THE STANDING SENATE COMMITTEE ON FISHERIES AND OCEANS
EVIDENCE
OTTAWA, Wednesday, February 6, 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: My name is Fabian Manning. I am a senator from Newfoundland and Labrador and chair of the Standing Committee on Fisheries and Oceans. Before I introduce our witness or have the witness introduce himself and speak, I would ask the senators to introduce themselves around the table, starting on my immediate left.
Senator Campbell: Larry Campbell. I am a senator from British Columbia.
Senator Poirier: Rose-May Poirier, New Brunswick.
Senator McInnis: Thomas McInnis, senator for Nova Scotia.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Busson: Bev Busson, British Columbia. Welcome.
Senator Francis: Brian Francis, Prince Edward Island.
Senator Christmas: Good morning. Dan Christmas, Nova Scotia.
Senator Munson: Good morning. Jim Munson, Ontario.
Senator Bovey: Patricia Bovey, Manitoba.
Senator Gold: Good morning. Marc Gold, Quebec.
The Chair: Thank you, senators.
This morning the committee is continuing its study on Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act.
Today we have four panels. In our first panel, our guest has arrived, and we’re going to ask him to introduce himself and tell us a few things about himself. He’s going to have some opening remarks, and then we’ll have questions from the senators.
Duane Ningaqsiq Smith, Chair and Chief Executive Officer, Inuvialuit Regional Corporation: Ublaami; good morning. My name is Duane Smith Ningaqsiq. I’ll stick to the English part of my name to make it easier for everybody.
I’m the elected chair and CEO of the Inuvialuit Regional Corporation.
Senator Patterson: You were just recently re-elected, right?
Mr. Smith: Last week. Just so you know, the Inuvialuit region is the very far northwest area of Canada that buffers the northeast tip of Alaska. It’s just under one million square kilometres that I represent. It’s nine hours by jet, but we’re still in Canada. You’re welcome to come and visit sometime.
The ISR is our homeland. It’s a part of Inuit Nunangat, as you may be aware, along with the other three Inuit regions. Our modern treaties cover roughly 38 per cent of Canada’s land mass, as well as 50 per cent of its coast.
We negotiated our land claim with Canada. It began in 1970. This came in response to increasing development activity in our lands and waters over which we had little influence at that time.
The IFA, as it’s commonly referred to — the Inuvialuit Final Agreement — was signed and given effect back in 1984. It’s the second modern treaty signed with Canada and the first north of 60.
It’s important to point out that offshore negotiations were not considered by Canada at that time, so it’s still an outstanding issue with us. Since then, there have been other offshore negotiations and agreements reached with other Indigenous organizations and Canada.
The ISR, as it’s commonly referred to, includes lands, ice and waters of the Mackenzie Delta, the Beaufort Sea and the Arctic Ocean. There are six communities within the settlement region: Aklavik and Inuvik are located along the banks of the Mackenzie River, and Paulatuk, Sachs Harbour, Tuktoyaktuk and Ulukhaktok are located along the coast of the Beaufort Sea. There are over 6,000 Inuvialuit in the ISR and all over Canada and beyond.
Not many people realize that the Beaufort Sea and the Arctic Ocean comprise roughly two thirds of the ISR. The resources in this area are part of the trust we hold for future generations. This marine area is not an uninhabited place. It is a major component of our region and our way of life, our culture. It is important to note that Canada shares jurisdiction with Inuvialuit through statutes like the Oceans Act and the CPRA as well as the IFA.
When I say the IFA, we’re both signatories to that. It is our land claim. When I say “our,” that’s yours and mine, so we both have an obligation and a responsibility to make sure that it’s implemented to the best that it can be.
Our reading of the proposed changes to the Oceans Act suggests that the minister may by order designate a Marine Protected Area in any area of the sea that is not designated as an MPA under another section of the act. And our review of the proposed amendments to the CPRA suggests that the Governor-in-Council may by order prohibit interest owners from commencing or continuing activity in areas designated as MPAs under the Oceans Act.
While the Oceans Act does provide for ministerial consultation under Part II, it is permissive rather than mandatory. Further, while the Oceans Act contains a non-derogation clause, this does not constitute instruction to consult. Treaty rights holders are then left having to advocate their own consultation entitlements in the face of conservation measures that could have detrimental impacts.
Taken together, the Oceans Act and CPRA give ministers the authority to make major environmental and economic decisions in a land claim area without completing an in-depth study, consultation and accommodation of our rights. For limitations this significant, free, prior and informed consent of rights holders is required.
I’d like to note that to date two Marine Protected Areas and the only two presently have been established within my region. The Tarium Niryutait, or TNMPA as it’s commonly referred to, was established in 2010 and constituted Canada’s first Arctic MPA. It covers nearly 1,800 square kilometres of the Mackenzie River Delta and estuary in the Beaufort Sea. The Anguniaqvia niqiqyuam MPA, or ANMPA as it’s referred to, was established in 2016 and is Canada’s second Arctic MPA. It covers an area of 2,361 square kilometres and is located in Darnley Bay near the Inuvialuit community of Paulatuk.
Both of these MPAs were created through a collaborative effort among Inuvialuit, Department of Fisheries and Oceans Canada, industry, local stakeholders and governments. While the process to establish these MPAs has received some financial support and human resources, the same has not been applied to the implementation phase of these MPAs.
Inuvialuit are concerned that establishment of MPAs by ministerial order under the Oceans Act and the further limitation on development by prohibition order under the CPRA will reduce our meaningful participation in the future of our region and exacerbate these implementation problems we are already experiencing.
With that, I want to thank you for your attention. I understand I’m probably out of time, but thanks and I’m happy to take any questions.
The Chair: Thank you, Mr. Smith, and welcome. As usual, I’m going to go to our deputy chair for first questions.
Senator Gold: Thank you and welcome. I just want to ask you to elaborate a little bit more on the experience that you’ve had to date with the MPAs. You mentioned two that had been established since the land claims agreement, and you mentioned that they were established through a collaborative effort among your community and other stakeholders. Can you just tell more about how effective that consultation process was? Were your land claim rights and other rights sufficiently respected? Do you have any recommendations as to how the process could be improved?
Mr. Smith: Thanks for that question, senator. Both of those, as I stated, were initiated by the Inuvialuit because they are important to the sustainability of the ecosystem. We see ourselves as a part of the ecosystem, and anything that is going to negatively affect those are going to affect us. So we took the proactive approach to ensure that any negative effects on these areas would be minimized to the extent that they can be.
The first MPA was created to protect the habitat of the beluga whale. We have the largest population of beluga of anywhere in the world. So that’s one reason why the area is important. We also have a national historic site that Canada neglects, located in that area to recognize our contribution as Canadians and Indigenous peoples that’s a thousand years old.
We worked with industry in that area, where there is a lot of oil and gas, to explore only after the beluga left the area so there was no negative effect on them. It worked. The federal government, the DFO in this case, saw that and began to work with us and industry to put proper legislation in place. That took a lot of time but prior to that we already had an understanding with industry.
The second MPA was established because we wanted to ensure that the unique and diverse ecosystem of that area was maintained to the extent that it can be, primarily because of the utilization of it by that community and to ensure that no shipping, exploration et cetera, would have a negative effect on that area. Again, industry and the federal government in this case saw the importance of it and worked with us to establish that MPA.
Senator Gold: Thank you. We heard yesterday from the minister and his officials with regard to these amendments and the potential establishment of some interim protection pending the completion of all the analysis. They told us their process was to identify, based upon their own research and science, the possibility that a particular area might have significance for biodiversity. Once identified, though, then they told us that they would engage in ongoing consultation with stakeholders — whether it’s Indigenous communities, fishers, provincial, territorial governments and the like — before actually taking any decision as to whether or not an interim MPA would be established.
Does that process strike you as adequate or would you suggest changes to that process?
Mr. Smith: I would suggest that it’s fairly ignorant in regards to my region. I say that because the government slapped a moratorium on my region without any consultation to begin with.
Secondly, the reason I say “ignorant” is because we have had a final agreement with the federal government for almost 35 years now. Under that process, we have a co-management body that deals with offshore marine management and research. It’s called the Fisheries Joint Management Committee that has Inuvialuit, territorial and federal government representation. But when they sit down, they don’t say, “I’m representing the government or Inuvialuit.” Rather, they sit down as a consensus and say, “We know what our mandate is and that’s to develop a research plan after consulting with the communities on what the priorities should be.”
So they’ve been in place for almost 35 years now, and with this process that you just referred to, the federal government is ignoring that process and responsibility that already is in place with this co-management process.
In addition, there’s no reference to Indigenous or traditional knowledge in that process.
Senator Gold: Thank you.
Senator Patterson: I appreciate the opportunity to participate in the committee’s meetings this morning as the critic on this bill. I am going to be leaving for another committee later this morning, but I appreciate this opportunity.
Mr. Smith, when Premier Bob McLeod appeared on the other side on this bill, he described the bill’s potential effect on the Inuvialuit Final Agreement. You have just outlined how the agreement provides for Indigenous participation in an offshore co-management process. But he also said that the bill would have a potential effect on the Devolution Agreement. I’d like to ask you about that. Devolution is about transferring the federal government’s responsibility in lands and resources — and ultimately the offshore — to territorial governments.
Second, 3.2 of the Devolution Agreement between the Northwest Territories and Canada contains a commitment for Canada, the GNWT, and the IRC, your organization, to commence negotiations for the management of oil and gas resources in the Beaufort Sea and other northern offshore areas.
Now, that commitment made in the Devolution Agreement was, frankly, ignored by Canada when the oil and gas moratorium that you referred to was announced. But I’d like to ask you about this bill. Do you share the belief expressed by Premier McLeod that the impact of unilateral actions — as the minister’s ability to unilaterally create an MPA — will disrespect the process that has been now revived by Minister LeBlanc to discuss co-management in the offshore?
Mr. Smith: Thank you for the question, senator. As I pointed out, the present bill as it’s drafted doesn’t respect the rights that we have within the final agreement that’s in place. It actually goes backwards because there is no real consultation. There needs to be some mechanism or process placed within this bill to recognize our rights and numerous court rulings that point out requirements for adequate consultation.
Senator Patterson: On the point of consultation, could you describe for the committee the consultation that the Inuvialuit received prior to the announcement in October 2018 by Prime Minister Justin Trudeau and President Barack Obama about the oil and gas moratorium? Also, I received a record of consultation on this bill as critic, and I noted that your organization was listed. I’d like you to comment on the consultation on the oil and gas moratorium, if any, and do you feel you were adequately consulted on this bill? Your organization was listed. Were any concerns you raised addressed?
Mr. Smith: Again, thank you for the question, senator. In regards to the first part of the question, if you consider a phone call 20 minutes before the announcement of the moratorium being put in place consultation, then that was the extent of the outreach that was conducted by the federal government in working — or lack of working with us — in regards to the development of this moratorium. We had companies who had rights on the offshore to explore at that time, and basically that was a signal for them to shut down. So in reality, there was no consultation on that.
Second, again, it depends on what you mean by the extent of consultation. We were put on notice that this bill was being drafted, please provide comment; come to us and provide if you do have any comment. If I recollect, there has been no outreach to the region that will be affected by this bill, and I think that there should be because we are a democracy. So the draft bill should be reaching out to the people that it will effect for them to provide adequate input into it.
Senator Patterson: What about the devolution or the non-derogation clause, does that give you any comfort?
Mr. Smith: I would say not to the extent that it should at this time. The document you’re referring to is going on five years old, and it also says that negotiations should begin 60 days after the signing. To date, we’ve been reached out to be informed that they want to begin negotiations, but in reality there has been no consultation or negotiations initiated yet.
Senator Bovey: Thank you so much for being with us. I appreciate what you’ve said. I’ve got a couple of questions that I’d like clarification on, if I may. One question is about consultation. At the committee stage in the House of Commons, an amendment was put forward by parliamentary member Mr. Tootoo and Mr. McLeod which sought to strengthen the rights of Indigenous peoples that might be affected by Bill C-55. That amendment in clause 5 of the bill concerned the minister’s discretionary power to designate an MPA by order. The amendment of Mr. Tootoo and Mr. McLeod was accepted and I quote: “That this discretion —” meaning the minister’s 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.”
Can you comment on that amendment? Does that assuage some of the earlier concerns because the amendment is before us as part of the bill?
Mr. Smith: Thank you for the question, senator. I think it goes part way to alleviating the process or the concern, but it doesn’t go far enough with regards to us needing to work together. How else can I put that? We tried to work with those two to get the proper wording in there, but it still doesn’t go far enough as far as the intent of it.
Senator Bovey: If I may do a follow up and then I have another question. I think they’re two different stages, if I may, the bill itself and then regulations and implementation. So is your concern with the bill or is this concern really about the regulations and implementation?
Mr. Smith: I think it’s both because the intent of the bill and how it will be implemented will have that impact and effect. I would suggest that any bill being drafted should be reflective of the various court rulings that have been put in place over a number of years. Otherwise we’re going back down the same path in regard to what this bill is actually going to do, how it conflicts with various levels of court rulings and how these should be developed. One is saying you’re supposed to develop it this way and draft it up in this process, and the other is doing it the same old way it has always conducted its affairs, which has been demonstrated in the courts not to work.
Senator Bovey: If I can turn to another aspect, you mentioned ecodiversity. I couldn’t agree with you more about the sensitivity and uniqueness of the areas. I understand there is an Inuit impact agreement in place, and I wonder if you can talk about that impact assessment agreement and how it affects this.
Mr. Smith: Thank you for the question again, senator. If I understand, the benefit that you’re referring to is within Senator Patterson’s area. It’s not in my area at all. We do not have impact benefit agreements with any party, including the government. That’s why I was suggesting in my statement that the resources provided for the research and the management of these two MPAs is inadequate at this time.
Senator Patterson: Maybe I can assist the committee, if I may.
Senator Bovey, there is a new marine protected area being developed in the Baffin region of Nunavut, and the regional association, the Qikiqtani Inuit Association, is presently in negotiations with the federal government for an impact and benefit agreement as required under the Inuit land claim. I’m told it may involve up to $200 million or more and include marine infrastructure and other significant benefits. This is in the Lancaster Sound area. That’s to clarify what the member is referring to.
Senator Christmas: Thank you. It’s good to see you again, Mr. Smith.
I’d like to follow up on Senator Bovey’s comments. You mentioned that the amendment proposed in the House of Commons didn’t go far enough. I’m wondering, would your organization be prepared to submit to this committee some wording or amendment that would bring your concerns the full distance?
While you think about that, I understand that perhaps what your organization is seeking is the right to have consent on the establishment of MPAs in your area. I’m just throwing it out as a suggestion, but I would be interested in your thoughts. What would it take to improve this bill to make sure your concerns are brought the full distance?
Mr. Smith: Thank you for the question, senator, and good to see you again as well.
