that what Ken said earlier, that there will be provisions to make sure if it is proprietary knowledge that it is protected. I think more importantly it is part of the declaration in terms of the commitment to free, prior and informed consent where you shall have inclusion of First Nations. I don’t see that there is a downside either, so long as there are protections for the First Nations to make their decision to have that proprietary knowledge protected.

That’s just my opinion. I agree with you.

Senator Campbell: I just have one last comment. This idea that there is no offshore fishing, I would invite everybody to check out the Haida, Coast Salish — these are whale hunters who went way offshore. There is knowledge there. It may have been lost, I agree, but I don’t think it has been lost. I think it has been passed down. It may just not be in the normal way. In the West Coast, offshore is where you go for whales. That’s where you go.

Senator Poirier: A lot of the points that I was going to talk about have already been addressed. I wanted to highlight a couple of items. In your presentation, Mr. Ginnish, you mentioned that the new definition does not recognize Mi’kmaq fisheries. Again, we heard from most of all the witnesses tonight, like we have in the past, from quite a few different groups that there was absolutely no consultation on the new definition in Bill C-68.

Also, Mr. Maud, you mentioned in your briefing comments like: “We expect that the proposed fisheries act Bill C-68 will provide protection not only for today but lasting many generations to come.” The wording tells me that you may have concerns that it may or may not happen.

Also concerns where you asked — on page 3 you mentioned : “We ask the Department to point out where that evaluation is in error.” But we don’t see that you’ve received a response to that.

The words also in another paragraph: “However, our inherent rights must be respected and the duty to consult must be doing all that.”

My colleague Senator McInnis said you have the patience, you do have a lot of patience. I want to say we hear that very clearly. At the same time, you also mentioned in your briefing that the bill is generally positive, an improvement and we must not delay its passage.

I guess my comments were not merely a question, but I would like to hear from any of you who would want to respond. Even though we want this passage, I feel from what I’m hearing is there is a disappointment at the lack of consultation. There is a concern over lack of things in the bill that would recognize Indigenous fisheries. Am I hearing this right?

Mr. Maud: Yes, you are, senator. Like I said, I only became aware of these amendments a couple of months ago. We haven’t had a chance to take this back to the community. There are nine Treaty 2 First Nations. It has to be translated into Ojibwe. Ojibwe is the mother tongue of most of our nine First Nations. I’m not a fluent speaker. I lost it at residential school. I’m a survivor. I can’t go back home and translate it.

That’s why I’m saying. A duty to consult, you must have language speakers who can translate — there are words that cannot be interpreted from Ojibwe to English and vice versa. For example, the word “surrender,” there’s no translation for the word “surrender” in Ojibwe. The only understanding of the word in Ojibwe is when you give up in war — when one side gives up. A lot of words have different meanings. Even the word “shall.” You try to explain that to our elders and you might get two or three different answers in our Ojibwe language. That’s the truth.

Being patient, really, we’ve been patient. That’s one of our virtues. Our people need to be consulted. Our people need to be told in the language. Like I said, it’s finding our elders. They want to participate. When I get back and, of course, I have to find a speaker that can translate in the language. Yes, the duty to consult must happen. It’s paramount. It’s paramount to moving forward.

Senator Poirier: Thank you.

Mr. Ginnish: I would add to that. The duty to consult in regards to our Aboriginal treaty rights is different than when government may be consulting a stakeholder. There’s a legal duty to do that. There’s a legal duty to do it meaningfully. That doesn’t always happen. In this case, we would say there was limited consultation. We were able to send in a couple of written briefs. We never got a chance to really sit down and thrash it out, discuss what it really means to us and what we think should be included.

What we would hear is that time is an issue, money is an issue, it’s hard to get everybody together, it’s hard to spend the amount of effort. From our perspective, we would say where it’s rights‑based and affecting our rights, we have to. That has to happen at that higher order. That’s why we take every opportunity like this to over-share because we don’t get these opportunities all the time to let the government know at this level what it is that we’re actually experiencing, what the challenges are. Even when we meet with provincial governments in regards to areas that they hold jurisdiction over. There are so many challenges, so many tables that we’re trying to deal with.

In New Brunswick we have a rights-based table. Fisheries is one of those tables. It’s one of the most challenging tables. Yet we have committed negotiators at that table on a regular basis and we’re still having difficulty moving the ball forward.

