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April 30th 2019 - Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence - Various Witnesses

Senator Poirier: Thank you all for being here. My question is for ATCO. In regard to hydro power in Canada, how do you think Bill C-68 will impact the development of hydro power going forward? Also, what do you believe to be the unintended consequences of Bill C-68 for you?

Mr. Kiefer: That’s a great question. We have studied hydro power since the 1980s, personally and as a company; it’s one the first projects I undertook when I joined the company.

It is a challenging proposition in a province that is, if you will, not blessed with the kind of water resources that Quebec, Manitoba or British Columbia has. Nonetheless, Alberta does have several waterways on which hydro power would make economic sense in today’s context.

The effect of Bill C-68 on our assessment would be that we would not propose a hydro development under this act today. The reason is the lack of clarity on the three matters that I put in front of you that present, in my mind, an inability to bring the economic benefit associated with disrupting the flow of a waterway, which every hydro project does.

I think Bill C-68 would have the effect of withdrawing analysis and proposals around developing new hydro projects. In fact, today we’re already seeing existing hydro facilities challenged to try to understand what their compliance would need to be under this proposed act for their renewal licences. We have an example in Saskatchewan where they have a hydro facility that was built in the 1950s and is not able to receive its renewal licence at the moment because of the uncertainty in the new act. That would be our primary concern, that this act would create a level of uncertainty around scope and application such that they would withdraw the investment proposals around hydroelectricity.

Senator Poirier: In your opinion, would you say that Canada already has the high standards of regulatory process for the hydro power products?

Mr. Kiefer: No, I would support many aspects of Bill C-68, outside of the three that we’ve mentioned as significant flaws, as being an improvement over where we are today.

We’re not asking you to consider the bill as not being an improvement. I think it is an improvement in many aspects, but there are three critical flaws that need to be addressed.

Senator Poirier: If I’m understanding correctly, the part that’s the biggest concern is adding the water flow provision in the bill and would effectively make new future projects impossible for you to complete or have difficulty?

Mr. Kiefer: I would say that it’s really the three elements: the water flow, the impact to individual fish versus fish populations and the lack of consideration of the economic benefits associated with a project on a waterway. Those three things combined are the things that would hold back investment, in our minds.

Senator Poirier: Have you had discussions on these concerns with the DFO and the Ministry of Fisheries on these water flow clauses of Bill C-68? Did they give you any interpretation of the clause and are they giving you any indication that they would be open to amending Bill C-68 and removing that part?

Mr. Kiefer: We have had extensive conversations with the Department of Environment and Climate Change Canada and the Department of Fisheries and Oceans. I think they are cognizant of the implications of some of the wording that has been introduced in the act. They did not give me assurance that if we were to rewrite it the way we proposed that it would be acceptable to them, but I think they are sensitive to the issues that we are raising. That’s the strongest assurance I could get out of them.

Mr. McDonald: To build on that, we have engaged as well with the department. Soon after the new clause was added, we submitted a letter to the minister and received a response that they were aware of concerns related to this and that the bill was, again, obviously proceeding through the Senate and that, if it was maintained, there might be an ability to look at this in the regulations.

What we have been messaging in all of these reviews is that addressing issues of the legislation within regulation is not appropriate practice. If there is an issue within the bill, it’s better to get it resolved within the bill as opposed to trying to address those later on through regulations.


Senator Poirier: Thank you all for being here tonight.

My first question is for the Mining Association of Canada. At any time, if the witnesses on video conference want to step in, please feel free.

In 2017, mining contributed $97 billion to Canada’s GDP. Do you think Bill C-68 will impact the development of future mining projects that contribute to the GDP?

Ms. Laurie-Lean: I couldn’t predict for you exactly by how much. It does depend on how good a job you do in reviewing this bill and then how good a job the government does in implementing it. It’s the aggregate of all the regulatory changes that will present a challenge. Even well-intentioned changes, changes for the better, can cause uncertainty. If the changes are not for the better, if people perceive increased gumming up of the decision-making process, that will further deteriorate the circumstances.

Investment in our sector has been going down. Initially, it was seen as a response to the commodity cycle when it went down earlier in the decade. Then commodity prices rebounded. We saw a big upswing in other mineral-producing countries, but we did not see the same upswing here in Canada. We are losing the relative competitiveness. It is not any one thing or any one government. It is all of them taken together that have created this atmosphere that Canada is no longer as competitive as other jurisdictions.

This bill, if it’s passed as is, would probably contribute to further deterioration. If those critical amendments to make sure it’s workable are passed, and if the department actually implements it as intended, with a graduated administrative burden commensurate to the level of risk in a reasonable fashion, then I think it would have neutral impact for our sector in terms of competitiveness.

Ms. Schwann: I support what Justina said. We’ve been through about 10 years of regulatory review on some major acts and regulations. That does have a cumulative effect on whether investors will be investing in Canada or looking elsewhere. It’s the uncertainty and the timelines that are critical. There has been a lot of uncertainty in how we can move projects forward in Canada and in Saskatchewan as well.

