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Fisheries Act

Bill to Amend--Third Reading

June 6, 2019

Hon. Thomas J. McInnis

Thank you, Your Honour. It’s a very important subject, and it’s no problem at all. This is going to be a riveting speech —


That would be new.

Senator McInnis

You never listened to my speeches in Nova Scotia, Senator Mercer.

I am speaking on Bill C-68. I was saying that, in principle, I support the bill, but have some concerns.

Bill C-68 reverses amendments made to the Fisheries Act under Bill C-38 back in 2012, mainly those concerning the protection of fish. It creates new ministerial powers, new administrative requirements for project approval, a new regime for habitat banking and makes the minister the main authority to maintain owner operator and fleet separation policies in Quebec and Atlantic Canada, something that is very important.

Any project can be classified a “designated project” at the minister’s discretion. Any project given this designation must apply for an additional permit, to be granted by the minister. The minister is authorized to enter into agreement with other jurisdictions, defined as provincial governments, Indigenous governing bodies and all bodies established under a land claims agreement.

The 2012 act increased the protection of fish by focusing federal efforts on the sustainability of fisheries, not fish habitats, and on the management of key threats; i.e., invasive species. At the same time, the previous government created the Recreational Fisheries Conservation Partnerships Program. This program provided matching funding to local groups undertaking conservation work, which resulted in 800 successful fisheries enhancement projects.

Unfortunately, the current government has allowed this program to, as they say, sunset.

The act will require the minister to take into account Indigenous knowledge and expertise when it is provided, and all decisions must take into account the possible impacts on Indigenous rights. Indigenous knowledge may be protected from being revealed publicly or even to project proponents without explicit permission from the Indigenous community. Bill C-68 defines laws to include the bylaws made by an Indigenous governing body, which gives greater power to Indigenous groups and may increase regulatory uncertainty for Canadian industry.

We must also acknowledge that this bill will severely impact farmers. The key issue for farmers is that drainage ditches and sections of farms that occasionally flood could be considered fish habitat. In other words, every body of water that could support fish will be deemed to be fish habitat and subject to all corresponding requirements, regulations and restrictions. It will not matter whether the body of water is naturally occurring or man-made.

The system which was in place pre-2012 is being reimplemented and imposed on farmers without all that much consultation. According to the Grain Growers of Canada, a grain farmer would be prohibited from moving a drainage ditch or filling in a reservoir that is no longer needed, even if there has never been a single, solitary fish in it. They acknowledge that in theory, permits could be issued, but that is likely to be a “burdensome and expensive permitting process.”

Senators, a final point of concern I want to raise is what the committee heard on consultation. Those who are directly affected by this bill need to be consulted. Many of the witnesses who presented at committee noted that there needed to be more time to be sure of the impact of this bill and voiced concerns to their future operation. I know we as parliamentarians can understand and appreciate the necessity for proper consultation.

Joseph Maud, Director of Treaty 2 territory, said at committee that:

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

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

Finally, with respect to the issue of consultation, during a previous career with experience in introducing legislation, I did so normally prompted by interest groups, individuals or as the public service implementing government policy. It was always wise before the introduction of any legislation to consult, to the extent possible, with all of those who would be affected by legislation. I sometimes get the sense that we have moved away from this process. In this instance, farmers, ranchers, hydro companies, the Canadian Electricity Association and the Mining Association of Canada all voiced concerns as to how this bill will affect their operations. Many, if not all of those who appeared before us, had no input or consultation.

Senators, that is not to say that those who appeared before the Fisheries Committee were opposed to the principle of the bill. However, when you relocate a drainage ditch or put a pond in a field without egress or ingress of water and certainly not a fish habitat — nor a sign of a fish — all of a sudden, you require a permit and whatever that brings. You can understand that bit of frustration.

Could all of this have been corrected in advance by consulting with these large associations and memberships? I think so.

Senators, I hope these thoughts are helpful. With respect, I do, in principle, support this bill.

Hon. Dennis Glen Patterson

Honourable senators, I rise today to speak on Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence.

I want to thank Senator Christmas for his meaningful contributions as sponsor of Bill C-68. I believe his three amendments, which passed in the Fisheries Committee, will strengthen the legislation. They provide additional clarity regarding section 35, Aboriginal and treaty rights. Specifically, Nunavut Tunngavik Incorporated, NTI, had concerns with where the wording proposed in the bill is to ensure that Indigenous rights are not abrogated or derogated from. In particular, clause 2.3 of the original bill was seen not to have been worded appropriately. The issue with that clause is that it does not say that the statute cannot abrogate or derogate from the rights of Indigenous peoples but only from the protection provided for those rights through their recognition and affirmation under section 35 of the Constitution Act, something that it would arguably not be able to do.

