CHER Committee Meeting

STANDING COMMITTEE ON CANADIAN HERITAGE

COMITÉ PERMANENT DU PATRIMOINE CANADIEN

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 11, 1999

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[English]

The Chairman (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): I declare open the meeting of the Standing Committee on Canadian Heritage.

[Translation]

Consideration of Bill C-48,

[English]

an act respecting marine conservation areas.

[Translation]

is the subject of today's meeting.

[English]

I apologize that we have few members; they are on their way. We have a lot of other committees going. I myself was at another committee, so it takes time to get here. But rather than delay proceedings, I suggest we start.

We have with us, from the Fisheries Council of Canada, Mr. Patrick McGuinness. We also have, from the Canadian Aquaculture Industry Alliance, Mr. Marc Kielley, who is the executive director in Newfoundland; Mr. Pierre Stang, the acting executive director of the alliance; and Dr. Myron Roth, the acting executive director of the Salmon Health Consortium.

I'll invite Mr. McGuinness to make his remarks to the committee.

Mr. Patrick McGuinness (Vice-President, Fisheries Council of Canada): Thank you very much, Mr. Chairman and members of the committee. It's a pleasure for the Fisheries Council of Canada to appear before the committee to discuss Bill C-48, an act respecting marine conservation areas.

The Fisheries Council of Canada is a trade association representing provincial fisheries associations in Atlantic Canada and Ontario. As well, the Fisheries Council of Canada represents three major fleet sectors—the deep sea groundfish, northern shrimp, and scallop fleets.

I'll make a few overview comments and then deal specifically with some elements of the legislation.

As an overview comment, I will say that this bill represents a unique dilemma to us in the fishing industry. We object to the bill in principle. However, the bill is also a good example of putting in place appropriate legislative parliamentary checks and balances on ministers and governmental officials.

If there's a need for legislation to establish marine conservation areas, it is our view that such legislation should be incorporated into the recently passed Oceans Act under the responsibility of the Minister of Fisheries and Oceans and administered by the Department of Fisheries and Oceans. It is simply inefficient, cumbersome public administration to bring forward this MCA initiative in its own act under the responsibility of a separate minister and a separate department.

The fishing industry, for example, is working with the Fisheries and Oceans minister and Fisheries officials regarding development of an oceans strategy for Canada and an approach to the introduction of marine-protected areas. These tasks are the result of the establishment of the Oceans Act in 1996, an act that state in part II, section 29 that the Minister of Fisheries and Oceans:

...shall lead and facilitate the development and implementation of a national strategy for the management of estuarine, coastal and marine ecosystems...

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Bringing forward this MCA initiative at this time under the responsibility of the Minister of Canadian Heritage, to be administered by officials of Canadian Heritage, undermines the oceans leadership role assigned to the Minister of Fisheries and Oceans under the Oceans Act.

If the challenge for Canadian industry in the milieu of globalization is to be streamlined and efficient, we should be able to demand government structures that are also focused and streamlined. Regardless of the merits of MCAs, of this initiative, the manner in which it is brought forward will lead to confusion, duplication and conflicts in its implementation.

Marine conservation areas are not parks. If a marine conservation area is warranted in a particular area, it should only be approved as part of an integrated oceans management plan. Work toward the development of these plans is now beginning under the auspices of the Oceans Act, led by the Department of Fisheries and Oceans, to form part of an ecosystems approach. To establish a freestanding legislation outside the Oceans Act regarding marine conservation areas would be a prime example to Canadians and people involved in oceans issues around the world of ineffective government. If MCAs are to be an important initiative for Canada, let us have them clearly part of Canada's oceans strategy, wherein the MCA tool could be assessed along with other tools, such as marine protected areas.

Finally, Heritage Canada has no scientific capability to assess whether an MCA is ecologically warranted or not. This expertise resides in the Department of Fisheries and Oceans.

We now have some specific comments with respect to the actual words of the legislation.

Notwithstanding our opening comments and our objections to the bill, the actual drafting of the legislation is commendable in many respects. We fully support provisions in clause 5 and clause 7 that the Governor in Council establish a marine conservation area—not ministerial discretion—and only after the appropriate committees of the House of Commons and the Senate have had the opportunity to review the MCA proposal.

However, we have the following recommendations. In subclause 5(1) we suggest the addition of this following last sentence:

An amendment to Schedule 1 under this section regarding the establishment or enlargement of a marine conservation area that could affect an ongoing commercial fisheries may be made only if the Governor in Council is satisfied that the Minister of Fisheries and Oceans concurs with the amendment.

Another recommendation is with respect to subclause 7(1). We would add this last sentence to that section:

With respect to a proposed amendment that could affect an ongoing commercial fisheries, the proposed amendment shall be referred to the standing committee of each House that normally considers matters relating to fisheries.

We fully support subclause 9(4), wherein MCA management plans respecting fishing, aquaculture, fisheries management, marine navigation and marine safety are subject to agreement with the Minister of Fisheries and Oceans.

We give full support to subclause 11(1), requiring that a management advisory committee be established for each MCA regarding the formulation, review and implementation of the management plan for the MCA. We also support subclause 16(2), which requires that regulations respecting fisheries management and conservation or that restrict or prohibit fishing or aquaculture, marine navigation and safety may be made only on the joint recommendations of the Minister of Canadian Heritage and the Minister of Fisheries and Oceans.

In conclusion, Mr. Chairman and members, the Fishery Council of Canada strongly objects to the form of the bill. The bill should be withdrawn. Discussions should be initiated with officials of the Department of Fisheries and Oceans with a view to bringing forward an amendment to the Oceans Act to specifically provide for the establishment of marine conservation areas, where warranted, as part of Canada's oceans strategy.

However, if the above advice is rejected and the bill proceeds, we support some of the recurring themes of the legislation, namely that the Minister of Fisheries and Oceans must concur on initiatives affecting fisheries; the need for a public sector-private sector management advisory committee to implement a designated marine conservation area; and a final quick, tightly structured reference to the House committees regarding an MCA proposal.

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I have one final comment. With respect to the reference to the House committees proposed in the bill, we believe the bill strikes the right balance. We would object to any enhanced role of the committees beyond that envisaged in the bill. While we want to guard against initiatives that may be bulldozed through by ministers and officials, we do not want public policy issues that have received considerable consultation, discussion, and accommodations to be held hostage to committees that have not benefited from the dialogue of competing interests, and therefore committee members may tend to make judgments on a narrow basis.

Once again, thank you very much, Mr. Chairman and members of the committee, for inviting the Fisheries Council of Canada to make a presentation.

The Chairman: Thank you, Mr. McGuinness. Your presentation was both very concise and very clear.

I would like to call now on Mr. Kielley.

Mr. Marc Kielley (Executive Director, Newfoundland, Canadian Aquaculture Industry Alliance): Thank you, Mr. Chairman and members of the committee, for enabling the Canadian Aquaculture Industry Alliance to appear today before you concerning Bill C-48, an act respecting marine conservation areas.

The Chairman: Mr. Kielley, I understand your brief was sent only in English.

Mr. Marc Kielley: Yes.

The Chairman: It wasn't translated.

[Translation]

We have just received the text and it is not translated.

A voice: It is in English.

The Chairman: Yes, you have it in English, sir.

[English]

Go ahead, Mr. Kielley.

Mr. Marc Kielley: The Canadian Aquaculture Industry Alliance is a national association representing the interests of regional and sectoral aquaculture associations and their members involved in the farming of both finfish and shellfish. I would now like to give you a brief overview of our position on this issue.

In assessing the merits of the legislation, one must not look at Bill C-48 in isolation, but also in light of all other existing and relevant legislation and policies. In forming our viewpoint, we examined Parks Canada's guidelines and operating policies for marine conservation areas, which is the policy underpinning for the legislation. We also looked at the National Parks Act and the Oceans Act.

