Review of the 2012 Changes to the Fisheries Act

Restoring Lost Protections and Incorporating Modern Safeguards

What we heard from Indigenous groups and resource management boards

(1 April 2016 – 28 February 2017)

 

Introduction

On November 13, 2015, the Prime Minister mandated the Minister of Fisheries, Oceans and the Canadian Coast Guard to review the previous government's changes to the Fisheries Act, restore lost protections and incorporate modern safeguards. The Parliamentary Standing Committee on Fisheries & Oceans (the Standing Committee) was asked to examine the 2012 changes to the Fisheries Act and to engage with Canadians on their views of the changes.

The Standing Committee heard from 50 witnesses, which included two Indigenous groups and one Resource Management Board (represented by two individuals). The Standing Committee also received 188 written submissions of which 40% were from Indigenous groups. Eight resource management boards established under land claims agreements also made submissions, either individually or jointly. These boards considered the implications of the changes to the Fisheries Act to the beneficiaries (i.e., Indigenous groups) of the agreements under which the boards were established.

In addition to the Standing Committee's process, the Fisheries and Oceans Canada (DFO) engaged directly with Indigenous groups and Resource Management Boards. Funding was provided to support the participation of Indigenous groups in the review.

Between August 2016 and January 2017, DFO officials participated in more than 90 meetings with Indigenous groups and various Resource Managements Boards. The Department took note of specific comments or feedback on the changes to the Fisheries Act from those meetings. In some cases, meetings were with individual Indigenous groups or Resource Management Boards, while in other cases, with multiple groups or boards in meetings coordinated by regional organizations. Altogether, the Department and the Standing Committee received 149 written submissions from Indigenous groups.

Most Indigenous groups provided context for their interests in the review and in particular, their connection to their traditional territories and traditions relative to lands and waters and fisheries resources. Some also provided historical information on the effects of development in their traditional territories.

The Department has considered the comments and recommendations directly pertaining to the 2012 changes to the Fisheries Act. Detailed comments received from Indigenous groups from Resource Management Boards are summarized separately.

Please note that the intent of this document is to summarize the input and recommendations provided by commenters. As such, comments were consolidated, summarized and may have been simplified. As such, individual comments may not be readily identified.

Organization of this Report by Theme

Fisheries and Oceans Canada has categorized the information received from Indigenous peoples and Resource Management Boards under four key themes:

Theme 1 - 2016-2017 Engagement

Theme 2 - Regulatory and Compliance Activities

  1. Recommended Changes to the Fisheries Act
  2. Policy and Program
  3. Monitoring, Enforcement and Reporting

Theme 3 - Partnering and Collaboration

Theme 4 - Planning and Integrated Management

Comments received from Indigenous groups and Resource Management Boards concerning engagement itself are addressed under the first theme, Indigenous Engagement. The theme of Regulatory and Compliance Activities includes recommendations for modernizing legislation, policies and programs to enable a robust modern regulatory framework for the delivery of fish and fish habitat protection under the Fisheries Act. It also includes recommendations related to monitoring threats to fish, fish habitat and fisheries to ensure compliance with the Fisheries Act, and related to reporting on the outcomes of activities to manage these threats. The majority of comments received from Indigenous groups and Resource Management Boards falls under Themes 1 and 2.

The theme of Partnering and Collaboration addresses recommendations for DFO to leverage capacity, build expertise, and create opportunities to achieve greater fish and fish habitat protection outcomes. The theme of Planning and Integrated Management addresses the process of managing fisheries in a sustainable manner, while fostering economic prosperity for those who depend on fisheries for their livelihoods.

Chapter 1: Indigenous Groups

Theme 1 – 2016-2017 Engagement

Indigenous groups expressed appreciation that the Government of Canada is working towards fulfilling its commitment to review the 2012 changes to the Fisheries Act and for having had the opportunity to meet with regional DFO officials. However, there was also criticism about the engagement process. Some of the more common comments on the process included:

Overall, there was a strong feeling that this process would not be considered as fulfilling the Crown's Duty to Consult with Indigenous peoples.

