Department of Fisheries, Oceans and the Canadian Coast Guard legislative framework
Prepared by DFO Legal Services
On this page
- 1 Constitutional framework
- 2 DFO’s legislative framework
- 2.1 Department of Fisheries and Oceans Act
- 2.2 Fisheries Act
- 2.3 Coastal Fisheries Protection Act
- 2.4 Species At Risk Act
- 2.5 Atlantic Fisheries Restructuring Act
- 2.6 Fisheries Development Act
- 2.7 Fisheries Improvement Loan Act
- 2.8 Fishing and Recreational Harbours Act
- 2.9 Freshwater Fish Marketing Act
- 2.10 Great Lakes Fisheries Convention Act
- 2.11 Oceans Act
- 3 Legislative framework of the Canadian Coast Guard
- 4 Laws of general application
1 Constitutional framework
The Department of Fisheries and Oceans (DFO) and the Canadian Coast Guard (CCG) mandates derive mainly from the Department of Fisheries and Oceans Act, the Fisheries Act and the Oceans Act.
The Constitution Act, 1867, sets out the particular heads of powers falling within the exclusive legislative jurisdiction of Parliament or of provincial legislatures. The main federal heads of powers that affect DFO’s and the CCG’s responsibilities for fisheries matters, as set out in section 91 of the Constitution Act, 1867, are:
- Beacons, Buoys, Lighthouses, and Sable Island
- Seacoast and Inland Fisheries;
- Navigation and Shipping;
- Public Debt and Property [i.e. federal public property]
- The Regulation of Trade and Commerce; and
- Indians and Lands Reserved for the Indians.
The main provincial heads of powers affecting fisheries as set out in section 92 of the Constitution Act, 1867, are:
- property and Civil Rights in the Province;
- the Management and Sale of the Public Lands belonging to the Province
- generally all matters of a merely local or private nature in the Province
2 DFO’s legislative framework
The primary statutes administered by the Minister of Fisheries, Oceans and Canadian Coast Guard include:
- the Department of Fisheries and Oceans Act
- the Fisheries Act
- the Coastal Fisheries Protection Act
- the Oceans Act
- the Species at Risk Act
In addition, there are a number of other statutes which the Minister of Fisheries, Oceans and Canadian Coast Guard administers:
- the Atlantic Fisheries Restructuring Act
- the Fisheries Development Act
- the Fisheries Improvements Loan Act
- the Fishing and Recreational Harbours Act
- the Freshwater Fish Marketing Act
- the Great Lakes Fisheries Convention Act
These statutes are discussed below.
2.1 Department of Fisheries and Oceans Act
The Department of Fisheries and Oceans Act establishes the Department of Fisheries and Oceans and sets out the powers, duties and functions of its Minister for matters relating to:
- sea coast and inland fisheries
- fishing and recreational harbours
- hydrography and marine sciences
- the coordination of the policies and programs of the Government of Canada respecting oceans
- all other oceans matters that have been by law assigned to the Minister
In addition, the Department of Fisheries and Oceans Act authorizes the Minister of Fisheries, Oceans and the Canadian Coast Guard, with approval from the Governor in Council, to enter into agreements with the government of any province respecting the carrying out of programs for which the Minister is responsible.
2.2 Fisheries Act
The Fisheries Act is one of the oldest continuing federal statutes in Canada, having been first passed in 1868. Fisheries law in Canada borrows much from the common law developed over many centuries in England – including the “public right to fish” and the concept that fisheries are “a common property resource” for all, rather than property owned privately or by the Crown. But given Canada’s federal model dividing powers between Parliament and the provinces, although Canada has exclusive legislative jurisdiction over “seacoast and inland fisheries”, it must work in harmony with the provinces, taking into account exclusive provincial jurisdiction over property and civil rights, management of public lands, incorporation and licensing of businesses, and all other matters of a local or private nature.
Put briefly, in tidal waters, Parliament has exclusive jurisdiction over all aspects of fisheries management. The provinces do not have jurisdiction in tidal waters except in respect of fishing devices that are affixed to those soils that are vested in the Province. In such cases, the provinces have exclusive power to grant the right to attach such devices. However, in non-tidal waters, the constitutional jurisdiction over fisheries is shared: Parliament has responsibility for the conservation and protection for all fisheries, which includes matters such as fishing seasons, quotas, size limits and gear requirements, whereas the provinces have jurisdiction over such matters as conveyances and leases of fisheries, including who may fish, what privileges are conferred and what fees must be paid as the case may be.
