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.