Mr. Paul: The AFN is not a rights-based organization, we don’t do consultation, we’re not a rights holder. I need to acknowledge that this whole process started in 2016. While there seems to be a disappointment around the consultation with First Nations where a lot of the issues seem to be focused on section 35 rights, which are Aboriginal treaty rights, that those aren’t being respected and protected. Hopefully that can be put in here or consistency with the United Nations declaration. But this whole exercise under this current federal government was really reparations for what had happened under the previous federal government that didn’t do any consultation and passed laws gutting environmental protection and protection of fish habitats under omnibus bills.

We know there’s been an unprecedented engagement on this point. On the consultation part of it, our rights holders will determine what level they need to be engaged. It comes down to the emphasis on section 35 in the Constitution Act and making sure those rights are protected.

Senator Poirier: Thank you.

Senator Christmas: I realize our time is limited, so I have one question to Chief Ginnish.

Chief, you had mentioned in your comments that it’s 20 years after Marshall. You pointed out how the definition of Indigenous fishery doesn’t include the treaty fishery, the moderate livelihood fishery, but you just mentioned that you are at a rights negotiation table.

Could you expand on what’s happening at that table? What is being negotiated? Are Mi’kmaq treaty rights about the moderate livelihood fishery? Is that being discussed, and are you satisfied with that discussion?

Mr. Ginnish: In regards to the bill, the one issue that our group had raised was the definition of Aboriginal fishery, only to replace it with a definition of Indigenous fishery, which we think is limited in the bill.

As far as the table that we have in New Brunswick with the Mi’kmaq, we’d signed a framework agreement with Canada. We are looking at a number of tables so that we can implement rights. We do not agree with termination clauses. We do not agree with giving up land. But we need to be able to have access to fisheries and natural resources so that our people can make a moderate livelihood without being charged for trying to exercise their rights. Right now, that is a challenge.

The federal government, our communities and the province are at that table. Some of those tables move a little faster. Parks Canada seems to be the one table that everybody can work with and are really making great strides. As far as fisheries, there are challenges because from our perspective, we need to rebuild our nations. We need to rebuild our economy.

When you look at the disparity in census data, which is hard data, at where the First Nations people of New Brunswick are — and probably all of Canada — versus the average, we are way behind the eight ball. That impacts so many things, such as health and education. Disposable income is a massive factor in educational success. We need those things in order to grow. It’s a struggle to get support at those tables. It’s a long process, a very incremental movement forward, but we keep pushing. We have a 50,000 striped bass fishery that we hope will begin to remove some of that nasty little predator from our river.

There are other wins we need that can happen at those tables, but they’re very slow coming. They require a lot of time and effort.

Senator Christmas: Thank you, chief, for giving us a window of what’s happening there.

The Chair: Thank you, Senator Christmas. I would like to thank our witnesses for their testimony this evening. Great discussion. I guess to reiterate comments of Chief Ginnish a short time ago, I try my best to give as much latitude as I can, especially when we’re into a discussion. When you have the opportunity to come before us to bring your concerns from the people you represent, I try my best to give you the opportunity to do that. I hope that you got everything you wanted to say said, but in the possibility that you may think of something after you leave here today, feel free to contact the clerk and pass it on as we continue our deliberations on Bill C-68.

I welcome the Honourable Herb Breau, former Member of Parliament who served as Minister of Fisheries some years ago. I understand Mr. Breau has some opening remarks and then we will have questions from senators.

The floor is yours. Welcome.

[Translation]

Hon. Herb Breau, P.C., former M.P., as an individual: Thank you, Mr. Chair. I’m very pleased to be here this evening. Thank you for inviting me. I must say this is the first time I’ve been in the new Senate building, which brings back some good memories. I was a parliamentary observer at the much talked about conference in 1981, and you’ll never guess who I had a conversation with over a break. It was René Lévesque, and he recognized me because he knew everyone in the political sphere. Do you know what he wanted to talk about? He knew that I was Acadian and was from the coast, so he wanted to know why Acadians weren’t concerned about Jersey fishing companies exploiting Acadian coasts and fishers. That’s the first thing he wanted to talk to me about.

