New Fisheries Act Reverses Harper-era ‘Gutting’

Canada’s fishery laws are back — well, on the first step to being back, at least. On Tuesday morning, Minister of Fisheries and Oceans Dominic LeBlanc officially announced the introduction of an heavily amended Fisheries Act, the key piece of legislation that was gutted in 2012 by the federal Conservatives. And fishery law experts are thrilled.

“The government’s made good on its promises,” said Linda Nowlan, staff lawyer and head of the West Coast Environmental Law’s marine program. “They’ve not only restored lost protections, especially for fish habitat, but they’ve also introduced a number of modernizations that were long overdue.”

It’s also being hailed on the East Coast.

“This is like Christmas Day for fishery policy nerds,” said Brett Favaro, research scientist at the Fisheries and Marine Institute of Memorial University.

‘You can’t protect fish without protecting fish habitat’

The most significant change is restoring the “HADD prohibition” — which stands for the “harmful alteration, disruption or destruction” of fish habitat. That meant the minister had to specifically authorize any activities that would result in impacts of fish habitats.

That key provision was removed in 2012 and replaced by a prohibition against “the carrying on of a work, undertaking or activity that results in serious harm to fish that are part of or support a commercial recreational or Aboriginal fishery.”

In other words, it seriously limited the scope of the legislation.

In March 2012, a letter signed by over 600 scientists was submitted to then-prime minister Stephen Harper that argued the change would be a “most unwise action, which would jeopardize many important fish stocks and the lakes, estuaries and rivers that support them.”

The new approach was considered impossible to enforce. Nowlan said there were zero prosecutions for fish habitat damage between 2012 and 2016.

“You can’t protect fish without protecting fish habitat,” said Nikki Skuce, director of Northern Confluence, which works to protect wild salmon watersheds in northwestern B.C. “It’s really great to see habitat protections restored in the new Fisheries Act and measures in place to address cumulative effects to rivers such as the Fraser and Skeena.”

The return to the “HADD” provision removes any ambiguity in what constitutes protected fish habitat.

“If there’s fish there and they live there, it’s fish habitat,” Favaro said. “And you’re not supposed to destroy it unless you get permission to do so by the minister.”

New provisions include public registry, management agreements with Indigenous bodies

But the amended Fisheries Act doesn’t just revert the legislation back to how it was before the changes in 2012 — after all, that version hadn’t been updated since 1977 when it was introduced by Minister LeBlanc’s father.

Tuesday’s announcement included a series of significant modernizations.

Those include granting the ability to implement short-term restrictions on fisheries in the case of emergencies, like the recent right whale die-off; prohibiting the capturing of whales for keeping in captivity; requiring the minister to consider the rebuilding of fish stocks; making explicit acknowledgments and requirements to include Indigenous peoples and knowledge systems; allowing for Canada to enter into management agreements with Indigenous governing bodies; and granting the use of alternative compliance mechanisms.

There’s also a new online public registry meant to increase transparency. Nowlan explained that this will help prevent cumulative impacts to fish habitat, as it’s often small projects that build up to damage ecosystems (as opposed to one larger, more visible project). Favaro said such a registry will help keep track of the small cumulative impacts and allow people to decide if we’re achieving the goal of no net loss of fish habitat.

“Right now, we don’t even know all the activities that are happening and impacting fish habitat,” Skuce said. “That’s a strength of the new Act.”

The government also pledged $284 million over five years to improve enforcement of the new laws.

Minister still has a considerable amount of discretionary power

It’s not all perfect though.

Martin Olszynski, assistant professor in law at University of Calgary and expert in fishery law, said there’s an unfortunate use of “discretionary language,” meaning that many components of the proposed legislation are basically up to the opinion of the minister — and requiring no specific evidence.

While he noted that some issues are very complex and that flexibility can be required, the “old-school language” of ministerial discretion does leave a lot of doors open.

“There are some mandatory provisions, but definitely there is still a lot of that discretionary language,” he said. “The question is just whether or not in after spending some time on those issues, are there some objective criteria or benchmarks that could be included that would help frame that discretion?”

For example, there’s a section about implementing measures to manage the decline of fish stocks. The newly amended legislation includes the phrase “if the Minister is of the opinion that a fish stock that has declined to its limit reference point or that is below that point would be impacted.” That’s not satisfactory for some.

“I was hoping for a line that was not ‘if the minister is of the opinion that a fish stock has declined,’ but ‘if the fish stock has declined as determined by the best available evidence then there should be measures in place aimed at rebuilding the stock,’” Favaro said.

As he noted, the current wording could feasibly mean that a minister can simply “not believe” that fish stocks have declined, or take it into account and decide not to act.

Missing provisions

Observers have also found a number of omissions from the new Act.

Olszynski noted there’s no reference to an annual or biannual report on fish habitat in Canada. He says there is also a lack of clarity about how the new Fisheries Act will relate to the upcoming impact assessment legislation that will replace the current Canadian Environmental Assessment Act).

Skuce, the World Wildlife Fund Canada and Green Party leader Elizabeth May all criticized a lack of provisions on harvesting fish via fish farms.

Kris Statnyk, a Gwich’in lawyer with Mandell Pinder, tweeted: “Among the mandatory considerations BC First Nations sought that do not appear in the discretionary list in the Bill: compliance with UNDRIP, consistency with international standards and commitments, climate change, First Nation fishing and management plans.”

Bill expected to become law in 2019

It will take some time for Bill C-68 to wind its way through parliamentary committee, and it’s not expected to become law until mid-2019.

Olszynski said he’s looking forward to seeing how the committee studies the bill and which witnesses they bring in. Along the way, he said that the Department of Fisheries and Oceans could  be clearer on some of the more ambiguous provisions in the new legislation.

But on the whole, Tuesday was a huge win for advocates of stronger environmental laws.

“I hope we’ve learned from our mistakes,” Nowlan concluded. “More than 25 years ago, we had the Atlantic cod collapse. Now, we’re seeing more and more salmon populations being proposed as species at risk. Canada’s fisheries law really needs to do a better job of protecting fish and their habitat, and these amendments look like they’re going to take a big step in that direction.”