This bill is of particular interest to the aquaculture industry, and more so in Newfoundland, where a marine conservation area is proposed in a region where there is considerable aquaculture and fishing activity. The bill was assessed relative to its impacts on traditional and existing users of the marine resource and tested against the conservation objectives put forth in the proposed legislation. Overall, while we respect the need for conservation, we object to the bill for a number of fundamental reasons.

At issue: The coming into force of an act to create the national marine conservation areas will result in unnecessary and expensive duplication of existing legislation, specifically the Oceans Act, 1996, as well as the National Parks Act as amended in 1988. Bill C-48 will also duplicate certain regulations already enforced under legislation, for example, the Fisheries Act. It will create additional bureaucracy and has the potential to foster a plethora of inter-agency conflict. Parks Canada's mandate will conflict with traditional and existing commercial marine users, and the resulting climate of uncertainty will discourage private and public investment in aquaculture.

The industry position: It is the position of the aquaculture industry that Bill C-48 should be withdrawn. We are of the opinion that this proposed legislation could best be addressed under the Oceans Act under the responsibility of the Minister of Fisheries and Oceans.

Within Canada there are at least 36 federal acts and 20 provincial and territorial acts, together with numerous international conventions and accords, that relate to the protection and use of the marine environment and marine resources. Amendments to the National Parks Act were made in 1988 to allow for the establishment of marine protected areas on an interim basis. With the passing into law of the Oceans Act in 1996 and under the provisions of part II, subsection 35(2) of that act, the Minister of Fisheries and Oceans is mandated to “lead and coordinate the development and implementation of a national system of marine protected areas on behalf of the Government of Canada”.

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Subsection 35(3) of the Oceans Act goes further in mandating the Governor in Council, on the recommendation of the Minister of Fisheries, to make regulations pertaining to designating marine protected areas, and prescribing measures that may include but not be limited to the zoning of marine protected areas, the prohibition of classes of activities within marine protected areas, and any other matter consistent with the purpose of the designation.

Given the provisions of the Oceans Act to protect and conserve and the mandate of the fisheries minister to collaborate with other ministers, boards, and agencies of the Government of Canada, with provincial and territorial governments, and with affected aboriginal organizations, coastal communities, and other persons and bodies, the minister:

shall lead and facilitate the development and implementation of a national strategy for the management of estuarine, coastal and marine ecosystems in waters that form part of Canada or in which Canada has sovereign rights under international law.

Such a national strategy is to be based on the principles of (a) sustainable development, that is, development that meets the needs of the present without compromising the ability of future generations to meet their own needs; (b) the integrated management of activities in estuaries, coastal waters, and marine waters that form part of Canada; and (c) the precautionary approach, that is, erring on the side of caution.

The Minister of Fisheries is also tasked to lead and facilitate the development and implementation of plans for the integrated management of all activities or measures in or affecting estuaries, coastal waters, and marine waters that form part of Canada or over which Canada has sovereign rights under international law.

So with regard to the implementation of the integrated management plans, the Minister of Fisheries and Oceans shall develop and implement policies and programs with regard to matters assigned by law to the Minister, and shall coordinate with other ministers, boards, and agencies of the Government of Canada the implementation of policies and programs of the government with regard to all activities or measures in or affecting coastal waters or marine waters.

In addition to the Oceans Act, the Minister of Fisheries and Oceans, under the provisions of sections 35 to 43 of the Fisheries Act, has clear authority and a mandate to protect fish habitat and is equipped to enforce such provisions and to prosecute offenders.

Based on the foregoing, it is abundantly clear that Bill C-48 is redundant legislation and, if passed, would only serve to confuse and complicate issues relating to the protection and conservation of marine resources and marine ecosystems.

The aquaculture industry recognizes that marine ecosystems are highly complex, while at the same time highly resilient and amenable to sustainable resource use. Given the complex balance between habitat protection and resource management and use, it is not evident to the aquaculture industry that the Parks Canada Agency possesses the scientific staff, knowledge, and management expertise to take a leadership role in the marine conservation initiative. One cannot begin to draw a parallel between the operation of a national park on land and what amounts to a national park in the marine environment.

The proposal to establish a system of national marine conservation areas creates the perception of two ministries of the government engaging in what appears to be a turf war, the purpose of which is as yet unclear. Too often perception becomes reality, and this begs the question, what is the NMCA trying to protect that is not already covered under an existing management plan or legislation?

To empower the Minister of Canadian Heritage for the MCA initiative effectively undermines the authority and mandate of the Minister of Fisheries and Oceans as provided for under the provisions of the Oceans Act. This should not be permitted to occur.

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What is the difference between a marine protected area and a marine conservation area? How do these two seemingly similar elements fit into the overall tapestry of integrated coastal zone management? What about marine wildlife areas?

It was the hope of the aquaculture industry that the coming into force of the Oceans Act would herald an era of coordination and control by one ministry of government over all matters and activities related to the marine environment. It appears that this hope was unfounded.

I would like to call your attention to some other elements of Bill C-48 that cause concern for aquaculturalists.

The first issue pertains to zoning. As far as aquaculture uses are concerned, the potential for jurisdiction confusion is even more pronounced. If we examine the zoning arrangement proposed by Parks Canada in its policy document, we'll see that it calls for three management zones. Zone I, referred to as a preservation area, would essentially state that renewable resource harvesting would not be permitted. Zone II, a natural environment, would be a buffer zone around zone I. Recreational hunting, fishing, and aquaculture would be prohibited. Zone III would be the conservation zone, and aquaculture would fall under this category. Renewable resource harvesting would be permitted subject to various conditions. However, in the grand scheme of things aquaculture is not really deemed an appropriate activity. I will get into that point a little further.

What will be the criteria and who will determine the demarcation of the proposed zoning concept? Clearly, under this scheme individuals are going to be displaced, because under zones I and II aquaculture is not permitted, and under zone III aquaculture is given bottom priority. Aquaculture requires specific site characteristics to be feasible and must have reasonable access to growing areas that have the desirable biophysical characteristics to support sustainable aquaculture activities.

Using Newfoundland as an example of a current effort to establish an MCA, Parks Canada proposes to establish a marine conservation area from Cape Bonavista in the east to North Head, Notre Dame Bay. In this area there are 35 aquaculture farms currently located. The vast majority are shellfish sites, primarily mussels. The area also includes some of the finest cod farming sites on the island. If you factor in the proposed preservation or buffer zones, the entire shellfish industry and the emerging cod farming industry on the northeast and northwest parts of the island will be impacted. This area accounts for 85% to 90% of mussel culture in Newfoundland. The zoning would place many of the farm sites off limits to coastal residents, who are hard pressed for economic opportunity. Furthermore, there is no mention of compensation for individuals and/or operations that could potentially be displaced under the zoning scheme.

With regard to section 3.3 of Parks Canada's guidelines and operating policies, of great concern to us is the anti-aquaculture bias contained in this section. In this section fishing is considered an appropriate activity in zone III areas, subject to protecting the marine conservation area's ecosystems, maintaining viable stocks, and attaining the purpose and objectives of the MCA. Aquaculture, on the other hand, may be permitted in zone III if it does not impair the structure and function of the MCA's ecosystems and does not conflict with other fisheries, navigation, marine outdoor activity, and public education activities.

Clearly, this bias and order of precedence runs counter to the federal aquaculture development strategy as well as provincial coastal development policy. Moreover, it does not recognize the right of aquaculturalists to have equal access to marine resources, nor does it recognize the historical presence of commercial activities already operating in the area.

This zoning concept is totally unacceptable and will cause great harm to coastal residents struggling to survive the collapse of the capture fishery and the post-TAGS era by effectively cutting off their most promising avenue to re-establishing their livelihood and their dignity.

