Back to the Future: Amendments to the Fisheries Act

Authors: Sean Parker and Ainslie Fowler, Student-at-Law

On February 6, 2018, the Federal Government introduced proposed amendments to the Fisheries Act with Bill C-68 (the “Bill”).  The Bill seeks to reverse several provisions of the current Fisheries Act that was amended in 2012 when the Harper government was in power. The Trudeau government states they are reversing the cuts made by the previous government to restore lost protections and incorporate new safeguards.

The Pre-2012 Fisheries Act

A significant feature of the pre-2012 Fisheries Act was that is protected fish habitat, including waters capable of supporting fish.  It was not required to prove that fish actually occupied the waters and that those waters contributed to fish habitat.  If water had the potential to be fish-bearing, then they were a protected fish habitat.

Under the pre-2012 Fisheries Act, “fish habitat” was defined as “any spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes,” and applied to all fish.  Section 35 contained a broad prohibition on any work, undertaking or activity that resulted in the harmful alteration or disruption, or the destruction (“HADD”), of fish habitat.  This was generally considered to be a powerful provision that protected fish bearing waters and those bodies of waters that could be fish bearing, or attributed to fish habitat.

Current Fisheries Act (Post 2012)

Perhaps the most significant change made to the Fisheries Act in 2012 was to the provisions relating to fish and fish habitat.  Under the current Act, protection for fish only applies in certain specified fisheries including commercial fisheries, aboriginal fisheries, and designated recreational fisheries.  Moreover, the current Act gives the Governor in Council the power to make regulations providing for exemptions from the Act, including, for example, excluding fisheries from the definitions of Aboriginal, commercial, and recreational fisheries.

 

Bill C-68, the Proposed Changes to the Fisheries Act

The propose amendments to the current Act seek to restore previous measures protecting all fish and fish habitat, and, according to the Government, to introduce new modern safeguards in order to improve the protection of fisheries and their ecosystem. The proposed amendments are intended to achieve several objectives, some of which include:

• restoring lost protections by returning to comprehensive protection against harming all fish and fish habitat;
• strengthening the role of Indigenous peoples in project reviews, monitoring and policy development;
• allowing for the better management of large and small projects impacting fish and fish habitat through a new permitting framework and codes of practice; and
• promoting restoration of degraded habitat and rebuilding of depleted fish stocks.

In addition, when making decisions under the Act the Minister may consider such things the application of a “precautionary approach and an ecosystem approach” and the “sustainability of fisheries”.

While these are laudable objectives, the effectiveness of the proposed amendments is yet to be demonstrated. 

 

        i.            New Definitions to Support Amendments
Under the Bill, many definitions are changed, repealed, or returned to their pre-2012 iteration. Notable changes include the following:

• The definition “fish habitat” is broadened to mean any water frequented by fish, as opposed to only areas where fish depend directly or indirectly in order to carry out their life processes.
• The definition of “fishery” is replaced.  It is now a broad definition including all species and fish-bearing waters, not just a place where fishery appliances are used.
• The definition “serious harm to fish” is repealed as the broadened protections eliminate the severity of harm as a criterion for the application of the Act’s protections.

 
     ii.            A Robust “Purpose” of the Fisheries Act
Another notable change is with respect to the purpose of the Act.  The current and previous versions of the Act did not contain a purpose section. The Bill states that the purpose of the Act will be to provide a framework for the “proper management” of fisheries and “the conservation and protection of fish and fish habitat, including by preventing pollution.”

 

    iii.            Protection of All Fish and Fish Habitat
Under the Bill, the Governor in Council must consider many factors before making a recommendation that a regulation be made, including the contribution to the productivity of relevant fisheries by the fish or fish habitat, measures and standards to avoid fish death and avoid the harmful alteration, disruption or destruction of fish habitat, how the decision affects fish banks, the traditional knowledge of Indigenous peoples, and other important considerations.

Perhaps the most significant change is the restoration of the HADD provisions similar to those in the pre-2012 Fisheries Act. Under the Bill, it is prohibited to carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat. The current Act only protects fish in designated fisheries.  Since the proposed definition of “fish habitat” is also broadened to include any water frequented by fish, or waters where fish depend directly or indirectly to carry out their life process, this amendment would protect all fish.