It’s a tough question. I’m not trying to suggest that we should have a veto of any kind in this regard, but I think under the modern-day treaty that we have, a process has been established already between ourselves and the governments. So, I’m suggesting that we should work through that process to identify if an MPA or more MPAs within my region is something that should be exercised. We already have different processes within that treaty to evaluate both positive and negative impacts within our region. We have a co-management process that deals with environmental impact screening as well as the Environmental Impact Review Board. Again, they both have Inuvialuit and federal government representation on those tiered levels of evaluation on activities that may be considered within the region.
I can’t suggest wording right now, but I think we would be willing to entertain providing some wording that can reflect how this can meet both needs. Again, it would probably go back to the modern-day treaty that we already have because it’s a proven process that has worked for the last 35 years for both of us.
Senator Christmas: Would you support the idea of perhaps incorporating in Bill C-55 the provisions in the Inuvialuit Final Agreement that refer to those processes?
Mr. Smith: I would say yes. Certain senators around the room are familiar with the Inuit land claims processes. Like I referred to, we represent 38 per cent of Canada’s North, 38 per cent of Canada’s land mass and 50 per cent of its shoreline, so I think it’s beneficial for us to work together on these.
The reason I refer back to the other Inuit land claims is when it comes to this issue, the content of each is not much different in regard to the need for us to work collaboratively, and our respective processes are fairly similar to each other in working on these types of issues.
Senator Christmas: If I may just change the topic a little, I was interested in your comments about the two existing MPAs in your area. You mentioned that you had received some financial support for those two MPAs, but I got the sense that you didn’t receive the kind of financial support that is necessary for these two MPAs.
Could you elaborate on the amount of financial support that has been given to these two MPAs? What is the shortfall? What more needs to be done financially to support these two MPAs?
Mr. Smith: Again, thank you for the questions, senator. There isn’t a commitment of $200 million or anything like that. One of the MPAs gets a whopping $40,000 from Fisheries and Oceans to conduct research. We had to lobby them for more funds for research, and right now it’s up to $200,000, but there is no commitment that as of April 1 it will continue.
That is why we’re hesitant and reluctant at times to deal with the federal government on these types of issues because it’s more optics than long-term commitments or realities. At times it seems they want to create these large areas and use our regions as the process because it’s fairly remote, Canadians aren’t going to pay too much attention to it and they are very large geographical areas.
When it comes to what you’re asking in regard to providing adequate resources, including the gathering and documenting of Indigenous knowledge in these areas, it is very much lacking. We need to see some type of real commitment. If we are going to have a bill like this, then what is the value, benefit and return to those who are being affected by these bills?
Senator Patterson: Hear, hear.
Senator Christmas: That is very disconcerting. Obviously Canada has valued these two areas to the extent they have, with their unique ecosystems and unique species, and there’s great value in protecting those areas. Yet when it comes to financial resources to take care of those areas, it’s not matching the value that Canadians have put on it. Thank you very much, Mr. Smith, I appreciate your comments.
The Chair: Senator Bovey, do you want to follow up on something Senator Christmas asked?
Senator Bovey: I’m happy for a second round.
The Chair: Mr. Smith, if you want to put forward wording of a recommendation or an amendment, I suggest that you do it as soon as possible so we can discuss it as a committee. Please provide it to the clerk of the committee.
Mr. Smith: Thank you, Chair. If I could just a follow up to Senator Christmas, to give you some sense, I pointed out the size of the Beaufort Sea and the Arctic Ocean here, 600,000 or 700,000 square kilometres. DFO at this time has one vessel that’s trying to conduct stock assessments. So you can imagine it’s a needle in a haystack and you will never get a proper assessment.
I continuously stress the importance of Canada’s presence because we’re seeing more Chinese and Korean vessels within our region conducting research, so it gives you some sense as to the importance of our working together, not only for Canadian research but sovereignty as well.
The Chair: That’s very interesting. Senator Munson?
Senator Munson: I was going to explore that. Thank you for bringing it up because you clarify the amendment. So what are they doing there? What are these foreign nations researching? Are they trying to find another way in the Northwest Passage or are they researching, or what are they up to in your estimation?
Mr. Smith: Last year, Canada allowed China to go through the Northwest Passage. They said it was research. Once they got to the other end, they said they mapped out a navigation route for their own purposes. That should be alarming to Canada because other nations such as Europe and the United States are saying that it’s international waterways and it’s a navigation route. But in reality, the way the ice is receding so quickly over the pole that this route is going to be the preferred option.
They’re conducting numerous types of research. China just completed its second icebreaker for research and they did it in less than two years. Korea is going to have their second icebreaker completed very shortly, and we’re still discussing ours 12 years later. That’s the reality of it. China has created their blue paper in regard to a part of their Silk Road strategy. It includes the Northwest Passage and those activities. But they are working through the Arctic Council and others to conduct these research activities. Sometimes they are in collaboration with different Arctic nations and sometimes they are independent of each other.
Senator Munson: I sit as co-chair of Canada-Japan. I know that Japan has some new interests as well through that area. You must feel alone, both from the government here and dealing with foreign nations.
Mr. Smith: Well, we live there, and we see it. We are working with Transport Canada, the Coast Guard and Fisheries and Oceans to identify shipping corridors. My next meeting is to develop a pilot program into monitoring the different ships coming through the area. There are a lot of pleasure ships that are not being monitored and we have concerns about potential disruptions to sensitive ecosystems and cultural sites.
Senator Munson: Is this what you alluded to earlier in your testimony when you talked about negative impacts? Is that what you are referring to?
Mr. Smith: It’s part of it.
Senator Munson: What’s the other part?
Mr. Smith: The fact that a process is being put in place without adequate collaboration with us in the development of that and cutting us off at the knees, if I can put it that way, in regard to potential economic opportunities. We’re not doing a full assessment and evaluation of what the pros and cons can be of the processes that we’re considering. I use the national park on the land as an example, where its intent is to protect a species, but due to climate change that species is gone, so does that park continue to serve its purpose?
The same with our Arctic marine MPAs. We need adequate funding to conduct monitoring and research of those MPAs to make sure they’re meeting their objectives. The ice is receding so quickly, we don’t have slushy ice in the summer anymore, so that part of the ecosystem is changing and parts of it are not surviving. Some other species are also moving in at the same time, so how does that affect the ecosystem that was there? We’re trying to maintain some type of sustainability.
Senator Munson: That’s why your amendment is important. I find it difficult to believe in 2019 that it’s still “our big brother knows best,” better than you who live on the land about the effect of these marine protected areas.
Mr. Smith: It’s back to the signing of our land claim. When the treaty said we both have to develop a co-management process, but the federal government scientists said, “We’ll manage and you cooperate.” That was the interpretation of co-management. It’s come a long way in 35 years. Both sit down to reach a consensus and know their mandates now. But you’re correct in this case. That’s how this bill appears with “we know best,” “we’re going to put these things in place with or without you” and we will gather information later rather than before so that we can make informed decisions.
Senator Munson: Thank you very much.
Senator McInnis: Thank you, Mr. Smith for being here. It’s very interesting.
You have been able to bring about, in conjunction with the federal government, two MPAs by working together. We’re told one of the key reasons for this particular bill is to expedite the number of MPAs in order to get to the 10 per cent that was agreed to internationally by our government. The previous or the existing system process takes longer. The reason it takes longer is because consultation is involved.
In this instance here, there is no discussion with the premiers or with the territorial leaders. An MPA can be imposed, it’s called an area of interest, and that footprint is there and frozen and then they come out and start to consult, apparently. My experience at the moment with the committee that is in place in my home area of Nova Scotia is that it’s not a committee of consultation. It’s a committee of implementation. That’s what exists.
So when we have amendments that took place in the House of Commons committee, the challenge there is the word “may.” Why not “shall?” That’s what the amendment should have said.
So, we’re bringing a bill in to reach this 10 per cent. That’s what it’s about. For the life of me, who knows your area better than the people that reside there and govern it? Certainly, no one in Ottawa, and certainly not DFO, with all due respect to them. They are fine, capable professional people, but it never works when one side comes in and says, “Here it is.” It’s called reverse onus. In fact, here it is, now prove that it shouldn’t be here. That’s not the way any government should operate, and that’s why this bill, in my opinion, is totally fallacious. It’s not needed. They should have tightened up and discovered why it took 7 to 10 years to do it in the existing systems. Why did it take so long?
For me, I just don’t get this bill, and I think it has caused a lot of consternation, anxiety and pitting people in the communities against one another in my area. It’s wrong. Never should legislation be put in place unless there is consultation.
Could I get your comments on that and why it is we couldn’t resort or continue with the collaborative effort that you have in your previous two MPAs?
Mr. Smith: Thank you, senator, for the question. I think, like I’ve pointed out, there is an obligation of both parties under the treaty that we both have to implement. That process exists, and this is another process that this bill is ignoring, in my view.
I agree with you. We have a process that we’ve established twice now that has worked. Why can’t we continue to use that as well as the tools that we have within this treaty to evaluate other potential sites so that it’s a win-win situation? Rather than, as Senator Munson has pointed out, this being put on us without any adequate and meaningful dialogue between the parties. I can’t agree with you anymore than that.
Senator McInnis: Thank you. I could go on. I don’t want to be repetitive, but I just think that if we’ve come to a point in time in this country where it’s one-sided. They state the case and you have to accept it. I think that’s just fundamentally wrong. It’s not democracy, and we shouldn’t be doing it. Thank you for coming.
Mr. Smith: Thank you.
The Chair: Thank you, Senator McInnis. We’ll go to the second round, beginning with our deputy chair.
Senator Gold: Thank you again, Mr. Smith, but I’m getting a bit confused about what we’re focused on in this. I appreciate all of the concerns that you raise and we’re going to take them seriously. But I’m having a hard time squaring what we heard, what I read in the bill and what we heard from other witnesses with some of the things that have been said around the table. Maybe I have it wrong. I want to get it clear.
I understand first that we’re talking about amendments to the Oceans Act that would allow for the establishment of interim MPAs. There is a whole process that isn’t changing; this is in addition to the process. With regard to this process, as with regard to the others, they have to respect Aboriginal rights and land claim agreements. So it’s not clear to me that to characterize this as government coming in unilaterally is really accurate in terms of what the process is and the constitutional environment within which the processes have to operate. I may have that wrong, but that’s one thing.
Again, as we understand the process as set out in the bill and as described to us by the government, it’s true that the government and Fisheries and Oceans might unilaterally, if I can use that term, identify, rightly or wrongly, and without perhaps the benefit, which it should have, of consultation from the ground up. We heard that from many witnesses. I couldn’t agree more.
Then they say this is an area they think they should be exploring, but what we were told is that at that point — well before any decision is made by the minister to designate an area for interim protection — there would be consultation with relevant stakeholders and communities alike, taking advantage of local and Indigenous knowledge and the necessary involvement of communities, whether it’s fishers or other people who live and make their living off the land, who know better than anyone else what’s going on in their community.
I can’t square some of the characterization of this with what we’ve heard. Obviously I’m inviting you to comment once I finish this rather lengthy comment.
Finally, we also heard that with regard to the establishment of an interim MPA, they freeze the footprint. I know we’ve heard concerns about rotational fisheries. I think in the other place you and others have expressed concerns about freezing the level of activity and not allowing for the expansion of activity. What we heard from the officials yesterday was that it was the categories of activities that were frozen, not the quantity or quotas within that.
I would again invite you to comment on my understanding that there is in fact a process contemplated. It’s constitutionally mandated and its land claims processes are in place such that once an area is designated, there would be consultation before an interim MPA is put in place. If and when it is put in place, that does not necessarily, at least in some categories of activity that contemplate the ongoing activities in that community, whether it’s fishing or the like — and it could include oil and gas exploration too, pending the conclusion of the consultations, the research and the like. Where have I got it wrong?
Mr. Smith: Well, first of all, a moratorium was imposed on us.
Senator Gold: Was that part of the interim MPA?
Mr. Smith: I think that’s the intent of it, but again, it’s being imposed. It is not working together on why a moratorium should be put in place in an area that you previously issued exploration permits for.
I am of the view that if we don’t have enough science, either Western or traditional knowledge science, then we should work together to develop and provide adequate resources for the implementation of a research plan to gather that data in conjunction with the other activities that are taking place. That is the process we already have. It’s established, and the federal government in this case is neglecting its responsibilities and obligations under this treaty.
Senator Gold: I take your point, Mr. Smith, but again, I return to my question. That would not flow from the provisions of the bill that are before us, as far as I understand it. That, in fact, Bill C-55 and the changes it would make to the Oceans Act vis-à-vis interim protection would in fact not contemplate that kind of unilateral moratorium pending consultation. There is a process before us by which the minister could recommend an interim MPA.
I’m not arguing at all with the shortcomings of the processes. Otherwise, maybe I’m too narrowly focusing on the bill that’s before us and trying to understand how it operates and would affect you and your community.
Mr. Smith: I’m trying to understand what you’re trying to get at, but my understanding is that the problem is the discretion that the minister would have to impose these. As you also said once an area is designated, who designates that? How do they go about getting to that distinction of designating an area?
Your wording, if I remember it properly, was the minister “could.” That’s too discretionary in regard to Canada’s obligations for proper consultation with ourselves, who are the affected party.
Secondly, it’s freezing impacts within our area. In our case, we had companies with exploration permits and this was imposed on them. It’s not giving any comfort to the region. Industry should be investing in exploration but had a moratorium imposed on it. So they have walked away. My understanding is that Canada returned their deposits to them bit that doesn’t give any comfort in the future, once the moratorium is lifted, because very little has been done once the five years is over. So does that mean because we don’t have information or data, then Canada will continue the moratorium?
We’re sitting on proven reserves, 9 trillion cubic feet of gas at the very least, and vast amounts of oil as well. But we’re not going to see any industry investment and stimulation to the economy because of the moratorium. I know oil is dirty now, but we’re looking to develop the gas that we have, both onshore and offshore. But when you have uncertainty of government processes, then you’re not going to see any potential development. That’s the biggest concern that we have is uncertainty and the discretion again of the minister to impose these. We need clarity in regards to how these designated areas would be considered.
Again, under this treaty we have, it’s the responsibility of the Fisheries Joint Management Committee to evaluate potential sites, so that they can make expert recommendations to ourselves as well as to the different governments.
Senator Gold: Thank you very much, Mr. Smith.
Senator Bovey: Thank you very much and I want to applaud the number of issues that you’ve brought up. And if I may be so bold, the Special Committee of the Senate working on Arctic issues are, in fact, trying to address some of these issues you mentioned about security. I certainly hear you about the Chinese and about the Russians and please don’t think that the rest of us aren’t equally concerned about many of those issues. I take to heart what you’ve said and we’ll take your testimony to the other committee as well, if we may.
With these interim designations, I, like Senator Gold, have a few conflicts in what we’ve heard over the last couple of days. It was very clear to me in yesterday’s discussion with the minister’s and ministry officials that all the existing treaties and agreements are very much in place. They supercede this; this doesn’t supercede them. I think that to me has been very clear through the process. And if I’m wrong in that in terms of going forward, please let me know.
