DISSENTING OPINION FROM THE NEW DEMOCRATIC PARTY
The New Democratic Party of Canada respectfully submits the
following dissenting opinion to the Standing Committee on Fisheries and Oceans’
Review of Changes made in 2012 to the Fisheries Act and the Management of
Canadian Fisheries.
It is our opinion that the restoration of HADD (Harmful
Alteration, Disruption & Destruction) should have been implemented
immediately following the last Federal Election. Once habitat protections were
restored to the Act, a thorough review and consultation to further improve and
modernize the Fisheries Act could have been undertaken.
While we respect the hard work of the Committee, we believe that
there was insufficient time allotted to complete a thorough study. This abbreviated
timeline prevented some written evidence to be translated and received by
Committee members in a timely matter. We think this is an unfortunate
circumstance that could have been easily remedied by allotting the proper
amount of time necessary for a thorough review.
The Committee heard from a number of witnesses in a variety
of formats but many Canadians and First Nations were excluded from presenting
testimony in person. The Committee did not travel to costal and freshwater
communities and as a result did not fully engage Canadians in this important
process.
It was clear from the beginning of this study that the letter
to the Committee from the Fisheries Minister combined with a public press release
and website launch by the Department of Fisheries and Oceans announcing consultations
on the review of the Fisheries Act caused confusion amongst Committee members
and the public as to the perceived scope of the study. This confusion remained
evident throughout the Review.
It is our opinion that the final version of the report should
include a reference to the huge outcry by those opposed to the 2012 changes to
the Fisheries Act that removed the harmful alteration, disruption or
destruction of fish habitat (HADD). Specifically, four former Federal
Fisheries Ministers wrote an open letter objecting to the 2012 changes and more
than 700 scientists wrote a letter urging the government to keep habitat in the
Act. Thousands of First Nations, environmental organizations and concerned
citizens also spoke out against these changes. This is significant and should
be mentioned in the report.
Finally, the report should reference the only court case that
considered the 2012 Section 35 amendment. The Federal Court said this provision removed the protection of fish habitat. We believe this judicial
interpretation from judges, the ultimate legal experts, on the meaning of the
2012 amendments and its reference to Aboriginal Rights are significant and
should be included in the report. The New Democratic Party of Canada supports
evidence provided to the committee by West Coast Environmental Law in their
written brief entitled: Habitat 2.0.
It says: It appears that the sole case commenting on this
provision is Courtoreille v. Canada 36, the Mikisew Cree First Nation’s
successful judicial review action challenging the inadequate consultation with
First Nations on Bill C-38 which amended the Fisheries Act, among other
matters, and substantially affected Aboriginal rights. The Federal Court pronounced
on the Act as follows: [91] Hence the amendments to the Fisheries Act removed
the protection to fish habitat from section 35(1) of that Act. The Applicant
submitted that this amendment shifted the focus from fish habitat protection to
fisheries protection which offers substantially less protection to fish habitat
and the term “serious harm” permits the disruption and non-permanent alteration
of habitat. [101] ... In addition, for the reasons the Applicant expressed
above, the amendment to s. 35(1) of the Fisheries Act clearly increases the
risk of harm to fish. These are matters in respect of which notice should have
been given to the Misikew together with a reasonable opportunity to make
submissions.
Based on evidence provided to the Committee, the New
Democratic Party of Canada believes the following recommendations should be included
in the Report, and ultimately incorporated into the Fisheries Act, in order to
fully modernize the Act:
- Purpose Statement
& Preamble – Insert a General
statement of objectives or purposes of the Fisheries Act and a preamble.
Similar to the Oceans Act or The Species at Risk Act, both have an extensive
preamble and short and succinct statement of purposes. This should include: ecosystem management, a precautionary
approach, and science-based management.
- Amended s.35. (1) that would
prohibit any “work, undertaking or activity that results in harmful alteration
or disruption, or the destruction of fish habitat.” Restore the former HADD and
strengthen protection by including the word “activity.” Remove the concept of
‘serious harm to fish” from the Act, and reinstate the prohibition on HADD.