Going forward, many groups felt strongly that they needed to be engaged on any legislative proposals to amend the Fisheries Act and also wanted to be consulted on changes to policy related to fish and fish habitat protection under the Fisheries Act. A separate consultation process was requested to review how the 2012 changes have re-focused DFO's objectives and day-to-day operations. Many groups requested written responses on how their comments were considered. One suggestion included implementing an independent expert panel (with Indigenous representatives) to incorporate feedback to strengthen the Fisheries Act.

Some groups recommended that the government immediately re-instate the pre-2012 version of the Fisheries Act until a more fulsome review and consultation could be undertaken. It was also noted that some community members had expected more materials, workshops, and meetings with government officials.

It was recommended that there be a whole-of-government approach to the reviews of the, environmental assessment processes under Canadian Environmental Assessment Act, 2012, the Navigation Protection Act and the changes to the Fisheries Act, and National Energy Board modernization should be coordinated and timelines for review should be harmonized. That coordinated review should consider: Indigenous rights; Indigenous traditional knowledge; ecosystem approach; project monitoring; best available scientific information; accommodation, and the free, prior, and informed consent (FPIC) principle.

Indigenous (Aboriginal) Rights

One of the stronger messages conveyed across the comments was the need for the federal government to ensure that any law, program or policy did not abrogate or derogate the rights of Indigenous peoples. Some suggested that the Fisheries Act include a non-derogation clause to make it clear that this legislation does not over ride Aboriginal rights. Some identified the importance of aligning the Fisheries Act with the Aboriginal and treaty rights under Section 35 of the Constitution Act, 1982 and with Final Agreements and Self-Government Agreements. The message was also conveyed that the feedback from Indigenous communities should not be combined with other parties under the term "stakeholder".

Reconciliation

Some recommended including reconciliation principles in the Fisheries Act to facilitate and promote consent-based decision-making processes (e.g., co-management/co-governance) that have the flexibility to reconcile pre-existing sovereignty and Indigenous jurisdictional authority. Comments requested acknowledgement of Indigenous (Aboriginal) rights and the need for Canada to reconcile with its Indigenous peoples, and to work toward co-management of the country's fish and fish habitat.

Use of Indigenous Information

The following recommendations were received around the use of Indigenous traditional/ecological knowledge to inform environmental and regulatory reviews:

Consultation and Engagement in Decision-Making

Many comments were received on the need to consult with Indigenous groups at nearly every step in the regulatory review process, including:

A consultation protocol was recommended to be developedto include:

It was recommended to establish a Section 35 of the Constitution Act, 1982 Rights Compliance Office that would address:

It was also recommended to create an Independent Indigenous Nations Office, established under the Canadian Environmental Assessment Agency. This Office would create a Section 35 consultation plan, act as a single window for proponents working around water, and would help proponents ensure that they have contacted the right Indigenous groups.

Additional consultation-related feedback included:

Theme 2 -Regulatory and Compliance Activities

Recommended Changes to the Fisheries Act

Purpose and Application Principles

A number of comments identified the need for the Fisheries Act to include a preamble, purpose and principles like other modern laws. One suggestion was to develop this through the formation of a committee of stakeholders and Indigenous people to review and develop opening statements to make the purpose of the Fisheries Act clear and less open to misinterpretation.

Overall, it was recommended that the Fisheries Act should emphasize concepts such as sustainable development, and the protection and conservation of fish and fish habitat for future generations. Principles and objectives suggested for consideration included:

“Aboriginal Fisheries”

One of the more contentious changes to the Fisheries Act in 2012 was the introduction of the terms “commercial”, “recreational” and “Aboriginal” in relation to a fishery and their associated definitions. While there was full consensus among Indigenous respondents that this change was problematic, there was a divergence of views on how to remedy it. The majority of respondents called for a repeal of the concept and definitions, but many provided suggestions for improving the legislation if the concept were retained. Those groups that made a case for keeping the definition of “Aboriginal” in relation to a fishery felt that if revised, it would allow for a broader application of Section 35 of the Constitution Act, 1982.

