Fisheries Act

Bill to Amend--Third Reading--Debate

June 4, 2019


Hon. Dan Christmas
[14:41]

Honourable senators, I rise today to speak at third reading of Bill C-68, An Act to Amend the Fisheries Act and other Acts in consequence.

Over seven months ago, I rose in this chamber and encouraged all honourable senators to join in the dialogue needed to make Canada’s fisheries sector as vibrant and sustainable as it can be through the study of Bill C-68’s proposed provisions.

During that period, colleagues, your Standing Senate Committee on Fisheries and Oceans, on which I’m privileged to sit, undertook rigorous deliberation of this bill. The committee received 37 briefs, undertook 8 witness meetings and 2 meetings of clause-by-clause analysis while considering the positions and testimony from 55 witnesses, representing 29 organizations, composed of representation from Indigenous peoples, industry, government, the conservation community and individuals.

In all, 50 amendments were moved, 35 of them were adopted. When I first spoke to the bill all these months ago now, I was asked by an honourable senator whether the government and I were open to amendments in committee on this bill. I commented then that I believed we were, based on my own point of view and assurances I had sought and received from Minister Wilkinson.

I believe that a number of amendments adopted gives testament that this legislation is indeed improved by such undertakings. Speaking of Minister Wilkinson, I must commend him for his stewardship of this bill and for his open mind in respect of consideration of means by which we improved its provisions.

The minister spoke to the committee in early April, and I’m eager to share his thoughts with you, honourable colleagues. Before I do, I must confess that my sponsorship of this bill has reminded me of an important truth. As Benjamin Franklin once said, “When the well is dry, we’ll know the worth of water.”

Consider this in respect of the thoughts of Minister Wilkinson, who stated:

As Canada’s population continues to grow, as does its economy, marine fisheries, freshwater and fish habitat need to be protected and conserved for future generations. This bill encourages the adoption of best practices to mitigate and manage negative impacts, which is fundamental to sustainable economic growth.

Colleagues, I feel humbled to be this bill’s advocate. I take this role to heart, taught as I am by Indigenous Mi’kmaq knowledge about how we are, all of us, connected to creation in ways many of us may not yet fully comprehend. Let us acknowledge that the Fisheries Act was Canada’s first environmental legislation. Let us affirm that its current provisions, improved hopefully via this bill’s adoption, reflect a keen desire to be faithful stewards of responsibilities to the sea and the creatures that live in it.

I raise this matter as I often fear we are becoming somewhat consumed by the economics of society at the expense of its state of overall health and sustainability. It’s as if we have purposely chosen commerce over care, a pursuit of energy over protection and sustaining the environment.

Honourable colleagues, I want to remind you that I am here to be an independent voice for Nova Scotia and, in particular, the Mi’kmaq nation. I have no political affiliation, but I must agree with Minister Wilkinson’s contention that it’s our collective responsibility to exercise our stewardship of Canada’s fisheries and the habitat on which they rely with care in a way that is practical, reasonable and sustainable.

As the minister affirmed, and as we have heard from many of our witnesses, the measures in Bill C-68 restore protections for fish and fish habitat while also ensuring modern mechanisms are in place to guide sustainable economic growth, job creation and resource development.

In short, Bill C-68’s measures are not only about protection but also prosperity for an industry and a way of life for those whose living is dependent upon the sea.

One key measure to both prosperity and protection is fish stock rebuilding and the plans around it. I know there continues to be some questions over the need for higher standards for the protection of our fish. Some have asked why this bill is reverting to the harmful alteration, disruption or destruction to fish when, as they claim, we have yet to see any major evidence of collapse in stocks.

Colleagues, only a few weeks ago, the United Nations released a report on the state of nature and biodiversity. This sobering report states that 1 million species are at risk of extinction, despite there being solutions. Due to human pressures, such as deforestation, overfishing and development, nature is in trouble and biodiversity is on the brink of collapse. Compiled by 145 expert authors from 50 countries, the report states that one in four species is at risk of extinction and marine pollution has increased tenfold since 1980.

If this report tells us anything, it is that we must act now to protect and conserve our fish and fish habitat. We can’t keep waiting for our stocks to collapse to take action. We know the health of our stocks supports not just the ecosystems in which they are found but also the communities that depend on them for their livelihoods. At committee, we heard testimony from a cooperative group of over 20 non-governmental organizations supportive of Bill C-68’s provisions around stock rebuilding.

