Fisheries Act Revisions – OVERVIEW

June 21, 2019 – The revised Federal Fisheries Act (Bill C-68)  gives the Department of Fisheries and Oceans (DFO) increased oversight of development activities and the management of fish and fish habitat. It restores prohibitions against the harmful alteration, disruption, and destruction of fish habitat, and should allow for better protection for biodiversity. The Act also has tools to repair past harm to habitat and helps depleted fish populations recover from impacts such as climate change, loss of habitat or other environmental conditions. Over the next year, there will be much work to do to rebuild the regulations under the new Act, set up the proposed public registry and more.  For more information, visit the DFO Fisheries Act web pages.

February 2018 – Trudeau Government moves to reverse Harper Government changes to the Fisheries Act – Commentary on the revised Fisheries Act, 2018 (Ontario Bar Association)

Learn more about the recently amended Fisheries Act (Introduction and First Reading in the House of Commons on February 6, 2018):

February 6, 2018 – Press release from Minister of Fisheries, Oceans and the Canadian Coast Guard ; Chart showing  proposed changes to the Fisheries Act  (highlights courtesy of FOCA)

Note: Passing this ambitious legislative agenda (including C-68, and C-69)  will be a challenge with the next federal election looming in 2019.  These Bills will be subject to extensive Parliamentary debate, and will be referred to Standing Committee hearings before they are passed by the House of Commons and sent on to the Senate for its consideration.


March 8, 2017 – Revised Fisheries Act changes could undo decades of damage (iPolitics)

February 24, 2017 – The House of Commons Standing Committee on Fisheries and Oceans has tabled its recommendations to the Honourable Dominic LeBlanc, Minister of Fisheries, Oceans and the Canadian Coast Guard to enhance the protection of fish and fish habitat and the management of Canadian fisheries under the Fisheries Act.

Despite their environmental and economic importance, less than a quarter of Canada’s fish stocks can be shown to be healthy.  According to a 2016 Fall Report of the Commissioner of the Environment and Sustainable Development, healthy fish stocks are necessary for fisheries to continue to provide economic and social benefits to Canadians.  It is critical for Fisheries and Oceans Canada to have a strong fisheries management program in place to ensure sustainable fisheries.

Three important recommendations made by the Standing Committee include:

  • Restoration of habitat protection provisions that were lost in 2012 (known as the “HADD” provisions, the harmful alteration, disruption or destruction of fish habitat). Prior to 2012, this was Canada’s a strong environmental law, and reinstating the provisions in the Act restores legal protection to ocean and freshwater habitats.
  • Adopting the ecosystem approach for the protection of fish habitats. This can protect aquatic biodiversity as a whole, not just commercially valuable species, by taking into account their need for healthy populations of forage fish even if there is no commercial fishery.
  • Protecting fish habitat from key activities that can damage habitat, including cumulative effects of multiple activities. Protecting fish is impossible without protecting habitat.

 

November 2016 –  Fisheries and Oceans Canada has undertaken a 2016 consultation,  Let’s talk fish habitat , with the intent to restore important protections within the Federal Fisheries Act.
You can read FOCA’s input, here. (PDF letter, 3 pages)


“If our laws can protect the water, if we give the fish a place to live, we can have a better place for man to live…. The work of constant monitoring and restraint where necessary is hard, but the alternative prospect of forever losing stocks or species of fish is not acceptable…. The fish and their waters are a public resource. With the changes to the Fisheries Act that I am asking for, my department will be better able to carry out the public responsibility of guarding them.”

– Fisheries Minister Roméo LeBlanc (1977)


October 18, 2016Government of Canada launches public consultation on changes to the Fisheries Act

March 24, 2016  – West Coast Environmental Law calls on Federal Fisheries Minister to restore lost protections for fish habitat in their report: Scaling up the Fisheries Act (PDF, 16 pages)

September 2015 –  In a recent report, University of Calgary law professor Martin Olszynski provides an empirical analysis of the, “further erosion of an already deeply flawed regulatory regime and the near-total abdication of responsibility for the protection of fish habitat by the federal government over the past decade.

With telling similarities to government withdrawals underway with the Province of Ontario’s “Permit by Rule”/”Modernization”  approach, Olszynski suggests that scaling back assessments for low-risk developments can be a valid way to reduce regulatory burdens, but to work, it requires credible oversight and enforcement.

More from Martin Olszynski:

5 Things I learned about Canada’s New Fish Habitat Protection Laws (ABlawg: The University of Calgary Faculty of Law Blog)

Access the complete report, From ‘Badly Wrong’ to Worse: An Empirical Analysis of Canada’s New Approach to Fish Habitat Protection Laws. (PDF, 1.4MB)


September 1, 2015: media report (CTV News / Canadian Press)

Fish habitat protection waning under Harper government, analysis finds (CBC News)


Changes to the Fisheries Act – Overview and practical considerations

In April 2013 – The Department of Fisheries and Oceans (DFO) introduced the first set of regulations under the amended Fisheries Act, which passed through Parliament and received Royal Assent in 2012 (Bills C-38 & C-45).

In 2012, FOCA spoke against the changes, specifically the ill-defined habitat protection provisions, roles and responsibilities, and capacity to deliver proper fisheries management.

Government of Canada summary of changes to the Fisheries Act Canada

Ecojustice summary of the changes to a new Fisheries Act – what’s changed ?

The April 2013 revisions mostly just defined the administrative requirements related to getting an authorization under the Act. The devil, they say, is in the details. See FOCA’s comments, here (pdf; 3 pages).

In November 2013 regulations defining a new section 35 prohibition “serious harm to fish”, and other considerations came into force. In addition, DFO posted the  “Proponent guide to self assessment”: (e.g. Does my project need a review by DFO ?)

Also now on the DFO site are Measures to Avoid Causing Harm to Fish and Fish Habitat , which replaces the previous DFO “Operational Statements”

Fisheries Act Changes Effective November 25, 2013, according to BLG

Some Current Jurisdictional considerations:

Proponents are now expected to self-assess any projects using the DFO website, which will help them determine if any DFO review is required (see “Does my project need a review”, above).

DFO will plan to “triage” applications for review, and will not get involved unless the proponent submits a request for review. The current contact information for review/application submission is: 1-855-852-8320, or via email to FisheriesProtection@dfo-mpo.gc.ca .  Due to limitations on staff and other resources it is likely that many (most?) of Ontario’s projects will be reviewed out of province.

MNR are still the keepers of the Province’s fisheries data, and are providing information related to fisheries management objectives.

Conservation Authorities (CA’s), who traditionally had an active role in providing advice and fisheries enforcement are no longer reviewing projects for DFO under the Fisheries Act;  as of November 2013 all DFO agreements with the CA’s are void. There are discussions are ongoing for new agreements.


Some history:

FOCA’s Comments on the 2012 Proposed Fisheries Act changes. (pdf; 2 pages)

Video Introduction to the FOCA Presentation to the Subcommittee re: Fisheries Act Changes

Video of the committee hearings (Note: FOCA Presentation starts at 35:35 of the video)

 

Terry ReesFisheries Act Revisions – OVERVIEW