Senator Christmas’s amendment strengthens the non-derogation clause in the bill and improves languages in the act around respecting the rights guaranteed, recognized and affirmed in section 35 of the Constitution. This is important because Nunavut fisheries currently generate over $127 million annually. NTI has been working toward new Nunavut fisheries regulations since 1999 in an effort to make regulations consistent with the Nunavut Agreement. Over a 20-year period, they’ve had 17 drafts of these regulations and have sat on no less than 14 different working groups. I would like to see continued collaboration in working together on fisheries regulations.

Additionally, I would like to thank our colleagues on the Standing Committee on Fisheries and Oceans for their work in studying Bill C-68. I was glad to see that subsection 2.2, dealing with the definition of water flow in the bill, was removed. At second reading, some concerns with Bill C-68 were also raised; namely, that it could restore the uncertainty to potential proponents of major development, while making no substantive change to the protections afforded in the bill.

I noted that changes made in 2012 to the Fisheries Act not only supported the conservation of fish but ensured man-made structures being built on or around bodies of water that do not support fish were not subject to the massively bureaucratic and cumbersome process of regulatory approval.

A concrete example, colleagues, is the earthen ramp that is built every year to allow trucks to have easier access to Tibbitt Lake at the beginning of the 200-plus mile ice road in the Northwest Territories that supplies three diamond mines. That minor aid to a smooth transition from the shore to the ice for trucks should not be subject to environmental review, especially as it happens on a regular basis.

According to the Canadian Cattlemen’s Association, artificial man-made structures are typically not of the scale that would impact fish habitat relevant to a fishery or create an impact on fish populations but could be deemed habitat. The Canadian Cattlemen’s Association, the BC Cattlemen’s Association and the Canadian Federation of Agriculture felt strongly that these vital agricultural structures should be exempt from prohibitions.

Moreover, the CCA has urged the government to fulfil its commitments to clearly defined provisions for agricultural exemptions under the regulations and that these exemptions apply to small and routine farm projects. This is to say that the legislative authority to accomplish this task already exists and that what the Canadian Cattlemen’s Association is asking for is that the government engages with interested stakeholders in the regulation-making process and does so in a specific way. It is hoped that consultations on these regulations would clearly define agricultural exemptions.

When my colleague Senator McInnis raised this issue at the Standing Committee on Fisheries and Oceans, he was told by the Department of Fisheries and Oceans:

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

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

I think it’s important to put that on the record. I think we can all agree that fisheries protection policy should focus on the habitat that supports Canada’s fisheries and not on farmers’ fields and floodplains. My concern with leaving the exemption of man-made agricultural structures up to regulations is that it will continue not to progress and that there will be inadequate consultation.

As noted by the Saskatchewan Mining Association’s brief to the Senate Fisheries Committee:

The Department of Fisheries and Oceans has identified to stakeholders that government is not planning to allow a consultation period. That is, no Canada Gazette Part 1 review period for proposed changes to the applications for authorization under paragraph 35(2)(b) of the Fisheries Act regulations.

For a government that campaigned on being transparent — and it was a welcome pledge — I’m disappointed to see this lack of meaningful consultation on such important regulations.

I would like to note that I was also pleased by my colleague Senator Poirier’s amendment to section 34.3(2), which allows for a minister to take a variety of actions, should the minister feel it is necessary to ensure the free passage of fish or the protection of fish or fish habitat. Particularly, hydro stakeholders raised concerns with the proposed section that gives the minister broad powers to act when an obstruction in a waterway affects fish passage or the ability to protect fish or fish habitat. Under this provision, the minister can order the removal of an obstruction — that is, a dam — or order a specific flow regime. The minister would have the power to require the owner of an obstruction to maintain the characteristics of water upstream of an obstruction.

Several stakeholders said that it is largely unrealistic in many cases, as the owner of an obstruction will not have the ability to regulate water characteristics upstream of the obstruction. This upstream language was removed from the bill due to Senator Poirier’s amendment.

While overall such amendments have strengthened the bill, I remain concerned that this bill will create uncertainty. We heard that mining groups are concerned by the designated projects section of the bill, which will require an even more complex and cumbersome permitting process. The Saskatchewan Mining Association recommended a full repeal of the designated projects section.

At a time when other regulatory and legislative changes are already threatening Canada’s competitiveness, I worry about what Bill C-68 — as well as other bills we have before us — will do to further persuade proponents from investing and doing business in Canada. Thank you.

Hon. A. Raynell Andreychuk

Honourable senators, if there are no other speakers, as the critic, I will rise to speak.

I rise today to speak on Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence.

When I was approached by my leadership to take on this bill, I took an interest in the legislation’s implications for the farming and resource sectors in my home province of Saskatchewan. I was very aware of the fact that it was the Fisheries Act and the wealth of knowledge and understanding about the fisheries that was somewhere other than in my capacity. Nonetheless, I thought I would take it on and at least put the Saskatchewan perspective on the record.