They noted that:

Canada has the world’s largest coastline, three ocean basins and a poor history of rebuilding depleted stocks. Passage of Bill C-68 and establishing strong regulations for rebuilding provides an opportunity to create a future for fisheries in Canada that heeds the lessons from the past to ensure healthy fish populations and sustainable fishing economies for generations to come.

I’m conscious of the last phrase in that sentence “for generations to come.” We in Atlantic Canada know that the fishery has been the lifeblood for Maritimers for generation upon generation. As Senator Stewart Olsen suggested last week in this chamber, Maritimers have been clear: They firmly believe Bill C-68 will protect a foundational principle that has always defined our fishery. That principle is that of fleet separation and ensuring fishermen remain owner-operators.

Chelsey Ellis is a young third generation fisherwoman from a small fishing village in Prince Edward Island. She spent her early years on the water, fishing lobster and scallops for her family. She had been working in coastal communities in British Columbia for the past seven years as a seafood traceability coordinator, a fisheries biologist, electronic monitoring program coordinator and a commercial fishing deckhand.

She has worked in 11 different fisheries on two coasts of Canada and is a member of the B.C. Young Fishermen’s Network. She offered her unique perspective to the committee around the preservation and promotion of the independence of licence holders and commercial inshore fisheries. She noted:

Commercial fishing is the backbone of my community in Prince Edward Island. The provisions in place on the East Coast help to protect and promote independent owner-operators. This provides meaningful and important livelihoods that support people in place. . . . The knowledge required to be a commercial fish harvester is extremely specialized and unique. To extract the full value of this amazing resource, we need to attract those who have the skills and the passion to create a safe, positive and successful work environment.

Ms. Ellis also noted that the promotion of the independence of owner-operator enterprises in all commercial fisheries is critical. She’s eager to see the social, economic and cultural benefits to harvesters, coastal communities and future generations of Canadians who are called to this work maximized. As she so eloquently put it:

For many who work in the industry, commercial fishing isn’t just a job, it’s a lifestyle and, in many cases, a deep-rooted family tradition. It’s also a platform to challenge yourself and to explore and exceed what you thought were your personal limitations. It’s a meaningful living that connects people to place and creates personal identity.

Honourable colleagues, I’d now like to speak of the provisions of Bill C-68 that are perhaps of greatest interest to me, those related to Indigenous peoples. As I highlighted at second reading, these include: that the minister must consider adverse effects that decisions may have on the rights of Indigenous people in Canada; that the minister establish a multi-interest advisory body to support the carrying out of the purposes of the act, including Indigenous representation; that the minister enter into agreements with Indigenous governing bodies to further the purposes of the Fisheries Act, an opportunity currently only provided to the provinces and territories; that the minister consider the traditional knowledge of Indigenous peoples of Canada when making certain decisions, specifically those that involve fish and fish habitat; and that when Indigenous knowledge is shared with respect to decisions made under the act, that the information is to be kept confidential and will not be shared with the public or with the media.

I welcome and applaud the measures in this legislation seeking to enhance Indigenous elements in the Fisheries Act. As a Mi’kmaq, as a member of my community of Membertou and as a personal friend of Donald Marshall, Jr., I can tell you the issue of the recognition and respect of Mi’kmaq fishing rights, or lack thereof, leaves me in a quandary. I’ll let the words of Chief Terry Paul explain this. While appearing before our committee, Chief Paul said:

As defined in this bill, the concept of Indigenous fisheries is limited to those who fish for food, social, ceremonial and subsistence purposes only. With this definition . . . Bill C-68 continues to infringe upon our constitutionally protected rights to harvest and sell fish to support a moderate livelihood. We have been waiting nearly 20 years, since the decision in the Marshall case in September of 1999, for the implementation of our right to harvest for a moderate livelihood.

Clause 9 defines an Indigenous fishery as fish:

. . . harvested by an Indigenous organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Indigenous organization.”

This definition of “Indigenous” fishery does not recognize and protect all fisheries unique to Indigenous people. That severely undermines the reconciliatory purpose of Bill C-68.

Chief Terry continued:

For Mi’kmaq specifically, this means that we will continue to be prohibited by the Fisheries Act from engaging in our rights, as affirmed by the Supreme Court, to fish for a moderate livelihood.