Federal fisheries management within the provinces has been largely delegated to provinces, perhaps in part to practically recognize their ownership of public lands, including the beds of fish-bearing lakes, rivers and streams.
Aquaculture is another subject-matter of shared jurisdiction in Canada. In sum, where aquaculture activities may be considered a fishery1, the federal fisheries power applies to those activities and Parliament has exclusive jurisdiction over the fisheries aspects of aquaculture (e.g. conferring the right to fish and the right to operate the aquaculture facility). Where such aquaculture activities are located within a province, the province has jurisdiction over the property aspects of aquaculture and over all other aspects of a purely local nature (e.g. conferring right to affix structures to the bottom of the water body in question located within the province). When an aquaculture activity is carried out outside provincial territory, the property aspects of aquaculture fall under federal jurisdiction under the federal property head of power.
At a federal level, the Fisheries Act covers three broad areas:
- the fisheries management provisions deal generally with the granting of fishing privileges via licences and leases, for the sustainable exploitation of the common property resource for its economic value
- the fisheries protection provisions deal generally with protecting the aquatic environment needed to sustain the fisheries
- “pollution prevention” provisions, found principally in section 36 of the Act, and historically managed mainly by Environment Canada as part of its mandate respecting environmental protection and water quality at the federal level
These are covered in greater detail below.
It is noted that there is some overlap between the responsibilities of DFO and those of Environment Canada. DFO manages fish and fisheries, protects “fisheries” and regulates activities which cause serious harm to fish and their habitat; while Environment Canada manages water quality which may be harmful to fish, and prohibits and regulates the deposit of “deleterious substances” into “waters frequented by fish” (with the exceptions of deposits in the context of aquaculture and deposits for the control or eradication of aquatic invasive species and aquatic pests).
2.2.1 Fisheries management
The Fisheries Act provides the Minister of Fisheries, Oceans and the Canadian Coast Guard with authority to manage, conserve and develop the fisheries on behalf of Canadians in the public interest in conjunction with steps taken to carry out social, cultural or economics goals and policies.
Licensing is a tool available to the Minister of Fisheries, Oceans and the Canadian Coast Guard under the Fisheries Act and regulations adopted under this Act (e.g. section 7 of the Fisheries Act or section 52 and 68 of the Fishery (General) Regulations) to manage the fishing activities of Canadian licence holders in Canadian Fisheries Waters and the high seas.
The Minister of Fisheries, Oceans and the Canadian Coast Guard has an “absolute” discretion to either "issue" or "authorize the issuance" of fishing licences (except where an exclusive right to fish exists by law). However, the Minister’s discretion is subject to:
- Canada’s jurisdiction (i.e. the Constitution Act and the distribution of powers related to fisheries between the federal and provincial legislatures)
- certain administrative law principles (i.e. the Minister of Fisheries, Oceans and the Canadian Coast Guard has to base his/her decision on relevant considerations; avoid arbitrariness, and act in good faith in his or her decision making process)
- obligations set out in comprehensive land claim agreements with First Nations, and to the guidance provided by the courts respecting the constitutional protection provided to Aboriginal and Treaty rights, including constitutionally protected fishing rights
A fishing licence is a document that reflects a privilege to fish. This privilege allows the licence holder to fish in accordance with the conditions attached to the licence. The privilege to fish does not convey property rights in fish or in the licence, and terminates upon expiry of the licence.
Policy development is also another tool available to the Minister of Fisheries, Oceans and the Canadian Coast Guard in the exercise of his general duties to manage the fishery. Policies provide a framework and guidance to the Minister of Fisheries, Oceans and Canadian Coast Guard’s officials. For example, different licensing policy approaches have been adopted for the Atlantic and Pacific coasts over the years. These policies do not apply to Communal licences issued to Aboriginal organizations. However, policies have no force of law and are not enforceable. As a matter of law, the Minister's discretion may not be fettered by these policies, so that they cannot be applied blindly; each situation must be assessed and based on its particular facts and circumstances; and exigent circumstances may warrant that an exception be made to the policy to meet the policy objectives.
