May 7th 2019 - Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence - Various Witnesses
Senator Poirier: Again, thank you all for being here.
My first question is for Manitoba Hydro. Mr. Swanson, in your presentation, you say the water flow provision could result in increased costs over time — in the order of $3 billion — to Manitoba Hydro customers due to the loss generation and new infrastructure requirement.
What is the new infrastructure requirement that you are talking about? Could you elaborate a bit?
Mr. Swanson: I will first qualify and say I’m not a resource planner from the hydro planning side of things, but it’s thermal, essentially. If you’re not able to deal with demand in the moment, then there needs to be something else to back that up. As was referenced, an emitting greenhouse gas resource would be required to back up the lost operational flexibility from an ecological flows provision. That’s an example of an ecological flows provision that could be discussed, implemented or imposed.
Senator Poirier: In your brief, you commented on the so-called lost protections arising from the 2012 changes to the Fisheries Act and that they were overstated. Could you elaborate on that more concretely?
Mr. Swanson: Prior to the 2012 amendment, the word “activity” was added to the prohibition, which is significant. It is no longer a prohibition against harmful alteration and destruction of fish habitat for works and undertakings; it also includes activities.
From a utility perspective, it has implications for how we operate. That brings into the statute a broader range of assessments and considerations. Manitoba Hydro is not opposed to that; we would just prefer the clarity of having to deal with those questions and issues around fish population and fishery-level effects as opposed to an almost arbitrary application of that to all flows. I think that’s the concern industry has, is that the extreme interpretation that all flow is fish habitat and therefore should be protected is still one possible interpretation with the way the wording currently is.
Senator Poirier: Thank you.
My next question is for the Canadian Association of Forest Owners. I too will not try to pronounce your last name, because I will probably say it wrong. My apologies.
In your submission to the committee, you offered a few priorities for the committee to consider. At the top, you list engaging forest owners. Would you elaborate? Has the government not consulted with you at all on this?
Mr. Iannidinardo: The government has not yet had any formal sitting with the Canadian Association of Forest Owners or with our partners, the Canadian Federation of Woodlot Owners. We have submitted information to the committee and would like to have further consultation.
Senator Poirier: Have the other two witnesses been consulted? Have you had consultation with government prior to the bill being presented as is?
Mr. Swanson: Yes, primarily through industry associations.
Mr. Buy: I would not call a call — and potentially a call back after two months of delays — consultation. The answer would be no.
Senator Poirier: Thank you.
Senator Poirier: A lot of the points that I was going to talk about have already been addressed. I wanted to highlight a couple of items. In your presentation, Mr. Ginnish, you mentioned that the new definition does not recognize Mi’kmaq fisheries. Again, we heard from most of all the witnesses tonight, like we have in the past, from quite a few different groups that there was absolutely no consultation on the new definition in Bill C-68.
Also, Mr. Maud, you mentioned in your briefing comments like: “We expect that the proposed fisheries act Bill C-68 will provide protection not only for today but lasting many generations to come.” The wording tells me that you may have concerns that it may or may not happen.
Also concerns where you asked — on page 3 you mentioned : “We ask the Department to point out where that evaluation is in error.” But we don’t see that you’ve received a response to that.
The words also in another paragraph: “However, our inherent rights must be respected and the duty to consult must be doing all that.”
My colleague Senator McInnis said you have the patience, you do have a lot of patience. I want to say we hear that very clearly. At the same time, you also mentioned in your briefing that the bill is generally positive, an improvement and we must not delay its passage.
I guess my comments were not merely a question, but I would like to hear from any of you who would want to respond. Even though we want this passage, I feel from what I’m hearing is there is a disappointment at the lack of consultation. There is a concern over lack of things in the bill that would recognize Indigenous fisheries. Am I hearing this right?
Mr. Maud: Yes, you are, senator. Like I said, I only became aware of these amendments a couple of months ago. We haven’t had a chance to take this back to the community. There are nine Treaty 2 First Nations. It has to be translated into Ojibwe. Ojibwe is the mother tongue of most of our nine First Nations. I’m not a fluent speaker. I lost it at residential school. I’m a survivor. I can’t go back home and translate it.
That’s why I’m saying. A duty to consult, you must have language speakers who can translate — there are words that cannot be interpreted from Ojibwe to English and vice versa. For example, the word “surrender,” there’s no translation for the word “surrender” in Ojibwe. The only understanding of the word in Ojibwe is when you give up in war — when one side gives up. A lot of words have different meanings. Even the word “shall.” You try to explain that to our elders and you might get two or three different answers in our Ojibwe language. That’s the truth.
Being patient, really, we’ve been patient. That’s one of our virtues. Our people need to be consulted. Our people need to be told in the language. Like I said, it’s finding our elders. They want to participate. When I get back and, of course, I have to find a speaker that can translate in the language. Yes, the duty to consult must happen. It’s paramount. It’s paramount to moving forward.
Senator Poirier: Thank you.
Mr. Ginnish: I would add to that. The duty to consult in regards to our Aboriginal treaty rights is different than when government may be consulting a stakeholder. There’s a legal duty to do that. There’s a legal duty to do it meaningfully. That doesn’t always happen. In this case, we would say there was limited consultation. We were able to send in a couple of written briefs. We never got a chance to really sit down and thrash it out, discuss what it really means to us and what we think should be included.
What we would hear is that time is an issue, money is an issue, it’s hard to get everybody together, it’s hard to spend the amount of effort. From our perspective, we would say where it’s rights-based and affecting our rights, we have to. That has to happen at that higher order. That’s why we take every opportunity like this to over-share because we don’t get these opportunities all the time to let the government know at this level what it is that we’re actually experiencing, what the challenges are. Even when we meet with provincial governments in regards to areas that they hold jurisdiction over. There are so many challenges, so many tables that we’re trying to deal with.
In New Brunswick we have a rights-based table. Fisheries is one of those tables. It’s one of the most challenging tables. Yet we have committed negotiators at that table on a regular basis and we’re still having difficulty moving the ball forward.
Mr. Paul: The AFN is not a rights-based organization, we don’t do consultation, we’re not a rights holder. I need to acknowledge that this whole process started in 2016. While there seems to be a disappointment around the consultation with First Nations where a lot of the issues seem to be focused on section 35 rights, which are Aboriginal treaty rights, that those aren’t being respected and protected. Hopefully that can be put in here or consistency with the United Nations declaration. But this whole exercise under this current federal government was really reparations for what had happened under the previous federal government that didn’t do any consultation and passed laws gutting environmental protection and protection of fish habitats under omnibus bills.
We know there’s been an unprecedented engagement on this point. On the consultation part of it, our rights holders will determine what level they need to be engaged. It comes down to the emphasis on section 35 in the Constitution Act and making sure those rights are protected.
Senator Poirier: Thank you.