Proceedings of the Standing Senate Committee on 
Fisheries and Oceans

Issue No. 46 - Evidence - May 14, 2019


OTTAWA, Tuesday, May 14, 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 6:09 p.m. to give clause-by-clause consideration to the bill.

Senator Fabian Manning (Chair) in the chair.

The Chair: Honourable senators, before we begin, I would like to make members aware that we have government officials here from the Department of Fisheries and Oceans Canada, should any technical questions be raised as we go through the bill clause by clause. I would like to thank the officials for joining us this evening.

If at any point a senator is not clear where we are in the process — and that includes me from time to time — please ask for clarification. I want to ensure that, at all times, we all have the same understanding of where we are in the process.

In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of a clause.

If a senator is opposed to an entire clause, I would remind you that, in committee, the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill.

I would also remind senators that some amendments that are moved may have consequential effects on other parts of the bill. It would be useful to this process if a senator moving an amendment identified to the committee other clauses in the bill where this amendment could have an effect. Otherwise, it would be very difficult for members of the committee to remain consistent in their decision-making.

If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to the argument, decide when there has been sufficient discussion of a matter or order and make a ruling. The committee, as always, is the ultimate master of its own business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.

As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend upon your cooperation, and I ask all of you to consider other senators and to keep your remarks to the point and as brief as possible.

Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which obviously provides unambiguous results. Senators are aware that any tied vote negates the motion in question.

I’ll remind senators that we are sitting until 8 p.m. We have, at the present time now, 50 amendments on the table. We will begin where we should, at No. 1, and work our way towards the end. We’ll see what happens.

Are there any questions before we start from any of the senators? Hearing none, I will proceed.

Is it agreed that we proceed to clause-by-clause?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 1 carry? Okay. At our disposal, we have five amendments to clause 1, so we’ll begin with Senator Poirier.

Senator Poirier: Thank you, chair.

On clause 1, page 1, I move:

That Bill C-68 be amended in clause 1, on page 1, by replacing lines 18 and 19 with the following:

fish habitat means any area on which fish depends directly or indirectly to”

Can I speak on it at this point? Do you want me to start over?

The Chair: I heard your amendment. Would you like to comment?

Senator Poirier: Yes. As you all are aware, the committee heard evidence from witnesses that by including “water frequented by fish” in the definition of fish habitat, it would result in locations that are not essential for the fisheries life cycle process to become subject to the act. According to stakeholders such as the Saskatchewan Mining Association, the proposed addition to the term “water frequented by fish” into the definition of fish habitat significantly and unnecessarily broadens the scope of the act. As you’re aware, we have also heard similar concerns for the definition of the water flow, that it would place an abundance of administrative and operational and financial burdens on industry, municipalities and DFO.

With the amendment to remove the “water frequented by fish,” we maintain the important protection to the essential areas to life cycle processes while having a balance that will not distribute and complicate the work for the different industries, such as mining. By taking out the “water frequented by fish” from the definition, we are achieving the important balance of essential protection to fish habitat while allowing industry to maintain their work and not to overly burden DFO with further administrative work.

Also, the location that may only contain water for a brief period of time would be considered to be fish habitat, and I understand the good intentions behind this definition. But if on the ground it brings more confusion and more complexity for all involved, we have to find the right balance. By removing the “water frequented by fish” and focusing on any area in which fish depend directly or indirectly, we’re bringing more clarity to the definition and how to apply it on the ground. It would allow for a better understanding for DFO on the enforcing of the fish habitat provision and for stakeholders respecting it, and in the end it would allow for the goal of the provision to protect the fish habitat.

The Chair: Senators, any questions or comments?

Senator Gold: I wonder if we might ask the officials to comment on what impact this would have on the objectives of the bill, as they understand it.

Nicholas Winfield, Director General, Ecosystems Management, Fisheries and Oceans Canada: As the senator explained, there are periods of time when fish are present and periods of time when fish are not present. The objective of putting “waters frequented by fish” was to ensure that the scope of the Fisheries Act covered all areas that are used by fish, which was the original intent of the amendments that were put forward, to restore lost protections and incorporate modern safeguards. The intention here is to be holistic in perspective and to recognize that fish use areas seasonally and that those areas require protection when fish are present. They may not require the same level of protection, clearly, when fish are not present.

Senator Gold: One of the complications I have in assessing this is that, with 50 amendments before us, we do have to proceed in the proper order. My brief and quick look at the amendments suggests that there are other amendments that, to some degree, will bear upon the impact of either this provision, fish habitat defined, or the amendment, that may, it turns out, alleviate some of the concerns that underlie the understandable, legitimate concerns of the amendment that’s being proposed.

I’m finding it’s a bit of a dilemma to look at this one in isolation from what we know is coming around questions of water flow, questions of the harm principle, and indeed other things that bear upon fish habitat, including designated projects and how that is being narrowed by the proposed amendment. At the risk of holding things up, I might suggest we might stand this, or at least ask for some comments from those proponents of other amendments so we can understand better how this all might fit together. I’m not sure how to proceed, chair. Sorry, I’m not being helpful.

Senator Poirier: The reality is that all this amendment is doing is bringing a little bit of clarity to the definition and how to apply it on the ground. Any area that depends directly or indirectly — we’ve heard from the witnesses that have come about the confusion and complexity of it, and it was just to get a better understanding. So it’s basically just bringing clarity to the lines that are there so that everybody pretty well understands what it is.

I don’t think it’s causing anything drastic here. It’s just adding, maybe. People had the concerns over the definition of the water and the feeling that it was creating an abundance of administrative and operational and financial burden that wasn’t really necessary. It’s basically bringing clarity to the definition and how to apply it on the ground.

Senator Wells: This is more a general comment on the concern that Senator Gold has. We all recognize this is a good bill. With many of the amendments I’ve seen on all sides or around the table, it will be a better bill. If we were to try to look at each one in the context of what might be to come or what is to come, we would probably stand all of them, which I don’t think would serve anyone’s purpose. That’s it. Should these individual amendments proceed or not proceed, there’s always time if they do run afoul of something else that’s stated further on in the bill that could be amended at third reading.

Senator Gold: No, I understand that. That’s why I said it’s a dilemma. I certainly would be the last one to want to slow things down. I’m just concerned when the official says this narrows at least what the intent was, and we know that the legitimate concerns we heard, loud and clear in the committee, purport to be addressed by a series of amendments. My concern is that this may prove to be unnecessary in light of the others. I’m in the hands of the committee, obviously, but I’m a little unsure about whether I can support this or not, knowing it may very well narrow the act unnecessarily in light of the other amendments. I won’t say another word.

The Chair: We’re here to discuss it. Any other comments?

Senator Poirier: Basically, I just want to keep adding that the concerns came from the mining associations, and it placed an added abundance of work on their part that wouldn’t be necessarily — again, I don’t see what the big issue is with it when it’s just bringing clarity to the definition of what’s written there and avoid some confusion. I want everybody to keep that in mind while you’re making a decision whether to accept the amendment or not. It is, again, bringing clarity to something.