Senator Poirier: On the designated project, it seems that this new clause is more technical but will also bring unnecessary burden, if I’m hearing right. Could you give us a concrete example of a project being approved pre-Bill C-68 and what it would look like with the new clause after Bill C-68? Can anyone give us an example?

Ms. Laurie-Lean: There are a number of projects that have proceeded. In the case of the Fisheries Act, it applies not just to new major projects. It is the ongoing work of facilities where they need to build a new water crossing or to expand their facility. A recent example raised quite a bit of concern for us; a mining project needed to divert part of a highway to maintain safety. They were asked to get approval under the Fisheries Act for moving the highway because they were moving the drainage ditches.

Senator Poirier: How would that be different after Bill C-68?

Ms. Laurie-Lean: Under Bill C-68, with the designated projects provisions as they are written now, we’re not sure that mining project could go ahead if it were a designated project. We are not sure whether existing operations could continue. We wouldn’t know whether changing a roll of toilet paper in the corporate bathroom is considered an activity that is part of the project. Does that mean it requires a permit? We were advised by DFO that a constitutional lawyer considering the constitutional heads of power would determine that changing toilet paper or putting a flag up a flagpole does not impact fish habitat, therefore it would not fall under the Fisheries Act.

Our members do not employ constitutional lawyers in Nunavut. They are just not that handy, and I can’t imagine having to make that decision every time. It’s just the way it’s written, it’s difficult to figure out how it would work.

Senator Poirier: Thank you. Do you want to add anything?

Mr. Balicki: I think we agree with the examples that were provided. Another one that comes to mind for me would be a culvert associated with a new major project. For example, under the old system, if you had developed a mine and there are associated roads or bridges, the repair or maintenance of the bridge itself would not necessarily require a permit. Under Bill C-68, if that bridge was associated with your mine, and there is maintenance that has to be conducted, there is a chance that the proponent would have to get a permit to go out and complete works that do not affect fish or fish habitat. I think that adds to the administrative burden, both on the proponent’s side and the department’s side.

Senator Poirier: Thank you.


Senator Poirier: Thank you both for being here. At the beginning of April the Minister of Fisheries and Oceans, when he appeared before the committee, said there was an intention in Bill C-68 to ensure that there is strong Indigenous participation. Since then the committee has received briefs and heard testimony from Indigenous groups that some agree and some disagree with that statement. In your view, would the Fisheries Act, as amended by Bill C-68, ensure strong Indigenous participation?

Mr. Paul: Not the way it’s presently worded. We still don’t have implementation of the right. What we have implemented so far is an interim process. The government’s interim processes are not too interim, really. I believe it’s the government’s interpretation of a court ruling to what is probably its narrowest meaning.

I’ll give you an example of that. The first mandate that Fisheries and Oceans received from the government — I’m not sure, but I think it was about 10 years after the decision. We finally got a mandate. I’m in the room, and I’m hearing this. The person representing DFO is saying that we finally have a mandate to implement your rights but, by the way, there is no new access. So they are going to implement our rights without being able to get access to the fish, and we’re supposed to swallow that. It is so blatant.

At that time, the same person I was talking to who represented DFO got another mandate when the government changed and just added that. Now we’re going to be talking about access.

Senator Poirier: So the minister’s intention, when he said Bill C-68 would ensure there is a strong Indigenous participation, if I’m understanding right, Bill C-68 does nothing for you guys. Is that correct?

Mr. Paul: Well, it doesn’t address the Supreme Court decision that we have a treaty right to fish for our livelihood. That’s not what is being discussed at the highest levels. I’m sorry, but this is how I feel because of the experience I have had over the years. In 35 years as chief, the bureaucracy that is in existence has had a certain way of thinking, and we’re not part of that thinking. It’s brand new to the bureaucracy. The bureaucracy was not ready for this decision. I said that because I was told by those very bureaucrats.

Senator Poirier: They haven’t been ready in 20 years, and I don’t know how long it’s going to take them to be ready again.

Mr. Paul: I think it’s sort of an “us versus them” thing. It’s as if we’re going to harm or damage the economy of the country when, from my experience and what I have done, we help improve the economy. There are studies that prove that.

I’m a member of the National Indigenous Economic Development Board. We have some benchmarks in a number of areas. What those studies say is that, at the end of it all, the Indigenous people in this country contribute in a positive manner rather than a negative one. We’re not costing the government anything, really. We give back more than we get from the government.

I feel the mindset is not there. For some reason, all Indigenous people are afforded is maybe a box to check off that you have consulted with the Indigenous people. We didn’t get agreement. They didn’t like what happened. They don’t agree with doing this, but you can still check the box off because you have consulted with us, but it’s supposed to be in a meaningful manner.

Senator Poirier: Thank you.

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