The other thing you mentioned are the fish stocks that are changing because of climate change, and I know the Arctic Research Centre has started their work but may not be officially opened yet. It’s my understanding that they’re working with, as you say, both Western science and Indigenous knowledge. Yesterday, when I probed the ministry staff yesterday about what scientific evidence means, I asked is it just the scientific researchers in DFO or does it include research that’s being done in universities, Indigenous knowledge, and that bigger cache, shall we say, of evidence? I was assured it was all of the above. If I’m wrong, where am I wrong?
Mr. Smith: Thanks for the question, senator. I wouldn’t say you’re wrong. There’s no wrong in this issue, when you’re trying to implement research of any kind because any data collected is of value. I think there needs to be some understanding of how research priorities are developed within our region. Like I said, the Fisheries Joint Management Committee consults with the communities on numerous occasions. They will gather their priorities from the communities and they will put them into what they’re recommending and send them back to the communities to say, “Did we get this right?”
In certain areas, they do have long-term research agendas to monitor different species. But the resources to develop a consistent community-based monitoring program is lacking. It’s important for the current MPAs to have adequate resources now to monitor their implementation.
The second MPA is supposed to have a periodical review every five years, but I don’t think there’s going to be the resources to do that evaluation. But we know that certain fish species have moved into the area and are taking over. We get salmon now that go all the way up the river. We never got salmon in that area. Periodical chum salmon, but we’re starting to see different species, which could be a good problem for some, because they don’t mind having salmon, but it’s taking over the habitat of different species like char.
Senator Bovey: If I can do a follow up. I hear what you’re saying and I certainly agree with the need for resources to continue the monitoring. I was really encouraged last summer when I was on the Amundsen scientific research ship, albeit in Hudson’s Bay. Our Arctic committee went up to the research centre in Cambridge Bay and I hope that the research undertaken by this new centre will involve Inuit Indigenous knowledge, as is the case with David Barber’s work on the Eastern Arctic. I think it’s really important that you come forward with what you think an amendment should be, and this committee needs to note the issue of resources.
Mr. Smith: If I may, in regards to the Cambridge Bay facility, they have their own agenda that they’re implementing, and we as the four Inuit regions had proposed an Inuit advisory committee on how they would develop the Indigenous research agenda, and that was turned down by them. So we’ve already got an issue in regards to how Canada’s supposed expert research facility is approaching how it conducts its affairs in the Arctic. So we already have a concern with that.
Senator Bovey: So if I just may close my part up. May I suggest that with the chair of the committee here and I’m deputy chair of the Arctic committee, we’re just getting into the scientific research aspect of our work and I think it would be really beneficial if you could appear before that committee and we could follow up on some of this that’s outside the purview of Bill C-55. I appreciate it all relates, but outside the detail of Bill C-55 and into the purview of this special committee that’s trying to articulate the key issues that we all need to be looking at.
The Chair: We have about seven minutes left and we have Senators Patterson and McInnis. You can divide that among yourselves.
Senator Patterson: Thank you very much.
Mr. Smith, you’ve got the natural gas field which the town of Inuvik has relied on to supply its power generation and heating needs has run out. You’ve got 9 trillion cubic feet of gas offshore that you want to develop and a road now to Tuktoyaktuk that may help in developing those offshore resources.
Justin Trudeau’s father and Energy Minister Marc Lalonde implemented a National Energy Program in the 1980s that gave incentive to companies like Dome Petroleum to drill in the Beaufort Sea. There were 500 wells drilled in the Beaufort without incident.
You’re a young fellow, so you may not have been around in the heyday of the 1980s when the Beaufort Sea activity was going on. But I think that was a reason the land claim was settled with the Inuvialuit was because of that offshore oil and gas activity. Your Inuvialuit businesses and individuals, did they benefit from that offshore activity? Did they get some spin-off benefits?
Second, could you tell the community a bit about your traditional activities on the ocean, particularly with regard to whaling and fishery? New species are coming North. Do you think there may be a developing fishery in your waters? Thank you.
Mr. Smith: Thanks for the question, senator. Most of the exploration was done in the 1970s under that National Energy Program. The tail end of it was into the early 1980s. I caught the tail end of it cleaning up the artificial islands that were established. The 9 trillion cubic feet of gas, just for correction, is on land. That was part of the Mackenzie Valley Gas Project that different parties tried to develop, including the Aboriginal Pipeline Group. There are various known gas and oil reserves offshore as well. So there’s a lot of natural resources in the region that have not been tapped into.
The gas field that’s providing my community right now is on its last legs. It’s still providing some. But again, there is no strategy in regards to developing these. One of the Indigenous regions wants to be proactive with the government and industry in developing these, but nobody’s paying attention. Geographically, we’re closer to Asia than B.C. is as well, that’s another lost fact.
I’m trying to remember your second question as well.
Senator Patterson: Your traditional activities.
Mr. Smith: Well, that’s why I welcomed you in my opening comments, to come and see the culture itself. It’s a part of Canada’s identity. We have a national historic site that’s neglected. When I say “neglected,” it hasn’t been adequately recognized, but it’s in the treaty that we have. That’s in response to what we have done to contribute to Canada’s identity over the time period.
Senator Patterson: What about whaling?
Mr. Smith: We conduct a lot of whaling. More die of natural causes. We harvest about one per cent of the population a year, but we’re spread from the Yukon shorelines from Ulukhaktok in the far east of our region. I’m talking roughly 1,000-kilometre span of our communities where people in the summer will bring their families and live out on the coasts until school starts in the fall. They will conduct their harvesting and traditional activities throughout that time period. At any given time, there are up to a thousand people moving to those camps to live on the land. It’s an integral part of our culture, our diet, our food security and our identity, who we are as a people. I can’t put it straighter than that, but it is a significant part of who we are.
Senator Patterson: Thank you.
Senator McInnis: I heard my friends opposite. I’m not going to argue, let alone debate. Let me give you a couple of examples.
We have two MPAs off the coast of Nova Scotia, and those MPAs were put in place by the government coming down and asking and discussing with the province of Nova Scotia. It was truly a collaborative effort. That’s not what’s taking place here. There’s a sense of urgency. The previous minister stated that. I think I even heard that with witnesses. It’s taking too long. It’s taking seven, eight, nine years to get this in place.
So what happens now? There’s a designation, and within five years, and if it is agreed upon, it becomes regulations. So the order goes to the executive council and they put it in place. There’s an urgency to it. There’s no question about that. They’re leaving out consultation and that’s part of the problem.
Whereas here, in the existing system, there’s a collaborative effort. I’ve experienced it, I’m seeing it on a daily basis. In fact, I can’t be here this afternoon, I have a meeting tonight with respect to this issue. I’m remaining as objective as I can. But they’re really, really concerned about this effort to expedite to get to an area of 2,100 kilometres of our coastline.
The challenge is when you have an MPA, when it’s there, governments change. No-take zones may, in fact, be enforced that they’re no-take zones, and this is the livelihood of all these coastal communities. That’s the challenge that we have.
In my previous experience in the provincial government, I’ve never seen a situation where you would impose without consultation, and that’s what’s happening here. That’s what I hear Mr. Smith saying is taking place in his community.
The Chair: Do you have a question?
Senator McInnis: No, there’s no question. It’s a comment. I learned that from Senator Gold. Bring the hammer down.
The Chair: Thank you very much, senators.
Thank you for this great discussion and feedback, Mr. Smith. As I mentioned earlier, if there is an amendment that you would like to propose to Bill C-55, we would ask that you forward it to our clerk as soon as you can so that we can have discussion and debate around that before we move forward.
Mr. Smith: Sorry for interrupting. For the record, the intent of what this bill is trying to achieve, I don’t think we disagree, but it’s how we get to the end of that path together so it’s beneficial to everybody involved. How do we work on the wording of this so that it reflects the proper processes as well as what we both want to achieve in this case? Thanks.
The Chair: Thank you, Mr. Smith, you had the last word.
For our second panel today, we have with us by video conference Bob Gloade, Chief, Atlantic Policy Congress of First Nations Chiefs Secretariat. Welcome. I’m not sure who else is with you, but if you want to introduce yourself and the people there, my understanding is you have some opening remarks. From there we will go to questions from the senators. The floor is yours, chief.
Bob Gloade, Chief, Atlantic Policy Congress of First Nations Chiefs Secretariat: Good morning. I have John G. Paul here with me. He is the Executive Director of the Atlantic Policy Congress. And to my left is Mitch Downton, Regional Climate Change Coordinator with the Atlantic Policy Congress.
Good morning. First of all, I would like to thank you for this opportunity to speak to the Senate. I want to say I’m not sure if Senator Dan Christmas or Senator Brian Francis are there with you, but if they are, I extend our greetings to them as well. It’s an honour to have two Mi’kmaq senators representing our people from the Atlantic in the Senate. Thank you for that.
I’m Chief Bob Gloade of the Millbrook First Nation. I’m one of the co-chairs for the Atlantic Policy Congress. As mentioned, I’m here with John G. Paul today, the Executive Director for the Atlantic Policy Congress. We’re pleased to have this opportunity to speak to the Senate standing committee on Bill C-55 as representatives of the APC First Nations Chiefs here in the Atlantic.
The Atlantic Policy Congress of First Nations Chiefs Secretariat was federally incorporated in 1995 as a policy and research advocacy secretariat for 30 Mi’kmaq, Maliseet, Passamaquoddy and Innu chiefs here in Atlantic Canada. We’re governed by the chiefs here, and the board of directors consists of the chiefs of each of the respective communities.
As co-chairs of the Atlantic Policy Congress, we wish to emphasize the importance of the early and ongoing engagement with Indigenous people during development and implementation of legislation, regulations and policies that may impact Aboriginal rights and title.
We understand the legislation will clarify the responsibilities of the Minister of Fisheries and Oceans to establish a national network of marine protected areas. We recommend the National Advisory Panel on Marine Protected Area Standards include an Indigenous-specific process to ensure that the constitutionally protected rights and interests are commensurate. There can be no single perspective that represents the views of Indigenous people across Canada. Therefore, Canada should take an approach that is representative of existing Indigenous processes and governance.
Bill C-55 will empower the minister to designate marine protected areas in order to prohibit certain activities in those areas. Any activities that impact the inherent Aboriginal and treaty rights of Indigenous people will have serious implications on Indigenous fishing. It is our expectation that Indigenous fishing will not be disrupted or displaced due to this legislation. Therefore, it is our expectation that this legislation and subsequent regulations and policies will not prohibit Indigenous and rights-based fishing.
The amendment to the Oceans Act will update and strengthen the powers of enforcement officers and must include Indigenous governance and jurisdiction. The designation of marine protected areas, MPAs, requires monitoring and enforcement measures to ensure compliance with the development of a management plan. Indigenous people must be the leaders in monitoring and enforcement of the MPAs in their traditional territories.
At this time, I will turn the table over to John G. Paul, who will make additional comments.
John G. Paul, Executive Director, Atlantic Policy Congress of First Nations Chiefs Secretariat: Thank you. I want to pass on the regret of our co-chair, Chief Shelley Sabattis from Oromocto, who was unable to participate today, so I’m filling the gap.
I want to thank the committee for allowing Chief Gloade and me to submit on the legislation. We really think the Oceans Act is an opportunity for us to assert our jurisdiction and sovereignty over Canadian waters in Atlantic Canada. Indigenous people must be involved directly as partners in the development of legislation, regulation and the subsequent policy decisions that govern those areas. The Oceans Act currently allows the Minister of Fisheries and Oceans to enter into an agreement with a person or body of exercising powers and performing functions assigned to the minister in the act. The broad power allows a minister to enter into agreements with Indigenous people to co-manage and to carry out certain functions under the Oceans Act. We believe this is of critical importance and therefore must have an opportunity to move forward in the spirit and intent of reconciliation to co-develop and co-manage these marine protected areas.
A key principle in the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, is for states to seek free, prior and informed consent of Indigenous people before implementing legislative and administrative measures that may affect them.
Therefore, in order to reflect UNDRIP principles in the provisions of the act, the act should be amended to ensure recognition, respect and autonomous operation of Indigenous laws over waters in our traditional territories, particularly where Indigenous laws provide greater environmental protections than those provided under the act. Such an amendment would both implement self-determination and provide greater environmental protection to the ocean. This would foster a nation-to-nation relationship between Indigenous people and all of Canada.
Canada has the opportunity to implement UNDRIP and provide the political conditions necessary for the Atlantic Policy Congress and our communities to contribute effective and lasting change on legislation, governance and institutional infrastructure for our communities in Atlantic Canada. Thank you.
The Chair: Thank you. We’ll start our discussion by going to our deputy chair for the first question to this panel.
Senator Gold: Thank you, chair. Good day, and thank you for being with us.
You’ve raised a lot of issues in your opening remarks, so maybe I could start by asking you to help us understand the following. To some degree, it sounds as if you have some suggestions for amendments to Bill C-55, and if so, I would encourage you to send text on that, if you have it, to the clerk of the committee so that we could consider it in our deliberations.
My question more generally, the issues that you raise, how much of them flow from the act itself, Bill C-55? How much is really about how the regulations might be drafted if and when an interim MPA is established? Where are your concerns more generally in terms of the process, whether the process leading up to the identification of an area of interest or the process leading up to a decision of whether or not to establish an interim MPA or otherwise? Could you help us understand a little bit where the points of entry are of your concerns so we can best reflect upon them?
Mr. Paul: I guess the biggest thing is early engagement in the process and allowing our views to be put forward at the earliest possible stage when the MPAs are being considered. We’re trying to make sure, as everyone else is, with both the legislation and then the subsequent regulations, that the policies that flow out actually entrench our values in the process. We want to own the process just as much as Canada does. We want to see what the outputs will be to actually protect what it is that we’re all trying to protect for future generations. Our thought process is about early inclusion, which has occurred. There have been many discussions.
On the wording of the amendment, we’ll speak collaboratively with our colleagues at the Assembly of First Nations to come up with something that might be helpful with some of these things. The most important process is really getting everyone to understand this is a totally inclusive process because it will affect something that relates specifically to our rights. We must have an opportunity to express our views all the way through the process.
In terms of the agreements that are talked about in the process, those agreements that ended up getting put in place before, during and after really affect how these MPAs will get established, evolve and operate into the future because we do want to make sure that these things are sustainable. However, we also understand that you have to look at how it’s connected to everything else going on in these areas. We understand that totally from our perspective. We really want to make sure that our Indigenous knowledge systems are built into these processes to ensure that whatever comes out the other end, that our Mi’kmaq people in the future will clearly understand how and why we were included in the process, how our values were incorporated into the process right from the legislation down to the regulations and actually in the policy itself. If we can do that, that would be a very important way to go forward.
Senator Gold: Thank you.
Senator Christmas: Thank you, gentlemen, for your remarks today.
Chief Gloade, you mentioned in your presentation about the importance of Indigenous fisheries in Atlantic Canada. In your remarks, you were very careful to point out that the MPAs should not interfere with our Indigenous fishery.
Could you explain to the committee how important Indigenous fisheries are to Atlantic Canada and perhaps explain and elaborate a bit more about why our committees are so concerned about MPAs interfering with our fishery?