The Chair: No more comments? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yes.

Senator Gold: On division.

The Chair: On division.

Our next amendment. We’re still on clause 1.

Senator McInnis: Clause 1, page 1.

I move:

That Bill C-68 be amended in clause 1, on page 1, by replacing line 22 with the following:

“areas. It does not include artificial agricultural structures; (habitat)”

Having said that, there may not be a need for this amendment.

We, as a committee, heard from a number of groups, particularly the Canadian Cattlemen’s Association, the B.C. Cattlemen’s Association and the Canadian Federation of Agriculture. We had three individuals here Thursday morning that represented some 325,000 ranchers, farmers and so on. What this amendment could be titled is dealing with man-made agricultural structures, things like drainage ditches, reservoirs, irrigation channels and what farmers call sloughs, that don’t have fish habitats.                     

When I make the comment about how there may not have to be an amendment, let me quote this. They got this from the law clerk. This is dealing with certain regulations that are there now:

These regulation-making powers and ability to develop codes of practice have been available to DFO since 2012, and yet have not been utilized. As such, the Canadian Cattlemen’s Association is requesting that either the Governor-in-Council wait to have those prohibitions under section 35 and section 34(4) go into effect until the appropriate regulation is developed; or the Governor-in-Council is going to have the prohibitions go into force before the regulation concerning agricultural infrastructure and activities is ready; that a regulation exempting all activities go into effect concurrently with a prohibition into effect.

This is to say that the legislative authority to accomplish this task already exists and that what the Canadian Cattlemen’s Association is asking for is that the government engages in regulation-making process and do so in a specific way. Basically, the vehicle is there to do it.

Minister LeBlanc, in dealing with the Cattlemen’s Association, told the Saskatchewan members during a meeting that regulations would clearly define agricultural exemptions.

Still quoting:

We also encourage our government to fulfill its commitment to clearly define provisions for agricultural exemptions under the regulations and that these exemptions apply to small and routine farm projects.

What I’d like the officials to do is, as opposed to doing what you were suggesting in the act, that you comment on the mechanism of using the regulations to accomplish this and that you do so in concert with all of those groups out there that are concerned about this.

Mr. Winfield: You’re absolutely correct that the act currently has something called codes of practice that allow the department to develop standards for things like agricultural practices that would not require proponents to seek authorizations or permits under section 35. You’re also correct that there are regulation-making authorities that can exempt certain types of activities from the general prohibition.

In terms of the government’s intention to develop such regulations, we do have that intent to do so, but I cannot give you specifics in terms of timing. That’s not within my power and control. This is the direction we’ve been given by the minister to advance these things, to advance codes of practice and to address the very issue that you have raised.

Senator McInnis: Is there any idea of a time when this might occur? Just because you had the authority to do it in 2012 doesn’t mean that it was a top priority. When do you see this happening?

Mr. Winfield: The intention is to develop this within the first year of coming into force.

Senator McInnis: I take your word for that. We have you on the record as saying that. I’m not sure, then. If that is the case, I’m not one for laying on extra laws when you don’t need them or when you already have them. You have the ability to do it. We’ll take your commitment that sometime over the next 12 months —

Mr. Winfield: Beyond my words, Minister LeBlanc has also said it, and Minister Wilkinson has gone on the record as stating this.

Senator McInnis: Thanks so much.

You can withdraw this.

The Chair: On top of the page, DC-1.2 is the one we’re looking at now.

Senator Christmas: I move:

That Bill C-68 be amended in clause 1, on page 3, by replacing lines 6 to 9 with the following:

“members pursuant to the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, or for any purposes set out in any rights implementation measures agreed to by the Crown and Indigenous people.”

Mr. Chair, that particular clause is basically from Bill C-91, the Indigenous languages act, and I’m moving that we take the non-derogation clause from Bill C-91 and replace the one that now appears in Bill C-68.

The Chair: Any other questions or comments? Seeing none, is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: The next one is Senator McInnis. It’s TJM-CPC-1.2.

Senator McInnis: This is one of those ones I think I heard you say —

The Chair: If somebody doesn’t have a copy of the amendment for any reason, make sure we know.

Senator Gold: I don’t think I do.

Senator Busson: I don’t have one either.

The Chair: We want to make sure every senator has a copy.

The floor is yours.

Senator McInnis: Thank you so much. This is one of those ones, I believe I heard you say earlier when laying out the rules, that deals with a couple of clauses, one a little later on.

I move:

That Bill C-68 be amended in clause 1, on page 2, by adding the following after line 29:

Incidental take means the death of a fish caused by the normal operation of a work, undertaking, activity or designated project that was completed before the coming into force of this definition and was, at the time of its completion, authorized by law; (prise accessoire)”

And then there’s another one that deals with incidental take, if I may, and that is clause 25, on page 27.

The Chair: Hold on. This amendment first.

Senator McInnis: You want to deal with that? That’s fine.

Senator Gold: Chair, with your indulgence, it would be helpful for Senator McInnis to tell us what this is tied to later on.

Senator McInnis: I’m sorry. Later on?

Senator Gold: No, I’m agreeing with you when you’re pointing ahead so we understand the significance of this.

Senator McInnis: I also move:

That Bill C-68 be amended in clause 25, on page 27, by replacing lines 27 and 28 —

The Chair: Hold on for a minute.

Senator McInnis: It basically deals with —

The Chair: You can only move one at a time. Just tell us about the last one.

Senator McInnis: Sorry. This one is dealing, as I said, with incidental take. We heard from the Canadian Electrical Association and a number of other individuals dealing with this. The challenge they have is that facilities have been built and approved based on the review of the day, with an understanding that:

There is no zero mortality from very few of our facilities. We understand what that is. We monitor what that is. We tend to feel it’s appropriate. If something unusual occurs and there’s an unexpected mortality of fish, it is actually a signal or a symptom that says we need to investigate this further. With the wording proposed in the bill, it would basically suggest that if you see one fish every day, you should call the emergency number and go through all of the steps. It would be an administrative burden with very little gain because it’s already understood.

That was from Manitoba Hydro, but Canadian Electricity Association also agreed with this. That’s the challenge they have.

The proposed subsection 38(4) creates a duty to notify of the death of any fish in any circumstances. These should be clear exemptions to this obligation, particularly where the death of fish is part of the incidental take associated with the normal operation of long-existing facilities.

Many of these plants have been in operation for many, many years.

So that is what I move.

Senator Gold: Thank you for the explanation.

The Chair: Any questions or comments on Senator McInnis’ amendment? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: We are getting some amendments that are very close to each other. Some amendments may be dealt with down the road through some government amendments, so we will talk about that after we finish clause 1.

Right now, we have amendment PH-1.3, Senator Harder.

Senator Harder: Thank you very much.

I understand from transcripts and seeing the committee reports that you heard from numerous witnesses that the addition of 2.2 is problematic and creates uncertainty, particularly in the agricultural context, due to the lack of clarity. This motion repeals the house amendment to designate water flow as fish habitat and reverts the clause to its original form in the House of Commons.

