Royal Assent was recently granted to amendments to the Fisheries Act. According to Minister Ashfield, with these changes "The government wants to move DFO out of the business of reviewing every activity on every body of water, regardless of the impact – to focussing on activities that pose a significant threat to the sustainability and productivity of recreational, commercial or Aboriginal Fisheries."
There are two potential sets of amendments to the Fisheries Act. The first wave of changes came into force upon Royal Assent of Bill C-38. The second wave could occur if the Federal Cabinet exercises the power granted to it under Bill C-38 to repeal some of the first wave changes and further amend the Fisheries Act.
HADD Provision Changed and Possibly Changing
One of the most important initial amendments to the Fisheries Act will be the change to the wording of the provision prohibiting the harmful alteration, disruption or destruction of fish habitat ("HADD") found in section 35 of the Fisheries Act. HADD will now include "activity" with "work", and "undertaking". This will have the effect of broadening the scope of the prohibition against actions which cause a HADD. However, it is tempered by another amendment to the provision which provides that one is not in contravention of the Act if the HADD is a result of a work, undertaking or activity allowed by regulations to the Fisheries Act; if it is authorized by the Minister or another authorized entity; or if it is a result of work, undertaking or activity permitted or required by the Fisheries Act.
The possible "second wave" changes made possible by Bill C-38 would significantly change the focus of the Act. Rather than focus on the protection of fish, the Act would shift to the protection of commercial, recreational and Aboriginal fisheries. In the case of section 35 of the Act, the further amendment would no longer prohibit "harmful alteration or disruption, or the destruction, of fish habitat" but instead prohibit "serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery." This would limit the application of the prohibition to these particular fisheries rather than fish habitat writ large, and also only prohibit serious harm rather than a HADD. "Serious harm to fish" would be defined as the death of fish or any permanent alteration to, or destruction of, fish habitat.
Narrowed Prohibition Against Destruction of Fish
Another change is to the wording of the prohibition against destroying fish found in section 32 of the Act. The provision will now read "No person shall kill fish by any means other than fishing" which replaces the former prohibition "No person shall destroy fish by any means other than fishing". The replacement of the word "destroy" with "kill" may narrow the offence to exclude accidental or collateral harm to fish. As with section 35, the provision is also expanded to include exceptions to the general prohibition against killing fish: there is no offence if fish are killed as a result of a work, undertaking or activity allowed by regulations or if the "killing" is authorized by the Minister or another authorized entity.
The possible "second wave" changes would call for section 32 of the Act to be repealed.
Flexibility for Deposits of Deleterious Substances
The prohibition against depositing deleterious substances into water or areas where they could come into contact with water in section 36 of the Act is modified in a similar manner to sections 32 and 35 by including more situations where the Minister is allowed to make regulations authorizing the deposit of deleterious substances into or in areas that can come into contact with water.
Federal –Provincial Cooperation
There are also new sections of the Act that promote cooperation between federal and provincial jurisdictions. Under the amendments, the Minister of Fisheries and Oceans may enter into agreements with provinces to allow for reduction of overlap between programs and harmonization of programs, to facilitate enhanced communication between federal and provincial actors, especially with regard to scientific information, and to facilitate public consultation or the entry into agreements with third-party stakeholders. If such an agreement provides that a province has an equivalent provision to a federal one, Cabinet may declare that certain provisions in the Fisheries Act do not apply in that province.
Control of Invasive Aquatic Species
The amendments now specifically allow Cabinet to make regulations establishing a list of aquatic invasive species and regulations to control aquatic invasive species, such as who may possess one of these species, how they may be handled, and requiring records to be kept.
Enhanced Powers of Fisheries Authorities
The powers of fisheries inspectors and analysts are enhanced by the amendments. The Act provides greater guidance where inspectors may search, and introduces the requirement that they have a "purpose related to verifying compliance with this Act" in order to conduct a search.
Duty to Self-Report
Another amendment to the Act imposes a duty to self-report to an inspector, fishery officer or prescribed authority when there is an unauthorized HADD, a deposit of a deleterious substance or the imminent danger of such an occurrence. After reporting, a person must also provide the authority with a written report as soon as possible. Inspectors and fishery officers are also given the authority to take immediate action to prevent or contain damage to fish habitat at the offender's expense.
Other Initial Amendments: Limitation Period and Reference Materials
The amendments also include the introduction of a limitation period of five years after which a person can no longer be prosecuted for offences under the Fisheries Act. The amendments also include an unconventional provision which allows the Minister to make regulations with reference to material published by other governments, other governmental agencies or international bodies. The Minister must make this material accessible (likely to be published on the website) but does not have to publish it in the Canada Gazette.
Other Potential Changes upon Cabinet Approval
As described above, the possible second wave amendments would change the focus of the Act. Additional second wave amendments are described below.
New Factors to Consider before Making Regulations
One second wave amendment would introduce factors that the Minister would be required to consider before making any regulations. The factors would be: (i) the contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries; (ii) fisheries management objectives; (iii) the public interest; and (iv) whether there are any measures and standards to avoid, mitigate or offset serious harm to fish that are part of a commercial, recreational, or Aboriginal fishery, or that support such a fishery. While making regulations, Cabinet would have the power to exempt waters from the requirement of the free passage of fish, the prohibition against serious harm to fish of protected fisheries and the duty to self-report.
Others changes to the Act that would come into force upon approval by Cabinet are housekeeping changes to the Act regarding management of fishways and providing clear waterways for fish. Previous sections dealing with obstruction of the main channel of waterways, canals and fish-ways, and the requirement of fish guards will be repealed and replaced with one comprehensive section dealing with "fishways".
New Fines for Contravening Act
Finally, Cabinet may further amend the Act to introduce heavier fines for contravention of the Act. There would be three classes of potential offenders: individuals, corporations deemed to be small revenue corporations (less than $5 million in annual revenue) and persons other than individuals or small revenue corporations (i.e. large corporations). Maximum fines for large corporations would be up to $12 million for repeat offenders convicted on indictment and $8 million for repeat offenders in the case of a summary conviction. There would also be considerably large mandatory minimum fines introduced. Minimum fines for large corporations for a first offence would be $100,000 on summary conviction and $500,000 on indictment.
Initial changes will modify the Fisheries Act and appear to allow for increased government authorization for activity that may harm fish or fish habitat which would otherwise be prohibited. Initial changes also call for increased cooperation with the provinces and enhancements to the enforcement of contraventions.
Particularly noteworthy are the potential second wave amendments that may be made by Cabinet which would significantly change the focus of the Fisheries Act to the protection of a much narrower group of fisheries, while also implementing much stricter punishments for contravention.