Now I would like to address some issues with regard to the precautionary principle.

At first glance the precautionary principle appears to be a reasonable means to evaluate risks or threats to the environment. Through the use of the precautionary principle, not only as outlined in this bill but also in others, the government is enabling itself to develop, modify, and proceed with management plans without scientific certainty or accountability. This may lead to a situation where personal opinions, beliefs, and affiliations could become the determining factors in decision-making. In view of the lack of clarity with respect to the definition and meaning of the precautionary principle, we are not convinced that Parks Canada will be in a position to properly interpret the scope and application of this concept in the marine environment, where Parks Canada has little experience or scientific expertise.

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Any legislation should state clearly within it, not just in the preamble, which does not have the force of law, what is meant by the precautionary principle, what its scope is, and what the criteria or parameters are that will be used in evaluating or assessing all factors that are to be considered.

Regarding resource assessments, it is our understanding that Parks Canada Agency has demonstrated a serious concern with regard to the displacement of certain industry sectors as a result of the establishment of an MCA. More specifically, we refer to the mineral and energy resource assessment, or MERA, initiative. To our knowledge, such resource assessment has not been considered for the aquaculture industry, an industry that offers the most immediate and beneficial prospects for coastal and rural populations.

To conclude, Mr. Chairman, we believe we have demonstrated conclusively that Bill C-48 is redundant legislation, and that with minor amendments, the existing Oceans Act under part II, marine protected areas, could easily accommodate any specific requirements that would be required to address a marine park. The legislation establishing marine conservation areas, if adopted, would create a major impediment to further aquaculture development by creating uncertainty and eroding property rights of aquaculturalists, which would discourage potential expansion and investment.

We fail to understand why, with several thousands of kilometres of coastline representative of the Newfoundland shelf, the Government of Canada would even consider establishing a marine conservation area in the most prime area for aquaculture and fisheries activities. Such a situation is even more difficult to understand when one considers the potential impact on the established aquaculture and fishing operations in the Bonavista and Notre Dame Bay areas of Newfoundland. We believe the good people of Newfoundland have suffered enough with the collapse of the wild fishery without now having to face the threat of being displaced and losing their livelihood to an incompatible concept.

Thank you very much for the opportunity to present here today.

The Chairman: Thank you very much, Mr. Kielley.

I will now open the meeting to questions. Mr. Mark.

Mr. Inky Mark (Dauphin—Swan River, Ref.): Thank you, Mr. Chairman.

I would like to thank the delegates for being here this morning. Your comments have certainly been an eye-opener for me. It's a real education.

As you know, this piece of legislation crosses numerous ministries. My question always has been how it impacts on the other ministries, and whether this piece of legislation is really necessary. As you know, this piece of legislation impacts on Environment, Natural Resources, Indian Affairs, Fisheries, and Transport.

I'd like to ask Mr. McGuinness this question. You indicated in your submission that you think the bill should be withdrawn, yet you go ahead and make amendments to the different parts. Do you believe these amendments should exist in this legislation or in someone else's legislation?

Mr. Patrick McGuinness: Well, our position is clear. This MCA initiative should be in the Oceans Act; it should be an amendment to the Oceans Act. However, recognizing that we cannot foresee the future, we're saying that if at the end of the day this bill goes forward, and it's under the Minister of Canadian Heritage, administered by Canadian Heritage officials, we've introduced proposed amendments that would give significant checks and balances to the Minister of Fisheries and Oceans and Fisheries officials, and to our council in terms of making representations. So we're covering both avenues, if you will, but the bottom line is that we are recommending this bill be withdrawn.

Mr. Inky Mark: My last question is how were your organizations consulted in this whole process, what activities actually took place, and when?

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Mr. Patrick McGuinness: Actually, the consultation has been fairly good in the sense that Canadian Heritage knew where we were coming from. I think to some extent some of the language in the bill is in response to some of the comments we made with the department and the drafting officials prior to the bill being tabled in the House, in the sense that we were highly concerned about this initiative coming forward under Canadian Heritage and we would certainly be looking for significant checks and balances in the legislation.

As we point out in our document, we do think that any proposal from an MCA is not going to be, if you will, a discretionary decision of the Minister of Canadian Heritage but of the Governor in Council. We're recommending that the Governor in Council would have to be satisfied the Minister of Fisheries and Oceans is... But the bottom line is that the consultation has been good in terms of a dialogue. Unfortunately, Canadian Heritage didn't take the full message and simply suggest to their minister not to go forward with the bill.

Mr. Inky Mark: Mr. Kielley, could you respond to that question?

Mr. Marc Kielley: Sure. Regarding Patrick's final comment there, I think basically Canadian Heritage is not getting the message that people are very, very concerned about this, particularly in Newfoundland.

I have a great deal of experience with this, because I'm serving on the National Marine Conservation Area Advisory Committee back in Newfoundland, which has been tasked to look at the feasibility of establishing this conservation area. I guess we got involved in this reluctantly because Parks Canada had moved ahead, first of all, to identify an area where they wished to establish a park. We were not involved in the process of which area they were going to choose or what criteria they were going to use to identify an area, and now we're engaged in a process where they want to develop a park here.

People feel extremely threatened by it. In the process, in the various committee meetings we're having, some of the issues I have raised today have been brought forward, and there are many, many more because, as is the case with this, the devil is in the details. There are quite a few problems when you get into analysing Parks Canada's guidelines and operating policies. The language is not very friendly, particularly toward aquaculture. There's potential there that could threaten the farmers' land and water tenures. There's no provision for compensation. And overall we find their philosophy is just not compatible with commercial activity.

Having said that, it seems to fall upon deaf ears every time we raise this issue with Parks Canada. They seem to be on a separate track. They're not listening to us.

The issue is getting very heated in Newfoundland. I can tell you that recently there was a public town hall meeting held in a place called Musgrave Harbour, and 500 people turned out at the meeting. There were a lot of very upset people there, because they feel their fishing and aquaculture livelihoods are severely threatened. I see this potentially as a powder keg ready to go off.

I'm not sure what we have to do to get the message through to them. This is the reason I'm here today, to present our viewpoint in the hope that you can carry back to Heritage Canada this message that we're not happy.

Mr. Inky Mark: Thank you very much.

[Translation]

The Chairman: Ms. Tremblay.

Ms. Suzanne Tremblay (Rimouski—Mitis, BQ): Good morning, gentlemen.

I was both pleased and a bit sad hearing your presentations. The Bloc Québécois feels about the same way you do about this bill. We have been opposed to it from the beginning, independent of the fact that Quebec feels to some extent that the federal government is once again intervening in an area that is provincial to a certain degree.

We oppose this legislation, among other reasons, because it contains a proposal to set up a new structure that would be redundant, given the Fisheries and Oceans' marine protection areas and Environment Canada's protected marine areas. Moreover, consultations were held, and Fisheries and Oceans has published the results in a report. We were concerned to read:

There is still considerable confusion among stakeholders regarding the various federal programs on marine protected areas.

The departments involved should harmonize and collaborate in establishing marine protected areas.

That is what they should do instead of competing with each other.

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I have been here for five years and it is my experience that every time the Department of Canadian Heritage and some other department are involved in the same initiative, nothing works. We have seen enough examples to know all the problems that can arise. There have been difficulties at the CRTC, where Heritage Canada and Industry are involved, and in the area of copyright, which also brings together Heritage Canada and Industry. There is always someone somewhere leading a power struggle between the departments.

You said that you are somewhat reassured by the fact that decision-making power would not rest with the minister but with the Governor in Council. The Governor in Council is basically nothing more than the ministers as a group. When a minister wants something, and if his or her colleagues agree, it is presented as being a decision of the minister. It is rare that a well orchestrated initiative of Cabinet...

