Senator Rose-May Poirier

Senator Poirier: I want to follow up a bit on the discussions that have already started.

I know full well of the impact a little or a lack of consultation can have on a community and the impact in the northeast of New Brunswick over whales and the closing of fishing zones. The impact on the fishermen, the fishermen helpers and the people working in the fish plants rippled off to people in the community having no money to spend, to buy things and to go out. It has an effect and is always a concern.

You’ve talked a lot about the lack of consultation and the importance of having it. You stated that the current drafting of the bill does not provide that the minister must consult with those who will be affected by the permanent MPA closures and that such an approach is completely at odds with how to arrive at a durable solution that all the parties can support.

Have you received a response from the minister on these concerns? Will your members be seeking an amendment on Bill C-55 to correct that and to make sure the consultation process is there? It is not that they don’t have to.

Ms. Burridge: We have not had a response from the minister or DFO. If the senators see an opportunity to propose an amendment, we would welcome that.

Senator Poirier: I also have a question on the time frame for the Fisheries Council of Canada. You mentioned that the average time frame for designating an Oceans Act MPA ranges from 7 to 10 years, which is significantly longer than the interim protection of the MPA for the five-year timeline.

In your view, is it feasible for the DFO to establish an Oceans Act MPA within the proposed five-year timeline?

Mr. Lansbergen: Our understanding is that they would do the science and consultation, which typically takes about two years. Then they would use the authorities under this legislation, which would take them from years three to seven. Although those five years are shorter than the 7-year to 10-year window, to the extent that they want to establish a number of MPAs to meet our 2020 target, or perhaps another target beyond 2020, it would seem a stretch, particularly given all the other activities and responsibilities they want to perform under Bill C-68, which will come to you next.

It does seem like a stretch, but the legislation also provides for an extension of the interim MPA for a second five-year period, although it is a little uncertain from our reading of the bill what happens at the end of the first five years, or certainly at the end of the second five years. Does it fall off the table and be freed up, or would the minister have to establish a permanent MPA? It’s not entirely clear, I don’t think.

Senator Poirier: Another recommendation made by your organization for establishing marine protected areas talked about selecting the right conservation tool for the operation. In your view, should Bill C-55 allow for more flexibility in its approach, and what conservation tools would you recommend?

Mr. Lansbergen: The flexibility comes from what they are trying to protect. Preferably they would talk to stakeholders before they formally identify an area of interest. Then we can talk about what particular tool would be most appropriate.

If it is a benthic attribute, maybe a static MPA might be the right approach. If it’s something more dynamic and the attribute is a particular species, more of a fishery management tool may be more appropriate. They need to make that decision with stakeholders at the very front end.

Mr. Bonnell: There are a couple of really good examples on the East Coast of stocks that are recovering or have recovered. We’re seeing a significant rebound in the Unit 1 redfish in the Gulf of St. Lawrence. A lot of people are really excited about the potential of that fishery. Georges Bank haddock would be another example.

Those stocks have and are rebuilding in many ways because of the fisheries management tools that already exist and the minister already has the ability to implement. Be it restrictions on harvesting activities, be it seasonal closures or be it small fish protocol issues, there are tools in the tool kit that are available today. Establishing an MPA would have had a very modest to minimal impact on the recovery of those stocks. They work, as Mr. Lansbergen indicated, when you need to protect a benthic environment that requires protection.

The seafood industry does not want to be fishing on corals or sponges. That is not our interest. It doesn’t work well. It’s not effective. Outside of those examples, there are robust management systems in place judging from the fact that we are a global leader in seafood sustainability and certification today. Those tools exist and are available to use now.

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Senator Poirier: Mr. Sullivan, you stated that you’re optimistic the consultations going forward will be meaningful to ensure socio-economic and cultural concerns. You made a comment a few minutes ago in answering another question that DFO had a responsibility to consult.

Basically I am asking a twofold question. First, to date, are your members’ socio-economic and cultural concerns reflected in the government’s decision making?

Also, you made the point that the DFO had a responsibility to consult. As I mentioned when questioning another witness earlier, the current drafting of the bill does not provide that the minister must consult with those who will be affected by a permanent MPA. I am just wondering if that concerns you.

