Tuesday, June 4th 2019 - Fisheries Act C-68 - Third Reading Debate & Proposed Amendment
Bill to Amend—Third Reading—Debate
Hon. Rose-May Poirier: Honourable senators, I rise here today to speak at third reading on Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence. I thank all the various witnesses who appeared before our committee to testify on this legislation as well as those who sent written submissions. The list of witnesses was wide-ranging: from fishermen associations, different Indigenous organizations and communities, national representatives of major industries such as mining, hydro power, electricity, cattlemen, and the list goes on.
Having such a wide range of witnesses demonstrates how far-ranging the amendments proposed to the Fisheries Act are in Bill C-68. A quick recap on the bill could be made by dividing the bill in two categories: the fisheries amendments and the industry amendments. On one hand, we have heard a lot of support from most fishing associations to support the bill for their sector, a work that began under the leadership of Gail Shea and the Conservative government. On the other hand, we have heard a lot of concerns and uncertainty regarding the amendments brought to the various industries.
As you may imagine, honourable senators, the committee had a difficult task ahead of itself, especially considering how it had to be done in such a condensed time frame. With only roughly 16 and a half hours of meetings, the committee had to review about 60 clauses over 66 pages. That was a big task in front of the committee and I believe we did well. Maybe with a little more time we could have gone deeper into the lingering issues to either find the reassurances certain witnesses were looking for or to bring amendments to the improved bill.
But here we are today at third reading. I would like to begin my remarks by discussing the fisheries aspect of the bill. Right from the beginning, we heard from many fishermen and various organizations on Bill C-68. The amendments contained in the bill would reinforce the well-appreciated policy known as PIIFCAF — fleet separation policy — which was adopted in 2007. It was adopted to ensure that commercial inshore fish harvesters remain independent and that the benefit of fishing licences flow to the fishers and to Atlantic coastal communities.
The fleet separation policy keeps ownership of the fish harvesting sector separate from the processing sector by preventing processing companies from acquiring the fishing licences of inshore vessels. The owner operator policy requires the holder of the licence for inshore vessels to be present on the boat during the fishing operations.
Similar policies have not been put in place in Canada’s Pacific fisheries. In British Columbia, owner operator and fleet separation policies have not been put into place, and the socio-economic aspect of the fisheries has been severely neglected. There has been a steady increase in licences and quota being transferred out of the hands of active fish harvesters and coastal communities. According to Dr. Rick Williams from the Canadian Council of Professional Fish Harvesters:
In a wide open speculative market in B.C., licence and quota prices become unaffordable for people making their livings from actively fishing. To keep fishing, many owner operators have to pay from 70 to 80 per cent of their landed value to lease quota from onshore investor owners. The most critical need is for more consistent and effective enforcement of the owner operator and fleet separation policies in the Atlantic and the development of parallel protections for Pacific region fleets, to maintain ownership and control of access rights by independent harvester enterprises based in adjacent communities.
As Dr. Williams very well explained, the situation on the West Coast is very different from the Atlantic due to the absence of PIIFCAF that ensures fishing benefits remain in our coastal communities. Some, like the minister, believe it is too little too late to save the independence of the fish harvesters on the West Coast:
We recognize there are challenges. I think, though, that even the folks in the Canadian Independent Fish Harvesters would recognize it’s not likely you can fully unscramble an omelette that is fully baked, but there are probably things we can look at to help think more about the position that harvesters are in on the West Coast.
But others like Chelsey Ellis, who appeared in front of the committee and has extensive experience in the fisheries on both coasts, doesn’t back down:
Fisheries on the West Coast have been labelled as too complicated to reverse or as having unique challenges compared to the East Coast. There has even been reference to it by the honourable fisheries minister as a scrambled omelette that is pretty much fully baked. I hope that the idea of something being complicated or challenging isn’t what’s stopping our government from making positive change that would benefit Canadians for generations to come. This definitely isn’t a situation that happened overnight, and we can’t be expected to fix it overnight.
Moreover, on the Atlantic side, the challenge seems to be to reinforce the policy, because over the years it has been circumvented. It has been done due to the legalizing of the control agreements due to allowing financial transactions to be exempt from the control definition. According to Gerard Chidley, who appeared before our committee on April 9:
Under PIIFCAF, the independent licence holders were assured that any new licence opportunities would go to them, but that has not been happening. In most cases, the controlling person or company has the resources . . . to have first-hand knowledge of new fisheries and emerging fisheries.
Federal policies should encourage the long-term sustainability of our fishing industry. Unfortunately, outdated policies remain that should be cleaned up in the new Fisheries Act.
So while most fish harvesters are in favour of a strong PIIFCAF to ensure fishing benefits remain in the coastal communities, there is definitely a call to also have some flexibility in the policy to adjust as we go on.
One only needs to look at the recent situation in New Brunswick. Over the last years, we have seen six snow crab licences exit the region. For every licence, we are talking about 16 jobs. Therefore, for coastal communities, that is 96 jobs that have left the region.
Recently, a snow crab licence was transferred out of the Acadian Peninsula to a harvester in P.E.I. Not to create any regional tensions, but it would also be unfair if it were the other way around. In this situation, the fish harvester did everything within PIIFCAF, having been a New Brunswick resident for at least six months and having the number of required years of experience.