I have two questions for you, to begin with. My first question is for the first group of witnesses, the Fisheries Council of Canada. I would like you to explain exactly who you represent, who you work on behalf of, who you advise. Are you totally independent?

Along the same lines as Mr. Inky Mark, I would like to ask why, if you are against the bill, you are making recommendations to us to improve it. Is that a compromise you are prepared to accept if the Liberal government, which has the majority and can pass any legislation it wants, turns a deaf ear to our pleas? Are you trying to limit the damage by proposing amendments?

Mr. Patrick McGuinness: Thank you very much, madam. We agree with you.

[English]

Our organization, the Fisheries Council of Canada, is totally independent of the Government of Canada and of provincial governments. We are here as a lobby organization in Ottawa representing what we call provincial associations, such as in Quebec, l'Association québécoise de l'industrie de la pêche, which are primarily companies that are in the processing side of the business, plus companies that are integrated, having both their own processing plants and their fishing vessels. And we represent Atlantic Canada plus the association in Ontario, which is primarily buyers and sellers of fish and seafood products.

We're an industry association; we're not a fishermen's association. However, many of the companies that are members of our association also own a significant number of fishing vessels.

You're right, we have a position similar to yours in objecting to the bill because of the resulting duplication and inefficiency. It's just bad government. It's bad public administration.

However, we've been in this town for many years and we have worked with various departments and with various governments who have been in power. So all we're suggesting is that we're trying to identify how, from our point of view, there could be damage control. We are suggesting those amendments that at least would enhance the checks and balances that are missing in the bill we see today. The checks and balances we want are to be able to ensure that the Minister of Fisheries and Oceans and the officials of Fisheries and Oceans are working with our industry, and in terms of this, there are the types of problems flowing out of this bill whereby we have a good chance to make our points known and affect the outcome.

[Translation]

Thank you for your question. We agree with you, but life is made up of compromises.

Ms. Suzanne Tremblay: May I continue?

Since there is no such thing as an indiscreet question but only an indiscreet answer, may I ask you whether, as a lobby group, you have met with the Minister of Fisheries and Oceans to express your objections to this bill in the hope that he would approach Cabinet to have the bill stopped?

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[English]

Mr. Patrick McGuinness: We have not necessarily discussed this with the Minister of Fisheries and Oceans, but we have discussed this with senior officials of the Department of Fisheries and Oceans. They, likewise, have concerns about the possibility of confusion, not only within the government but, as we see out here in terms of aquaculture, the fishing industry and whatever, confusion as to this whole initiative in the millennium, this whole new oceans initiative, because who's going to be involved and who's going to be in charge?

I think our concerns are shared by anyone who is in either the fishing industry, the aquaculture industry, or the marine industry in fact, which includes marine transportation, etc.

[Translation]

Ms. Suzanne Tremblay: All right. On Tuesday, when the committee heard from agency officials, including the CEO and a few of his colleagues, we were given maps indicating Cape Bonavista and Notre Dame Bay were among their priorities.

Were you consulted? In the bill, it says that there will be consultation of all those concerned and that nothing will be done without people's agreement. Here was the agency using yellow dots for the areas it considers priorities. There are three, including yours, Cape Bonavista and Notre Dame Bay. Were you involved in the consultations on that? Do you intend to make noise in various ways to get a hearing?

[English]

Mr. Marc Kielley: First of all, we had no input in the decision to designate this particular area of coastline as a marine conservation area. We don't know how they arrived at that decision. But once they decided they wanted to establish a marine conservation area there, the Department of Canadian Heritage signed a memorandum of understanding with the Department of Tourism, Culture and Recreations in Newfoundland to undertake a feasibility study.

As part of that feasibility study they agreed to set up a marine conservation advisory committee. This is the committee I referred to earlier, on which I serve. Out of I think 21 or 22 members, there is one aquaculture voice. I have 35 farms at stake, and many more potential farms, but we only have one voice at the table. Fishermen are much more fortunate; they were able to get 51% of the representation at the table.

So far, we've had a series of meetings and workshops. We had workshops on the impacts of aquaculture. While I'm here today, they're actually in Newfoundland having a meeting to discuss the impacts this may have on commercial fisheries. They had a workshop on the theme of mistrust of government, believe it or not, because one of the underlying fears here is that Parks Canada is saying one thing and they're asking us to trust them. We're saying, why should we trust government? You haven't given us any reason in the past to trust you, why should we trust you now?

There is an undercurrent of mistrust throughout this whole process. However, we're engaged in this process and we're finding it is not so far a fair process, and while we're deliberating and assessing this we find that Parks Canada officials are trying to find ways to fast-track this—

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Fasting-tracking what?

Mr. Marc Kielley: The conservation area. We have, through a series of meetings and workshops, identified numerous problems and flaws with this concept, with the guidelines and policies, and with the legislation. They tend to gloss over it and ignore it. We're not going to let that happen, first of all.

The next stage, the final stage, is that we are expected to produce a report. Parks Canada is telling us they want us to recommend a model. We're saying to them that we can't recommend a model. We have all these problems here; how in the heck are we going to recommend a model? It's certainly not our mandate to recommend a model. What we're doing is highlighting the issues. We've highlighted so many issues that it should be very clear that this concept is incompatible within this particular region.

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To go back to your original question, you asked me if we are suggesting a compromise by putting this into the Oceans Act. No, we're not necessarily suggesting compromise. I think we're really just stating our position on conservation because generally we're supportive of conservation. It's a motherhood issue for us. But if this is to proceed, it has to reside with the appropriate authority, and we feel the appropriate authority is Fisheries and Oceans.

Before you move forward with establishing these parks, before you get into the advanced process that I'm already involved in, will you first look at what user groups are here and how they are going to be affected before you decide if this might be a good area? Once you do a preliminary analysis and if there's a heavy user group of fishermen and aquacultures in this area, then maybe there's a potential there for too much conflict. We should look for an area where there are a lot fewer users and that is perhaps more amenable to this whole concept. That's the advice I would leave.

[Translation]

Ms. Suzanne Tremblay: I have one short question. When do you intend to finish your report?

[English]

Mr. Marc Kielley: I envisage the report to be completed by April or May, but again, I'm not at the meetings that are occurring today. There are very important meetings occurring today as to where this is going.

Yes, we have been very vocal in Newfoundland. I would like to make a point, Mr. Chairman. As a representative of the National Marine Conservation Area Advisory Committee, the secretary for Parks Canada, Andy Mitchell, had informed us that representatives of the advisory committee could appear before the standing committee. We understood that personnel from Parks Canada were to put forward a request to you to present. I'm wondering if you have received this request, because that's an important issue.

[Translation]

Mr. Mauril Bélanger: [Editor's Note: Inaudible]... the floor. I would like to speak to that.

[English]

Is it my turn, Mr. Chairman?

The Chairman: Yes, Mr. Bélanger.

Mr. Mauril Bélanger: That's one of the things I want to pick up.

[Translation]

First of all, I would like to apologize to my colleagues for my absence yesterday; I was held up in the House by the debate on the progress report relating to Bill C-55.

Ms. Suzanne Tremblay: The opposition critics as well.

Mr. Mauril Bélanger: That's true. This leads me to suggest that in future it might be good to keep in mind the problem of holding a committee meeting at the same time as a debate is going on in the House on a bill that we dealt with or will be dealing with here. It creates significant problems; I think that this was true for Mr. Mark, Ms. Tremblay, Ms. Lill and Mr. Muise as well.

I would like to come back to Ms. Tremblay's question. We are just starting and this may take a while. It seems to me that we are getting back to what happened in our discussions on Bill C-32, the copyright legislation, in the last Parliament.

I do not agree with Ms. Tremblay that nothing works; largely due to the work of the committee, this initiative has moved forward and tremendous progress has been made in the area of copyright. We now even have a system—

Ms. Suzanne Tremblay: The Copyright Commission.

