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June 24, 2019
Note: On June 21, 2019, Bill C-68, An Act to Amend the Fisheries Act and other Acts in consequence, took effect. We originally published this Legal Update on February 9, 2018.
On February 6, 2018, Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, introduced by Minister of Fisheries, Oceans and Canadian Coast Guard (DFO), Dominic Leblanc, received first reading in the House of Commons. If enacted, Bill C-68 will amend Canada’s Fisheries Act in a number of significant ways. As with most fisheries regulation changes, few amendments will be universally welcome. How stakeholders receive the Bill will depend on their perspective: fish and seafood industry participants, even those in the same fishery, are rarely homogenous; science and conservation groups will welcome the return of environmental protections and more robust project approval processes; and project proponents will wait cautiously to see how the new processes will play out.
Here are five of the significant changes Bill C-68, if enacted, will make to Canada’s Fisheries Act.
Giving it “purpose”. Courts use “purpose clauses” when interpreting legislation. The Bill will add such a clause to the Act, stating its purpose is to provide a framework for the proper management and control of fisheries and the conservation and protection of fish and fish habitat, including pollution protection. While the addition of “management and control of fisheries” is unlikely to change how courts interpret and apply the Act, the addition of a “conservation” purpose might colour how they interpret new provisions in the Act going forward.
Broad Ministerial discretion, with guidance. Courts have consistently interpreted the Fisheries Act as giving the Minister of DFO wide discretion when making decisions on fisheries matters, such as licence issuance and quota allocations. The Bill solidifies the Minister’s wide discretion, rather than imposing new restrictions, by permissively setting out a number of factors the Minister “may” (not “must”) consider when making fisheries decisions.
Including Indigenous Communities. The Bill will extend the federal government’s power to conclude fisheries-related agreements with provincial and territorial governments to include Indigenous governing bodies, including co-management bodies. Among the considerations the Minister “may” consider when making fisheries decisions is any traditional knowledge of the Indigenous peoples of Canada provided to the Minister. And in certain cases – including when determining whether to authorize development projects that might harm fish or fish habitat – the Minister must consider any traditional knowledge provided to DFO.
Equality of fish – but not projects. The Bill will extend conservation protections to all fish and fish habitat – regardless of their attachment to a fishery. This reverses the 2012 amendments limiting conservation protections to fish and habitat related to commercial, recreational or Aboriginal fisheries. The Bill will also create new processes for the authorization of projects that might affect fish and fish habitat. Some key components include:
The Bill will also ban any unauthorized fishing for cetaceans (for example, whales, dolphins, and so on) with the intent to take them in captivity – including when they are injured, in distress or in need of care.
More options. The Bill will give the Minister a new power: to issue fisheries management orders prohibiting or limiting fishing for renewable periods of up to 45 days to address threats to the management and control of fisheries and conservation and protection of fish. The Bill also allows the use of alternatives to prosecutions in court under certain conditions to deal with offences under the Act.
Please contact your McInnes Cooper lawyer or any member of the Ocean Economy Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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