Suggestions for improving the existing use of these terms included:

Other Definitions

Many Indigenous groups made recommendations for refining other definitions in the Fisheries Act. These recommendations included:

Fish habitat
Fish
Add a definition of Aboriginal government

Scope of Application of Section 35 of the Fisheries Act

DFO has heard from Indigenous peoples that the 2012 changes to the Fisheries Act provide less protection for fish and fish habitat. There have been many recommendations on how to restore lost protections, which included:

Factors the Minister Must Consider (Section 6)

The Minister of Fisheries, Oceans and the Canadian Coast Guard must take into account the factors set out in Section 6 of the Fisheries Act before a regulation is made or a Ministerial power is exercised, such as the issuance of a Paragraph 35(2)(b) authorization or a request to provide for fish passage or sufficient flow.

Many comments were received regarding the types of factors that should be taken into consideration. These are captured below:

There was support for the Section 6 factors, but wide ranging opinions on the wording of additional factors that could be added:

Authorization Requirements

Subsection 35(1) of the Fisheries Act prohibits the carrying on of a work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery or to fish that support such a fishery. However, under Paragraph 35(2)(b) of the Fisheries Act, the Minister of Fisheries and Oceans (the Minister) may issue an authorization with terms and conditions in relation to a proposed work, undertaking or activity that may result in serious harm to fish.

Comments on this authorization approach are included below:

Discretionary Powers of the Minister

Many Indigenous groups indicated that they felt the discretionary powers of the Minister and the Governor in Council are too large and could easily undermine Indigenous fishing rights. It was recommended that the discretionary powers granted to the Minister and the Governor in Council be reduced and more clearly defined (such as those under sections 4.1, 4.2, 35(4), 35(5.2) and 43(5) of the Fisheries Act). There was support for repealing subsections 43(1)(i.01) and 43(5 )of the Fisheries Act.

Policy and Program

Implement DFO Policy

It was recommended that relevant sections of DFO's numerous policies on habitat protection, such as the Policy for Conservation of Wild Pacific Salmon, Wild Atlantic Salmon Conservation Policy, Policy for Managing the Impacts of Fishing on Sensitive Benthic Areas, and Ecological Risk Assessment Framework for Coldwater Corals and Sponge Dominated Communities be incorporated directly into the Fisheries Act. This was viewed as providing a stronger safety net for all fish in the country, and help fill the “legislative vacuum” as these policies do not have the force of law.

Review of Lower-Risk Projects

Lower-risk projects can be of great concern over time, as small impacts can contribute to large cumulative effects. Many comments and concerns were received regarding lower-risk projects:

Industry-Specific Projects

Capacity - Fisheries Protection Program and Conservation & Protection

Many comments have been received from Indigenous groups concerning the reduced capacity of DFO. Comments ranged from increasing enforcement staff, to creating opportunities for Indigenous peoples to contribute to monitoring and compliance. They included:

Avoidance/Mitigation/Offsetting

Maintaining or enhancing the ongoing productivity and sustainability of fish and fish habitat can be achieved through a number of approaches, including offsetting harm of development activities. Some comments were received that indicated how the avoidance-mitigation-offsetting regime could be improved:

Monitoring, Enforcement and Reporting

Many comments related to monitoring and enforcement activities undertaken by the Fisheries Protection Program and the Conservation and Protection Program and included the following:

Improve monitoring

There was consensus among groups that self-assessment was insufficient to ensure compliance with the Fisheries Act and that DFO must ensure that the advice, guidance, and conditions of approvals are being followed. Some suggested follow-up monitoring of development projects be included in the Fisheries Act to ensure self-assessment and project approvals achieve intended outcomes. Some groups felt that compliance monitoring should be done independently of proponents and that a database of self-assesses projects be publicly available.

Transparency/Registry

It was recommended that an online registry be developed to record and provide a centralized and accessible portal for information on all applications to DFO for authorizations, as well as related DFO decisions. Conditions of DFO authorizations should also be made publicly available.