Other notable changes include the enhanced Ministerial powers to rebuild depleted fish stock and take “prompt measures” to address threats to the proper management and control of fisheries and the conservation and protection of fish, make a fisheries management order.

     iv.            Consideration of Indigenous Peoples of Canada
Under the Bill, when making a decision under the Act the Minister must consider the adverse effects that decision may have on the rights of Indigenous peoples of Canada.  In addition, the Minister may consider traditional knowledge of the Indigenous peoples of Canada, community knowledge, “social” and “cultural factors” in the management of fisheries, and may cooperate with an Indigenous governing or other body (including a co-management body) established under a land claim agreement.
 

       v.            Penalties
The Bill does not alter any of the penalty provisions in the current Act, which makes a distinction between individuals, corporations, and small revenue corporations for purposes of penalties and fines.  With respect to corporations, the minimum fine for a first offence is $500,000 (by way of indictment) and the maximum is $6 million.  For a corporation’s second offence, the fine is a minimum of $1 million to a maximum of $12 million (see section 40(1)(ii)).  The amendments to the penalty provisions in 2012 were generally considered to be enhanced from the previous versions.

     vi.            Conclusion
Bill C-68, if enacted, will significantly change the protections in place under the current Act by broadening protection to all fish and fish habitat, providing Indigenous peoples of Canada an enhanced role in the process, and broadening the considerations for decision making and drafting regulations to consider other factors, such as traditional knowledge.

 

The proposed amendments will reverse many of the changes that were made to the Act in 2012 and appear to support  habitat and other protections while maintaining the enhanced penalty regime introduced in 2012.  The procedures for permitting under the Act, engagement of Indigenous peoples and other practical implementation processes are not currently known.

 

For information on how Bill C-68 may affect your operation please contact Sean Parker, Ainslie Fowler or another member of our Energy, Environmental and Regulatory Practice Group.

 

A Table of Key Changes

 

Provision	Pre-2012 Fisheries Act	Current Fisheries Act	Bill C-68
“Fishery”	"fishery" includes the area, locality, place or station in or on which a pound, seine, net, weir or other fishing appliance is used, set, placed or located, and the area, tract or stretch of water in or from which fish may be taken by the said pound, seine, net, weir or other fishing appliance, and also the pound, seine, net, weir, or other fishing appliance used in connection therewith;	No change.	Fishery with respect to any fish, includes, (a) any of its species, populations, assemblages and stocks, whether the fish is fished or not, (b) any place where fishing may be carried on, (c) any period during which fishing may be carried on, (d) any method of fishing used, and (e) any type of fishing gear or equipment or fishing vessel used;
“Fish Habitat”	"fish habitat" means spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes;	“fish habitat” means spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes.	Fish habitat means water frequented by fish and any other areas on which fish depend directly or indirectly to carry out their life processes, including spawning 20 grounds and nursery, rearing, food supply and migration areas.
“Waters Frequented by fish”	“water frequented by fish" means Canadian fisheries waters	No change.	Subsumed by definition of Fish habitat and Fishery
“Canadian Fisheries Waters”	Canadian fisheries waters means all waters in the fishing zones of Canada, all waters in the territorial sea of Canada and all internal waters of Canada	No change.	Subsumed by definition of Fish habitat and Fishery
Purpose Section	Repealed	Repealed	Purpose of Act 2.1 The purpose of this Act is to provide a framework for (a) the proper management and control of fisheries; and (b) the conservation and protection of fish and fish habitat, including by preventing pollution.
Section 35	Harmful alteration, etc., of fish habitat 35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.	Serious harm to fish 35 (1) No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.	Harmful alteration, disruption or destruction of fish habitat 35 (1) No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.

 

 

 

 

 

 

Sweeping Changes Proposed to Canada’s Environmental Assessment Legislation

Author: Sarah Levine

The parliamentary review of Canada’s federal environmental assessment and regulatory processes, initiated by the Trudeau government in 2016, has culminated in proposed sweeping changes to the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”), the Fisheries Act, the Navigation Protection Act, and the National Energy Board (“NEB”).  

Bill C-69, which was tabled last week, proffers the notion of "One project. One assessment", which reflects Ottawa’s goal of creating a more streamlined process for the review of designated projects.  This change seems aimed at pleasing project proponents. 

On the other hand, the Bill introduces the concept of a “planning phase” to the impact assessment process before an actual impact assessment is done, with attendant consultation obligations.  It also widens the type of impacts that will be assessed.  These changes seem aimed at pleasing stakeholders such as landowners, environmental groups and Indigenous peoples.  It will be interesting to see whether this new regime is successful in achieving these different aims, which if not inherently contradictory certainly can be in contentious cases.

So what exactly is in Bill C-69 and what will Canada’s federal environmental assessment process look like, assuming these proposed changes become law?

Enacting the Impact Assessment Act and the Canadian Energy Regulator Act

The CEAA 2012 was introduced under the Harper Conservatives and, while touted as industry-friendly legislation, has been the subject of much criticism from both environmental groups and industry alike due to both the perceived scaling back of environmental protections as well as its review process which critics charge is inefficient. In response to this, the Trudeau government is proposing to repeal the CEAA 2012 and replace it with the Impact Assessment Act.