A moderate livelihood fishery is neither a subsistence fishery nor a commercial one. The Mi’kmaq right to fish for a moderate livelihood is based on a series of treaties made in 1760 and 1761, and was affirmed by the Supreme Court of Canada in its 1999 Donald Marshall decision.

Our right to fish for a moderate livelihood is a constitutionally protected treaty right, recognized and affirmed by section 35 of the Constitution Act.

Bill C-68 not only disregards this, but it also leaves both our people and the Crown with serious compromises. . . .

The continued denial of our right to take part in a moderate livelihood fishery has had major implications for our people. Many in our communities still trade or sell what they collect through hunting, fishing and gathering to provide for their families. This fishery is not about wealth. It never has been. It has always been about survival.

In the face of this, I realized that the challenge of bringing about the respecting of and adherence to the Supreme Court of Canada’s Marshall decision may be bigger than its place or mention in the Fisheries Act. But the fact remains that it is my duty and responsibility in respect of all my relations in the Mi’kmaq nation to pursue remedies for this by whatever means I can.

To this end, the committee adopted my amendments, strengthening the non-derogation clause in the bill and improving language in the act around respecting the rights guaranteed, recognized and affirmed in section 35 of the Constitution.

My concerns around the right to a moderate livelihood for the Mi’kmaq fishery remain paramount to me, and I’ll take this opportunity to make note of this to the government.

While I’m pleased with improvements to the provisions of this legislation, there remains much work to be done. The committee, after hearing Chief Paul’s testimony, made reference to the great degree of patience the Mi’kmaq have shown throughout this endeavour.

I commend Chief Paul for this as well, and pledge to him and the Mi’kmaq nation that I remain determined to move this matter forward by whatever means I can, always bearing in mind the admonishment of Donald Marshall Jr. to “keep fishing.”

As you can see, there are indeed provisions and components of Bill C-68 that incite passionate debate, and I offer thanks to my honourable colleagues for indulging me as I addressed mine.

If I was to note one other area of concern to stakeholders, industry and environmentalists, it would be that of flow and fish habitat. In short, as we termed it, “puddles in pastures” suddenly being deemed fish habitat and subject to oversight and compliance verification by DFO officials.

The Canadian Cattlemen’s Association, the national voice of 60,000 beef farms and feedlots, gave voice to its concerns in this regard:

The proposed Fisheries Act expands substantially on the scope that was already too expansive. It is an extremely small list of water bodies that would not be either fish habitat or deemed fish habitat. This, in turn, means the prohibitions apply almost everywhere and to almost all activities.

The CCA and its producers are not against protecting water bodies. This is not at issue. Water is critical for raising cattle and managing farms and ranches. Furthermore, everyone recognizes the importance of having sufficient water quality and quantity, whether for people, livestock, or fish. What is at issue is how to manage water and water flows. The current Bill C-68 essentially detaches water flows from fish and fish habitat. This will result in the potential for significantly more activities associated with cattle production to be in contravention of the Fisheries Act despite limited impact on actual fish populations. This is particularly true given the expanded scope of fisheries, from commercial, recreational, and Aboriginal fisheries.

The Cattlemen’s Association was not the only voice of this opinion in this regard. Similar entreaties were heard from the Canadian Association of Forest Owners; the Canadian Association of Petroleum Producers; the Forum for Leadership on Water; the Canadian Nuclear Association; the Prospectors and Developers Association of Canada; the Canadian Electricity Association; the Canadian Canola Growers Association and the Canadian Federation of Agriculture, to name but a few.

Thankfully, this matter was dealt with by way of government sponsored amendments.

Similarly, as Senator Harder point out last week, in the face of legitimate industry concerns, the government thankfully introduced amendments to the permitting system for large-scale projects to include exceptions to the Fisheries Act for activities and works that do not lead to the death of fish.

These amendments provide the authority for the minister to make the final determinations about which aspects of a designated project will require a permit, and further clarifies that only those aspects will require a permit that are likely to result in the death of fish or harmful alteration, disruption or destruction of fish habitat.

I can tell you, just as there was in the case of fish habitat and flow, there were equally significant calls for these amendments from stakeholders and industry. The government is to be applauded for its proactive action in this regard.