After the required minimum residency and other requirements were met, the individual in question got the licence and moved to it to P.E.I. The rumour is that certain residents will use an address as a front to satisfy the residency requirement and then move the licence to their home province.
The last thing we want is coastal communities working against each other. PIIFCAF is meant to strengthen the coastal communities’ socio-economic activities, not improve one to the detriment to the other. The policy is being circumvented by individuals within the Atlantic Provinces as well, and therefore it is crucial that DFO closes the loopholes, strengthens the policy and has fines and punishments for individuals and companies who try to circumvent it.
I repeatedly said so during my third reading speech for Bill C-55 and again today: Fishing activity is crucial to all the coastal communities who depend on it. It goes way beyond just the fishermen. It creates processing jobs, it runs the local economy for the lumber, gas, grocery stores and buying local goods, et cetera. Let’s hope that putting PIIFCAF in law will strengthen the independence of the inshore fisheries and their communities after the hard work started in 2012 under the previous government.
On the other side of the coin, we had the industry portion of the bill, which would add different regulations to their daily activities. It’s important to point out that all of the various industries that the committee heard from want to protect the environment and the fish. None of them wants to harm fish, and furthermore, they want to be partners with the government to continue their activities while having a minimum impact on fish and its habitat.
If I could use one word to describe the regulations aspect of the bill, it would be “uncertainty.” The uncertainty was clear during the committee meetings around designated projects. How it will work and be enforced is causing a lot of uncertainty for industry representatives. The President of the Saskatchewan Mining Association said:
Before I outline some of the rationale for these amendments, I would like to reaffirm our members’ ongoing commitment to the protection of fish and fish habitat. Our concerns with the proposed act relate to how some of the changes would set aside decades of jurisprudence and operational practices. In our opinion, the proposed act would prompt numerous court challenges and years, if not decades, of uncertainty for DFO, industrial and agricultural operators, as well as rural and urban municipalities, further eroding investment in Canada.
Honourable senators, as you might know by now, the bill was reported from committee with several amendments. Two were ones that I put forward and were accepted by members of the Fisheries Committee.
First, the definition of the fish habitat required an amendment to bring some clarity and better precision on what constitutes a fish habitat. We heard from many witnesses that by including “water frequented by fish” in the definition of fish habitat, it would result in locations that are not essential for fisheries’ life-cycle processes to become subject to the act.
In the brief submitted to our committee, Cameco explained:
In doing so, locations that may only contain water for a brief period of time will be considered to be fish habitat.
As an example, any work, activity or undertaking in a location that may only contain water for several days every few years could be subject to the requirements of the Act. While fish may have the potential to frequent this area for a small period of time once every five years, the habitat is not essential for life-cycle processes.
By amending the definition to “any area on which fish depend directly or indirectly to carry out their life processes, including spawning grounds and nurseries, rearing, food supply and migration areas,” we maintain the important protection to the essential areas of life-cycle processes while having a balance that will not disturb or overcomplicate the work for different industries, such as mining. It would also allow for a better understanding for DFO on enforcing the fish habitat provisions and for stakeholders respecting it.
My second amendment that was passed by the committee and backed by DFO officials was on the removal of the upstream and downstream amendment.
The version of subsection 34.3(2) published in the first reading of Bill C-68 provided the minister with sufficient authority to make orders to ensure that the free passage of fish or the protection of fish and fish habitat in relation to an obstruction, including in relation to water flows.
Of particular concern was in the version of paragraph 34.3(2)(g), as amended by the House of Commons, is the power of the minister to require the owner of an obstruction to maintain the characteristics of water upstream of an obstruction. However, in many cases, the owner of an obstruction will not have an ability to control upstream water characteristics, which is why stakeholders like the Canadian Electricity Association have recommended the language be removed.
Therefore, I will conclude my remarks on the proposed clauses of the bill, which I tried to amend but was unsuccessful. We heard, as a committee, that the current wording in the bill in Section 2, “Purpose of Act 2.1,” should be slightly changed. As currently written, the purpose statement of the bill establishes two different clauses, one being an objective to manage fisheries as a resource while the other may be interpreted to conserve and protect individual fish.
If not corrected, this language will create conflict between the purpose of the act and the reasonable authorization by DFO of productive activities that may incidentally kill or harm fish or fish habitat, needlessly creating scope for legal challenge.
Allow me, honourable senators, to quote Terry Toner from the Canadian Electricity Association:
. . . the purpose statement should focus on the management and control of fisheries. As currently drafted, the protection or conservation of fish and fish habitat is set out as a distinct and self-contained purpose, whereas it should be subsidiary to the responsible and proper management and control of fisheries. To address this, we recommend combining the two clauses so that the objective of the act is clearer.
All that being said, to bring clarity to the bill and to avoid potential future legal challenges, as mentioned by some witnesses, I have an amendment to propose.
Motion in Amendment
Hon. Rose-May Poirier: Therefore, honourable senators, in amendment, I move:
That Bill C-68, as amended, be not now read a third time, but that it be further amended in clause 3, on page 3, by replacing lines 22 to 26 with the following:
“2.1 The purpose of this Act is to provide a framework for the proper management and control of fisheries, with due consideration for the need for conservation and protection of fish and fish habitat, including by preventing pollution.”.