Mr. Mauril Bélanger: No, you were talking about copyright—

Ms. Suzanne Tremblay: The Copyright Commission.

Mr. Mauril Bélanger: The Copyright Commission as well. We can consider that the committee still played a role because a neighbouring-rights system has been put in place, along with other things.

I am starting to see some similarities here with the conflict that arose between the interests of producers and those of users of artistic and cultural goods. In the present situation, we are starting to see differences between the interests of those who use the marine areas for their livelihood, environmental interests and perhaps even heritage interests. We must be aware of these different interests and that it will be up to the committee to find the right balance.

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That brings me to the question that was raised. I do not have the list of witnesses before me, but I hope that we will hear from a delegation or a group from that area in Newfoundland. I think it would be important to hear from them or from the members of the advisory committee that has been created or from the people who asked for the committee. I do not know if they are on our list at present, but I would like to indicate my wish that we meet with them, if possible.

[English]

Having said that—

[Translation]

The Chairman: Sorry.

Ms. Suzanne Tremblay: Can we check right away? Are they on our list?

The Chairman: Yes. I asked the clerk and, unfortunately, he does not have the list here today. I asked him to bring it the next time. We absolutely need the list here to be able to check whether the agency in question is on it.

Ms. Suzanne Tremblay: I support Mr. Bélanger's request. If they are not on the list, they should be put on automatically.

Mr. Mauril Bélanger: I will let this point stand. We can come back to it later.

Mr. Pierre Stang (Acting Executive Director, Canadian Aquaculture Industry Alliance): Mr. Chairman, perhaps I could add something on that point. When I last spoke to Mr. Radford, the clerk, just a few days ago, I checked on that. At that time, the committee was not on the list.

Mr. Mauril Bélanger: We will leave it with the chairman.

[English]

What percentage of waters, in your opinion, should be subjected to these kinds of regimes in the country? Both groups.

Mr. Marc Kielley: I really need to understand what's the overall objective.

Mr. Mauril Bélanger: We were talking about conservation areas.

Mr. Marc Kielley: Yes.

Mr. Mauril Bélanger: The question is very straightforward. As we have national parks on land where there's a certain percentage of land that successive governments and Canadians have thought should be protected, conserved, so I'm asking, in your opinion, what percentage of our waters should be subjected to a similar kind of arrangement, as considered under the marine conservation areas?

Mr. Marc Kielley: I'm not sure I can answer in terms of a specific percentage. But I think you want to look at really the characteristics, what specific characteristics you are looking for, and do basically a coastal assessment and find out what aspects of the coastline fit the kind of parameters you're looking for. And then look at the user base. If you can find a section of your coastline where you feel this can be implemented with minimal impact and displacement of an industry, then I'd say go for it.

Mr. Mauril Bélanger: So you're not in disagreement with the basic concept here that identifies the characteristics, whether they're 2 or 29 different marine areas, and arranges for some representation in the larger framework of these characteristics.

Mr. Marc Kielley: No, absolutely not. I don't disagree with that aspect of the concept. But what concerns me is the issue of conflict and displacement.

Mr. Mauril Bélanger: That was clear. I wanted to make sure where you're coming from, because you objected to the bill but you're not objecting to the notion of preserving areas.

Mr. Marc Kielley: No.

Mr. Mauril Bélanger: Do you have an idea on the percentages, sir?

Mr. Patrick McGuinness: I'd like to comment.

What we're saying is that we could accept the initiative for a marine conservation area in the Fisheries Act. But I think from the fishing industry we want to make one fundamental point that we haven't stressed, which is that we feel it's not appropriate to take the picture of a national park on land and say what we want to do there is duplicate that in the oceans.

The bottom line is that on land what you're looking at in terms of the Parks Act is trying, as you say, to establish representative areas that would be preserved for Canadians and for the world for whatever, for all time. That's simply because you can have, for example, lumber companies come in and tear down the forests and so forth. But in terms of oceans, nobody's taking away the water. The water is there. So in the fishing industry we fully support conservation as number one, and what we're talking about is moving towards an ecosystem approach.

Mr. Mauril Bélanger: So you don't have a percentage that you think should be... You're not prepared to answer that.

Mr. Patrick McGuinness: No, I think that's an inappropriate type of approach.

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Mr. Mauril Bélanger: Fair enough. That's fair.

I take it from the presentation you made that you think only one minister should have ministerial discretion. Otherwise, it should be the cabinet, not just one minister. Why is that so?

Mr. Patrick McGuinness: We're saying it should be the Minister of Fisheries and Oceans. However, if in fact this initiative will not rest with Fisheries and Oceans, we feel that, as you say, it should be the Governor in Council, primarily because, in terms of the oceans, the oceans are relatively heavily utilized. We as a fishing industry are a $3 billion industry in Canada.

Mr. Mauril Bélanger: So you're suggesting that because of the importance of the fishing industry the Minister of Fisheries and Oceans should have sole ministerial discretion, but if it's not there, then no other minister should have sole ministerial discretion. Is that correct?

Mr. Patrick McGuinness: Right. What we're saying is then in making—

Mr. Mauril Bélanger: That's not a biased view?

Mr. Patrick McGuinness: No.

Mr. Mauril Bélanger: If there were to be one minister who could have sole ministerial discretion, it should be the Minister of Fisheries and Oceans.

Mr. Patrick McGuinness: Exactly.

Mr. Mauril Bélanger: No other minister should have sole ministerial discretion.

Mr. Patrick McGuinness: Right.

Mr. Mauril Bélanger: That is not a biased view?

Mr. Patrick McGuinness: I don't understand what you mean.

Mr. Mauril Bélanger: I'm not making myself clear.

Mr. Patrick McGuinness: What I'm saying is that if in fact this is going to go ahead as envisioned in this bill, it's not the Minister of Canadian Heritage.

Mr. Mauril Bélanger: This is my last question. You object to the notion of marine conservation areas, correct?

Mr. Patrick McGuinness: What we're saying is that we can accept the concept of marine conservation areas as an amendment to the Oceans Act. All I said is that philosophically we still think it's a funny type of transition from the concepts that you have in the terrestrial world into the oceans world. What we're looking at in the oceans world is an ecosystems approach. And when you're looking at an ecosystems approach, you're not managing the water, you're not managing the fish; what you are doing is managing human activity in the oceans. That is either the fishing industry or the aquaculture industry. So to come in there and say what we're going to do is just put a piece of area, from a marine perspective, from an oceans perspective, what you're doing is transferring—

Mr. Mauril Bélanger: I'm hearing all that. You said in your brief: “We object in principle to the bill”.

Mr. Patrick McGuinness: We object to the bill being brought forward—

Mr. Mauril Bélanger: No, the principle. The principle of the bill is to create marine conservation areas. You might object to technicalities on how the principle would be implemented. It's clear you do.

Mr. Patrick McGuinness: Okay.

Mr. Mauril Bélanger: I'm just trying to understand this: “We object in principle to the bill”. You're hedging here, are you?

Mr. Patrick McGuinness: No.

Mr. Mauril Bélanger: Are you against marine conservation areas?

Mr. Patrick McGuinness: No, I'm saying we have difficulty with the logic. But if there is a feeling that MCAs are a way to go into the future—

Mr. Mauril Bélanger: You're hedging.

Mr. Patrick McGuinness: —we're saying we can accept that, but it should be judged against the other tools that are available to this government in terms of managing that—MCAs or whatever. All we're saying is that we object to the bill the way it's brought forward, because all of a sudden you're going to have MCAs track out here with very little involvement in terms of what we're trying to do in an oceans strategy.

Mr. Mauril Bélanger: I understand that.

Mr. Patrick McGuinness: We have a whole government and provinces moving forward on an oceans strategy.

