THE STANDING SENATE COMMITTEE ON FISHERIES AND OCEANS
EVIDENCE
OTTAWA, Tuesday, February 5, 2019
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act, met this day at 9:30 a.m. to give consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Good morning. My name is Fabian Manning, a senator from Newfoundland and Labrador, and I am pleased to chair this morning’s meeting.
Before I give the floor to our witnesses, I have a couple of things for all our committee members and for people who are interested. We released a report on search and rescue last fall. We received great coverage throughout the country. I recently picked up Navigator magazine, the voice of Atlantic Canada’s fishing industry, which has a very well-written spread on our report and great feedback from around Atlantic Canada and throughout the country. That is a little satisfaction for all members. I know it took a long time to get our search and rescue report out the door, but it was intensive and the feedback has been positive.
We will wait to see what happens with the powers that be on the recommendations we have made, but there are copies for anybody who would like to have a look at it.
I would like to ask members of the committee to introduce themselves, please.
Senator Campbell: Larry Campbell from British Columbia.
[Translation]
Senator Petitclerc: Chantal Petitclerc from Quebec.
Senator Poirier: Rose-May Poirier from New Brunswick. Welcome.
[English]
Senator McInnis: Tom McInnis from Nova Scotia.
Senator Plett: Don Plett from Manitoba.
Senator Busson: Bev Busson from British Columbia.
Senator Francis: Brian Francis from Prince Edward Island.
Senator Christmas: Dan Christmas from Nova Scotia.
Senator Bovey: Patricia Bovey from Manitoba.
[Translation]
Senator Gold: Marc Gold from Quebec.
[English]
The Chair: Thank you, senators.
The committee is beginning its consideration of Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act. Today we have five panels. We are going to have a busy day, so I certainly appreciate everybody coming today to participate.
There are three witnesses in our first panel. I ask them to introduce themselves and to state who they represent, please.
Paul Lansbergen, President, Fisheries Council of Canada: Paul Lansbergen with the Fisheries Council of Canada.
Christina Burridge, Executive Director, BC Seafood Alliance: Christina Burridge with the BC Seafood Alliance.
Carey Bonnell, Vice-President, Sustainability and Engagement, Ocean Choice International, Fisheries Council of Canada: Carey Bonnell with Ocean Choice International.
The Chair: Thank you for being here today. I understand we will have some opening remarks from our witnesses and following those remarks we will have questions from our senators and begin our discussion.
Who would like to go first?
Mr. Lansbergen: On behalf of the Fisheries Council of Canada I thank the Standing Senate Committee on Fisheries and Oceans for the invitation to comment on Bill C-55.
The council is the national voice for the fisheries sector in Canada. Our members include small, medium and larger size companies as well as Indigenous enterprises that harvest and process fish from Canada’s three coasts and inland waters.
Canada’s commercial fisheries are partners in promoting conservation of marine environments. For the 80,000 Canadians that depend on commercial fisheries for their livelihood and the $7 billion in annual economic activity they generate, the sustainability and the health of our marine ecosystem is vital.
Societal changes in attitudes toward the environment are also positively reinforcing the drive for conservation. Consumers are increasingly sophisticated and are demanding to know where their food comes from and how it was produced. In that vein, sustainable harvesting practices and fisheries management including conservation are not just good business practices. They are important from our social licence standpoint.
On that point I want to highlight that approximately two thirds of Canadian seafood landings were from fisheries that are certified to the MSC Fisheries Standard, also known as a gold standard for seafood sustainability that represents almost all major stocks and is over 80 per cent of the value of Canada’s fishery. It is a remarkable figure, especially compared globally to the average of about 14 per cent for certified world fisheries.
Mr. Bonnell: The concern for us with regard to Bill C-55 is less about the bill per se and more about how it is implemented. Suffice it to say, striking the right balance between stability of access to the resource and robust conservation objectives requires continuous collaboration among governments, industry and other stakeholders.
The stability of access challenges caused by MPAs is deeply concerning and could grow more acute. Canada is on track to meet the United Nations Secretariat of the Convention on Biological Diversity target of 10 per cent marine protected areas by 2020, not without considerable pain for fishing communities. There are rising concerns that Canada is contemplating committing itself to additional targets by 2030. Ensuring that decisions are made through a scientific and socio-economic lens is imperative.
The House of Commons Standing Committee on Fisheries and Oceans referenced this point in its report on Bill C-55 when it said that socio-economics of coastal communities that rely on the oceans “should be transparently considered by DFO as a central element in its decision-making processes relative to MPAs.” The committee added that this was a major oversight in the decision-making process “because failing to incorporate social, economic and [Indigenous] cultural considerations into the MPA establishment process can lead to significant conflict, loss of trust . . . and . . . the creation of MPAs that may not be as effective as they could be.”
What should be done when DFO identifies a new area of interest for marine protected areas? First, as noted by the house committee, economic and social impacts should be evaluated, including costs of patrols and enforcement. Consultations on proposed MPAs should actively seek input from affected direct stakeholders. Moreover, decisions leading to the establishment of an MPA must also acknowledge the negative impacts on people who directly depend on the resources in the proposed MPAs and consider offsetting measures when loss to communities is proven.
Second, use scientific-based decision making and make science and other considerations that inform a decision to establish an MPA readily available to the public. There have been examples over the past couple of years of efforts to design MPAs to achieve a spatial target without valid scientific-based conservation objectives. Such approaches are ill-advised and do not advance a responsible conservation agenda.
Third, take a flexible approach to select the right conservation tool for the situation. The right conservation tool may not necessarily be an MPA, which evidence from the world’s 87 established MPAs has shown often aren’t always effective because putting a static MPA in place in the ocean will only protect a particular species or group of species in that particular area at that particular time. This dynamic has become even more acute in recent years given the rapidly changing marine environment we operate in.
In that regard and in terms of conservation and management of commercial species there may be more effective and modern fisheries management techniques that can range from altering fishing gear configurations to seasonal adjustments in harvesting. MPAs should be considered one of the many tools in the conservation toolbox. I wanted to stress that point for members today.
That is why the FCC supports Canada’s efforts in international discussions to instill more flexibility in what measures are recognized as marine conservation. We believe that building these recommendations into the MPA process will enhance public confidence in the outcomes, ensure robust sustainability and biodiversity, and minimize unintended socio-economic impacts where fisheries are the lifeblood of many rural communities. Thank you very much.
Ms. Burridge: Thank you, chairman and committee members, for inviting me here today. The BC Seafood Alliance is the largest commercial fishing organization on the West Coast. Our full members are associations that represent the owners and operators of commercially licensed fishing vessels in most major fisheries in B.C. When we appeared before the House of Commons Standing Committee on Fisheries and Oceans on MPAs we put forward four suggestions that we thought would strengthen conservation protection, and I want to go over those suggestions with you today.
First, we agreed that the current process for establishing MPAs is too long. Many of the delays on both coasts have more to do with regulatory delays than with the shortcomings of the science or the socio-economic assessments. As an example, it took 15 years from when the fishing industry voluntarily closed the Hecate Strait sponge reefs until they were designated as an MPA in 2017. That is too long.
We propose, therefore, that the correct trigger point for the establishment of an interim MPA is at the conclusion of the science and the socio-economic review. This would allow implementation of protection before the regulatory process starts, but it ensures that the proposed boundaries are evidence based and the result of thorough review with all ocean users. That is the way to get increased cooperation and support.
Second, we were troubled by the concept of freezing the footprint based on the previous 12 months of activity. If you were fishing in an area the 12 months before, you get to operate on an interim basis while the science is being done because many fisheries are rotational. The geoduck or sea cucumbers on our coast are fished once every three years for conservation reasons. Other fisheries might not take place in a particular year because of environmental conditions, water quality or other harvesting limitations. They shouldn’t be automatically excluded from being able to operate during the interim period just because no fishing took place in the previous 12 months. We would like to see a longer time frame of three years or even six years, but three years for sure. I note too that the minister could introduce an immediate spatial closure under the Fisheries Act if it is really necessary.
Third, one of our concerns was that the bill sent to you for review did not provide that the minister must consult with those who would be affected by permanent MPA closures. Consultation is what we need in order to get durable solutions that all parties will support over the long term.
My last point is that revisions to the Oceans Act should not preclude compensation to fish harvesters for access to the resource. If an area is proposed for permanent protection and it contains a significant harvestable area, or if we can’t make up that loss somewhere else, then we should consider paying compensation.
We believe that MPAs are part of the marine management tool kit, as my colleagues have said. We certainly support Canada’s marine conservation targets as they currently exist. We met the first target of protecting 5 per cent back in 2017. We think Canada will meet its second target of 10 per cent by 2020. Certainly on the Pacific Coast, using Environment and Climate Change Canada metrics, we will have protected 37 per cent of the coast by 2020.
Properly managed fisheries are the most sustainable protein on the planet. The threats to our oceans are real, but they come from oil and gas exploration, the prospect of seabed mining, ocean acidification and climate change, not fishing for food in Canada.
Sustainable development is just one of the three principles of the Oceans Act, and MPAs are created in part to conserve and protect fishery resources. The purpose of the Oceans Act, and therefore MPAs, is not to eliminate commercial fishing but to protect what needs to be protected while still allowing sustainable use.
Some have said that the greatest threat to our oceans is the commercial removal of billions of tonnes of biomass. That may be true globally, but it is not true for Canada. Landings on the West Coast have recently averaged about 160,000 tonnes annually. Pollution, habitat destruction and climate change are far greater threats, and MPAs will do little or nothing to alleviate their effects.
Our fisheries on the West Coast are managed extremely conservatively. Most are recognized by the Marine Stewardship Council, the Monterey Bay Aquarium or Ocean Wise as sustainable and well managed. Closing large areas to fishing in Canada does little for biodiversity or conservation, little for the people working in our sector who are middle class or aspire to the middle class, and little for the health of Canadians who deserve access to local sustainable seafood. We believe that we can have both biodiversity and healthy, sustainable fisheries that provide food to Canada and the world.
The Chair: As we have done in the past, our first question will come from the deputy chair of the committee, Senator Gold.
Senator Gold: First, Mr. Lansbergen, you mentioned that you have more issues with the implementation of the bill than the bill itself, and at the end of your presentation you alluded to your recommendations.
Do you actually have any proposals for us or possible areas where you think the bill itself should be amended?
Mr. Lansbergen: Not on the bill itself. We didn’t have any recommendations put forward as amendments to the bill. It was more how the authorities would be used. Christina Burridge made a very good point regarding when an interim MPA should be established. It should only be after the science is completed to identify the area of interest, the protection attribute and the consultations with stakeholders.
If an interim MPA gets established before that it short-circuits the process. That is not what I believe the government is intending, but there is nothing in the bill that necessarily forces that either.
Senator Gold: Ms. Burridge, you did make recommendations before the committee in the other place, and you have underlined them here as well. Could you elaborate a bit more on what was five years before the house and is now a six-year time frame for the establishment of freezing the footprint? In particular, is this a general recommendation you make or would it only apply perhaps as an exception to the 12-month period for rotational fisheries?
Ms. Burridge: If you went to three years across the board, then that would allow for circumstances such as those of perhaps other shellfish fisheries that are shut down because of water quality issues.
I certainly I think rotational fisheries are key on the West Coast. I am not sure if it is true on the East Coast. It is a three-year period. That is where the notion of six came in, but I think we would be happy with three years.
Senator Gold: If I understand correctly, it is largely because of the rotational fisheries.
Ms. Burridge: Yes.
Senator McInnis: This interesting bill has caused a great deal of concern in Atlantic Canada, particularly in my province of Nova Scotia.
If I heard correctly, you were suggesting in one of your observations that the MPA should not be established until “the conclusion of the science and socio-economic review.” Therefore, the proposed boundaries would be based on evidence and a thorough review with all ocean users. This would establish greater buy-in and support from the public.
Are you aware that this bill states that a lack of science is not a prerequisite to the bill going through or the MPA going through? If it is not done, they are to proceed.
Ms. Burridge: We would share many of the same concerns, senator, that you have heard from your constituents. We have been disappointed by the level of consultation or the effectiveness of the consultation process to date, and we are troubled by some of the science. We definitely want to see better scientific analysis, and we need the socio-economic analysis to go in tandem with the scientific analysis.
If you’re aiming for balance, we have this back to front. You do all the science up front and then belatedly you look at the socio-economic impacts. You have really put all the emphasis on the science without looking at how it affects people. We need to do that in tandem.
As a second observation, I would add that DFO’s capacity for doing socio-economic analysis is very weak.
Mr. Bonnell: Perhaps I could add briefly from an East Coast perspective, being based in Newfoundland and having capacity in Nova Scotia. Our concern with the provisions of the proposed amendments is that there will be nothing more permanent than a temporary or interim MPA.
Once something like this gets established on the front end, potentially without good science and without a good level of consultation, the opportunity to make changes to that downstream we think is probably limited.
I want to make a point as well for those who aren’t aware. Paul Lansbergen alluded to this in his opening comments from a macro standpoint. We have very robust fisheries management structures in place in the Canadian seafood industry. I could show you our licence conditions as a business in terms of reducing unintended catches, bycatch reductions, minimum size protocols, closed areas for spawning, observer coverage and dockside observers. There are many provisions in place in our management process, which is why the vast majority of our fisheries are now certified to the Marine Stewardship Council gold standard.
We have tools that are working effectively. MPAs can work in certain areas under certain conditions. In the case of protecting highly vulnerable marine ecosystems and coral sponges, certainly we are all supportive and have no concerns about that. Partitioning off large portions of the ocean to meet a target that will not provide the intended solutions we need for responsible and sustainable fisheries is not the way forward.
We think, as an example, that investing in more stock assessment scientists within the Department of Fisheries and Oceans would be a much better step in the right direction to address some of the deficiencies that may exist there and will have more lasting impacts. It is not as exciting as a global target, but it will have a much better result at the end of the day, from my standpoint at least.
Senator McInnis: Part of the challenge is that DFO comes out and announces an area of interest without any consultation whatsoever. The most recent one was 2,100 kilometres along the coast of Nova Scotia. We have 13,300 kilometres of coastline, and I have a map showing that there is potential for 18 of these.
Without any consultation, it has thrown the fishery into absolute uproar. They have no idea as to whether they can continue to lobster fish. Nothing has been said yet.
You mentioned trust. They are building a lack of trust. That is a terrible thing for me to say, but I am repeating what I have heard. You said it here this morning. The other process was long at seven or eight years, but whose fault was that? Was that DFO? It certainly wasn’t the fishermen.
Why are we now putting a footprint in place unilaterally here in Ottawa and telling people this is what it will be now? It is kind of like the reverse onus in criminal law. You are guilty; prove yourself innocent. Is that what this is?
Ms. Burridge: We certainly think that there are much better ways to do it which involve getting people who are actually out on the water into a room with scientists and other stakeholders to look at what would actually make sense.
As Carey Bonnell said or as I indicated in my remarks, we see there are features that need to be protected like the Hecate Strait sponge reefs. We did it voluntarily years before the government got around to doing it. We’re capable of being really good players in this regard. We generally feel that we are the last people to be consulted.
Senator Plett: Mr. Bonnell, you said in your statement:
The right conservation tool may not be an MPA, which evidence from the world’s 87 established MPAs has shown often aren’t always effective because putting a static MPA in place in the ocean will only protect a particular species or group of species in that particular area at that particular time.
I would like you to explain that a bit. Does that species move around? If we do that now, why would that not be the right way to go? What did you mean by that statement?
Mr. Bonnell: Ocean Choice International is involved in a wide range of mostly migratory species such as groundfish, as an example, whether it is Greenland halibut, red fish or even northern shrimp. Some sedentary species in Canada where MPAs might be a more appropriate approach. Most of our fisheries are highly migratory and move beyond boundaries. Identifying a particular area for protection for a highly migratory species is not the most responsible tool in our view.
There is little to no evidence on these sorts of MPAs in highly dynamic offshore environments. MPAs work well in areas where you need to protect a sensitive benthic environment. I started my career living in the Philippines. One of the first projects I undertook was actually doing research on a coral reef we were looking to establish as a marine protected area. MPAs work and make sense in a jurisdiction where you have very poor fisheries management, very little enforcement or regulatory capabilities, and highly sensitive environments that are coral reef dependent.
In areas such as we often face in Canada, whether on the West Coast, East Coast or even in the Arctic, the reality is that other tools make much more sense. As examples, closures for spawning make sense, small fish protocol issues make sense, reducing or eliminating bycatch of unwanted or untargeted fisheries makes sense, and having robust stock assessment models in place to ensure that we’re taking into account climate change considerations makes sense. These are all conditions of our licence.
One final point I would make on your response to my comments is that we’re on the water and we’re seeing a tremendous amount of change occurring right now. We’re seeing movement. Migratory patterns and fish distributions are changing as a result of climate change. Putting a static boundary in place at a time when we’re seeing rapid change is probably not the right approach, certainly from our perspective.
Senator Plett: Ms. Burridge, you mentioned that your trawl fleet on the West Coast has reduced its footprint by more than 20 per cent and frozen at protecting 50 per cent of all habitat types.
In your opinion do you think this government is relying too much on coercing compliance through legislation rather than working collaboratively and co-operatively with stakeholders? What groups should they be consulting with that they possibly have not consulted?
I have a concern with some of the rights this is giving the minister to unilaterally make decisions without a consultation. Whom all should he or she be consulting?
Ms. Burridge: The list is largely of the ones you have mentioned. MPAs probably affect the fishing industry more than any other sector in Canada. We need to be consulted. Obviously Indigenous people need to be consulted because they have a huge interest. We on the West Coast believe that we have to engage the environmental community in this process.
If I go back to the example you mentioned of freezing the trawl footprint and protecting 50 per cent of every type of habitat, that was a joint initiative between the trawl sector and a group of NGOs with some support from DFO, but DFO was really there just to help provide some information and some data. It was something that they hammered out.
We know that we can make voluntary processes work because of the way we manage our fisheries. We’ve made most of the hard decisions about conservation. We have a long-term interest in making sure that our oceans are healthy and can generate raw material for our product. We believe the minister does not need a huge hammer here. He needs to set some clear principles and then we can get on with the job in conjunction with Indigenous people and other stakeholders.
