FOPO Committee Report

CONSERVATIVE DISSENTING REPORT: REVIEW OF CHANGES MADE IN 2012 TO THE FISHERIES ACT: ENHANCING THE PROTECTION OF FISH AND FISH HABITAT AND THE MANAGEMENT OF CANADIAN FISHERIES

It was agreed on September 19^th, 2016, that the Standing Committee on Fisheries and Oceans(the committee), as directed by and through correspondence (dated June 29, 2016) from the Minister of Fisheries, Oceans and the Canadian Coast Guard & the Minister of Transport, review and study the scope of the application of the Fisheries Act, and specifically the serious harm to fish prohibition: how the prohibition is implemented to protect fish and fish habitat; the capacity of Fisheries and Oceans Canada to deliver on fish and fish habitat protection through project review, monitoring, and enforcement; the definitions of serious harm to fish and commercial, recreational, and Aboriginal fisheries; the use of regulatory authorities under the Fisheries Act; and other related provisions of the act, and provide its recommendations in a report to the House, no later than Tuesday, February 28^th, 2017.

The Conservative Party of Canada accepts the majority of the Standing Committee on Fisheries and Oceans recommendations on the review of changes made in 2012 to the Fisheries Act, but there is a significant concern that a direct return to the prior definition of harmful alteration or disruption, or the destruction, of fish habitat (HADD), may result in the same problems that precipitated the need for changes to the Act in 2012.

This concern is based largely on Recommendation 1, which states “That Section 35(1) of the Fisheries Act return to its wording as of 29 June 2012 which reads: ‘No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction of fish habitat (HADD).’ Remove the concept of “serious harm” to fish from the Act.”

In 2012, the Government of Canada undertook a rigorous regime of review and revisions to the Fisheries Act. This review was commenced for a number of reasons primarily; that the broad scope of the definition of fish habitat included entire watersheds, and extended the reach of the federal government into watershed and land-use planning in which the Department of Fisheries, Oceans and the Canadian Coast Guard (DFO) did not have expertise. Second, there was a lack of discretion for what is “important” fish habitat as it relates to fish productivity, and what is “less important”. This led to difficulties in assessing an appropriate level of regulatory effort that was proportional to the actual “importance”. Further, the lack of knowledge regarding fish populations allowed for all waterbodies to be considered as fish habitat until proven otherwise. Prior to the 2012 changes, the Act also duplicated existing provincial approval processes, adding unnecessary regulatory burden.

The pre-2012 definition of HADD, as set out in the Act was cumbersome, difficult to enforce, vague, and negatively impacted natural resource development. In addition to hindering economic development and delivering little in terms of fisheries enforcement, reverting back to the pre-2012 definition of HADD as outlined in Recommendation 1 would directly contradict Recommendation 3, which states that “Any revision of the Fisheries Act should review and refine the previous definition of HADD due to the previous definition’s vulnerability to being applied in an inconsistent manner and the limiting effect it had on government agencies in their management of fisheries and habitats in the interest of fish productivity.”

The Conservative Party is disappointed with the Committee’s failure to reach a consensus on a clear recommendation for the definition, revision or reinstatement of HADD, in addition to the confusion created by including contradictory recommendations numbered 1 and 3 in the final report.

The Act is intended to allow for a framework to ensure sustainable development and expansion of fisheries production across the country. Prior to drafting any legislative changes, and given the contradictory nature of Recommendations 1 and 3, further consultations should take place to ensure that language in the Act is not made so vague as to allow it to be used as a means to prevent development that is unrelated to fisheries that do not sustain Canada’s commercial, recreational and Indigenous fisheries.

Clearly Stated Purpose

Multiple witnesses testified that the Act would be improved by the addition of a clearly stated purpose. Although the testimony is reflected in the section titled “Modernizing the Fisheries Act” of the report, there is no correlating recommendation addressing this issue.

The World Wildlife Fund-Canada said that, “First, unlike other important environmental acts such as the Canadian Environmental Protection Act, the Fisheries Act has no preamble. By including a preamble, we can ensure fundamental guiding principles to the Act are included[1].”

This comment was reiterated by Oceans North Canada, who stated “The Act no longer has a general statement of objectives or purposes. Neither does it have a preamble to offer a statement of the shared premises on which the Act is based. We have already referred to the preamble to the Oceans Act. The Species at Risk Act contains both an extensive preamble and a short and succinct statement of purposes. While we acknowledge that it will be more difficult to draft a statement of purpose for the Fisheries Act, we think it is worth the effort, because a statement of purpose serves to highlight the important normative goals that [the] Act is aiming to achieve. If an objectives or purposes section seems beyond the remit of the committee, the committee, should at least consider adopting a preamble that sets out the shared premises on which the act is based[2].