[English]

The idea may be of a fisheries policy that is seen as protective of a past era. We all have to understand that those policy infrastructures exist because of conditions in the mid-1960s and 1970s. I was elected as a Member of Parliament in 1968. I’ve seen the evolution of the regulatory infrastructure that you have today. I will comment further it is out of date and in dire need of being completely revamped. It exists not because the people who drafted it or installed it were crazy; it exists because the political culture of the day reacted to the fact that the fishery — I refer mostly to Eastern Canada; I know less about the West Coast. Fishers from the Gaspé coast, the New Brunswick coast, Cape Breton, Newfoundland and most of Nova Scotia were exploited by Jersey companies, British companies and some from other countries. I remember a period when fishermen were still bringing their fish to shore without any idea how much money they would get. In return, they got potatoes, flour, sugar or molasses. That’s what people were reacting to. The political leaders of the day had to act and that transcends political parties. It just happened that there was a realization that some action had to be taken in that regard.

The regulatory regime that we now have is for another time. I’m of the view that there has not been a clear policy on fisheries for the last 25 years. I regret saying that because of my party and some of my friends have been in power during that time, but that has never stopped me from speaking my mind. Even when I was a member of Parliament, I would criticize policy when I thought it should be criticized.

I believe fishery policy today is drifting. It has no cohesion. I would ask you in doing your duty, to look at this bill and send much of it back to the House of Commons and request a complete overhaul of fishery policy. I say that the regulatory regime is out of date; it is full of rules that don’t make any sense. I’m not criticizing the civil servants who have to manage it. Civil servants at DFO are probably the best civil servants that I know in the country; I’ve kept in touch with a lot of them. The Department of Fisheries and Oceans is one of the few departments of government that deals directly with individual Canadians, rather than with institutions, provincial governments or large national organizations. The civil servants at DFO are all good people, very competent, but civil servants are professionals; when there’s a policy vacuum, they have to find something to do and they have to operate with what they have.

I became sensitive to some issues raised in this bill only last summer because I’m in business and my business is in the fishing industry to some extent. I hope to have more business in the future. It came to my attention. I had read about this bill. I spoke to members of Parliament whom I knew, mostly from my party. It was already passed or was just about to be passed. I went and researched what was happening.

I believe there is an attempt in this bill, and you should not be surprised. I believe I’ve been around this city longer than most of you. Not that I’m that old, but I studied this carefully. You should not assume that, as a Parliament, and you are part of Parliament, once you provide a legislative authority to the government don’t assume they are not going to do what they want to do.

Regarding the objectives in this bill, there are generally a few things that I disagree with in terms of strategic objectives. Generally I think there are a lot of good things in the bill. However, there appears to be a creeping up. You should be open to the question, those of you who know about baseball — I don’t know if you know what a back door slider is, but, well, I was not a pitcher but I know what a back door slider — and there is a back door slider in this bill. First of all, the preamble, I say respectfully, should be taken out of this bill. The preamble attempts to link the clause that we put in the Constitution. I was a member of Parliament when the Constitution was repatriated. I participated in the debate. I was not a member of the committee, but I studied that very carefully. I know how section 35 came about. There was never any intention at that time by any parliamentarian I know of who would have dreamed that one day a law like the Fisheries Act would be linked to specifically section 35 of the Constitution.

That may be a good thing. Maybe that’s where you want to end up. It’s not for me to decide alone. If you are going to link all the fisheries programs, as I read the bill, to treaty rights and you give Aboriginal groups just about the same status as the provinces and the territories, where the minister will have to have them at the table. Let’s not kid ourselves: I speak with a lot of people in the industry and already in the department they are preparing for this. They are already bringing Aboriginal groups into fisheries management discussions.

I don’t think that was ever the objective of section 35. If you are going to do this, do it openly with a debate where you tell Canadians what it is you want to do and see if it turns out that the people want that. You have to make the difference. I realize that the Prime Minister, in many of the mandate letters he gave ministers and in the case of the Minister of Fisheries, he had to take into account the policy of reconciliation.

Reconciliation is a policy of the government. It’s not a statute and it has no constitutional basis. I’m not a lawyer but I have studied this carefully over the years. A policy of the government does not take precedence over a law, it does not provide statutory power to a minister and I think this needs to be clarified.

Reconciliation in this country with First Nations started a long time ago with John Diefenbaker. It is an objective that we should always strive for. The country generally, as a whole, needs to take into account the aspirations of First Nations and try to better their lives.

I don’t think that means you have to take a sector and involve the management plans of that sector where, basically, what is going to happen is you are going to take from one to give to the other. That’s what is going to happen. That has been happening already.