Mr. Gloade: Thank you. It’s a great opportunity to speak to you as well.
Here in Atlantic Canada, fishing is a very important to all the First Nations communities for multiple reasons: from an economic standpoint, from traditional use and practical use and for common every day. Fishing is a big part of the lives of all our First Nations communities here in Atlantic Canada. It provides food, social and ceremonial access to our First Nations people and provides an economic opportunity for our commercial fishermen. It impacts the lives of every First Nations community member right from a child to a senior, all the way through.
Any legislation that will impact the waters here in our fishing territories would have a significant impact. We need to make sure that any legislation regarding the environmental, our marine area, our fishing area or our traditional use will have a significant impact on our First Nations community. Each of our communities give serious consideration to the responsibilities for being stewards of the land, protectors of the waters, protectors of the habitat and the environment, so it’s something that has to be taken into consideration.
When you look at any legislation coming through, even some of the prior legislation in regard to lifting the protections on different bodies of water across Canada, it had a significant impact here in Atlantic Canada and raised serious concerns from industries and anybody else coming in. It had an impact or effect on the fish habitat in the areas.
We’ve seen fish species be depleted in a variety of areas. Look at the areas along the Bay of Fundy where striped bass is fished. Industry comes in and they said a temporary dam will be there and not have any impact on the fish in this area, but that temporary dam has been there for 50 years. I’m not sure what temporary means, but what that did was deplete the fishing area of striped bass in certain rivers. Now we have basically one major river here in Nova Scotia that people access striped bass from. It has taken a long time for fish stock to come back.
Even with salmon, a number of rivers are closed. Our communities are not allowed to access fishing in certain areas. That has a significant impact because now families cannot go out and fish salmon and provide food for their family.
We have industry happening close to our community. I refer to Sheet Harbour and Beaver Dam where there is a gold mine going in and there will be environmental impacts that will affect the rivers, the fishing, hunting, the traditional areas of the Mi’kmaq people. One thing not taken into consideration is that the traditional use and the impacts it will have on families. There are hundreds of people who rely on the area for food and hunting. It’s a primary food source.
So there are things with industry and regulations. Permits are granted. It has a significant impact on the environment and traditional use because when First Nations people engage in traditional use studies for specific areas, there is a lot of information in there that is not taken into consideration.
One example is the Alton natural gas storage project. In that area, there were over 1500 traditional uses in that particular river in regard to First Nations people. One species was only taken into consideration. So 1500 traditional uses that had been identified, and through legislation and through government, they’ve only acknowledged one species. So as projects go forward, they will have a significant impact on those areas and on our respective communities.
When legislation comes in and our community starts to hear about how it will impact them, what potential changes will happen, it has a detrimental impact to our communities, both on the rights of First Nations people to access the land and water, and also the land in itself. So there is a significant impact. First Nations inclusion in any legislation that impacts our environment — waters, land, air — must be taken into consideration.
When it comes to monitoring, First Nations need to be included in that monitoring process and have the ability and authority level to stop something if they see something that it will have a detrimental impact.
In order for reconciliation to move forward, that’s how both governments and First Nations can work collectively together to ensure that we work hand in hand. That’s what reconciliation is about; make sure we’re involved in the process and things are done to a standard comfortable to First Nations people and the government.
Senator Christmas: Given how extensively the Mi’kmaq and the Maliseet are involved in the Atlantic fishery, Chief Gloade or Mr. Paul, can you describe your relationship with the Department of Fisheries and Oceans in regard to the establishment of MPAs? I know we have a couple of MPAs in the Atlantic. I’m wondering if the APC has been involved with the DFO in establishing monitoring or enforcement of those areas. For those future MPAs that are being considered, has DFO engaged with the APC on those new areas as well?
Mr. Paul: They have to some extent. They mostly engage with the different rights tables across the region because they are directly affecting rights. I think with the MPAs, they have been collaborated in disclosure of what they’re planning on doing.
The concern that keeps coming up in the discussion is the pace that this will occur and to make sure the issues we’re raising actually get built into the monitoring of these processes after these things are created. Unless you build our values and Indigenous knowledge into the establishment process and subsequently into the monitoring and longevity of the process, it’s going to be very hard for us to explain to communities how and if we were involved. If something does happen into the future, they will ask us why we didn’t mitigate even more in terms of when the process was being created to actually impact your potential rights or livelihood in the community.
As you know, the fishery is who we are as Mi’kmaq, Maliseet and Passamaquoddy people. Our Indigenous world view is that the ocean gives us, but we still have to give back to protect it, not just for the sake of the UN or anybody but to protect it for six or seven generations into the future. I think the severity that we’re looking at, in terms of the kinds of concerns and inclusion we’re talking about, is to ensure in all cases, in every one of those MPAs, that DFO fully engages as early as possible and through the entire process right to the end to ensure the Indigenous knowledge and voice is built into that. That Indigenous knowledge and voice protect our rights, basically. That’s what we want. We want to see our rights protected 100 or 200 years into the future, when the MPAs are still in effect, and hopefully there are still fish in there in 200 years’ time.
I know that’s part of the intent because we believe — and you know this — we have to do our part to protect the species in the ocean. We believe, like the government believes, that by creating these areas, we want to make sure our rights are not negatively impacted for one, but we also want to make sure it’s protected for the long term and ensure there are appropriate mechanisms built into those processes where Indigenous monitoring or surveillance is built in.
The whole idea of spatial planning and those new technologies being applied to the ocean is something that communities require significant capacity and understanding of how to use these new technologies and approaches to build into our proprietary knowledge, which is consistent with our Indigenous knowledge system, so that whatever is figured out in these areas is built in to protect those areas fully for everyone.
Senator Christmas: Thank you.
Senator Munson: I just wanted to clarify. Chief, you talked about the ability to stop something. What did you mean by that? The minister has the right to stop something. What right do you want to have to stop something?
Mr. Gloade: I will give you an example, something I have been involved in. For example, with respect to the Alton Natural Gas Storage project here, one of the things that we have indicated during the consultation and our engagement process is the ability — if, for example, our monitors are doing samples along the river, there are requirements that the proponent has to follow in regard to the monitoring process in terms of the salinity level of the waters. If they rise to a certain level, it will be detrimental to the fish that in that river. I’m only referring to one species, but there are other species in there.
For example, during the process, when they start dumping salt brine into that river, if there are fish in there, the monitor will have the ability to go to the proponent and say, “You have to shut this down immediately” and not have to go through a lot of red tape to get that done. Personally, I know which building the switch to shut down that plan is in. So I need to be able to walk into that building and shut it off so it doesn’t cause more harm to the river and species. The monitors have to be able to have that level of comfort knowing that if a situation arises and something occurs, they have the ability to pick up a phone and instruct somebody, “You must halt what you’re doing” so we can make sure that the marine and water area is protected from any future harm.
Even if there is a spill, somebody has to be able to pick up the phone and say, “You have to engage whoever you can to ensure that somebody is coming to address the area immediately.” The monitors must have a level of authority to give directions on anything they see that would be detrimental to the impact of the area in question.
Senator Munson: Would that be in this bill, or is that part of the regulations?
Mr. Gloade: It could be in the regulations, but in the bill itself, it would be comfortable in the consultation process to know that the monitors will have that level of authority. If it is not in the legislation, it could be something that will be — these are the instructions that I have, and it doesn’t say anything about having the authority.
That’s one frustrating thing as a community member during negotiations, that you must have that level of authority and comfort to make sure that the right thing is done. The legislation would be the most beneficial place to have it, as long as it’s not covered up with all the documentation and the hundreds of papers within the regulation itself and the stipulation. It has to be clearly outlined to that effect.
Senator Munson: It makes common sense. To the gentleman on your left, we’ve had discussions here the last two days about climate.
Do you have anything to offer to the debate this morning that would help us in our discussions on this bill?
Mitch Downton, Support Staff, Atlantic Policy Congress of First Nations Chiefs Secretariat: Not at this time, no.
Senator Munson: Thank you very much.
Senator McInnis: Thank you. Nice to see you gentlemen. Chief Gloade, nice to see you again by video.
I just want to say, slightly off point, your concern with respect to the rivers is appreciated, particularly the Atlantic salmon. As you know, a great deal of effort has been put in place with respect to the West River in Sheet Harbour with respect to the liming that’s taking place there automatically. It’s nice to see the PH back to 5.2 as opposed to 3.9, which was essentially acid. So your involvement has been wonderful.
What contact have you had with respect to the proposed Bay of Islands MPA?
Mr. Gloade: Unfortunately, I haven’t been involved in that as of yet.
Senator McInnis: Has Millbrook been part of it? Have you been consulted? Are you part of the committee that has been put in place?
Mr. Gloade: I would have to double-check with two members of my consultation team. They are ones who ones sit on a number of different committees with regard to the initial consultation. They report back to me and my council on a monthly basis on activities happening on committees they represent. I would have to double-check with them when I get back to the office.
Senator McInnis: It’s been said sometimes with politicians that you shouldn’t ask the question unless you know the answer. I think I know the answer.
Mr. Gloade: The answer, I would say, would probably be “no,” but I would have to see if they’ve been involved in that process. I do sit down in a consultation meeting with my team on the 21st. At 4:00 on the 21st, I could give you a better answer. If you send me a text or email, I can give you a better answer.
Senator McInnis: I want to talk to you about another issue, as well, as you know, so we’ll talk soon.
You had a concern with respect to the pace of the process. Do you want to elaborate a little bit on that?
Mr. Gloade: Yes, the process seems to take a considerable amount of time. The engagement and consultation go back and forth, and that’s the frustrating part. In order to get any legislation done, the duration is quite extensive. I had a consultation meeting recently in regards to another bill that’s going to be coming out in regards to climate change. There’s a very short window of opportunity to address it, so these types of opportunities are important.
I don’t only deal with one or two files. Here in Atlantic Canada with my consultation team, I think 330 is the last count of consultation files that I’m involved in, plus the day-to-day activities, plus all the commercial and economic development of every organization I’m involved in.
So I do have quite an extensive to do list, but with regards to the engagement and consultation part, as I said, we have a small team that’s actively involved in the day-to-day of that. I do get involved in those processes, but the time and duration to get things done is extensive sometimes. Just as an example, here at the APC level with regards to the First Nations Elections Act when that was processed, how many years did that take us, John?
Mr. Paul: Three.
Mr. Gloade: Three years. So that was over —
Mr. Paul: That was a First Nations-led process, and it took over three years.
Mr. Gloade: And that was something, as an example — and this is important for the engagement of First Nations peoples in any of these processes. That is one piece of legislation that has a significant impact from the APC and also from First Nations’ perspective on how legislation is going to impact the rights of First Nations people moving forward. That’s one example, on a go-forward basis. The involvement with this organization, with Atlantic Policy Congress, with regards to legislation and the importance of having the engagement, this would be the best opportunity for this organization to participate and be involved in that process.
We have the staff involved and engaged with First Nations communities, because for you, you’re not going to be able to reach out to 30 Atlantic Canada First Nations communities, let alone 633 First Nations communities across Canada, at a quick notice. Through the advocacy of the Atlantic Policy Congress, it’s important for the engagement for all levels of government to include this organization in regards to any legislation that impacts the First Nations people here in the Atlantic region. Our team is able to participate and be actively involved in any discussions between both the First Nations government and either the provincial or federal government as well.
Senator McInnis: Thank you. No one should doubt that you have several files. All you have to do is drive through Colchester County and see the activity at the power centre. The great success of that development is amazing. Thank you very much, but I’ll be in touch soon on another matter, Chief Gloade, if I may.
Mr. Gloade: You know how to reach me. Send me an email or a text.
Senator McInnis: I know you’re busy, but I never have any difficulty getting you on your cell.
Mr. Gloade: No, I carry that 24/7. Right now, it’s disconnected from my hip so I could engage in this conversation.
Senator McInnis: Great to see you.
Mr. Gloade: You too.
Senator Busson: First of all, I’d like to thank you for taking the time today to educate us all on your perspective and your concerns about the MPAs, specifically in your area.
Senator Christmas, I think, read my mind a little bit, because I wanted to focus on one of the comments you made in your statement around the fact that Indigenous people must be leaders in the monitoring and enforcement of MPAs in their traditional territories. I totally agreed with that. I wanted to ask — and you covered it a little bit as you addressed Senator Christmas’s question — but to what extent did you have the opportunity to be involved in the monitoring and enforcement of the MPAs?
I think I hear from you that you’re in agreement with the goals, but are you offered the opportunity to actively participate in reaching those goals?
Mr. Gloade: Not as of yet. The process is still beginning, so it’s something that’s relatively new. It’s something that we need to be more actively involved in. I’ll let John continue on that.
Mr. Paul: One of the things of critical importance is that, from the Indigenous side, we need to build our capacity to ensure we’re able to participate in this in an effective way — that produces an outcome that our communities can see as an outcome. But I think the critical piece is building our knowledge, expertise and capacity to work collaboratively with DFO and others to ensure that the processes, mechanics and the methodology of how to monitor these things do build in Indigenous ways.
I always worry about looking at things only through one set of eyes. Looking at it through the second set of eyes or through Indigenous eyes will help ensure that the outcome of this or the monitoring of the Marine Protected Areas does what’s right for the long term. We are trying to make sure we are part of it. The process hasn’t built our capacity enough to be participating fully in that. I think that has to be built, either identified in the legislation and/or the regulatory process and the agreements that are talked about as part of this to ensure Indigenous voices are a part of it from before, during and after.
That’s very critical to these areas. The reason they’re actually identified is because of their special nature. The special significance of these areas were identified for a very specific reason.
So we always believe that if something is special from an Indigenous perspective, you must do the proper respect, process and monitoring in such a way as to ensure its longevity and protection. Sometimes, process misses that, and unless Indigenous people are involved at the beginning or in the pre-design of the process, and Indigenous capacity is built, is the only way to ensure a real collaborative partnership in the monitoring of the MPAs well into the future.
I’d rather see a perspective where an Indigenous person and a scientist together agree on how to monitor each MPA. That would be the perfect scenario. In our area, in particular, the species that crossed these different MPAs do have great significance to our communities, whether it’s salmon or some other species that swims through one of these MPAs. If something happens within the MPA, it does have an impact back to us.
Non-native science views need to be more respectful of the Indigenous ways of looking at things, and we have to figure out how best to do that to ensure that the proprietary knowledge related and built into Indigenous knowledge is not eroded either.
Like I said, the perfect scenario is two, Indigenous and a scientist, actually agreeing on the process and the measurement of the monitoring to ensure those areas are protected for everybody.
Senator Busson: Thank you very much.
Senator Bovey: Thank you very much. This has been very enlightening and I really appreciate the viewpoints you’ve put forward and I admire the fact that I think everybody’s on the same page in terms of long-term sustainability, long-term accountability, not just for people now but for future generations. I think you’ve raised very valid points and I for one have taken them to heart. You’ve talked about early engagement in the process, the relationship between science and Indigenous knowledge and coming together with a process for how those perspectives are related. Sometimes I’m sure they’re going to be exactly the same and sometimes I’m sure they’re going to be different.
