Changes to the Fisheries Act
On November 25, 2013, amendments to the Fisheries Act came into effect. The changes focus the Act on protecting the productivity of recreational, commercial and Aboriginal fisheries.
The Government is now focusing protection rules on real and significant threats to the fisheries and the habitat that supports them, while setting clear standards and guidelines for routine projects.
The changes to the Fisheries Act:
- Focus the Act's regulatory regime on managing threats to the sustainability and ongoing productivity of Canada's commercial, recreational and Aboriginal fisheries;
- Provide enhanced compliance and protection tools;
- Provide clarity, certainty and consistency of regulatory requirements through the use of standards and regulations; and
- Enable enhanced partnerships to ensure agencies and organizations that are best placed to provide fisheries protection services to Canadians are enabled to do so.
Amendments by Topic
- Clarification of Purpose and Factors
- Managing Threats to Fish
- Regulatory Efficiency
- Enhanced Compliance and Protection
Clarification of Purpose and Factors
The amendments include new “Purpose” and “Factors” sections that set out the objectives of Fisheries and Oceans Canada's fisheries protection provisions and provides direction for decision-making in relation to these provisions.
The Purpose section states that the fisheries protection provisions of the Fisheries Act aim to provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.
The four factors to be taken into account by the Minister in decision-making (e.g., issuing authorizations) or making regulations under the fisheries protection provisions are:
- The contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries;
- Fisheries management objectives;
- Whether there are measures and standards to avoid, mitigate or offset serious harm to fish that are part of a commercial, recreational or Aboriginal fishery; and
- The public interest.
Taken together, these provide a framework and direction to the Minister and Fisheries and Oceans Canada staff for decision-making, developing regulations and implementing the regulatory regime and program.
Managing Threats to Fish
The fisheries protection provisions combine the former section 32 (killing of fish by means other than fishing) and section 35 (harmful alteration or disruption, or the destruction, of fish habitat). Through the administration of this prohibition, the Fisheries Protection Program manages threats to fish that are part of or support commercial, recreational or Aboriginal fisheries with the goal of ensuring their productivity and ongoing sustainability.
The new prohibition is also supported by definitions of “commercial”, “recreational” and “Aboriginal”, in relation to a fishery in the Act, as well as a definition of “serious harm to fish”, which is the death of fish or any permanent alteration to, or destruction of, fish habitat.
The amended Fisheries Act gives the Minister the ability to develop regulations to ensure compliance with the new prohibition. In addition, the fish passage provisions have been modernized to provide clarity as to their application.
The amendments to the Act provided for the making of regulations that improve certainty and transparency in the regulatory process:
- Regulations, which also came into force on November 25, 2013, clearly spell out for proponents the information and documentation that must be submitted in applications for authorization under paragraph 35(2)(b) of the Fisheries Act;
- Once an application for authorization is received, the Department is bound under these regulations by set time limits for the processing of those applications and a decision on the issuance of an authorization, if required.
- Incorporation by reference into regulations, will allow the department to recognize externally-developed standards (i.e., not developed by Fisheries and Oceans Canada), as appropriate to guide activities in and near waters that require our management.
- Equivalency of regulatory regimes could be established if the provincial regime “meets or beats” provisions of the Fisheries Act or of its regulations.
The Act also allows the department and the Minister to clearly identify areas where authorization, and therefore analysis by the department, will not be required.
This new set of regulatory tools will help provide clarity and certainty for stakeholders and staff.
The amended Act provides the Minister with regulation-making powers that allow agreements with federal departments, provinces and others, related to effective management of fisheries resources, to be formalized under the Act.
With respect to delegation, the Minister of Fisheries and Oceans could, through regulations, provide other government departments or provinces the authority to issue authorizations under the Fisheries Act, as long as their regulatory processes are consistent with the objectives, purpose and factors outlined in the Act.
Enhanced Compliance and Protection
The amended Act now includes a number of provisions that enable enhanced compliance and protection of commercial, recreational and Aboriginal fisheries. These fisheries will be provided additional protection by the provision of the new authorities to the Minister to effectively address threats such as aquatic invasive species.
In addition, a number of provisions enable enhanced protection of these fisheries by:
- Aligning the Fisheries Act with the Environmental Enforcement Act (increased fines and penalties for offences);
- Creating more easily enforceable conditions for Ministerial authorizations;
- Modernizing inspector powers to assist them in ensuring compliance with section 35; and
- Establishing a “duty to notify” provision to establish obligations on persons whose actions result in harm to fish habitat to report and to take corrective measures.
Finally, the amendments also provide the Minister with the ability to designate ecologically significant areas for fish. The Minister may require higher levels of protection for such areas and proponents would be required to submit plans for review if any activities are proposed within these areas.
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