Senator Plett: I have a brief follow-up question that I will also ask of the minister. We’ve heard a lot in the media in the last while about pipelines in our energy sector on the West Coast and the Indigenous communities having not been consulted. Have they been consulted at all?
Ms. Burridge: For the ones that we’re seeing on the West Coast there has certainly been some consultation with Indigenous communities. Those communities would see the consultation rather in the same way as I do. It is at a very high level. Then we find areas are closed before we’ve had a chance to understand what it really means to the men and women who make a living off the water.
Senator Campbell: I share many of the concerns of Senator McInnis. Like Senator McInnis, I have also been speaking to fishers on the West Coast. I should start out by saying that on the West Coast at least the fisheries are not known for having a great history of how to forecast where fish are, how many there are, when they’re going to be there and all the rest of it.
Who decides when there is enough consultation? Who decides when the science and the socio-economics have been studied? Who decides what happens to small communities? When do we decide that we’ve had enough consultation? Who decides that? Do you get to decide that? Does Fisheries decide that? I am stymied by that. Quite frankly, the people to whom I am speaking are confused by it also.
Ms. Burridge: One of the problems we’ve had in this process is that consultation has been shortened because we’re on very tight timelines. As well, DFO has trouble going from the big principles of what it wants to protect, to actually finding places where that will work in a way that doesn’t have unintended consequences. They are beginning to see that the consequences could be worse if you displace fishing activity here and send it somewhere else.
I believe the task was a little too ambitious. I think we will meet the marine conservation target for 2020, but I would really like to see us take the time, evaluate what has been done over the last four or five years, and learn what we need to learn from that before we go on to more ambitious targets.
Mr. Lansbergen: I wish to comment on the consultation piece. Clearly, DFO is the one that decides when the consultation is complete and how they approach it. They have indicated that they try to reach out to all the relevant stakeholders for an individual MPA or area of interest. However, our industry is very fragmented, particularly on the inshore side.
There are hundreds and thousands of fishermen that may be impacted depending on the size of an area of interest. Trying to engage them in a short time frame can be very difficult, particularly if it overlaps with a fishing season. We’ve seen experiences of that in the past, and that is the hard problem. Then, when you get to the socio-economic analysis, the data often does not exist to accurately try to estimate the actual impact. When the department gets to the RIAS stage of the regulatory process, they come up with a very small and insignificant number because the data doesn’t exist. That always gets underestimated, and it’s done after the consultation.
Those are some of the challenges we have observed.
Senator Campbell: That is exactly my concern. For starters, it is arbitrary if they decide when there isn’t information available on the socio-economics of a small town up the West Coast of British Columbia, for instance. If the information doesn’t exist then it’s incumbent upon them to get the information. We can’t move forward and say we are being scientific without getting the information. Would you agree with that?
We talk about what will happen, but in fact what will happen on the ground here? What is the effect on the people in these communities?
Ms. Burridge: Senator Campbell, we asked a fisheries economist to put together an outline of what a good socio-economic analysis would look like. We gave it to the department and they said, “We cannot do this.”
Senator Campbell: Why can’t they do it? That is my question to them.
Ms. Burridge: Because the time and the cost of collecting the data would put them outside the arbitrary timelines they’ve already decided on.
Senator Campbell: My answer is the time and the cost will be more if you don’t do this.
Ms. Burridge: I would agree, and it will be borne by communities and fishermen.
Senator Poirier: I want to follow up a bit on the discussions that have already started.
I know full well of the impact a little or a lack of consultation can have on a community and the impact in the northeast of New Brunswick over whales and the closing of fishing zones. The impact on the fishermen, the fishermen helpers and the people working in the fish plants rippled off to people in the community having no money to spend, to buy things and to go out. It has an effect and is always a concern.
You’ve talked a lot about the lack of consultation and the importance of having it. You stated that the current drafting of the bill does not provide that the minister must consult with those who will be affected by the permanent MPA closures and that such an approach is completely at odds with how to arrive at a durable solution that all the parties can support.
Have you received a response from the minister on these concerns? Will your members be seeking an amendment on Bill C-55 to correct that and to make sure the consultation process is there? It is not that they don’t have to.
Ms. Burridge: We have not had a response from the minister or DFO. If the senators see an opportunity to propose an amendment, we would welcome that.
Senator Poirier: I also have a question on the time frame for the Fisheries Council of Canada. You mentioned that the average time frame for designating an Oceans Act MPA ranges from 7 to 10 years, which is significantly longer than the interim protection of the MPA for the five-year timeline.
In your view, is it feasible for the DFO to establish an Oceans Act MPA within the proposed five-year timeline?
Mr. Lansbergen: Our understanding is that they would do the science and consultation, which typically takes about two years. Then they would use the authorities under this legislation, which would take them from years three to seven. Although those five years are shorter than the 7-year to 10-year window, to the extent that they want to establish a number of MPAs to meet our 2020 target, or perhaps another target beyond 2020, it would seem a stretch, particularly given all the other activities and responsibilities they want to perform under Bill C-68, which will come to you next.
It does seem like a stretch, but the legislation also provides for an extension of the interim MPA for a second five-year period, although it is a little uncertain from our reading of the bill what happens at the end of the first five years, or certainly at the end of the second five years. Does it fall off the table and be freed up, or would the minister have to establish a permanent MPA? It’s not entirely clear, I don’t think.
Senator Poirier: Another recommendation made by your organization for establishing marine protected areas talked about selecting the right conservation tool for the operation. In your view, should Bill C-55 allow for more flexibility in its approach, and what conservation tools would you recommend?
Mr. Lansbergen: The flexibility comes from what they are trying to protect. Preferably they would talk to stakeholders before they formally identify an area of interest. Then we can talk about what particular tool would be most appropriate.
If it is a benthic attribute, maybe a static MPA might be the right approach. If it’s something more dynamic and the attribute is a particular species, more of a fishery management tool may be more appropriate. They need to make that decision with stakeholders at the very front end.
Mr. Bonnell: There are a couple of really good examples on the East Coast of stocks that are recovering or have recovered. We’re seeing a significant rebound in the Unit 1 redfish in the Gulf of St. Lawrence. A lot of people are really excited about the potential of that fishery. Georges Bank haddock would be another example.
Those stocks have and are rebuilding in many ways because of the fisheries management tools that already exist and the minister already has the ability to implement. Be it restrictions on harvesting activities, be it seasonal closures or be it small fish protocol issues, there are tools in the tool kit that are available today. Establishing an MPA would have had a very modest to minimal impact on the recovery of those stocks. They work, as Mr. Lansbergen indicated, when you need to protect a benthic environment that requires protection.
The seafood industry does not want to be fishing on corals or sponges. That is not our interest. It doesn’t work well. It’s not effective. Outside of those examples, there are robust management systems in place judging from the fact that we are a global leader in seafood sustainability and certification today. Those tools exist and are available to use now.
Senator Munson: I would like to come at it from a different perspective. I am reading from an “iPolitics” story one paragraph saying the following:
Right now, even when a vital, unique area has been identified for protection, no increased protection is put in place until regulations come into force to officially designate an MPA — a process that can take up to 10 years. If passed, the bill would allow for an interim-protection MPA to be designated under the Oceans Act.
Is there something wrong with that?
Mr. Lansbergen: The question really becomes what tool you want to use. Is it a formal MPA under the Oceans Act, or is it a fisheries management tool under the Fisheries Act? If it is an MPA, then this legislation would certainly give the minister authority to establish an interim MPA much shorter than the typical 7-year to 10-year period.
Our point is that you shouldn’t be going down this road if an MPA is not the best tool. You should start to have a different conversation around what fishery management tool would adequately provide the protection for the attribute you’re trying to protect.
Senator Munson: Recognizing the concerns that other senators have brought up from people who live along the coasts, someone thought this up and felt the buck should stop with the minister. Someone felt this should be put into place because something is not working.
At the end of the day, isn’t it responsible of the government to make a decision to work with these communities and to work with the new act? I don’t quite follow some of the rationale this morning.
Mr. Lansbergen: With the experience we’ve had in the sector the challenge has been that the department’s approach to establishing MPAs has not been satisfactory in terms of some of the science they’ve relied on, the level and extent of consultation with the people most directly impacted and the socio-economic analysis they’ve done to measure what the impact will be on those communities.
That has been the challenge that we’ve faced. This particular bill will provide the minister with more authority that could circumvent some of that process more so, or it could just allow for them to put in protection while they’re doing the regulatory development that would not impact the front-end process.
Senator Munson: We have talked about footprints. We have talked about fishers and people involved in the environment and government. Should ordinary consumers pay attention to this? If so, why should they be paying attention to this? Is there an economic downturn of some sort that could happen because of this?
Mr. Bonnell: Ordinary citizens should be paying attention to this, but the argument we’re making is that ordinary citizens should have some level of comfort that in recent years the seafood industry, in Canada in particular, has gone and continues to go through great strides to have a responsible and sustainable fishing industry, referenced by the fact that the majority of our fisheries meet the gold standard of third-party certification.
Think about the choices you make every day when you go home and choose what you’re going to eat. I’ve talked about this frequently and I can tell you there is some great published literature on this. If you were to do a comparison of seafood versus dairy versus beef versus pork, an apples-to-apples comparison in terms of whether it is biodiversity loss, irrigation or some other factor like CO2 emissions, the seafood industry stands out above most, if not all, of the other food-producing areas.
We think there is a great story to tell and consumers should be aware of it. We don’t think about coming up with arbitrary targets for protected areas. Where it makes sense, yes, and we’ve already indicated we support where it makes sense, but by attempting to achieve random targets and do it so quickly with the 5 per cent target that we’ve met and the 10 per cent that we know we will meet, it’s there.
Our bigger concern as an industry is what next? There are a lot of concerns that there will be a 2030 commitment made potentially by this government in the not-so-distant future. For what cause or for what purpose when we are already recognized as one of the most sustainable and well-managed fisheries out there?
We have room to improve and there are tools to improve it which, in part, could be MPAs, but it shouldn’t be based on an arbitrary target that is rushed through a process. I think that is the position we would hold.
Mr. Lansbergen: Perhaps I could make one comment on the consumer element of this issue. The Canadian marketplace is supplied by about 70 per cent of imports of fish and seafood and the other 30 per cent from domestic supply. We export about 80 per cent of what we produce.
If consumers are interested in protecting the oceans by what fish and seafood they choose to buy, they would have to look at where it comes from and not only what type of fish and seafood it is.
Senator Bovey: This is an interesting and important topic. You’ve used the word “balance,” and I think that’s an important word. The prior government signed the agreement to reach the 10 per cent target, and we’re all trying to work out how we meet the commitments that have been made over time by Canadian governments.
The term “tool kit” has been used. We all have tool kits regardless of our profession. The skill is: Are you using the right tool at the right time for the right reason? This bill is looking for a balance among conservation, socio-economic issues and science. Because you feel implementation is the issue we should be looking at, Mr. Lansbergen, I am getting the sense that we all agree we need to look at balance and perhaps not at the detail of the bill itself.
Could you each talk about Mary Simon’s discussion of a conservation economy and where this tool fits in a diversified tool kit within the conservation economy?
Mr. Lansbergen: I am not specifically aware of Mary Simon’s theories. In terms of using the right tool at the right time for the right task, certainly in my own life as a handyman I know the value of that and how problematic it can be if you try to use the wrong tool for the wrong task.
In terms of government policy, it is very important that we look at what we’ve said before. What are the particular attributes that the government is trying to protect? How does that work with the other areas of interest? A report that just came out looked at all the marine refuges the government has established. When we look at the breakdown, a vast majority of those are for protecting special benthic attributes.
When you look at the overall biodiversity within the Canadian jurisdiction, what do we have to offer the world in terms of biodiversity? What is vulnerable, what is at risk and what should be protected to maintain the spectrum of biodiversity? Is it that the benthic attributes are most at risk? If so, an MPA might be the best approach. If Canada is an important host of other attributes, we should be looking at those attributes and then looking at the appropriate tool.
Thus far the focus has been on meeting the 10 per cent and less so on what that overall picture looks like.
Ms. Burridge: In the Canadian seafood business we already operate to a large extent in a conservation economy. You heard how most of our fisheries are Marine Stewardship Council certified or recognized by Monterey Bay Aquarium or Ocean Wise. That is because we’ve been through a fisheries management process where we’ve worked on stock assessment. We think there is more to do on stock assessment, but we have done quite a lot of work on stock assessment. We’ve set harvest control rules. We have reasonably decent enforcement.
We have done all those things so that we can expect to have a long-term future producing fish and seafood for Canada and the world. We think Canadian consumers definitely want to be able to eat local fish.
Can we do more? Yes, of course we can do more. Senator Campbell, you probably know the province is quite keen on a restoration economy for rebuilding salmon populations. We would certainly be supportive of that concept as well. There are huge opportunities for Indigenous people there as well.
Senator Bovey: Of course those are other tools in the tool kit. You might want to address, if you could for a moment, what is allowed in a marine refuge area that might not be allowed in a marine protected area.
Mr. Lansbergen: A marine refuge can be something that is under the Fisheries Act. It uses a fishery management tool that would prohibit a certain type of fishery activity such as bottom trawling, for example, the primary activity they have been prohibiting because of trying to protect benthic attributes.
An MPA is under the Oceans Act. It has much broader powers. An Ocean Act MPA can prohibit other industrial activity such as oil and gas, whereas under the Fisheries Act there are certain limitations that do not give the minister authority to prohibit oil and gas activity or other industrial activity such as seabed mining that is emerging. Those are a couple of examples where the MPA authorities are much broader.
Senator Petitclerc: I would like to hear your thoughts on the precautionary approach of this bill. This bill calls for a precautionary approach, saying that in a situation where scientific certainty is not there you can still move on, if needed. You have all talked about the need for a science base or database. At the same time, when it comes to the environment I think history has shown us that sometimes if we wait for science or certainty in science the damage is already done.
Are you saying this precautionary approach has no place at all, or that it should be done only in certain circumstances? I want to hear you a bit on that.
Mr. Lansbergen: I think it comes back to Senator Bovey’s comment on balance. Fisheries management incorporates a precautionary approach, so we are used to that approach. It is how it gets implemented or applied.
When the department is identifying an area of interest and the science rationale is incomplete, we have to collectively debate the balance question on that. However, that may not necessarily dictate a certain path in protecting the attributes in question. It’s still a question of whether an MPA or a fisheries management tool would be the most appropriate tool or is it a fisheries management tool. I don’t think it is a debate on which tool is necessarily precluded by fulsome science or a precautionary approach.
Ms. Burridge: For instance, when a fishery goes through Marine Stewardship Council certification, one of the things that is assessed its impact on habitat . We build in that precautionary approach at every stage of fisheries management.
Senator Busson: This is a really important topic. I grew up on the East Coast and now live on the West Coast, so I have a background in perspective from both sides of the country. You used the word “harvesting,” and we know your industry is so important that it remains sustainable. You, better than most, have the vested interest to protect the resource we’re all talking about.
A number of senators were asking about consultation and the lack thereof in the work you do in your industry. Are advocating a place at the table during the discussions around MPAs or conservation generally? If so, what might that participation look like from your perspective? We’ve sort of talked about it at the 20,000-foot level, but I am wondering what you would see if you were to make a recommendation on how that might work.
Ms. Burridge: Maybe I could give you a quick example from the West Coast. A few months ago in November, I think, we saw the establishment of the Gwaii Haanas National Marine Conservation Area Reserve. When Parks Canada, DFO and the Council of the Haida Nation came to us, they wanted to close over 48 per cent of that area. This was the first time we had seen that as a target.
We got together all 24 fisheries that operate in that area over a three-month period. It was extremely intense. We put together 19 different maps representing the various types of fisheries. We overlaid each of those maps until we came up with one map. Then we overlaid it on the original target map. We were able to meet the cultural and conservation targets while reducing the economic impact.
We could close less but do better with it, but we couldn’t do that without the voice of the people on the water being directly engaged. No one person could represent all the different fisheries, so it needs to be an intensive community engagement process.
Mr. Bonnell: I know we’re short on time, but I want to leave senators with an observation. The organization I represent employs about 1,700 people, primarily in Newfoundland and Labrador but also in Nova Scotia. We take that responsibility extremely seriously. This will only work on a go-forward basis.
I graduated high school right around the time of the cod moratorium. My family are fishermen. I know the impact when we get it wrong; I know the consequences. We’re very much focused on sustainable fisheries and maintaining these coastal communities. We’re heavily engaged in things like the Marine Stewardship Council process. Where we don’t have MSC in place, most of our fisheries are in a designated fishery improvement program for rebuilding stocks, which looks at harvest control rules. It’s getting fisheries in the queue for certification.
I want to leave senators with the impression that we are all for sustainability. We believe in certain circumstances and in certain instances MPAs can work, but we have existing tools that work very effectively. I would urge caution, particularly on a go-forward basis, at setting targets that may make us look good on a global stage but may not get the desired results we are looking for.
Mr. Lansbergen: As Mr. Bonnell alluded to, at a high level we are also talking about the go-forward international post-2020 biodiversity framework. We are in a dialogue group with Environment Canada and DFO about many of the Aichi targets. Marine protected areas is one of those. It is a challenge to actively participate in that type of consultation with many other stakeholders, to be heard and to pay attention to all of the associated technical details.
We are very concerned about the global community, not just Canada, rushing forward to a more ambitious post-2020 target on protected areas when we have not truly evaluated the actions we have taken to meet the 2020 target. Many of the actions even within Canada are very young, so how can we measure their effectiveness if they have only been in for a couple of years?
The Chair: Thank you to our witnesses and thank you, senators. That completes our first panel.
I would like everyone to keep their questions and answers to five minutes or so because we have a full group here today. If we find time to get to a second round, we will. I will not cut you off completely at five minutes, but I will start the clock and you won’t be able to go beyond six minutes. I will try my best. I like to have conversation engagement here, but at the same time we have a lot of senators today who have some questions to ask.
I ask our new witnesses to introduce themselves, please.
Keith Sullivan, President, Fish Food and Allied Workers: Keith Sullivan, President of the Fish Food and Allied Workers, Newfoundland and Labrador. We represent about 15,000 workers in the province, most of whom are in the fishery, including around 10,000 independent owner-operator fish harvesters.
