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Canada’s Environmental Reviews: Fisheries Act

Overview

One of Canada’s oldest and most important environmental laws, the Fisheries Act, was enacted in 1868 – a year after Confederation. In the late 1970s habitat protection provisions were added to the Act, including a prohibition (unless authorized) against the “harmful alteration, disruption or destruction of fish habitat” (HADD). This provision became widely regarded as one of Canada’s most powerful environmental legal protections.  

No habitat, no fish. That’s the slogan on old Fisheries and Oceans Canada (DFO) buttons. The science is clear: fish need habitat to survive and flourish. Loss of fish habitat has historically been a chief cause in fisheries decline.

So when two budget omnibus bills in 2012-13 substantially weakened the federal Fisheries Act provisions on fish habitat protection, an outcry arose across the country from scientists, former fisheries Ministers, fishing and wildlife organizations, and environmental groups.

The changes were made with no public participation, respect for First Nations title and rights, or scientific evidence.

Fortunately, the federal government has promised to review those changes. In November 2015, Prime Minister Justin Trudeau publicly released the mandate letters for newly appointed federal Cabinet Ministers. In his mandate letter, the Minister of Fisheries, Oceans and the Canadian Coast Guard was tasked with ‘restoring  lost protections’ and ‘incorporating modern safeguards’ to the Fisheries Act.

This fall, the government is taking action to fulfill its promises through two related reviews, by a Parliamentary Committee and an online consultation portal. West Coast Environmental Law Association and many others have urged the government to reinstate the prohibition on HADD, and make a number of other changes to improve fisheries management and better protect all fish all across the country.

Key points

In order to ensure the long-term stewardship of Canada’s marine and aquatic ecosystems, there are some key changes that need to be made to the Fisheries Act (as West Coast Environmental Law Association wrote in our report Scaling Up the Fisheries Act).

The most important way to restore lost protections is to bring back HADD. The law needs to apply to fish habitat, not just fisheries.

Many modern safeguards can be incorporated to this antiquated law, such as limiting discretion through sustainability guiding principles and purposes,  designating some essential fish habitat that cannot be destroyed or compensated, and creating a public registry of habitat authorizations.

Finally there is a huge need to increase enforcement. There has not been a single prosecution for fish habitat damage since the Act’s changes came into force late in 2013. Strengthening enforcement will require more resources for fisheries enforcement officers and could also include more delegated authority for groups such as the Guardian Watchmen, who are already out on the water monitoring activities.

Timeline

  • September 19, 2016 – Parliamentary Standing Committee on Fisheries and Oceans (FOPO) passed resolution to review Fisheries Act
  • November 25, 2016 – Closing date for online public consultation
  • November 2016 - January 2017 – Parliamentary Standing Committee on Fisheries and Oceans holds hearings on changes to the Fisheries Act
  • Spring 2017 – Second phase of public consultation will solicit ideas on new legislation

Ways to participate

There are currently two ongoing processes to review the Fisheries Act.

1. Review by Parliamentary Standing Committee on Fisheries and Oceans (FOPO)

On September 19, 2016, the House of Commons Standing Committee on Fisheries and Oceans passed a motion to review and study the scope of application of the Fisheries Act focusing on these issues:

  • the serious harm to fish prohibition;
  • how the prohibition is implemented to protect fish and fish habitat;
  • the capacity of Fisheries and Oceans Canada to deliver on fish and fish habitat protection through project review, monitoring, and enforcement;
  • the definitions of serious harm to fish and commercial, recreational, and Aboriginal fisheries;
  • the use of regulatory authorities under the Fisheries Act; and
  • other related provisions of the Act.

The committee’s report is due to be submitted to the House of Commons by February 28, 2017.

The deadline to submit a brief to FOPO is Wednesday, November 30th at 11:59 pm EST.

Instructions on how to submit are on the FOPO website.

2. Online consultation through Let’s Talk Fish Habitat website

The Government of Canada is also reviewing the 2012-2013 changes to the Fisheries Act with an online consultation called Let’s Talk Fish Habitat. Website registration is required to participate in this consultation.

The website provides two methods to share your thoughts.

a) You can share your ideas on the interactive Ideas Forum, and comment, ‘like’ or critique all posted ideas.

b) You can also fill out four eWorkbooks on:

  • Why you care about fish habitat
  • Threats to fish and fish habitat
  • The right protections in the right places
  • Monitoring and reporting back to Canadians

The deadline for online consultation is Friday, November 25th.

 Additional resources

West Coast Environmental Law Association brief outlining preliminary recommendations for achieving key elements of Fisheries Act reform that the Minister of Fisheries, Oceans and the Canadian Coast Guard was tasked with in his 2015 mandate letter.

This brief – submitted to the Standing Committee on Fisheries and Oceans by West Coast and the Forum for Leadership on Water (FLOW) – establishes the need for national legal fish habitat protection standards, addresses the current state of the law, and sets out recommendations for a modern Fisheries Act.

West Coast’s Linda Nowlan explains how a renewed Fisheries Act should work to safeguard critical salmon habitat like the area threatened by the Pacific NorthWest LNG project.

An online portal dedicated to strengthening the Fisheries Act, with links to a petition, resources and an open letter signed by NGOs, First Nations and scientists calling on the federal government to put habitat protection provisions immediately back into the Act, along with stronger monitoring and enforcement.

This recent empirical analysis of DFO authorizations makes the case that the Fisheries Act is 'an area of law in need of serious reconsideration.'

 


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