Mr. Sullivan: I guess I will start off with how our members would feel about the process on meeting the previous 5 per cent and obviously foreseeing the inequities between different industries. I pointed out a couple of examples earlier about how Hawke’s Bay and Funk Island have to be revisited. The short answer is tat I am not happy or not pleased with the consultation on the previous work.

We have a large area called the northeast slope over 100 miles off the coast that has areas where harvesters can’t fish but the oil and gas can still operate. The areas where harvesters can’t fish don’t even count toward our targets. We’re probably looking at an area of 15,000 square kilometres where harvesters can’t fish and now we will have to find new areas because that doesn’t meet the targets. Harvesters will be slammed with the double-whammy if we don’t deal with that.

We’re obviously concerned about how the consultation is going forward. If there are considerations on fair and reasonable consultations with stakeholders that can make this better, we would be interested in something that would accomplish that for sure.

Senator Poirier: Mr. McNeely, in the second and third paragraphs on the last page of the documentation you went over with us, you mentioned the minister under the proposed section 35 and used the words:

. . . cannot Canada guarantee to Aboriginal peoples continued access to MPAs and areas of interest??

In the next paragraph, you use the same language:

. . . cannot Canada also work with Aboriginal peoples to determine the real economic and social value of the area to Aboriginal peoples and negotiate what is the appropriate compensation . . . .

Using the word “cannot” tells me they’re not doing so right now, which means that they’re not talking to them or are not consulting with them. Could you comment on that, please?

Mr. McNeely: I think this came up in the earlier panel too about socio-economic analyses. We have yet to have been engaged with the process with DFO on a true accounting of what the socio-economic costs or benefits are to our community for a marine protected area, a species at risk listing or any number of other regulations beyond what is normally counted, being the total landed value of a particular stock that you might not be able to fish any more.

For our communities particularly off reserve that do not have the social safety net of the Indian Act, we have stood for many years on our own two feet to provide social services for our members who are caught in a jurisdictional wasteland between federal and provincial governments. We have done that through some program money, albeit a very small amount compared to our brothers and sisters on reserve, but in large part particularly economic development through our fisheries.

The fisheries for the three Native councils that belong to MAPC are incredibly important. They are the lifeblood for our community. The cost or benefit of a regulatory decision for a marine protected area and potentially kicking us out of an area is much, much greater than the landed value of that fish.

It is the identity of our community. It is our social structure. It is our pride and our self-worth. That is not accounted for in socio-economic analyses that look at iterative steps that the government takes. I don’t know the whole terminology used by Treasury Board, but there is a very prescriptive process that SCIS and RIAS go through that really doesn’t get at what we feel should be in there.

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Senator Poirier: A couple of questions. My first question is for the representatives of Natural Resources Canada.

Although compensation is provided in Bill C-55 for the oil and gas sector, it is not provided for any other sector that could suffer economic impact because of the establishment of an MPA or an interim protection MPA. Has there been any analysis on the impact Bill C-55 would have on the forestry or mining sectors in Canada?

Mr. Gardiner: That is an interesting question. I don’t believe that has occurred in the context of Bill C-55 specifically. When MPAs are established or contemplated it activates the work I described earlier: a resource assessment and an economic assessment. My colleague can certainly speak to the resource assessment in more detail. That would encompass an analysis of the full suite of potential resources that could be impacted by the MPA decision. That would be the juncture for identifying impacts.

Senator Poirier: If I am understanding right, are you telling me that no analysis is done because you don’t feel there will be an impact on the forestry and mining sectors?

Mr. Gardiner: I guess the short answer is what we’re looking at here is an amendment to the Canada Petroleum Resources Act. It does not regulate mining or forestry in any way, shape or form. To my knowledge there are no acquired rights relating to forestry or mining that could be impacted by marine protected areas at this time.

Senator Poirier: How and why was the decision made to prohibit the oil and gas activities then within the Oceans Act MPAs?

Mr. Gardiner: There is no decision to prohibit activities at this time. These are enabling provisions. If the Minister of Fisheries and Oceans identifies an area that could become an MPA and there is an interim order to freeze that footprint, then the related kind of mirror amendments proposed to the Canada Petroleum Resources Act would be in play.

Those provisions allow for a Governor-in-Council kind of mirror freezing of the footprint in relation to oil and gas activities and at the request of the Minister of Fisheries and Oceans for the Minister of Natural Resources to pursue negotiations with interest owners.

Senator Plett: In other words, trust us.