Currently, there are three separate agencies (“responsible authorities”), each with their own set of rules, responsible for conducting environmental assessments: the NEB, the Canadian Nuclear Safety Commission (“CNSC”) and the Canadian Environmental Assessment Agency (“CEAA”).  All designated projects, as defined in the Regulations Designating Physical Activities (or as designated by the Minister of Environment), undergo an environmental assessment by one of these responsible authorities. 

Bill C-69 seeks to streamline these multiple agencies by creating the Impact Assessment Agency of Canada (“IAA”), a single body designed to carry out the review of all major projects in Canada.  In addition, the NEB will be replaced by the “Canadian Energy Regulator”.  The IAA will bring the impact assessment (“IA”) process under the authority of a single agency, scrapping the NEB’s and CNSC’s assessment powers. The IAA would work with the Canadian Energy Regulator, the CNSC and Offshore Boards to ensure that safety and other important regulatory criteria are considered in the new IA review process.

Key features of the IA process

Arguably the most significant change in the proposed IA process is the shift away from decisions based solely on a determination of adverse environmental impacts to one that takes an integrated approach to considering whether a designated project’s adverse effects are in the “public interest.”  This public interest determination will not only take into consideration the potential environmental impacts of the project, but also incorporate considerations such as the effect of the project on the government’s ability to meet its climate change commitments, the extent to which the designated project contributes to sustainability, the impacts on Indigenous groups and rights and “the intersection of sex and gender with other identity factors”.  Impact assessments under the IAA must also consider “any alternatives to the designated project”, a requirement that had been in the old Canadian Environmental Assessment Act but was excluded in the CEAA 2012.

The new IAA mandates an initial “Early Planning” phase of up to 180 days that will engage Indigenous communities and the public in meaningful discussion to determine whether or not they will be affected by the proposed project.  The Minister will have the power to decide that a project not even proceed to an impact assessment if the Minister is of the opinion that “it is clear that the designated project would cause unacceptable effects”.  This appears to be intended to allow the government to reject a project on broad policy grounds before a proponent invests significant time and money.

The IAA will have set timelines for the review of projects: a maximum of 300 days for smaller projects with fewer assessment requirements (so that they can be carried out in a "timely manner"); and 600 days for bigger projects that are subject to a panel review, a tighter turnaround than the current 24 months (730 days) under CEAA 2012.  Following the Impact Assessment, there will be a maximum 30 day window for a decision to be rendered if the Minister determines a public interest component, or 90 days if Cabinet makes the public interest determination.

The existing "standing test," which acts as a threshold that is determinative of who can participate in the regulatory review process, is being eliminated in order to give members of the public a greater chance to provide input. The legislation emphasizes the critical need for the IAA to meaningfully consider impacts on Indigenous rights and culture early on in the review process, for which the federal government will be providing financial support.

Canadian Energy Regulator- the New NEB

The National Energy Board is slated to be replaced by the Canadian Energy Regulator (“CER”), whose job it will be to oversee the regulation of pipelines and the traffic, tolls and tariffs relating to the transmission of oil and gas through them.

The NEB’s ability to satisfy the Crown’s duty to consult with First Nations or to undertake environmental assessments in general was the subject of criticism for many years. Among other things, the creation of the CER is intended to bolster capacity in areas such as environmental science, community development and Indigenous traditional knowledge.

However, Minister McKenna has indicated that the federal cabinet will retain its right to approve projects that it feels are in the national interest, even if an assessment process determines a project could cause significant environmental, health, or socio-economic effects.  This veto power of the federal government to approve projects that have not passed a review will no doubt disappoint certain environmental and Indigenous groups, but Minister McKenna asserts the need for balancing all Canadians’ interests, noting that “Canadians want a modern environmental regulatory system that protects the environment, supports reconciliation with Indigenous people and attracts investment.”

Next Steps

The federal government is presently seeking input from Indigenous peoples and the broader public on regulations and policy changes required to accompany the legislation. In particular, the government is seeking public comment on two key proposed regulations under the IAA by April 15, 2018: a revised “Project List” to identify the major projects to be subject to the IAA and the Proposed Information and Time Management Regulations which will replace the current requirements for a designated project’s description.

The tabling of Bill C-69 flows from the Trudeau government’s commitment to engage in a critical review of Canada’s federal environmental and regulatory processes to address concerns from various groups about meaningful engagement, inefficiencies, and balancing the country’s environmental goals with its desire to remain competitive in getting Canadian resources to market.

With promises of "more predictable and consistent timelines", decisions based on "robust science, evidence and Indigenous traditional knowledge" and more coordination with the provinces "to support one project one assessment", we will be closely following the progress of this draft legislation, as its potential to usher in a new era of federal project impact assessment might have significant impacts on the future of Canada's industries and economy, but also on federal-provincial and Crown-Indigenous relations.