Finally, it is not often that Senate public bills become subsumed into government legislation, but that is exactly what was achieved by porting key provisions of Bill S-203 and Bill S-238 into the body of Bill C-68. These bills have spent years in this chamber, and their inclusion in Bill C-68 helps ensure, due to tight legislative timelines, that banning both whales in captivity and shark finning is adopted and becomes law. I know that the inclusion of these bills has the support of former Senator Moore, Senator Sinclair and Senator MacDonald. Senators, you have done tremendous work in these pieces of legislation. I applaud you for your commitment to these issues, and I commend your perseverance in seeing them realized.

As I conclude, honourable colleagues, there are many to thank and acknowledge. First, I would like to thank the members of your Standing Senate Committee on Fisheries and Oceans for the depth and rigour of our study on Bill C-68, for their class and collegiality, which makes our work on the committee such a pleasure to undertake, and for the special role our chair, Senator Manning, plays in keeping our committee afloat and in calm waters, as he says.

I would also like to make special mention of Minister Wilkinson and his officials. I really appreciated their cooperation, openness and determination in always finding suitable ways forward when we faced impasse.

Honourable senators, I close today in much the same fashion I did all those months ago at second reading, when I invoked the words of JFK, as he reminded us that “we are tied to the ocean.” I would add that it is not just we who are tied to the ocean but also our children and theirs who will follow after them.

Over a century ago, Theodore Roosevelt reminded us:

. . . to waste, to destroy, our natural resources, to skin and exhaust the land [and water] instead of using it so as to increase its usefulness, will result in undermining in the days of our children the very prosperity which we ought by right to hand down to them amplified and developed.

Honourable senators, I thank you all for participating in debate on this bill. It is legislation that balances protection with measures to build prosperity. It is a bill that seeks to be a tool of Indigenous reconciliation. It is a bill that seeks to build and maintain healthy fisheries and oceans that my children and grandchildren may enjoy and make use of for generations to come.

Bill C-68 is a vessel worthy of passage. Let’s get this boat in the water and see this legislation adopted without delay. Wela’lioq. Thank you.

Hon. David M. Wells
[15:02]

Honourable senators, I rise today to speak at third reading of Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence. This bill is a consequential one for my province of Newfoundland and Labrador, and indeed, provinces and territories across the country.

Before I begin, I would like to acknowledge the excellent work done by our chair, Senator Manning, and the Standing Senate Committee on Fisheries and Oceans in studying this bill.

Bill C-68, colleagues, is an omnibus bill because it’s nothing less than a complete overhaul of the Fisheries Act, an act that hasn’t been touched since 1867. The changes to the Fisheries Act as set out in Bill C-68 are multifaceted and complex, from the owner-operator policy and PIIFCAF, which is Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries, to fish habitat protection and the death of fish, this bill makes substantive alterations to substantially different aspects of the act.

Just as I — and I’m sure many of my colleagues on the committee — heard in stakeholder meetings, this bill really should have been split into two or three separate bills. It should have at least divided owner-operator and PIIFCAF, which are fish harvester policies, from fish habitat protections, which deal with distinct and detached issues.

While this bill is another example of an omnibus bill this government swore it would never introduce, it ushers in some positive changes. The most positive change, in my view, colleagues, is the introduction of the concept of habitat banking under section 42. Although there are several areas of the bill I would like to tackle in this speech, I will focus my remarks today on the provisions related to habitat banking.

Habitat banking is a market-oriented approach to environmental conservation that is being successfully utilized in other jurisdictions to increase certainty for industry and improve environmental outcomes.

While the introduction of habitat banking was a positive step, the bill as drafted by the government could have gone further in fostering better environmental and economic benefits.

That is why, colleagues, at committee we passed all three amendments designed to enhance, expand and clarify the habitat banking system already provided for in the bill. I thank my colleagues on the committee for supporting these amendments.

Instead of taking a positive step forward, Canada can now take a positive leap forward when it comes to fish habitat protection if this bill passes, as the committee recommends.

A habitat bank is defined in the bill as:

. . . an area of a fish habitat that has been created, restored or enhanced by the carrying on of one or more conservation projects within a service area and in respect of which area the Minister has certified any habitat credit. . . .

Make no mistake, colleagues, habitat banking is about the maintenance and preservation of the environment for now and the future. A habitat credit, before being amended at committee, was defined in the bill as:

. . . a unit of measure that is agreed to between any proponent and the Minister under section 42.‍02 that quantifies the benefits of a conservation project.