Joshua McNeely, Marine Protected Area, SARA Senior Advisor, Maritime Aboriginal Peoples Council, Maritime Aboriginal Aquatic Resources Secretariate: I am Joshua McNeely, an Oceans Act and marine protected areas adviser for the Maritime Aboriginal Peoples Council. The council is a combination of councils that represents about 42,000 Aboriginal peoples who live off reserve in the Maritime provinces and have treaty rights for food, social and ceremonial fishing as well as Aboriginal commercial fisheries in all three provinces of Nova Scotia, New Brunswick and P.E.I.
The Chair: Thank you. The floor is yours, whoever wants to go first.
Mr. Sullivan: The fish harvesters we represent pretty much work and live in every community in Newfoundland and Labrador, about 500 in total. The reason most of these communities were settled was because of the fishery. That has been the main industry there for many years.
Our members are inshore harvesters and part of an overall inshore fleet in the province. It is really the foundation of the rural middle class in our province. That is what the fishery has grown to become. Good middle class jobs and good resources are the foundation for those jobs.
To ensure that our communities and our industries continue to flourish, we need healthy marine ecosystems. It has to be managed sustainability and holistically, which ensures that resources can continue to provide generations into the future.
Bill C-55 and marine protection are of utmost importance to our organization and our members. Newfoundland and Labrador’s oceans contain a vast amount of biodiversity that must be both protected and managed sustainably. In Newfoundland and Labrador we share our ocean with the petroleum sector. Co-existence of the two industries has been far from easy. The establishment of marine protected areas has been one area in which our members have felt an uneven application of regulations and policies.
Fish harvesters believe their sector is feeling the brunt of the marine closures, while oil and gas are able to continue totally uninhibited. In fact, in the province now we’re witnessing record levels of seismic activity. For example, the effects of seismic activity on many of our fish and the overall marine environment are really unknown. Our organization is strongly advocating for much more work to be done on the impact of seismic activity on our marine environment.
Bill C-55 states that ministerial power exists to prohibit activities in protected areas. Now, as in the past, we reiterate that prohibition of these activities in marine protected areas must be uniform in all different sectors. That includes oil and gas and other marine activities as well. We have in the past encountered closed areas to fishing where oil and gas activities have not been prohibited. We have concerns around the prohibition of entire classes of activities, as the act states, particularly as they relate to fishing that might not stop other more destructive activities such as oil and gas exploration.
The loss of valuable fishing grounds through marine closures is hard to accept when a fisher can’t put a hook in the water but seismic blasting and potentially drilling in the sea floor is still allowed. It just doesn’t make sense to harvesters or many other people for that matter.
We understand that the lengthy MPA designation process has contributed to the establishment of the five-year period to develop regulations and allow for interim designation. There are gaps in the bill that cause concern. The bill states that within five years of an order regulations may be recommended or repealed based on consultation and study. Yet there is no deadline stated for the adoption of the regulations. It’s a key distinction that should be noted. This open-ended approach causes concern that while recommendations might suggest a protected area has not achieved its intended purpose there is no deadline for an actual decision.
Spacial management of living resources will always come with the challenge of having to be adaptive in our approach. Oftentimes the lines we draw to protect areas require adjustment to achieve their intended purpose.
Not having a set deadline on when a ministerial decision must be made means not having a set time frame that would allow the area to be reopened and the regulations to be repealed if necessary. This would mean having our members shut out of an area that could be valuable to fishing. Yet this marine area is clearly not fulfilling the goals it was intended to accomplish. We agree on the requirement of and advocate for flexibility in the MPA process. We must also ensure that flexibility comes with strictly laid-out timelines to ensure necessary adjustments happen in a timely manner.
While petroleum companies that have licences revoked in closed areas will have deposits returned, Bill C-55 states that there is also a legislated obligation for these companies to negotiate further compensation with the minister. Obviously fish harvesters who traditionally fish these same areas would experience significant losses as well when an area is closed to fishing. Yet our members are not given the same consideration and do not have the same legal recourse to receive compensation for demonstrated financial loss to their enterprises and their communities. This is a serious concern for our members.
Further, it is concerning that the bill states foreign nationals and ships can be exempt from the regulations. We have continuous concerns around foreign interests being able to invest in our fisheries sometimes through avoiding policies like the owner-operator ones. We hope there are other ways to deal with it. Bill C-68 is something that might offer some consideration there. We fear the gap in enforcement will result in foreign companies using this legislation to take advantage of resources that Canada’s fishing industry will be shut out from.
The marine protection process is very important to our membership. Our marine environment is currently undergoing a significant shift in ecosystems. As our members navigate through this period of transition, they want to ensure that their voices are at the forefront of the decisions that will significantly impact their livelihoods.
Designation of MPAs must ensure that fish harvesters are not only consulted and heard but that closures do not affect one industry disproportionately more than another. Closures and prohibitions must be uniform across the industries. Timelines, processes and criteria must be clear and not filled with ambiguity.
The survival of our coastal communities relies on the protection of marine resources and provides for livelihoods of people in these owner-operator fleets. This is the backbone of the rural economy for much of our province, so ensuring the survivability of this fleet is vital for future generations of our province.
Through Bill C-55, and more broadly in the process of designated marine protected areas, the perspectives of inshore harvesters are vital. Legislation must ensure the designation process is transparent, thorough and achieves the intended goals of the designation, while ensuring that no double standards exist. The oil and gas industry, for example, gets a free pass while others are shut out that are arguably much less damaging and have less impact on the environment overall. The livelihoods of members of the FFAW and our communities depend on this being so.
I know I was a couple of minutes over. Thank you for taking the extra minutes to listen.
Mr. McNeely: Compared to Bill C-68 and Bill C-69, the Maritime Aboriginal Peoples Council has had very little interaction on this bill other than a few teleconferences by DFO, NRCan and Indigenous Northern Affairs Canada to summarize the intention to create a new authority for freezing the footprint or providing an interim protection for an MPA going through the designation process.
That presupposes that we need interim protection. The area we are talking about is well understood. The interim protections are needed. That at least advances a precautionary principle. Some of the communities of interest that may be directly affected by the interim protections are predominantly supportive of achieving marine conservation via an MPA.
Our experience on the East Coast over the last few years is that neither have been broadly accomplished. For example, I was involved in the St. Anns Bank marine protected area advisory council. During that process we were looking at an area of interest. About a quarter of that area was removed from what resulted in the final MPA. As compensation, we agreed to add another small area tacked on to the side that wasn’t included in the original footprint. DFO also made changes to the zoning during the gazetting process, which was outside the collaborative process of the area of interest advisory committee.
In our view the result is that the MPA is neither special, unique nor rare. In fact, the MPA encompasses two World War II munition dump sites that the Department of Defence does not intend to remediate.
At least we are supportive of that process because it stretches back to the days of another process called the Eastern Scotian Shelf integrated management plan. That collaborative process was started in the mid-2000s with a lot of interest in the Eastern Scotian Shelf area. We had a lot of dialogue. It was cancelled in 2010, despite everybody wanting it to continue.
The first meeting of the St. Anns Bank MPA advisory committee will be tomorrow. We hope it will continue to foster dialogue and provide useful information, experiences and leadership within the MPA that we can use outside of the boundaries of the MPA and really learn from our MPAs.
Right now I am involved in another MPA-establishing process, and that is the Nova Scotia eastern shore Islands area of interest. I have been involved in the science peer reviews, discussions about ecologically and biologically significant areas, and other discussions which have led to the selection of the area of interest. Those have been predominantly DFO led with much of the discussion internally within DFO.
Many communities that live along that area will be impacted. The fishermen’s first port of entry was the point when DFO announced the area as an area of interest. If DFO opened those discussions a year ago at the area of interest table and said, “We are applying interim protections right away,” I am quite certain it would have been a complete disaster. It is a very difficult process at this point without what is contemplated in Bill C-55.
Even though DFO has made concessions to fishers in the eastern shore Islands MPA, I believe it is DFO’s good intention to have an MPA that includes sustainable fisheries. In fact I agree from an ecological standpoint in the MPA. Others around the table do not share my knowledge and they do not see through my eyes what is trying to be accomplished. Others have expressed that what they need as fishermen is better fisheries resource management from DFO, not a DFO-pushed MPA. That too is a valid point that I certainly will not argue with.
In short, MPAs must be built from the ground up. Bill C-55 is a knee-jerk reaction to scramble to go from 5 per cent to 10 per cent MPA coverage in a short time. Do we value short-term numbers over effective and sustainable MPAs?
Fundamental to the Convention on Biological Diversity is the fair and equitable sharing of benefits arising out of the conservation and sustainable use of resources. The latter two are unsustainable or not meaningful or effective without valuing partners, exchanging ideas, supporting capacity development, public education, research and training, incentive measures, and other forms of benefit sharing including what may be monetary benefits and social recognition.
Aboriginal peoples are still re-entering the commercial fisheries as well as attempting to acquire additional access to aquatic resources necessary to meet our community of needs, including realizing our Aboriginal and treaty rights and our self-determination. Today we are still not privy to DFO’s internal Aboriginal policies with regard to commercial fisheries. DFO continues to be of the view that Aboriginal communal commercial fisheries licences are operationally similar to regular commercial fishing licences.
For example, the starting point of discussion for an MPA designation is that while food, social and ceremonial fisheries may be exempt or allowed to continue within the MPA, any Aboriginal communal commercial fishery for a species will be treated equally to any commercial fishery for that species.
Section 35 proposes, in effect, to freeze the footprint of any ongoing activities, but we are unsure whether that anticipates and protects the expanding interests of Aboriginal peoples to exercise Aboriginal and treaty rights for food, social and ceremonial purposes, as well as a moderate livelihood and the accommodations made to Aboriginal peoples through the Aboriginal Communal Fishing Licences Regulations. If the minister under subsection 35.1(2)(d) may exempt foreign entities, cannot Canada guarantee to Aboriginal peoples continued access to MPAs and areas of interest?
If the minister under the proposed subsection 12.1 of the Canada Petroleum Resources Act may enter into negotiations with a petroleum interest for a determination of compensation for their surrender of interests, cannot Canada also work with Aboriginal peoples to determine the real economic and social value of the area to Aboriginal peoples and negotiate what is the appropriate compensation for a loss of access and future opportunities or what would be necessary for our meaningful involvement so that we may continue to obtain at least an equal benefit or preferably something that goes further down the path of reconciliation?
Unfortunately I cannot provide any advice on Bill C-55. As I said at the start, we have not had much interaction specifically on Bill C-55. However, I would request that some assurances in the Oceans Act beyond that of a non-derogation, non-abrogation clause would be a good starting point.
As a final point, when it comes to the petroleum resources offshore of Nova Scotia, the federal and provincial governments have agreed to disagree about who owns the resource. They have vowed to govern resources and share in the royalties via an accord and mirror legislation.
MPAs and other marine conservations until lately have not featured much in the discussions at the Canada-Nova Scotia Offshore Petroleum Board. We sit there as members of the Fisheries Advisory Council. We are most worried about the Province of Nova Scotia opposition to any more MPAs, citing in particular the province’s desire to exploit offshore oil and gas. Despite some people’s feelings expressed to us that the CNSOPB would honour Bill C-55, we remain unconvinced and suggest that the issue might be better dealt with through a renewed accord. Thank you.
Senator Gold: Mr. McNeely, in your remarks you talked about Bill C-55 being a kind of knee-jerk reaction. I want to make sure that I understand and that those who are listening get it right.
Do I understand correctly that the 10 per cent target flowed from the Convention on Biological Diversity, an international treaty entered into by the Government of Canada some years ago?
Mr. McNeely: Yes, Canada was the first industrialized nation to sign onto the CBD in 1992.
Senator Gold: We’re at almost 8 per cent now, I gather, in terms of the target. I wanted to be clear.
Mr. Sullivan, I don’t want to put words in your mouth, but do I understand correctly that you don’t really have problems with the bill as written as much as you want to make sure that in its application it’s fair and applied in a uniform way, certainly as between sectors of activity, fisheries and oil and gas being the two you mentioned?
If that’s correct, are there nonetheless any amendments or changes? You mentioned strict timelines you asked us to consider when we go into the details of the legislation.
Mr. Sullivan: I would say a couple of things. As I mentioned before, they recommend going into five years, but beyond that there is nothing that governs the implementation. It could be held in limbo without the changes or the inability to make changes there. It’s not prescriptive enough in that perspective. I would suggest that there be some consideration to make that less ambiguous and clearer in the process.
Another area I didn’t concentrate on in the opening remarks was around freezing the footprint. As we know, fish move and patterns are different. There are lots of reasons why a harvester wouldn’t operate in a given area for a year. There are too many reasons to list right now. To freeze that footprint in the year before needs some consideration. Some flexibility and common sense need to be looked at as well. Freezing that footprint of the year before could be a problem area, particularly for fishing activities.
Senator Gold: Mr. McNeely, you mentioned in your remarks that you would like to see something above and beyond simply a non-derogation clause to acknowledge, respect and protect the rights of Indigenous peoples.
Could you elaborate a bit more on what you think might appear in the bill to achieve that objective?
Mr. McNeely: The Oceans Act, as it stands right now, references consultations or discussions with Aboriginal peoples, primarily in the stages of developing integrated management plans. That language obviously should be retained. As was mentioned earlier by the previous panel, some of the faults aren’t necessarily with the text of Bill C-55 but have been with the implementation of the Oceans Act in general. When I cited the Eastern Scotian Shelf integrated management plan, for us that was a beneficial process but it is a process that has not been picked up since 2010. We haven’t had any comparable process.
In the eastern shore Islands area of interest it has been very difficult for us to participate in the process. We may have Aboriginal and treaty rights, but we are the Joe Blows out on the wharf, too, who have to deal with that reality.
We prefer a collaborative and open process by which we might all come to an agreement on an MPA. I referenced the St. Anns Bank process that established or started that MPA back in the ESSIM days of the late 2000s. We had narrowed it down from many areas that DFO looked at scientifically and said that there were many opportunities for protection. We narrowed it down through several steps to be one area of interest that everyone agreed on. That stage, for Bill C-55, freezes the footprint approach that would have worked in St. Anns Bank because there was already so much discussion about it.
It is not necessarily a change. If the committee would like to put more forceful language into sections 31 and 32 about implementing these integrated management plans, it would certainly be helpful.
Senator Munson: Mr. McNeely, you used the words “knee-jerk reaction.” That means an automatic or unthinking reaction according to the dictionary. What would be a realistic reaction, as opposed to a knee-jerk reaction, to the MPA going from a 5 per cent to a 10 per cent marine conservation area? Is there a realistic and not a knee-jerk reaction that could be taken in your estimation?
Mr. McNeely: Yes, in the answer I have just given. I used the term “knee-jerk reaction,” knowing full well that it would probably raise a few eyebrows. We were signatories to the convention in 1992, but very little work had been done on MPAs. In fact the Aichi targets were coming to the end of that 10 years. This new government came in and rightfully so, in my opinion, said, “We’re out of the international community when it comes to environmental issues.” Canada had always been seen as a leader internationally on environmental issues and wanted to get back into the game.
I applaud those announcements internationally, but they have a tremendous effect on communities when the process is DFO coming into an area and saying, “This is the area of interest; this is the area we’re going to go with.” Many would agree with me that it is a knee-jerk reaction to go from that 5 per cent to 10 per cent. The process that many people had liked was that eastern process, but we lost that in 2010 and we haven’t had anything comparable since.
Senator Munson: Mr. Sullivan, much has been said this morning about ministerial power. Many people feel the minister has too much power. I want to know where you see ministerial power in this regard because in your statement you talked about closed areas to fishing but oil and gas have not been prohibited. How do you envisage a Minister of Energy with a Minister of Fisheries? Where do you see their power and what would happen in sharing our coasts when it comes to energy, gas and that sort of thing and fishing?
Mr. Sullivan: I didn’t really choose to focus too much on that, but I do have the concern, particularly if abused, the implementation without the proper consultation and everything else could be a serious issue. Right now for the Minister of Fisheries, it’s not a big change. Fisheries can be closed. The minister can close fisheries now very quickly. To deal with some of the other issues, like oil and gas or some shipping or some other activities at sea, I guess this gives additional power over some of those other things as it relates to a marine protected area.
That area is not something that would have alarmed me, but I would share Mr. McNeely’s concerns about the rush that we saw to get to 5 per cent. It’s not the idea of protecting those areas because I believe harvesters and communities are people who ultimately benefit the most from marine protection. But getting it right is the most important thing.
We share the same considerations in Newfoundland when we had a marine protected area in Eastport. That was harvester driven, had local buy-in, and the people there still protect the area and are stewards, whereas the opposite happened when we tried to get to 5 per cent. There is not much buy-in. It was rushed. We got to 5 per cent in a year and really the support doesn’t exist. We don’t think we’re necessarily protecting the right things.
These are not marine protected areas. These are marine refuge areas primarily that were implemented in the last couple of years. It’s a similar process and it really means the same thing for a harvester. Call it what you want. It’s an area where there can be no activity. So we understand there is a different process, but the same result for a harvester in this case.
I know I elaborated a bit at the end, but did I answer your question in the meantime?
Senator Munson: There is not much time.I am concerned about the ministerial power questions primarily. It seems from a certain perspective that the minister has too much power. Does he?
Mr. Sullivan: Again, it wasn’t something that was particularly alarming in this one, but there is a responsibility to consult properly with stakeholders, whether it’s Aboriginal, Indigenous groups, or whether it’s inshore harvesters.
Senator McInnis: Thank you for being here. Look, I live in the heart of the Bay of Islands in Sheet Harbour where from Jeddore through to Liscomb there are something like 700 islands. It is the greatest archipelago apparently in America. It is great that Nature Trust found out about this and now own about 90 per cent of all of the islands, which people support and so on.
Do you not believe the fact that Nature Trust purchased these islands as part and parcel of DFO declaring this to be an area of interest?
Mr. McNeely: The archipelago of islands is a tremendously beautiful area and I have relatives who live there. Half of the area is protected provincially as a wildlife management area. Nature Trust, through the 100 Wild Islands Campaign purchased a number of them. The Canadian Wildlife Service federal department is hugely interested in conservation for sea ducks because it is a tremendous corridor area.