As the Government Representative in the Senate, you recall during second reading debate that I committed to this change in response to Senator Plett’s comments. I’m now fulfilling that commitment with the amendment you have before you.

I move:

That Bill C-68 be amended in clause 1, on page 3, by replacing lines 10 to 15 with the following:

“(10) Subsection 2(2) of the Act is repealed.”

The Chair: Any questions or comments?

Senator Poirier: I’m not sure exactly. You will correct me if I’m doing this procedure the wrong way. I would just like to say a few words on Senator Harder’s amendment on the water flow. I have my own amendment that I drafted on the water flow amendment, which is very similar. There is not much difference from yours, senator. The big difference is just really wording. Mine was using the word “deleting” instead of the word you were using. The reason I was doing it as “deleting” is because we’d heard from so many different witnesses over the amendment that was brought in at the last minute at the House of Commons. As you’ve said, the committee had not dealt with it at the time in the House of Commons, and it got passed.

I don’t want to repeat, because I don’t know if I have to re-put an amendment after yours to change the word, if I would prefer to see it deleted. I’m not sure what the process is. But I do agree with you: It is one that we need to address, one way or the other, because I don’t think there are many witnesses that we heard through the whole proceeding that didn’t bring that comment up. I don’t know if you would be comfortable, senator, to use the word “deleting” from 10 to 15, which would be removing it completely. That was brought in. I would have preferred to see that. If that would be the case, it would kind of scrap my point in doing the amendment. I am open for discussion at this point.

Senator Harder: Let me respond —

The Chair: And then we will hear from officials.

Senator Harder: I can tell you that the amendment I’m bringing forward is one that has the advice of the Department of Justice lawyers as to how to exorcise the amendment to achieve the objective that I think we both share. This amendment has the support of the government, and I would encourage the committee to accept that.

Mr. Winfield: I concur that the repealing is the same as removing entirely section 2.2. So you are agreeing.

Senator Poirier: It has the same effect?

Mr. Winfield: Yes.

Senator Poirier: Then I am comfortable with that. If you are telling me that “deleting” and “repealing” would have the same effect — that it completely takes it out in answer to all the witnesses we have had — then I am comfortable with that. I think the main thing is that we do it.

The Chair: Any other comments? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

Senator Christmas: Are we finished with clause 1, Mr. Chair?

The Chair: We are getting there, as soon as I ask the question.

Shall clause 1, as amended, carry?

Hon. Senators: Agreed.

Senator Christmas: Just to address the situation, there is the comprehensive package of government amendments on flow and designated projects, and many of those would compete with some of the amendments that are on this list. To speed things up and to make sure that we do things in the proper order, I would move that we proceed to review the government amendments in light of what we have just gone through.

Senator Wells: I prefer we do this in the normal order and not assume that the government amendments are the ones that are better than any of the individual amendments we might have.

Senator Poirier: I agree, too. We need to do this as we usually do clause-by-clause. To me, all amendments are important. To say that we are moving some ahead because they’re more important, I totally disagree with that. We are members of this committee who have sat through quite a few committee meetings with a number of witnesses. The amendments we are bringing forward are based on what we heard, and I feel that we have the right to have our voices heard in a fair process going through clause-by-clause.

Senator Gold: I agree with everything you said. I don’t think that was the intention behind Senator Christmas’s observations. It may be difficult. We would actually have to stand a whole bunch of amendments.

If I might make a suggestion, again at the risk of being the one to slow things down — and that is hardly my desire with this bill or any bill, quite frankly, before us — but would it be in order to ask for a two-minute overview from the Government Representative in the Senate as to what amendments we will see later in the process so that all senators know at least — these reflect commitments the government made in response to the testimony. So I agree that it is not a question of thinking one is better than another, but it would be helpful for me to know what changes we know are going to be accepted.

The Chair: Just before I go to Senator Poirier, Senator Harder has proposed 20 amendments. I’m not sure he can explain them in two minutes. We will see what he says in a moment.

Senator Poirier: I think the amendments from the government — we received them ahead of time, like we tried to send ours so you could have a little bit of time to look at them ahead of time also.

I’m sorry, but I feel that all amendments are important. I feel that it is the members who have been participating in the Fisheries Committee over the last few weeks — long hours — to listen to all the witnesses that we had. I feel that all of our amendments are as important as the government ones being made. We are part of the body, and our job is to look at the bills when they come from the House of Commons, study them, accept them as is or change them to what we feel needs to be done. In fairness, it is important that our amendments are given the same, appropriate consideration and time as the government ones. That’s my position.

The Chair: Senator Christmas?

Senator Christmas: I apologize to my colleagues Senators Poirier and Wells. It was not my intention to not allow you or permit you to speak on your particular amendments. It was knowing what was ahead, knowing that if we had the opportunity to hear what the government amendments were, that some of yours would be addressed in that process. It was more for efficiency and saving us time and energy, but my intent was not to take away your time.

Senator Poirier: If some of mine are similar to the government amendments — we are all human here. I just agreed with the one by changing a word. I said I had the amendment and there was not much difference in it, a little bit, and I stated the difference, and I agreed. I am hoping that, going forward, that will happen. And I hope if some of mine are similar and I go first, you would agree and vice versa. I thought we were here to work in consensus and to work fairly.

The Chair: Any other comment?

Senator Wells: Senator Christmas, you make a good point. You know, it might save some time, but we also all have to recognize that all of the senators and all of our staff have worked a significant amount of time putting these together. I think that bears some thought as well.

The Chair: We have a motion on the floor. Your motion still stands?

Senator Christmas: Yes.

The Chair: We have a motion on the floor. Any other comment? I want to make sure everybody has an opportunity to comment. Okay, all those in favour of the motion of Senator Christmas, please raise your hand?

Senator Gold: What was the motion exactly?

Senator Christmas: I moved to proceed with the government amendments.

The Chair: Does everybody understand the motion that Senator Christmas has put forward?

Senator Christmas: Maybe I should clarify that. What I was driving at is the government amendments that dealt with water flow and project designation. Those were the two commitments by Senator Harder, that he would introduce these, and I understood from the testimony that we’ve gone through that quite a bit of the testimony was directed toward those two areas. I thought it would save time to go to those two groups of amendments, hear them out, and then we could go through other amendments in their natural order.

The Chair: Everybody can express their opinion, but we have a motion on the floor. Any other comments on Senator Christmas’s motion?

Senator Campbell: I’m just trying to understand the difference that would make in what we are doing. I don’t understand. We have a process to follow here. Why would we jump here and then come back? And what happens if you end up with two amendments like Senator Poirier and Senator Harder had that were the same thing and all you have to do is agree? I don’t understand. If there is an advantage of going and doing all the amendments from Senator Harder, I don’t have any problem with that. I just don’t see the advantage. We are going in a logical order here.

The Chair: Any other comments? Does everybody understand the motion that Senator Christmas put forward? All those in favour of Senator Christmas’s motion, please signify? All those not in favour of Senator Christmas’s motion?

Chantal Cardinal, Clerk of the Committee: It is defeated.

The Chair: We will proceed as we have been doing.

