Bill C-68 proposes amendments to Fisheries Act

This article was distributed to CWWA members as a Communique

Bill C-68 would amend Canada’s Fisheries Act and other legislation to expand the scope of the law to cover all fish, repealing some controversial changes under former prime minister Stephen Harper that narrowed protections to fish species and habitat related to commercial, recreation or aboriginal fisheries.

The new 56-page bill also proposes beefed-up enforcement measures and new provisions around approving projects that incorporate Indigenous traditional knowledge. In addition, it requires the minister to set up a new "public registry" to allow for access to records. It also introduces an explicit requirement for the fisheries minister to protect Indigenous rights prior to making any decision related to the fisheries law.

The Department of Fisheries and Oceans has a great breakdown of the proposed changes at:

http://dfo-mpo.gc.ca/campaign-campagne/fisheries-act-loi-sur-les-peches/proposed-propose-eng.html

You can also find the full Bill at:

http://www.parl.ca/DocumentViewer/en/42-1/bill/C-68/first-reading

Major changes:

require that, when making a decision under that Act, the Minister shall consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada, include provisions respecting the consideration and protection of traditional knowledge of the Indigenous peoples of Canada, and authorize the making of agreements with Indigenous governing bodies to further the purpose of the Fisheries Act;
add a purpose clause and considerations for decision-making under that Act;
empower the Minister to establish advisory panels and to set fees, including for the provision of regulatory processes;
provide measures for the protection of fish and fish habitat with respect to works, undertakings or activities that may result in the death of fish or the harmful alteration, disruption or destruction of fish habitat, including in ecologically significant areas, as well as measures relating to the modernization of the regulatory framework such as authorization of projects, establishment of standards and codes of practice, creation of fish habitat banks by a proponent of a project and establishment of a public registry;
empower the Governor in Council to make new regulations, including regulations respecting the rebuilding of fish stocks and importation of fish;
empower the Minister to make regulations for the purposes of the conservation and protection of marine biodiversity;
empower the Minister to make fisheries management orders prohibiting or limiting fishing for a period of 45 days to address a threat to the proper management and control of fisheries and the conservation and protection of fish;
prohibit the fishing of a cetacean with the intent to take it into captivity, unless authorized by the Minister, including when the cetacean is injured, in distress or in need of care; and
Update and strengthen enforcement powers, as well as establish an alternative measures agreements regime.

Implications

Below is a break down of specific changes that will likely impact CWWA members.

Not all fish and fish habitat are protected under the current Act. Only those related to a commercial, recreational or Aboriginal fishery protected. The amendment will make the fish habitat provisions apply to ALL fish habitat. For reference "fish habitat" refers to "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;"

For our members, who were exempted from the Fisheries Act habitat protection provisions because works were not taking place in a designated body of water, this will mean increased regulation, including providing analysis and information to the Minister of potential impacts to fish habitat of any works or alterations at the plant. This is a return to the pre-2012 amendments.

The new Act will create provisions to add clarity on which types of projects require authorizations through permitting and codes of practice.

Since the permitting and codes of practice will follow in Regulation or Guideline it is difficult to assess the implication for our members. We’re hopeful that this will provide clarity and an easier process to determine permitting etc.

In order to increase the transparency of the permitting process the Act will add a requirement to publicly release information on project decisions through an online registry.

The Act will add the ability to address Fisheries Act offences outside of courts using alternative measures agreements, which reduces costs and repeat offences.

CWWA members are occasionally subject to warnings or charges under the Fisheries Act. The ability to settle these out of court might be a welcome change, saving in legal costs. However, an ongoing issue for members is warnings and/or charges for discharges under the deleterious substance provisions that pose no threat to fish populations. We would like to see this issue addressed in amendments, and hope that the ability to settle offences out of court isn’t used as justification for frivolous warnings and charges.

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