Following the Marshall decision, you all know the history of what happened. There was a vacuum here. The Minister of Fisheries did not move quickly to come up with a response to the Supreme Court decision. The decision said two things: It said that the treaty signed by some Mi’kmaq people in the 1700s under the French empire had status under the British Empire because it was not a surrender. That was the first part the decision. The second one is the Supreme Court said that Marshall had the right to fish for his own self-sustenance. Those are the terms in the decision.

I don’t think you can extrapolate that it means that it’s a treaty right to fish in the commercial fishery in every sector of the commercial fishery. Now, there was a conflict, a period of difficulty and it ended up in my province. It was very difficult for the people of my province and very difficult for me because I’m an Acadian. I’m an eleventh-generation Acadian. My people, luckily or not, were not deported. Who saved us? It was the Mi’kmaq who saved us. My ancestors crossed the Bay of Fundy when the trouble started and walked up the Miramichi.

The Chair: Please finish your opening remarks. We have senators to ask questions.

Mr. Breau: The concerns I have are these: I think the future of the fishery is taken for granted. The fishery today is profitable in most sectors but it is living because of the advantage of the currency. The currency has been helpful to us.

I have said that the regulatory regime is out of date. The research provided by the Government of Canada is deficient. We don’t search for fish. We have a few research vessels that have people who go to work and work 40 hours a week. That’s not how you search for fish. In countries where they really do research for fish, the research vessels work 18 to 20 hours a day.

We cannot ignore what is happening in the oceans with the seal population. We are all discussing sharing resources. It’s reported that there could be 15 million adult seals between the Gulf of St. Lawrence and up to Newfoundland. Do you realize they all eat about 1,000 to 1,500 tonnes a year? That is 50 per cent of the fish of the highest annual catch of cod. We are not doing anything about that.

A report came out a month ago that said even if the seals were all taken out of the Gulf of St. Lawrence, you wouldn’t have to have Marine Protected Areas. The whole gulf would be a Marine Protected Area because the cod could not come back. You should not ignore that.

Marine Protected Areas are a sensible thing to do, but you cannot delineate marine areas in the ocean like you do on land because in the ocean things change that you don’t see. Species of fish that could be abundant in an area one year can move out and other fish can come in.

You cannot just allow bureaucracy and the normal process to determine what those protected areas are going to be. You have to provide for a process where you are going to ask a lot more questions and where there is going to be more consultation with the industry.

The issue of the fleet separation policy and the independence of fishermen has to be revised. It’s a regulation that doesn’t make any economic sense today. With respect to the fishing industry, you’ve heard from fishermen and you’ve heard from union leaders. I’ve read their testimony; a lot of them, not all of them. Of course they support this, but they are shooting themselves in the foot. Who loses when fresh capital is not allowed to get in your sector? Do you know of any sector in Canada or in the United States in our system of government, a liberal capital society where a sector can grow without fresh capital from outside? That is what this policy says. The fleet separation policy says that a fish plant cannot own a fishing vessel or a licence, but the fishermen can buy plants. Does that make any sense?

The Chair: We are going to have to go to our questions, Mr. Breau. We are pushed for time. Feel free to elaborate on your answers when you get your questions. As I say to senators, we are tight on time. We need succinct as possible questions and, Mr. Breau, succinct as possible answers, please.

Senator Gold: Thank you for being here and for bringing your experience and your commentary.

I have to say, though, I respectfully disagree with you on one aspect of your opening remarks. That is, if I understood, you are questioning the relevance of section 35 or, more broadly, Indigenous inherent and treaty rights to the questions of the regulation of the fishery. I think our understanding of the scope and the depth of those rights have evolved over the years. We have all learned a lot, many of us since patriation and beyond. I just don’t quite agree that it’s not central, in fact, to going forward. I don’t think reconciliation is merely a policy either. But I’m not here to argue with you about our interpretation of Marshall because I want to take advantage of your experience in the fisheries.

You suggested that many of the portions of Bill C-68 should be sent back to the House of Commons, which may or may not be realistic given the time. Which portions in particular would you recommend that we revisit, either by way of amendment, reconsideration or of observations for a continued re‑examination of the regulatory framework for the fishery?

Mr. Breau: I believe the fleet separation policy and the independence issue need to be revised. I think independent fishermen need protection and their communities need protection. The present rule doesn’t make sense economically. They are shooting themselves in the foot because what they are saying is that if a fisherman dies or he gets old, he gets ill and he can’t work anymore, and more and more their children are moving out of those communities — they go elsewhere, to university, get other work — you are restricting his succession. That’s what’s happening. Your restricting his succession from being able to sell that to someone from outside. There is not one sector of the economy that I know that would have such a stupid policy. That’s one that should be revised.

