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Fisheries Act - Second Reading

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

At the outset, I want to underscore the importance of protecting fish and their habitats. As we all know, there are many difficulties facing our fisheries, both offshore and onshore, from competing interests to threats, including pollution and overfishing. We must continue to ensure the protection of fish and their habitats as a priority.

My difficulties with this bill lie in the lack of details and of its implementation strategy. Bill C-68 gives powers to the government and to the Minister of Fisheries and Oceans to move quickly, and in many cases intrusively. Often powers such as these are necessary in order to enable the minister to respond to unpredictable crises. However, the public, affected sectors and parliamentarians have a right to understand the full breadth of these powers and their use. While these details should be understood prior to the passage of the bill, other details have been left to be determined by regulations, and they have yet to be developed.

Concerns regarding the bill have also been communicated to me by the agriculture and resource development sectors. As noted by others in this chamber, Bill C-68 seeks to reverse the amendments made to the Fisheries Act under Bill C-38 in 2012. The pre-2012 Fisheries Act contained a broad prohibition against the destruction of fish and their habitats. In 2012 this prohibition was narrowed to apply to:

. . . any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.

The purpose of this change was not to deplete or to reduce the protection of fish and their habitats. Rather, the purpose of these changes in 2012 was to respond to key concerns calling for greater clarity and reduced administrative delays.

Appearing before the Standing Committee on Fisheries and Oceans during a review of 2012 changes, Mr. Ron Bonnett, President of the Canadian Federation of Agriculture, shared the following comments regarding the pre-2012 Fisheries Act:

The experience that many farmers had with the Fisheries Act, unfortunately, was not a positive one. It was characterized by lengthy bureaucratic applications for permitting and authorizations, and a focus on enforcement and compliance measures taken by officials . . . .

Many farmers were then relieved when the changes that were made just a few years ago drastically improved the timeliness and cost of conducting regular maintenance and improvement activities to their farms as well as lifting the threat of being deemed out of compliance. . . .

Mr. Bonnett continued:

. . .There are also many accounts of inconsistency in enforcement, monitoring, and compliance across Canada with different empowered organizations, which led to a confusion and indiscriminate approaches to enforcement and implementation. Even at the individual level, there were different interpretations of the act based on one’s familiarity with agriculture.

With Bill C-68, the government has proposed to repeal those changes and restore a regime similar to that which existed prior to 2012. Bill C-68 proposes to amend section 35(1) to read:

No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.

This is frequently referred to as the “HADD” principle.

An amendment adopted at committee in the other place has also generated great concern. A revised subsection 2(2), the so-called “deeming” provision regarding water flow, reads:

For the purposes of this Act, the quantity, timing and quality of the water flow that are necessary to sustain the freshwater or estuarine ecosystems of a fish habitat are deemed to be a fish habitat.

As noted by Ontario Power Generation, this marks “the most significant expansion of this definition in the 145-year existence of the Act.”

Under this new provision, any body of water, be it natural or man-made, could be deemed a fish habitat. As a result, the scope and interpretation of this provision has generated fear and anxiety amongst farmers and others working in the resource development sector.

According to the Canadian Grain Farmers:

This “deemed habitat” provision could mean that a grain farmer could be prohibited from moving a drainage ditch, or filling a reservoir that is no longer needed, even if there has never been a fish in it . . . .

It has the potential to subject farmers to go through burdensome and expensive permitting processes for changes that will never impact fish.

Bill C-68, as amended, is expected to increase the regulatory burden placed on a sector that is already heavily regulated. Allow me to describe the potential reach of the proposed amendments in Bill C-68 with an example provided in a written submission by the Canadian Cattlemen’s Association:

A rancher clears a brush line to erect a fence across sloped rangelands.

Shortly, after the fence is complete a heavy rain results in flooding that carries debris and soil to a creek some distance away.

As a result of the debris and soil combination a temporary damming effect ensues in the creek and the water flows along on alternative routes before re-joining the original route.

The high sediment load also impacts the water quality.

The flow of water was sufficient to sustain a fish so therefore it would be deemed a fish habitat and therefore it is not necessary to prove that this is a fish habitat.

Thus, altering the stream flow would be prohibited under section 35(1).

As this was not a predictable event, there is no potential to obtain authorization in advance.

I personally have heard similar examples from many members of the farming community in my home province of Saskatchewan. When our economy is already under stress, when the natural resources and the agriculture industry are in deep difficulty in my province and neighbouring provinces, this is just one load too many for most of them. They wonder why the broad reach is being reinstated.

Among Canadian businesses, increased regulatory uncertainty following the passage of Bill C-68 was raised as a significant concern. Canadian energy producers have raised concerns that artificial waterbodies such as industrial cooling ponds, tailing ponds or intake canals could be deemed fish habitats. Other concerns were raised regarding costly changes which may be required in order to bring existing hydropower facilities into compliance with the amended act.

