Element of a New Fisheries Act - Discussion Document

COLLABORATION WITH PROVINCES AND TERRITORIES

BACKGROUND

The government has committed itself to increased collaboration with the provinces and territories, including in the area of fisheries management.

DFO has several formal intergovernmental arrangements, not all of which relate to coastal fisheries management issues. For example, freshwater provinces such as Alberta and Ontario have been delegated administrative responsibilities for fisheries in their jurisdiction. There is no overarching legal framework to establish common goals for these arrangements.

INTERGOVERNMENTAL AGREEMENT POWER

DFO changed the Act to include an intergovernmental agreement power that will have the effect of providing a framework within which to fulfil the government's commitment for increased intergovernmental collaboration.

An agreement power facilitates and enhances communications and collaboration between governments by allowing joint action in areas of common interest, engaging common stakeholders, and increasing the flow of information, including scientific information, between governments.

The agreement power is generally consistent with those found in other federal statutes, which also make provision for intergovernmental financial arrangements, administrative delegation, consultation and cooperation.

An agreement could establish:

• Roles, powers and duties of the parties in respect of the agreement itself;
• Programs and projects, as already authorized under the current Act;
• Principles and objectives to be applied within the parties' respective programs;
• Standards, guidelines and codes of practice to be followed by the parties in administering their existing programs (NOTE: this would not be a law-making power);
• Provisions respecting processes to be used under the agreement, panels and committees that may be required, etc.

DFO is also providing a requirement that the Minister publish the draft agreement as well as the final agreement. The Governor in Council would make further regulations respecting conditions and requirements for entering into agreements.

Deemed equivalency provisions from the Canadian Environmental Protection Act can also be imported into a new Act to allow the Minister to deem provincial regulations to be equivalent in operating effect to a provision or provisions of regulations made under the new Fisheries Act.

Where an agreement deems such equivalency, the Governor in Council - who made the original regulation - would declare that the named federal regulation does not apply within the province.

To ensure that "equivalency" is maintained, the Act includes a provision that, where the Minister has information to indicate that the provincial provisions no longer meet national norms or are not being adequately applied or enforced, the Minister would be able to seek the repeal of the Governor in Council's declaration, having first given notice to the other government.

PROGRAMS AND PROJECTS

At present, statutory authorities to undertake a number of programs and projects and to provide funding or other forms of financial assistance are spread across several statutes, and in particular:

• the Fisheries Development Act (R.S 1985, chap. F-21)
• the Fisheries Improvement Loans Act (R.S. 1985, chap. F-22)
• the Atlantic Fisheries Restructuring Act (AFRA) (R.S. 1985, chap. A-14)

Many provisions of these Acts are no longer needed. For example, the power to acquire equity in harvesting and processing companies (AFRA, s. 4), which has not been used for some 20 years.

These outdated statutes have been repealed, while the new Act includes a small number of financial authorities more closely linked to the programs and purposes of the Act. The programs and projects the Minister can undertake could relate to commercial, recreational or Aboriginal fisheries, as well as fish habitat and aquaculture, including:

• Improving the business-management and harvest-management capacity of a fishing enterprise or organization and supporting the training and mentoring of its members;
• Improving economic viability in the fishery or the aquaculture sector; and
• Restoring, improving or conserving fish habitat.

There is also a provision that authorizes the Minister to enter into agreements or other arrangements with governments or other entities for the purposes of programs and projects. Under the DFO Act, the Minister's power to enter into agreements with provinces is limited to agreements respecting the administration of DFO programs by the province. A new programs and projects agreement power, by contrast, allows the two governments to enter agreements respecting any shared purpose related to the intergovernmental agreement power.

ADVISORY PANELS

The Fisheries Development Act (FDA) authorizes the creation of advisory committees to carry out the purposes and provisions of the Act, as well as authorizing the payment of committee members' expenses. However, that statute has a narrow purpose: the development of the commercial fisheries.

DFO and the Minister had no express statutory power to appoint advisory bodies for any other purposes, such as the review of DFO scientific data.

Much of the department's relationship with stakeholders is conducted informally through the medium of self-constituted and self-managing stakeholder groups. However, the Minister has also created standing advisory bodies, such as the Fisheries Resource Conservation Council, and occasional ad hoc bodies such as the recent High Seas Task Force on Foreign Overfishing.

A new Act includes a general power for the Minister to establish advisory panels for a wide variety of purposes under the Act. It establishes who may be appointed and addresses administrative requirements such as the authority to pay members.

This provision uses the language of the FDA but broadens its application to cover the programs and purposes of a new Act.

Only panels established by the Minister will be Ministerial advisory panels, within the meaning of the new Act.

The provision on advisory panels will not affect the Department's current policy of not paying the expenses of stakeholders and citizens engaged in consultations with the Department.

INFORMATION MANAGEMENT

Under the previous Act, the Minister's ability to solicit information is restricted to fisheries management issues. The new bill gives the Minister the authority to collect information to conduct research, collect data and reporting on the state of fisheries and fish habitat if that information is relevant to the conservation and protection of fish and fish habitat, proper management and control of fisheries or the sustainable development of aquaculture or the prevention of pollution in waters frequented by fish.

The Minister may also enter into federal-provincial agreements with respect to the exchange and collection of information.

The changes ensure that the department can collect economic and statistical data to inform decision-making.

The Minister's power to collect information prior to the construction of works or undertakings under the habitat provisions of the Act has not been diminished.

A regulation-making authority has also been introduced to support the collection of information in general. Generally speaking, this authority authorizes the Governor in Council to make regulations respecting the maintenance of records relevant to the administration and enforcement of the Act and the length of time for which such records must be kept. The rules respecting production and disclosure of information and the persons who may collect such information have also been established through this authority.

FEES

Licence fees are set by ministerial order, just as at present. However, the fee-setting provisions have been altered to parallel those of the Oceans Act. The Oceans Act authorizes the Minister to set fees for a service or the use of a facility; products, rights and privileges; or regulatory processes and approvals. The setting of fees under the Fisheries Act and Oceans Act remain subject to the analytical and justification requirements of the User Fees Act.