Shall clause 2 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 3 carry? For everybody’s information, it is RMP-CPC-3.3B. Got all that straight? And that’s in English.

Senator Poirier: Ready to go?

The Chair: Everybody have a copy? Go ahead.

Senator Poirier: I move:

That Bill C-68 be amended in clause 3, on page 3, by replacing lines 22 and 26 with the following:

“2.1 The purpose of this Act is to provide a framework for the proper management and control of fisheries, having regard to the need for conservation and protection of the fish and fish habitat, including by preventing pollution.”

The reason we are doing this is the committee heard evidence from witnesses that the current wording in the bill in section 2 proposed of the act, 2.1, should be slightly changed.

2.‍1 The purpose of this Act is to provide a framework for

(a) the proper management and control of fisheries; and

(b) the conservation and protection of fish and fish habitat, including by preventing pollution.

As currently written, the proposed statement of the bill establishes two different causes, one being an objective to manage the fisheries as a resource while the other may be interpreted to conserve and protect individual fish. If not corrected, this language will create conflict between the purpose of the act and the reasonable authorization by DFO —

The Chair: You need to slow down a little bit so they can keep track of what you are doing.

Senator Poirier: Okay. If not corrected, this language will create conflict between the purpose of the act and the reasonable authorization by DFO of productive activities that may incidentally kill or harm fish or fish habitat, needlessly creating scopes for legal challenges.

This amendment would be one to clarify, again, the purpose of the act. We have heard from Manitoba Hydro and the Canadian Electricity Association, where they both recommend to combine the two clauses together so that the objective of the act is clearer. The stakeholders in question had requested the words “with due consideration,” but upon the advice of the law clerk, it is preferable to go with “having regard” as it is found across a number of acts already. By having both clauses combined, it avoids the interpretation of the protection of individual fish — rather, of the fisheries as a whole. I believe this is a straightforward amendment to bring clarity to the objective of the act for all involved. It’s minor changes but it would bring clarity to the whole act completely.

Senator Christmas: Could I have the comments of the officials on that amendment?

Mr. Winfield: The proposed amendments in the Fisheries Act are to recognize two distinct purposes of the act. One is to protect fisheries as a resource for extraction and exploitation purposes, and the second is to protect fisheries as a public resource for conservation purposes. There are many stocks of fish that are not harvested for fisheries purposes and, for that reason, protecting them and their habitat was included in the purpose of the Fisheries Act.

Senator Gold: Senator Christmas asked my question. We, of course, did hear testimony to this effect, but my question would have been, is it just a minor clarification or does this actually change the purpose of the act as it was introduced by government? I think your answer is that you see this act as having two distinct purposes and this amendment would compromise those separate purposes?

Mr. Winfield: That’s correct.

The Chair: Any other questions or comments?

Senator Poirier: Just, again chair, from my understanding and from the witnesses, the stakeholders that seem to have concerns about this, they felt that this amendment would just clarify the objective of the act and make it a little bit clearer. It needlessly would create scopes for legal challenges, and so they felt that this would be easier for them overall. I just wanted to put that on the record. As Senator Gold said, it was something that we did hear from witnesses two or three different times during the witness proceedings.

The Chair: Any other comments? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Chair: Honourable senators, we will now be proceeding to a roll call. The clerk of the committee will call members’ names beginning with the chair and then going in alphabetical order, and senators should indicate whether they vote for or against or abstain. The clerk will then announce the results of the vote. It is my duty as chair to declare whether the motion is carried or defeated.

Ms. Cardinal: The Honourable Senator Manning?

Senator Manning: Abstain.

Ms. Cardinal: The Honourable Senator Bovey?

Senator Bovey: Nay.

Ms. Cardinal: The Honourable Senator Busson?

Senator Busson: No.

Ms. Cardinal: The Honourable Senator Campbell?

Senator Campbell: No.

Ms. Cardinal: The Honourable Senator Christmas?

Senator Christmas: No.

Ms. Cardinal: The Honourable Senator Francis?

Senator Francis: No.

Ms. Cardinal: The Honourable Senator Gold?

Senator Gold: No.

Ms. Cardinal: The Honourable Senator McInnis.

Senator McInnis: Yea.

Ms. Cardinal: The Honourable Senator Munson.

Senator Munson: Abstain.

Ms. Cardinal: The Honourable Senator Petitclerc?

Senator Petitclerc: No.

Ms. Cardinal: The Honourable Senator Poirier?

Senator Poirier: Yes.

Ms. Cardinal: The Honourable Senator Wells?

Senator Wells: For.

Ms. Cardinal: Abstain, 2; yea, 3; nay, 7.

The Chair: The motion is defeated.

Senator Christmas has a motion titled DC-3.4.

Senator Christmas: This is clause 3, page 4.

I move

That Bill C-68 be amended in clause 3, on page 4, by replacing lines 7 to 11 with the following:

“2.3 This act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.”

I made an error before in my previous amendment. This one was the one on the non-derogation clause, and this is borrowing wording from Bill C-91, which is, we believe, a much-improved version. We replaced the one that appears now in 2.3 with this one from Bill C-91.

The Chair: Thank you, Senator Christmas. Any other comments? No other comments? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 3, as amended, carry?

Hon. Senators: Agreed.

The Chair: Shall clause 4 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 5 carry?

Senator Christmas, you have an amendment on clause 5, DC-5.6.

Senator Christmas: Clause 5, page 6.

I move:

That Bill C-68 be amended in clause 5 on page 6 by adding the following after line 25:

“(9) An agreement entered into under subsection (1) must respect the rights guaranteed, recognized and affirmed in section 35 of the Constitution Act, 1982.

This particular section allows the minister to enter into agreements in various areas. As you may recall, we heard testimony from Indigenous leaders that one of the areas that the minister should have the power to enter into agreements with are those in recognition of section 35 rights. In particular, the testimony we had was the chiefs from the maritime region, which were referencing moderate livelihood. When those tables finally come to an agreement on those rights, this would be the section those agreements can be plugged into.

The Chair: Any comments or questions on Senator Christmas’ amendment? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Shall clause 5 carry, as amended?

Hon. Senators: Agreed.

The Chair: Before we go to the next question, I would ask, with leave, is it agreed to group clauses for which we have no amendments identified in the road map? As an example, we go from 6 to 8, and we have no amendments, so I just ask, can we do 6, 7 and 8.

Hon. Senators: Agreed.

The Chair: Just to hurry things along.

Shall clauses 6 to 8 carry?

Hon. Senators: Agreed.

The Chair: It may be a poor choice of words in saying, “hurry things along.” To advance the agenda. Our sober second thought.

Shall clause 9 carry? I understand Senator Harder has an amendment. PH-9.7a is the first amendment for clause 9.

Senator Harder: I have a series of five amendments to clause 9, which clarifies sections 6.1 and 6.2 of the bill regarding fish stocks and rebuilding stocks. The first is a change to 6.1(2). It is required to clarify that the measures referred to in 6.1(2) are to maintain fish stocks above their limit reference point and not alternatively at their limit reference point.