Bill C-68 makes further amendments to the Fisheries Act to put into effect measures respecting the management of major fish stocks. In order to respond to concerns raised regarding the management of fisheries, we need to ensure that all those affected understand these changes.

I have listened closely to Senator Cormier, who has covered fish management, and I will not tread on the same ground. He has raised the very real issues of fish management and the consequences of acting on Bill C-68 in its current form.

There are other questions beyond the powers I have talked about, but a worrisome one is the sweeping powers for the Minister of Fisheries and Oceans. As I stated earlier in my remarks, these powers may be necessary to respond to unpredictable crises when there is a need for the minister to act. However, there is also a need to know in advance how these powers will be exercised. If these powers are necessary, we should know why and how they will be managed. Instead, much is left to be determined by regulations that have yet to be developed or through consultations yet to be held.

Senators, yes, this is an issue I continue to raise. It appears that bills introduced by this government rely less and less on content and more heavily on ministerial discretion and regulations. As a result, our involvement in shaping legislation as parliamentarians and the involvement of concerned Canadian citizens is hindered.

We are being asked to scrutinize and adopt legislation without a comprehensive understanding of its potential outcomes. I note there are provisions related to the rights of Indigenous peoples and consultation contained within Bill C-68, and I would thank the sponsor senator for bringing up many of the issues around consultation. Again, I will not go into them because I think Senator Christmas has adequately pointed out the difficulties that may arise. He has also pointed out that some consultations were taken, but the real consultations have yet to be held.

For example, Bill C-68 creates a new requirement for the Minister of Fisheries and Oceans to consider any adverse effects that his decision may have on the rights of Indigenous peoples, recognized and affirmed by section 35 of the Constitution Act, 1982.

I note these concerns raised by Senator Christmas with respect to the details and the applications of these provisions. I sat for many years on the Legal and Constitutional Affairs Committee when we grappled with a clause such as this. It does not, in fact, ensure the rights of Aboriginal people. It simply affirms that they are there. They are not described and they are yet to be known, particularly with respect to this bill. We are now talking decades, not months or years.

Once again, it remains unclear how these provisions affecting Aboriginal rights will be implemented. It is yet to be determined. The committee studying the bill must look closely to ensure the needs, concerns and legal rights of Aboriginal people are carried through with the implementation of Bill C-68.

Finally, I would like to make a few comments regarding competitiveness. In his second reading speech, Senator Harder stated:

. . . the overall goal of Bill C-68 is to balance environmental and economic considerations, while maintaining the public’s trust.

Given the concerns raised by businesses, industry groups and Aboriginal peoples, I question whether the legislation in its current form will achieve this balance.

Industry representatives have cautioned that the increased regulatory burden created by Bill C-68 could slow down approval processes and discourage investors from choosing Canadian projects. Similar concerns have been raised regarding the lack of clarity surrounding the designated project’s mechanism included in Bill C-68.

Enbridge raised the following questions in a brief submitted to the Standing Committee of Fisheries and Oceans in the other place:

What would the criteria and thresholds be for ’designated projects’ under the Act?

Is there any relation between the designated projects list created pursuant to regulations under the Fisheries Act and the one created pursuant to regulations under the Impact Assessment Act?

Similarly, the Quebec Business Council on the Environment raised the following question:

Will the authorization issued for a designated project include day-to-day activities subsequent to the construction?

The Act already grants powers to this effect in that the minister can designate which works, undertakings or activities will be associated with a designated project.

To gain greater clarity, industry representatives have called for an opportunity to review the regulations related to designated projects.

A key issue for the committee’s consideration will be whether the bill needlessly adds additional layers of bureaucracy that could deter investment and economic growth from Canada, while not increasing the protection of fish and their habitat. It is critical that the Senate hold full hearings to answer the questions and concerns raised by those affected.

The key question again revolves around finding the correct balance, as has been noted in this chamber, to protect fish and their habitats without unduly infringing on farmers, businesses, Aboriginal rights and others.

I am encouraged that Senator Harder in his speech indicated a willingness of the government to improve the bill. In particular, I agree with Senator Harder that all steps should be taken to reduce any bureaucratic and cumbersome process for regulatory approval. However, there are many substantive technical issues with respect to Bill C-68 that need to be dealt with and appear yet to be developed.

I am left with the difficulty that so much identified in Bill C-68 is dependent on future consultations, administrative actions and ministerial discretion and regulations yet to be developed.

The committee, no doubt, will have to look at all these crucial issues raised in Bill C-68, but go further to look at the implementation to ensure that we are not burdensome to Canadians at this very fragile economic moment and a very fragile moment for the fish. Thank you.