Honourable senators, I rise to speak in support of Senator Poirier’s amendment to Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence. At committee, we, alongside our colleagues representing all groups in the chamber, heard from stakeholders that modifying the wording of this bill’s purpose section would improve Bill C-68. Manitoba Hydro and the Canadian Electricity Association were the most vocal proponents for this amendment. Gary Swanson a senior environmental specialist at Manitoba Hydro clearly stated in committee that his organization would like to see:
. . . the purpose statement be revised into one that is coherent where it is clear that the protection of fish and fish habitat is part of Canada’s responsibility to ensure fisheries sustainability.
As the two separate sections are currently stated, we reasonably foresee they will create conflict and needless scope for legal challenges and are contrary to indications from DFO that the habitat provisions will be applied at fishery or fish population level.
As do Senator Poirier and these stakeholders, I view the amendment as a sensible attempt to prevent conflict between the purpose of the act and the reasonable authorization by DFO of productive activities that may incidentally harm fish or fish habitat, something that is provided and planned for in this bill.
As we heard in committee, the purpose section, as worded, needlessly creates scope for legal challenges. The actual purpose of the act is not problematic in the least. It is in the wording of the purpose section where we run into trouble. I think everyone can agree that the Fisheries Act should be about both the proper management and control of fisheries, and also about the conservation and protection of fish and fish habitat.
The purpose section currently has two stand-alone clauses representing these two laudable objectives. On the surface, if you have two objectives, it would make sense that they be separated into two distinct lines.
Proposed paragraph 2.1 (b) under the purpose section reads:
. . . the conservation and protection of fish and fish habitat, including by preventing pollution.
When you consider this purpose statement on its own, it is easy to understand stakeholder concern around scope for legal challenge. What will happen, colleagues, based simply on legislative oversight, are avoidable legal battles over whether legitimate mining, oil and gas, or other projects can go on when they may be in conflict with one of the two purpose statements in the Fisheries Act. A mining project that has been duly approved and provides for all necessary mitigation measures and offsets may still incidentally cause a degree of harm to fish or fish habitat. Such a project, it would appear, is in conflict with the stated intention of the bill as written in proposed paragraph (b) of the purpose section. On that basis, a project could be challenged, and subjected to unnecessary and unproductive delays.
This would be a disappointing situation considering the efforts of so many stakeholders and parliamentarians, from all sides, who have sought the proper balance between the environment and the economy in this bill.
By simply combining the two parts of the purpose section using the phrase “with due consideration,” we can avoid pointless legal challenges and keep the balance where it exists in this bill fully intact. The amended purpose section would read:
The purpose of this Act is to provide a framework for the proper management and control of fisheries, with due consideration for the need for conservation and protection of fish and fish habitat, including by preventing pollution.
Under this new wording, both objectives remain sound; they just no longer create the same potential for legal challenge. There is no legislative impact from this change whatsoever. In other words, no project would be approved that would have previously been rejected, and no project would be rejected that would have previously been approved. No mitigation measures change, no management or control procedures change, and no less consideration is afforded to environmental or economic factors. This amendment will simply ensure that the act is carried out as I assume it was intended, with both the environment and the economy in mind. The only real change as a result of this amendment is the potential for futile legal challenge.
I want to thank Senator Poirier for bringing this amendment forward, and I take this opportunity to congratulate her, as well, for shepherding two other positive amendments through the committee.
I hope all colleagues will provide due consideration to this amendment. Thank you.