I believe the preamble should be removed, and let me tell you why. You are a well-known lawyer. You know that a preamble doesn’t go in the statute when you pass a bill, but judges will read the preamble. And they do. In my 51 years in this city, I’ve seen judges read these things. Sometimes they are right, sometimes they are wrong. They will read the preamble and say, “Oh, everything about the Fisheries Act is related to treaty rights.” I’m sorry, that’s not the history of Canada’s fishery. I was there when these things evolved; there was never any question of that.

You don’t have to say in the preamble about treaty rights in section 35. They are already there. In some cases, the courts have spoken on it. When the government or Parliament agrees, they are respected or they change the law.

I think to put in the preamble gives the impression that you are getting into a parallel management of the fisheries sector. If you want to do that, I suggest you should have a debate in the country. I’ll participate in the debate. I don’t think it makes sense, considering Canada’s history, but that’s my view. I think who decides what is fair in the country is whatever people, when they vote, and people like you, who are appointed, debate and listen to things and to people and then come to a decision. I don’t think you should accept major amendments to the Fisheries Act with that kind of preamble like that because the preamble has nothing to do with it.

I believe you should ask for a fundamental review of fisheries policy. I hope you asked a lot of questions of the minister when he came before you. I believe they are changing the terms where in the Fisheries Act the minister had to take account of social and cultural factors. Let’s make sure that they don’t say that is the purpose of this because no Minister of Fisheries and no other minister in any department of the Government of Canada in any statute has the power to use his department and the power under his act for social equity. There is no such thing.

I remember the briefings when I became minister, I was not a minister for very long, but I was a member of Parliament from a coastal area for 16 years. Never, ever, when all of the rights that fishermen have today evolved from 1967-68 under Jack Davis, Roméo LeBlanc mostly, and then we had the Kirby Task Force. That’s how it evolved from about 1968 to 1982-83. It was an evolution of rights. Nobody at the time would dare say that any politician could decide that on the basis of social equity, you should have this or you should have that, never.

Senator Wells: Thank you, Mr. Breau, for coming.

I just want to understand the context from which you speak. I know you were minister for a brief time. You also said directly that you have business in the fishing industry. What kind of business in the fishing industry do you have? I would like to get an idea if we are having a discussion about good public policy or personal commercial benefit. Could you enlighten me?

Mr. Breau: I’m here because I care about public policy. That’s the only reason I’m here. I’ve talked to senators. I’m here because I care about public policy. When I’m in business, I deal with the policy that exists.

You are a policy-making body, aren’t you? I’m in the fishing business. I’m in processing. I’m on the verge of being in harvesting. Does that disqualify me from having an opinion?

Senator Wells: Not at all. I just wanted to know the context from which you speak. I also recognize you were a policy-maker as Minister of Fisheries and Oceans.

Mr. Breau: Yes.

Senator Wells: So the basis of PIIFCAF, the Preserve the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries, which began under Minister Hearn in 2006 and affirmed in 2010 by Minister Shea, the two —

Mr. Breau: The fleet separation policy started under Roméo LeBlanc.

Senator Wells: PIIFCAF. It was established under Minister Shea in 2010.

Mr. Breau: Which one?

Senator Wells: PIIFCAF, the Preserve the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries.

Mr. Breau: I think it was linked to the fleet separation, but that all started under Roméo LeBlanc.

Senator Wells: So has fleet separation and the owner-operator policy.

From what I understand, you’re against the owner-operator policy, that an owner of a licence has to be on the water.

Mr. Breau: It’s to simplify it that I’m against it. I think it needs to be reviewed. I don’t think you should change policy. I have never been one to think that you should operate changes to policy by saying you abandon it, you don’t like it. I think it needs to be reviewed. I think there is a reason why it existed. I indicated in my earlier remarks there is a reason for all that.

But as the situation changes. Independent fishermen today are no longer an economic slave of European merchant companies. An independent fisherman today, a lobster fisherman in the Gulf of St. Lawrence, makes $250,000 a year. Good for them. In Nova Scotia this year they make $750,000 a year. Good for them. A halibut fisherman who has his own quota is a millionaire.

You are not dealing with the 1950s and 1960s, when these people needed policy protection. Governments need to intervene in an economy when there is a policy window that says there is a need for change. At one point you don’t need government protection.