The Chair: Excuse me, Senator Harder. I want to make sure we’re doing one amendment at a time, and our first one is PH-9.7a.

Senator Harder: Let me simply move:

THAT Bill C-68 be amended in clause 9, on page 7, by replacing line 29 with the following:

“shall implement measures to maintain major”

Senator Gold: Thank you, Senator Harder. Could you explain? This is, I gather, a part of a package? Can you give us a brief idea of what this is addressing?

Senator Harder: I’d be happy to. I’d also welcome those who are more expert than I, which is most everybody. What this series of amendments seeks to do is to clarify the language in the bill with respect to fish stocks and rebuilding of stocks so that there’s a proper understanding of what the obligations are in terms of the reference point limits. It requires a series of technical amendments to accomplish that. This is the first. I’d be happy to hear from officials, perhaps in the context of the group, but I leave that to the chair.

The Chair: To be clear, Senator Harder will be proposing six amendments to clause 9. What I’m hearing from him, and maybe with clarification from the officials, is that all these amendments deal along the same lines?

Mark Waddell, Director General, Fisheries and License Policy: These amendments are proposed to correct logic errors within the text that was introduced in the House of Commons when this amendment was brought. In terms of the first amendment that Senator Harder has already alluded to, “shall implement measures to maintain major stocks above their reference points,” which is consistent with the precautionary approach policy, that we would seek to rebuild stocks above their limit reference point and not to. “To” is also a trigger for when we would require a rebuilding plan, so that is the element in 6.2 that is identified as well. So there’s overlap between those two points at present.

Senator Wells: I’d like to know the significance of removing the word “prescribed,” which is all I see in this change.

Mr. Waddell: “Prescribed” is my understanding — element 6.3 identifies that these stocks will be listed through regulation. So “prescribed,” from what I understand from Justice colleagues, is redundant in this context.

Senator Gold: Just to clarify, these are technical amendments to make sure the bill achieves the basic purposes and is consistent with the basic principles — precautionary approach is the one you mentioned — set out in the Fisheries Act generally?

Mr. Waddell: Correct.

Senator Gold: Thank you.

The Chair: Any other questions or comments on the first amendment? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Senator Harder, we’ll go to the next amendment, PH-9.8a.

Senator Harder: For clause 9 on page 8, I move:

THAT Bill C-68 be amended in clause 9, on page 8, by replacing line 4 with the following:

“fish stock above that point, taking into account the”

The Chair: Any questions or comments?

Senator Poirier: Just a small question. Again, can you please explain to me why it’s important to remove the word “fish at or”? Why is the “at” a problem?

Mr. Waddell: Again, this is a clarification in a logic error. We would not rebuild a stock “to” their limit reference point; we would seek to rebuild it beyond their limit reference point and into more sustainable levels.

The Chair: Any other questions? Comments? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Thank you. Senator Harder, now you will go to PH-9.8b.

Senator Harder: I move:

That Bill C-68 be amended in clause 9, on page 8, by replacing line 12 with the following:

“6.2(1) If a major fish stock has declined to”

The Chair: Just to be clear, because we’re getting overwhelmed with paperwork here at the end of the table, we’re now dealing with PH-9.8c, Senator Harder.

Senator Poirier: We have 9.8a and 9.8b, which are the same.

The Chair: It’s the same.

Senator Harder, please read it again. PH-9.8c.

Senator Harder: Yes.

That Bill C-68 be amended in clause 9, on page 8, by replacing line 12 with the following:

“6.2(1) If a major fish stock has declined to”

The Chair: Any officials want to make a comment?

Mr. Waddell: This is removing the word “prescribed,” which is redundant.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

We will now proceed to PH-9.8d.

Senator Harder: I move:

That Bill C-68 be amended in clause 9, on page 8, by replacing line 14 with the following:

“velop a plan to rebuild the stock above that point in”

The Chair: It shortens up the word “develop.”

Senator Harder: It’s not poetic.

The Chair: No, it’s not.

Any comments or questions on that? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

Next, Senator Harder, will be PH-9.8e.

Senator Harder: Thank you, Chair.

I move:

That Bill C-68 be amended in clause 9, page 8, by replacing line 32 with the following:

“to do so, within a reasonable time and with reasons, on the Internet site of the Depart-”

The Chair: I guess somewhere along the line it gets finished.

Any comments or questions? We’re following along the same line, I would think.

Mr. Waddell: Again, it’s simply for clarification in terms of aligning with proposed subsection 6.1(3). So the text there would be mirrored in the bill. There’s an inconsistency at present in that there’s no requirement for a reasonable publication by the minister.

The Chair: Any comments or questions? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Senator Harder, PH-9.9 please.

Senator Harder: This amendment corrects a drafting error in the French version of section 6.3. This change is required to render section 6.3 applicable. In its current form, in the current version, the French of section 6.3 is empty of meaning, as it refers to principaux stocks halieutiques and is therefore inapplicable as it refers to concepts that are not found in sections 6.1 and 6.2. The amendment changes principaux stocks halieutiques to les grands stocks de poisson. This will ensure that section 6.3 is applicable and consistent with terminology between provisions.

I therefore move:

That Bill C-68 be amended on page 9, clause 9, in the French version, by replacing lines 1 to 3 with the following:

[Translation]

Les grands stocks de poissons visés par les articles 6.2 et 6.1 sont prévus dans le règlement.

[English]

The Chair: Sounds much better. Any comments or questions?

Mr. Waddell: It’s just a clarification between the translations.

The Chair: Thank you.

Any comments or questions? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Shall clause 9, as amended, carry?

Hon. Senators: Agreed.

The Chair: Shall clauses 10 to 14 carry?

Hon. Senators: Agreed.

The Chair: On clause 15, Senator Harder has an amendment, PH-15.14 (v3). I’m just reading out what’s in front of me. If you don’t have it, let us know.

Senator Harder: This amendment deals with whale and dolphin imports and exports. The amendment places within the Fisheries Act the import and export restrictions for cetaceans and their reproductive materials proposed by Bill S-203 as adopted by this committee, the Senate and soon the House of Commons. Bill S-203 had placed these restrictions in the Wild Animal and Plant Protection Regulation of International and Interprovincial Trade Act, known as WAPPRIITA. The restrictions limit the import and export of cetaceans and their reproductive materials to the purposes, if federally licensed, of scientific research or the best interests of cetaceans. This matter has been settled within Bill S-203, and the government prefers to enact these provisions through the Fisheries Act, as DFO has experience and expertise in matters relating to cetaceans.

In moving this amendment, I would congratulate retired Senator Wilfred Moore, Senator Murray Sinclair and all of Bill S-203’s supporters. This amendment is dedicated to the many thousands of Canadians and people around the world who have worked with determination that the world might see whales and dolphins with greater respect and compassion.

Therefore, I move:

That Bill C-68 be amended in clause 15, on page 14, by adding the following after line 6:

“23.2(1) No person shall import into Canada or export from Canada, or attempt to import or export, a living cetacean or sperm, an egg or an embryo of a cetacean, except in accordance with a permit issued under subsection (2).

