Copyright © 2019 Senator Dennis Patterson.

Fisheries Act
Bill to Amend—Second Reading—Debate Continued

1st Session, 42nd Parliament
Volume 150, Issue 252
Tuesday, November 27, 2018
The Honourable George J. Furey, Speaker

Fisheries Act
Bill to Amend—Second Reading—Debate Continued


Hon. Dennis Glen Patterson: Honourable senators, I would like to begin by echoing the sentiments of my colleague Senator Plett, who voiced his support for the objective of this bill to protect fish and their habitat for future generations. I also support that objective, as I did when the Conservative government introduced amendments to the Fisheries Act in 2012.

These amendments not only supported the conservation of fish but ensured man-made structures being built on or around bodies of water that do not support fish were not subject to the massively bureaucratic and cumbersome process of regulatory approval.

The government of the day found current rules on fish habitat in the Fisheries Act were indiscriminate, confusing and far-reaching. It subjected all activities, from the largest industrial development to the smallest personal project on private land, to the same rules, which is unnecessary to protect the productivity of our fisheries.

We heard from Canadians, including many in Western Canada, who had countless stories of DFO employees zealously protecting ditches, man-made reservoirs and flood plains. Fisheries protection policy should focus on the habitat that supports Canada’s fisheries and not on farmers’ fields and flood plains.

As Minister Ashfield said at the time:

We do not believe it is sensible, or practical, to treat all bodies of water — from puddles to the Great Lakes — the same way, and our government is making long-overdue changes . . . on what is important to Canadians.

When we debated the changes then, I gave examples of how the changes would help adopt a common sense approach that focuses on managing threats to Canada’s recreational, commercial and Aboriginal fisheries and the fish habitat on which they depend.

The Conservatives’ new approach drew clear distinctions between different types and sizes of projects and waterways, and took into account the potential serious harm to our fisheries. It recognizes fish habitats differ greatly. However, Bill C-68 would restore the uncertainty to potential proponents of major development while making no substantive change to the protections afforded in the bill.

During committee review of the bill, new subsection 2(2) was proposed and adopted. It currently reads:

For the purposes of this Act, the quantity, timing and quality of the water flow that are necessary to sustain the freshwater or estuarine ecosystems of a fish habitat are deemed to be a fish habitat.

Honourable senators, by adding “water flow” into the definition of fish habitats, a move not originally even contemplated by the drafters, new subsection 2(2) would increase the potential scope of pollution prevention activities under the Fisheries Act, unnecessarily duplicate tools already afforded to the minister under the bill, increase the uncertainty and confusion for proponents, unnecessarily complicate the permitting process and increase the risk of inconsistency between federal and provincial regulators.

By adding this particular wording to the bill, I fear the author of this amendment, brought forward by the Green Party of Canada, would expand the scope of the bill to assess and address potential impacts on an ecosystem rather than focusing on the impacts to bodies of water capable of supporting fish.

One stakeholder raised the question to me. I will in turn ask this to all of you: Does the inclusion of “quantity, timing and quality” of water flow to the definition of “fish habitats” give DFO the ability to treat industrial, agricultural and municipal water flow locations as fish habitat? There are various sections in the bill that already empower the minister and the department to collect samples and analyze the potential impacts of an obstruction or thing that could potentially be harmful to fish or fish habitat.

The minister, under new section 34.2(1):

. . . may establish standards and codes of practice for

(a) the avoidance of death to fish and harmful alteration, disruption or destruction of fish habitat;

(b) the conservation and protection of fish or fish habitat; and

(c) the prevention of pollution.

New section 34.3(2) also allows for a minister to take a variety of actions should the minister feel it is “necessary to ensure the free passage of fish or the protection of fish or fish habitat . . .”


Why, honourable senators, should we support a section of the bill that is not only duplicative but confusing? I have serious concerns this bill in its current form is even enforceable. I can foresee some challenges to this current definition of fish habitats from proponents; an unnecessary and, in my opinion, wholly avoidable cost.

Additionally, Bill C-68 currently has a clause that provides for proponents to anticipate challenges by the minister. New section 37(1) states that:

. . . the person shall, on the request of the Minister— or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide him or her with any documents — plans, specifications, studies, procedures, schedules, analyses, samples, evaluations — and any other information relating to the work, undertaking or activity, or to the water, place, fish or fish habitat that is or is likely to be affected by the work, undertaking or activity. . . .

— to build the case to the minister that their activities will not cause deleterious effects to fish or fish habitat.

However, because of the uncertainty this bill would create, we may see proponents feel a need for a more formal assessment in an effort to provide themselves cover. Permitting decisions may well become more complex and expensive.

Different regulators at the federal and provincial level may interpret fish habitat differently. All this adds disincentive after disincentive to undertake major projects in Canada.

At a time when other regulatory and legislative changes are already threatening Canada’s competitiveness, I worry about what Bill C-68, without amendment, will do to further dissuade proponents from doing business in Canada.

Honourable senators, that is why I cannot support Bill C-68 in its current form. Thank you.

(On motion of Senator Martin, debate adjourned.)