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Fisheries Act - Third Reading

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.