(2) The Minister may issue a permit authorizing the importation or exportation of a living cetacean or sperm, an egg or an embryo of a cetacean and impose any conditions that the Minister considers appropriate in the permit, if the importation or exportation is for the purpose of

(a) conducting scientific research; or

(b) keeping the cetacean in captivity if it is in the best interests of the cetacean’s welfare to do so.

(3) The Minister may amend, suspend or cancel a permit issued under subsection (2).”

Senator Gold: Just to make sure I understand correctly, this essentially takes the basic provisions that we passed in Bill S-203 in the Senate and essentially moves them into the Fisheries Act as part of this bill. The Fisheries Act, if I understand, already covers importation and export of fish and fish parts. So this is a way to ensure that what we did over a period of time in the Senate actually finds its way within the Fisheries Act, where it belongs; correct?

Senator Harder: Correct. And I should add, although it’s implied in my comments, that I’ve certainly spoken with former Senator Moore, and he is very supportive of this. There is a series of amendments I’ll bring forward.

Senator Gold: Thank you.

The Chair: Any other comments or questions on the amendment? Hearing none, is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Senator Poirier: On division.

The Chair: On division.

Shall clause 15, as amended, carry?

Hon. Senators: Agreed.

The Chair: Shall clauses 16 to 18 carry?

Senator Wells: I think there’s a change in clause 18.

The Chair: Shall clause 16 to 17 carry?

Hon. Senators: Agreed.

The Chair: Clause 18. Senator Harder has an amendment, PH-18.1-15v3.

Senator Harder: This is somewhat parallel, although a different bill. This amendment places within the Fisheries Act the prohibition on shark finning and the ban on shark fin imports and exports as proposed by Bill S-238, as adopted by this committee, the Senate, and at second reading in the House of Commons. Bill S-238 places these restrictions in the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, known as WAPPRIITA. The government prefers to enact these provisions through the Fisheries Act, as DFO has experience and expertise in matters relating to sharks as well as fish imports and exports.

I’d like to congratulate Senator MacDonald and Bill S-238 supporters, particularly the family of Canadian filmmaker and shark conservationist Rob Stewart, who tragically passed away in 2017. This amendment, whose genesis is in Bill S-238, is dedicated to Mr. Stewart’s life work saving shark fins and sharks from extinction.

I would therefore move:

That Bill C-68 be amended on page 15 by adding the following after line 6:

“18.1 The Act is amended by adding the following after section 31:

32(1) No person shall engage in the practice of shark finning.

(2) In this section, shark finning means the practice of removing the fins from a shark and discarding the remainder of the shark while at sea.

32.1(1) No person shall import into Canada or export from Canada, or attempt to so import or export, any shark fins or parts of shark fins that are not attached to a shark carcass except in accordance with a permit issued under subsection (2).

(2) The Minister may issue a permit authorizing the importation or exportation into or from Canada of any shark fins or parts of shark fins that are not attached to a shark carcass and impose any conditions that the Minister considers appropriate in the permit if

(a) the importation or exportation is for the purpose of scientific research relating to shark conservation; and

(b) in the Minister’s opinion, the scientific research is likely to benefit the survival of any shark species or is required to enhance the chances of survival of any shark species in the wild.

(3) The Minister may amend, suspend or cancel a permit issued under subsection (2).”

The Chair: Any questions or comments?

Senator Gold: Senator, have you spoken to Senator MacDonald, who is the sponsor of this bill? Is he satisfied with this?

Senator Harder: I have spoken to him several times, and he is more than satisfied with this. He will speak for himself, I’m sure, should this amendment pass, when we get to third reading.

Senator Gold: Thank you.

The Chair: Any other questions or comments? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Senator Poirier: On division.

The Chair: Shall clause 18 carry?

Hon. Senators: Agreed.

The Chair: Shall the new clause 18.1 carry?

Some Hon. Senators: Agreed.

Senator Poirier: On division.

The Chair: On division.

Shall clause 19 carry?

Hon. Senators: Agreed.

The Chair: Clause 20. I understand Senator McInnis has an amendment, and for those following, we have TJM-CPC-20.15. Everybody has a copy?

Senator McInnis: There are actually four amendments.

The Chair: We’ll do them one at a time.

Senator McInnis: I know, but my explanation — sorry, that was not a slam.

The Chair: It’s for everybody. Don’t take it personally.

Senator McInnis: No, you don’t. Good.

This deals with designated projects. Clause 20, page 15. I move:

That Bill C-68 be amended, in clause 20, on page 15,

(a) by deleting lines 18 to 24; and

(b) by deleting lines 28 to 33.

Let me say just a word about designated projects. We saw several organizations and associations with respect to this: mining associations, the Canadian Ferry Association and several other organizations. They want the designated project provisions removed from the bill. It is written the designated project scheme would divert limited departmental capacity to futile paperwork, mire project proponents in ineffective process and restrict deployment of new provisions to promote avoidance of harm to fish habitat.

Under Bill C-68, with the designated project provisions as they are written now, I’m quoting from the Mining Association of Canada:

We’re not sure that mining projects could go ahead if it were a designated project. We are not sure whether existing operations could continue. There is a chance that the proponent would have to get a permit to go out and complete works that do not affect fish or fish habitat. The legislation must not be passed without understanding what the designated project list regulation will look like.

So they’re concerned with respect to designated projects that it

allows the creation of a designated projects 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 agree with some projects having to obtain environmental assessment 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.

I’ll close with this:

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.

I’m quoting from the Chief Executive Officer of the Canadian Ferry Association.

I should not read that sentence without asking our officials if they have any comments on that. That is what the designated project — removing those sections that put that in play. I so move.

The Chair: Thank you.

Senator Christmas: I would ask the officials to comment.

Mr. Winfield: It is my understanding that there are many motions to amend this section, so I will explain the current construct and then you can discuss the other amendments.

The intention here is to be able to identify when there are major projects that impact on fish and fish habitat, that there should be an early warning to those companies that they will require a permit. That’s the intent of the design. We recognize that we have heard many comments around the way this section has been constructed and have been in many conversations about ways to try to improve the section.

The intention is to recognize that there are certain classes of projects that will always impact on fish and fish habitat. By describing what they are in regulations, the intention is to identify early that they will require an authorization or a permit under the Fisheries Act, and therefore, it is better to be prepared to gather the information and identify the ways in which the impacts are going to be managed. The intention was to provide an early signal that such projects will need to go through a regulatory review, but that regulatory review will be made more efficient by having a designated project list and an explanation that permits will be required for those projects. That is the intent.

Senator McInnis: Well, I know, but aren’t you putting the cart before the horse? When are the regulations and when are you going to provide that list? I mean, this legislation will —

Mr. Winfield: So this, unlike Bill C-69, designated projects — we do not need the regulation for coming into force. We can still operate under our existing scheme, which is to use the general prohibition to state that any project causing harm to fish and fish habitat or the death of fish will require an authorization. Currently, we have a broader application. The intention of this section was to narrow it down and to provide more certainty.

With respect to how long it will take to develop such a list, generally speaking, regulations are 18 to 24 months to develop, and they would be done in consultation.

I would say that the department has been reviewing major projects for decades. We have a very strong sense of where the projects are that cause impacts to fish and fish habitat. This is not a new undertaking of the department. It is actually intended to streamline and simplify our processes by defining the high-risk sites and providing certainty as to when they need to seek permits.

Senator McInnis: I appreciate that, and thank you. I will read this again. Under Bill C-68, with designated project provisions as they are now written, we are not sure that mining projects could go ahead if it were a designated project. We are not sure whether existing operations could continue.

Mr. Winfield: It is a very broad statement. I can’t really comment on it. I would say that we recognize that there were challenges in the way that the wording of Bill C-68 was written. I think that the amendments that are being proposed are intended to address that issue. To state that projects can’t proceed, I simply can’t respond to that question.

Senator McInnis: Obviously, you say they could, by making that statement.

Mr. Winfield: Under the current scheme, should the bill pass, projects can proceed because they are under the general prohibition, and they would go through the same processes that they go through now. Once we develop regulations in consultation with industry and the general public, we would identify those areas where there is evidence that such projects will always cause harm to fish and fish habitat, and we can streamline the process by developing a regulatory approach to the issue. Currently, we are dealing with it through policy. The intention is to deal with it through a regulatory approach.

Senator McInnis: Would this be a go-forward situation?

Mr. Winfield: That’s correct. It would only be applied if it is the best policy instrument to use. If it is inefficient or derives uncertainty, it is very unlikely that it would pass a regulatory test. The enabling provisions are there to allow us to begin consulting and determining whether that is the appropriate instrument.

Senator McInnis: So the Canadian Ferry Association, in making their comments about the tens of millions of dollars that are going to be spent on ferry terminals and so on, has nothing to worry about?

Mr. Winfield: Well, any major development of a ferry terminal is typically in fish and fish habitat. They have to go through a regulatory process under the Fisheries Act. I would argue that there is actually no change for those industries. If we develop a regulation, it would be more efficient and there would be more certainty. However, in terms of it costing more money, the intention of the designated projects is that it would take less time and reduce cost. It is intended to address an issue, not to create an issue.

Senator McInnis: All of these associations are incorrect, then, in their belief? Is that it?

Mr. Winfield: No, I’m not saying that. I appreciate that they are uncertain about what this will result in, and they have reason to feel that way because we have not developed the regulation. This is an enabling provision for a regulation which —

Senator McInnis: Yes, I understand that. So will you be consulting? Will these people be part of regulations?

Mr. Winfield: Absolutely.

Senator McInnis: You say that, and I hope you are right. I would take your word for that, except that the other week we had a group here representing ranchers and farmers — I said 325,000 — and they never heard a peep from DFO. Not a word. No consultation whatsoever. How are we to be assured that there will be consultation here?

Mr. Winfield: During the consultations on Bill C-68, we met with the Canadian Federation of Agriculture, we met with the Canadian Cattlemen’s Association, and we met with the prairie grain growers’ association. We’ve met with as many organizations as we can. Given the concerns raised by those constituencies, I can assure you that we will meet with them if we are developing any regulation that may impact on their ability to undertake activities.

Senator McInnis: All right. Well, we shall see.

Senator Poirier: Just to follow up on a clarification on your last statement where you said that you had met with all these groups in developing Bill C-68, if you had met with them in dealing with Bill C-68 and in developing it, why were their concerns not reflected in Bill C-68? Why are their concerns still there today if you already consulted with them?

Mr. Winfield: With respect to the agricultural community, the area of interest they expressed was around agricultural drains for which we developed codes of practice. For the areas of interest of that constituency, we found instruments to put into Bill C-68. The agricultural community has never complained about major projects or the designated projects issue. That has been more of an issue for large industries than for the agricultural community. I think we are mixing things with respect to which sector had concerns about which sections of the act. The bill looked at the sectors that interact with Canadian fisheries waters, and tools, either regulatory or policy approaches, were developed to address the concerns of each of these constituencies. I think we heard earlier that the codes of practice were one of the policy instruments or the regulatory instruments that the agricultural community was supportive of us using. Their concern was the speed of their implementation.

Senator Gold: To try to put it into simple terms, projects right now are subject to a process whereby potential damage to fish or fish habitat are evaluated, and they have to go through a process. The intent here in the bill — and I understand there are some amendments to even sharpen the focus — would be to render it clearer and more predictable to industry who are currently potentially affected by it and to make it a more effective but not necessarily a more burdensome regulatory regime. Do I understand that correctly? If that’s correct, would this amendment have the effect of making that streamlining and earlier warning impossible?

Mr. Winfield: The current practice is that major projects that go through an environmental assessment that takes more than two years only begin the regulatory process after they have finished their environmental assessment process. That then adds an additional six months to a year, depending on the state of readiness.

The intention is to identify early, as a project is being conceptualized, that if there is an impact on fish and fish habitat, we wish to signal early that a permit will be required such that they can gather the baseline information and develop mitigation plans early on, and that any consultation on an environmental assessment can also be considered a consultation on the regulatory process, so that should the project get through the environmental assessment, the permitting process can be done as efficiently as possible. It doesn’t have to wait and be consecutive.

Senator Gold: So my second question — what is the impact —

Mr. Winfield: Yes, the impact of removing “designated projects” is that it simply removes the opportunity to be able to advance a more efficient process. Notwithstanding that, we do recognize some challenges in the wording of Bill C-68 that we would like to address those industry concerns.

Senator Gold: Thank you.

Senator Poirier: If it is intended to be more efficient, why are all the beneficiaries in this provision opposed?

Mr. Winfield: Sorry, why are who opposed?

Senator Poirier: Why are the beneficiaries of the provision opposed?

Mr. Winfield: For two reasons. One, it has never been done before and therefore it is uncertain. Second, the scope of the application is unknown. How many projects? What will be the potential scope change to the present? I would argue that it would be the existing scope and perhaps narrower. It wouldn’t be greater than what the current process is.

Senator Poirier: So then it is normal to see why they would be concerned when it is unknown and —

Mr. Winfield: Absolutely. Whenever there is a new element introduced to a bill, there is uncertainty, and that can raise concerns, and that’s fully appreciated.

Senator Poirier: What can we do to assure them?

Mr. Winfield: First of all, it is an enabling provision. It does not come into force until regulations are developed, and the regulatory process is our opportunity to consult and determine whether it is the best instrument choice. When we do the regulatory impact assessment statement, if there is overwhelming opposition to the regulation, those regulations do not proceed. There has to be a cost-benefit analysis. It has to be demonstrated to be more efficient, and we were seeking to develop a tool to achieve that goal. If it doesn’t achieve that goal, the regulation will not advance.

Senator McInnis: In fairness to our witnesses tonight, I recall hearing that they would have to go out and get a permit to complete a work that would have no effect on fish. What you are saying is that they have no concern after the regulations; it would have to be something that would have the potential of being injurious to fish and fish habitat.