Future Reviews of the Fisheries Act

The suggestion was put forward to add provisions for the ongoing analysis of the Fisheries Act, as well as the establishment of a regular period of review of the Act to help it remain relevant in a changing legislative and biophysical environment. This idea was also referred to a taking an adaptive management approach which includes scheduled reviews to assess changes to the Fisheries Act and supporting policy statements. Many groups requested that a more fulsome review of the Fisheries Act be conducted, that must be consistent with UNDRIP.

Theme 3 - Partnering and Collaboration

Partnering and collaborating with Indigenous groups on fish and fish habitat issues is a priority for the federal government.

Joint Committee/Secretariat

A number of groups suggested forming a Joint Secretariat with the Crown and Indigenous groups, or some similar body, to allow for a more strategic approach to fisheries related matters, policy development and legislative change. Some commenters also indicated that they must be consulted in the development of any such committee, emphasizing as well that an advisory committee cannot replace the duty to consult that the Crown owes to Indigenous groups.

The following recommendations on the form and function of partnering and collaboration were received:

Roles of Indigenous Groups

Many Indigenous groups saw themselves as well suited for taking on some of the roles currently conducted by DFO. Those activities that were most commonly cited were project review and monitoring activities. Some specific comments included:

Co-Management / Co-governance

Strong support was indicated for formalized co-management/co-governance arrangements including support for adding Indigenous groups and Governments to Subsections 41(1) and 41(2) of the Fisheries Act.

Decision-Making Processes

Fisheries and Oceans Canada is keen to leverage capacity and create opportunities to achieve greater fish and fish habitat protection outcomes for Canadians, by collaborating with Canadians. Fisheries and Oceans Canada is also committed to building the nation-to-nation relationship with Indigenous peoples.

The following recommendations were made on how to ensure that Indigenous groups are incorporated into the Department's decision making:

Agreement with Provinces

There were varying views on the provisions in the Fisheries Act that provide for the Minister to enter into agreements with provinces and allocate fish to a province for financing scientific and fisheries management activities (e.g., Sections 4.1 and 10(1) of the Fisheries Act).

Some groups felt equivalency agreements with the provinces were unacceptable, although the majority of commenters who raised this issue wanted Indigenous groups to be specifically referenced in these sections so that they could be delegated authorities for managing portions of the Fisheries Act. Many comments suggested that monitoring and enforcement activities be delegated to Indigenous groups. Others recommended clear provisions that allow for delegation of fish habitat management similar to the way recreational fisheries are managed.

Roles of Others

Theme 4 - Planning and Integrated Management

Restoration/Stewardship

There was broad interest in restoration and habitat stewardship activities as they contribute to achieving or maintaining a balance between the conservation of fish and fish habitat and develop projects:

Ecologically Significant Areas

An ecologically significant area is one that needs special protection because of its ecological features, sensitivity, and/or value. The 2012 changes to the Fisheries Act introduced the legislative authority to define ecologically sensitive areas for protection (under Section 37), and this provision has not yet been used.

The Department received some comments regarding ecologically significant areas with respect to the Fisheries Act, including:

Fish Passage / Flows / Sections 20/21

Certain projects or undertakings may cause physical or physiological impediments to fish movement or migration, and some measures, when taken, can mitigate these impacts. Some comments were received about fish passage with respect to past impacts due to dam construction, with the common theme that fish passage should generally not be compromised.

Suggestions were received for how to improve the Fisheries Act with respect to fish passage and flows, such as:

Issues Raised Outside of Scope of the Fisheries Protection Provisions

A number of Indigenous groups raised issues that were outside of the stated scope of the review of the 2012 changes to the Fisheries Act (the Fisheries Protection Provisions).

These issues included:

Chapter 2: Resource Management Boards

Theme 1 - 2016-2017 Engagement

Many Resource Management Boards expressed appreciation for having the opportunity to submit comments to DFO and or the Standing Committee on Fisheries and Oceans. Some Boards commended the Government of Canada on the open, transparent, and collaborative process that has been initiated for this legislative review. However, the Boards would like to ensure they are appropriately engaged and consulted in all phases of the review in accordance with their respective Land Claim Agreements, and expect to be further engaged and consulted moving forward. Also it was stated that if a Board makes a recommendation to the Minister, the Minister must respond in a manner and according to the timelines established by the Final Agreements.