DFO, on looking at its mix of marine protected areas, sensitive benthic areas and other conservation areas, realized they had a lot of offshore areas. In the Maritimes we only have two small unique and important coastal areas, but they were looking for something a bit more substantial. They went to several harbour areas such as Port Joli and suggested marine protected areas for there. There were not a lot of invitations from those communities.
When DFO was looking for an area they considered that the eastern shore Islands had a lot of protections already. There are also provincial onshore wildlife areas there. It is a very conservation-oriented community. Every family seems to be entrusted with an island. I think they seriously looked at it and said, “Hey, this is a slam dunk for us to meet our coastal marine protected area obligations.” We’ve run into the problem where it seems as DFO came in unilaterally and said, “Hey, we like your backyard; we want to protect it,” instead of a collaborative process to identify what needs to be protected and what that protection should be.
I think that’s an appropriate answer.
Senator McInnis: They came in and took it. That is what they did.
There was some reference by the previous panel with respect to the area of interest. There is an order that lasts for five years. It is not automatic. The minister must then make a determination as to whether it will go to regulations. It is not automatic that it will go for another five years if it doesn’t reach the goals they want. Just for clarification I don’t think I missed that. It is an order and then it becomes a regulation.
Here is the problem and the uncertainty created by the regulations guiding the MPAs. What happens if the government changes? At the moment there can be a no-take zone. At the moment allegedly they’re saying that the lobster fishermen will be able to fish if they fished the previous 12 months.
That will be a stroke of a pen if some other minister or some other government comes in, and then there will be no lobster fishing for these people all along the coastal communities. That is part of the problem.
No one knows better than the fishers themselves. Why do we not have a system where they, in conjunction with Indigenous communities, make a determination that this should be a marine protected area? If it comes from the bottom up, it will be less likely that there will be change down the road with successive governments.
What is wrong with that kind of system, as opposed to one coming in and saying, “We’re designating this an area of interest and good luck. Try to prove differently?” What would be wrong with the approach of actually consulting and asking the public?
Mr. Sullivan: Regardless of the process, that is absolutely necessary if you are to have a level of success and buy-in. I would argue that you will need that. That is why some of the areas have already been established in haste to meet somewhat arbitrary targets of 5 per cent and 10 per cent. They are not necessarily the targets for protecting certain marine areas and biodiversity. I mean, there was a bit of a proxy for it, so it was rushed.
There are two areas off the coast of Newfoundland and Labrador, the Hawke Channel box and Funk Island Deep, where there was no bottom trawling or gillnetting. Harvesters believed that was good for crab, the most valuable resource at the time. All of a sudden there is no ability to set any other gear in there for cod. It is not even an area that would ideally be protecting cod.
It is just an example of how the process was rushed to meet a target and the consultation wasn’t done. I agree that needs to be an element of whatever the legislation, whatever we deal with. If not, we will have problems. If there are ways that the legislation and the follow-up regulations can ensure that, obviously I am all for them.
Senator Bovey: I hear your concerns about oil and gas and fishing, Mr. Sullivan. I wonder if the difference is that there are legal ownerships in oil and gas and fish are determined to be common property until they end up in the boat of the fisherman. If that is the case and if you agree with that, what could be done — I shouldn’t say level the playing field — to level the water field?
Mr. Sullivan: Your question is one that has been brought up before. Yes, it is a question of fairness. Fisheries resources are a public resource but they’re a significant investment and people have a history of fishing in an area. If you can’t harvest something from an area, obvioulsy losses can be demonstrated. It is the same if international companies come in and have prospects for oil and gas. They can demonstrate on some level a loss of potential income. It is just a matter of finding the tool.
Most people would agree that there are debts and inequity. I would argue some of the richest corporations in the world are to be compensated, while our members, inshore harvesters who don’t have a real opportunity to take their fishing enterprises internationally off the coast of Africa or Brazil, are not compensated. That will desperately need some attention in coming years. There is a lot of frustration now because of the inequity harvesters are seeing when dealing with seismics in areas where they can’t put a hook.
Mr. McNeely: I agree with that. I would say get rid of the term “frontier lands” in the Canadian Petroleum Resources Act. These are not frontier lands. These are waters used by multiple resource users including fishermen.
When I spoke of having a renewed accord that is what I was talking about, and not just a renewed CNSOPB for Nova Scotia but a renewed accord about how we use our coastal areas, our continental shelf and our 200-mile economic exclusive zone.
Senator Bovey: Mr. McNeely, the House of Commons accepted an amendment to this bill that had been put forward by Mr. Tootoo and Mr. McLeod. The amended clause with regard to consultation with Indigenous lands read:
. . . this discretion should be exercised in a manner that is “not inconsistent with a land claims agreement that has been given effect and has been ratified or approved by an Act of Parliament.”
Has this amendment has been looked at by your organization as it pertains to the region you’re concerned with, and do you have any further comment on that?
Mr. McNeely: I apologize. I was not familiar with the amendment. We had not looked at it. Land claims in the Maritimes is a different process than what most Canadians may be used to. We have pre-Confederation treaties of peace and friendship. I know the Mi’kmaq chiefs, basically the First Nations chiefs, have been involved in an ongoing process for years and years and years with no resolution in sight on comprehensive land claims.
Our preferred mode is peace, friendship and trade. We wouldn’t have comments on land claims right now, but we could look at it and give the committee some additional commentary on that.
Senator Poirier: Mr. Sullivan, you stated that you’re optimistic the consultations going forward will be meaningful to ensure socio-economic and cultural concerns. You made a comment a few minutes ago in answering another question that DFO had a responsibility to consult.
Basically I am asking a twofold question. First, to date, are your members’ socio-economic and cultural concerns reflected in the government’s decision making?
Also, you made the point that the DFO had a responsibility to consult. As I mentioned when questioning another witness earlier, the current drafting of the bill does not provide that the minister must consult with those who will be affected by a permanent MPA. I am just wondering if that concerns you.
Mr. Sullivan: I guess I will start off with how our members would feel about the process on meeting the previous 5 per cent and obviously foreseeing the inequities between different industries. I pointed out a couple of examples earlier about how Hawke’s Bay and Funk Island have to be revisited. The short answer is tat I am not happy or not pleased with the consultation on the previous work.
We have a large area called the northeast slope over 100 miles off the coast that has areas where harvesters can’t fish but the oil and gas can still operate. The areas where harvesters can’t fish don’t even count toward our targets. We’re probably looking at an area of 15,000 square kilometres where harvesters can’t fish and now we will have to find new areas because that doesn’t meet the targets. Harvesters will be slammed with the double-whammy if we don’t deal with that.
We’re obviously concerned about how the consultation is going forward. If there are considerations on fair and reasonable consultations with stakeholders that can make this better, we would be interested in something that would accomplish that for sure.
Senator Poirier: Mr. McNeely, in the second and third paragraphs on the last page of the documentation you went over with us, you mentioned the minister under the proposed section 35 and used the words:
. . . cannot Canada guarantee to Aboriginal peoples continued access to MPAs and areas of interest??
In the next paragraph, you use the same language:
. . . cannot Canada also work with Aboriginal peoples to determine the real economic and social value of the area to Aboriginal peoples and negotiate what is the appropriate compensation . . . .
Using the word “cannot” tells me they’re not doing so right now, which means that they’re not talking to them or are not consulting with them. Could you comment on that, please?
Mr. McNeely: I think this came up in the earlier panel too about socio-economic analyses. We have yet to have been engaged with the process with DFO on a true accounting of what the socio-economic costs or benefits are to our community for a marine protected area, a species at risk listing or any number of other regulations beyond what is normally counted, being the total landed value of a particular stock that you might not be able to fish any more.
For our communities particularly off reserve that do not have the social safety net of the Indian Act, we have stood for many years on our own two feet to provide social services for our members who are caught in a jurisdictional wasteland between federal and provincial governments. We have done that through some program money, albeit a very small amount compared to our brothers and sisters on reserve, but in large part particularly economic development through our fisheries.
The fisheries for the three Native councils that belong to MAPC are incredibly important. They are the lifeblood for our community. The cost or benefit of a regulatory decision for a marine protected area and potentially kicking us out of an area is much, much greater than the landed value of that fish.
It is the identity of our community. It is our social structure. It is our pride and our self-worth. That is not accounted for in socio-economic analyses that look at iterative steps that the government takes. I don’t know the whole terminology used by Treasury Board, but there is a very prescriptive process that SCIS and RIAS go through that really doesn’t get at what we feel should be in there.
Senator Christmas: Mr. McNeely, I was quite curious about your comments about the St. Anns Bank MPA just off Cape Breton Island. You mentioned that this MPA was neither special, unique nor rare. I understand you’re on the St. Anns Bank advisory committee. Why was this MPA created?
Mr. McNeely: It goes back to a very long process through the 2000s with the Eastern Scotian Shelf integrated management plan and the collection of interests. We went through, as I said, several steps of looking at many areas on the Eastern Scotian Shel including the St. Anns Bank area for possible protections.
Quite honestly, when ESSIM was cancelled in 2010, it gave many people an uneasy feeling. The attitude by and large was, “I am not going to necessarily go for an area that I am fishing in and try to work through a collaborative process when the base of that process, the ESSIM plan and the implementation of ESSIM was cut out.” It became a reaction to, “Pick some place that I am not fishing.”
We all know that where there are fish is where the biodiversity is. That is what we’re trying to learn to live with in harmony with our natural world, some of which may be marine protected areas or whatnot. Many people took the least contentious of the options on the table. We started off with about 30 different options and whittled it down to St. Anns Bank.
We’re also in another process on the other end of the province through the Fundian Channel area. That started from the point of picking an area in which there is very little interaction and very little potential for conflict. That area is even more problematic because it puts DFO in a position of trying to justify its conservation value. Marine protected areas should be for something that is unique and rare as sensitive benthic areas that others have mentioned.
Protecting something just to meet a conservation target is quite difficult for us. There are things in St. Anns Bank. I am not saying they are not worthy of protection in some measure, but it’s hitting a fly with a baseball bat for St. Anns.
The Chair: I want to thank our witnesses.
For our third panel I welcome, from Natural Resources Canada and Crown-Indigenous Relations and Northern Affairs Canada, Mark Hopkins, Timothy Gardiner and Daniel Lebel.
The floor is yours, whoever wants to go first.
Timothy Gardiner, Acting Director General, Petroleum Resources Branch, Energy Sector, Natural Resources Canada: I am Tim Gardiner, Acting Director General, Petroleum Resources Branch, Natural Resources Canada. Joining me today are Daniel Lebel, Director General of the Geological Survey of Canada, Natural Resources Canada, and Mark Hopkins, Director General of Natural Resources and Environment Branch, Crown-Indigenous Relations and Northern Affairs Canada, otherwise known as CIRNA. We’re here today to speak to Bill C-55. As the Minister of Natural Resources and the Minister of CIRNA share responsibility for the Canada Petroleum Resources Act or the CPRA, we’re here to speak specifically to amendments relating to that act.
I understand you will only hear from the Minister of Fisheries and Oceans and officials from that department this afternoon, so I will take the opportunity to provide a bit of context before we get into the specifics of the CPRA amendments.
On June 8, 2016, the Minister of Fisheries and Oceans announced a five-point plan for meeting Canada’s marine conservation targets. Part of that plan included establishing marine protected areas or MPAs faster by amending the Oceans Act. Those amendments include creating a new authority to designate an interim protection MPA based on preliminary science, consultations and the concept of freeze the footprint of current activities concept.
The proposed amendments to the CPRA are closely related to the Oceans Act amendments. They evolved from an issue that was identified during the establishment process of the Hecate Strait glass sponge reefs MPA on Canada’s West Coast. The identified challenge was that establishing an MPA that prohibits oil and gas activity in an area with offshore oil and gas licences could potentially create regulatory uncertainty. The identified solution was to mirror the freeze the footprint concept in the CPRA and to provide an early process for seeking the surrender of oil and gas licences where there is an overlap with an MPA.
[Translation]
The CPRA is a federal act that is used to regulate oil and gas interests in relation to frontier lands. As it relates to the offshore, the act applies in the Pacific, the Arctic, Hudson Bay, Hudson Strait and areas in the Atlantic that are not governed by federal-provincial accord acts. Currently, the only active offshore oil and gas area is on Canada’s East Coast. In the Pacific, there is a moratorium on offshore oil and gas activities, and, in the north, there is a freeze on the issuance of new offshore oil and gas licences.
The CPRA does not apply to offshore areas where there is joint management agreement on offshore oil and gas. This includes the Canada-Nova Scotia and the Canada-Newfoundland and Labrador offshore areas.
[English]
Applying similar measures to the Canada-Nova Scotia or the Canada-Newfoundland and Labrador offshore areas would require amendments to the accord acts the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act.
Going back to what I mentioned before, the primary purpose of the CPRA amendments is to complement the amendments in the Oceans Act. They are the companion piece to the Oceans Act provisions to freeze the footprint. Given this, the proposed CPRA amendments are only triggered in areas where there is an Ocean Act MPA. The CPRA amendments include the following:
First .a prohibition order to prohibit oil and gas activities from commencing or continuing in an area that has been identified as an interim MPA. Again, this only applies in the non-accord areas. When an interim MPA is identified and where the interim MPA intersects with an oil and gas interest, this amendment would allow the Governor-in-Council to make an order prohibiting oil and gas activity while DFO works to establish a permanent Governor-in-Council MPA.
Second, CPRA amendments including a new authority for the Minister of Natural Resources or the Minister of CIRNA to negotiate with interest owners for the surrender of an interest that intersects with MPA, and such negotiations may include compensation.
In the event an interest is not surrendered, the relevant minister could cancel the oil and gas interest and provide compensation. Cancellation of an interest is considered a last resort and a collaborative solution is obviously more desirable.
[Translation]
In summary, the CPRA amendments apply only in offshore areas where the CPRA is administered and are only possible when an offshore oil and gas interest in those areas intersects with an Oceans Act marine protected area. The Government of Canada recognizes the importance of developing Canada’s offshore industry to its full potential, and this means developing natural resources hand in hand with environmental protection.
[English]
The Government of Canada understands industry’s need for regulatory clarity. These amendments will help provide greater investor certainty and confidence in Canada’s offshore regime. Thank you very much.
[Translation]
Daniel Lebel, Director General, Geological Survey of Canada, Lands and Minerals Sector, Natural Resources Canada: I would like to thank the committee for the opportunity to answer your questions regarding the activities of the Geological Survey of Canada at Natural Resources Canada, or NRCan. The Geological Survey of Canada, or GSC, is an integral part of NRCan’s Lands and Minerals Sector. This national organization, founded in 1842, provides science and research dedicated to the provision of authoritative geoscience expertise, knowledge and products in support of decision making about Canada’s lands and resources. The mission of the GSC, originally focused on the geological surveying of Canada’s onshore mineral resources, has diversified over the years to respond to the needs of Canada for such decision making. Building on the GSC’s long history and its deep connection to Canada’s growth as a nation, we continue to chart the course of a modern geological survey, responding to the social and technological challenges of the day.
Today, the mission of the GSC is to provide authoritative geoscience knowledge to inform the stewardship of Canada’s onshore and offshore lands, to sustain responsible resource development for future generations and to keep Canadians safe from natural hazards and related risks.
You can find this mission and the range of priorities for the organization in the new GSC Strategic Plan for 2018-2023, which was just published. I have some copies here with me for your consideration, since it’s not often that the Geological Survey of Canada appears before a Senate committee.
[English]
I will continue to speak more specifically about the issue of conservation and how the GSC has contributed science and assessment on numerous occasions to support the delineation of land for the establishment of enlargement of national parks in response to Parks Canada as an example.
We provide resource assessments that support the definition of the best limit for the establishment and enlargement of national parks or marine conservation areas from the perspective of the mineral and fossil energy resources that could potentially be put aside from exploration and development depending on the conservation approach chosen.
As it pertains to the Oceans Act and related marine protected areas, the GSC role lies principally in the work we do with our partners to contribute to Canada’s efforts to establish this national network of MPAs and other applicable conservation measures such as national marine conservation areas. These commitments were made under the marine conservation targets announced in 2016 with the objective of protecting, as you know, the 5 per cent and 10 per cent by 2017 and 2020. NRCan received funding toward this end by doing resource and economic assessments.
The mandate and experience of NRCan in developing resource and economic assessments are critical in advancing the marine conservation targets initiative. NRCan has been working with the Department of Fisheries and Oceans and Parks Canada to prioritize the requirements for resource and economic assessments of potential sites for conservation.
The GSC has been conducting assessments of the volume of petroleum potential beneath the seabed. Results are schematically presented as qualitative assessments such as petroleum prospectivity maps indicating areas of high, moderate and low potential based on known data and information available. When possible, we also assess other potential natural resources such as gas hydrates and mineral resources.
We work closely with our colleagues at the energy sector of NRCan who provide economic assessments of the offshore energy context within and nearby a proposed MPA or NMCA. These reports provide an overview of federal policies within the region and a review of historical and existing offshore oil and gas activity and offshore renewable energy within and nearby the proposed site. Together we ensure that the timing of resource and economic assessments is aligned with MPA and other conservation establishment processes as closely as possible.
Although it is not part of our core mandate, the GSC has also contributed from time to time to the identification of marine biodiversity through exploratory seabed mapping of Canada’s continental shelf for mapping marine geohazards, petroleum potential and geology in general. NRCan has also contributed to DFO engagement processes with some stakeholders and Indigenous communities to provide more information on the science and methodology behind the assessment work. In addition, NRCan’s experience with the natural resource industry strengthens the consultation process and the work toward co-management of the oceans.
In closing, knowledge products completed by the GSC to inform the establishment of conservation measures have been made available online to the public by providing foundational geological mapping and derivative detailed resource assessments to inform economic assessments of offshore petroleum and mineral resources, the GSC is helping to ensure that Canada’s conservation and development decisions related to marine conservation are informed with the best available information. Thank you.