As we talk about these interim MPAs, we talked about rights and this bill is about the process and the rights are already enshrined. So my question to you is with clause 39(25)(2), access to property — I think this refers to, chief, what you were talking about pulling a switch. It does say an enforcement officer or other person authorized by an enforcement may enter or have access to any place and may do any reasonable thing. My question is: Does that verbiage satisfy and address your concerns or does it need to be changed? In some of the comments you’ve made, with everybody working towards the same goal, are there other aspects of the bill where the language needs to be sharpened or clarified? I guess I’m looking for your input as to what needs to be done to ensure your concerns of early engagement, values, Indigenous knowledge and long-term sustainability are responded to.
Mr. Gloade: Well, the early engagement piece is very important. Also, from the monitoring perspective, they have to be First Nations-driven and done by First Nations people. That level of comfort is something that we would be looking forward towards. John mentioned earlier about building capacities within our First Nations communities of those individuals that are doing the monitoring. We have monitors for a variety of different things, and those are things that we’re working towards. So whatever level of credentials that they need to be able to get so they can make the proper and informed decision on any area is a right decision. That level of comfort has to be in place. That’s something that we have to do as well, to ensure that our monitors are fully trained, fully equipped and that they know their authorization — what their level of comfort is. The proponents in government and enforcement officers also acknowledge their level of authority as well, so that way it’s taken into consideration and something that’s not going to say no. Because often when you have engagement, you ask somebody a question and they say, “Oh, that’s above my pay grade. I can’t answer that question.” I say, “I don’t have a pay grade, so I can answer any question you ask me.”
Mr. Paul: I guess the rules around that go back to the principle of how you need Indigenous ocean protectors. Whether they’re Indigenous people or not, they should be designated as that because you’re connecting them to the obligation of the area. I think that would be something different that’s never thought of that way as actually connecting an Indigenous protector to an area. I know there are separate areas and there are separate processes, but I was just thinking out loud and saying, well, maybe the thing is about enforcement, I think that’s a last resort, enforcement. I think you need a way to have an Indigenous protector in such areas. It would highlight the priority of Indigenous people in trying to protect these areas. If it’s a process and so on where Indigenous people are involved, that could work as well. But I think making it an Indigenous protector could change in terms of the nature of the relationship between people with the obligation for these areas. Just an idea.
Senator Bovey: I think it’s an interesting idea and I want to thank you very much. Again, I’d like to pick up on what Senator Gold said earlier. If you make the recommendations, please bring them forward. Thank you.
Mr. Paul: Okay.
Senator Gold: I want to address a question about the “freeze the footprint” approach. In your brief to the Standing Committee on Fisheries and Oceans, you mentioned that the “freeze the footprint” approach, which is part of the interim MPA process, would have the potential to have a negative impact on inherent Aboriginal and treaty rights.
First of all, what changes, if any, would you make to the “freeze the footprint” approach so that it would be compliant with the existing rights? I’ll have a follow-up question perhaps, just to make sure we’re on the same page as to our understanding of that, but let’s start with that.
Mr. Paul: Well, I think one of the things that we’re focusing on is building the Indigenous perspective into these processes. I think, whatever footprint gets created that the Indigenous values or the Indigenous perspective has to be built in. That’s why we were saying, if it is frozen at a point — say today or next week or next year or whatever the date is that you freeze it — that everybody, both scientists and Indigenous scientists, have a very clear understanding of the parameters of that and have full knowledge of all those things taken into consideration. It’s like freezing something in time. If you pick the wrong moment, like if the next week you’re going to get hit by a bus, you want to pick the time before you got hit by the bus. In terms of the oceans, the oceans have evolved over centuries. I think the timing of when you actually pick the footprint or pick that moment when you’re looking at that area, you should think about it both backwards and into the future. Think about future potential uses of that area or other things into the future that may impact related to our rights, because our rights have been there forever. I think that, in terms of looking at it that way, it’s about making sure that the Indigenous perspective is built in when that’s agreed to.
Senator Gold: Thank you for that. For the benefit of people who are listening and to make sure that I’ve got it right as well — which is maybe the biggest challenge — but if I understand it correctly, when an interim MPA is established, they “freeze the footprint,” which means that it freezes the activities that had been taking place in that area and don’t allow new activities to take place, pending the next stages in the process. We’ve had witnesses say that this is a concern in a number of cases. What if it’s a rotational fishery that doesn’t happen every year and this 12-month period may be too short?
We were told by officials that once an activity is authorized, if it’s a particular fishery that for one reason or other only takes place every two or three years, that can still carry on even if it didn’t take place in the previous 12 years. But concerns were also expressed about growing needs of a community that is growing and needs more access to fish in a particular area. So concern was expressed that if you freeze the footprint in time, what about natural expansion of communities and therefore the needs to harvest?
Mr. Morel and Mr. MacDonald from the department yesterday told us what’s being frozen is the kind of activity, not the quota or quantum. So if lobster or salmon is authorized, even if it’s frozen, that doesn’t freeze the amount you can take out of the fishery or the lake. I want to make sure I’ve gotten that right. It doesn’t address at all the questions of process that you very properly underline, but I want to make sure we’re on the same page as what freezing the footprint might mean for your communities.
Mr. Paul: I agree, but maybe part of it is after “X” number of years there is a review of that to make a determination that when we did it in 2018, the ocean in that area has changed so much that it may be a time when we have to add an additional activity or subtract an activity.
But the legislation must tie to the living nature of the ocean, because the ocean hasn’t been the same since time immemorial. There has to be some mechanism built in either the legislation or the regulation that there has to be a venting or whatever you call it to address that at intervals of three years or every couple years to make sure. I always tell people, “Are you 110 per cent sure about a decision that you’re making today that could be in cement for the next 300 years?” Because you don’t know what’s going to be here in 200, 300 years’ time. You have to build something in it through the regulations and the process that allows for that.
Senator Gold: If I could be very brief on another question. This has to do with Indigenous-protected areas. In the brief that you submitted, you supported the implementation of Indigenous-protected areas. My colleague asked that question of ministry officials yesterday, who confirmed that although the act does not contemplate them as such or does not mention them, that the establishment of Indigenous-protected areas, it’s possible that if the community so declared and the department could work with them to see whether it met the criteria that they could count or not count depending on the nature of that.
Is this an area that you or your communities are pursuing? How do you see that fitting into the overall protection and sustainability of the environments?
Mr. Paul: I think it’s an important part. The big issue we have is building our own capacity to actually do some of these things, because governments have built their capacity to do a lot of these things. If you allow it, that would be a good thing, but you have to allow our processes, to actually help in that process.
If you did create Indigenous-protected areas, you have to actually describe what would be the difference between an Indigenous-protected area and a marine protected area. Would it overlap or would it fall over or would it fit in somehow? It has to be described. Those types of things can be actually articulated in the regulations.
Senator Gold: Thank you very much.
Senator Munson: Just in closing, everything connects. You’re John G. Paul, you’re not John Paul.
In your statement you talk about a key principle to the United Nations Declaration of Rights of Indigenous People, UNDRIP. It’s interesting you brought that up, because every day in the Senate we get dozens and dozens of emails urging us to pass Bill C-262. It has passed three readings in the House, and it’s in second reading in the Senate. It provides a framework for justice and reconciliation.
I’m just curious that you mentioned this in the context of the Marine Mammal Protection Act and Bill C-55. Do you believe that has actually happened in the working of the Marine Mammal Protection Act, that there is a framework for justice and reconciliation? Has that taken place or shall we pass this other bill and get that other one done and really mean it in terms of conversation and discussion?
Mr. Paul: The UNDRIP legislation that is under consideration is of critical importance because it reflects an ideal for us of where things should go. Because it is from that platform, we look at it in terms of how it gets integrated into everything that the Government of Canada does, including legislation related to the marine protected areas and other legislation.
When the UNDRIP was declared years ago, we were very proud that the United Nations declared it. This is providing a real opportunity for Canada to be proud of us and our perceptions under UNDRIP which we’ve always believed. I think supporting that and building it into things is of very significant importance — like marine protected areas — because you are protecting the future. MPAs are legacy items and they’re going to be of critical importance, not in one years’ time, but in 100 years’ time. That is how things need to be looked at.
Senator Munson: Thank you very much. Everybody appreciates that.
The Chair: I want to thank our witnesses for the great discussion this morning.
We are continuing our study on Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act.
On our first panel this afternoon, we welcome Tim Kennedy, Executive Director, Canadian Aquaculture Industry Alliance.
On behalf of the members of the committee, Mr. Kennedy, thank you for being here today. I understand you have opening remarks, and after that we will have questions from senators. The floor is yours.
Tim Kennedy, Executive Director, Canadian Aquaculture Industry Alliance: Thank you so much to all of you for having me here. I feel honoured to be the only presenter for the time being. My name is Tim Kennedy, and I am President and CEO of the Canadian Aquaculture Industry Alliance.
The Senate report in 2016 on aquaculture said there is an ocean of opportunities for aquaculture in Canada. Senators, Canada has the world’s greatest natural potential for seafood farming. Your report was a critical step in recognizing the importance of our sector in Canada. Since then, the economic advisory council to the finance minister followed your lead in highlighting the important opportunities for our sector, as did the economic table on agri-food in September 2018.
Farmed seafood is today among the fastest-growing food production sectors in the world, accounting for over 50 per cent of the world’s total seafood production. Global demand for seafood is increasing 7 to 10 per cent per year, based on United Nations numbers that were recently released. Seafood farming is a key driver of future sustainable seafood production. The United Nations analysis also showed a flat, declining wild capture fishery production, so the demand curve will be made up by seafood farming.
Canadian seafood farmers produced $1.4 billion of fresh, nutritious seafood in 2017. Our farming and processing activities generated over $5.4 billion in economic activity, $2.2 billion in GDP and more than 26,000 direct full-time jobs for Canadians in largely rural and remote coastal communities, with significant Indigenous participation across the country.
We have one of the youngest agri-food workforces in Canada. In fact, we have the youngest in Canada. We have also become among the most sustainable and efficient producers of protein in the world.
The challenge for our sector is that for close to 15 years, our industry has stagnated, with little or no growth in Canada. In fact, the Canadian industry has lost more than 50 per cent of its previous market share to global competitors. Canadian seafood farming continues to lag behind other countries that have embraced a growth vision for the sector and have backed that up with sound and predictable legislative and regulatory frameworks and supporting economic development strategies.
Let me now speak about Bill C-55. The seafood farming industry supports advancing measures to protect Canada’s oceans. Our producers rely on an environmentally healthy ecosystem in which they can raise their animals.
We support planning processes such as marine protected areas and area-based management for site identification that can provide predictability, consistency and certainty for longer-term development of our sector in Canada.
We have the following recommendations to improve Bill C-55.
First is the use of science. The scientific case must be publicly made and there must be an opportunity for stakeholders to question and challenge the science. This is the scientific process.
Number 2, risk. The precautionary approach is not well defined, and there is no overarching sense of DFO’s approach to assessing risk. We understand measures to prevent environmental degradation will not be postponed because of a lack of full scientific certainty, but there must be a transparent understanding of risk assessment and a transparent process to avoid seemingly arbitrary decisions.
Number 3, socio-economic considerations. Good jobs in coastal and rural communities are in very short supply. True sustainability means considering the three legs of the sustainability stool; environmental, social and economic. The bill should require the minister to formally consider these as part of a precautionary decision-making process.
In terms of good jobs, I mentioned 26,000 jobs across Canada for our sector at the moment, but I would say those are, generally speaking, full-time jobs as opposed to seasonal and they are also high-paying jobs when you consider that in comparison to other industries.
Number 4 is collaboration. There are several excellent examples of stakeholders working collaboratively to change practices to ensure environmental protection in marine protected areas, an example of this is stakeholders coming together in the Bay of Fundy. The bill should allow for notification, and a period of time to encourage collaboration between users before an order is put in place.
Number 5 is technology. The minister should be directed to consider if alternative technologies can be implemented to address particular sustainable issues. Of course we all know technology changes very quickly and rapidly, so some mechanism to recognize this or at least do some research on this would be important.
Number 6, provincial engagement. In particular, as the Atlantic provinces have authority over leases and sites for seafood farms, it is critical that they be consulted and are full parts in this process. Of course, that would be the same with Indigenous peoples.
Number 7, compensation. Finally, while the oil and gas sector is granted the potential for compensation, we would ask that the same be given to the seafood farming sector in the hopefully rare situation where other avenues are exhausted and farm sites need to be closed or moved.
With that, I close my formal comments. Thank you for the opportunity to be with you today. I look forward to your questions.
The Chair: Thank you, Mr. Kennedy. We received great reviews from across the country on our aquaculture study, and hopefully some of the recommendations will be implemented. We, as a committee, strongly believe in the aquaculture sector and for the potential it has for Canada for economic activity. We welcome your comments on that.
Senator Gold: Welcome, Mr. Kennedy. Thank you for your presentation and your recommendations. Which of these recommendations, if any, would you see incorporated into the actual text of Bill C-55? And which ones, if any, are more a matter of either regulations or good practice once the process is under way?
Mr. Kennedy: Thank you for the question, senator. As I go through, the precautionary approach is defined in various pieces of legislation. I could get other examples for you, but it does make reference to socio-economic considerations. That would be an important thing to include in Bill C-55. The minister must look at socio-economic considerations as part of the precautionary approach.
Again, that fuller sense of sustainability is so critical, because often times we go to one or the other end of the balance when it comes to sustainability, that it’s too much on the environmental side, no consideration of socio-economic or it’s the other way. That balancing is critical and having that in the text would be very important. That would be one.
The use of science is another. The minister should publish the science and provide for a period of time that he is basing his order and decision on. There must be time for stakeholders to comment on that. I don’t believe that’s in the text, but you might correct me on that. That’s the second one.
The third one is collaboration. If there is a way — which we’re seeing with different situations across Canada — where stakeholders can really come together, when there is a really strong interest, and they can have a period of time to really demonstrate that they can work out solutions that might be helpful to the minister, that would be helpful as well.
Senator Gold: You echo comments that other witnesses have made. If I recall correctly, we did hear from the minister and his officials that once the process of contemplating an interim MPA is triggered, there is collaboration and consultation with stakeholders, and socio-economic factors do enter into it when stakeholders include communities that rely on fisheries or offshore.
My second question is what was the experience of your organization or members of your organization in these processes as stakeholders? Has it been positive, negative, or have you been shut out of it?
Mr. Kennedy: It has been mixed overall. I’ll give an example. In Nova Scotia, there was an explicit exclusion of salmon farming when we first started looking at marine protected areas and the definition of projects that might have significant impact. I think that’s not consistent with other jurisdictions, so we’re in dialogue with the department on that.
In New Brunswick, there have been some very good examples of collaborative practices, again in the Bay of Fundy where all the users have come together and have worked out innovative solutions. DFO recognizes that. That’s really a model in terms of approaching MPAs.