In plainer language, colleagues, the old version of the bill stipulated that proponents, and only proponents, can offset the adverse effects on fish or fish habitat as a result of conservation work being done by that proponent.

Habitat banking would essentially be like for like. It would involve only proponents and leave out important third parties like conservation and Indigenous groups. If mining operations led to deleterious effects on a fish habitat, for example, then that mining company may offset the impact of those effects through a conservation project like moving affected fish to other ponds or lakes.

Other examples include the construction of a salmon ladder, preservation of a wetland or any other measure that creates, restores or enhances a fish habitat. Ensuring that proponents offset their impacts on fish habitat is necessary for environmental conservation. The question we must ask ourselves in considering this legislation is: Have we created a system that attains the best possible ecological and economic outcomes?

Under this bill as previously drafted, colleagues, the answer was no. There is not a single compelling reason to restrict habitat banking solely to proponents. When we say that only a proponent can create a habitat bank, we are excluding Indigenous groups, conservation specialist groups like Ducks Unlimited, wetlands advocates and municipalities, among other prospective participants. These stakeholders all want to be on the front lines of habitat restoration and enhancement, and they should be. That’s why the amendment I proposed at committee to expand habitat banking to third parties, which had the support across all groups in the chamber, also has broad and diverse stakeholder support.

The Canadian Wildlife Federation and the Canadian Ferry Association both testified in support of this amendment at committee and advocated strongly behind the scenes.

Serge Buy, CEO of the Canadian Ferry Association, had this to say about third party habitat banking:

The Canadian Ferry Association believes this would provide a sensible way for proponents of projects to comply with the legislation. It provides clarity and certainty for project proponents, such as ferry operators, and ensures that, should offset be required, the conservation and restoration are undertaken by those with direct knowledge of the situation, such as conservation groups, Indigenous groups, et cetera.

Colleagues, in addition to the testimony we heard at committee, we also know that other environmental NGOs and industry groups, like the Ontario Waterpower Association, for example, as well as various First Nations, municipalities, conservation authorities and provincial government agencies, all want to see the expansion of habitat banking to third parties become law.

Why wouldn’t they? This amendment would create an entirely new habitat banking economy that creates jobs, incentivizes innovation and encourages more and better environmental protection.

Not all proponents have the resources or knowledge to build a physical offset. Indeed, not all areas in a project region have a champion. Under the amendment passed by our committee, proponents would now be able to purchase the credit rather than designing and building their own physical offset.

The offset must still be created, but now it could be created by a group with specific conservation expertise. The proponent would essentially be, in these cases, funding the construction of an improved physical offset. It’s a win for industry and the environment. Companies don’t have to divert attention from the core aspects of their business. All they have to do is buy the credit for a habitat bank established by a third party group.

With a new market for credits, there is an incentive for third parties to get involved in habitat banking, thus leading to additional biological protection.

Colleagues, that is one of the three amendments to the habitat banking regime agreed to by the committee.

The second amendment on this issue relates to offset payments. This amendment, which was originally proposed by Senators Christmas and Griffin — and I thank them for that — would allow DFO to collect an offset payment in lieu of establishing an offsetting habitat bank.

The purpose of introducing this tool, as argued by the Canadian Wildlife Federation and others, was to provide for flexibility in areas where an appropriate off-set project is not available or cost effective. As an alternative to purchasing credits, a proponent could pay into a habitat protection fund — the Environmental Damages Fund, for example — to offset any impacts their projects may have.

Under this amendment, funds would need to be spent either as close as practicable to the work, undertaking or activity, or at least within the same province where the work occurred.

Adding these parameters to the system was imperative to ensuring equal treatment among all provinces, territories, and hopefully, if administered accurately by DFO, between watersheds as well.

This amendment does not mandate how the government should collect or spend money. It simply establishes a structure by which private sector funds, determined and accepted at the discretion of the minister, can be used to support restoration projects in Canada.

Use of offset payments would not, in the opinion of stakeholder groups we heard from at committee, add significantly to DFO’s fish habitat program costs or administrative burden. In fact, the amendment would provide regulatory speed, flexibility and certainty for project proponents. Other benefits include: An increase in resources available for aquatic habitat restoration, an increase in support for larger scale, strategic and effective restoration projects, and a reduction in the net loss of fish habitat.