Resource Management Boards advised that increased resources and capacity would enable them to engage with DFO in line with Land Claim Agreements and to participate in co-management on habitat related issues.

There were a number of comments on the need for the Government of Canada to consult with Indigenous groups on just about every step in the process, including project-specific review, development of policy and legislation and acting on virtually all of the current Fisheries Act provisions (e.g. , setting of Ecologically Significant Areas, exercising Ministerial discretion, etc.), including early engagement in the project planning process and studies so that the input can influence the outcomes.

Theme 2 - Regulatory and Compliance Activities

Resource Management Boards provided extensive and detailed comments on the legislative basis of DFO's regulatory and compliance activities (the 2012 changes to the Fisheries Act), as well as on DFO's regulatory and compliance procedures and capacity.

Recommended Changes to the Fisheries Act

The majority of Resource Management Boards felt that changing the prohibition from “harmful alteration disruption or destruction” (HADD) of fish habitat to “serious harm to fish” is confusing, a narrowing of scope, unacceptable, or a reduction in protection of Canada's fisheries. Many Boards supported a return to HADD generally and also supported reintroducing Section 32 (the prohibition against the killing of fish by means other than fishing) into the Fisheries Act. Boards also recommended stronger protections for fish, fish habitat and marine biodiversity and enhanced protections for critical fish habitats.

Concern was noted with the use of “commercial, recreational, and Aboriginal fisheries” wording in Section 35 and a return to “all fish” as per the previous version of Section 35 was recommended. Many Resource Management Boards agree that Indigenous fisheries deserve special attention in the Fisheries Act. It was also recommended that the scope of the Fisheries Act should take into account future and/or potential fisheries and the needs of future generations.

It was noted that there are a number of times in the Species at Risk Act where Duty to Consult obligations are mentioned, including federal responsibilities to northern management boards, and it was recommended that it should be the same with the Fisheries Act. Additionally, it was recommended that Final Agreements should be referenced and acknowledged in the Fisheries Act.

Suggestions were made that the purpose set out in Section 6.1 of the Fisheries Act should be refocused on protecting fish and fish habitat rather than protecting fisheries. Resource Management Boards also made a number of recommendations that identify potential application principles that should be incorporated into the Fisheries Act.

These principles include the following:

There was wide support for keeping Section 6 of the Fisheries Act, which sets out factors that the Minister must consider before a regulation is made or a Ministerial power is exercised, such as the issuance of a Paragraph 35(2)(b) authorization or a request to provide for fish passage or sufficient flow. There were concerns, however, that the current Fisheries Act afforded the Minister far too much discretion and the list of factors being considered is too vague. Some Boards felt additional considerations are needed to strengthen this part of the Act. The factors most commonly cited for consideration in making Fisheries Act decisions included:

There was support for the expanded powers in Sections 37 to 39 that were added to the Fisheries Act in 2012. These powers include the requirement to submit plans and specifications, the requirement to comply with conditions in a Fisheries Act authorization, and the duty to notify, report occurrences and take corrective actions to mitigate serious harm to fish. It was suggested that these expanded powers and improvements should remain in any recommended amendments to the legislation.

Policy and Program

Resource Management Boards noted concern that DFO has no way to track and monitor self-assessed projects. They also indicated that the self-assessment guidance is open to interpretation and proponents may end up carrying out projects that pose a risk to fish and fish habitat. Boards suggested that systematic oversight of proponent-conducted self-assessments be incorporated into the Fisheries Act and that any self-assessment of a project should require notification of DFO or other authorities (which could be partners such as the Yukon or First Nation governments or regional Board offices in that traditional territory).

The Boards also suggested that the Online Self-Assessment tool should include the DFO Operational Statements for proponents (now called "Measures to Avoid Causing Harm to Fish and Fish Habitat" on the DFO website) better defined, made obviously accessible, and written in clear language.