As such, the Conservative Party would like a clearly defined purpose reflected in any future legislation dealing with the Act. Additionally, the Conservative Party would recommend that a widely representative advisory committee including, but not limited to, industry groups, project proponents, agricultural groups, municipal government representatives and commercial, recreational and Indigenous fisheries representatives be created in order to provide ongoing recommendations regarding the administration and enforcement of the Fisheries Act. An advisory committee of this nature would provide advice to the DFO on conservation mechanisms and protection of fish and fish habitat over the long-term.

Enforcement Impacts:

Under the previous Act, no distinction was drawn between the vital waterways, lakes and rivers that support Canada’s fisheries and bodies of water that may not support fish populations. While Recommendation 8 does make mention of special conditions for farming operations and municipal infrastructure, the Conservative Party recognizes the importance of these measures, and would like to see them included in any future legislative changes. It is also pertinent to note that a return to the pre-2012 definition of HADD would unduly target and create hardships for agricultural and rural communities.

As indicated by Fawn Jackson of the Canadian Cattlemen’s Association, many cattle producers found [pre-2012] HADD authorizations to be long and administratively burdensome. The Canadian Federation of Agriculture agreed, stating that “lengthy bureaucratic applications for permitting and authorizations [and the 2012 changes] drastically improved the timeliness and cost of conducting regular maintenance and improvement activities to their farms[3].”

Margot Venton, Staff Lawyer and Director of Marine Programs for Ecojustice Canada said the following, “…We were very clear that we don’t propose reverting to the HADD prohibition…I would agree with you that there are huge problems with inconsistencies under the previous HADD regime, in part because of the very broad discretion under that section 35(2) authorization power. It wasn’t guided by any regulatory provisions[4].”

The Conservative Party is also concerned that a return to the pre-2012 definition of HADD will shift focus away from ongoing productivity of Canada’s commercial, recreational and Indigenous fisheries. This is in line with previous Department of Fisheries and Oceans policy, outlined in a 1986 policy documents on fish habitat stating “the policy applies to those habitats directly or indirectly supporting those fish stocks or populations that sustain commercial, recreation or [Indigenous] fishing activities of benefit to Canadians. In addition, Fisheries and Oceans recognizes its responsibility to protect and increase fish stocks and their habitats that have either a demonstrated potential themselves to sustain fishing activities, or a demonstrated ecological support function for the fisheries resources. In accordance with this philosophy, the policy will not necessarily be applied to all places where fish are found in Canada, but it will be applied as required in support of fisheries resource conservation[5].” 

Any legislative changes should take into consideration this longstanding policy, and not shift away from the fact that policy must focus on fish stocks or populations that sustain or could sustain commercial, recreational or Indigenous fishing activities that are of benefit to Canadians.

Impact on Economic Growth:

In line with witness testimony, the Conservative Party is concerned that a return to the vague language of the pre-2012 definition of HADD will be utilized as a means for project opponents to prevent much needed development projects from moving forward, despite having already gone through the regulatory process. Under the previous definition, almost all areas of the country could be considered fish habitat, and it can therefore be argued that any project may result in the harmful alteration or disruption, or destruction, of fish habitat.

Zo Ann Morten of the Streamkeepers Federation had this to say when testifying before the committee, “It depends on what the function of the water was prior to man taking account. If it’s a dug-out, it’s not attached to anything, and it’s just full of water, of course that wouldn’t be anything to do with the Fisheries Act. But if you’ve actually channelled a functioning stream and turned it into an irrigation ditch or a drainage ditch, that would of course need to be covered under the Fisheries Act. Think of a man-made end of things as well. I’d have to say “person-made,” because I actually made a fish-bearing stream, and yes, I would like it to have the protection of the Fisheries Act. We changed a leachate ditch in the District of North Vancouver from a drainage ditch that took the leachate to Lynn Creek to a fish-bearing stream, and I would like to have that under protection. That was the intent of it. Moreover, Recommendation 20 in the report calls for a Public Registry of authorizations for projects and this could be used by project opponents to undertake acts in opposition to development projects. Any changes to the Act must ensure that such a registry does not pose a threat to the safety, security or privacy of project proponents, contractors, employees and / or work sites[6].”

Chris Bloomer, President and CEO of the Canadian Energy Pipeline Association testified before the committee, stating “The concerns expressed by various groups regarding 2012 changes to the Act tend to focus on the fact that fewer authorizations are required under the revised legislation. While fewer authorizations are required, the effort that the pipeline companies must invest to determine whether to apply for an authorization under the Fisheries Act has not changed. This is because the Act still requires the protection of commercial, recreational, and [Indigenous] fisheries. The practical measures that pipeline companies used before the 2012 definition changes under the Act are the very same measures that have continued to be used after 2012 to avoid serious harm to fish. The changes in 2012 also allowed for project proponents to engage a qualified environmental professional to prepare a self-assessment for a project and identify appropriate mitigation methods to address any potential impacts. This has been a positive change, because it has allowed professionals with knowledge and expertise of aquatic habitat, pipeline construction, and operations to apply best practices to meet regulatory requirements[7].”