Senator Poirier: Yes. I have another question again for the same gentlemen. A new subsection 35.1(2)(d) of Bill C-55 describes how the minister can exempt from prohibition:

. . . a foreign national, an entity incorporated or formed by or under the laws of a country other than Canada, a foreign ship or a foreign state.

Could you please explain the rationale for this new section and what recourse would be available if damage is caused in an MPA by an exempted party?

Mr. Gardiner: I am sorry. You caught me a little off guard with the specificity. Could you provide the section again?

Senator Poirier: Subsection 35.1(2)(d). Basically I want to know what recourse would be available if damage is caused to an MPA by a party that was exempted by the minister.

Mr. Gardiner: The minister being referenced here is the Minister of Fisheries and Oceans. It would make more sense to talk to him about that.

Senator Poirier: I will put it to them this afternoon.

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Senator Poirier: Minister, as you’re probably aware, I am from New Brunswick, more on the northeast or centre east. Last spring your government imposed a fishing zone closure on lobster fishermen without any meaningful consultation whatsoever on what would be the effect on the communities and the stakeholders. It was a great disappointment to them all. They had solutions of their own to strike the right balance and wanted to be partners to protect the marine habitat, but they felt they were ignored.

I am hoping this consultation will be different and not what will be expected concerning Bill C-55. Hopefully the consultation process will be a whole lot more open than what we have seen in the last year in New Brunswick with the lobster fishery issues.

Mr. Wilkinson: First of all, yes, the consultation process under Bill C-55 is intended to be very robust. I think the examples of some of the work that has been done in a number of the areas can demonstrate that quite clearly.

The specific issue you’re referring to are the regulations with respect to the North Atlantic right whale. Those were brought in very quickly in the aftermath of 17 right whale deaths out of a total worldwide population of 411. It was also brought in, in the context of concerns on the part of the Americans with respect to whether or not this would mean that they would need to act to put restrictions on Canada’s exports of seafood products to the States given non-compliance with what they have in place from a marine mammal perspective.

It was done very rapidly. There is no question about that. I do understand there was concern on the part of a number of fishing groups.

I held several round tables over the last few months on this issue, including one in Halifax that probably had 50 different fishing organizations, including a number from New Brunswick. We took the position very clearly that we were looking for creative solutions that would ensure we would protect the whales, but we would do so in a manner that responded to some of the concerns being raised around the table.

I committed to come back out to have conversations with the fishing community once we had actually developed the measures for this coming year, and I intend to keep that commitment.

Senator Poirier: Thank you for the update. Coming back to Bill C-55, when there is an impact on the community it has a trickle-down effect. It hurts everybody and it hurts the community.

Could you explain to me what provisions are in place for Bill C-55 for any economic loss that will be incurred by the communities that depend on commercial and recreational fishing?

Mr. Wilkinson: The focus again is consulting to get to the point where everybody agrees that protection in particular areas is important and should proceed. That certainly involves listening to the folks who may have socio-economic concerns and seeing what can be done to address those in the context of the fishery. It can sometimes involve different areas and allocations in different areas. That’s an important part of the consultation process.

At the end of the day there are at times costs associated with creating protection areas, but there are also significant benefits. Those benefits include benefits associated with restoring fish stocks, which will benefit coastal communities as well.

This is intended to be a process where we actually try to work through issues to get to the point where we can have agreement among everybody. It may not always be possible, but that is certainly the objective.

Senator Poirier: The Final Report of the National Advisory Panel on Marine Protected Area Standards made one recommendation in particular that I want to highlight:

That the government be transparent with local communities, Indigenous peoples, and stakeholders from the beginning and throughout the marine protected area establishment process, and in ongoing management of marine protected areas.

Do you intend to comply with the recommendation? Is your intent to be more transparent with local communities, Indigenous peoples and stakeholders to make sure that we involve them 100 per cent in the consultation process? They are the ones who understand what is going on in the water and it’s their livelihood. I just want to know if you intend to follow through with that.

Mr. Wilkinson: I would say at this stage that we haven’t responded formally to the panel’s recommendations. I think that one in particular would be easy to respond to. Of course, we should always be, irrespective of partisan stripes, endeavouring to ensure that there is transparency for Canadians in the context of work that we do.