2.2.2 Fisheries protection
Sections 35 and 36, which deal with fisheries protection and pollution prevention, were amended by Bills C-38 and C-45 in 2012, with the final changes coming into effect in November 2013.
Subsection 35(1) creates a new prohibition against works, undertakings or activities that result in “serious harm to fish that are part of a commercial, recreational or aboriginal fishery, or to fish that support such a fishery”. “Serious harm to fish” is also a term that is defined in subs. 2(2) of the Act as “serious harm is the death of fish or any permanent alteration to, or destruction of, fish habitat.”
Subs. 35(2) sets out a variety of exceptions to the prohibition of subs. 35(1). Under paragraph 35(2)(b), the Minister of Fisheries, Oceans and the Canadian Coast Guard may authorize a work, undertaking or activity subject to conditions.
Alternatively, Ministerial regulations may be made prescribing particular works, undertakings or activities so as to exempt them from the prohibition. Regulations can also be made exempting particular waters, or prescribing other persons who may authorize works, undertakings or activities.
2.2.3 Pollution prevention
Subsection 36(3) of the Fisheries Act prohibits the deposit of deleterious substances into waters frequented by fish, unless the deposit is authorized by regulations, such as the Metal Mining Effluent Regulations and the Pulp and Paper Effluent Regulations.
Recent changes under the new Fisheries Act regime have clarified the respective roles of the two ministers with respect to subsections 36(3) to (6):
- an Order in Council has designated the Minister of the Environment as the Minister responsible for the administration and enforcement of subs. 36(3) to (6) of the Fisheries Act. However, the Minister of Fisheries, Oceans and Canadian Coast Guard retains administration and enforcement responsibilities in relation to:
- the construction, operation, modification and decommissioning of, and other activity in relation to, an aquaculture facility, and the resulting effects of those activities on the waters frequented by fish
- the control or eradication of any aquatic invasive species or aquatic species that constitute a pest to the fisheries
- There is a new power to use Ministerial regulations to authorize the deposit of certain deleterious substances, under certain conditions (previously, deposits could only be authorized by GIC regulations). The authority to develop ministerial regulations improves the ability of Environment Canada and DFO to manage their respective responsibilities under the Act more efficiently and effectively. There are new Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act. These regulations do not, in and of themselves, authorize the deposit of deleterious substances. Rather, these regulations establish the conditions under which each Minister may make regulations authorizing the deposit of deleterious substances into water frequented by fish, for matters under their respective responsibilities
2.3 Coastal Fisheries Protection Act
The Coastal Fisheries Protection Act (CFPA) protects Canada’s fisheries resources from foreign fishing; preserves Canada’s sovereignty over its fisheries waters and ports; implements international agreements and arrangements to which Canada is a party for the conservation and management of fish and marine plants on the high seas and for combatting illegal, unreported and unregulated fishing; and regulates access by foreign fishing vessels to Canadian Fisheries Waters (CFW) and to sedentary species on its continental shelf. The CFPA prohibits: (1) foreign fishing vessels from entering CFW, including Canadian ports, for any purpose; and (2) any person aboard or any crew member of a foreign fishing vessel from fishing in CFW or fishing for sedentary species (e.g. scallops, snow crab) on any portion of the continental shelf of Canada beyond the limits of CFW; unless authorized by the Act or Coastal Fisheries Protection Regulations (CFPR), any other law of Canada or a treaty. It also authorizes protection officers to exercise enforcement powers under the Act, including powers to inspect, arrest and seize foreign fishing vessels and goods.
In 1999, the CFPA was amended to implement the UN Fish Stocks Agreement (UNFA) boarding and inspection scheme. The amendments provide authority for Canadian protection officers to board and inspect a fishing vessel of another state party to UNFA in designated areas of the high seas to ensure that the vessel is complying with relevant conservation and management measures.
The CFPA will implement the UN Fisheries and Agriculture Organization (FAO) Port State Measures Agreement (PSMA) when Bill S-3 comes into force. Bill S-3 was passed by Parliament and given Royal Assent on June 18, 2015. It has not yet been declared in force. Complementary amendments to the CFPR are in progress. The purpose of the PSMA is to harmonize the application of port state measures to vessels that engage in illegal, unregulated and unreported (IUU) fishing, enhance regional and international cooperation in this regard, and block the flow of IUU-caught fish into national and international markets. The PSMA stipulates minimum port state measures, although states may adopt more stringent measures.