Mr. Mauril Bélanger: Your comments as to where it would be appropriate to do this are clear, sir.

Mr. Patrick McGuinness: Right.

Mr. Mauril Bélanger: They're very clear. I'm not sure I'm getting a very clear answer here, but maybe I'm not understanding you. Your objection is not to the notion of creating marine conservation areas; it is on a technical matter, as to where it is best to have that responsibility.

Mr. Patrick McGuinness: Correct.

Mr. Mauril Bélanger: So you are not opposed to marine conservation areas.

Mr. Patrick McGuinness: No.

Mr. Mauril Bélanger: Thank you.

Mr. Patrick McGuinness: We have troubles with it.

The Chairman: Mr. McWhinney.

Mr. Ted McWhinney (Vancouver Quadra, Lib.): I'd ask the witnesses—I know the answer in one case. But the Oceans Act was before the parliamentary committee on fisheries for a matter of six months, I think, and it also toured. I know the Fisheries Council appeared. I'm not sure if your group appeared.

The Fisheries Council would have had the opportunity to address itself to the conservation norms established under the third United Nations Convention on the Law of the Sea. Did you raise issues of this sort at that stage?

• 1210

Mr. Patrick McGuinness: In the Oceans Act, what was proposed was the development of an oceans strategy, and we supported that. Also, the main new tool that was introduced in the Oceans Act was a marine protected area. At that point in time, we thought that type of tool was basically comparable to a marine conservation area.

If there's scientific evidence that a certain area needs special protection for a variety of reasons, including biodiversity and the productivity of biodiversity, in terms of user groups and environment groups, we feel we can come together and agree to establish marine protected areas. I should therefore report that just recently there have been five marine protected areas announced by the Minister of—

Mr. Ted McWhinney: So is your answer that you did give evidence on this particular point?

Mr. Patrick McGuinness: Not on MCAs, no, because they really weren't an issue at that point in time.

Mr. Ted McWhinney: Okay. On the Convention on the Law of the Sea that Canada signed, we've delayed ratification for a rather long time, mainly because of the litigation with Spain and Portugal. We've been victorious on that, so it may go ahead. However, from the range of matters covered there, it's certainly clear that more than one federal ministry will be involved in its implementation.

Secondly, it won't just be maybe more than one federal ministry but more than one provincial ministry. We're getting into a concept for which the technical term is a polycentricity of problems, along with plural responsibilities. In other words, it's a commonplace of federal government that you cannot put problems into watertight compartments, into this ministry but not others.

In other words, I'm saying that almost every federal policy involves two, three or four ministries hitting it as a method of solving the problem, and we rely on the machinery that you see at work today. There are parliamentary committees, each of which carefully considers the jurisdictions of others, but very often they exercise complementary hearings. We also rely on the fact that the ministers make their points of view known within the cabinet system, and either a cabinet consensus emerges in the end or one prevails.

I'm a bit puzzled by your comment here, and I really raise it with you as a question of what you have in mind. On page 2 of your brief, at paragraph 5(1), Mr. McGuinness, you suggest:

An amendment...regarding the establishment...may be made only if the Governor in Council is satisfied that the Minister of Fisheries and Oceans concurs with the amendment.

I'm wondering what conception you have of the contemporary office of Governor General. Are you anticipating an independent discretion of the Governor General? If it in fact follows the conventional law and action of the role of the Governor in Council, this is essentially saying that this will be done only if the Minister of Fisheries and Oceans concurs. That's in fact what it is as law and action. One would then ask if this isn't what occurs in the cabinet system. If there's a dispute between ministers, they fight it out in the cabinet and the Prime Minister, I suppose, eventually arbitrates if they don't agree. In other words, are you envisaging some rather specialized constitutional structure revolving around the prerogatives opposite?

Mr. Patrick McGuinness: I guess what we were trying to say in our definition is that if a Governor in Council type of decision requires the signature of five cabinet ministers, one of those cabinet ministers should be the Minister of Fisheries and Oceans.

Mr. Ted McWhinney: You would say, then, that it should be built into the regulatory power. It should require a counter-signature of two. But as I recollect, every Order in Council is in fact countersigned by a minimum of two ministers, but it's pretty formal. I suggest to you that the same thing would occur.

What you're really trying to specify here is a process that goes on every day in cabinet and is in some way exercised by submissions to various committees. There's no reason why, on the same problem, the justice committee and the foreign affairs committee shouldn't be dealing with it, although each will respect its own competence. Similarly, in this particular matter, if you're making recommendations to the heritage committee, they transmit them through the heritage minister to the fisheries minister.

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In essence, however, the cabinet system resolves that conflict, so I'm not sure what you would get, other than what you are doing now. That is to say, you're making strong recommendations here that certainly will influence this committee in its transmission to the minister. The 19th century conception of watertight cabinet compartments is just gone. Almost every problem involves coordinating two, three or four ministries and committees of cabinet.

On the points you are making, I have been impressed. One is very much concerned about avoiding duplication in governments, about avoiding overlap. Your points may suggest the idea of looking to the coordinating machinery and to spelling out what sort of interministerial council might be involved. I see the parliamentary secretary here, and he's undoubtedly making notes on this point.

When we come to ratification of the Convention on the Law of the Sea, which has immense conservation sections in it that clearly involve a number of ministries, I hope both groups will come back to give us their recommendations. That would be very helpful. A colleague, Mr. Caccia, and I have been trying to get ratification of the Convention on the Law of the Sea. I assume it will come fairly quickly.

Apart from that, I appreciate your suggestions and have taken note of them. I was sitting on the fisheries committee as parliamentary secretary when a number of the briefs came forward, but I didn't recollect the specific response from the Fisheries Council, so I'm glad to have your confirmation of that.

[Translation]

The Chairman: Mr. Dumas.

Mr. Maurice Dumas (Argenteuil—Papineau, BQ): Welcome, gentlemen.

In the part of your submission entitled “Overview,” I was pleased with what you said about the two departments that might be called on to manage the CMAs. We said the same thing ourselves on Tuesday. We were told then that there should be no problem. We agree with the two points you have made.

Now, I would like to ask you a question. There are people in Quebec who belong to the Fisheries Council of Canada. What is the position of Quebec fishers and leaders?

Ms. Suzanne Tremblay: Are they concerned?

Mr. Maurice Dumas: Yes, do they support this submission?

Second, have you contacted the Quebec government on this?

[English]

Mr. Patrick McGuinness: We have not discussed anything with the Quebec government. In terms of our council, the provincial association in Quebec is l'Association québécoise de l'industrie de la pêche. At this point in time, it is not a member of our organization. It has been in financial difficulty, but we do work very closely with it.

There are some Quebec companies that are members of the Fisheries Council of Canada through other organizations, such as the Groundfish Enterprise Allocation Council, which is also a member, and that's a fleet sector. We have organizations such as Madelipêche, which is a member of our association. That is one organization that has processing plants in the Îles-de-la-Madeleine, as well as large fishing vessels.

Issues such as marine protected areas and marine conservation areas are of significant concern. The note you have in front of you has gone out to each of those groups, including the Groundfish Enterprise Allocation Council, which has Quebec members, and they have come back and they've actually, in the drafts, suggested some wording changes.

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I can report to you, sir, that this document here represents fully the position of the Fisheries Council of Canada, including those members who are from Quebec.

[Translation]

Mr. Maurice Dumas: Thank you.

The Chairman: We will move now to Mr. Mark, followed by Ms. Tremblay.

[English]

Mr. Inky Mark: Thank you, Mr. Chair.

Contrary to the view of some members, I do support the protection of ecosystems in this country. It's only a motherhood issue. But I don't agree with the vehicle and the manner in which it takes place.

