Whale of a Change: 5 of the Key Changes Proposed to Fisheries Act

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A Whale of a Change: 5 of the Key Changes DFO Proposes to Canada’s Fisheries Act

February 9, 2018

By Daniel Watt, at McInnes Cooper

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.

The Bill will provide clear authority for DFO’s policy on Preserving the Independence of Inshore Fleets in Canada’s Atlantic Fisheries (PIIFCAF), which has been subject to ongoing court challenges, by expressly stating that when making fisheries decisions, the Minister may consider “social, economic and cultural factors in the management of fisheries” as well as “the preservation or promotion of the independence of licence holders in commercial inshore fisheries.”

The Bill will also require the Minister to consider certain factors in certain situations – but some of these changes are more symbolic than real. For instance, the Minister must consider any adverse effects a decision may have on Indigenous rights recognized and affirmed in the Constitution. But this doesn’t actually impose any new duty on the Minister; it has effectively been the law since 2004 (per the Supreme Court of Canada’s decision in Haida Nation v. British Columbia (Minister of Forests)).

A new fetter on the Minister’s discretion relates to declining fish stocks – though the constraint is not as limiting as it might appear. Where a fish stock has declined below a certain level, in making fishery management decisions the Minister must take into account whether measures are in place to rebuild the stock. If loss of fish habitat contributed to the decline, the Minister must consider whether measures are in place to restore that habitat. However, the Minister isn’t compelled to order such measures, and ultimately decides whether stock is in decline or there is habitat loss.

Under the new processes for the authorization of development projects that may affect fish and fish habitat, the Minister must also consider a number of factors.

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 ability to designate projects that will require a permit to proceed and to prescribe projects that don’t.
The ability to establish standards and codes of practice for all phases of the project development lifecycle.
Authorization of the Minister to establish a system for project proponents to create fish habitat banks in exchange for certified habit credits that the proponent can apply to offset the project’s adverse effects.
The requirement that the Minister establish a public registry of records related to development project approval processes.

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 Fish & Seafood 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.

© McInnes Cooper, 2018. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent.

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