Element of a New Fisheries Act - Discussion Document

Accountability and Good Governance

BACKGROUND

The current Act gives the Minister absolute discretion for the management of fisheries, subject to certain limitations including administrative law principles and constitutional requirements. Further, most decision making processes are not set out in the Act. DFO is bringing the Act's discretionary decision-making model into line with modern accountability and good governance practice. This will further support credible, stable, predictable, "transparent" decision-making for sustainable resource management and development.

Many recommendations have been made to give some structure and predictability to the process for taking decisions and the principles that shape those decisions:

• The east-coast Independent Panel on Access Criteria recommended that DFO create a standing advisory body to hold hearings and make recommendations to the Minister on access to, or allocation of, lucrative species in times of abundance; and
• At various times over the last 20 years, provinces have advocated negotiation of fixed provincial shares; joint management of harvesting and processing; assignment of access and allocation to a jointly named board; assignment of harvest planning and operations to a jointly named Crown corporation.

"Accountability and good governance" measures modernize the Fisheries Act. However, under the proposed changes, the Minister and DFO would remain fully accountable to Parliament for fisheries and fish habitat management.

A new Act includes:

• A preamble to the entire Act;
• A purpose clause;
• Common principles applicable to harvest management, habitat protection and pollution prevention;
• A specific ministerial power to create advisory panels;
• Considerations to guide licensing and allocation decisions in the coastal fisheries;
• Specific authority for the Minister to set licensing policy in the coastal fisheries.

PREAMBLE

The primary function of a preamble is to recite the circumstances giving rise to the legislation at the beginning of the Act.

A Preamble sets out Parliament's commitment to:

• Conservation and protection of fish habitat and pollution prevention;
• Sustainable fisheries management for the benefit of Canadians;
• Maintaining the public character of fisheries and fish habitat management;
• Federal-provincial-territorial cooperation and public engagement;
• The goal of stable access and allocation; and
• Creating a clear framework for Ministerial accountability to Parliament.

It also references subsection 35(1) of the Constitution Act, 1982, which deals with Aboriginal and treaty rights, and recognizes the importance of fisheries to many Aboriginal communities. The preamble also speaks to the desire of aboriginal commercial and recreational fishers to have greater participation in decision making and management of their harvesting.

PURPOSE CLAUSE

A purpose clause or statement is a provision, normally placed at the beginning of the statute to which it relates, that declares the purposes or objectives of the Act.

The proposed Act asserts that the objective of the statute is to provide for the conservation and protection of fish, fish habitat and marine plants and the proper management and control of fisheries and their sustainable development for present and future generations.

APPLICATION PRINCIPLES

To bring the Fisheries Act in line with modern regulatory practice, the new Act, in addition to a preamble and a purpose clause, includes a statement of governing management principles. These principles apply to all decisions and administrative actions taken under the authority of the Act. In other words, they apply equally to the Minister, to departmental officials, and to others charged with the administration of the Act, such as:

• Provincial Ministers and their staff, who are engaged in the management of freshwater fisheries; and
• Environment Canada staff, who administer the Act's pollution prevention provisions.

The governing management principles cover:

• Principles of sustainable development and the ecosystem approach;
• The precautionary approach;
• The use of scientific information, and, where it has been shared, traditional knowledge;
• Management in a manner consistent with the constitutional protection provided to existing Aboriginal and treaty rights; and
• Inter-governmental cooperation and inclusion of Canadians in decision-making.

Other relevant factors may also be taken into account by the decision-makers.