It was brought up by our delegates that there may be a problem of perception, and it's realistic to have that because originally when this legislation came in it was called the Marine Parks Protection Act. If the parliamentary secretary would respond to my question, I wonder if he could point out when that change in wording took place and if there is a possibility that all we're seeing is really just a title change.

Mr. Mauril Bélanger: I'm sorry, I can't respond to that.

Mr. Inky Mark: I wondered when that took place and what was the original intent of the bill, because they considered marine protection—

Mr. Mauril Bélanger: I cannot respond to that, sir. I don't have the information.

The Chairman: Mr. Mark, I think your question is on record. We'll direct it to the officials and ask for an answer about what the changes were, and that will be furnished here.

Mr. Inky Mark: Thank you, Mr. Chair.

The Chairman: Thank you.

Madame Tremblay.

[Translation]

Ms. Suzanne Tremblay: Mr. Chairman, I would first like to say that I would have liked to better understand what my friend was saying.

If I understand correctly, the situation is as follows: Fisheries and Oceans can create marine protected areas; Heritage Canada, through Parks Canada, will be able to create marine conservation areas; the Department of the Environment, finally, can create marine wildlife reserves. We already have three different departments involved in creating the same thing, which may even be in the same place, but they will be subject to three different sets of regulations because they come under three different departments. I can honestly say that I see why the public has some questions about this.

I thought I heard also that since this is no longer the 19th century and is almost the 21st century, it was to be expected that a number of departments would be involved in doing the same thing.

It may be normal that a number of departments would be involved. However, it should have been possible to work together to decide that in Canada we will look at the map as a basis of our decisions, rather than deciding on a percentage of water to protect, since what is important is not a percentage but the various ecosystems. If there are nine, there will be nine protected areas; if there are 29, there will be 29. And if it turns out there are 42, there will be 42. I think that that is how it should work. There would be one department responsible for doing this.

If I understood correctly, we are being told that Parks Canada does not have the expertise to do this.

Mr. Mauril Bélanger: Mr. Chairman, are we debating the bill?

Ms. Suzanne Tremblay: No, I am asking a question and I would like to give some context for it.

Mr. Mauril Bélanger: Fine.

Ms. Suzanne Tremblay: Did I understand correctly that the witnesses are concerned on the one hand with duplication and on the other with a lack of expertise in Parks Canada when it comes to making decisions about which ecosystems to protect? Can you simply say yes or no to that?

The Chairman: Mr. Stang.

Mr. Pierre Stang: Yes, Ms. Tremblay, you are right. You have summarized our position very clearly, very briefly and very accurately.

I would like to emphasize one point. Although the Parks Canada Agency, in our opinion, lacks the necessary scientific staff, it could obviously hire this expertise. On the other hand, Fisheries and Oceans already has massive expertise on ocean issues that Parks Canada would have difficulty equalling, I believe.

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Thank you for your remarks, since I feel that you have really put your finger on the problem. That is exactly what bothers us. Thank you very much.

[English]

The Chairman: I'd like to pose a few questions in regard to the bill as it stands now.

I understand your position that you'd prefer not to have it. You'd prefer to see it under the Oceans Act. That is very clear. At the same time, I'm looking within the bill itself to clarify a few points from your briefs.

The way I understand the bill, if there's going to be a designated conservation area, a lot of things have to happen. First is a feasibility study, such as the one in which you're involved. Then there has to be provincial-federal agreement. In other words, any province that doesn't want it can object; it has to be a provincial-federal agreement. And even when this management area has been designated, it can't be just established; it has to be given to a committee of the House.

Mr. McGuinness, I see your point there, that in fact it says in subclause 7(1) that it has to be referred to the standing committee of each House—in other words the Senate and House of Commons—“that normally considers matters relating to marine conservation areas or to such other committee as that House may designate for the purpose of this section.” You're saying it should be fisheries compulsorily, and I can understand that point.

But then if you look further, to answer Mrs. Tremblay's objection, there can't be three ministers in the same conservation area. It's very clear under subclause 8(1). If you look at subclause 8(1), it says:

The Minister is responsible for the administration, management and control of marine conservation areas in relation to matters not assigned by law to any other Minister of the Crown.

In other words, if under the Oceans Act the Minister of Fisheries has already designated an area, that means this minister has no business to do there. In other words, this is just in areas that are outside of that, if I understand subclause 8(1).

Mr. Ted McWhinney: The premise is already established.

The Chairman: Then there has to be preparation of a management plan. And about that management plan, if you look at subclause 9(4), it says:

Provisions of a management plan respecting fishing, aquaculture, fisheries management, marine navigation and marine safety are subject to agreement between the Minister and the Minister of Fisheries and Oceans.

In other words, if the Minister of Fisheries and Oceans doesn't agree, or the officials from the ministry tell the ministers, “Don't agree, we don't agree; aquaculture isn't going to be protected or fisheries is not being protected”, then that doesn't go forward. It's dead.

It also says in subclause 10(1):

The Minister shall provide the opportunities for consultation with any federal and provincial ministers and agencies, affected coastal communities...

Further, it says under subclause 9(1) that the minister will:

prepare a management plan for the marine conservation area including provision for ecosystem protection, visitor use and zoning, which shall be tabled in each House of Parliament.

You have the safeguards of the respective committees. You have the safeguards of consultation by the affected groups. You have the veto of the management plans by the Minister of Fisheries and Oceans. You have the two Houses involved.

I don't tell you this necessarily because I'm trying to convince you that the law is the best instrument as far as you're concerned, because you have a different point of view. I'm just pointing out that it's not as clear-cut as you say. In other words, this minister has tremendous hurdles to accomplish before a conservation area takes place. And even when that's been designated and a management plan has to be prepared and submitted to the House, that is under the veto right of the Ministers of Fisheries and Oceans in any case. And it takes into account fishing, aquaculture, fisheries management, marine navigation and marine safety, which are subject to agreement between the minister and the Minister of Fisheries and Oceans.

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I agree that if you are against the bill you say, well, the bill shouldn't be there, let's have another bill. That's another issue.

But do you see anything in this bill that can be reinforced? I know, Mr. McGuinness, you made that point under subclauses 5(1) and 7(1), and I think your points are valid and should certainly be taken into account. Mr. Kielley, you don't see anything salvageable in there at all. You don't see any way of strengthening this thing in order to make it workable.

Mr. Marc Kielley: No, I feel the legislation is redundant.

I do question your point, though, in saying that the Minister of Fisheries and Oceans would have a veto. It's my understanding that the power of the Minister of Canadian Heritage would prevail over all other ministers in the event of conflict.

The Chairman: In subclause 9(4) it says:

(4) Provisions of a management plan respecting fishing, aquaculture, fisheries management, marine navigation and marine safety are subject to agreement between the Minister and the Minister of Fisheries and Oceans.

If there's no agreement, that's it.

Mr. Ted McWhinney: It's very explicit.

The Chairman: It's very clear that the two of them have to give their okay.

Mr. Marc Kielley: Can I just respond to that?

The Chairman: Sure.

Mr. Marc Kielley: In subclause 16(5) it says:

(5) Regulations referred to in subsection (2), (3) or (4) prevail over regulations made under the Fisheries Act, the Coastal Fisheries Protection Act, the Canada Shipping Act, the Arctic Waters Pollution Prevention Act, the Navigable Waters Protection Act or the Aeronautics Act to the extent of any conflict between them.

Basically, that gives the Minister of Canadian Heritage some tremendous power. It's frightening.

Mr. Ted McWhinney: Regulations developed for legislation cannot go beyond the enacting act, so to the extent of any inconsistency, they pull.

Mr. Marc Kielley: Yes.

Just to take that further and see how far-reaching the powers become within that ministry, subclause 16(7), which is entitled “Variations by superintendent”, reads:

(7) Regulations made under this section may authorize the superintendent of a marine conservation area, in the circumstances described and to the extent provided in the regulations, to vary any of the requirements of the regulations in relation to the marine conservation area.