British Columbia, we’ve had less. There have been a lot of activities in British Columbia, as some of you will know, but less related directory to the MPA process. That needs to go forward.
I mentioned area-based planning. This is a new approach that Minister Wilkinson has announced for aquaculture in British Columbia. The big question, how do the two area-based management and marine protected areas processes meld together? That’s not clear. How are they different and complementary? That needs to be worked.
Senator Gold: You mentioned B.C. A concern has been expressed about some of the practices in aquaculture, in particular, open net pen aquaculture. It has been argued that should be prohibited in marine protected areas because of anticipated harm to the environment. You heard the arguments and had to respond to it.
How you would respond to those recommendations that we have heard? Are there other methods and technologies you can use other than open net pens to provide for sustainability and also to minimize the impact on wild species?
Mr. Kennedy: That’s a great question and timely because there is discussion around alternative technologies. Minister Wilkinson, with his technology background, is interested in looking at that issue. I think DFO is undertaking a study that they hope to finish by the end of June on alternative technologies for salmon farming, and it’s very focused on British Columbia. They are just moving forward on that process and we’re looking forward to that and participating fully in this.
To answer your question, I’ll remind everyone that salmon farming in Canada is only 40 years old. Forty years ago in British Columbia, in the late 1970s, early 1980s, it was a largely experimental business. There might have been indiscriminate feeding and indiscriminate use of medicinal ingredients. All of that has changed radically in those 40 years.
First of all, I would say that some of the things we continue to hear in terms of criticism are still rooted in the early experiences that needed some criticism. Where we are today, though, is we have changed in leaps and bounds in terms of technological development. When you look at nets 30 to 40 years ago to where they are today, there have been massive changes. That’s not to say we’re perfect; we’re not at all. But one of the fundamental commitments in the sector is constant improvement. We see that seafood farming, salmon farming in particular, is in huge demand around the world, and the commitment of the industry is to always change and invest in technology.
Big changes have been made. When we look at potential for future technologies, sometimes you hear land-based: Can we just move all of the nets in the water onto land? I would say, first of all, in terms of the current practices, the major producers are already expanding the life of fish on land. They are expanding hatchery life from about 15 to 20 per cent of the fish’s life all the way up to 50 or 60 per cent of the fish’s life now on land. The major producers are doing that already.
Next, is land-based viable? I would say there have been niche products and there continue to be niche products, smaller production that’s happening on land, both in salmon and other species. When you look at much larger-scale production, nothing has been proven out yet. That’s where we are. There are a number of projects, for instance, in Maine that you may have heard of and in Miami, some in Europe. Some of them are very large, and oftentimes you hear about these being the way of the future. They are highly risky.
I was at a land-based closed containment workshop in Miami just before Christmas, and the leading bank that supports the land-based projects and that project in Miami said two things. One is that the project in Miami is the most viable, from their perspective, in the world. It is called Atlantic Sapphire.
The second thing they said is that the probability of success of that project is 25 to 30 per cent. You can imagine there is a lot of interest but also caution around all of the claims being made about the potential for land-based on a larger scale. That’s not to say we’re not interested in looking at the technologies and the opportunities.
There are two other technologies that I think are really important, and the minister’s study will be looking at these. One is ocean-based closed containment. You often think about closed containment just being on land. There is an opportunity to actually have nets and units in the water that are closed contained. In fact, we have two producers, Cermaq and Marine Harvest, which is now called Mowi, that are moving forward with their own pilot projects in British Columbia in the next couple of years.
The other option you may have heard of is deep offshore aquaculture. It is net-based, but you’re moving into deeper water with deeper currents and rougher waters, so you’re dealing with some of the issues that salmon farms may now have in terms of sea lice, management and waste management.
Senator Wells: Thank you, Mr. Kennedy, for attending. Before I start with a question, I want to give a shout out to your predecessor, Ruth Salmon. I had the pleasure to work with her for a number of years on a number of things that CAIA wanted to do, and your provincial counterpart Mark Lane with NAIA also does great work.
Mr. Kennedy: I apologize for having such a boring last name because how can you match Ruth Salmon in this job?
Senator Wells: That’s true. I’ve spent a little bit of time in the aquaculture industry myself.
What are your worst-case scenario fears regarding Bill C-55? What are your members most concerned about?
Mr. Kennedy: That’s a great question. As I said in my comments, senator, the need for the sector is that we have longer-term certainty and clarity around planning so that we can actually continue to sustainably grow this sector.
Investors into Canada and into the Canadian sector I think are already struggling because of the challenges in terms of British Columbia and public questions around the sector that are historical. I would say any moves to quickly move farm sites or to change practices that are not economic or not done in a sort of gradual way, those would be main concerns for us.
Senator Wells: Thank you for that. The aquaculture industry has many detractors. You know that. We have seen many groups in other sectors, other industries, use process to stall, delay or kill legitimate commercial activities. Do you see this as a potential result from Bill C-55?
Mr. Kennedy: I think, senator, a number of the points that I brought up and I think other stakeholders have in terms of just better transparency, the decision-making process, the ability to engage science and the ability to look at alternatives in terms of alternative practices, we bring that to the table to all of you because I think that answers your question in a way, which is yes, any process can be manipulated. It goes both ways, both from those who might be strong critics or even the industry, that better transparency is a better thing. So let’s make sure that these decisions, as much as possible, are made on transparent information.
Senator Wells: Thank you.
Senator Bovey: Thank you, Mr. Kennedy, for being with us and thanks for your presentation.
You talked about ecology, science-based and socio-economic issues. I will say it was clearly stated by the minister when we met with him yesterday and the background work on Bill C-55 that those indeed are the three pillars of this legislation: ecodiversity, socio-economic issues and science. So I’m very grateful to hear you talk about them.
I’m going to take, if I’m correct, from what you have said that you agree with the purpose of the bill, the intent of the bill, and that your recommendations are really refining some of the, shall I say, implementation aspects?
Mr. Kennedy: I would agree with that.
Senator Bovey: You would agree with that. Okay. I think we’re all looking for long-term sustainability for food chains and business for our communities.
With that said, I want to come back to what we heard from a colleague of yours from British Columbia yesterday about rotational fishing and getting into the detail of the bill. I appreciate that’s a different aspect of the business in aquaculture, but we heard yesterday that rotational fishing, for instance, of geoduck and sea cucumbers, which are fished every 2 or 3 years, and the bill is based on a 12-month activity but that anything that has been approved can carry on.
Do you feel the 12 months is appropriate? Or should that 12 months be extended to 3 years? Or should this be something monitored in the implementation of the act?
Mr. Kennedy: Thank you for the question. I will not answer it, though, because I don’t have enough information. Just so everyone knows, my background before I started two years ago with CAIA was in the energy sector, so aquaculture is my focus.
One thing I will say is in our sector, the practice on all farms is for a fallowing period. Just like in agriculture, when you’re leaving a field to recuperate, we are required to do the same thing in our basic practices. We fallow farms for months at a time, and in fact, all the science behind that says that over those months, the biota rebound quickly under the nets. That is part of the requirement.
One thing we would want to talk to DFO about is if there are opportunities in certain areas to potentially extend those periods of fallow, that might be something beneficial. We’ll look at that.
Senator Bovey: So you’re working pretty closely with DFO?
Mr. Kennedy: Yes.
Senator Bovey: Just one last comment. Am I correct that in the operations of MPAs, there has never been a closure of aquaculture?
Mr. Kennedy: Not to date.
Senator Bovey: And not in the MPAs?
Mr. Kennedy: Yes.
Senator Bovey: I think that’s important to get on the record.
Senator Poirier: I want to highlight your recommendation number 7, because we’ve also heard that comment from other groups who have appeared before us in the last couple of days about the concern that the oil and gas sector can be granted a potential for compensation while the seafood industry or the other part would not be. I was looking to hear from you on that recommendation. What would be the implication if the seafood farming sector is not given the same compensation?
The reason I bring that up, I am from New Brunswick. There were zones that were closed all last year for the lobster fishermen, and possibly this year seeing what’s coming up. There was a great economic impact on the community because of the ripple effect, not only of the fishermen but the fishermen helpers and working in the fish plants and not having money. So it ripples down to the people in the restaurants and people are not spending. It was hard and it’s going to be hard, possibly, this year too.
What would be the implications if they’re not given compensation, if the seafood farming sector is not treated the same way?
Mr. Kennedy: Thank you for the question. We’ve focused a little bit of our discussion on salmon farming, so I want to bring in shellfish farming as well. It is seen as a largely benign activity, so is compatible generally with marine protected areas. But different user groups can have different impacts on each other. What we’re seeing in British Columbia in the last couple of years, because of human pollution having impacts on oyster farms, they’ve had to do closures for health reasons of certain shellfish production areas. You can imagine how damaging that is for our market reputation. The potential profit from shellfish farming on a per-unit basis is very low. A closure or something like that is very difficult for shellfish farmers in particular.
For salmon farmers, the investment cycle is about seven years. So if there was some sort of closure, this is not hundreds of thousands of dollars. This is millions and millions of dollars that go into a salmon farming site, and hundreds, maybe thousands of jobs in some cases. So if there was ever a closure, you can imagine how damaging that would be to the local community. That’s why, in particular, I’m glad to hear the minister emphasizing the three legs of the stool, but having that more explicitly in the bill would be very important.
Senator Poirier: You did mention the good points of the bill and some of the recommendations that would be brought in. My colleague has pointed out that to date there are no MPAs that have been put into places that would affect the aquaculture industry. Obviously, if you’re putting in these recommendations, you’re being proactive in thinking of the possibility of an MPA coming in.
Bill C-55, as it is now without the recommendations 1 to 7, what implication would that be to the future possibility of an MPA being put?
Mr. Kennedy: Back to my point about transparency, I think it’s much more nervousness around the decision-making process. If there was more transparency built in, the sector would feel more comfortable about it.
There’s such an emphasis on consultation with Indigenous peoples, which there has to be. The Indigenous communities across Canada are significant partners for us going forward. There are more and more communities in British Columbia, Atlantic Canada and Ontario for instance asking for sites and being more interested in sites and getting into seafood farming. Obviously they’re critical partners in the whole process and need to be part of early conversations on any moves to create an MPA.
Senator Poirier: Thank you.
Senator Christmas: Thank you, Mr. Kennedy, for being here. I was very curious about your comment that the Bay of Fundy MPA on the New Brunswick side is a model of collaboration. Could you elaborate about how successful the establishment of that MPA was? Are there lessons to be learned from that experience which can be applied to Bill C-55?
Mr. Kennedy: Thank you. It’s maybe something I could follow up on. I’m aware that this is an ongoing process of collaboration, so we’re sort of in the middle of it right now. One of the users of the area reached out to all the other users and said, “Look, we need to manage better, we need to work together.” So they sat at a table.
My colleague who leads the Atlantic Canada Fish Farmers Association, Sue Farquharson, was instrumental in this. Sue could speak to it much better than I could. I do know that the process they followed of coming around a table and developing an action plan was very successful and is successful. It has been recognized by DFO as a model for MPAs. I could follow up with more details if you’re interested or ask Sue to come and talk about it.
Senator Christmas: That’s interesting because a lot of testimony around this act has been around groups or individuals not being fully engaged or fully participating in the establishment of MPAs. It strikes me that this particular one seems to have struck gold in how a diverse group of partners have come together before the establishment of and MPA and have found a way to collaborate. It appears to me from what I know to be successful.
Mr. Kennedy: I think you’re right.
Senator Christmas: I would welcome any additional information you can provide, and I would be very interested to learn how we can take those lessons and apply them to this particular bill.
Mr. Kennedy: I will certainly follow up and send you some more information.
As this often happens, it’s probably largely personality driven. There are some talented people who are willing to collaborate and come together. I don’t think legislation can decide these things, but I do think DFO, from what they’ve learned, has wanted to build more collaboration like that. It would be interesting to see what they’re thinking about that. Thanks for the question.
Senator Munson: Thank you for being here. I noticed all your statistics on the stagnation of the aquaculture industry here. One thing we noticed when we did our study, there is a movement out there that believes that the less aquaculture the better, whether it has to do with closeness to our shores or whether it gets in the way of somebody’s view or just their feeling. You have to respect that feeling. However, to feed the world, it’s my view that aquaculture is there for now and for the future.
We have in this country that debate going on, but on our trips to Norway and Scotland, we seemed to get the impression that the people of those countries are embracing what aquaculture has done for their country and for their brand. When we walk into a local store here in Canada, we see the Norwegian headline and we see the Scottish products and we buy it and feel pretty comfortable with that.
Do you know in these countries whether they have the marine protected zones as is proposed in this bill? Are they able to work with it? If they do have it, how are they able to make that work and yet have aquaculture still have a good name?
Mr. Kennedy: That’s a great question. My understanding in Norway is because they have been so, I would say, active — can I say aggressive — with aquaculture development, they have largely maximized their coastal area for aquaculture development. We talked about closed containment and land-based technologies. Some of the buzz that you sometimes hear in Ottawa is, “Oh, isn’t Norway going all land-based?” Well, they’re not. They’re interested in new technologies, but the only reason they’re really looking at this is because they’ve maximized their coastal zones. I believe they are still moving forward on protecting certain areas, but again, Norway is a distinctive example.
Scotland and Iceland are two others that I know of. I know there are specific aquaculture areas that they’ve identified and basically other areas that are no-go zones, basically protected areas. That’s my understanding of those other countries.
I think the bigger issue, though, is that both of those countries that you raised, senator, have really embraced, as you’ve said, recognized the opportunity and the need for seafood farming. Canada has both, I’d say, structurally and publicly not recognized that yet. We are using, just so everyone knows, about one per cent of our potential coastal area for aquaculture. Our intensity of production is about 1/25th of what it is in Norway and about 1/50th of what it is Chile. We have so much potential in this country.
I think a huge challenge — and this is getting away from Bill C-55 for a moment, if you’ll indulge me — is we don’t have a federal department that actually is explicitly given the mandate to support the growth of our sector. DFO is obviously our regulator and it has some responsibility internally to manage sustainable growth, but unlike Agriculture Canada, which has a mandate to support the development and growth of the ag sector, we do not have that in Canada.
So everyone here knows, CAIA has asked for this change, that Agriculture Canada is given the mandate to adopt us to support our growth. I’ve gone off topic a bit, senator, but hopefully that’s okay.
Senator Munson: Thank you very much.
The Chair: Those are all of our questions. We thank Mr. Kennedy for his appearance here today.
As our committee continues study on Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act, I will ask our guests if they would introduce themselves and who they represent, and then we have some opening remarks. We will then have questions from senators.
Susanna Fuller, Senior Projects Manager, Oceans North: I’m Susanna Fuller, and I’m from Oceans North based in Halifax, Nova Scotia.
The Chair: Could our guests by video conference please introduce themselves?
Sigrid Kuehnemund, Vice President, Ocean Conservation, World Wildlife Fund Canada: I’m Sigrid Kuehnemund. I’m the Vice President of WWF Canada’s Oceans program, and I’m stationed in St. John’s, Newfoundland and Labrador.
