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Bill C 38 meeting with MPs Kamp and Weston - Squamish BC.
27 July, 2012 (Squamish BC) -To: DFO, MPs, ENGOs, First Nations, stream keepers, the media and all other Canadians interested in a healthy ecosystem and fish populations as supported by an intact habitat support system:
From: Otto Langer July 27, 2012
Attached are my notes of a key initial meeting with Harper Government MPs and a DFO representative
to try an understand why the Harper government radically altered the habitat provisions of the Fisheries Act in Bill C 38 and what they now plan to do with that altered Act. These notes are more of a brief in that it is difficult to understand why the Harper government did this without public consultation nor any believable rationale to support their actions. I feel the various aspects of this Bill C 38 discussion must be documented in some format in that this weakened habitat protection version of the Act will come to haunt us in the next decade. My meeting notes are accompanied by my comments that are necessary to put the comments of MP Kamp and RDG Farlinger into their proper context. In the below notes, I have added my comments as (OEL italics ).
A Review and Commentary on a July 24th, 2012 Public Meeting Between MPs Randy Kamp (Secretary to the Minister of Fisheries and Oceans) and John West and DFO RDG Sue Farlinger in Relationship to the Neutering of Habitat Protection Provisions in the Fisheries Act.
On July 24, 2012, 18 of us from Squamish watershed area and Vancouver area (eg. Ecojustice, Watershed Watch, Squamish First Nations, local watershed council, stream keepers, etc.) met with MPs John Weston (West Vancouver - Squamish) and Randy Kamp (Maple Ridge and Secretary to DFO Minister Ashfield) to be consulted in the matter of implementing the habitat and other changes in the Fisheries Act as driven by Bill C 38 which received Royal Assent on June 29th, 2012.
The meeting was a local constituency meeting arranged by MP Weston but others like myself were invited to attend by local groups. In that Bill C 38 has caused such an uproar, Weston invited MP Kamp to attend to better explain what the Harper government had done to the Fisheries Act and where they were going next with the new Fisheries Act. The MPs were accompanied by 4 assistants and DFO RDG Sue Farlinger. The agenda was inflexible and it was not open preliminary consultations. It more appeared to be a matter of bulldozing the Harper agenda onto those attending the meeting.
Kamp took the lead with a PPt. presentation. He appeared very insecure in what he was saying or trying to 'sell'. He could not explain why the habitat sections of the Fisheries Act had been altered and why it was done without public consultation. He could not or refused to explain why the old Fisheries Act could not do what he said had to be done. A person sitting beside me noted that this was the most disengaging presentation he had ever seen. Kamp was obviously doing the dirty work of the government and did not have the where with all or the logic to explain their neutering of Section 35 of the Fisheries Act nor provide a believable rationale of how the new Fisheries Act would work. It appears to be a case of - this is what we have done - now we will consult with you so you can tell us how its going to be made to work? The naive were expected to believe that the old Act did not work and they had to change it to make it work more effectively and efficiently.
Kamp insisted that the radical changes to the habitat section of the Fisheries Act was good for Canada in that it will ensure more jobs and prosperity and better environmental protection. Kamp insisted that DFO now had fisheries protection "focus" and did not have to protect everything and all fish as they tried to do in the past. Kamp noted that he was "proud" of what the Harper Government had accomplished. He seemed to be very critical of DFO habitat staff and noted they "had not used discretion" and were "trying to protect everything" and had not applied "common sense". He insisted that " Bill C 38 takes us in a "new strategic direction" and provides a "new platform" to "move forward to promote jobs, prosperity and let us better protect the environment in a more focused and efficient manner".
The Power Point was not made available so here is an abbreviated summary:
Bill C 38 is now law -- Royal Assent June 29th, 2012.
The new Section 35 (a combination of Sect. 32 and 35 of the old Act) builds a foundation upon which to move forward.
It is a commitment to focus on the real threats to commercial and recreational and aboriginal fisheries to protect them more effectively and efficiently.