That colleagues, in a nutshell, is amendment number two. The third amendment shares the spirit of the second, but is entirely distinct among the three. Bill C-68, in both its current and former iterations, specifies that certified habitat credits must be used within a service area. A service area is defined in Bill C-68 as:

The geographical area that encompasses a fish habitat bank and one or more conservation projects, and within which area a proponent carries on a work, undertaking or activity.

The broadness of this definition is concerning.

Throughout the study of Bill C-68, I have worked with a number of people and groups to build upon and improve the habitat banking structure set out in the bill prior to being amended.

It was relayed to me by one senior biologist that there is cause for concern about how large a service area might be given that the definition includes no specifications around the size of a service area.

Colleagues, as currently written, service area — or as previously written because the amendment passed in committee, a service area could technically be considered the whole country.

The intent of this amendment is to ensure that the benefits of an offsetting habitat bank remain local in comparison to the work, undertaking or activity. “Local,” colleagues, would be either “as close as practicable” or “within the same province.”

The general idea is: The closer to the affected area, the better. A mining project near St. John’s would not be offset by a habitat restoration project in Northern Ontario or Vancouver Island, B.C.

The amendment maintains needed ministerial flexibility while protecting local fish populations and ecologies and providing certainty to industry around where credits can be used.

Habitat banking benefits should remain as local as possible as a guiding principle. If that is not practicable, then the benefits should at least remain in the province where the work was carried out. Projects in the ocean — in case that question is on your minds, colleagues — would be captured by the as-close-as-practicable part of the amendment, and the minister would still have the flexibility to determine what “as close as practicable” is.

Honourable senators, all three of these amendments are now included in Bill C-68. They are good and friendly amendments. They help First Nations, ecology groups and they clearly help the environment, as well as industry.

They are also eminently reasonable amendments in terms of DFO implementation of the first two. Third party habitat banking and the offset payment system would only come into force upon the proclamation of cabinet, not at Royal Assent. This would provide DFO and the relevant federal agencies the time to get it right.

What we are doing here in chamber and what we have already done in committee, colleagues, is the early work involved in setting the stage for DFO to consult widely and bring in the proper regulations.

I acknowledge that the department is apprehensive about the work needed to establish the system we have provided for in Bill C-68. While I appreciate the complexities involved in setting up such a system, we should not accept a half solution that prevents Indigenous, conservation or other groups from doing the good work that they do to protect our environment. Especially when DFO will have more than enough time to consult and develop the system.

These are not novel ideas. Other countries, including the United States, already have third party habitat banking systems in place. These systems work, and they work well. Offset payments are also employed in other jurisdictions. Best practices are well-known.

Accepting these amendments, colleagues, will allow us to fully unlock the potential of the private sector in meeting our ecological objectives.

I want to take this opportunity to thank, in particular, Senators Griffin and Christmas for their work in helping develop the first two amendments. Again, I want to thank the chair of the committee, Senator Manning, and all colleagues on the committee for their work in organizing the amendments and ensuring the committee meetings went smoothly. I also want to thank my colleagues for their support on these amendments, and I strongly believe they will contribute to better economic and ecological outcomes. Thank you, colleagues.

[15:15]

Honourable senators, I rise here today to speak at third reading on Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence. I thank all the various witnesses who appeared before our committee to testify on this legislation as well as those who sent written submissions. The list of witnesses was wide-ranging: from fishermen associations, different Indigenous organizations and communities, national representatives of major industries such as mining, hydro power, electricity, cattlemen, and the list goes on.

Having such a wide range of witnesses demonstrates how far-ranging the amendments proposed to the Fisheries Act are in Bill C-68. A quick recap on the bill could be made by dividing the bill in two categories: the fisheries amendments and the industry amendments. On one hand, we have heard a lot of support from most fishing associations to support the bill for their sector, a work that began under the leadership of Gail Shea and the Conservative government. On the other hand, we have heard a lot of concerns and uncertainty regarding the amendments brought to the various industries.

As you may imagine, honourable senators, the committee had a difficult task ahead of itself, especially considering how it had to be done in such a condensed time frame. With only roughly 16 and a half hours of meetings, the committee had to review about 60 clauses over 66 pages. That was a big task in front of the committee and I believe we did well. Maybe with a little more time we could have gone deeper into the lingering issues to either find the reassurances certain witnesses were looking for or to bring amendments to the improved bill.