Linda Nowlan, Staff Lawyer, West Coast Environmental Law: Hello. My name is Linda Nowlan, and I’m a staff lawyer at West Coast Environmental Law. I’m based in Vancouver, B.C.
The Chair: We have both ends of the country here, so technology is wonderful. We will start with the lady at the table first. Ms. Fuller will begin, and then we will have opening remarks from our guests by video conference.
Ms. Fuller: Thank you for the invitation to speak here today and to this bill in particular. I’ve paid attention over the last day and a half or so to the other panellists, so my remarks will be a little changed just to keep the conversation going and to take into account what I’ve heard.
First, I will say that this bill is an important waypoint along the way to better protecting Canada’s oceans. In discussing legislation and the reasons for it, I find it important to understand why we might have legislation and why these amendments in particular are important.
As many of you know, you just need to listen to the news every day to hear there are increasing threats to the global ocean, and our global ocean is connected. Canada is lucky to have the largest coastline in the world as well as three ocean basins. Those threats include climate change; it’s warming faster than scientists have anticipated. Certainly those of you in coastal provinces will understand the impacts of sea level rise. Fisheries resources are continuing to decline in many areas. In Atlantic Canada alone, 45 species that are commercially fished or impacted are considered endangered or threatened by COSEWIC, the Committee on the Status of Endangered Wildlife in Canada.
Plastic is accumulating at alarming rates. You’ve probably heard the statistic that by 2050, if we keep going the way we are, we will have more plastic in the ocean than fish. And spatial protection is only starting to be put in place in Canada, as well as many other countries. While the Oceans Act has been in place since 1998, it has not been applied to its full potential. Some would suggest it has hardly been applied at all, which is probably why we’re having some trouble in implementing quite quickly to get to a 10 per cent target.
I have been involved in numerous protected area processes in Canada as well as attempts at integrated oceans management on the eastern Scotian Shelf, as well as fisheries management and fisheries science. I can attest to the fact that improvements in how we protect our oceans are needed. These improvements include providing certainty to industry and ocean stakeholders as well as expediting the process of protecting our areas of ocean. The current 8 to 10 years to get a marine protected area in place is not fair to stakeholders whether they are coastal industries, NGOs or municipalities. It takes too long.
These interim protection measures that are contemplated in the amendments mean that additional human impacts are not expected through the MPA establishment process. I was hoping my friend Senator McInnis would be here this afternoon because I have been very involved in the marine protected area process in his riding, and some of the anxiety the community has is they don’t know what else will happen. There’s no certainty of what might be put in place, whether it’s open-net aquaculture or mining or oil and gas. They don’t know and they feel anxiety about that, among other things having to do with the MPA, of course, as I’m sure you’ve heard.
The proposed increase in enforcement measures will contribute to the likelihood that the established protections will in fact be effective.
My organization supports the amendments proposed in Bill C-55 and consider them a foundation for improved ocean protection. We know that meeting the 10 per cent target has stretched government, stakeholders and the ocean industry and has required a rapid learning curve for many. It has also precluded the building of some important relationships between ocean stakeholders and government relationships that are so important and vital, particularly in Atlantic Canada, in protecting our shared resource.
However, I’ve also seen the commitment to 10 per cent and the proposed legislative changes both in Bill C-55 and Bill C-68 socialize the idea of spatial protections much more broadly in any other time since the passing of the Oceans Act in 1998. It cannot go without saying that many in the fishing industry are the first to act to protect their resources from other ocean activities. Aquaculture, tidal power, pulp and paper emissions and oil and gas as examples, fishermen and the fishing industry are often on the front lines in the fights against those industries.
With the proposed changes in Bill C-55, areas that have been set aside by the fishing industry could then also be immediately protected from other industrial activities. I know you heard this from my friend Keith Sullivan. This may also give coastal communities with low-impact fisheries, where marine protected areas have been proposed, some reprieve but worrying about other activities as the MPA process unfolds.
Bill C-55 also allows for the rescinding of oil and gas leases but does not address the conflicts that exist in Atlantic Canada where the Canada Petroleum Resources Act does not apply.
I firmly believe that protecting our oceans is a critical aspect of ensuring that they continue to provide for coastal and Indigenous communities in all of our ocean basins. We feel that environmental protection and ocean industries need to go hand in hand. The blue economy, which Canada has recently put some focus on, is only achieved when the blue is functioning as well as possible. The ocean continues to provide us with an incredible amount of protein, resources and tourism, and we need to give back. Bill C-55 will help to do that.
I would also say that Bill C-55 responds to the critique of the Canadian Auditor General in 2012, where it was clear that there was very little movement on MPA networks and not an inclusion of ecosystem services or ecosystem integrity.
The amendments are not perfect; however, let’s not let the perfect get in the way of the good or the done. We know that work needs to be done on an urgent basis regarding recognizing and putting in place processes for Indigenous protected areas with our Indigenous communities on a nation-to-nation basis, and we know that there is work to be done on MPA standards in response to the national panel.
Finally, there are important consultative processes that have to take place on those two things, but that should not preclude the passage of this bill, which is, as I said at the beginning, a waypoint along the steps that Canadians and the Canadian government owe to our oceans. We are who we are as a country in large part because of our marine environment.
Ms. Nowlan: Thank you very much. Thank you for the opportunity to speak in support of this bill today. I’d like to make three points. The bill will take action on marine conservation faster without sacrificing science or public input. Here I’m repeating what DFO says. I believe it to be true.
The bill will make the law more effective and it will incorporate lessons learned from the past two decades in ocean science and ocean law development. It’s a win-win providing more certainty for industry. In short, these proposed amendments can help Canada regain its past leadership in ocean law.
First, it’s speedier. I know you heard a lot on this topic. When this government took office, Canada had only protected fewer than one per cent of its oceans. It did commit to the 10 per cent target back in 2010, but it committed to create networks of MPAs longer ago than that, back in 2002 at the World Summit on Sustainable Development.
One of the main reasons for the delay was the process. It took too long and there were no deadlines so it could take as long as 20 years in some cases to create an MPA, which is far too long. This delay has been criticized on numerous occasions by the 2012 report from the Commissioner of the Environment and Sustainable Development, a previous report from that Commissioner 2005, the 2012 Royal Society of Canada Expert Panel on Marine Biodiversity and others. The new procedure should be faster.
Second, it should be more effective. Bill C-55’s new provisions reflect two decades of progress. The bill embodies an evidence-based, scientifically and legally well-founded approach to MPAs with updated legislative language that does a number of things: It enshrines the concept of a network of MPAs into law, it defines ecological integrity for the first time in the act and allows MPAs to be created to maintain that integrity. This is similar, but not as strong as, a similar provision in the Canada National Parks Act.
It authorizes the delineation of zones by regulation removing one of the act’s ambiguities that it previously caused delay and embeds a precautionary approach. I will only talk about precautions. I know you heard about this from other witnesses and had questions and answers on this.
The precautionary principle is a key principle of international environmental law. It’s recognized in numerous Canadian environmental statutes. We have historical examples of a lack of precaution, and that’s what this bill is trying to overcome.
There were early warning signs of danger, but no action was taken in many cases; DDT, pesticides, asbestos, lead and gasoline, methylmercury in waste water causing Minamata disease in Japan. There are numerous examples. Precautions may have prevented the Atlantic cod collapse and precaution can stave off further declines in fish, whales and marine habitats, essential habitats like Eelgrass beds. So the application of this principle will ensure that Canada errs on the side of protecting species and habitats from harm.
Third, the bill is a win-win for the planet and for people. It provides more certainty. I don’t think you can see this as well as if I was in person and could pass it around, but this is a full-page ad from Shell celebrating its conservation victory by giving up its rights for the Hecate Strait MPA.
Industries are embracing corporate social responsibility. They want certainty. On our coast in B.C., there has been a moratorium in place since the 1970s. This will just create more certainty for them.
The two ways that the bill increases certainty is by the provision freezing the footprint, and the amendments to the oil and gas legislation.
We commend this approach and recommend similar amendments to the Atlantic Accord acts to create assistant legal regimes on this issue across Canada. We have proposed legislative amendments on this and other topics to your counterpart committee in the House of Commons, but we’re willing to support this bill and just have it go ahead. However, if you would like amendments on any of these topics, we already have proposed language.
During the 1970s under the government of this Prime Minister’s father, Canada was a leader in ocean law. It passed the groundbreaking Arctic Waters Pollution Prevention Act, took centre stage for the negotiation of the UN’s Law of the Sea Convention, introduced a stronger Fisheries Act and championed the rights of small-scale fisheries.
When the Oceans Act was passed in 1997, it was billed as the world’s first integrated management law, a groundbreaking development at the time. Unfortunately progress stalled soon after.
What still needs to happen? I agree with my friend Susanna Fuller. You discussed the work of the ministerial-appointed expert panel on MPA protection standards. There are good strong recommendations in there on what needs to happen to bring Canada into conformity with the world authority on this topic, the International Union for Conservation of Nature. This is an issue the government could have dealt with this time around. I’m happy to talk about that more.
Strengthening the provisions on Indigenous protected areas is another area where this law and Canada’s other marine conservation laws really need to be amended further. This does need to be done on a government-to-government basis with full consultation. There have been a number of recent reports, including from the Indigenous Circle of Experts, Mary Simon’s Shared Arctic Leadership report and others which make this recommendation.
Finally, in conclusion, we do recognize that the oceans are essential to life support, to life on earth, and while no single factor can be pinpointed as the most effective way to secure marine conservation, law plays a significant role. We commend the government on this bill. It will improve Canada’s Oceans Act.
Ms. Kuehnemund: Thank you, Mr. Chair and members of the committee for the invitation to testify in support of Bill C-55.
Prior to my time at the World Wildlife Fund Canada, I served at Fisheries and Oceans Canada which has left me with a unique perspective on both oceans management and on the efforts required of public servants to enforce our maritime laws and to study, consult and prepare legislation such as this. I am grateful for those efforts.
Before discussing aspects of Bill C-55, I must first make clear the context in which we are considering this legislation. Right now, we are facing a crisis of biodiversity loss.
The Convention on Biological Diversity has estimated that the world is losing up to 150 species every day due to increasing pressure from climate change and human activities.
In Atlantic Canada, species such as cod, mackerel and tuna, as well as sharks, skates and rays, have declined by 38 per cent from 1970 to 2014.
To reverse this trend, me must take immediate and ambitious steps to protect nature. When it comes to the ocean, it begins by meeting international commitments to protect 10 per cent of our marine and coastal areas by 2020. Passing Bill C-55 into law will make this objective possible.
I will use the remainder of my time to talk about three aspects of the bill, interim designations for MPAs, the prohibition of oil and gas in MPAs and the value of the precautionary principle.
Presently it takes on average seven years to create an MPA using the Oceans Act. Some estimates are even longer. Bill C-55 accelerates this process by allowing the minister to designate marine protected areas on an interim basis so that important ecosystems receive provisional protections while additional research and consultation continue to establish a final MPA.
The legislation strives to meet the challenge of quickly protecting a marine area while also being sensitive to human activities. It does this by so-called freezing the footprint, which means that certain lawful activities can continue to be carried out while an area has been granted interim protection. And from an environmental standpoint, creating minimum standards for even interim-protected areas would be an effective way to safeguard their ecological value.
It is well documented that MPAs have beneficial impacts beyond their borders to surrounding areas including strengthening fish stocks, which has a direct economic impact on ocean-reliant communities and for Canada overall. For example, in Eastport, Newfoundland and Labrador, there has been a small MPA which had started from the enactment of the Oceans Act in 2000, and it was created to maintain a viable lobster population within a much larger Eastport fishery lobster management area.
As for oil and gas, WWF is pleased to see that Bill C-55 includes amendments for both the Oceans Act and the Canada Petroleum Resources Act. It will give the minister authority to prohibit oil and gas activities from Oceans Act MPAs. WWF has been vocal that oil and gas activities are not compatible with marine protection and this view is shared by the Convention on Biological Diversity, to which Canada is a party, who have created international best practices which state that oil and gas activities are incompatible with MPAs.
In 2017, regulations for the proposed Laurentian Channel Marine Protected Area were tabled that would have left over 80 per cent of the MPA open to direct oil and gas activities, with the remainder open to directional drilling. These activities threaten the very species that the government intended to protect, including northern wolffish, porbeagle sharks and leatherback sea turtles in addition to sensitive benthic habitats with significant concentrations of sea pens. While Bill C-55 is an important first step, we must note that the Canada Petroleum Resources Act doesn’t apply in the Atlantic Accord areas. Further work is needed to create a Canada-wide approach restricting oil and gas from Oceans Act MPAs.
While not central to Bill C-55, I would like to draw attention to the lack of protections for marine refuges, which are established under the Fisheries Act, and these currently count for more than half of Canada’s marine conservation targets yet still remain open to oil and gas exploration and production. And it is my strong hope that the government moves swiftly to also make the prohibition of oil and gas in these areas possible.
Lastly, it is important to acknowledge the inclusion of the precautionary principle in Bill C-55. The idea is central to responsible resource management. It means that the minister cannot use a lack of scientific certainty regarding risks posed by an activity to postpone or not create an MPA. This is an important development as it too should accelerate the creation of protected areas at a time when they are so desperately needed.
The crisis we face affects all life on earth and to protect it we need everyone, and that means we need Canada to meet its international commitments and to do what we need to pass Bill C-55. Thank you very much.
The Chair: Thank you to all our witnesses. As usual we will go for our first questions to our deputy chair, Senator Gold.
Senator Gold: Welcome, everyone. Thank you for your presentations and thank you for the enthusiasm and passion with which you are supporting this bill and its objectives. I share those objectives as well. I have a question of clarification and then one that goes more to the heart of I think the positions that all three of you have advanced.
First, for clarification, we heard earlier today from Mr. Tim Kennedy, from the Canadian Aquaculture Industry Alliance, expressing a concern that the precautionary approach was not fully articulated or elaborated or fleshed out or perhaps well understood. Yet I heard you, Ms. Fuller, and others underline its importance and its significance. Could you comment briefly on his concern that it needs to be spelled out with a little more transparency and specificity. And then I will turn to my more controversial question.
Ms. Fuller: I’m well aware of the discussion of the precautionary approach and its application in the aquaculture industry in Canada. It has been brewing for a while.
We have a problem of the reversal of the burden of proof. Precautionary approach is in international law. It’s in the United Nations Fish Stock Agreement. It’s about to be in our Fisheries Act. It is in the unsaid sustainable development. I think what we don’t know is how we implement it in Canada. With that said, I understand where the aquaculture industry is coming from. I think it’s because they see that the application of the precautionary approach might mean there might be some places that limit where they can do open-net pen aquaculture.
Senator Gold: Do you think that more transparency, for want of a better word, or more information about how it is and is likely to be applied would be helpful to all the stakeholders in this?
Ms. Fuller: I think it depends on the industry. There is a 2002 Government of Canada document on the application of the precautionary approach, which maybe needs an update. I think the precautionary approach is increasingly used in fisheries, in fishery science and decision-making. So I think there is a lot to learn, and there are actually discussions tomorrow on the application of the precautionary approach with DFO that I’m part of.