Mark Hopkins, Director General, Natural Resources and Environment Branch, Northern Affairs, Crown-Indigenous Relations and Northern Affairs Canada: As we have heard from Mr. Gardiner, the primary purpose of the Canada Petroleum Resources Act is to regulate the disposition of oil and gas interests on frontier lands. In the North, these include primarily lands in Nunavut and the Arctic offshore, which includes in particular but not only the Beaufort Sea in western Arctic and Baffin Bay and Davis Strait in the eastern Arctic.
The bill before Parliament includes proposed amendments to the CPRA, the proposed amendments aimed to balance the sustainable use of Canada’s oceans for the protection of identified sensitive areas. The proposed amendments would authorize the prohibition of oil and gas activities in marine areas.
By way of context, the Joint Arctic Leaders’ Statement announcement in December 2016 acknowledged Canada’s priority actions in the Arctic offshore to help ensure a strong Arctic economy and ecosystem. Canada issued at that time an indefinite suspension of new oil and gas licences in the Arctic offshore to be tested every five years by a marine and climate change science-based review. Work is already under way to establish a co-governance model to manage the science-based review going forward.
The review will lead to a better understanding of environmental and socio-economic impacts of oil and gas activities in the Arctic offshore and may inform the protection of Canada’s unique offshore marine ecosystems.
Mr. Gardiner has elaborated on the proposed amendments to the CPRA, so I will not repeat any of that. I would like to inform you that there are two Oceans Act marine protected areas in the Arctic offshore at this time. These include one designated in 2010 and another designated more recently in 2016. Both of these marine protected areas are located in the Beaufort Sea in the Inuvialuit Settlement Region.
In closing, I would like to stress that we will work closely with our territorial and Indigenous government partners in the North to engage with Arctic offshore oil and gas rights holders on the establishment of new marine protected areas in the Arctic offshore and the treatment of oil and gas rights that may be impacted by the designation of a marine protected area in the Arctic offshore.
Thank you very much.
Senator Gold: Mr. Gardiner, in previous panels, as you probably know, there has been a lot of discussion about consultation, its adequacy, and so on and so forth. Could you tell us a bit about how you work with both DFO and beyond DFO to stakeholders, Indigenous communities or others who have a stake in deciding when, where and how to designate an area, and what activities can take place?
Could you elaborate a bit on how it works in practice for us?
Mr. Gardiner: My colleague behind me is the lead on the file. She worked closely with DFO, the lead department on these amendments.
Our practice was primarily to work through existing regional structures that DFO had in place, to bring together relevant stakeholders and fisheries organizations, to reach out to petroleum interests such as CAPP, the provinces or other participants as well, to walk through the proposed amendments and to answer questions. That occurred, to my recollection, over a six-month to eight-month period.
I have a pretty extensive list of organizations that we connected with as part of that process. I could walk you through some of that.
Senator Gold: Could you elaborate a bit more? When an area is under consideration for being identified as a possible protected area, what is your involvement? How would you respond to some of the concerns that have been expressed to us today about the limited degree to which stakeholders were involved early in the process? What has been your experience?
Mr. Gardiner: As my colleague, Daniel Lebel, referred to, our involvement is really on the provision of geological and economic assessments. That is our key input into the process.
DFO is the lead department in identifying conservation priorities and the geographic areas relevant to that mandate. They take a number of factors into account, including the consultative process and data on where fisheries activities are focused. They are well aware, and we share with them information on oil and gas interests. That is taken into account on their side as they identify priority areas for conservation.
Once the general boundaries are identified for an initiative of that nature, we at NRCan would provide for the decision-making process the work of my colleague on the geological survey or a geological assessment of what is found in that area to provide a sense of what the opportunity costs could look like if a conservation initiative or MPA were put in place.
My team, working with the input provided by my colleague, would provide an economic assessment or an evaluation of what the development potential could look like.
Senator Gold: Mr. Hopkins, the bill provides that the Minister of Fisheries and Oceans can only designate an interim five-year MPA in a manner not inconsistent with a land claims agreement. Could you describe what involvement your department has in advising the fisheries minister on whether a proposed MPA would be consistent with land claim agreements? Do you go beyond land claim agreements and consider the existence of constitutionally protected rights more generally even if there is no actual agreement?
Mr. Hopkins: We will engage with DFO on the sharing of resource information, including the location of existing rights such as significant discovery licences. Then we will also share in conversation perspectives as to what are the existing land claim rights. Often in the Beaufort those rights relate to fishing and harvesting. That is an important piece of information that is brought into the discussion with DFO around the MPA designation.
Senator Gold: Do you go beyond land claims agreements because not all rights are necessarily crystallized in the land claims agreement?
Mr. Hopkins: Clearly in the case of the Beaufort the conversations can go into broader discussions about the interests of the Inuvialuit in the region, to take a case in point. DFO is also quite present in that region. They have a Beaufort Sea partnership that they manage with the Inuvialuit.
There are broader fora where multiple interests, including federal government interests, are brought together. Those tend to be the fora for broader discussion on interests that lie beyond strictly land claim rights. Economic development, as an example, is a significant interest.
Indeed, the land claim agreement itself is founded largely on an assumption around management of economic development opportunities. Therefore keeping those opportunities alive becomes an important aspect of their interest that may not be explicitly stated as such in the length of the agreement but may become a significant part of the discussions held in the fora.
Senator Plett: I have a couple of questions for Natural Resources Canada.
Bill C-75 gives the minister the ability to cancel oil and gas interests in an MPA and prevent additional activity in an interim protection MPA.
My first question is: What do you project will be the impact of this measure on our oil and gas industry in Canada, what many believe to be the lifeblood of our country and certainly of Western Canada? What will be the impact on the oil and gas industry?
Mr. Gardiner: In my opening remarks I pointed out that these amendments do not apply to the Atlantic Accord areas, so the Canada-Newfoundland and Canada-Nova Scotia. Those areas are the current areas where there is activity in the offshore.
The amendments would apply south of parallel 60 on the West Coast. A number of oil and gas permits have been in place since the 1960s and early 1970s. That area has been under a policy moratorium since the 1970s and activities have been frozen. That was kind of the impetus for these amendments.
An MPA was established recently for Hecate Strait and there were permits underlying that MPA. The sense was that created some regulatory uncertainty, so these provisions would help fix that.
Given that the area has been under a moratorium since the 1970s, the impact would be quite limited. Where it could be more significant on the East Coast, these amendments would not apply.
Senator Plett: The bill gives the minister the option of providing compensation and the ability to cancel oil and gas interests, even if negotiations don’t produce an agreement on compensation. Certainly many people and I think this is quite heavy handed and unilateral.
First, do other ministers have the same kind of power to expropriate private property without compensation? Second, have you done any work on estimating what the cost will be on investor confidence in the industry?
Mr. Gardiner: I am not entirely familiar with the expropriation authorities granted to other ministers. It would be hard for me to comment on that.
The provisions here are quite narrowly defined. It’s where the Minister of Fisheries and Oceans has identified and established on an interim or permanent basis an MPA and there is an overlap with an oil and gas interest.
Once an area has been identified as a conservation area, it may be that oil and gas activity is incompatible with that objective. If the Minister of Fisheries and Oceans were to recommend in that instance that the Minister of Natural Resources pursue the surrender of that licence, then the amendments here provide for that authority to be acted upon and for compensation to be part of that discussion.
Our sense is that that’s a reasonable, orderly approach and the impact on investor confidence would be limited.
Senator Plett: Besides what the compensation is.
Mr. Gardiner: Yes.
Senator Plett: I will take that up with the minister after lunch. Thank you.
Senator McInnis: I am looking at a map of offshore ecologically and biologically significant areas in the Scotian Shelf bioregion. It has 18 sites running from the tip of northern Cape Breton through and beyond Yarmouth, along the eastern shore. These areas are potential MPAs.
We in Nova Scotia wonder why we’re not consulted particularly with respect to these proposed sites. We have the Bedford Institute of Oceanography. It is the country’s largest centre for ocean research. We have 300 ocean technology companies in Nova Scotia. We are the leader in ocean protection across the spectrum. In recognition of our fishing grounds out in the Georges Bank we extended a moratorium on our own.
With all of this investigative work we do in Nova Scotia,why is it that the premier, the communities and others have not been consulted? One MPA is under way. I think we have two and I believe we have seven refuge areas. These have potential. With all our investigative work we do we know how to handle the oceans. Yet here we are being told, “I guess not.” No one has consulted with us.
Do you want to respond to that?
Mr. Gardiner: First, the amendments to the CPRA contemplated in this bill are not applicable to the two accord areas, including the Canada-Nova Scotia area.
Senator McInnis: But that is not this entire area.
Mr. Gardiner: The entire Canada-Nova Scotia area would not be affected by the amendments to the CPRA.
Senator McInnis: That is not what we understand and that is not what the premier understands.
Mr. Gardiner: I think what you raise is a larger issue. DFO, the Minister of Fisheries and the department have been pursuing conservation objectives. Canada’s stated policy is to protect 5 per cent of Canada’s oceans by the end of 2017 and 10 per cent by the end of 2020. They have been moving aggressively to meet that commitment. In so doing they have identified some areas of interest in the Canada-Nova Scotia area.
DFO leads this work, not NRCan. They have a consultative process to advance that work and identify areas that would make the most sense to set aside for conservation purposes. They would be best placed to speak to why they pick what area and how they undertake consultations to advance that objective more broadly.
Senator McInnis: And that is the next panel.
Mr. Gardiner: Yes.
Senator Bovey: We’ve heard earlier today about fairness or lack thereof of compensation between the oil and gas industry and fisheries. I am going to ask all of you what I think is a simple question.
What is your opinion regarding the fairness of compensation to oil and gas when it has been restricted and to fisheries regarding the socio-economic aspects of what I believe the MPAs are trying to do, which is to balance the ecosystem, the socio-economic issues and fisheries sustainability?
Is there an inequity there? If so, how should it be dealt with and how is that implicated in this bill?
Mr. Gardiner: The provisions we are proposing to put into the Canadian Petroleum Resources Act relate to oil and gas interests only under very specific circumstances. They are there because it is a matter of fairness if a company in good faith has acquired exploration rights or other rights and made expenditures in relation to that. If it has even found resources, that compensation should be part of the conversation if surrender of those rights is being sought.
It is an enabling provision only. There are no details on how exactly things would proceed. It is on a case-by-case basis and would be a function of basic fairness considerations.
Our sense is that this is most likely to be used on the West Coast of Canada. Given the moratorium that is in place and given the limited expenditures that have occurred against the permits that are in place, our sense is that compensation, if provided, would be very low. However, that is a conversation that hasn’t happened yet, so I don’t want to presuppose too, too much.
We were looking after the Canadian Petroleum Resources Act. It doesn’t apply to the fisheries. Our sense was that enabling provision made sense and could be necessary depending on how conversations in the future go.
Senator Bovey: In your work with fisheries, are these the kinds of overlap concerns that make it to the table?
Mr. Hopkins, I know you’ve done a lot of work in the Arctic. Where does this play into the scenario of fisheries and socio-economic issues?
Mr. Hopkins: I will attempt to answer your initial question first and add on to what Tim Gardiner has said.
The process of negotiation is the most sensible way to proceed to identify compensation. Because you’re dealing with a resource where there is no obvious market value, it is quite different from the normal. There are no market exchanges as there is on land with private property, and there is uncertainty as to the value of the resource.
Beyond that, we work quite extensively in the Eastern Arctic and Western Arctic. We’re currently conducting strategic environmental assessments that involve quite intensive community visits and efforts to build up Indigenous knowledge and to draw in the science about the nature of the resource and the potential socio-economic impacts of oil and gas exploration writ large.
Those processes will be coming to conclusion in the course of the next one to two years. We will help support advice to the government on how to manage the five-year review of the moratorium that has been put in place.
I am not sure if that quite answers your question.
Senator Bovey: I don’t want to belabour it as our time is tight. An issue that has been brought up is that one industry gets compensation because of legal agreements and the other doesn’t because the fish are communal property until they’re in a boat.
I raise the point to ask: Is this unfair or is it fair?
Mr. Gardiner: It would depend on the specifics at hand but the possibility exists.
Senator Bovey: I guess I am looking for assurances that down the road in your work with Fisheries these issues will be on the table and up for discussion with the sectors involved.
Mr. Hopkins: The Arctic has a very dramatically changing environment right now as I think everyone is well aware. It is creating a lot of changes in the distribution of resources, marine wildlife and mammals. As well, it is changing all kinds of economic opportunities. As it opens up the coast, transportation and shipping create risk.
In this very dynamic environment there are both risks and opportunities. How they are managed, how the risks are mitigated and how the opportunities are captured are ongoing concerns. Hopefully will partly be addressed through the broader Arctic policy framework which is being developed.
Senator Poirier: A couple of questions. My first question is for the representatives of Natural Resources Canada.
Although compensation is provided in Bill C-55 for the oil and gas sector, it is not provided for any other sector that could suffer economic impact because of the establishment of an MPA or an interim protection MPA. Has there been any analysis on the impact Bill C-55 would have on the forestry or mining sectors in Canada?
Mr. Gardiner: That is an interesting question. I don’t believe that has occurred in the context of Bill C-55 specifically. When MPAs are established or contemplated it activates the work I described earlier: a resource assessment and an economic assessment. My colleague can certainly speak to the resource assessment in more detail. That would encompass an analysis of the full suite of potential resources that could be impacted by the MPA decision. That would be the juncture for identifying impacts.
Senator Poirier: If I am understanding right, are you telling me that no analysis is done because you don’t feel there will be an impact on the forestry and mining sectors?
Mr. Gardiner: I guess the short answer is what we’re looking at here is an amendment to the Canada Petroleum Resources Act. It does not regulate mining or forestry in any way, shape or form. To my knowledge there are no acquired rights relating to forestry or mining that could be impacted by marine protected areas at this time.
Senator Poirier: How and why was the decision made to prohibit the oil and gas activities then within the Oceans Act MPAs?
Mr. Gardiner: There is no decision to prohibit activities at this time. These are enabling provisions. If the Minister of Fisheries and Oceans identifies an area that could become an MPA and there is an interim order to freeze that footprint, then the related kind of mirror amendments proposed to the Canada Petroleum Resources Act would be in play.
Those provisions allow for a Governor-in-Council kind of mirror freezing of the footprint in relation to oil and gas activities and at the request of the Minister of Fisheries and Oceans for the Minister of Natural Resources to pursue negotiations with interest owners.
Senator Plett: In other words, trust us.
Senator Poirier: Yes. I have another question again for the same gentlemen. A new subsection 35.1(2)(d) of Bill C-55 describes how the minister can exempt from prohibition:
. . . a foreign national, an entity incorporated or formed by or under the laws of a country other than Canada, a foreign ship or a foreign state.
Could you please explain the rationale for this new section and what recourse would be available if damage is caused in an MPA by an exempted party?
Mr. Gardiner: I am sorry. You caught me a little off guard with the specificity. Could you provide the section again?
Senator Poirier: Subsection 35.1(2)(d). Basically I want to know what recourse would be available if damage is caused to an MPA by a party that was exempted by the minister.
Mr. Gardiner: The minister being referenced here is the Minister of Fisheries and Oceans. It would make more sense to talk to him about that.
Senator Poirier: I will put it to them this afternoon.
Senator Christmas: Mr. Hopkins, you mentioned in your remarks that your department was working closely with the territorial and Indigenous government partners in the North.
We have before us a letter dated November 27, 2018, addressed to our chair by Premier Joe Savikataaq in which he outlines his position on Bill C-55. At the end of the letter he requests that our committee consider an amendment to the bill that would require the written consent of territorial and provincial governments before the designation of an MPA.
I am curious as to why the premier would make that request of this committee at this point. Do you have any background on why the territory believes that the engagement process to date has not resulted in a desire by Nunavut to have that amendment in the bill?
Mr. Hopkins: I don’t have background on the premier’s timing. I don’t believe there are any currently designated MPAs within Nunavut.
To provide a bit of context around that by going to the neighbouring territory briefly, up in the Northwest Territories in the devolution agreement of 2014 there was a commitment to enter into negotiations with the Government of the Northwest Territories and Inuvialuit and the Government of Yukon, as it happens, on the joint management of the offshore oil and gas resources.
I think everyone’s expectations are: that will lead to something analogous to what is in place on the East Coast in terms of offshore management boards.
In the case of Nunavut, the discussions around devolution are ongoing. There is some hope that there is a way forward. After an agreement is reached, one can imagine a similar sort of regime could then be negotiated and put in place if that is of interest to all the parties. That would be a way of managing that offshore.
That is a lot of context. It doesn’t speak directly to why the premier is intervening right now and recommending that amendment. I don’t have any insight into if there is a particular point of contention with the Government of Nunavut that has given rise to that.
The Chair: Thank you to our witnesses.
Before we finish up this session, I want to quickly advise the senators that we have the minister scheduled here from 1:30 to 2:15. That is the amount of time they have allotted to us, and the officials will be around after that.
Therefore we hope to start the meeting at exactly 1:30 p.m.
Senator Plett: I know we’re not going to change this, but I want to voice some of my discontent in that we have the minister here today for 45 minutes.
I think the government is showing their lack of support for the Senate when the minister has to rush back for regular Question Period and can’t devote the time. Initially he was scheduled earlier and his office cancelled that. Now they have given us 45 minutes. I find it very frustrating that we cannot have a minister here for a full hour.
It probably won’t change anything, but at least I wanted to have on record that I think it is tremendously unfair and inconsiderate of the minister’s office not to give us more time.
The Chair: That is duly noted, Senator Plett. That is why I wanted to make sure we start exactly at 1:30 p.m. I will advise the minister that fewer remarks will be possible so that we can get some questions from senators in the time period that we have. But, it is what it is.
Good afternoon. Welcome to our committee, Minister. I am delighted to have you here. The floor is yours.
Hon. Jonathan Wilkinson, P.C., M.P., Minister of Fisheries, Oceans and the Canadian Coast Guard: I am Jonathan Wilkinson. In addition to being the Minister of Fisheries, Oceans and the Canadian Coast Guard, I am the member of Parliament for North Vancouver.
I thank you for having me here today. I am joined by a number of departmental officials: Timothy Sargent, the new Deputy Minister; Philippe Morel, Assistant Deputy Minister, Aquatic Ecosystems Sector; Jeff MacDonald, Director General, Oceans Management; and Darren Goetze, Director General, Conservation and Protection.