- Restore EnvironmentalAssessment triggers:
Re-establish Section
32, 35 and 36 authorizations as EA triggers
- Prioritize the
Protection of Fish and Fish Habitat
- Renew
DFO’s commitment to “No Net Loss” and “Net Gain”, with a renewed focus, effort
and resources on enhancement of fish habitat;
- Meaningfully
resource the monitoring, compliance and enforcement components of DFO, and
expand such activities through agreements and collaboration with First Nations;
- Address
known regulatory gaps promptly to ensure that DFO, in collaboration with First
Nations, are capable of responding to all activities that are harmful to fish
or fish habitat and are able to actually determine effects (e.g. ongoing
collection of baseline data that allows determination of changes due to
activities);
- DFO
must take the lead on both the protection of habitat and the restoration of
habitat;
- Remove
the promotion of salmon farming as an industry and farmed salmon as a product
from the DFO’s mandate;
- Protect
fish habitat from key Activities that can damage habitat, such as
destructive fishing practices and cumulative effects of multiple activities;
- Mandate rebuilding fish stocks when they have fallen below healthy
levels;
- Mandate a report annually to Parliament on the status of Canada’s
fish stocks and on management decisions made for stocks in the critical zone;
- Emphasize principles
of sustainability
- Adopt
key sustainability principles;
- Protect
ecological integrity of fish habitat;
- Respect
Indigenous laws regarding sustainability;
- Take
an ecosystem approach to protection and restoration of fish habitats so that
the entire food web is preserved for fish;
- Protect
fish habitat from key threats, such as a changing climate;
- Protect
key areas of fish habitat activities.
- Advance the
“Nation-to-Nation” Relationship with First Nations
- Recognition
of Indigenous rights in the Act;
- Move
beyond “delegation” to work with First Nations as partners in fisheries
management;
- Recognize
First Nations right to all forms of commercial trade/barter opportunities;
- Include
guiding principles of reconciliation that allow for and promote consent-based
shared decision-making processes (e.g. co-management/co-governance) with First
Nations and that have the flexibility to reconcile pre-existing sovereignty and
First Nations’ jurisdictional authority;
- Expand
factors considered in decision-making to include principles of sustainability
(including ecological integrity and cultural sustainability), Indigenous law,
protection of inherent Aboriginal rights, and the principles found in the United
Nations Declaration of the Rights of Indigenous Peoples;
- Ensure
meaningful consultation, accommodation and a consent-seeking process with First
Nations to build new regulations;
- Reduce discretionary
power and expand scope of Ministerial Consideration
- Reduce
Ministerial discretion through establishment of shared decision-making;
- Broaden
the Minister’s mandate to consider long-term conservation and protection of
fish and fish habitat when evaluating projects that contravene the Fisheries
Act;
- Limit
the discretionary nature of the Ministerial Authorization and ensure that the
remaining discretion is not structured in a way that infringes Aboriginal
rights.
- Increase on the ground resources to
enforce the Fisheries Act
- Get more boots on
the ground by recruiting and retaining habitat monitors, including Fishery
officers who are dedicated to habitat protection and who have the power to make
orders or charge people with non-compliance on site (such as with the
Inspectors Direction).
- Ensure habitat
protection staff are adequately trained and resourced with long-term funding.
Empower field staff to do their job to protect fish and fish habitat.
- General Regulation Changes
- The
Minister, in the exercise of their discretionary power over licencing, may
specify conditions of licence respecting and in support of social and economic
objectives, in addition to the conservation objectives currently identified.
- Regulatory
provisions should be promulgated, either in the Fisheries General Regulations
or a separate instrument, setting out the Owner-Operator and Fleet-Separation
policies in regulatory form, and specifying criteria for application of these
measures to particular fisheries.
- Regulatory
change to state that the legal interest of the holder of a fishing licence and
the related beneficial interest of the fishing licence are inseparable.