Resource Management Boards noted that DFO staff reductions have imposed serious limits on DFO's capacity to contribute expertise and to effectively participate in project review and licensing processes. They noted that the project review process in the North is unique and that the same approach that is applied in provinces may not work effectively. Participants expressed that they would like to be able to talk to someone local who is familiar with northern streams and fish.

Boards also advised that they rely on Government partners to provide reliable and timely scientific information to make sound decisions however, the lack of capacity and engagement with DFO partners in the North has left Boards with limited ability to provide meaningful information on regulatory project review.

Monitoring, Enforcement and Reporting

There was support for an online registry to be developed to record and provide a centralized and accessible portal for information on all applications to DFO for authorizations, as well as DFO decisions. Additionally, the Boards recommended that and that the DFO bolster its monitoring and enforcement capacity.

Theme 3 - Partnering and Collaboration

Input from Resource Management Boards included a strong emphasis on cooperation with other governments and relevant land claim regulatory agencies.

Boards advised that fisheries and fish habitat management centers on land and water management and thus effective partnerships between DFO and provinces and territories which have responsibility for land and water management in their jurisdictions is essential for fisheries protection programs. Indigenous groups are the major land managers, with clearly defined rights to harvest stated in the land claims Final Agreements. Their involvement, as partners, is essential to ensure there are no gaps. However, since the federal government has the mandate and responsibility for fisheries management under the Constitution and Fisheries Act, Resource Management Boards have indicated that DFO must be prepared to resource and fund their partners who agree to help deliver part of this mandate.

Boards also advised that partnerships are critical to the effective administration of provisions of the Fisheries Act and fisheries protection programs. As mandated in Final Agreements, First Nation Governments must be fully included in the partnership. This remains a work in progress that must be facilitated and routinely resourced via consultations and workshops as part of the ongoing fisheries protection program delivery.

The creation of an environmental data acquisition and dissemination program was suggested and it was noted that Fisheries and Oceans Canada, proponents and Indigenous groups can all contribute to this program by pooling the knowledge acquired on ecosystems.

Resource Management Boards have indicated great concern with respect to Paragraph 4.1(2)(h) and Section 4.2 of the Fisheries Act regarding the equivalency provisions of the Fisheries Act.

Some Boards advised that there is great opportunity to utilize Subsection 5 (1) in conjunction with Section 4.4 to enter into agreements to fulfill the purposes of the Fisheries Act. This is an example where two sections of the Act could create significant opportunity and capacity building for Indigenous groups if training and meaningful, long-term resources are committed.

Theme 4 - Planning and Integrated Management

There was support for the concept of Ecologically Significant Areas and suggestions were provided to strengthen or clarify this concept. It was also suggested that designation of "ecologically significant areas" should be done in collaboration with Resource Management Boards.

Concern over the Ministers' and the Governor in Council's discretionary powers was a prominent theme within many of the comments, and was often associated with references to specific sections of the Fisheries Act. Comments included:

Conclusion and Next Steps

Fisheries and Oceans Canada appreciates the time taken by Indigenous groups and Resource Management Boards to contribute to the review of the changes to the Fisheries Act, participating in both the process set out by the Standing Committee on Fisheries and Oceans and engaging directly with the Department. Indigenous groups and Resource Management Boards provided significant input into the engagement process to date, which has offered valuable insight from their unique perspectives.

The Department continues to reflect on these recommendations and take these submissions into account. The Department commits to considering this input as the review of the changes to the Fisheries Act moves forward.

In addition to the comments on the review of the 2012 changes to the Fisheries Act, Indigenous groups and Resource Management Boards provided comments related to deleterious substances, fisheries management, linkages to Land Claims and treaties, and linkages to the Canadian Environmental Assessment Act, 2012. This input is only covered briefly in this summary as the issues fall outside of the scope of the review of the 2012 changes to the Fisheries Act. This input has been reviewed by the Department and provided to the relevant sectors of DFO or Environment and Climate Change Canada.

Date modified: