FOPO Committee Meeting

    I call this meeting to order.

    Welcome to meeting number 131 of the House of Commons Standing Committee on Fisheries and Oceans. This meeting is taking place in a hybrid format pursuant to the Standing Orders.

    Before we proceed, I would like to make a few comments for the benefit of witnesses and members. Please wait until I recognize you by name before speaking. Those in the room can use the earpiece and select the desired channel. Please address all comments through the chair.

    Pursuant to Standing Order 108(2) and the motion adopted on Thursday, February 8, 2024, the committee is resuming its review of the Fisheries Act.

    I want to welcome our first panel. We have from the First Nations Fisheries Council of British Columbia, Stu Barnes, executive director. From the First Nation Wild Salmon Alliance, we have Robert “Galagame'” Chamberlin, chairman. Finally, from the Nunavut Fisheries Association, we have Mr. Derek Butler, executive director.

    Thank you for taking the time to appear here today. You will each have five minutes or less for your opening statement.

    Mr. Barnes, you have the floor.

    Thank you. I wasn't expecting to be so quick off the bat.

    Good afternoon, Mr. Chair and committee members. Thank you for allowing me the opportunity to present before the committee today.

    I'm the executive director of the First Nations Fisheries Council of B.C., which was established in 2008. The FNFC has the mandate of implementing the B.C. first nations fisheries action plan and working with first nations to foster stewardship and engagement. We undertake the convening role to ensure a cohesive first nations voice on Pacific fisheries and aquatic resources. This mandate was endorsed by resolution of the B.C. Assembly of First Nations, the Union of British Columbia Indian Chiefs and the First Nations Summit.

    The FNFC's approach is to convene first nations, listen to their priorities and perspectives, and help clearly articulate their shared messaging to decision-makers. These structures and processes support coherent messaging to government and align to the federal government's approach to implementing the requirements of the UNDRIP action plan.

     On August 1 of this year, after a detailed assessment of the existing Fisheries Act, the FNFC submitted for the committee's review their in-depth assessment of how best to modernize the Fisheries Act. We examined the act with particular regard to how best to align it with Canada's legal obligations toward first nations, as enshrined in section 35 of Canada's Constitution and as recently elaborated upon in Canada's UNDRIP Act and Canada's UNDA action plan.

    Over the next few minutes, I would like to touch upon our key points, as documented in our submission to the committee.

    First, it is of utmost importance that the review of the Fisheries Act be broadened to include modernizing the act to be consistent with UNDA. The federal government has made commitments to modernize federal laws to be consistent with UNDA, and FOPO should take this opportunity to incorporate these changes. FNFC's submission provides examples and recommendations where sections need to be changed to be consistent with UNDA.

    To aid the committee in its work, FNFC is developing a recommendations report, to be completed in March 2025, which will be specific to modernizing fisheries-related laws and regulations consistent with UNDRIP. We intend to share our report with members of the committee once it is completed.

    Second, it is important to recognize that first nations do not derive their rights solely from Crown legislation or court rulings. First nations have indigenous law that predates western contact. First nations use and have always used indigenous law to govern themselves. A crucial element of reconciling Crown and first nations relationships is the mutual recognition that the respective parties have different governing systems and laws. Thus, the Fisheries Act must recognize indigenous law as a contemporary legal framework in Canada and provide for the implementation of legal pluralism.

    Third, the Fisheries Act should be updated to broaden the purposes of entering into agreements with first nations and to uphold agreements signed with first nations as a way to recognize and respect the jurisdiction and authority of nations to share responsibility in the management of fish and fisheries. This is consistent with current and emerging forms of collaborative management agreements and reconciliation framework agreements that relate to fisheries.

    Fourth, the act should address the lack of transparency and accountability in the minister's decision-making and should mandate the explicit identification of the factors the minister has considered when exercising discretion. Transparency is crucial to helping Canada's indigenous partners understand decision-making under the act, especially in the context of protecting fish, fish habitat and sustainable fisheries, which are integral to first nations cultures and societies.

    I thank you for your attention and time.

    Thank you.

    We now go to Mr. Chamberlin for five minutes or less.

     [Witness spoke in Kwak'wala]

    [English]

     My traditional name is Galagame'. I'm from the Kwikwasut'inuxw Haxwa'mis people of the Musgamagw Dzawada'enuxw. I asked you to hear my words, as I'm speaking from my heart, on behalf of many first nations in regard to salmon. It is a food source, a basis of our culture, traditions and language, and it is in dire straits.

    On the topic so far about the Fisheries Act, I'm always mindful of the commitments of each of your parties and of government as a whole in terms of reconciliation, the implementation of the UN Declaration on the Rights of Indigenous Peoples and charting a meaningful path forward with first nations. It is a very complicated and complex path, indeed, but where does it hit the road? I believe that for the government, it needs to start with legislation.

    I need to impress upon you the opportunity that salmon and fisheries represent in accomplishing reconciliation and food security for first nations across British Columbia, and how this is beneficial to the environment and the massive economy that is wild salmon. By enacting a path forward that rebuilds and looks after salmon in British Columbia, you can meaningfully address reconciliation at a province-wide scale in a way that benefits all Canadians and the environment. You can accomplish this and begin the path of reconciliation the Crown has made, doing so through revisions to the Fisheries Act to reflect the realities that my brother Stu just spoke of: the legal pluralism in Canada and the inherent rights and title of first nations people in British Columbia.

    We have witnessed the government making small steps in programs and services. These are useful and beneficial, but these are not fundamental reconciliation steps; it is still a Crown-controlled initiative. What happened along the way is that first nations embraced the opportunity and developed various capacities, with technical skills and understanding of the management of fisheries. There are many mature organizations in British Columbia that have the ability to manage, so I ask you, what is the destination of this capacity development, then? Is it simply to sit with government and argue, or are we really going to hit the road with reconciliation and empower first nations through legislation to have the appropriate management that reflects the legal pluralism of this country?

    First nations who reside in their traditional territories, who have their hands in the river and the ocean and know what's going on intimately, can inform management rather than somebody at 200 Kent Street. Let's be serious: That's where the solutions lie. This can happen by encouraging each of you to put forward recommendations wherein we see a meaningful inclusion of this authority, inherent in nature, in the mechanism called the Fisheries Act, which DFO cannot then reinterpret at its leisure through policy. It becomes a “thou shall”.

    This is a significant path that I bring forward because I don't think that Canadians by and large understand what reconciliation means. They will fear it if they don't know what it means. If we take the step that I just described, we could enact reconciliation, embrace the UN declaration, enact Supreme Court law and breathe life into subsection 35(1), which is going to benefit all Canadians in a real and tangible way.

    This is the vision I see as critical for the relationship between the Crown and first nations in British Columbia. Having a central government is one thing. Having a minister in Ottawa who doesn't have any connection to the territories we are representing and speaking to is, in our language, k̓i's na̱ḵa—it's not right.

    I encourage you to explore how, within the Fisheries Act, you create the appropriate space to embrace all that I've just described as a legal imperative that's incumbent upon this government to embrace and enact. That would then see us move forward together, as envisioned in this concept of reconciliation. What I've found is that, when we have Supreme Court law—and I'm confident that every one of you understands where that sits in the function of democracy in Canada—conservation is first, and second to that are first nations. For your purposes as the Crown, call it FSC—food, social and ceremonial. It's very nice of you to come up with a term and I hope you understand it—I'm just kidding.

    For us, it's much more than that. It's the foundation of our culture, our traditions, our attachments to our lands and our language. These are the things the residential schools targeted to destroy. What I say—and I think about the broader commitments of all parties in the Truth and Reconciliation Commission calls to action—is this: Why not invest in salmon to rebuild culture, language, traditions and attachment to lands? It's a tangible exercise, and along the way we can have a reconciliation and food security that benefits all Canadians.

    This is the vision that I have, and I know the work—

    I have to cut you off there, Mr. Chamberlin. You've gone almost two minutes over the opening statement. Hopefully anything you didn't get to say will come out in questioning.

    We'll now go to Mr. Butler for five minutes or less.

     Thank you, Mr. Chair.

    Let me start by thanking the committee for this invitation to appear before you this afternoon for your study surrounding the Fisheries Act.

     Before I make two key points, let me briefly introduce myself and the organization and people I represent. My name is Derek Butler. As you know, I'm the executive director of the Nunavut Fisheries Association, or NFA. I've worked in the industry trade association side of the business for 20-plus years now, before which I worked in international political development with a Washington-based NGO. I started my career here in Ottawa with Foreign Affairs and, as they say, a stint on the Hill.

     NFA is a typical or standard industry trade association, representing four companies that participate in the fisheries in Nunavut. The NFA member companies are the Arctic Fishery Alliance, Baffin Fisheries, Pangnirtung Fisheries/Cumberland Sound Fisheries Partnership, and Qikiqtaaluk Corporation, the birthright corporation. All companies are owned by the hunter and trapper organizations, the HTOs, communities and/or the Inuit of the Qikiqtani region of Nunavut. In short, these are indigenous-owned companies that participate in fisheries to the benefit of Nunavut.

     NFA's role is to advocate to provide a unified voice for the commercial fishing industry in the territory to stakeholders, to the public at large and to the territorial and federal governments. We work closely with DFO, industry partners and our research partners.

    On that last note, NFA supports a suite of fisheries and ecosystem science and research activities with various stakeholders in an annual research program, all in support of sustainable fisheries in Nunavut. We work on bottom impacts, bycatch surveys, assessments and more. We work with universities, research institutes and independent researchers. We collaborate with other industry participants. We also receive support from both the territorial Government of Nunavut as well as the federal government through CanNor, for which we are very appreciative.

     I have two main points today as an association. The first is that DFO needs to fulfill the core mandate responsibilities of the department. DFO needs to ensure that they have the resources so we have the resources and so that Canada continues to maintain sustainable fisheries, which contribute so much to our livelihoods and to world-class healthy protein. You've heard the message before that the core mandate is imperative.

     At the heights of COVID, there was some talk that the fishery wouldn't be able to run like a lot of business sectors, with concerns around the health and safety of our workplaces and our workers. I was confident, in my previous role, that we could adopt the best practices, keep our workers safe and provide world-class healthy protein. If the world was going to pack potatoes and bananas for us, we should pack fish for them. It's just food.

     We did. We rose to the challenge. We were resilient, and we gave the world more healthy protein. We need to keep doing that, and we need to make sure DFO does the science and core mandate work in support of maintaining fisheries.

     That's my main message today. We're not seeking legislative change in this review. We underscore what matters most: good science in support of sustainable fisheries. The world is getting more complex. DFO's mandate is getting more complex. I understand that, but you still need the foundation for the house to be strong, with core science and a core mandate in support of prosperous fisheries.

     My second and final point relates to the review period of five years. We may say more in our future submission, I should note. As you'll appreciate better than anyone, Parliament maintains its prerogatives to change or amend the act with or without a prescribed review period. That's understood. I simply wanted to offer one additional perspective here today on that five-year review period.

    To state the obvious, a review doesn't necessitate change. There can always be cause for change. You can hear the testimony of witnesses, review the submissions and consider and conduct your own analysis, and you might determine that no legislative changes are required. It might be redundant to say that, but it might apply. There are areas—policies, regulations, etc.—that may be appropriate to change as well, but a review does not in and of itself necessitate change. We've gone from an act that saw few changes in Canadian history to a prescribed five-year review, which is one every Parliament. That might be ambitious.

    That's where we are as an association. I'm not here to suggest changes in particular today, but I appreciate the opportunity to address you for this study and to say that we support any renewed commitment we might have on the core mandate in support of commercial fisheries, with good science and with appropriate resources.

    Thanks again to the committee. I look forward to any questions you might have. If I can't answer them today, I could perhaps follow up with the clerk in writing or put something in a submission later on.

     Thank you, Mr. Butler.

    We'll now go to our first round of questioning. I will remind members that it will probably go easier if you identify who you want to answer the question.

    Mr. Arnold, you have six minutes or less.

     Thank you, Mr. Chair.

    I thank all three of you for being here today as we continue this review.

    When the Fisheries Act was amended in 2019 by Bill C-68, the word “laws” was redefined to include “by-laws made by an Indigenous governing body”. This expanded the act's equivalency provision, and it was a significant change. After five years with this new act in place, I think it's time to assess how the changes have played out.

    Mr. Chamberlin or Mr. Barnes, how has DFO rolled out these legislative changes to first nations and indigenous governing bodies in B.C.?

     As far as I can see, there's no evidence of any of those types of inclusions. This is the first I'm hearing of bylaws being brought up for local communities, so I don't have any examples of how this has landed because it hasn't landed.

    That's my short answer, unless Bob has something else to add.

    When I think of the amendment to the Fisheries Act allowing first nations bylaws to be incorporated into the Fisheries Act, that still does not represent the government-to-government or Crown-to-first nation relationship. It makes our aspirations and bylaws subservient to the Fisheries Act of the Crown. That's a snapshot of that time, I believe, and doesn't reflect the realities of law today and the embracing of the UN Declaration on the Rights of Indigenous Peoples.

    When we start to think about first nation bylaws, just on that train of thought, we see we have a Department of Fisheries and Oceans that is loath to discuss what the word “social” means, even though it's covered off in the Supreme Court. Food, social, ceremonial—they will not give it a definition.

     First nations have views and perspectives of what that means to their nations. There's no cookie cutter for this. What we need is a department that is willing to have substantive and real negotiations with nations to blow that balloon up and bring it to the dance so we can understand and have an agreement about what “social” is. It could very well mean the exercise of the licences that come from indigenous programs like PICFI, NICFI and AICFI, but then there needs to be an appropriate allocation.

    Has the government or the department worked with first nations or indigenous governing bodies to establish consensus or agreement to settle potentially conflicting claims over territories and waters, that you're aware of?

     I believe DFO does not have the authority to remedy what I hear you speak of in terms of overlap. They're there to discuss fisheries. Where they run into difficulties is with the migratory nature of many salmon and other fisheries.

     To be very transparent, I've pushed really hard for years for our tribal council to get an aboriginal aquatic resource and oceans management body. We were unsuccessful and I wonder how many others were unsuccessful. I've become very aware of many first nations that don't want one.

    The DFO has a practice now—and I'm talking about their practice—of only turning to AAROM bodies for direction, so they're making a conscious and systemic exclusion of first nations that are not part of those particular silos. They're actually working to ensure that there is no unity among first nations. They reward ones they have agreements with and they ask others to bear the infringement of their rights based on somebody else's opinion.

    In your opinion, how should consensus be reached if there are two first nations or indigenous governing bodies that have bylaws governing the same fishery?

    I'm mindful of Jody Wilson-Raybould's comments when she was BCAFN regional chief. She often spoke about the work that first nations have to do on their side of the table in their governance and agreements with one another.

    I can tell you, Mr. Arnold, that there are discussions across B.C. going on right now about revisiting an inter-first nations fisheries treaty. They began in the 1980s. We've found some resourcing to facilitate that dialogue across the province so we can start to have discussions and do the work on our side of the table as first nations to have an understanding of our interdependencies with one another about salmon.

     When I see this coming forward, I think it is useful, because then the government can sit down and have a substantive discussion about salmon writ large across the province with first nations at a political level. The misuse of AAROM bodies is securing it down to a technical table.

     My time is very short, so I have one quick question. Should agreements between the Crown and other governing bodies be transparent to first nations people and to the citizens of Canada?

    I believe outcomes need to be told to them. I don't see any benefit in making negotiations and the components reflected in those discussions public. There's no need to discuss and negotiate through media or anything like that, but outcomes need to be understood.

     The good thing that I'm really pleased to report to all of you is the work the First Nation Wild Salmon Alliance does in talking with sport fishermen, the Sport Fishing Institute of British Columbia, commercial fishermen and wilderness tourism operators. We have begun the work of uniting focused salmon economy players in talking about what we need to do to protect salmon and bring it back for everyone's benefit.

    The thing I'm wondering about is, after all the work of organizing what I've just described, how is the government going to respond to that? Will it be meaningfully, or is it going to be another deny, delay and distract exercise?

    Thank you Mr. Arnold.

    We'll now go to Mr. Weiler for six minutes or less.

    Mr. Chair, am I able to respond to that question quickly?

    You can afterwards, but not right now. I'm sorry. The questioner's time is up. He's gone over, so now we'll move on to Mr. Weiler.

    To the witnesses, if there's anything you want to comment on afterwards, you can send it in written form to the committee.

    Mr. Weiler, you have six minutes or less.

    Thank you, Chair.

     I want to thank all of our witnesses for being here in person and for coming a long distance to do that. It's much appreciated.

    Before getting into the substance of the Fisheries Act itself, I'm very interested in the process side.

     Just yesterday, we finished a 10-hour committee meeting to go through clause-by-clause of the first nations clean water legislation. That was the first piece of legislation that was co-developed. A number of things you mentioned really spoke to how central fisheries are—and particularly in B.C., a particular fish—for indigenous people's identity.

    From a process point of view, when we're going through the amendment and perhaps modernization of the act, how do you see the process of co-development playing into that modernization or amendment?

    Maybe I'll start with Mr. Barnes. Then I'll go to Mr. Chamberlin. I would be very curious to hear your thoughts as well.

     On process, what we've done at the water table.... First and foremost, what we need to do is have all first nations aligned and in the same spot. Relationships like mine and Bob's are going to be key for having all the right voices in the right place at the onset. That's always been the key piece: to make sure that tier one, as we call it, is set at the start of the conversation.

     Then you go into a conversation with the government. I call it a “tier two sandwich”, where you do the work with the Government of Canada and with the first nations and then go into the room with the stakeholders, the tier three group. Then you come back and convene with the tier two world to go over what you heard from the stakeholders.

     The set-up is similar to what you would see nowadays with the IHPC, but in that case, we're still sitting on the stakeholders' side of the table. I've always suggested that it would be good for us to set the stage with the government by producing a document and conveying what we've worked on together to the stakeholders, and then convening again to debrief on what we've heard from the stakeholders. We have to start to operate government to government on all these different little types of processes, and the tier two sandwich is how I've coined that.

    I want to pick up on the sandwich comment. Do you know what you call a wish sandwich? It's when you have two pieces of bread and you wish you had some fish.

     This is where we're at when we talk about the true status of salmon in British Columbia. When we talk about tier one, that is where we need to see the investment so first nations are resourced to gather, have discussions and reach an understanding.

     I have great issue with tier two. I participated in 2009-10 with the First Nations Fisheries Council in the tier two exercise. In the discussions, negotiations, proposals and contracts, it was stated that this was not consultation. At the end of that process, everything that I did with the Fisheries Council landed in front of a judge for a judicial review with our nation, and they called it consultation. That is a misuse of the engagement process, and that does not build trust.

     We need to have a venue and the resources. If the Crown has an interest in progress on this, we need to find the resources so first nations can have fulsome, technically informed, political discussions that aren't going to happen in one quarter of the year. It's going to take time and sustained resources to do it. We can then have a measure of unity, politically and technically, to sit down with you and have a substantive discussion. Solely turning to the AAROM bodies to the exclusion of ones that don't have that doesn't work; it just furthers the division.

     Next I want to bring up something that Mr. Chamberlin and Mr. Barnes both mentioned in their introductory remarks. It is the idea of legal pluralism.

     Several years before politics, I practised in aboriginal law. I'm not an expert in indigenous law in any way, shape or form. However, I'm very curious how you see that playing out in practice in the context of the Fisheries Act.

    I know that one of the challenges is that indigenous law predates contact, and sometimes those laws are not actually available in written form. I know there's a big process now to codify a lot of indigenous laws. I'm curious about, from your perspective, what that might look like in practice.

    Maybe I can start with you, Mr. Barnes.

    I think it's going to be different from region to region, so it's not going to be a cheap endeavour. For the Gitxsan, for example, you might be able to aggregate some of it, but each nation is going to have its own way of doing business. I think we missed an opportunity with the guardians program 20 years ago to amalgamate the two ways of thinking.

    The traditional law that guides first nations morals and guides the way they extract resources within their territories is what tells our folks to get out of the water when it's time. When traditional law says that there's not enough fish to sustain their food this year, that's the advice they listen to, not the advice of government. When C and P comes to town and says that we need to stop food fishing, there's a reluctance and a trust miscommunication there that is historical in nature. By providing an opportunity for our people to be involved in decision-making, it is easier for our people to palate those types of things.

    Building off of that, there are opportunities, if you do enable, acknowledge and empower our traditional law, for them to be licence-issuers for whatever catches may happen in their territory. This can lead to shared resource mechanisms. The effort of our people goes up and down because we haven't had opportunities to fish every year, but a lot of us are starting to utilize recreational gear to get into the water for those types of purposes. If we could license up the sector through our nations, it would allow us to have more of a shared management tool in the sector.

    That's one of the ways to do this, but it's going to take bilaterals. Sometimes they can aggregate up, and sometimes they're going to be about individual nations. That would also allow for traditional protocol agreements, which is something Bob spoke to a little with the treaty he mentioned. The treaty he mentioned was spun off a northwest tribal treaty on the Skeena. Through that mechanism, we were able to solve a problem in the Lax Kw'alaams territory, because since western law came into play, our fishermen have started to go down to the coast to harvest. That was a problem for our brothers and sisters in the Lax Kw'alaams territory because that was their territory. When our fishermen would go down there, DFO would take the allocation off their allocation, not ours.

    We set up an MOU with the Gitxsan people, the Wet'suwet'en people, the Gitanyow people and the Lax Kw'alaams people to articulate that we would come down and take 5,000 sockeye this year. That's going to come off our plate, not the Lax Kw'alaams's plate. We were able to interact with each other through this tool and were able to speak to DFO in a cohesive voice. The problem, though, was that we weren't able to be acknowledged and enabled by local C and P because they didn't understand what was going on.

    Those are some of the traditional ways we could start to alleviate some of these overlap conversations.

     Thank you for that.

    We'll now go to Madame Desbiens for six minutes or less.

    Thank you, Mr. Chair.

    Thank you to the witnesses for being here. Not only is their input very informative, but it is also helpful to our study.

    As a Bloc Québécois member, I represent Quebeckers, so I'm going to focus on Quebec's perspective and how we view the problem.

    We, Quebeckers, form a nation, so we are perfectly capable of understanding the concept of a nation. In 2002, we signed a historic agreement with the Cree nation known as the peace of the braves. The agreement between the Quebec and Cree nations recognizes ancestral and modern rights. The 50‑year agreement establishes a specific number of principles governing the future management of the territories in question. As a result, the Quebec and Cree nations adopt an approach based on respect and co-operation in managing major forest lands, for instance.

    I think that's an interesting consideration in this study. I wonder whether the approach could work for fisheries, particularly on the Pacific coast. Would it not be possible to include provisions in the Fisheries Act recognizing the fact that you are distinct nations working with the Canadian nation as equals, or the Canadian government, I should say. I am not so sure I can refer to it as a nation in that case, but that's a debate for another time.

    How could such a principle or agreement be built into the Fisheries Act, so your nations didn't always have to fight for their rights, their seat at the table, their ability to make their own decisions and establish their own standards? Do you think it would be possible to introduce a similar concept, something based on the peace of the braves, the historic agreement we signed in 2002?

    I would like to hear your thoughts on that.

    Thank you for your question. It's been a while since I've spoken in French, so I am going to answer in English, if that's okay.

    The Nunavut Wildlife Management Board, with the co-management that exists, and the wildlife management board in the Nunavik territory are in some part models, perhaps, of that. I'm not too familiar with the paix des braves agreement, but there is a co-management model in place for Nunavut, under the land claims treaty, through the Nunavut Wildlife Management Board. We present to that board about our fisheries allocations and policies. It's the fisheries allocation policy that the board is responsible for. That might be something like you're alluding to with the paix des braves agreement.

    The idea is to have an established, signed and agreed upon arrangement so that you don't always have to revisit, review and reassess everything. The idea is to move forward on that basis as equals. What do you think?

    I apologize. I can't speak in your language. In grade 8, I was asked to leave French class.

    A voice: For other reasons....

    Mr. Robert Chamberlin: It was for other reasons. It was the start of a.... Never mind. That's another story altogether.

    Voices: Oh, oh!

    Mr. Robert Chamberlin: Of course, I'm aware of the pluralism that Quebec has with Canada. I'm also happy to hear that you have reached an agreement with the Cree wherein you recognize their ancestral rights, both historical and present-day.

    I think the key part I picked up that resonated with me very quickly was about respect and collaboration. That is what we're missing in the engagement between DFO on behalf of the Crown and first nations people. It is not about respect. It's about minimization. It's not about respecting Supreme Court law. It's about reinterpreting it through policy. The collaboration is now, at a technical level, avoiding the government-to-government discussions that are the basis of reconciliation.

    How do we accomplish what you've done as a province with the Cree nation? I'm aware—it's been said to me—that under section 35 in the current Fisheries Act, the minister has the authority to delegate management agreements. That's one thing that could be implemented, but it needs to be implemented in a way that is not exclusive and does not give priority to anyone. Rather, it should set an equal table for all first nations that enjoy the very same inherent rights.

    Just to add to that, I totally appreciate the sentiment, and I think that's what we're striving for.

    I mentioned the IHPC process before. That is the process set up to inform the IFMP development each year. Our first nations do not go to that process anymore. Our rights were constantly being put on the floor to be challenged, and that speaks exactly to your point. We wanted to be in the room as a government, not just another stakeholder. That relates to how we come to the Pacific Salmon Treaty table as well as part of team Canada. We're there toeing the line, and we don't get respected at a domestic level, so it's really hard to keep trying as hard as we can for team Canada at that level.

     Thank you, Madame Desbiens.

    We'll now go to Mr. Bachrach, in place of Ms. Barron today.

     You have six minutes or less.

     Thank you, Mr. Chair.

     Thanks to the committee for allowing me to sit in on behalf of my colleague. It's good to see folks again.

     Thanks to our witnesses for your time today and your contributions to this study.

     Mr. Barnes, it's good to have you here from our part of the world. Listening to you talk about your nation brought me back to the summer, when I was paddling down the Kispiox and the Skeena rivers, connecting with Gitxsan fish harvesters out there fishing at family fishing sites that have been used for thousands of years and reflecting on the deep connection to the river and the place.

    You've been speaking about, and Mr. Chamberlin as well, the recognition of indigenous law and the recognition of indigenous management in the statute. They are really important things for us to be discussing in the context of these potential legislative changes.

    My first question is about what barriers you see to implementing the vision of legal plurality. As you know as someone who comes from the Skeena watershed, fish issues are highly contested, and there's a broad cross-section of society that feels a connection to fish and to the place. We often run into tensions between different perspectives, different world views and different values. What are the current barriers to implementing the legal plurality that you've laid out for the committee today?

    One of the phrases we had for the indigenous program review from a few years ago was that it was igniting a cultural change. Basically, we have to accept that we're going to be doing things differently. It's not going to feel right at first. Change is never an easy thing until we have the willingness to accept the change and stop going through the same process expecting different results. That's all we've been doing for the past 30 or 40 years.

    We need to really think outside the box. When we bring in traditional protocol agreements, I know they're hard to understand. People may have already checked out and started listening to other things and talking about other things, but this is exactly where we need to dig our heels in. We're here at the table doing our best to come as one voice, and we need to see that from Canada as well. We're all on the same team, but it just doesn't feel like it sometimes.

    It seems like there's maybe a tension between political will on the part of the government and the internal culture around these types of issues, the statutes themselves and the law. Which of those do you see as being the bigger opportunity for change? Can we get to the outcomes you want to see by amending the act and putting in different clauses, or do we require a shift in the mentality and culture within the department, within the government, when it comes to the issues you're talking about and the recognition you're seeking?

     I think it's the latter.

    Can you repeat that again? I'm sorry.

    The committee can recommend amendments to the law. There are already parts of the Fisheries Act that are being implemented.

    I feel like it's the latter, because if the salmon allocation policy was implemented the way it was written, we wouldn't even need the changes. We just feel like it hasn't been followed, that's all. We're really digging in our heels to try to get some changes that will reflect it and that will maybe create a change in decision-making. Really, the salmon allocation policy in particular is something we're in this policy-changing game for. If you just listened to what the policy said, we'd be fine, so I think it's the latter.

    Perhaps I can jump in here. I'd like to make a comment.

    I think about it this way. To me, the Fisheries Act is the foundation of a house. The integrated fisheries management planning is perhaps a wall or a room. The salmon allocation policy is up in the attic. When the foundation isn't working, what are we going to get out of the rest of it? If we want to be strategic with public money investment and our time and energy, knowing the tensions we will need to go through to arrive at a solution, we have to start with the Fisheries Act.

    Stu mentioned integrated fisheries management planning. They're asking first nation rights holders to sit with licensed privilege holders and for us to compromise, but those fishers only have the opportunity to fish at the leisure of the minister's licensing regime. We can't sit there and pretend that's government to government. We need to land at an appropriate place to do that kind of work.

    When we talk about resources, we're not here to try to maximize budgets and make the juice match the squeeze. We want the appropriate level of resourcing to do the work that's necessary. Stu mentioned the historical inter-nation and nation-to-nation protocols. These discussions are under way today. These are the understandings we need to arrive at. We need to understand that the relationships between nations have been damaged by Canada. We need the time and resources to revisit and re-envision what they're going to be, finalize them among ourselves and then sit down with government to figure out how we're going to implement them.

    This is going to be a little bit of work, you could say, because of the interdependence of first nations on salmon. I'm speaking only of salmon, because that goes across the province. That is where I see opportunity.

    This also points to the broader commitments of the federal Crown for reconciliation. When you sit down and make an agreement for whatever industry or whatever project and run into differing views from within one first nation, whether it's hereditary chiefs or elected officials, that is the work that needs to be done. It's governance building by first nations and for first nations, which then allows a much stronger measure of certainty going forward.

    It will take resources. Trust me, it's not easy work. We did it internally for six years. It was tense. It was incredibly complicated and we didn't reach the goal. That was after about five or six years of work. We don't have the resources to continue it. This is playing out across British Columbia.

    Thank you, Mr. Bachrach.

    We'll now go to Mr. Small for five minutes or less.

     Thank you, Mr. Chair.

     I'd like to welcome the witnesses.

    Mr. Butler, you spoke about the need for better science to support “prosperous fisheries”. Would you like to elaborate on that a bit?

     We've had a particular challenge in Nunavut-adjacent waters with respect to Greenland halibut. Granted, because of COVID we missed the surveys, but a vessel went down and there wasn't a plan to put the new vessel in place to do the research survey. We finally got there, but now we're missing a couple of data points with respect to the time series. You need to establish at least five years in the time series to have confidence in the results. There is work under way to do the correlations between the old survey—a vessel did do some work, but it wasn't strictly correlated—and the new survey so we can have confidence in where the resource is.

     If we don't do that work and miss data points in the survey, we take the cuts under the precautionary approach. I have thoughts on that. I think we have a very restrictive view of what the precautionary approach means. If we don't do the necessary work, fill in the data gaps and do the work with AI or whatever is available, we take the cuts as an industry and as Inuit we lose fish. We don't get that fish back. It takes a while for allocations to be re-established. If you take a 2,000- or 3,000-tonne quota this year, it doesn't come back up next year and you start again from the new level. You lose that going forward. It's not just an annual cut. The work on Greenland halibut is probably one of the best examples right now.

    Is that a threat to our eco-certifications, such as MSC's?

    Yes, that can be a substantial threat to eco-certifications. I call it the democracy of the marketplace, with consumers having confidence that when we fish or when they buy fish, it's sustainable in terms of management, ecosystem impacts and extractions of the resource. Consumers have the right to know through some third party certification that whether it's paper, pencils, wood or fish, it's sustainable. If we don't do the science, it can put that in peril.

    Is the Fisheries Act keeping up with our changing ecosystem? I'm thinking about species migration with warming oceans.

    I think the flexibility provided for in the act around the fish stock provisions, including the minister's discretion, is crucial.

    Predicting what will happen and what Mother Nature will do in the future is very difficult. Crab in the Newfoundland and Labrador context bottomed out in mid-2015 or 2014, and now it's resurged. We could not have foreseen that. We went through a colder phase of an overall warming regime.

    I think the act is responsive as long as we have flexibility in the minister's discretion and have adequate science to measure as we go. It's like groping in the dark a bit. I teach graduate-level fisheries policy and sustainability, and I tell the students that counting fish is easy, except they move and you can't see them. You have to do the annual science, the continual assessment work, to understand what the resource is doing. As the climate changes, we need to make sure we're doing that annual work. If we miss years, we end up like Alaska. They missed a survey year, and when they checked again, literally the snow crab was gone.

     Mr. Chamberlin, do you think pinniped and other predation should be addressed in the act?

     I believe the Fisheries Act has to create the appropriate space to look after every one of the stressors that affect salmon. Pinnipeds are one and fish farms are another, as are logging practices, mining, oil and gas, global warming, food availability, floods, wildfires—all of these things.

    We need to start to drill down and understand each of the implications of those particular stressors and arrive at a solution for them. What I'd love to see is a multi-billion dollar salmon fund to restore salmon across the province so every watershed gets the work it needs, not pretending that PSSI is going to do anything there, because it's shown it hasn't. If we're going to invest in the restoration of salmon and habitat and don't address every stressor, the potential of trying to pump gas through a fire is real.

     Pinnipeds definitely without question are a stressor. I have friends on the Fraser River who say they want me to come on their boat to watch the pinnipeds eat up the juvenile salmon and the adult ones when they come back. Certainly it's a stressor, but we have to think more about the combination of different stressors and how they interact with one another. Then we can start talking about science and sustainability, as Derek has mentioned a few times.

     I want to thank everyone who's here from the last report. You had a look at the Canadian science advisory secretariat, with its pseudo-objective “industry influence science” process that doesn't serve Canadians. I think your recommendations were sound. We need independent science. We need science that is not going to be hijacked by an industry that will benefit from the outcome, whether it has pinniped, fish farm or forestry implications.

    One thing I'm involved with in British Columbia, and I have been for quite a number of years, is the watershed futures initiative at Simon Fraser University, which looks at the cumulative impacts of salmon on the watershed. There's work being done at UBC and work being done at the Pacific Salmon Foundation. There's incredible work being done on water at the First Nations Fisheries Council. Where is the opportunity to bring everyone who has information together so we can start to understand what each person and each organization is doing and how it aligns with what we need to do to rebuild salmon in a very holistic way? Once we have that, we can sit down and take a look at things like the wild salmon policy and the conservation units and start to figure out a strategic way to use public money to attain the goal. Right now there isn't one, and I think Canadians deserve more. Certainly the wild salmon deserve more, but it's going to take resourcing to bring everyone together to arrive at an understanding so we can build what's necessary for future generations.

     Thank you, Mr. Chamberlin.

    We'll now go to Mr. Hardie for the last intervention. You have five minutes or less.

     Thank you, Mr. Chair.

    I want to talk about communal licences. The regulations allow for the minister to choose who gets to fish and what kinds of vessels they get to use. However, where the minister doesn't do that, it's left up to the community to decide.

    Can anybody give us any sense of what the ratio is for directions from the minister versus community-led directions?

    Mr. Barnes, do you have that? No. Okay.

     I have a comment on communal licences.

    We'll get to that in a second. I have my stack of questions here.

    By the way, you talked about the coordination of all the agencies and organizations and said they're each doing little pieces of things and nobody knows what's getting left out or where there's unnecessary overlap. That's another conversation, too, for another time.

    Let's talk about commercial licences. We've been working with communities up and down the coasts and with environmental organizations. One thing concerns me, and I'm wondering if it needs to be properly reflected in the act. There is a habit in some communities to get a commercial licence, and instead of having somebody at home go out and fish, they lease it out. It becomes a kind of profit centre, and we know what conditions are like on the west coast with the leasing of licences and quota.

    Would you like to see a change to that regime?

    In terms of communal licensing, I'm assuming you're talking about PICFI on the Pacific coast.

    I was talking about communal licences, but I don't think communal licences can be passed off to a non-indigenous person. I'm talking about the commercial licences allocated to a community that the community turns around and leases to Lord knows who.

    One of the goals I'm aware of in the Pacific integrated commercial fisheries initiative is to maintain the capacity to fish and to look at how we make sure there is going to be a passing on of that ability. The sad thing is that the management of fisheries by DFO has been abysmal, and we have nothing but collapsed stocks all across the province.

    I take that point, but I want to get to the point about communities leasing out their ability to fish to somebody who isn't in the community.

    I'm aware that this happens, but I'm also aware that there are nations that lease out licences that have come to them through various means. Built into that is a capacity opportunity where we say, “You can lease a licence, but my nephew Jimmy is going with you.” We can then begin to rehabilitate or reinvigorate the capacity to do that fishery on our own.

     That's helpful, because if you follow the money, it would appear that generally in the commercial fishery in B.C., the money is going to anybody but the person who takes the risk with the boat and does the work with the fish. That is something we've tackled at this committee before.

     On the guardians, the regulations stipulate that they'll have peace officer status. Is that adequate to do the job they're expected to do, or should there be some effort to coordinate guardians with the indigenous policing we've heard so much about?

    Mr. Barnes, do you want to comment on that?

    Again, it varies nation to nation, but one of the questions that we said needs to be asked initially to start to explore the guardian stream again is what level of guardian a community needs, wants or desires. There are cases where they would like a fully armed person who can make sure that the laws and regulations of their territory are being followed and abided by and who can enforce them. We also have places where a technical body could be sufficient, to just go out there and observe, record and report.

    We envision a program where we have hubs of guardians that can be leaned on by the groups that have only technical endeavours in the guardian world. I think there's a scale, a spectrum, and it's up to the nations to decide where they land on the spectrum. They can have a fully enforced guardian who can go up to a Canadian and ask for ID or a person who's there to observe, record and report based on the size of the fishery, etc.

    Thank you, Mr. Hardie. You're right on time, the first one today.

     We'd like to say thank you to Mr. Butler, Mr. Chamberlin and Mr. Barnes for being here today and sharing their knowledge with the committee as we do this particular study.

    We'll suspend for a moment while we change panels.

     Let's get everyone back to the table to start with the second panel.

    From Nova Scotia Power, we have Mr. Peter Gregg, president and CEO, and from WaterPower Canada, we have Lorena Patterson, president and CEO, and Gilbert Bennett, senior adviser. Gilbert is well known in Newfoundland and Labrador.

     Thank you for taking the time to appear today. Each organization will have five minutes or less for their opening statement.

    Mr. Gregg, you have the floor.

    Thank you very much, Mr. Chair and members of the committee, for the opportunity to speak with you today.

     As the chair said, my name is Peter Gregg, and I'm the president and CEO of Nova Scotia Power. My goal today is to share some perspectives on how the act applies to our hydroelectric generating stations in the field and highlight opportunities to improve regional implementation in Nova Scotia.

     We at Nova Scotia Power value the important work done by this committee and the critical role the Fisheries Act plays in protecting aquatic ecosystems. Nova Scotia Power has operated 16 hydro systems across the province for over 50 years, providing renewable energy and reducing our reliance on fossil fuels. These systems are essential to achieving provincial and federal climate goals, including the phase-out of coal by 2030 and reaching net-zero emissions by 2050.

     Our relationship with the Department of Fisheries and Oceans is similarly long-standing. It dates back to the 1920s and has included extensive collaboration on fish passage development and modifications, particularly through the 1970s and 1980s. Over the years, we have taken a continual improvement approach to the operation and upgrade of these facilities. For example, we made substantial investments to comply with modern dam safety standards under the Canadian dam safety program, all while balancing environmental considerations and the affordability of electricity for Nova Scotians. Our hydro systems are not just part of Nova Scotia Power's history; they're critical to our future. However, the cost and complexity of achieving the targets I spoke about are considerable.

    We see three key challenges in how the Fisheries Act is currently being implemented.

    First, the act's focus on individual fish rather than populations has led to costly and time-consuming Fisheries Act authorizations, or FAAs, for almost all hydro-related work. For instance, a relatively short-term maintenance drawdown required an FAA, adding $300,000 in costs related to offset work.

     Second, the FAA process itself is lengthy and unpredictable. One dam refurbishment project submitted in 2020 is still awaiting approval. Additional requirements as we await this approval have increased costs by $4.1 million and have delayed critical safety work.

    Third, inconsistent regional interpretations of the act have led to significant operational challenges, which include new environmental studies, costly upgrades and regulatory delays. These costs ultimately fall to Nova Scotians and our customers, who already face high energy transition costs.

     To address these issues, we recommend refocusing the act to protect fish populations rather than individual fish, and reserving FAAs for high-risk activities. Routine, lower-risk work should be managed through streamlined processes such as codes of practice or letters of advice. We also urge reasonable leniency on grandfathering legacy systems that were not designed with modern regulations in mind. Finally, flexibility should be built into offsetting policies for older facilities that have already undergone significant upgrades.

     Nova Scotia Power remains committed to reducing the environmental impact of our operations and supporting the transition to clean energy. With these adjustments, I believe we can find the right balance among safeguarding fish populations, maintaining public safety, advancing decarbonization goals and keeping electricity as affordable as possible for the people of Nova Scotia.

     Thank you. I look forward to your questions.

     Thank you.

     We'll now go to Ms. Patterson for five minutes or less.

    Thank you for the opportunity to appear for this committee's review of the Fisheries Act.

    Canada's great, blue water battery that is hydro power has been seriously impacted by the application and interpretation of the Fisheries Act. What could be essentially a cost-free service, which currently powers more than 60% of our national grid, must now pass on to ratepayers the significant cost of monitoring and implementing measures to protect every single fish from encountering its turbines. While the intent to protect every single fish from harm is noble, the impact of this task is that it's causing electricity rates to rise for Canadians who depend on hydro power to power their homes and businesses and is using up capital that would otherwise be deployed for new projects.

    Section 34.4 of the Fisheries Act states:

    This is unless:

    It's pretty strict.

    Since the 2019 act was passed, there's been no additional guidance from DFO regarding the application of section 34.4. DFO officials are not required to take into account a reasonableness test when determining whether an application meets the expected standard of care. In the absence of clear guidelines, proponents also struggle to determine whether the standard of care has been met. Further, differing interpretations of the section have resulted in the inconsistent application of standards across the country.

    WaterPower Canada members seek clarity and direction that can be met within a reasonable period at a reasonable cost. This will protect ratepayers and help rebuild faith in Canada's investment framework.

    To provide an analogy, in Banff National Park, the department of fish and wildlife installed wildlife bridges over highways and fences along treelines to minimize the potential impact of vehicles striking animals as they drive through the park. Even so, it's understood that the occasional animal will wander into traffic, and tourism is permitted regardless. While every loss of an animal is tragic, it is deemed acceptable when compared to the importance of tourism and transportation to Canada's economy, particularly considering that these animal populations are not endangered. What is happening to hydro power producers is the equivalent to asking Parks Canada to report and replace, sometimes at a 2:1 ratio, every chipmunk, squirrel or deer that wanders into the path of an oncoming vehicle, and if it fails to do so, it faces the threat of closing down the highway.

    This is more than just an irritant to applicants. The additional monitoring of every fish and installation of mitigation measures can cost operators millions of dollars—as we've just heard—for each of their hydro facilities, but it serves no actual purpose because either the fish in the area are not endangered or the losses have been mitigated elsewhere. These costs are borne by all of us in this room because the utilities pass these costs on to ratepayers.

     Considering the cumulative costs across approximately 700 hydro facilities in this country, this exposure runs into the billions of dollars for Canadians. Ratepayers include not just us, but also potential investors, who are easily persuaded to go elsewhere when electricity costs are too high. Power producers themselves may choose to forgo the lengthy and uncertain process of seeking a Fisheries Act authorization in favour of other power sources that are less environmentally friendly but do not impact a body of water.

    There's another aspect of this act that we would like you to consider. As a rule, regulatory enforcement and permitting are often best conducted by a third party—usually an independent regulator or, at a minimum, a project management office. Otherwise, if the people charged with enforcing the act report to those setting the policy, concerns about undue influence by the government of the day and potential for bias may arise. We have indeed observed some public servants taking the policy to an extreme. Proponents have no independent mechanism to prevent the endless cycle of applications and reapplications that some of our members currently face. Some of these members are reluctant to raise their concerns with the department for fear of retribution.

    To summarize, we would ask that the definitions of “fish” and “fisheries” return to the original focus on fisheries and fish habitat as opposed to individual fish; that consideration for the cost of monitoring, mitigating, and delayed application reviews to ratepayers be included in DFO evaluations; and that consideration be given to the establishment of an arm's-length party that would be responsible for these applications.

    The Government of Canada does not need to micromanage every detail of a project or facility to ensure compliance. Indeed, if our recommendations are followed, we will have a better chance of meeting Canada's climate goals while at the same time ensuring Canadians have access to the lowest cost, most reliable energy grid possible.

    Thank you. I'm happy to take any questions.

     Thank you.

    We'll now go to Mr. Small for six minutes or less.

     Thank you, Mr. Chair.

    Mr. Bennett, if we look at Canada's future with hydro power, how is that future looking with the act that's currently in place?

    I can reasonably say that the current micromanagement we see in the administration of the act is increasing risk for the industry. There's no doubt that there are utilities in Canada that would look at the regulatory risk associated with hydro—notwithstanding that it's a long-lived, reliable, valuable asset that runs for decades—and say the risk of pushing paper, seeking authorization and navigating the environmental assessment process is simply too big, and they would look at alternatives.

    Look at the conversation about nuclear today. The general consensus among many people is that nuclear is an easier path to go down for environmental assessment than hydro is. That, to my mind, is a significant challenge.

     Are there any other challenges, Ms. Patterson, other than what you've laid out for us here today?

     There are multiple challenges, obviously. There is a cumulative effect to all of the regulations we have to comply with in the regulation ecosystem in Canada. A lot of the applications are repeated at the provincial level, so we have provincial monitoring as well as federal monitoring. It's a repetition of the same information in many cases, which often leads to different outcomes.

    We could look at streamlining this whole process much more effectively to encourage these facilities to operate and build new facilities in the future.

     Mr. Gregg, you talked about managing fish and fisheries. Would you like to give us an example of how that's impacting your operations in Nova Scotia?

     Sure. I referenced in my opening comments, and it's probably the best example, that we've been waiting for four years for FAA approval. That's added significant cost to the system. We do everything we can to keep our dam system safe and compliant, but there's work that needs to be done on these dams. I worry that if it takes too much longer, we'll end up taking on too much risk for that.

    I think it's also important to mention that we have to be off coal generation by 2030 in Nova Scotia, and we need to have 80% renewable energy by the same time. The hydro fleet for us is essential to achieving that. We're not blessed with the vast hydro resources that Quebec, Manitoba and B.C. have, but we have 16 hydro facilities across the province that are essential for meeting those requirements by 2030. There's also the potential of new requirements for net zero by 2035.

    Work needs to be done to make sure that those systems are available. As I said, they're 50 to 100 years old and need constant upkeep. What we're looking for are predictable timelines, practical solutions and a risk-based approach to regulation.

     Are you finding there are excessive delays in permitting?

     Yes. That's exactly what we're experiencing.

    I'll give you a little more detail on the one that's taken four years. We've been asked to do studies and have done those studies, but we have had four letters subsequent to those—I would call them largely incomplete letters—that have asked us to do more studies on top of more studies.

     We're happy to do the studies, and we care about the fish population. I don't want anybody to think we're trying to get away from our responsibility. However, when we don't know what the timeline is and don't know what the requirements are, it makes it very difficult to plan a capital budget and maintain and operate the system.

     Mr. Gregg, do you think DFO recognizes the importance of your industry when it's making its decisions?

     I think it does; I really do. As I said, we have a long-standing relationship with DFO that goes back over 100 years. I just think that what happened with the modernization of the act in 2019 and the shift away from focusing on fish populations and fisheries to individual fish became the turning point. Before, when we could rely on looking at our activities from a risk-based perspective and could have a letter of agreement to do certain work rather than a full-out FAA to do it, it was a practical approach and it worked well. It's really since 2019 that we've seen this approach become much more difficult.

    Are you saying that, basically, the Fisheries Act is calling for the reinvention of the wheel with every project?

     I don't know if it's calling for the reinvention of the wheel, but every piece of work we seek to do on one of our systems seems to require a Fisheries Act authorization. That takes a long time, and there's uncertainty in that. Before, we could have letters of agreement that were based on a shared understanding of what the risk to the fishery would be, and we'd have offsets to take care of any kind of potential risk to a fishery. What we're looking for is more of a return to the pre-2019 approach.

     Thank you, Mr. Small.

    We'll now go to Mr. Kelloway for six minutes or less.

     Thank you, Mr. Chair.

    Witnesses, thank you for being here today and for your opening remarks as well.

    I'm going to start with Mr. Gregg. First and foremost, thank you for being here. We've had many chats on this very topic.

    It's in Nova Scotia Power's best interest to have a healthy fish population. I think we need to categorically say that. I want to look at this from a case-study perspective. You don't have to mention a particular project's name, but given your recommendations up front and the touchpoints that you're having difficulty with, I'm wondering if you can take a little time—and part of the problem is that we only have six minutes—to quickly go through a case study of a particular project. What are the touchpoints and how would those hard-wired recommendations help?

     Thank you, Mr. Kelloway, for the chats we've had along the way.

    The best way I can do it, without drawing on a particular project, is to describe it generally. As part of our ongoing work, sometime we're looking to do a maintenance drawdown of a headpond for safety reasons or need to make some improvements to a dam for safety purposes. We used to need a code of practice to allow that work to proceed under a letter of advice. That's the way it used to be done, and that worked well. We worked closely with the regional officials at DFO, who understood the operational requirements of our business, and we looked to letters of advice or an expedited Fisheries Act authorization. However, now, every time we're looking to do that kind of relatively minor work, it requires a Fisheries Act authorization—every one of them. As a result, there's a backlog at DFO that's resulting in massive delays that can go into multiple years.

    We want to do everything we can to protect fish populations, as you said, but we know we need to clean our grid and that a healthier climate is good for fish populations. We're trying to balance that out. We're just looking for a predictable approach, a risk-based approach, and a consistent application of the rules.

     To go back to what is driving this, obviously there's a business case for it, but there's also a clear case that we need to get off coal.

    Yes.

     How many projects are we talking about in Nova Scotia that you find are in this predicament? I would agree with you that it seems, through testimony from all of you, the approach now is quite layered as compared to 2019 or pre-2019, when it was very much about due diligence and we were quicker to assess and make a decision. It appears to me that the line of sight is not there and that—correct me if I'm wrong—the goalposts keep moving on you.

    As to the first part of your question, we have 16 facilities, all of which are aging. Over time, all 16 will need work and will require DFO approval for the work we're doing there. We're trying to extend the life of all 16. It goes from our largest facilities—at Wreck Cove in Cape Breton and on the Mersey River on the south shore—to all of the smaller systems we have across the province. They require us to work with DFO.

    As to the second part of your question, forgive me....

     You're asking a 54-year-old man to recall things.

    I'm of a similar vintage. I recall things differently.

    Voices: Oh, oh!

    Yes, I know.

    I was predominantly thinking about what's driving this and the moving goalposts. There seems to be—not just from your testimony here but also from many conversations we've had—a time delay. Quite frankly, we expect DFO to do their due diligence by asking questions and asking them again to clarify, but can you make out the difference between that and what I think you're saying about it continuing beyond due diligence? It seems to be repetitiveness.

    I think the best example of that, which I spoke to before, is one project where we've been waiting four years for a Fisheries Act authorization.

    Going back to changing goalposts, there's frustration there. We respect regulation, but the challenges have been four years, multiple studies and the continual arrival of new letters that ask us to do more. It would be nice for them to say, “These are the requirements for a Fisheries Act authorization” so that it's very clear. Then we know what the work is, we know what the timeline is, we set about it and we're done. That has not been our experience.

    How much time do I have, Mr. Chair?

    You have 20 seconds.

    I'm not sure who mentioned that it's easier to get a nuclear project approved than, say, hydro. I think it was you, Mr. Bennett. I wrote that down immediately.

    This goes to you, Ms. Patterson, as well.

    You all talked about various recommendations. What is the one key recommendation that, if you don't see it in the report, will make you say, “Why is that not there?”

    Give a short answer, please, because he's gone over time.

    Focus on fisheries and fish habitat, as opposed to individual fish.

    Yes, I would agree. Sustain a fish population by managing a fishery, as opposed to counting individual fish.

    Thank you, Mr. Kelloway.

     We'll now go to Madame Desbiens for six minutes or less.

    Thank you, Mr. Chair.

    I want to tell you about something we are doing in Quebec. You could say I am being chauvinistic again, but it is what it is.

    Hydro-Québec has a strategy to protect biodiversity in Quebec. It is pretty significant. The strategy, which covers the period from 2022 to 2026, establishes a framework for future facility upgrades and renovations, as well as for new hydroelectric projects. The purpose is to ensure that these activities always take into account biodiversity.

    Under the plan, scientists conduct studies on the behaviours of various species, eels, for instance. They study their behaviour before any work is carried out. Once the facility work has been completed, they make observations. Some species are negatively affected by the presence of the facility. Actually, it is their behaviour that is affected, not their development. In other words, they adapt, move to other locations and go elsewhere. When they do not, they are guided along the right path. This is a simplified explanation, because it is more complicated in reality. That is part of the strategy.

    Hydro-Québec is a Crown corporation. Electricity is publicly owned in Quebec. You represent privately owned power companies. Is that correct?

    We represent all of them. The Crown corporation Hydro-Québec is a member of ours as well.

    Could you use Hydro-Québec's strategy for protecting biodiversity as a model for a consensus-based approach, one that all biodiversity advocates would support? You could use it as a basis for future work. It would give you security, you and the companies you represent. You would have a broad agreement that adheres to certain conditions. On the surface, you would have the research knowledge and tools to make the process easier and more consistent across the board.

    Is that something that would be feasible, or am I dreaming in technicolour, as I tend to do?

    I don't think you're dreaming. There are 700 existing hydro facilities in Canada. It would be valuable if there was consensus on what the priorities were for each of them. What populations are important to communities, whether they be indigenous, recreational or commercial fisheries? What species are important? What is the sustainability of the population? Is it at risk? Does it need support? Is mitigation required for that particular population? Are improvements required, or are there situations where things are okay?

    That conversation doesn't happen anymore because the department says that the act says you cannot kill a fish. We can't even get to that discussion. Operators don't know what the priorities are for each of those facilities, nor do they have clarity on what the expectations are for a new facility. Maybe sometimes for a new facility it's an easier conversation, because you go through the environmental assessment process and collect a lot of data, a lot of information and a lot of feedback. Those priorities get discussed, but for the 700 facilities, some of which have been here for more than a century, industry doesn't have guidance on what the expectations are.

     I agree that a comprehensive plan like Hydro-Québec has would be an important discussion point. Then we need to get it validated so we can get on with the work.

    If I take your view a step further, wouldn't it be appropriate to establish a mechanism in the Fisheries Act, one that allows for environmental mediation based on specific data? It would apply to sectors like hydroelectricity and everything that goes along with those types of activities. It would take into account biodiversity protection, the fishing economy and coastal economies. This mediation mechanism is somewhat removed from policy or political considerations but would bring together actors across the board with a relationship to, or an impact on, biodiversity. The mechanism could orient the department's decisions in a non-partisan non-political way. The biodiversity strategy would be your key tool or basic plan.

     I agree. Two things that changed in the 2019 act made this problematic. One was the focus and fixation on the death of individual fish as opposed to the sustainability of the population. The second problem was the removal of public interest as a decision-making criterion. As a result, that broader discussion doesn't become a topic. When somebody looks at a Fisheries Act authorization, they say not to worry about public interest. All they worry about are those fish, not necessarily the fish population. That fixation on an important but very tiny point means that we get to infinitesimal effects where somebody says, “I want you to fix that.” It takes our attention away from the bigger picture. It's a problem and it can be fixed.

    Thank you, Madame Desbiens.

    As my father would say, too much is as bad as not enough.

    We'll go now to Mr. Bachrach for six minutes or less.

    Thank you, Mr. Chair.

    Thanks to our witnesses.

    This is an interesting conversation. I'm from British Columbia. We have a lot of hydro power. This hasn't been raised, or at least it hasn't come across my radar as a big issue, but the hydro producers are predominantly public in British Columbia, so it's a different scenario.

    I'm very interested in the distinction you're drawing between individual fish and fish populations and in the idea of focusing on fisheries and habitat as opposed to individual fish. I certainly hear the frustration and I think I understand it.

    Fisheries permitting is a challenge that many different industries face, and it's a complex one in some ways, but this discussion takes place in the context of the federal government having a pretty spotty record when it comes to the management of fish populations and fisheries. If you look historically at the past 100 years and the number of fish populations that have been either entirely wiped out, decimated or severely drawn down, there isn't a great record of sustainable management in fisheries. There are exceptions to that, of course, but where I live, many of the wild stocks are at 10% of their historical abundance.

    Using the metaphor of the highway through Banff—which I think is a good one, and I take the logic of the analogy—we also have serious challenges when it comes to, in my region, the highway and railroad mortality of moose. At what point do problems affecting individual fish become problems affecting fish populations? I guess that's the question.

    How do we work with a situation where we have insufficient assessment, science and boots on the ground when it comes to fisheries monitoring? How do we shift from what right now sounds like a very precautionary regulatory approach to one that is more streamlined and makes it easier for your business? How do we do that without doing a better job of managing these populations, these fisheries? How do we build public trust around that? When the public looks at it, at least in my neck of the woods, they don't think the federal government is good at managing fish populations. It's the one thing people come together about.

     The fact that there's no distinction between the fish is a starting point. It's indiscriminate in terms of the individual fish in question. It becomes absurd because you can give a fishing licence to someone to fish more fish in an afternoon than are allowed to go through a turbine.

    It's a conversation that shouldn't happen. We should look at this more comprehensively to determine where the sensitive fish populations are, and then add measures that mitigate and help recuperate some of those populations in a different way.

    Mr. Bennett, I don't know if you have something to add.

    The existing regulatory regime is not working for many industries, and you've probably heard from many groups in hydro power here at committee.

     The first point is that you can look at a population in any river system and begin to make determinations as to whether you believe that population is sustainable or additional work is required. I would agree that in British Columbia, salmon is a very important issue and there are challenges.

    Starting with that focus would be really important, but you can make similar connections in any river system. What are the populations that are important? What's the sustainable level of that population? Is it below the target? Is it above the target? Those questions are not easy either, I agree, but they're part of a more straightforward management conversation than counting the individual fish on a daily basis that might have difficulty going through a hydro plant. The level of detail that's being expected in the current regulatory regime is not working either.

    I'm not an expert on hydro power, so I'm trying to imagine what some of these scenarios are. Earlier you mentioned fish going through a turbine, which I think is a pretty visual way for a fish to die, but obviously we're also talking about other kinds of impacts related to these activities.

    We mentioned the analogy of the wildlife overpass. There must be analogous mitigators in the hydro world. Is it simply a matter of those mitigators being too expensive for your industry to afford? Perhaps unpack that a little for us.

    One of the issues is that we're not really sure because there's not a lot of clarity in the act. This process starts with the applications and reapplications, and the measures change over time, as Peter referred to in his remarks. There isn't clarity around that. If the proponents know ahead of time, they can account for these things and avoid as much as possible the negative impacts.

    We also cannot overlook the importance of this particular technology for the Canadian grid. We have a very clean source of power. We have a very reliable source of power, and it's completely dispatchable. You don't get that in any other source of power. There has to be more of a balance between interests. We take every measure possible to avoid negative impacts on fish. That is top of mind for everyone, for sure, but we also have to be able to do our job.

     Thank you, Mr. Bachrach.

    We'll now go to Mr. Arnold for five minutes or less.

    Thank you, Mr. Chair.

    Thank you all for being here. Your testimony is very interesting.

    I'll start off with Ms. Patterson.

    We heard from Electricity Canada last week, and a big takeaway for me was that, on the one hand, the current government has mandated and promoted electrification and an increased demand for electricity, and on the other hand, the government has made it more difficult and slower for hydroelectric projects to be authorized and built.

     Is that an accurate summary, and do you want to add anything briefly to it?

     I think that's fair. It certainly adds time and uncertainty around time, because it could continue for many years. The clock stops whenever an additional requirement is made for information.

    While on paper DFO may be complying with the times mandated by the law—200 days I think it is—they're taking many years in some cases, as they're reiterating their requests. Obviously, that adds a lot of time and a lot of cost that we could be spending on other things, like increasing power production on the grid.

     According to the U.S. Energy Information Administration, or EIA, net flows of electricity between Canada and the United States have shifted, with Canada importing more electricity from the U.S. than we export to our neighbours since late 2022. The EIA states that sales from Canada declined by nearly 30% from 2022 to 2023.

    The recent announcements from the incoming president have raised questions about the future of our trade relationship. Is it possible for Canada to increase our hydroelectric generation capacity to reduce our dependence on electricity imported from the United States and meet the growing demand here in Canada?

     Yes. The Canadian industry will respond. We'll make sure that customers have reliable electricity. That could include hydro, but it could include wind, solar or nuclear. All the other alternatives are part of the portfolio to meet that demand.

    One thing I would say about the existing interconnection between Canada and the U.S. is that it contributes to customer benefits on both sides of the border and improves reliability on both sides of the border. Notwithstanding those benefits from a national energy security point of view, the industry will respond. We'll make sure that customers have reliable service.

     What would be the biggest challenge to the industry in responding to those growing needs?

     Again, it's about making sure the regulatory process is working effectively, that we have regulatory certainty across industry—across all the electrical sectors for that matter—so that we can move forward with necessary projects in order to meet those demands.

     Has the current act as passed by this government helped or hindered their goal of reaching electrification?

    Do you mean the current Fisheries Act?

    Has the current Fisheries Act helped or hindered?

    The current Fisheries Act has hindered that process, in my view.

    The act has made it more difficult to reach their goal of full electrification. Okay.

    It's not just the Fisheries Act. It's the wildlife regulations, the investment tax credits and the clean electricity regulations. All of those have elements that are infinitely detailed, create regulatory risk and make it harder to get things done.

    If the regulatory regime that was enabled by the act was fully and correctly implemented, would that solve the problems or are changes needed to the act?

    If the mindset was to deal with objective views of risk and the potential impacts on fisheries and fish populations and those decision criteria were effectively used, the concerns I outlined would be mitigated. Right now, there's no clear policy within the department that sees those questions and factors as important ones in decision-making.

    Is there anything further that anybody wants to add? I have about 20 seconds left in my time.

    I'm just reiterating that we would prefer a balanced system that's fair and that takes into account every aspect of this, as opposed to the situation we have now. Clarity would help everyone on both sides.

     Thank you, Mr. Arnold. You're right on time.

    Mr. Morrissey, go ahead for five minutes or less.

    Thank you, Mr. Chair.

     I have one question, and then I'm going to turn my time to Mr. Cormier. My question is for Ms. Patterson.

    You referenced clarity over and over again—on numerous occasions. I would ask you to provide examples to the committee of clarity that you would recommend, because this process is about providing recommendations for change. Without going into them, as time is limited, could you be specific on, let's say, five areas where you think clarity would make it easier to determine what is defined?

     I think the—

    No, I don't want them now. Would you provide them in writing to the committee?

     Absolutely.

     The other question is about the changed definition of “fish”. Could you provide to the committee a number where there's ambiguity now? We need clarity in those areas.

    I was on the original committee with members here when the act came in. Intent and implementation sometimes deliver differently. The intent in some areas, especially as to the changed definition of “fish”, where we went to finding each one.... Quite frankly, I don't think anybody could verify if we killed one fish someplace and had to find it. I would like you to provide to the committee in writing very detailed recommendations that would address the issues you've referenced here.

    Go ahead, Mr. Cormier.

    Thank you.

    I didn't have any questions today, but because of the discussion.... You're all electricity experts.

    Mr. Gregg, I'm from northeast New Brunswick. You probably know that the Belledune power plant there, a coal-fired generation station, needs to be phased out by 2030. As it relates to the Fisheries Act, we're trying to find a fuel replacement, as you know, for this. It's essential. Let's say we find something—hydroelectricity, for example—and replace it. We'll definitely need an environmental impact assessment and all the things you were just saying.

    Is it realistic to think that by 2030, with all the things you guys need to do under the act, under the law, we will have a new station with some kind of new power if we start the process, let's say, tomorrow? Is it realistic to think that with all of the requirements, we will be able to achieve that?

    It depends, Mr. Cormier, on the type of facility, but the time is getting very tight to achieve that by 2030.

    I'll expand on that from a Nova Scotia perspective. How we're replacing coal-fired generation in Nova Scotia is primarily through onshore wind. We'll be adding another thousand megawatts—perhaps a little more—of onshore wind, and the province will procure that through various tranches between now and 2029.

    If you're looking at wind farms, I believe there is sufficient time to enable that transition to happen by 2030. We're also installing grid-scale batteries on the system to allow for a greater penetration of wind. We're actively in construction of those projects now.

    If you want to start to build a new hydro facility, there is not enough time to get that done. I heard Mr. Bennett talk about the fact that he'd get a nuclear plant approved more quickly than a hydro facility, so getting a hydro facility approved before 2030.... I don't even think you'd get it approved, let alone built.

    What about hydrogen projects? There's one in Newfoundland. There are going to be some in Quebec. There's even a project in Belledune, in my area. Those will all need impact assessments.

    They will. The hydrogen facilities I'm familiar with are going to rely on wind. They'll be building their own wind projects to generate the power to—

    The wind is the same on the water—for example, with those turbines—so under the Fisheries Act, they will have to have a—

     The hydrogen projects that are planned in Nova Scotia will rely on onshore wind, not offshore wind. If they relied on offshore wind, they would take a lot longer to develop.

    What I'm trying to say is—and I'm not sure “soften” is the right word in English—if we try to make sure that the measures don't delay things, because we want to achieve net zero....

     When it comes to power, if my residents don't find a fuel replacement for their coal power plant, the rates will go up, so if we're not ready and cannot do this fast enough, we're going to be in a tough position. What I'm hearing from you guys is let's make sure that good protection measures are there, but we can do this in a faster time and won't even need to protect fish habitat. Is that right?

     I think what you're getting at is predictability, and Ms. Patterson was just speaking about that. Knowing what the requirements are and what a reasonable timeline is for meeting those requirements is essential for the transition to happen.

     We work really closely with our friends at NB Power and have transmission interconnections. We're all trying to achieve the same 2030 goals, but really what we're looking for.... We are in this industry and we've been running hydroelectricity plants for over 100 years. We do care about the fish populations. We are stewards of the environment. We're fully supportive of getting off coal by 2030, but we need clear regulations with predictable outcomes and reasonable timelines.

     Thank you, Mr. Cormier.

    We'll now go to Madame Desbiens for two and a half minutes or less.

    Thank you, Mr. Chair.

    As I listened to you answer other members' questions, I thought that your requests were pretty clear. I say this with all seriousness: it is very clear to us that you need more clarity and that a national biodiversity protection strategy is the key. That is something that could probably be incorporated into the Fisheries Act, but I'm not sure it falls entirely within the scope of the act. Nevertheless, the reality is you have to start somewhere.

    A predictable framework is necessary, a clear strategy and clear standards that can be applied to different areas, depending on the species and whether it is in danger of extinction. The actions to take would be clear while being tailored to those different realities. You would have a basis to work with when bringing forward your projects. You would have a predictable framework going forward. You would have access to tools and scientific opinions. Perhaps you could even contribute to our collective understanding of biodiversity protection.

    Is that a recommendation you would like the committee to make as part of its study?

    Yes, we would agree with that for new projects, but it's also important to distinguish between projects that are already operating and have been operating for 100 years...and not forcing them to go through the same thing.

    Yes, the two are quite different.

    That's right.

    Thank you.

    Next we'll go to Mr. Bachrach for two and a half minutes or less.

    Thank you, Mr. Chair.

     I was struck by what I believe Ms. Patterson said about the lack of clarity from the regulator, the department, when it comes to permits. It almost feels like there are two different issues. One is the structure of the legislation and the statute, and the other is the way the department interprets and implements them on the ground when working with applicants and different industries.

     I can see why that would be very frustrating if you're an operator and you just want them to tell you exactly what to do within a relatively reasonable timeline so you can get on with the work to their specifications. I've heard this in other contexts as well.

    I'm wondering if the issue is a lack of resources being applied. The mining industry often has complaints about the length of the permitting process, and that goes back to the resources being invested in reviewing permit applications. If more resources were invested in doing that work, would you get a more timely outcome? I don't know if that necessarily deals with the issue of clarity, and that's the other part of the question. How do you get to the point where the department or the regulator is able to give you a really clear direction on what you need to do to meet the requirements of the legislation?

    As I think Peter referred to previously, before 2019 a lot of the work could be done through an agreement. There was an understanding or an operating practice that was accepted in the industry for the facilities that were already in operation. Now facilities that are in operation also need an FAA. That's a much more lengthy process, and it requires all of these studies.

    You'll always have a resource issue on the side of the regulator if you're adding more and more things for them to do. It would be good to look at a way to ensure they don't need to do that much work but you're still reaching the objective of making sure that fish populations are being looked after.

     Can I ask one more little question, Mr. Chair, given that we're right at time?

    You can if you can get it done in 10 seconds and get an answer in 10 seconds.

    At the end of the process, they eventually do get back to you. You eventually get the permits, because the plants are still operating and you're getting the work done. It's just—

    No, they're not getting the permits. They're operating without permits in many cases, and it creates a huge risk for them.

    In the cases where you are getting permits.... Obviously there are some cases where you've gotten permits, or have you never—

    An hon. member: Taylor.

    Mr. Taylor Bachrach: That's fair enough. I'll take the cue from my colleague.

    Voices: Oh, oh!

    I want to hear him. He has a good point.

    I guess what I'm trying to get at is this: In the cases where you have gotten permits, although maybe there are only a few, has the department told you to essentially do what you would have done anyway, or are there extraordinary things they're asking you to do?

     If I have time, there is a specific example for exactly what you're asking. For what we would have previously done under a code of practice or a best practice in the pre-2019 legislation, this time we had to do an FAA for it. We did get approval for the FAA, but it took a lot longer. I think it took two years. It added $300,000 in cost. The way we went about it was the exact same way we would have done it pre-2019. That's the example.

    Thank you, Mr. Chair, for your forbearance.

    I know my colleagues want to go home, but that was a good answer.

     Thanks, Mr. Bachrach.

    I'm going to say something now that's not an insult. There must be something in the water the New Democrats are drinking. They always go over time. Ms. Barron is famous for it.

    Voices: Oh, oh!

     It's because we do our homework.

    You lived up to Ms. Barron's—

    You let him.

    Yes, but how do you cut someone off in the middle of a question or in the middle of an answer?

    He started a new question.

    Voices: Oh, oh!

     I want to say a huge thank you to Mr. Gregg, Ms. Patterson and of course Gilbert Bennett, who I know has been very dedicated to this particular industry over many years. Thank you for sharing your knowledge with the committee today as we try to do our study and get some really good recommendations made for both your industry and the fishing industry.

    Thank you, everyone. On Monday we will resume our study of the Fisheries Act.

    The meeting is adjourned.