I recognize the recent report the committee undertook with respect to the challenges and opportunities facing Maritime Search and Rescue. We all agree there is a clear need to ensure we have the resources we need to keep people safe.
I certainly welcome the report’s recognition of the vital and indispensable role that the Coast Guard plays every day in protecting Canadians, mariners and waterways. We are carefully reviewing the report’s recommendations, and I look forward to a future discussion with this committee on this important matter.
As was said before, we are here today to discuss Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act. I would particularly like to thank Senator Bovey for sponsoring this bill in the Senate and for her active involvement in oceans issues on all three of our coasts.
[Translation]
Canada’s oceans support a great number of economic sectors, from transportation and energy to aquaculture and fisheries—and they are a source of spiritual, cultural and other non-material benefits.
As you know, our government is committed to protecting our oceans and marine life for future generations by increasing the proportion of Canada’s marine and coastal areas that are conserved to 10 per cent by 2020.
Marine protected areas not only help to protect the diversity of ecosystems and preserve special marine features, but also seek to balance sustainable use of our marine resources with conservation and protection by keeping the marine environment healthy and productive.
[English]
Protecting our marine environment will support our communities that depend on the health of our oceans. As you know, the current approach to designating marine protected areas through Governor-in-Council regulations takes an average of 7 to 10 years to complete. The proposed changes to Canada’s Oceans Act under Bill C-55 would enable us to act in a timelier manner to protect our oceans.
The key element of Bill C-55 is the ability to proactively protect an area after initial consultations and science work have been done. This includes the establishment of interim marine protected areas through a ministerial order based on initial science and consultations.
[Translation]
These interim protections would fall under the authority of the Minister of Fisheries, Oceans and the Canadian Coast Guard, and could be put in place in a much shorter time frame, typically in as little as a year and half. This would ensure that important ecosystems are protected while scientific research and stakeholder engagement continue. Within five years, the interim protection could be replaced by a permanent marine protected area through Governor-in-Council regulations.
[English]
Establishing an interim protection marine protected area would freeze the footprint, essentially preserving the existing activities within an area in order to meet preliminary conservation objectives and mitigating the possible increase in negative environmental impacts of new additional activities.
To be clear, Bill C-55 will not curtail consultations. Consultations regarding establishing marine protected areas will continue to take place after an area is granted interim status until a final decision is made through Governor-in-Council to make the interim area permanent within five years.
Bill C-55 clearly sets out what the minister or the Governor-in-Council must do. They must exercise judgment on the basis of scientific information that is available at that time. However, incomplete information or a lack of absolute certainty would not be an impediment to beginning the process to ensure protection.
[Translation]
The language proposed in Bill C-55 is consistent with Canada’s framework on precaution that was put in place back in 2013.
This framework provides guidance on the application of the precautionary principle to science-based decision making for the protection, health and safety of the environment, and the conservation of our natural resources.
Canada has a long history of applying precaution in areas of federal regulatory activities. The government’s obligations in this regard are governed by applicable provisions of federal law, binding federal-provincial agreements and international agreements to which Canada is a party.
[English]
Through Bill C-55 we are also proposing amendments to the Canada Petroleum Resources Act, which would enable the Government of Canada to prohibit oil and gas activities in Oceans Act marine protected areas. These amendments would allow Natural Resources Canada and Crown-Indigenous Relations Canada to prohibit oil and gas exploration and/or development activities where Oceans Act marine protected areas are designated.
Either minister would be able to negotiate compensation with an owner for the relinquishment of oil and gas interests that overlap with an MPA where appropriate. Bill C-55 would also strengthen enforcement powers, fines and penalties and bring the Oceans Act in line with Canada’s other environmental laws.
Seeking the knowledge and views of government, Indigenous people, marine resource users and other stakeholders is one of the cornerstone principles for establishing interim protection marine protected areas.
In 2017, before tabling Bill C-55 the government engaged extensively with national and regional Indigenous organizations. While concerns were raised over issues of economic fairness, the pace of the changes and the workability of some measures, the proposed amendments uphold and respect Indigenous and treaty rights. They ensure that Indigenous peoples are part of the process going forward.
Bill C-55 continues to ensure that when an area is legally protected, court systems and enforcement officers, including Indigenous persons working as designated enforcement officers on the Pacific North Coast, will have the modern powers and tools they need to protect these areas.
These provisions allow for greater collaboration with Indigenous organizations and would distribute enforcement responsibilities to our partners.
[Translation]
I look forward to future discussions on how the Oceans Act may be updated to further support Indigenous-led conservation initiatives.
[English]
Mr. Chairman and honourable senators, I value your opinion very much, the wealth of your experience you bring to the table, and the knowledge that you have of these issues.
My officials and I would now be prepared to take any questions and to hear your thoughts on how we can move forward with these important measures to protect our oceans and our coasts. Thank you.
Senator Gold: Earlier today a witness before this committee expressed the view that the Department of Fisheries and Oceans didn’t really have the capacity to undertake and provide the socio-economic analysis relevant to the establishment of MPAs given the impact it potentially could have on the fishery.
Do you have the resources to provide that analysis in a timely fashion regarding the implementation of an MPA in a particular area?
Is the data available or can it be made available so that the decision to identify an area, much less to pursue it, strikes the right balance between an adequate basis of scientific knowledge short of certainty — and there is little certainty in the world — and the impact on affected individuals and communities?
Mr. Wilkinson: I should start by saying that we can always know more. It is important for us to continue to invest in science on an ongoing basis. The department does have significant capacity from a scientific perspective to be able to take that knowledge and convert it into socio-economic data to inform decisions.
This will be an increasingly important issue for not just Department of Fisheries and Oceans but also for Environment Canada in the context of work relating to biodiversity generally. We will be needing to figure out how to manage things differently. Sometimes there will be socio-economic impacts. That capacity is extremely important. It is something that we have, but I would also say it’s something we are certainly continuing to make investments in.
As you would have seen in the Fall Economic Statement, almost $110 million was associated with implementing Bill C-68. A bunch of that is for scientific investments relating to things like stock assessment which are important in this context.
Senator Gold: In that respect, then, how do you respond to stakeholders who say that these decisions are taken and will be taken with some rapidity, without them really being involved adequately at the front end and without their economic interests being properly accounted for because the data isn’t necessarily obvious and available on day one?
Mr. Wilkinson: I would say a couple of things. First of all, it’s important that they are involved in the front end and that consultation takes place both in the context of the decision making as to whether or not to issue a ministerial order and of when those orders are issued in the context of the steps required before the Governor-in-Council will make a decision about the formalization or not of a marine protected area.
While we can always know more, I would also say that the department actually does have an enormous amount of scientific capacity and understanding. We manage all the fisheries you would be referring to based on a scientific understanding of stocks and what is sustainable in the context of harvest. We do that every year. The data that exists is quite robust.
Senator Plett: Minister, thank you for being here today and thanks to you and your government for your willingness to follow through on the previous Conservative government’s commitment to conserve 10 per cent of coastal and marine areas by 2020.
I have three questions. First, could you clarify for this committee and those following its proceedings whether the MPAs under interim protection or areas of interest will be included in the count toward the 10 per cent target?
Mr. Wilkinson: To your earlier observation, yes, it was the previous Conservative government that actually adopted the 10 per cent target. I would say, however, that when this government came to power we were at less than 1 per cent in terms of achievement and we are now at about 7.75 per cent, so an enormous amount of progress in the last three years.
In terms of what will count and what won’t, as you know we had a panel reviewing standards, the quality of marine protected areas and what will actually count in the context of Canada’s commitment to the Aichi targets.
Also international guidelines were established through the IUCN meeting that happened in Cairo recently. We are digesting the panel’s report. We will be coming forward with a view on standards in terms of what will count, what activities would be allowed in those things that count, and what may not count. Oceans Act MPAs are part of that conversation.
Senator Plett: That was a bit of a non-answer. Let me then say that some of your MPA designations have been met with criticism, namely, that you are bulking up your numbers by adding areas that receive negligible protection.
You mentioned the advisory panel. Do all of your current MPAs meet the minimum standards recommended by that advisory panel?
Mr. Wilkinson: I will turn to my officials to answer part of that question.
First of all, the report of the panel is not government policy; it is the report of a panel. Ultimately it is my responsibility to come forward with government policy with respect to what counts and how we define different protected areas, whether they are MPAs, marine protected areas, or other effective area base measures like marine refuges.
In terms of whether all our existing fisheries closures, refuges, national wildlife conservation areas, national parks and marine protected areas generally fit within the context of what the panel said, I will turn to Philippe Morel to answer that. We think the vast majority do, but there may be some that don’t.
Philippe Morel, Assistant Deputy Minister, Aquatic Ecosystems Sector, Fisheries and Oceans Canada: Thank you, minister. I think your response was complete.
The Ocean Act MPAs that are created all meet the international criteria that are in the act. You’re probably referring to the marine refuges. There are 51 marine refuges that account for 4.5 per cent of the 7.9 per cent. Those are fisheries closures under the Fisheries Act. They were established under criteria that DFO developed with the scientific community since 2016. We also contributed to the international discussion about establishing criteria for other effective conservation measures that were approved in Egypt in early December.
Now we are using the criteria approved by IUCN. They are close to the criteria established by Canada. We’re determining whether those 51 marine refuges meet international criteria. If they do meet the criteria, we will recognize them as counting toward our target. If they don’t or if they need more clarification, we will adjust or reduce the targets so that we meet the international criteria approved by the IUCN in December.
Senator Plett: Minister, this bill gives you or other ministers the option of providing compensation and the ability to cancel oil and gas interests, even if negotiations don’t produce an agreement on compensation. This seems a little heavy handed and unilateral.
Do other ministers have the same power to expropriate private property without compensation? Have you done any work on estimating what the impact of this could be on investor confidence in the industry?
Mr. Wilkinson: Again, I think “expropriation” is probably the wrong word. The focus is on ensuring that we have consensual pathways.
I was part of the pathway that led to the designation of the national marine conservation area on Scott Islands, where Shell gave up its leases as part of a social good. It was participating in ensuring that we were actively protecting what is one of the world’s most important bird sanctuaries.
We would clearly be working with parties to try to come up with consensual ways to get to the point where we actually had the protection we would need for areas where we are concerned that they be protected.
In the event there is no consensual or negotiated pathway, there is the option for the Minister of Natural Resources and/or the Minister of CIRNA to provide compensation in return for the licence that had been issued to an oil and gas company. Typically, the focus of that is on ensuring the company can recoup the cost it may have expended in the context of any development work it had done on that property. That is appropriate, and I think it is good public policy.
Senator Bovey: Thank you, Minister. I would like to thank your colleagues and everybody who has got us to the point that we’re able to have this discussion today.
I want to go back to a couple of comments that came up this morning. The MPAs were talked about as being part of the tool kit for conservation. Obviously Mary Simon’s concept of conservation economies was heralded by many.
Are MPAs the proper tool for all situations? Could you explain to the committee your process for determining that an area is best protected by designation as an MPA as opposed to other tools of stock management and whatever? We’re trying to get a sense of when do you use the right tool and what is the right tool.
Mr. Wilkinson: That’s a great question. I think it is one tool in a toolbox that is about managing the impact of human activity on the natural environment.
Where I think MPAs, or areas where there is very little activity allowed, come into play are areas of important biodiversity. We are focused on protecting what is there in a strong and sustainable way.
There are certainly other areas like the refuges where we put in place fisheries closures. The protection is focused on specific things and not allowing certain kinds of activity.
There are also other ways that we certainly protect the marine environment and wildlife. I think of a lot of the work we’re doing on the West Coast in the context of the recovery strategy for the southern resident killer whale. One of the most impactful issues there is about transport-related regulations around slowing down ships and moving vessel lanes away from areas where the whales forage.
There is a whole range of different tools. It needs to be guided by the specific objective you’re trying to accomplish in a particular area.
Senator Bovey: We heard about a concern that rotational fisheries, particularly on the West Coast, will be negatively affected by Bill C-55 because of the provision that if there is activity in the previous 12 months it can carry on.
Given that sea cucumber harvesting is every three years depending on stocks, may I ask if the 12 months is hard, or would the three to six years as suggested by some of our witnesses be a fairer way to estimate the activities for declaring an MPA?
Mr. Wilkinson: There are a number of different ways you could probably go about this. The way the bill goes about it is that it’s the year before. It also creates flexibility with respect to activities that have effectively been authorized, even if they haven’t been acted upon within the previous year. That would be true of sea cucumber, but it would also be true of geoduck.
Assuming that you update the conditions of licence before the ministerial order is issued, the bill provides that those would be considered authorized activities.
I don’t know if you want to add anything to that.
Mr. Morel: That’s exactly why we put in the act “authorized” versus the activities that are happening. When they are authorized and you have a fishing licence that is valid and conditions have been renewed, even if you don’t fish they are still authorized and they will be considered effective. Freezing the footprint will not affect these kinds of conditions.
Senator Bovey: Could you talk to the amendment put forward by Mr. Tutu and Mr. McLeod that sought to strengthen the right of Indigenous peoples who might be affected by Bill C-55? How will that apply to Indigenous peoples, Indigenous rights, treaties and land claims across the country?
Mr. Wilkinson: I think the bill itself is very much focused on ensuring that we are considering and appropriately addressing the concerns of Indigenous peoples in this country.
It does that in a number of different ways. There is a non-derogation clause within the bill to ensure that there is no derogation from section 35 rights. An amendment was brought forward with respect to ensuring that the work here is consistent with settled land claims agreements. Of course there is an emphasis on consultation. One of the key parts of the consultative process needs to be with Indigenous peoples.
Senator Poirier: Minister, as you’re probably aware, I am from New Brunswick, more on the northeast or centre east. Last spring your government imposed a fishing zone closure on lobster fishermen without any meaningful consultation whatsoever on what would be the effect on the communities and the stakeholders. It was a great disappointment to them all. They had solutions of their own to strike the right balance and wanted to be partners to protect the marine habitat, but they felt they were ignored.
I am hoping this consultation will be different and not what will be expected concerning Bill C-55. Hopefully the consultation process will be a whole lot more open than what we have seen in the last year in New Brunswick with the lobster fishery issues.
Mr. Wilkinson: First of all, yes, the consultation process under Bill C-55 is intended to be very robust. I think the examples of some of the work that has been done in a number of the areas can demonstrate that quite clearly.
The specific issue you’re referring to are the regulations with respect to the North Atlantic right whale. Those were brought in very quickly in the aftermath of 17 right whale deaths out of a total worldwide population of 411. It was also brought in, in the context of concerns on the part of the Americans with respect to whether or not this would mean that they would need to act to put restrictions on Canada’s exports of seafood products to the States given non-compliance with what they have in place from a marine mammal perspective.
It was done very rapidly. There is no question about that. I do understand there was concern on the part of a number of fishing groups.
I held several round tables over the last few months on this issue, including one in Halifax that probably had 50 different fishing organizations, including a number from New Brunswick. We took the position very clearly that we were looking for creative solutions that would ensure we would protect the whales, but we would do so in a manner that responded to some of the concerns being raised around the table.
I committed to come back out to have conversations with the fishing community once we had actually developed the measures for this coming year, and I intend to keep that commitment.
Senator Poirier: Thank you for the update. Coming back to Bill C-55, when there is an impact on the community it has a trickle-down effect. It hurts everybody and it hurts the community.
Could you explain to me what provisions are in place for Bill C-55 for any economic loss that will be incurred by the communities that depend on commercial and recreational fishing?
Mr. Wilkinson: The focus again is consulting to get to the point where everybody agrees that protection in particular areas is important and should proceed. That certainly involves listening to the folks who may have socio-economic concerns and seeing what can be done to address those in the context of the fishery. It can sometimes involve different areas and allocations in different areas. That’s an important part of the consultation process.
At the end of the day there are at times costs associated with creating protection areas, but there are also significant benefits. Those benefits include benefits associated with restoring fish stocks, which will benefit coastal communities as well.
This is intended to be a process where we actually try to work through issues to get to the point where we can have agreement among everybody. It may not always be possible, but that is certainly the objective.
Senator Poirier: The Final Report of the National Advisory Panel on Marine Protected Area Standards made one recommendation in particular that I want to highlight:
That the government be transparent with local communities, Indigenous peoples, and stakeholders from the beginning and throughout the marine protected area establishment process, and in ongoing management of marine protected areas.
Do you intend to comply with the recommendation? Is your intent to be more transparent with local communities, Indigenous peoples and stakeholders to make sure that we involve them 100 per cent in the consultation process? They are the ones who understand what is going on in the water and it’s their livelihood. I just want to know if you intend to follow through with that.
Mr. Wilkinson: I would say at this stage that we haven’t responded formally to the panel’s recommendations. I think that one in particular would be easy to respond to. Of course, we should always be, irrespective of partisan stripes, endeavouring to ensure that there is transparency for Canadians in the context of work that we do.
While I think the department does quite a good job in terms of the consultative work that it does, we can always do better. We will be working, as we work through the development of marine protected areas and networks, to ensure that we are out meeting with communities and ensuring that there are opportunities for people to actually provide input. If there are ideas around this table about ways in which that can be furthered, I am certainly open to hearing those ideas.
Senator Christmas: My question is in regard to the concerns expressed by two of our territorial governments. We have a letter dated November 27, 2018, addressed to our chair from Premier Joe Savikataaq. He is asking our committee to consider an amendment to allow written consent of territorial governments prior to a designation of an MPA.
I also noticed that when the House of Commons was doing its study on this bill, Bob McLeod, Premier of the Government of the Northwest Territories, also made a similar request that Bill C-55 be amended more or less to ensure that its territorial government was also involved in the designation of an MPA.
What is your government’s position or approach to these territorial governments and their concerns about not being directly involved in the decision to designate MPAs?
Mr. Wilkinson: I think that all governments at the provincial and territorial levels need to have input in the context of these discussions.
In the case of marine protected areas off the coast of British Columbia, I think it’s very important that the British Columbia government have input. Similarly in the North, I think it’s very important that the Governments of Nunavut and Northwest Territories and, in some cases, maybe Yukon have an ability to be part of the conversation.
I also think it’s important that other organizations like the QIA, AFN and the Métis National Council have an opportunity to participate and that ordinary Canadians in Canadian communities also have an opportunity to participate.