It will allow clarity on required regulations and enables the building of enhanced partnerships.
We will move away from the review of all projects in Canada - was up to 7000 a year and only 10% of that has to be authorized so DFO will just dwell on that smaller number of projects ie the 70 in Canada that are a serious threat to fish.
. We will now just look at projects that are a threat to commercial, recreational or aboriginal fish of value and will reduce overlap with the provinces.
The implementation of Bill C 38 as related to the Fisheries Act will come in two Phases.
Phase 1-- will take place over the next 6 months..
-Enhanced compliance and greater fines.
-Development of regulations.
-Development of partnerships.
-Develop prohibitions , exemptions, etc. under the new Sect. 35 of the Fisheries Act.
Kamp then reviewed the new legal wording of Sect 35 and noted that some changes were also made to the Act related to stream passage, stream flow, ecologically significant areas and invasive species.
He then outlined:
- regulations will streamline activities (approvals) and gain efficiencies
-will prescribe permitted works
-prescribe waters to be protected
-exemptions and exclusions of types of works
-equivalency regulations (The new Act allows DFO to legally adopt standards developed by outside parties).
-develop invasive species regulations with the Provinces.
-will allocate fisheries to fund science in DFO.
The session then was opened to a few questions including:
Can we have a copy of the PPt presentation?
Will there be more meaningful consultations? Response - this is just preliminary. Formal ones to begin in the fall.
People were very riled up and wanted a better explanation of why this happened ie neutering of the fisheries habitat law etc.
Many of us noted that they had totally destroyed public confidence and trust in DFO and they had dug a deep hole for DFO and now they want to consult with us when we are totally different pages. The new Act is anti-ecosystem approach based even though DFO preaches their new ecosystem approach in the Cohen Inquiry.
RDG Farlinger then tried to answer questions generally directed at Kamp. She noted that:
DFO needs "enforcement elements" in authorizations in that DFO could not enforce conditions in past habitat harm authorizations. (OEL - this is simply not true. Many developers that did more damage than approved have been prosecuted prior to 2000. In addition DFO forced contracts on developers and obtained letter of credit or performance bonds. This was done after the BC government agency related to BC Place reneged on habitat cleanup in False Creek after Expo 86(1987) i.e. over over 25 years ago! Performance bonding began in about 2000).
DFO could not monitor what was happening so cannot protect habitat if it cannot be monitored. (OEL - this is very confusing and misleading in that the need for monitoring was well know decades ago. It was a key strategy in implementing the National Habitat Policy (No Net Loss) in 1986 - 26 years ago!. Fisheries Officers did much monitoring until DFO deliberately allowed them to pull out of habitat work in the 1990s and monitoring was drastically reduced. Much of this happened when when Ms. Farlinger was a senior manager in DFO. Fishery Officer habitat inspections decreased from 1800 inspections in 1998 to 300 in 2008. During that approximate time period habitat - pollution convictions went from 48 to 1 (one)! Also staff cuts were made a few years ago as part of EPMP 2006 - a program to cut referral reviews and allow more monitoring in that some of those jobs were converted into habitat monitors.
Had to develop bigger penalties in that courts would only apply minor penalties. Repeat offenders will be subject to bigger fines.(OEL - This is not true. The Act was amended 20 years ago so second offenders would get higher fines and even prison sentences. Also over a decade ago creative sentencing was added ie education and clean-up requirements etc. Why do you need higher fines for repeat offenders when you do not enforcement the legislation? Two years ago DFO cut the habitat expert witness training program. They said they did not need it because they were no longer doing enforcement work! Fines are often low but that is the result of guilty pleas and creative sentencing. However, overall fines to offenders have often been over $100,000. Simply doubling maximum fines does little to increase overall fine levels. Rarely if ever did I ever see DFO push for any maximum fine at any time in the past 43 years and I have been an expert witness in over 100 habitat and pollution trials across Canada.