I believe the ship separation policy and the independent policy needs to be reviewed. You may want to provide protection for existing fishermen for some time. You may want to mitigate who can come and who cannot come in.

The result of that policy is that today there is no fresh capital going into the fishery. Given the uncertainty of what is going on with reconciliation — an objective with which I agree — I have no problem spending political capital to defend that.

Where I say this is a backdoor slider, this bill, if it was law last year, would have validated the Clearwater decision. Are you familiar with the Clearwater decision? Whether that was a good thing or not, it was clearly illegal. It was un-Canadian and it was against the Constitution, whatever the objective was.

This bill, in my view, is creeping up to a regime where you wake up one day and a minister will say, “I’m taking this away from that and giving it to that.” You can’t have a good policy that way.

Senator Wells: Mr. Breau, you will recall that the current Fisheries Act was established in 1867. It provided the minister unfettered rights to make decisions on allocations and quota.

Mr. Breau: No, sir. That is a wrong interpretation. That is an illusion. I know people say that, and I know that some court decisions have said that. They are all out to lunch.

Senator Wells: With all due respect, if it is a court decision, then it is the law.

Mr. Breau: No. Courts interpret things. I’m sorry; a Supreme Court judgment is not automatically law. I’m not a lawyer, but let me tell you: As a minister, I received briefings about these things. I know people say that the Minister of Fisheries has unfettered power, but the term “minister” in the statute also exists in the Income Tax Act. Does that mean that the Minister of National Revenue can change your tax assessment?

You can accept that if you want. I’m telling you that’s nonsense. The Minister of Fisheries does not have unfettered power to do whatever he or she wants. He or she has to follow custom and convention, and he or she has to follow the rights established by the evolution of the fishery.

Senator Wells: My next question is about your belief that harvesters should be able to sell the licence to a common property resource, a resource that is owned by Canadians. It’s not like a farm, which would be owned by a specific entity that is not the Canadian public.

It’s your belief that a fish harvester who has a licence to fish a common property resource should be able to transfer that to an heir or somehow confer that value that is owned by Canadians to another specific individual? Is that correct?

Mr. Breau: I believe that policy needs to be revised because it restricts fresh capital to come into the sector. I think good policy managers should be concerned about that.

Now, a licence is not property; a licence is a licence. The Supreme Court has said, in the case of quota, that for income tax purposes and for the Bankruptcy and Insolvency Act, a quota is property. Judge Binnie clarified that to say it was the economic result of the fishery from the quota. Everybody knows that quota is common property. That doesn’t mean 36 million Canadians can go and fish. It means that a quota is property.

Now, a licence is not property, but it is something that is renewed every year. A fisheries licence is renewed every year. Unless you have broken the law or violated the policies of the department, it is automatically renewed. It’s the same as your driver’s licence. It is not property, but they can’t refuse it if you follow the law.

Senator Wells: I have no further questions.

Senator McInnis: I come from the Eastern Shore of Nova Scotia. The Eastern Shore is made up of a great number of small communities. For most of them, the backbone is the fishery. The challenge I have with your proposition is that these livelihoods keep the small communities alive. They buy groceries, fuel and half-ton trucks. They do all that type of thing.

The thing I like about this policy — and there seems to be no challenge or difficulty with succession, and sons or daughters these days taking over the licence and the boat. But if we have a situation where large corporations come in and buy up the boats and licences, it wouldn’t be long before those communities would be shut down.

I always believe in the free-market system. I believe that new investment is always nice, but not when it is a great hindrance to the livelihood of those communities. I’m talking about communities because that’s what they are. When we had the downturn of the ground fishery in the mid-1980s or 1990s, people were not buying half-ton trucks. They weren’t the consumers they used to be. But when it came back — and particularly now you can see it in the communities — they are individually owned by families. For corporations to come in and acquire them would be literally shutting down the communities.

That’s my challenge with what you have to say. However, I agree with you on the MPAs, which is not in this bill. You should have been here for Bill C-55. I agree with you; fish come and go from an MPA area and the no-take zones. The fact that you can fish what you fished the previous 12 months — the fishery changes. I agree with you, but I don’t agree with the corporate takeover of these small communities.

Mr. Breau: Neither do I.

Senator McInnis: Well, that was my interpretation of what you said with respect to succession.

