Element of a New Fisheries Act - Discussion Document

ENFORCEMENT

The proposed legislation contributes to more effective compliance activities through a combination of changes that would remove no longer used enforcement provisions while modernizing other provisions to reflect current business practices.

CONSERVATION AND PROTECTION

Provisions in the pervious Act, such as those pertaining to Fishery Officers settling disputes, which resulted in non-binding decisions and which are rarely applied in modern fisheries, will be revoked. Similarly, provisions enabling Fishery Officers to designate gurry grounds (which is hardly the topic for a statute) have been revoked and addressed through regulations.

To reflect modern business practices, the Minister is provided the authority to create certification officers who are authorized to issue certificates verifying the accuracy of measuring instruments used by Fishery Officers and Fishery Guardians. This removes a historical and cumbersome reliance that the Department had on other government agencies to certify size gauges and net measuring devices.

Search and inspection provisions have been modernized to include references to computers and electronic data. This enables Fishery Officers to use computers, examine, reproduce and print out data during authorized searches and inspections. Inspection authorities also have been expanded to allow individuals accompanying officers and guardians to participate in the inspection - this will facilitate bringing in the expertise of computer and other experts. Provisions also clarify the authority to make seizures while executing a search warrant, and require that persons named in the warrant provide assistance to officers conducting the search. This assistance would facilitate searches involving computers and electronic data bases.

Fishery Officer, Fishery Guardian and Inspector authorities with respect to inspecting vehicles have been revised for both clarification and safety of officers and the public. Provisions clarify the authority to stop vehicles and provide the ability to direct that they be moved to areas where inspections can be done safely. Additional provisions provide for the ability to detain a vehicle for a reasonable time to facilitate inspection.

In recognition of the increased emphasis that forensic auditing is playing in compliance programs, changes to the Act create an offence to make misleading or false statements to enforcement personnel or managers. It is also an offence to make false or misleading statements when applying for a licence or some other form of authorization under the Act. No person shall produce false or misleading documents or records.

There are also a number of liability and authority issues for departmental staff and provincial authorities that administer the Fisheries Act, which are addressed through proposed amendments.

Historically, the Department has operated and advised other agencies administering the Act that employees legitimately engaged in their duties, such as biological sampling programs or purchasing illegally caught fish as part of an enforcement operation, were not liable for breaches of the Act or regulations made under the Act. However, the courts have ruled otherwise. Consequently, the Act includes a specific provision that would enable staff employed in the administration of fisheries programs to undertake these programs, such as fishing during a closed season, without being subject to sanctions for breaking of the law.

In the past, under the Act only Fishery Officers were empowered to request catch and other related information from fishers and other participants in the fishery. In many instances this information was needed for fisheries management or biological purposes rather than compliance activities. Consequently, the renewed Act provides the authority for managers who need this data to request it directly rather than having to engage a Fishery Officer to make the request. Similarly, in the past only Fishery Officers had the authority to board vessels for inspection purposes, whereas management and biological staff carrying out sampling and data gathering programs were not afforded this ability and were often constrained by issues such as trespass. The renewed Act incorporates provisions that explicitly provide that enforcement or other operational staff are not personally liable for anything done or omitted to be done in good faith while exercising their powers or authorities.