But here we are today at third reading. I would like to begin my remarks by discussing the fisheries aspect of the bill. Right from the beginning, we heard from many fishermen and various organizations on Bill C-68. The amendments contained in the bill would reinforce the well-appreciated policy known as PIIFCAF — fleet separation policy — which was adopted in 2007. It was adopted to ensure that commercial inshore fish harvesters remain independent and that the benefit of fishing licences flow to the fishers and to Atlantic coastal communities.

The fleet separation policy keeps ownership of the fish harvesting sector separate from the processing sector by preventing processing companies from acquiring the fishing licences of inshore vessels. The owner operator policy requires the holder of the licence for inshore vessels to be present on the boat during the fishing operations.

Similar policies have not been put in place in Canada’s Pacific fisheries. In British Columbia, owner operator and fleet separation policies have not been put into place, and the socio‑economic aspect of the fisheries has been severely neglected. There has been a steady increase in licences and quota being transferred out of the hands of active fish harvesters and coastal communities. According to Dr. Rick Williams from the Canadian Council of Professional Fish Harvesters:

In a wide open speculative market in B.C., licence and quota prices become unaffordable for people making their livings from actively fishing. To keep fishing, many owner operators have to pay from 70 to 80 per cent of their landed value to lease quota from onshore investor owners. The most critical need is for more consistent and effective enforcement of the owner operator and fleet separation policies in the Atlantic and the development of parallel protections for Pacific region fleets, to maintain ownership and control of access rights by independent harvester enterprises based in adjacent communities.

As Dr. Williams very well explained, the situation on the West Coast is very different from the Atlantic due to the absence of PIIFCAF that ensures fishing benefits remain in our coastal communities. Some, like the minister, believe it is too little too late to save the independence of the fish harvesters on the West Coast:

We recognize there are challenges. I think, though, that even the folks in the Canadian Independent Fish Harvesters would recognize it’s not likely you can fully unscramble an omelette that is fully baked, but there are probably things we can look at to help think more about the position that harvesters are in on the West Coast.

But others like Chelsey Ellis, who appeared in front of the committee and has extensive experience in the fisheries on both coasts, doesn’t back down:

Fisheries on the West Coast have been labelled as too complicated to reverse or as having unique challenges compared to the East Coast. There has even been reference to it by the honourable fisheries minister as a scrambled omelette that is pretty much fully baked. I hope that the idea of something being complicated or challenging isn’t what’s stopping our government from making positive change that would benefit Canadians for generations to come. This definitely isn’t a situation that happened overnight, and we can’t be expected to fix it overnight.

Moreover, on the Atlantic side, the challenge seems to be to reinforce the policy, because over the years it has been circumvented. It has been done due to the legalizing of the control agreements due to allowing financial transactions to be exempt from the control definition. According to Gerard Chidley, who appeared before our committee on April 9:

Under PIIFCAF, the independent licence holders were assured that any new licence opportunities would go to them, but that has not been happening. In most cases, the controlling person or company has the resources . . . to have first-hand knowledge of new fisheries and emerging fisheries.

Federal policies should encourage the long-term sustainability of our fishing industry. Unfortunately, outdated policies remain that should be cleaned up in the new Fisheries Act.

So while most fish harvesters are in favour of a strong PIIFCAF to ensure fishing benefits remain in the coastal communities, there is definitely a call to also have some flexibility in the policy to adjust as we go on.

One only needs to look at the recent situation in New Brunswick. Over the last years, we have seen six snow crab licences exit the region. For every licence, we are talking about 16 jobs. Therefore, for coastal communities, that is 96 jobs that have left the region.

Recently, a snow crab licence was transferred out of the Acadian Peninsula to a harvester in P.E.I. Not to create any regional tensions, but it would also be unfair if it were the other way around. In this situation, the fish harvester did everything within PIIFCAF, having been a New Brunswick resident for at least six months and having the number of required years of experience.

After the required minimum residency and other requirements were met, the individual in question got the licence and moved to it to P.E.I. The rumour is that certain residents will use an address as a front to satisfy the residency requirement and then move the licence to their home province.