The commitment we’re making is there will be robust consultation that will certainly include the premiers of the territories, but ultimately the target we’ve actually established is an international target. Canada is responsible to its international partners for meeting that target. While we need to consult, and ideally would like to find pathways to mutual agreement, it’s ultimately the Government of Canada’s responsibility to ensure internationally it meets its obligations.
Senator McInnis: We’re always envious on the East Coast when the Minister of Fisheries comes from the West Coast.
Mr. Wilkinson: It hasn’t happened for 16 years.
Senator McInnis: I know. We lobby hard. Anyway, it’s nice to meet you.
Look, the three fundamental principles that guide Canada’s approach to marine conservation targets are science based. Your government said earlier on that decisions would be made on science, transparency and advancing reconciliation with Indigenous peoples. I think it could be a concern regarding science-based decisions when under the area of interest and the five-year process the “Minister cannot use the lack of scientific certainty regarding the risks posed by any activity as a reason to postpone” a designation.
People get busy. They were having trouble getting MPAs through in seven, eight, nine or ten years. That’s one of the reasons for this here. My worry is that science will be ignored. Could you comment on that?
Mr. Wilkinson: That’s an entirely reasonable question and that’s certainly not the intent. The whole point here is to ensure that we are thinking about the precautionary principle when we are actually looking at the development of marine protected areas.
We are ensuring that in areas where biodiversity is very important and where there are specific ecological things of great value. While we have science that tells us that exists and we have science that actually informs us around some of the elements that need to be protected in certain ways, we may not have all of the science.
That should not be a barrier to our taking action. Once you’ve made the decision to protect an area by ministerial order, it certainly means that over the course of the coming five years, before there’s a decision about permanent status, the science you believe you do not yet have needs to be collected so that it is part of a final decision, absolutely.
Senator McInnis: That is good. You may or may not have heard about the MPA that is proposed in the Bay of Islands off the eastern shore of Nova Scotia. As a local senator from Nova Scotia, I get invited to many of these town hall meetings. You know that some of these meetings can be kind of rough.
What I am hearing is that there is an apparent belief that there are too many conservation initiatives and that the mandate of Fisheries and Oceans Canada has shifted from management to marine protection. Is that a fair comment? That’s what I am hearing. It’s something I never like to mention but it was mentioned two or three times here today. There appears to be this lack of trust.
Could you give us a comment on that, please?
Mr. Wilkinson: I think there are a couple of things. I am aware of some of the concerns that have been expressed in that area. I think some of it was particular to certain parts of the fishery. Certainly we need to make sure that we understand those concerns and that in the context of developing plans for a marine protected area or a marine refuge that we’re being sensitive to trying to address those concerns.
In my view as the minister that we have more than the two very important areas of focus. One of them is certainly fisheries management. That means sustainable fisheries management to ensure that we’re managing the fishery not only for today but for the children and grandchildren of the fishers so that there is a continuing industry that is robust and can create prosperity for local communities.
That’s incredibly important and a vast majority of our resources actually go into the fishery management side of things.
I also think that Fisheries and Oceans Canada in the same way as Environment Canada has a responsibility to the whole issue of protection and conservation. They’re linked obviously. I mean they’re not completely separate things.
Many of you will have seen a couple of months ago the World Wildlife Fund released a report that said over the past three decades the world has loss 60 per cent of its biodiversity. That’s a real shock and that’s terrestrial and marine. That’s not something that’s sustainable over the long term, so for us to have healthy oceans that are productive for fishing communities and healthy land bases that continue to be healthy on a go-forward basis, we must think about both.
Senator McInnis: I have a question for Mr. Morel. It was mentioned this morning with respect to the offshore accords, and I wasn’t quite sure of it. Under the offshore accords all the gas and oil seismic drilling is exempt.
I guess one of my questions would be to ask what it would take. What would have to be amended in order to alter that so that an MPA could be put in place? One of the great concerns with seismic testing and all that type of thing is the harm and all that.
Could you just put on record so that we’ll all understand exactly what the offshore accords do vis-à-vis the management agreements?
Mr. Morel: I won’t go into all the details of what the Offshore Petroleum Board does, but there are in the accords some supremacy clauses that overrule any other act. If the Offshore Petroleum Board decides to authorize some activities and issue some licences in an area where it contradicts other protections such as fisheries closures or an MPA, the accord has the supremacy. That decision has supremacy over the other one.
As an ADM responsible for ocean protection it will certainly be my preference to have oil and gas activities necessarily overruled. This is why, when we create MPAs or when we have a fisheries closure or marine refuge, we look at all the economic interests and try not to contradict any of those. During the decision making we take into consideration the interests expressed by the Offshore Petroleum Board, by Nalcor and by other industries like the fishing industry to recalculate as possible the sustainability of the ocean and the industrial activities.
Senator Munson: I will keep my question simple, but fear is a big word and there is a fear out there that people may lose their livelihoods. When government is involved you can’t work in silos. Along with Bill C-55, there are Bill C-68 and Bill C-69. Government intervening in people’s lives with what the government believes is for the better good sometimes can end up with loss of jobs. Fishers feel they may lose their jobs.
I would like to see if you could give us the assurances that you have, with your officials, found the balance so that jobs and marine areas will be protected.
Someone listening to us today talking about all these acronyms is trying to figure out what they are. At the end of the day it’s about putting food on the table. Could you give us assurances you have as a government found this balance?
Mr. Wilkinson: Perhaps the right way to say this is that we’re always striving to find that balance irrespective of MPAs. We strive to find that balance in fisheries management all the time.
I know that you had Keith Sullivan here earlier today. He and I have these conversations all the time. At the end of the day we need to make decisions with respect to certain species of stock that at times are difficult for local communities because in the long-term interests of the health of the fishery you need to ensure that you’re not talking more than is sustainable.
On a go-forward basis with respect to marine protected areas, we are focused on ensuring that we’re listening to the concerns of fishers and other economic actors to try to ensure that we think about how we can account for those concerns as we move forward. The best mechanism is to actually listen and try to work through that.
This is not just an MPA issue. This is a broader issue around human activities and the natural environment more generally. For the first two years as Parliamentary Secretary to the Minister of Environment and Climate Change I worked on the issue of boreal and southern mountain caribou across this country for all of that time. It’s exactly the same issue: How do you find pathways to recover caribou but do so in a way that is sensitive to local economic interests? This is a conversation, given what has happened with this planet in terms of how we have managed its ecological sustainability, that we will have to be having in thoughtful ways for the next several decades.
Senator Munson: There has been some concern that you have too much power, that the minister has arbitrary power, that the minister can do this. In your own words how would you describe your power and how do you use it?
Mr. Wilkinson: First, we live in a democratic country. I am a democratically elected representative so ultimately the test is that every four years people get to decide whether they think the government and I are doing a good job. I believe that is preferable in many respects to having somebody who is simply appointed. I say this with due respect. In terms of the decision making, there is an accountability for me relative to stakeholders that is an important part of doing this job.
On an ongoing basis, I am required to go before all of the folks who are stakeholders and answer their questions, as I did with the 50 fishing organizations in Halifax a couple of months ago. I have to be able to justify to them decisions that are made. Not everyone is always going to agree with those decisions, but ultimately I am required to do that.
That’s not a partisan issue. Any government is required to do that and to be able to justify what they are doing. You could probably argue that with many different ministers in the Canadian parliamentary system of government. The constraints are the appropriate constraints in a democratic society.
The Chair: As the duly elected chair of this committee, I thank you for your time here with us this afternoon.
Mr. Wilkinson: Thank you very much.
The Chair: We have the officials from the department here now if you want to follow up with any questions.
Senator Gold: My first question really is one of clarification. I may have heard wrong this morning, but I believe one of the witnesses who testified stated that it was possible to extend the interim MPA five-year period for an additional five years. Is that correct?
Mr. Morel: The act says that after five years of interim protection the minister has to make a decision either to create an MPA or a regulation to stop the interim protection. It doesn’t stop automatically. It does not fade out, so he has to take action.
What is not in the act but is possible is exactly what you described. The bill doesn’t say the minister can create an MPA, repeal the interim protection or extend it. It does not say the last part. A minister can always immediately, a year after or five years after create another interim protection in a similar area or part of the area. It could be a derogation if it’s based on consultations he has had during the last five years.
It is possible for a minister to do one that is exactly the same, different, smaller or bigger after consultation. Interim protections are always based on a consultation process.
[Translation]
Senator Gold: Just to be clear, it’s not a matter of renewal, and a decision has to be made one way or another. If the minister decides the science doesn’t support making the MPA permanent, can he or she start the process over again?
Mr. Morel: Yes.
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Senator Gold: I want to make sure for the record that we understand the steps that would have to take place if the minister is not able to turn it into a permanent MPA but nonetheless there are still some concerns about the area.
Mr. Morel: He will have to go through the process of re-asking by publishing in the Canada Gazette for a ministerial order to protect the area.
I will give you a good example of that. When we create a protected area in the North, very often they arise from an Indigenous community, an environmental management board or a wildlife management board. This process is long and can lead to the interim order after 18 months or more. Then we have a five-year process.
Consultation in the North involves consulting with all communities that could be impacted and obtaining the Indigenous knowledge and science that we have. It can take more than five years. I see the potential for a minister saying after a five-year process, “I want to declare an MPA but I am not ready.” He could feel that the proper consultation or the Indigenous knowledge has not been fully integrated or that the northern science or western science was not fully explained to an Indigenous community. If the community knows about it, the minister can create an MPA. He has to make a decision that he’s not willing to create an MPA. He has to repeal it and say that he wants to start the interim protection. He may decide after consultation or after he has been asked to create another interim protection. It could be the same size exactly or different depending on the experience of the last six to seven years. It could be an example.
Senator Gold: The National Advisory Panel on Marine Protected Area Standards recommended among other things using minimum protection standards for all Oceans Act MPAs.
Could you share with us why the government, at least in Bill C-55, did not include minimum standards? What was the thinking behind not following that recommendation?
Mr. Morel: It’s probably more static to have minimum standards in the Oceans Act. I would prefer to have it by ministerial decision. Maybe I will ask Jeff MacDonald who was more actively engaged in the writing of the act before I arrived to explain that. First, it’s a question of flexibility. It’s also a question of where we were when we tabled the bill and where we are with the analysis of the panel right now.
Jeff MacDonald, Director General, Oceans Management, Fisheries and Oceans Canada: This bill is intended to be very specific in terms of its amendments to the Oceans Act. It was related, as the minister said, to helping the government achieve the biodiversity goals.
The idea of minimum standards is one that was not part of the Oceans Act before because the ability to make those types of standards are already articulated in the Oceans Act. They are a regulatory authority.
The idea would be that because the scope of this bill is narrow and it is just to enable that interim protection, the idea of minimum standards did not come up in the policy debate until later on once the bill had been drafted and tabled in Parliament.
In that context it was related more to the feedback we received on the Laurentian Channel marine protected area off Newfoundland and Labrador. That’s where a public debate was triggered. There was a strong desire on the part of some stakeholders to have standards for marine-protected areas that would differentiate them from marine refuges and other measures. The minister of the day appointed the panel, and the panel made the recommendations. As the minister said, the government is considering them.
To answer your question, it was a question of sequence in terms of when the bill was drafted versus when the panel was struck.
Senator Gold: I am anticipating some testimony that we are likely to hear from witnesses who will follow your appearance. I suspect your answer will be similar.
It has been recommended by some, and certainly in the House of Commons, that Canada adopt internationally accepted protection standards to prohibit certain categories entirely of industrial activities such as oil and gas exploration and exploitation, mining, dumping and other things.
As I understand it, the bill authorizes the Governor-in-Council to prohibit such activities in respect of an MPA, but it doesn’t make it mandatory to do that. Could you provide your response to those who would argue that it should have been locked into the legislation?
Mr. MacDonald: The regulatory-making provisions are already in the Oceans Act. They are triggered by one of the reasons for which an MPA can be established.
In subsection 35(1) of the Oceans Act there is a series of reasons as to why a marine protected area can be established. It is only based on those reasons that certain classes of activities can be restricted.
Currently in the Oceans Act there are five reasons. They are mostly related to either the protection of species, the protection of habitats or for the broad protection of biodiversity. Some of the amendments that were made at the house committee add extra reasons. Those reasons would allow for the regulatory provisions to be triggered in order to enable through policy or regulation some of the restrictions you were describing.
A link to the bill was made, but the enabling provisions are not necessarily part of the Oceans Act at this time in the way it is written.
Senator Bovey: Thank you for all the work you have done to get us to this point. I have two questions for you. I hope the answers will help with clarification. They are about process because it is clear the bill is about process.
There is a process for determining an MPA. There is a process for determining a marine refuge area. We learned earlier that some of the marine refuge areas count toward the 10 per cent. There must be a process too for identifying an area of interest.
Could you walk us through the steps for each of those for the record so that it is clear what is what and what isn’t what?
Mr. Morel: I will try to provide an eye-level explanation, and Jeff MacDonald can contradict me afterwards.
About 50 per cent of the ocean is mapped as an ecologically or biologically significant area. This means they have interest in something. That does not necessarily mean they need to be protected, but they are of interest for the balance of the marine ecosystem.
From the database and the science we have on the EBSA, we determine which areas should have additional protection. In your previous question to the minister you asked about what are the best tools to use if we want protection. If we want to protect a marine refuge for seabirds, we will probably use the tool under the wildlife area managed by Environment Canada to protect an area for migratory birds or seabirds or to introduce a bird sanctuary. If it’s to protect corals and sponges, we will use other tools such as the Oceans Act.
When we have sufficient science to establish that an EBSA needs protection, we declare that it could be an area of interest. This is where we launch the process to identify that a certain area has the potential of becoming a marine protected area.
From that time we continue to engage in consultation. You heard us say that it takes between seven to ten years to create an MPA because there are consultations with stakeholders, the provinces and Indigenous people. Following that is the regulatory process of writing regulations and performing socio-economic analyses, the results of which are provided in the regulations published at the end of the process.
Marine refuges are done through the Fisheries Act, so it’s not the same process. It is a tool that is delegated by the minister usually to the regional director general. There are fisheries closures every day to protect some fisheries and to close or open others. Marine refuges are intended to be long term. Out of the 1,000 fisheries closures that we have in our three oceans, only 51 of them met the criteria we established based on science in 2017 and 2018 and became marine refuges. It’s those that counted against the marine conservation target.
The other tool we may use is the national marine conservation area. This is Parks Canada. It’s a marine park or a no-take zone.
Minimum standards for the marine protected areas are established based on the conservation objectives. If the objective is to protect the seabed or corals and sponges, we will forbid activities that contradict that. However, we may authorize some fishing activities or shipping in the area if they don’t contradict. If it’s to protect the seabirds, then shipping or fishing during a certain period may not be in accordance with the conservation objectives. Then it will be forbidden for a period or for the entire year.
I tried to summarize what you learn as an ADM in three years.
Senator Bovey: If I may, the minister was very articulate a few minutes ago in talking about the fact that after an MPA has been designated that allows time for continued scientific evidence gathering as you’re working through the period.
It has been suggested to us, though, that MPAs should not even be designated until after the scientific and consultative processes have been completed. That’s one of the lines of argument we have been hearing. Then there is the line of argument that we need it protected while further research is carried on.
Could you talk about that dichotomy, please?
Mr. Morel: There is a difference between interim protection and MPAs. When we create an MPA we are pretty sure about the science, what needs to be protected, the conservation objectives are agreed upon, and the actions in the regulations are supporting the conservation objectives.
The intention is not to have interim protection for MPAs for all processes. It’s only to protect in cases where human activities may arise to the point that what needs to be conserved is threatened by those activities. This is why the interim protection is there.
There could well be and there will be some processes where there won’t be interim protection because there is no threat. There is no valid reason for us to recommend to the minister or for the minister to conclude that interim protection is needed if there is no change to the environment. Then we would be more inclined to have the research continue, as we did.
Those processes could take from seven to ten years. They are major shipping activities. Major oil and gas exploration could happen or bottom trawling could happen in an area where we’re trying to protect some critical habitat. It just doesn’t make sense to allow those activities to happen for seven to ten years.
This interim protection is there to protect an area. You probably heard people from ECCC talk about species such as the western chorus frog. It is emergency protection to authorize that what you aim to protect will not be destroyed or altered before you finalize the protection process.
The protection process is long because it is open and transparent, and we do consult a lot of people. That’s why it is there, and it’s another difference in the act.
Senator Bovey: I think these are important distinctions for everybody who is viewing this committee today to understand.
Senator Poirier: I asked a question this morning of National Resources Canada. They couldn’t answer and they recommended that I ask DFO the same question, so here I am.
Subsection 35.1(2)(d) of Bill C-55 describes how the minister can exempt from prohibition:
. . . a foreign national, an entity incorporated or formed by or under the laws of a country other than Canada, a foreign ship or a foreign state.
Could you please explain the rationale of this new section and what recourse would be available if damage is caused to an MPA by an exempted party?
Mr. MacDonald: The question relates to the interpretation of the Law of the Sea as it relates to Canada’s exclusive economic zone. We’re talking about the area between 12 miles offshore and 200 miles offshore. In the Law of the Sea there is the right of innocent passage of vessels, so foreign vessels can travel through our exclusive economic zone as part of their international rights under the Law of the Sea.
This provision says that within a marine protected area that activity can be restricted by the Governor-in-Council for the MPA, but the minister has the authority to exempt it if it doesn’t affect the conservation objectives.
The point of the amendment is to make sure that Canada is the one that makes the decision as to what vessels may be allowed to enter into a marine protected area or not and that it’s not a default to international law.
Senator Poirier: What recourse would be available if damage is caused to an MPA by the exempted party?
Mr. MacDonald: The damage is a function of the updates to the enforcement and the fines provisions of the Oceans Act. A large part of the bill is really bringing the Oceans Act up to the same level of fines and other provisions that other environmental statutes currently have. This is in lane with the Environmental Enforcement Act of 2004, which called for all environmental legislation to have similar fines, provisions and penalties. Certainly the fines, provisions and penalties, if such an infraction were found, would apply to foreign vessels as it would to Canadian ones.