The reach of Bill C-68 extends far beyond my own province. The bill touches many regions, industries and sectors across Canada, from the fisheries to the hydropower sector, from coastal to Indigenous communities. In my view, the review of this legislation has greatly benefited from the vast knowledge and expertise of the senators in this chamber.

I would like again, as other senators have, to take the opportunity to acknowledge the work of the Standing Committee on Fisheries and Oceans. Senators on the committee worked diligently to give voice to the unique and diverse regional perspectives of their constituents with respect to Bill C-68. I, for one, learned a lot about this country and how, in fact, one region influences another and how the national interest should play for the benefit of all of us.

I want to add my voice to thank the expertise of the senators, how they operated together, the compromises they made, and the diligence with which they represented their constituents.

The committee’s work stands as a testament to the Senate at its best. Amendments were adopted to strengthen the bill. I welcome the amendment adopted at committee to repeal subsection 2(2) which designated water flow as a fish habitat.

Honourable colleagues will recall that this was an amendment carried by the committee tasked with the review in the other place. The committee was advised that under this new provision, any body of water, be it natural or manmade, could be deemed a fish habitat.

Concerns were raised by those directly involved — in other words, the stakeholders across various sectors — that this change was overly burdensome and unnecessary. I wish to thank Senator Poirier for advancing further amendments to respond to industry concerns.

The definition of fish habitat was further clarified and the requirement for project proponents to manage water flows upstream of a facility were eliminated, a key cause of concern.

I wish to thank Senator Christmas, who brought forward amendments to clarify and strengthen provisions related to Indigenous rights in his capacity as the sponsor of Bill C-68.

Additional amendments were adopted to allow for third-party habitat banking. I thank Senator Wells for his leadership on this matter.

As noted by others in this chamber, portions of Bill S-203, Ending the Captivity of Whales and Dolphins Act, and Bill S-238, the Ban on Shark Fin Importation and Exportation Act, were incorporated into Bill C-68 through government-sponsored amendments.

Notwithstanding all this, I do remain troubled by certain aspects of Bill C-68. I note concerns raised by the agricultural sector that there needs to be a streamlined regulatory process in place for low-risk projects.

On behalf of the Canadian Cattlemen’s Association, Fawn Jackson, Senior Manager, Government and International Relations, noted:

. . . the absence of progress for streamlined regulatory processes for small- and low-risk projects is concerning to the CCA. It is important that the regulatory burden reflects the scope of the risk. We are eager to continue to work with DFO to determine whether a code of practice or other methods could be implemented to enable producers to be in compliance in addition to helping guide good practices on the working landscape. . . .

. . . the government stated their support for provisions in the act that would act as safeguards for farmers and ranchers. They also supported the use of increased voluntary practices and stewardship.

Departmental officials indicated in their appearance before the committee that these concerns would be addressed in regulations developed during the first year of coming into force. They affirmed that this is supported by the minister.

I remain left with the difficulty that so much in Bill C-68 is again dependent on regulations to be implemented after the passage of the act, and that we are not certain of what kinds of consultations will take place.

Honourable senators, you’ve heard me before on this topic that more and more, over the last number of decades, there has been movement from enactment of legislation to regulations. This is taking power away from Parliament and putting it in the hands of the executive and the bureaucracy. This is not consistent with progressive democracy. More should be left in the act and we should go back to the practice where we knew what the regulations were before we passed the act.

In other words, it’s not good enough to have a good idea. It’s not good enough to respond to a problem. It is absolutely mandatory that implementation is part of the process. Good legislation lies dormant. It is not implemented and understood. We see over and over again, more and more, “to be consulted,” and “we will have regulations to cover it.” But the issues in the regulations are as important as the issues in the act. We have in the justice system moved to the administration as well as the substance of the law. We need to do it in all of the other fundamental areas that affect Canadians.

I remain very skeptical until I see these regulations. The government must take the time to put in the appropriate regulations, policies and guideline documents that will support the successful implementation of the revised act. That must — and I underline “must” — include appropriate consultation with concerned stakeholders.

I, like everyone else, will quote Pam Schwann, President of the Saskatchewan Mining Association. I see senators from Saskatchewan nodding. She stands as the greatest role model, a woman in the mining sector who balances the needs of the community as well as the industry she works in. That’s why we all admire her so much.

She came before the committee. I think parts of her testimony were quoted by Senator Patterson, but I want to reinforce that she said:

. . . government is not planning to allow a consultation period — that is no Canada Gazette, Part I review period — for proposed changes to the applications for authorization under paragraph 35(2)(b) of the Fisheries Act regulations. This lack of consultation is inconsistent with the federal government’s platform of a more transparent government. This is also deeply concerning, as the Senate has not yet completed its study of the act.