While I think the department does quite a good job in terms of the consultative work that it does, we can always do better. We will be working, as we work through the development of marine protected areas and networks, to ensure that we are out meeting with communities and ensuring that there are opportunities for people to actually provide input. If there are ideas around this table about ways in which that can be furthered, I am certainly open to hearing those ideas.

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Senator Poirier: I asked a question this morning of National Resources Canada. They couldn’t answer and they recommended that I ask DFO the same question, so here I am.

Subsection 35.1(2)(d) of Bill C-55 describes how the minister can exempt from prohibition:

. . . a foreign national, an entity incorporated or formed by or under the laws of a country other than Canada, a foreign ship or a foreign state.

Could you please explain the rationale of this new section and what recourse would be available if damage is caused to an MPA by an exempted party?

Mr. MacDonald: The question relates to the interpretation of the Law of the Sea as it relates to Canada’s exclusive economic zone. We’re talking about the area between 12 miles offshore and 200 miles offshore. In the Law of the Sea there is the right of innocent passage of vessels, so foreign vessels can travel through our exclusive economic zone as part of their international rights under the Law of the Sea.

This provision says that within a marine protected area that activity can be restricted by the Governor-in-Council for the MPA, but the minister has the authority to exempt it if it doesn’t affect the conservation objectives.

The point of the amendment is to make sure that Canada is the one that makes the decision as to what vessels may be allowed to enter into a marine protected area or not and that it’s not a default to international law.

Senator Poirier: What recourse would be available if damage is caused to an MPA by the exempted party?

Mr. MacDonald: The damage is a function of the updates to the enforcement and the fines provisions of the Oceans Act. A large part of the bill is really bringing the Oceans Act up to the same level of fines and other provisions that other environmental statutes currently have. This is in lane with the Environmental Enforcement Act of 2004, which called for all environmental legislation to have similar fines, provisions and penalties. Certainly the fines, provisions and penalties, if such an infraction were found, would apply to foreign vessels as it would to Canadian ones.

Senator Poirier: Also under Bill C-55 some activities that are ongoing will be allowed to continue in the interim protection of the MPAs. However, certain ongoing activities regulated under the federal fisheries legislation could still be restricted.

Which ongoing fisheries activities could be restricted in the interim protection of the MPAs and why?

Mr. MacDonald: The Minister of Fisheries and Oceans has authorities under both the Fisheries Act and the Oceans Act. For the purposes of interim protection MPAs, the idea is that by freezing the footprint you’re restricting the increase of any activity regardless of whether it is under the purview of the Minister of Fisheries and Oceans or whether it is under the purview of another minister.

With regard to fishing, because it is under his purview he still retains the right under the Fisheries Act to restrict fishing activities should that be deemed necessary in the interim period.

Senator Poirier: Have you done any consultation on that? If yes, what feedback was heard from the stakeholders on these activities?

Mr. MacDonald: We have done numerous engagement sessions on this legislation both prior to its tabling in Parliament as well as subsequently. Certainly the fishing industry is well aware of the minister’s authority under the Fisheries Act.

They realize that there is congruency there in terms of establishing a protected area under the Oceans Act and his authority to regulate the fishing activities therein.

Senator Poirier: Clause 13 of Bill C-55 sets out the fines and punishments that individuals and corporations can face when they do not comply with the ship detention or compliance order or if they are contravene the prohibition establishments for the MPAs. The maximum fines of $2 million for individuals, $8 million for small revenue corporations or $12 million for other corporations seem quite severe.

How do these fines compare to other fines in the federal act? Based on what evidence or analysis are these numbers chosen?

Mr. MacDonald: It is the same fine provisions that we find in the Fisheries Act because the Fisheries Act was brought up to date with the Environmental Enforcement Act in 2012. The Canadian Environmental Protection Act, CEPA, has also been brought up to date.

The Oceans Act has not yet been updated since its passage in 1997. When the Environmental Enforcement Act was passed by Parliament it set out the fines and provisions that senator was describing. It calls for the other environmental statutes to be brought up to date when the opportunity presents itself before Parliament.

In this case we’re rectifying a situation where currently it is actually less expensive to pollute inside a marine protected area than it is outside of a marine protected area because while the Fisheries Act and CEPA have been brought up to date, the Oceans Act has not yet been brought up to date. That’s essentially the purpose of those provisions in this legislation.

Senator Poirier: Thank you for clarifying that.