The Chairman: Mr. Kielley, look at subclause 16(2):

(2) Regulations under this section respecting fisheries management and conservation or that restrict or prohibit fishing or aquaculture, marine navigation or activities related to marine safety may be made only on the recommendation of the Minister and the Minister of Fisheries and Oceans.

So it's very clear that these provisions give a clear right of regard to the Minister of Fisheries and Oceans, so that regulations under this subclause, all of them,

respecting fisheries management and conservation or that restrict or prohibit fishing or aquaculture, marine navigation or activities related to marine safety may be made only on the recommendation of the Minister and the Minister of Fisheries and Oceans.

So this ties up with what I said before under subclause 9(4).

Mr. Marc Kielley: I'm confused, because as I read subclause 16(5), I see the Minister of Canadian Heritage prevailing. I'm certainly not a legal expert, but that's the way I read it.

Mr. Ted McWhinney: I would have to say that I think the fisheries minister is clearly ahead here. They have much the strongest group of expertise in the federal government in this general area at the moment, and they fought very hard in the Oceans Act and the Fisheries Act. I would say, as the chairman has confirmed, that the dominance of Fisheries is established in things that are in substance fishing matters.

The Chairman: Excuse me, I don't think there is any contradiction there. What it really says is that once you have a regulation in place regarding a marine conservation area, then that regulation will predominate. But before it's there, under subclause 16(2) that minister cannot make a regulation in the first place unless the Minister of Fisheries and Oceans says, yes, I agree. Do you follow what I mean?

Mr. Marc Kielley: I see your point.

The Chairman: Once it's there, Mr. Kielley, you're right. But before it's there, there's that—

[Translation]

Ms. Suzanne Tremblay: But, Mr. Chairman, you know very well that if the Department of Canadian Heritage and Parks Canada wants to do something and if it is in line with what the Liberal Party and the government want, the Minister of Finance will just sign.

• 1235

You have been a member of government and you know how it works.

The Chairman: Yes, I have been a member of the government. That is why I know that when a minister is given a veto, it is not used lightly.

Ms. Suzanne Tremblay: It depends on the minister.

The Chairman: If everything has to be done again... We're not talking about individuals but about a question of principle.

Ms. Suzanne Tremblay: Yes, but principles are applied by people. I understand why people are miffed. It is obvious that all the consultation that took place was done just for appearances' sake.

The Chairman: Ms. Tremblay, you are making...

Ms. Suzanne Tremblay: No, no. We have the results. Sixty people responded, according to the results we were given. It was not 3,000, as we were told.

Mr. Mauril Bélanger: We are not having a debate here. We have witnesses...

The Chairman: This is not the debate in the House.

Mr. Mauril Bélanger: The consultation question was raised with the witnesses and they gave their answer. Let us stay with that for the moment.

I would like to make a comment to our witnesses. I must say that I am very pleased to hear the Fisheries Council of Canada and the Canadian Aquaculture Industry Alliance tell us openly and very firmly that they both have confidence in the ability of the Department of Fisheries and Oceans, in the competence of the officials. I find it very reassuring to know that the Fisheries Council of Canada has come to tell us today that it has confidence in the work of the department's staff. I thank them for that.

The Chairman: Mr. Stang.

Mr. Pierre Stang: There's one point, Mr. Chairman, on which you might be able to enlighten me. The way I read the bill, the clauses that you pointed out to us clearly contain the word “recommend” or “recommandation”. I do not have the same confidence as you do that a recommendation in fact means a veto. If the word “veto” was in the text, perhaps there would be...

It is worth a try.

[English]

The Chairman: Just hold it.

[Translation]

We have a legal expert here.

Mr. Luc Gagné (Committee Researcher): In my opinion, when a memorandum is submitted to Cabinet, what is indicated at the bottom is always a recommendation by the minister. I would have to check that point but I believe that it is not possible to have anything stronger than a minister's recommendation.

The Chairman: All the recommendations are made by ministers. In this case, the recommendation would be made by two ministers. It would not be enough to have it come only from the Minister of Canadian Heritage. Both the Minister of Canadian Heritage and the Minister of Fisheries and Oceans would have to be involved. Whether we are talking about a recommendation or a request, if it comes from only one minister, it is the same thing. Both have to be there.

Ms. Suzanne Tremblay: Mr. Chairman, I would like to raise a point of order. I told you that the consultations were done for appearances' sake only. I have the figures here. There were 3,000 people consulted across the country. We asked for the results of that consultation. We were given 300 response forms, including 73 that contained only the reply coupon. The others were blank. Only one of the 62 responses obtained by the department was in French.

So there was 61 responses in English and one in French. At least, those are the results of the consultation carried out by Heritage Canada according to the documents we received through access to information.

So when we say that this was a token consultation, we are basing this on the figures that the department provided to us. As far as the Department of Fisheries and Oceans goes, it has also admitted that its consultation was pretty feeble.

The consultation done in January 1997 was also fake. Since the response rate was only 5%, it can certainly not be considered an exhaustive consultation. So it would be nice if people stopped trying to make us believe that there is consultation going on when that is not in fact the case.

Mr. Mauril Bélanger: Mr. Chairman, a point of order. Is this a debate period?

Ms. Suzanne Tremblay: It is not a debate. I asked a question and I was accused of doing things the wrong way.

The Chairman: Madam...

Ms. Suzanne Tremblay: That is not true. I have another point of order.

The Chairman: I am sorry, Ms. Tremblay. Please.

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I think that we are here to hear the witnesses. You are making statements that no official representative of the department can contradict because they are not here. Your statements are based on statistics that have nothing to do with what is being discussed here. It is merely your personal opinion that the consultations are fake.

As for the rest, Mr. McGuiness answered your question. You did not like what he said, but he indicated that he was quite satisfied with the consultation done by the department. If you have evidence, you can present all the numbers during the House debate to show that the department was doing phony consultations. But I do not believe that it will advance our discussions any today to have a major debate on that.

We are not here for that purpose, but rather to hear the witnesses. If they think that there has been no consultation, they will tell you so. The other day would have been the time to discuss that with the official representatives of the Department. If you want to have them come back to discuss this, to find out whether or not the consultation was phony, we will be glad to invite them.

[English]

Mr. McGuinness.

Mr. Patrick McGuinness: Yes, I have two comments.

First, in terms of your interpretation of those dialogues in regard to the checks and balances in there for the fishing industry, we agree with you. To a large extent, when I say that we had good consultations, we had good consultations with officials from Canadian Heritage here in Ottawa as they were trying to move through the drafting of this bill. As I said, I think they've done a fairly good job in terms of identifying some of the checks and balances for the Minister of Fisheries and Oceans and the officials in this bill. We're saying that unfortunately they should have gone one step further in terms of putting it under the Oceans Act.

With respect to subclause 16(2), our position would be that it is correctly written. The concept would be that if a marine conservation area is in fact established, then under the powers given to him by the cabinet, it would be up to the Minister of Fisheries and Oceans to establish fishing regulations—a change in the gear size or whatever—in keeping with the objectives of the marine conservation area. In essence, that's probably the only way subclause 16(2) could be written, because there can be no one other than the Minister of Fisheries and Oceans who can establish what regulations pertain to our industry when it comes to harvesting fish in the oceans. We would certainly object if it suddenly came to be written that the Minister of Canadian Heritage or somebody else was to be given the powers to actually introduce, if you will, regulations in terms of how we conduct our business. That's up to the Minister of Fisheries and Oceans, and I think that's what has been said.

The Chairman: Thank you very much for taking the time and trouble to come here. We appreciate your stand. You have made your points of view very convincingly and clearly, and we appreciate that very much.

The meeting is adjourned.