The last thing we want is coastal communities working against each other. PIIFCAF is meant to strengthen the coastal communities’ socio-economic activities, not improve one to the detriment to the other. The policy is being circumvented by individuals within the Atlantic Provinces as well, and therefore it is crucial that DFO closes the loopholes, strengthens the policy and has fines and punishments for individuals and companies who try to circumvent it.

I repeatedly said so during my third reading speech for Bill C-55 and again today: Fishing activity is crucial to all the coastal communities who depend on it. It goes way beyond just the fishermen. It creates processing jobs, it runs the local economy for the lumber, gas, grocery stores and buying local goods, et cetera. Let’s hope that putting PIIFCAF in law will strengthen the independence of the inshore fisheries and their communities after the hard work started in 2012 under the previous government.

On the other side of the coin, we had the industry portion of the bill, which would add different regulations to their daily activities. It’s important to point out that all of the various industries that the committee heard from want to protect the environment and the fish. None of them wants to harm fish, and furthermore, they want to be partners with the government to continue their activities while having a minimum impact on fish and its habitat.

If I could use one word to describe the regulations aspect of the bill, it would be “uncertainty.” The uncertainty was clear during the committee meetings around designated projects. How it will work and be enforced is causing a lot of uncertainty for industry representatives. The President of the Saskatchewan Mining Association said:

Before I outline some of the rationale for these amendments, I would like to reaffirm our members’ ongoing commitment to the protection of fish and fish habitat. Our concerns with the proposed act relate to how some of the changes would set aside decades of jurisprudence and operational practices. In our opinion, the proposed act would prompt numerous court challenges and years, if not decades, of uncertainty for DFO, industrial and agricultural operators, as well as rural and urban municipalities, further eroding investment in Canada.

Honourable senators, as you might know by now, the bill was reported from committee with several amendments. Two were ones that I put forward and were accepted by members of the Fisheries Committee.

First, the definition of the fish habitat required an amendment to bring some clarity and better precision on what constitutes a fish habitat. We heard from many witnesses that by including “water frequented by fish” in the definition of fish habitat, it would result in locations that are not essential for fisheries’ life-cycle processes to become subject to the act.

In the brief submitted to our committee, Cameco explained:

In doing so, locations that may only contain water for a brief period of time will be considered to be fish habitat.

As an example, any work, activity or undertaking in a location that may only contain water for several days every few years could be subject to the requirements of the Act. While fish may have the potential to frequent this area for a small period of time once every five years, the habitat is not essential for life-cycle processes.

By amending the definition to “any area on which fish depend directly or indirectly to carry out their life processes, including spawning grounds and nurseries, rearing, food supply and migration areas,” we maintain the important protection to the essential areas of life-cycle processes while having a balance that will not disturb or overcomplicate the work for different industries, such as mining. It would also allow for a better understanding for DFO on enforcing the fish habitat provisions and for stakeholders respecting it.

My second amendment that was passed by the committee and backed by DFO officials was on the removal of the upstream and downstream amendment.

The version of subsection 34.3(2) published in the first reading of Bill C-68 provided the minister with sufficient authority to make orders to ensure that the free passage of fish or the protection of fish and fish habitat in relation to an obstruction, including in relation to water flows.

Of particular concern was in the version of paragraph 34.3(2)(g), as amended by the House of Commons, is the power of the minister to require the owner of an obstruction to maintain the characteristics of water upstream of an obstruction. However, in many cases, the owner of an obstruction will not have an ability to control upstream water characteristics, which is why stakeholders like the Canadian Electricity Association have recommended the language be removed.

Therefore, I will conclude my remarks on the proposed clauses of the bill, which I tried to amend but was unsuccessful. We heard, as a committee, that the current wording in the bill in Section 2, “Purpose of Act 2.1,” should be slightly changed. As currently written, the purpose statement of the bill establishes two different clauses, one being an objective to manage fisheries as a resource while the other may be interpreted to conserve and protect individual fish.

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

Allow me, honourable senators, to quote Terry Toner from the Canadian Electricity Association:

. . . the purpose statement should focus on the management and control of fisheries. As currently drafted, the protection or conservation of fish and fish habitat is set out as a distinct and self-contained purpose, whereas it should be subsidiary to the responsible and proper management and control of fisheries. To address this, we recommend combining the two clauses so that the objective of the act is clearer.

All that being said, to bring clarity to the bill and to avoid potential future legal challenges, as mentioned by some witnesses, I have an amendment to propose.