Contrary to the Minister of Fisheries, Oceans and the Canadian Coast Guard’s correspondence to the committee dated June 29^th, 2016 whereby the Minister directed the committee to undertake a study investigating the 2012 changes to the Fisheries Act and any resulting loss of protections, witnesses who appeared before the committee were unable to provide any scientific or legal proof of harm resulting from asserted lost protections under the Act as a result of 2012 changes. This fact is noted in paragraph 33 of the committee report, which states “The preceding paragraphs in this section indicate the differing testimony heard with no scientific or legal evidence provided to show whether the 2012 changes broadened or reduced the circumstances under with section 35 applies.”

In some cases, witnesses like the Mining Association of Canada expressed that the 2012 changes to the Act actually increased habitat protections. They said, “… the 2012 changes have in practice broadened the circumstances in which the section 35 prohibitions apply and increased the circumstances in which an authorization and offsets are required.”

The CFA also added that, “…It is the CFA’s position that a complete revert to reinstate all provisions of the Fisheries Act  as they were would be unproductive [and] re-establish the same problems for farmers, and… provide little improvement [in conservation][8].”

Dan Gibson of the Canadian Hydropower Association (CHA) provided testimony expressing that, “we have experienced more regulatory interaction with DFO around Fisheries Act authorizations. Requests for reviews are the big ones, so in this feel out process, in the first few years of the implementation, we’ve had 30 Fisheries Act requests for reviews. We are getting the same outcomes that we would have had over the four to six months previous to 2012, but we’re seeing those same outcomes in about four to six weeks now, the same levels of protection, the same levels of security[9].”

Given the numerous witnesses and lengthy testimony affirming that there has been no proof of harm as a result of changes to the 2012 Act, the Conservative Party believes that a return to the pre-2012 definition of HADD would result in unnecessary delays for projects essential to Canada’s economic development.

Timelines

Undertaking a study of this nature requires flexible timelines so all participants have a chance to voice their opinions. The Conservative Party repeatedly sought extensions on the timeline mandated by the Minister of Fisheries, Oceans and the Canadian Coast Guard, citing the gravity and breadth of the work requested.

Unfortunately, these requests were voted down.

The First Nations Fisheries Council of BC wrote to the committee, expressing that the “timelines for this process are no longer realistic given the delay in administrative roll-out of funding agreements and the current lack of key information from government that First Nations require in order to meaningfully participate in this review[10].”

Similar concerns were echoed by the Lower Fraser Fisheries Alliance in a letter dated November 3^rd, 2016, stating that timelines were “…inadequate, unacceptable, and disrespectful to First Nations and demonstrates the lack of integrity in the federal review process[11].”

These are just a few examples of those who requested the committee take more time to study changes made to the Act, in addition to testimony heard by the committee. The Conservative Party is disappointed that the Liberal majority on the committee did not adhere to these requests.

Public Consultations

An October 18, 2016 news release from Minister LeBlanc's office made the commitment that public input collected in the Government's public consultation on the Fisheries Act would be provided to the Committee and that the “...Committee will consider all feedback as part of its recommendations for changes to the Fisheries Act.”

This commitment was not coordinated with the Committee nor was the Committee notified of the commitment and this was confirmed by Minister LeBlanc when he appeared at the Committee on November 2, 2016.

A similar commitment was made, unbeknownst to the Committee, by the Government online when it said “Fisheries and Oceans Canada and Transport Canada representatives will also be available to consult directly with Indigenous groups, to seek their views to inform the Committees' work.” No such views were delivered to the Committee by DFO personnel. 

In the end, many consultation submissions were not delivered to Members of the Committee in time to be considered for the Committee's report and recommendations therein when consideration of the draft report started on February 2, 2017.

CONCLUSION

The Conservative Party believes that there will be significant implications across Canada should the Government choose to return to the pre-2012 definition of HADD. The contradictory nature of Recommendation 1 and Recommendation 3 will serve only to create confusion for DFO officials, and does not accurately reflect witness testimony heard by the committee. Any legislative ‘fixes’ should take into consideration the broader effects that changes to the Act will have on the Canadian economy, resource development, agricultural, farming and rural communities, in addition to commercial, recreational and Indigenous fisheries.

As referenced in this document, it is the hope of the Conservative Party that the Government will note the testimony of numerous witnesses who indicated that there has been no proof of harm resulting from asserted lost protections under the Act. The goal of the Act is, and should remain to protect and enhance Canada’s fish stocks, while avoiding any unnecessary negative economic impacts on industries that rely on Canadian land and water for success