Senator Poirier: Also under Bill C-55 some activities that are ongoing will be allowed to continue in the interim protection of the MPAs. However, certain ongoing activities regulated under the federal fisheries legislation could still be restricted.
Which ongoing fisheries activities could be restricted in the interim protection of the MPAs and why?
Mr. MacDonald: The Minister of Fisheries and Oceans has authorities under both the Fisheries Act and the Oceans Act. For the purposes of interim protection MPAs, the idea is that by freezing the footprint you’re restricting the increase of any activity regardless of whether it is under the purview of the Minister of Fisheries and Oceans or whether it is under the purview of another minister.
With regard to fishing, because it is under his purview he still retains the right under the Fisheries Act to restrict fishing activities should that be deemed necessary in the interim period.
Senator Poirier: Have you done any consultation on that? If yes, what feedback was heard from the stakeholders on these activities?
Mr. MacDonald: We have done numerous engagement sessions on this legislation both prior to its tabling in Parliament as well as subsequently. Certainly the fishing industry is well aware of the minister’s authority under the Fisheries Act.
They realize that there is congruency there in terms of establishing a protected area under the Oceans Act and his authority to regulate the fishing activities therein.
Senator Poirier: Clause 13 of Bill C-55 sets out the fines and punishments that individuals and corporations can face when they do not comply with the ship detention or compliance order or if they are contravene the prohibition establishments for the MPAs. The maximum fines of $2 million for individuals, $8 million for small revenue corporations or $12 million for other corporations seem quite severe.
How do these fines compare to other fines in the federal act? Based on what evidence or analysis are these numbers chosen?
Mr. MacDonald: It is the same fine provisions that we find in the Fisheries Act because the Fisheries Act was brought up to date with the Environmental Enforcement Act in 2012. The Canadian Environmental Protection Act, CEPA, has also been brought up to date.
The Oceans Act has not yet been updated since its passage in 1997. When the Environmental Enforcement Act was passed by Parliament it set out the fines and provisions that senator was describing. It calls for the other environmental statutes to be brought up to date when the opportunity presents itself before Parliament.
In this case we’re rectifying a situation where currently it is actually less expensive to pollute inside a marine protected area than it is outside of a marine protected area because while the Fisheries Act and CEPA have been brought up to date, the Oceans Act has not yet been brought up to date. That’s essentially the purpose of those provisions in this legislation.
Senator Poirier: Thank you for clarifying that.
Senator Christmas: Mr. Morel, I understand that when the National Advisory Panel on Marine Protected Area Standards met there was quite a bit of discussion about Indigenous protected areas or IPAs.
Does Bill C-55 allow for the establishment of IPAs or interim IPAs?
Mr. Morel: It does not specifically allow but it does not forbid. It is possible under the existing act to have Indigenous protected areas but it’s not specifically in the act. This means that any Indigenous organization can declare that. We can recognize it as either another effective measure that is not under the Oceans Act, or it could also be legislation over the IPA under the Oceans Act to do an MPA with the IPA.
There is no specific section to cover that in the act right now, although the objective of the Oceans Act is also to preserve ecological integrity. I think IPAs are made with that objective.
Senator Christmas: Would IPAs contribute to the global target?
Mr. Morel: Yes, if they meet the criteria that were approved internationally. If some area is declared by a regional organization or a territorial government as being protected under Indigenous knowledge, and if the international standards criteria approved in December by IUCN are met, we will count them as we also count the provincial protections in the target.
The provincial contribution to the target is quite small, but we did recognize the role and the jurisdiction of other governments to create protections in the marine environment, and they count toward the target right now.
Senator McInnis: The fisheries in Nova Scotia in 2017 had exports of $2 billion. It’s a big industry in Nova Scotia and it’s growing because they are discovering the markets in China and elsewhere. It’s big business.
I have attended a number of public meetings on the proposed eastern shore MPA. This is sage that I wrote at 11:30 one night when I came home. This was my reflection. If I can make out my writing, let me read it.
In implementing any public policy both people and process are critically important. My observation is that both were grievously ignored by DFO and most importantly by the group of self-appointed local interest. That was the committee. I don’t know how they got appointed, but many of them were well intended. You must create a system of shared governance and future decision making if you want to set the stage to rebuild trust. This will help ensure that management is not subject to political whims but is based on long-term, shared goals and objectives. No-take zones would be a prime example.
That is what I garnered from what I was hearing, and I am trying to remain objective in these debates. In my opinion, no one knows more than the fishers, the people that are on and in the water. What they found around the Bay of Islands was clean, pristine and beautiful water that has been used since the beginning of time when fishing started. They know how to handle the waters there.
I know you know this and that this is not new. If you want to have an effective and meaningful mechanism for handling this properly, you must start from the ground up. You have to include them right from the beginning. You don’t come out and announce an area of interest, and then somehow you get a committee going and there is no meaningful consultation. Once this is put in place, you have to have a governance system that includes the fishers. If you don’t, it’s doomed for failure. We have to work on that system.
Could you comment on that? I don’t think it’s earth shattering. It’s just my impression of how we should be doing these things.
Mr. Morel: I agree with what you’re saying, senator. The panel recommended to be more transparent, and the minister also referred to that. There are several things to consider.
First, science is important to lay the grounds on starting a conversation. We have strong science on the EPSA, as I indicated earlier, but we also learned that fishermen, Indigenous people and communities know about the environment in our country. They don’t know everything. They can contribute significantly about fish movement, but when you have to explain temperature change of water and how the fish behave and all that it still requires a lot of science.
Consultation from the beginning of the process is key to the buy-in of creating a protected area, an MPA or a fisheries closure. It is totally key. Sometimes we need to push it. We said that very openly on several occasions, and I think the minister said it in his first answer earlier. In 2016 we were at less than 1 per cent. To meet the target of 10 per cent by 2020 we had to push the fast-track button but still respect the process. We engaged very actively with stakeholders and with provinces.
There are some very good examples where our design of potential marine refuge areas was wrong. Fishermen helped us to say, “No, that’s not where the crab is. We should protect that place. Let us fish there.” The northeast slope in Newfoundland is a good example where environmental groups, fishermen, scientists and the province all sit down together and redesign the boundaries that we thought were the grounds for discussion and a good example of exactly what you explained.
In every decision process there will always be people opposed to something who will say that we did not consult enough. If you put it on your website and work to provide science for five, seven and ten years and you’re not able to convince people, it is probably because they will never be convinced or we just don’t get it. I hope it’s not the latter.
That’s part of our principle. It’s also a principle in the Oceans Act that before creating MPAs the minister needs to consult and engage with all the stakeholders. With the amendments to Bill C-55 the process will enable us to continue to do that and have seven to eight years to create an MPA and create protection for the sustainability of the ocean.
Senator McInnis: The officials from DFO said that this would be under the old regime or the old system. Within five years, it will not be an area of interest, an order and then a regulation. It’s the old system.
Mr. Morel: If there is no need to have an interim protection, we will continue. If there is a need to have interim protection, or if we feel that we are sufficiently advanced in the science and the engagement toward protection, we may declare the protection to meet our target. That could be an option also for us to analyze.
Senator Campbell: I want to go back to when we were talking about establishing MPAs and one of the things I am concerned about. I understand the precautionary approach, but can you actually have a precautionary approach without having some scientific basis for looking at that?
For instance, on the West Coast starfish are dying. What do we do about that? There has to be scientific evidence before we start shutting down specific areas. You said that science was important, and I’ve heard that a number of times. A lack of scientific certainty regarding the risks posed by an activity are not to be used to postpone acting to prevent environmental degradation. I don’t know how you get to that. I have difficulty with it because we want to base things on science.
I have to tell you that I certainly don’t agree with you with regard to fishermen. They may not know the temperature of water, but they can sure tell you that something is going on and why they believe it’s going on. Whenever I speak to them on the West Coast, I have to tell you that DFO is not one of the most trusted government agencies on the West Coast, for whatever reason. I have never had any problem with them. They are really worried that somebody will come in there and designate some areas without any scientific basis. The Indigenous communities on the coast depend absolutely on what goes on in the water. They don’t know what they can do.
It goes back to Senator McInnis. Somehow there has to be some sort of trust being built because there isn’t any right now. I can tell you it’s not there. I see it all the time when I go to these small places. I live in the Gulf Islands. We’re dealing with the orcas, for instance. I want you to try to reassure me that there is some order and some process to even just sneaking up to the temporary MPAs.
Mr. MacDonald: This is also related to Senator Bovey’s question in terms of the process. There is a number of different processes the department undertakes when it comes to fulfilling the various mandates we have. We have mandates under the Fisheries Act, and certainly the minister described some of the difficult decisions that have to be taken on an annual basis for the prosecution of the fishery as well as for ensuring its sustainability.
Under the Oceans Act, some of the processes are clearly laid out already in the law in terms of who the minister should consult with and how it should be done. It is an unfamiliar process to a lot of people unless they have been engaged at the outset in terms of marine protected areas because it’s a very different decision point in the end. It’s trying to achieve as much agreement as possible that we need to protect the particular area because we understand why this area is important.
The process of where it starts is based on the science that is done through the identification of ecologically and biologically significant areas. That work is part of an open and transparent process. It is just that people become more familiar with it when we refine the data and get to a point where we say that we know the particular areas of these biologically significant areas. We know that these ones, for lack of a better term, are actually the vital organs of an ecosystem. They actually are the areas that provide the biodiversity that allows for the whole ecosystem to be healthier.
When we go from a broad understanding of oceans and where the significant areas are to saying these areas are of most importance, it begins to trigger a conversation in terms of asking, “How do we convince people who we need to be part of this decision that this is an important area for biodiversity protection?”
Part of that involves taking into account the socio-economic analyses. Is this area important for communities already? What the level of economic activity taking place in this area? It’s starting from the outset of the process by saying this is an important area for biodiversity. If that is where your conversation is starting, it is very understandable that people will be suspicious that their livelihoods may be at risk. It’s normal. This area is important. People will say, “We understand its importance and we understand its value, but what will that do to me?”
The consultations and the steps to establish an MPA can take so long because we work through all of the activities that take place to determine whether or not it is compatible with what we’re trying to protect. We often come to the conclusion that many activities are compatible. For example, a few weeks ago on the eastern shore the department presented the findings in terms of the impact of lobster fishing on the area. The conclusion was that lobster fishing itself, being a passive technology, would not impact what we’re trying to protect. Therefore, it’s legitimate and an activity that can continue.
That conversation is the back-and-forth in terms of what we call engagement or consultation. There can be many sessions. There can be dozens and dozens of community meetings, written correspondence and phone calls. It is part of the educative process of establishing a marine protected area. We definitely don’t want to be doing this in a unilateral or haphazard way. It really does require a high degree of consensus, as much as you can achieve because you’re trying to establish an area for long-term protection. That is why it takes time. The bill proposes, at some point in the process of coming to an agreement that an area is worth protecting, that we should do no more harm to this area and finalize how it will be protected and managed in the future in terms of its monitoring.
Senator Gold: I want to circle back to a concern expressed by a witness in an earlier panel. It’s incidentally connected to Mr. Morel’s answer about what happens at the end of a five-year period.
After the five-year period the minister must take action and must recommend that either the interim protection MPA, assuming it was put in place, be established as an MPA through regulations or the interim protection be repealed.
One witness expressed some concern, though, that there was no strict timeline by which time cabinet had to act on the minister’s recommendation and that then we might be in this kind of never-never land where it has been determined it should be repealed but there’s still some activity being prohibited and cabinet is not responsive to the recommendation.
Do we understand that in fact the bill does not establish a timeline for cabinet to respond? Should it? Do you have any comments?
Mr. Morel: It’s true that bill does not have any clause to say that after a certain period of five years the interim protection ceases. In the discussions we had with different levels it was most important to make sure the protections were not delayed because of administrative reasons. That’s why the intention is to force the minister to make a decision after five years. It’s not because he does not take the decision after five years that all protection stops and then we have to start from scratch. That was more the intention. It was not to have an interim protection that can last forever without any actions.
Senator Gold: I understand that, and I am not recommending that. I am just trying to get your comments. It was suggested that this produces an unforeseen or unintended possible consequence. If the restrictions on activity are no longer deemed necessary, it will remain to the detriment of stakeholders, whether it’s fishers or others, that there is no obligation or no time at which cabinet has to say okay .
Mr. Morel: No. It could be a candidate for a judicial review for someone who wants to sue the minister and say, “You must take a decision and you haven’t taken a decision.” I mean that recourse is certainly open, and we don’t hope that it will be the conclusion.
Having a clause that says if after five years the minister does not create an MPA automatically it turns into an MPA was also not an option. Under the Species at Risk Act, if you don’t list after a certain number of months then automatically the species is listed because the objective is protection of the species. In the case of the Oceans Act we believe that the buy-in of the communities and the stakeholders is important. An automatic turnout or the lack of doing something will turn into protection is certainly not something that we recommended.
Mr. MacDonald: It’s also related. As Philippe Morel said, it forces the minister to decide one way or another so that a passive decision can’t be made. The ministerial order is one level, but by having the minister make a recommendation to the Governor-in-Council it becomes a cabinet decision. The interim protection allows for the minister to make that order, but ultimately it becomes a decision by the entire government to establish the regulations. In that case it captures the statutory authority other ministers may have for marine activities in the proposed area.
Senator Gold: I take that as perfectly sensible from all concrete perspectives, but the witness was concerned with the opposite situation where the minister makes a recommendation that is just not acted upon and the interim protection is not repealed. In other words, the recommendation is not to establish a permanent MPA. Somehow it’s just hanging out there and fishers choose that example and are unable to resume an activity that had been barred for some period of time. Is that a realistic concern? I wanted to get your views on record, given the witness’ preoccupation.
Mr. MacDonald: The freeze the footprint concept doesn’t prevent or bar any activity that is already authorized. That’s at the main heart of the legislation. Therefore, the only restriction is limiting the introduction of new activities that were not taking place in that area before or restricting the level at which that activity has already been authorized. In that way the status quo is not a situation where something has been curtailed other than in the context of the Fisheries Act that we’ve discussed. Therefore, the act of prohibiting anything really becomes a decision of the whole of the government.
In the drafting of the legislation the proposal is that Parliament grant the minister this authority, but that ultimately the authority to establish MPAs still remains with the Governor-in-Council and not with the minister himself.
[Translation]
Mr. Morel: I’d like to add something, if I may, about fisheries. Let’s say shrimp fishing is approved in an area, and then, at a certain point, a footprint freeze is imposed. The shrimp fishing will continue nevertheless. If shrimp are plentiful during that time and the minister decides to up the quota, the activity will be carried out in the same way and the shrimp catch will be larger that year, or smaller if stocks drop. The activity is restricted, not the number of shrimp being caught.
From a fisher’s standpoint, then, if interim protection remains in place, it has no bearing on the catch. If the shrimp are plentiful, the fisher will be able to continue catching more shrimp. What will be prohibited, however, is the approval of new fisheries. If crab fishing isn’t approved in an area that has crab, the activity probably won’t be allowed during the five-year interim protection period.
Senator Gold: In response to witness concerns, would it be reasonable to conclude that any potential impact on stakeholders would be minimal?
Mr. Morel: Yes. I would agree with that.
[English]
Senator Bovey: I have just one quick question to pick up on Senator Campbell’s question. Could you confirm what scientific evidence there is? Is scientific evidence the evidence engendered by the research of DFO scientists, other governmental scientists, scientists working at universities or in various partnerships? Does it include the work being done at CHARS?
where does Indigenous knowledge fit into science-based evidence? where does anecdotal knowledge fit in? We’ve heard about the knowledge of the fishers, but I contend that our lighthouse keepers have anecdotal evidence too, especially when it comes to killer whales off Vancouver Island.
Perhaps you could define what makes up the bulk of scientific evidence. Is it just ministry generated, or does it really take into consideration the work being done elsewhere?
Mr. MacDonald: Certainly scientific evidence is broad. It is also augmented and refined as we go through the process. Basic science in ecologically and biologically significant areas is often generated as a result of the work of the department and its oceanographic research.
Sometimes we’ve taken advantage of certain circumstances when, for example, we were delineating our continental shelf. We were using a multi-beam sonar. We were gathering a lot of information about the living marine resources in that area, at the same time as we were focused on the geology to make our submission to the United Nations Convention on the Law of the Sea.
We have opportunistic moments where we are gathering biological information and biodiversity information when we’re doing other scientific activities. The same goes for when DFO is doing stock assessments. We will often multitask Coast Guard vessels to do stock science and to conduct research for this type of purpose. That’s all part of the planning of our science department or science sector.
Scientific publications that come from the department are also peer reviewed. The Canadian Science Advisory Secretariat invites experts on particular subject matters from academic institutions and those with international expertise to a lot of sessions. They are part of the dialogue among the scientific community when they put out a publication. When we say it is peer reviewed, it is not just internal. It is also reviewed by experts that are invited to participate in those processes.
That the basis in terms of when we go to propose a particular area is contributing to biodiversity. The consultations are not just the department talking and people listening. It is very interactive. That is where local knowledge, Indigenous knowledge and anecdotal knowledge of the area is part of the discussion. When we’ve established what is the conservation objective for a particular area, it’s informed by all those sources of information, knowledge and wisdom. When we talk about it being one to three years before you even get to the idea of an area of interest, it is s because it has been informed by all of the information gathered subsequent to some of the scientific publications that have been made.
Senator Bovey: We heard this morning about the institute on the East Coast and the Department of Earth and Ocean Sciences at the University of Victoria. I know they’re working in a lot of these areas. I wanted to ensure that scientific-based evidence is drawn from bona fide scientific research being done wherever.
Mr. MacDonald: Certainly. I could even elaborate and say that some of the research networks have been funded and are managed by academic institutions, such as ArcticNet or CONy. They do specific scientific research for oceans management and oceans protection. We certainly profit from the partnerships that have been established with other scientific institutions.
They also play a role in the monitoring of marine protected areas. The institute at the University of Victoria is involved in monitoring our marine protected area on the West Coast. That data is also used in informing on the effectiveness of marine protected areas.
The Chair: I thank our witnesses for adding to our discussion and debate this afternoon.
I ask the senators to remain so that we can go in camera for a few moments to talk about tomorrow.
(The committee continued in camera.)