Mr. Winfield: Yes, there has to be a connection to fish and fish habitat. I think the amendments being proposed are to narrow that, to ensure that that is understood and that this is not to regulate projects — it has to be under the nexus of fish and fish habitat. It has to be under the mandate and the authority of the Minister of Fisheries and Oceans.

The Chair: Would the passage of this bill affect any ongoing projects? In regard to the regulations. I thought you said they’ve already started.

Mr. Winfield: All existing projects that have authorizations remain valid after the passing of this act. There are transitional positions that also enable projects in review now to also go through the process under the current act, prior to the new act coming into force. There are transitional provisions, but no one has to redo anything that has been designed in this act.

The Chair: Any more comments or questions? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Chair: We will have a roll call.

As usual, honourable senators, we will now proceed to roll call. The clerk of the committee will call the senators’ names, beginning with the chair and then going in alphabetical order. Senators should verbally indicate whether they vote for or against. The clerk will announce the votes, and I will announce whether the motion is carried or defeated.

Ms. Cardinal: The Honourable Senator Manning.

Senator Manning: Abstain.

Ms. Cardinal: The Honourable Senator Bovey.

Senator Bovey: No.

Ms. Cardinal: The Honourable Senator Busson.

Senator Busson: No.

Ms. Cardinal: The Honourable Senator Campbell.

Senator Campbell: No.

Ms. Cardinal: The Honourable Senator Christmas.

Senator Christmas: No.

Ms. Cardinal: The Honourable Senator Francis.

Senator Francis: No.

Ms. Cardinal: The Honourable Senator Gold.

Senator Gold: No.

Ms. Cardinal: The Honourable Senator McInnis.

Senator McInnis: Abstain.

Ms. Cardinal: The Honourable Senator Munson.

Senator Munson: No.

Ms. Cardinal: The Honourable Senator Petitclerc.

Senator Petitclerc: No.

Ms. Cardinal: The Honourable Senator Poirier.

Senator Poirier: I agree.

Ms. Cardinal: The Honourable Senator Wells.

Senator Wells: I agree.

Ms. Cardinal: Abstentions, 2; yeas, 2; nays, 8.

The Chair: The motion is defeated.

Our next amendment is for Senator Harder. PH-21.16a.

Ms. Cardinal: Clause 20.

The Chair: Sorry, I didn’t see that. Jumped again.

Shall clause 20 carry?

Hon. Senators: Agreed.

The Chair: Carried.

We’re now going to clause 21, and we have an amendment from Senator Harder, PH-21.16a.

Senator Harder: Thank you, colleagues. I have a series of amendments, which Nicholas Winfield has alluded to in his comments, that bring clarity and consequential amendments on flow and designated projects. This is the first amendment. This motion includes consequential amendments with regards to ministerial regulations for water flow and to designated projects.

First, the adoption of the proposed subsection 34.3(7) amendment has consequential effects that were not addressed during the House committee considerations. The adopted amendment added a paragraph at the end of section 34.3, now proposed subsection 34.3(7), stating that:

The Minister may make regulations respecting the flow of water that is to be maintained to ensure the free passage of fish or the protection of fish or fish habitat.

There were no consequential or ancillary amendments that were concurrently proposed or adopted when this amendment was proposed to ensure that the new ministerial authority function in harmony with the overall scheme in place for the related fish and fish habitat protection provisions. Therefore, this new proposed amendment is required to fully implement the objective and purpose of the new subsection 34.3(7) as adopted by the House by including the provision within the factors to be considered by the minister under subsection 34.1(1).

The second amendment is a change in subsection 35.1(2) to 35.1(3). This is a consequential amendment to an upcoming amendment related to designated projects for clause 23 that will require that consensual and consequential amendments be addressed throughout the bill.

Therefore, I move the first amendment. I move:

That Bill C-68 be amended in clause 21, on page 16, by replacing line 5 with the following:

“exercising any power under subsection 34.3(2), (3) or (7),”

The Chair: Any questions or comments on the amendment? Hearing none, is it your pleasure, honourable senators, to adopt the motion amendment?

Hon. Senators: Agreed.

The Chair: Senator Harder will continue with PH-21.6b.

This is the second part of what I just described. I move

That Bill C-68 be amended in clause 21, on page 16, by replacing line 7 with the following:

“35(2)(b) or (c) or subsection 35(4), 35.1(3), 35.2(7) or”

The Chair: Any comments or questions on the amendment? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Our next amendment is from Senator McInnis. To let everybody know, we have 10 minutes remaining in our meeting. Not that you are long-winded, Senator McInnis, but just —

Senator McInnis: I certainly won’t be here because we are dealing with a designated project.

The Chair: It is TJM-CPC-21.16.20. You can start when you like.

Senator McInnis: I am just saying there were several clauses or several amendments — actually four amendments dealing with designated projects, and I dealt with one. My explanation is not going to be any different. I gave a global explanation of the amendments, and so I’m not sure how you want to proceed.

The Chair: We have an amendment before us.

Senator McInnis: I can move them.

The Chair: All right. Move it.

Senator McInnis: Okay. This is clause 21, pages 16 and 20. I move:

That Bill C-68 be amended in clause 21

(a) on page 16,

(i) by replacing line 3 with the following:

“34.4 or 35 or under subsection 35.2(10), 36(5) or”; and

(ii) by replacing line 7 with the following:

“35(2)(b) or (c) or subsection 35(4), 35.2(7) or”; and

b) on page 20, by replacing lines 9 to 13 with the following:

“accordance with the regulations; or

(f) the work, undertaking or activity is a prescribed”

I so move.

The Chair: Any comments or questions?

Senator Gold: I’m not sure I understand it, but what I do see is that one of the things it does is remove reference to section 35.1 of the bill, the heading of which is designated projects. Do I understand correctly that this sort of connects back with the earlier amendment?

Senator McInnis: It does exactly.

Senator Gold: So effectively removing reference to designated projects in the processes that —

Senator McInnis: That’s exactly correct. And the other amendments, they are all tied together with respect to designated projects.

Senator Gold: I’m looking to the officials and to you as well. Not having passed your amendment that removed designated projects, do these amendments lose their significance?

Senator McInnis: No. By passing what we did, it has an effect on these amendments here as well.

Senator Gold: Are you withdrawing them?

Senator McInnis: That was the point I made from the beginning.

Senator Gold: But you read it in as if —

Senator McInnis: That’s what I said. If we are agreeing that there should be designated projects, then you don’t approve these following amendments.

The Chair: So you are withdrawing this?

Senator McInnis: Absolutely. That’s what I said from the beginning. I don’t know how many people were listening.

The Chair: You explained it beautifully.

Senator Gold: Sorry, my apologies.

Senator McInnis: No, that’s all right.

The Chair: Folks, we have six minutes left. I’m not sure if getting into the next amendment will be appropriate.

Senator Poirier: Will we continue on Thursday?

Ms. Cardinal: Yes.

The Chair: So we will finish with where we are to right now, and we will adjourn our meeting and see you on Thursday morning.

(The committee adjourned.)