Canada has taken a precautionary approach to the precautionary approach is usually what I say. And it is probably time to stop that and actually use it. It is well articulated.
Senator Gold: Thank you.
The Chair: Would either of our other witnesses like to respond to Senator Gold’s question?
Ms. Kuehnemund: Nothing further from me.
Senator Gold: Let me turn to my second and last question. Common to positions that you have advanced at least in the material and in the testimony elsewhere and in some cases today is a concern about ongoing oil and gas activity in MPAs or more generally in sensitive areas. We’ve heard a lot over the last few days about the importance of consultation, collaboration with stakeholders, Indigenous communities and others.
The oil and gas industry is important to many communities, territories, provinces, and indeed this morning we heard from Mr. Duane Smith, the CEO of the Inuvialuit Regional Corporation, who worried a lot about how MPAs might negatively affect the possibility of natural gas but also possible oil development in the northwest, Beaufort Sea and the like. He described the work his community had done with DFO and others — it might not have been with DFO but with others — to collaborate in ways that would balance protection of the belugas in a particular area with gas and other exploration by limiting oil and gas activity to the times when the beluga were no longer present.
Is there a role, taking into account the importance of collaboration, consultation, and all of the stakeholders to allow the possibility that when the scientific analysis is done, that there is some ongoing oil and gas activity? Or do you maintain the position that one should by law or regulation — simply by the adoption of standards — prohibit that activity in these sensitive areas?
Ms. Fuller: I will answer this quickly and then maybe punt it to Sigrid. In what world is it okay that we need 100 per cent of our ocean to drill for oil and gas? In what world is that okay? I’m anti oil and gas from a climate change perspective but I come from Atlantic Canada. I fully understand the economic impacts. I have talked to oil and gas companies who are trying to mainstream biodiversity and don’t want to drill in protected areas. We see Shell pulling leases out of protected areas. Why do we need 100 per cent of the ocean to drill in? The plan for 2030 for Newfoundland, 100 new wells. Surely we can get 100 wells and also leave some ocean for protection for the rest of the species.
I don’t see conflicts, actually. I see an unwillingness of the parties to sit at the table — we’re only talking about Atlantic Canada and not the Arctic right now — and talk about what is absolutely necessary for oil and gas development, what biodiversity needs and what the fishing industry needs. We could do that. That is possible. It needs the provinces to come to the table. It needs the regulators to come to the table. It needs the feds to come to the table, NRCan and DFO. They need to sit there and work it out. We can work it out. We do not need to have such conflict. Right now we’re protecting 10 per cent of the ocean. It’s not very much at all. I don’t think there’s a conflict when you sit down and work it out.
The defence that nothing can impact oil and gas, the fishing industry has been impacted. They’ve set aside areas. We need to have those real honest discussions, and the political rhetoric that’s been going on doesn’t allow that to happen. We need to sit down and do it, particularly in Atlantic Canada.
I won’t speak to the Arctic issue because I think it’s where marine mammals are involved and there’s significant seismic activity. The noise is a different thing. In terms of drilling in marine protected areas, do we have mining in our national parks? I don’t think all MPAs are like parks, but we don’t need 100 per cent of the ocean to drill in.
Sigrid or Linda, do you want to add to that?
Ms. Kuehnemund: Just from me, I would echo your message, Susanna. What we’re talking about at the moment with marine protected areas is the international commitment of 10 per cent of ocean and coastal areas by 2020. That leaves 90 per cent of the ocean open to oil and gas activities.
I see from a regulatory perspective or providing clarity to industry that it is helpful to create those bounds of saying what is and is not allowed within an MPA. There is strong evidence to show that oil and gas production and exploration activities are not compatible with marine conservation. That is WWF Canada’s standpoint, and it is also backed by views of the Convention on Biological Diversity and IUCN.
I would just draw recent attention to the oil spill off the coast of Newfoundland and Labrador and just in terms of inability to recover the oil and inability for government departments to work better together. Aside from MPAs, I think there is stronger oversight needed and required to ensure not only environmental protection but health and safety standards are improved within the oil and gas industry. I see the amendment of the Canada Petroleum Resources Act is a first step in doing that.
Senator Munson: Thank you very much for being here. It’s a fascinating way to end two days of very learned discussions, and we have learned a lot now.
You have noted that the MPA establishment process takes too long, but the committee has also noted they aren’t consulted sufficiently. So where is the balance here?
Ms. Nowlan: Maybe I can start with that one. Out here on the Pacific Coast, DFO does a great job of consultation. Communities are consulted. The fisheries communities are consulted, local communities are consulted, there’s government-to-government negotiations with First Nations and umbrella organizations and conservation groups are involved. The consultations are thorough and lengthy, and I think DFO has frankly come under a little too much criticism before you these past couple of days. They do a bang-up job of consultation. That’s why it takes so long. That’s the issue here. I think they can be a little more effective and efficient in their consultation.
I understand that in other parts of Canada things may have been moving a little quickly for people, but out here, we’re happy to see Hecate Strait glass sponge reefs, unique and globally significant, 9,000-year-old glass sponge reefs protected after about 20 years since they were first discovered. You heard the fishing sector voluntarily imposed closures. They were followed by some regulations, but only in 2017 did this become an Oceans Act MPA.
I just want to stand up for DFO. They do very thorough consultation from my perspective, and I think you’ve heard far too much criticism in that regard.
Ms. Fuller: I would echo that. I’ve been involved in a few MPA discussions. When they take too long, that means staff changes and people forget. So when they sit on a minister’s desk and they take too long — relationships are key to creating an MPA, so when groups change, the length can sometimes create animosity at the end because people who are involved in the beginning are not involved at the end.
I would also say that with a coastal MPA I’ve been somewhat involved in recently, DFO has done 40 or 50 meetings with stakeholders in advance of the post-AOI being announced. They funded the fishing association to be engaged. I would agree, they’ve done a pretty good job of consultation. I think sometimes people like to say they haven’t been consulted because they still want to say no. There’s consultation, and then there’s like “we just want to say no.” Those are two things.
I would echo that they haven’t had a ton of experience in MPAs, less than 10 per cent, but I did spend 10 years in the Eastern Scotian Shelf Integrated Management Initiative, 10 years of consultation on integrated management. It also takes two to tango, and you have to come to the table.
Senator Munson: Let me come at it from another perspective, then. Practically speaking, how can DFO decrease the time it takes while meaningfully consulting with stakeholders? Once again, I think we’re looking for a balance in all of this. I guess it’s easy not to be nice. People can always go after an anonymous bureaucrat and say this is all taking too long. That’s an easy target. I’m trying to find a balance here.
Ms. Fuller: Pass Bill C-55 and it would go faster.
Ms. Nowlan: Set a deadline of five years.
Ms. Kuehnemund: If I can respond.
Senator Munson: Thank you. Go ahead.
Ms. Kuehnemund: With Bill C-55 being passed, it provides the tools and mechanisms for DFO to adequately consult while also offering interim protection for a site. So freezing the footprint will allow existing activities to continue to occur but no further activities can happen. The consultation can then take place over time with the ocean users who are invested in that space, and to me, the changes through Bill C-55 allow that process for adequate consultation.
Senator Munson: Thank you.
The Chair: Anything to add, Ms. Nowlan?
Ms. Nowlan: I agree with my colleagues. I think putting deadlines in the law can be really effective. We have an example in the Canada National Parks Act, where there was a provision whereby untouched wilderness areas in national parks could be created. Parks Canada wasn’t moving on it. They put a one-year limit in the law and, guess what, it helped. Deadlines can work.
Senator Bovey: Thank you all for your insights. You’ve obviously worked with this for a very long time, and it certainly helps me. I like the phrase that you feel, Ms. Fuller, that Bill C-55 is, to use your words, an important waypoint.
Another word that we heard yesterday a lot was toolkit and that Bill C-55 would be one of those tools in the toolkit to allow us, as a society, to reach the three pillars of this law, being biodiversity — trying to protect the loss of more — the socio-economic aspects and the scientific aspects.
I would just like to hear a little bit more about that balance that my colleague talked about, the balance of the interim protection that Bill C-55 will allow and the time for consultation.
As you’ve heard in looking over the testimony in the last couple of days, some people are feeling the consultation should happen before the interim designation takes place, and others are saying you need the interim designation so it provides a starting point for effective consultation. I wonder if you could talk about the consultation pre-, during and post. Ms. Nowlan, you talked about the effective work that DFO has done on the West Coast and maybe you could begin by elucidating the pre- and post consultations.
Ms. Nowlan: It’s a good question. There’s a lot of knowledge already about which areas of our ocean are significant. DFO actually pioneered the concept EBSA, Ecologically or Biologically Significant Area. We’ve mapped all our oceans. It’s a global initiative, but there are these EBSAs that do not carry any regulatory power with them, but they are already mapped along Canada’s coasts and ocean basins. So there’s already a lot of knowledge about which parts of the ocean are significant.
Those EBSAs were developed by the Canadian Science Advisory Secretariat which advises DFO. Those processes are quite inclusive. They include professors and stakeholders and expert scientists to come up with these areas. So, in fact, there already is actually consultations starting long before an AOI, the first step, is started.
So consultation really goes along every step of the way already. Maybe that could be more explicitly laid out by the government, stakeholders or groups like us. We could try and do more public education about that.
Ms. Fuller: Bill C-55 promotes network planning. In Atlantic Canada, at least three regions are working on that. Newfoundland is working on network planning. Gulf region has a network plan draft, and the Maritime region has a network plan that is draft. They’ve wanted to release those network plans, but for various political reasons they haven’t been released. I’m being too honest here probably.
A lot of people were involved in the consultations on those network plans way in advance of them ever being released. The networks are based on existing scientific information with a strong overlay of socio-economics. If we can get the network plans out there and start talking about what it means in different areas, the network plans aren’t going to be implemented overnight.
Everybody is engaged on this issue. Nobody was engaged on MPAs in 2015, and now everybody is engaged. Sectors are talking to each other more or less. When a government does commit to something, it forces engagement, and that’s important.
Consultation will always depend on your stakeholders and individuals. The quality of that consultation will depend on whether or not you come to the table. The way that DFO in Atlantic Canada has done this is gone through fisheries round tables, fisheries advisory committee meetings, science meetings, through provincial governments and Indigenous consultation — which always needs more work, as we know — and gone through NGO consultation. It’s been fairly impressive given the timelines. It’s always something we can learn to do better, but I think that’s part of the human process.
Senator Bovey: Ms. Nowlan, you mentioned that you thought the bill was fine, but there could always be room for amendments. If an amendment or amendments were to be proposed, which one or two would you float to the surface?
Ms. Nowlan: I’d like the Oceans Act to contain a similar prohibition to that which already exists in a companion law, the Canada National Marine Conservation Areas Act. It now prohibits the exploration for, exploitation of offshore oil and gas and mining, and it’s very clear. I’d like that to be in the Oceans Act. That would be my top pick.
I’d like there to be some legislative recognition of the concept of an Indigenous protected area, but I don’t think that can happen right now without the deeper government-to-government consultations. Those would be my top two.
Senator Bovey: Thank you.
Senator Christmas: I’d like to follow up on Senator Munson’s questions, and perhaps we can explore a specific example about new MPAs, and that’s the Eastern Shore Islands in Nova Scotia.
Ms. Fuller, you’re a fellow Nova Scotian, as I am. This topic has come up over the past several days. Can you share your views about the proposed Eastern Shore Islands MPA? In our comments, can you reflect on the balance we’re searching for in terms of timeliness and adequate consultation?
Ms. Fuller: Absolutely. Eastern Shore Islands MPA keeps me up at night. I did mention briefly the number of meetings that DFO had. One of the things that happened was after the AOI was announced, there were no meetings, in part because the consultation was stalled because of the province and trying to work out oil and gas issues. When things don’t stop, I think it’s important to keep going, don’t have gaps. The big issue there is the trust in government. That’s the crux of the matter. It’s really important for the governments to continue being out there in the community building that trust which may take decades, I don’t know.
I don’t know where the balance is regarding the Eastern Shore Islands. I’ve been extremely involved in supporting the fishermen. I supported the lobster fishery, which is only 63 days. It should continue. There’s essentially ten months with not much else going on. I supported the concept of there be no no-take area, for biodiversity there should be no-takes, but there are issues with FSC fisheries, and we don’t want to increase racial tensions on the Eastern Shore because FSC fisheries can continue.
Senator Christmas: Could you tell the committee what FSC is?
Ms. Fuller: Food, social and ceremonial fisheries for First Nations. The timeline will probably go beyond 2020. The issue on the ground there is misinformation being spread, and it is crucial that stops. I don’t know how you stop it. But there’s misinformation about fears about the MPA which has kept people in a small community from even being able to express their potential support or wanting to be engaged because it is a small community that’s good at fighting. There’s a whole history of fighting for them to protect their own area and not have someone else do it.
At the same time, there’s a history of fighting off open net pen aquaculture which potentially MPA could protect from. I don’t know how to work through the eastern shore stuff. I literally do lay awake at night. There needs to be a commitment to honest engagement and accountability on all sides, fishing associations being funded to engage, conservation communities backed up the fishing community. I’ve never seen all organizations come so far. We agree, livelihood is important, economics is important. I don’t know what the solution is there, except for we need the true information to get out there and real conversation to be able to be had. Community empowerment is really important so that they see themselves as co-managers and co-monitors of this MPA. It’s vital. We’ve been able to do that in some marine protected areas in the Arctic with Inuit communities, but it’s really a lack of trust in government is the basis of all of this. I don’t know how you get over that, but it’s going to take a while.
I do think there needs to be more honesty when the industries come to the table and to understand that what they’ve asked for has been actually met. So the industry asked for the lobster fishery industry not to be impacted, not impacted. That would be a win. I would be running around with my victory flag. No no-take area, another win. What happens is nobody declares victory. I don’t know. Ask me in three years.
Senator Christmas: Would the solution in the Eastern Shore Islands area then be a longer runway, more time?
Ms. Fuller: I don’t know. I think you need to keep people engaged, but trying to get to consensus is the difficulty. For coastal marine protected areas, if the provincial governments are not on board and are in the process of supporting the MPA opposition, it is very hard to move forward in coastal MPAs.
In offshore it’s okay, it’s just one jurisdiction, even into the high-tide markets it’s one jurisdiction.
In Atlantic Canada, the provincial governments — despite getting money for the supercluster, Atlantic Fisheries Fund money, Ocean Frontier money, and $30 million in fisheries marketing money — are actively undermining the MPA process. So that’s another one I don’t know how to fix except for, look, you’re getting a lot of money for oceans here, guys. Certainly we can come a little bit of the ways along. They’re probably listening to me right now.
Senator Christmas: I better stop asking questions. Thank you.
The Chair: Thank you, Senator Christmas. I want to thank our witnesses for adding to our discussion today in a great way.
With that, folks, our next meeting will be scheduled for February 19, if all goes well. We’ll see you then.
(The committee adjourned.)