Mr. Breau: The people who will buy these quotas or licences are not necessarily corporations, and they are not necessarily large corporations. By the way, large corporations are grandfathered today. Don’t assume for a minute that the people who debate this think you have a choice. The large corporations own the majority of the quota in Atlantic Canada today.

Why? Because they were grandfathered.

Senator McInnis: With respect, the problem is if you have a licence — today, it’s about $1.5 million at least — and there are succession arrangements made with children, the families and so on. If we have a situation where corporations can come in and buy, $2 million won’t be a problem. The licence and the boat will be gone.

Mr. Breau: In this society, are you preventing corporations from buying anything other —

Senator McInnis: No, I’m not. I’m telling you that it is injurious to the small communities in rural Nova Scotia, New Brunswick, P.E.I. and all over. That’s the challenge that I have.

The Chair: Just for clarity, to make sure I’m clear, when you talk about the opportunity to sell a licence/quota that a fisher has, are you saying that should be on the open market, available to anybody, anywhere? Am I reading you correctly in saying that?

Mr. Breau: I think it should be looked at in the view of today’s economy and today’s fisheries economy. There may be some limitations that you want to put on.

What I’m saying is that there is no other sector that I know of in the Canadian economy where you prevent people from doing that. I can go buy a milk quota on a farm. I can go buy other things. Why is it I can’t go buy a fishing licence?

The Chair: I come from a small fishing community in Newfoundland and Labrador. One of the most important things that the people involved in the fisheries find is the fact that they have competition on the wharf from buyers and processors who come and buy their product. They have a licence and individual quotas. Their concern has always been — and this is my version of it — if it’s on the open market, any individual, company or organization that has a large amount of money could come in and buy up all the quotas. In most cases, they’re not the people who are going to be fishing; they’re going to have local people out there fishing the product. There will be no competition for the prices, because they’re going to dictate what the price is.

That’s my interpretation of how the people whom I represent see this. You mentioned to Senator Wells earlier the interpretation of something. We all could interpret the law a little bit different; I’m sure my interpretation of something will be different than Senator McInnis’s. It’s competition at the end of the wharf.

Mr. Breau: What do you say, Senator Manning, about somebody else in that community who would like to buy a licence? He or she is not entitled to buy it, either. Large corporations are not the only people buying things. Individuals can go to the bank and mortgage their homes and buy things. What do you say if somebody in your community wants to buy a licence? You say, “No, you can’t buy it because you’re not a fisherman.”

The Chair: Personally, I don’t think the local dentist should have a fishing licence. If he’s making a living from taking out teeth, he shouldn’t —

Mr. Breau: Maybe there should be limitations —

The Chair: That’s my opinion.

Mr. Breau: I’m sorry, but —

The Chair: We disagree, but I think the people who make a living on the ocean should be the people who hold the licences.

Mr. Breau: Do you prevent a dentist from buying a farm?

The Chair: No, that’s not common property.

Mr. Breau: What’s the problem with —

The Chair: We’ll have to agree to disagree on that one.

Mr. Breau: That’s fine. What I’m saying is that the people who may want to buy that licence or quota is not necessarily a corporation, and it’s not necessarily a dentist. It could be your son, uncle or cousin. Why do you want to prevent them from being able to buy a licence? Most of the people who have licences who are independent today got them for nothing. They got them over the years through their families. Some fishermen are buying licences from others. What I’m saying is you should look at this — I’m not telling you what the policy should be. I understand it’s difficult. I understand that there are issues locally that you want to consider. I’m saying that you have to find ways to encourage capital to come into that sector, because you’re going to end up one of these days, instead of having two or three corporations who are going to own everything, you’re going to have maybe 10 fishermen who will own everything. What’s the difference?

There are historically fishermen — today, I could name some, but I don’t want to name them publicly — who own five, six or 10 licences. Is that good for a policy or a sector?

I agree it’s a sensitive matter. It should be done carefully, with consultation. You’ve got to find a way to allow other people to get into a fishery, including First Nations if they want to go into the fishery.

But to have a regulatory regime that prevents people from going in — first of all, I repeat that some of them are grandfathered today. There are at least 10 large corporations that own multiple boats and multiple licences in quota. You’re not taking it away from them. They’re creating jobs and good product, and they’re improving the GNP of the country.

The Chair: Okay. Thank you for your time, Mr. Breau. You have had an opportunity to express your opinion on a very important subject, and we appreciate that. We thank you for your time.

(The committee adjourned.)

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