Stakeholders have relied on Canada Gazette publications, and we are now veering off of even that minimal notification. It gives me great concern.

While effective consultation could lead to better implementation of a revised act and ultimately to more certainty for all those affected, I do have another difficulty. When meeting with the stakeholders in my province, their greatest problem was with DFO personnel. It isn’t always thought of as a career-enhancing move to go into fisheries from Saskatchewan, but those who have grown up around fisheries are very much interested in a career in fishing and developing that industry, but they get posted to Saskatchewan. Do they know agriculture in Saskatchewan as opposed to agriculture in P.E.I.? Therefore, they have come out with inconsistent interpretations. The greatest complaint was that a very nice gentleman comes and tells them they can’t do A, B, or C on their farms and divert it, because they’ve just read the regulations. That is how they are interpreting it, but three sections over someone else has jurisdiction with an entirely different interpretation.

When I met with the bureaucrats who briefed me, they admitted freely that this was a problem but that they were going to undertake proper training and try to get some consistency at the professional level so that we get the same interpretation in Saskatchewan as we do in Manitoba and elsewhere. It is an ongoing difficulty for the Government of Canada to gain some assurance that DFO has the professional capacity. This had been a problem when I was overseas and we had the cod altercations, that there was no consistency, that the professional training needed to be there to catch up with modern-day issues.

I hope the words that were given to me in the undertakings by department officials — and I have no reason to suspect them — that they will follow through with the professional guidelines for the staff, not only for the regulations for the benefit of the stakeholders.

The new designated projects requirement in Bill C-68 also remains of great concern to me. Industry representatives, including Cameco, the Saskatchewan Mining Association, the Canadian Electricity Association and the Canadian Ferry Association, raised concerns to me and to the committee regarding the lack of clarity surrounding this provision.

In her appearance before the committee, Justyna Laurie-Lean, Vice-President, Environment and Regulatory Affairs at the Mining Association of Canada, noted:

. . . we’re not sure that a mining project could go ahead if it were a designated project.

Several stakeholders recommended changes to this section of the bill, while others, like the Saskatchewan Mining Association, recommended that the section be deleted in its entirety.

We have other scrutiny of designated projects in other ways to assure the right balances between the environment, the industry and others in the community.

While I note government amendments were adopted in an effort to bring clarity to these provisions, I remain concerned that the proposed designated projects regime in Bill C-68 will place additional and unnecessary constraints on our mining and resource sectors. This is, of course, of particular interest to my province Saskatchewan where economic growth relies heavily on these sectors.

In this fragile economy in my province, I’m asking that we be ever vigilant and that we are not building a regulatory system that is unnecessarily long and arduous.

Allow me to quote again from the testimony Ms. Anne-Raphaëlle Audouin, President of WaterPower Canada:

If we have regulations in place that make working those [hydropower] facilities and developing new sites more difficult, we see a real risk. In this case with Bill C-68, it could jeopardize new development and the workable operational viability of those projects. The cascading effect is that we would not be able to contribute as much as we are now to the decarbonization of the economy.

The sustainability of Canada’s fisheries is integral for the benefit and prosperity of all Canadians. We must, therefore, continue to ensure the protection of fish and their habitats as a priority. The committee duly looked at these issues. However, our environmental objectives need not be incompatible with the needs of our farmers, electricity producers and others working in the resource development sector. In fact, as noted in the testimony of Ms. Audouin, these interests are interconnected. Finding the appropriate balance between protection and prosperity must remain at the heart of this debate.

In closing, I want to again thank the Standing Senate Committee on Fisheries and Oceans for their careful consideration of this bill and the amendments put forward to strengthen it. I, for one, learned a lesson of how interdependent Atlantic Canada and the West Coast are with Saskatchewan. We don’t often think of water being the connector; we think of other means. I believe our duty is to our region, to minorities and equally to the national interest. I believe that the method and process of approaching Bill C-68 in this Senate has taught me again to look to protect my province and its interests while balancing those with the needs of the national interest.

The Hon. the Speaker

Are honourable senators ready for the question?

The Hon. the Speaker

It was moved by the Honourable Senator Christmas, seconded by the Honourable Senator Busson, that the bill as amended be read a third time.

Is it your pleasure, honourable senators, to adopt the motion?

The Hon. the Speaker

All those in favour of the motion please say “yea.”

The Hon. the Speaker

All those opposed to the motion please say “nay.”

The Hon. the Speaker

In my opinion, the “yeas” have it.

The Hon. the Speaker

I see two senators rising. Do we have agreement on the bell?

Senator Plett

One hour.

The Hon. the Speaker

The vote will take place at 4:33.

Call in the senators.