The CFPA also establishes a framework and regulatory authority for implementing other international fisheries agreements to which Canada is a party, such as the Conservation of Anadromous Stocks in the North Pacific.
2.4 Species At Risk Act
The purposes of the Species at Risk Act (SARA) are: to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and to manage species of special concern to prevent them from becoming endangered or threatened.
The Minister of Fisheries, Oceans and the Canadian Coast Guard is the “competent minister” under SARA for “aquatic species” (a wildlife species that is a “fish” or “marine plant” as defined in the Fisheries Act), except for individuals in or on federal lands administered by the Parks Canada Agency, for which the Minister of Environment and Climate Change (MECC) is the competent minister. As competent minister, the Minister of Fisheries, Oceans and the Canadian Coast Guard has several responsibilities with respect to protection, recovery planning and the issuance of permits, as explained below, which are triggered upon the species being listed on the List of Wildlife Species at Risk set out in Schedule 1 of SARA (the List).
Listing of species is initiated by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), an arm’s length organization that assesses the status of each species considered by it to be at risk and classifies the species as extinct, extirpated, endangered, threatened or of special concern. COSEWIC assessments are forwarded to the MECC who, after consulting appropriate wildlife management boards and the Minister of Fisheries, Oceans and the Canadian Coast Guard as competent minister for aquatic species, makes a recommendation to the Governor in Council (GIC) as to whether the species should be added to the List, not added to the List or referred back to COSEWIC for further information or consideration. The GIC must make a decision within nine months after receiving a COSEWIC assessment of the status of a species, failing which the MECC must amend the List in accordance with COSEWIC’s assessment. In practice, the Minister of Fisheries, Oceans and the Canadian Coast Guard prepares the listing advice for the MECC.
When an aquatic species is listed as extirpated (a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild), endangered (a wildlife species that is facing imminent extirpation or extinction) or threatened (a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction):
- the following prohibitions apply: prohibitions against killing, harming, harassing, capturing or taking individuals of such species; prohibitions against possessing, collecting, buying, selling or trading individuals of such species, or any part or derivative of such individuals; and prohibitions against damaging or destroying the residence of individuals of species listed as endangered or threatened, or listed as extirpated if a recovery strategy has recommended the reintroduction of the species into the wild in Canada
- as competent minister, the Minister of Fisheries, Oceans and the Canadian Coast Guard must prepare a recovery strategy that must address the threats to the survival of the species identified by COSEWIC, including any loss of habitat, and must include, among others:
- a description of the species and its needs that is consistent with information provided by COSEWIC
- an identification of the threats to the survival of the species, and threats to its habitat that is consistent with information provided by COSEWIC and a description of the broad strategy to be taken to address those threats
- an identification of the species’ critical habitat, to the extent possible, based on the best available information, including the information provided by COSEWIC, and examples of activities that are likely to result in its destruction
- a schedule of studies to identify critical habitat, where available information is inadequate
- a statement of the population and distribution objectives that will assist the recovery and survival of the species, and a general description of the research and management activities needed to meet those objectives
- a statement or when one or more action plans in relation to the recovery strategy will be completed
- as competent minister, the Minister of Fisheries, Oceans and the Canadian Coast Guard must prepare an action plan which must include, among other things:
- a statement of the measures that are to be taken to implement the recovery strategy, including those that address the threats to the species and those that help to achieve the population and distribution objectives, as well as an indication as to when these measures are to take place;
- an identification of the species’ critical habitat, to the extent possible, based on the best available information and consistent with the recovery strategy, and examples of activities that are likely to result in its destruction
- within 180 days after the recovery strategy or action plan that identified the critical habitat of a species is included in the Species at Risk Public Registry, the Minister of Fisheries, Oceans and the Canadian Coast Guard, as competent minister, must make an order triggering the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the species, if the critical habitat is not legally protected under an Act of Parliament
When an aquatic species is listed as a species of special concern (a wildlife species that may become a threatened or an endangered species because of a combination of biological characteristics and identified threats), no prohibition applies. As competent minister, the Minister of Fisheries, Oceans and the Canadian Coast Guard must prepare a management plan that must include measures for the conservation of the species that he considers appropriate.
As competent minister, the Minister of Fisheries, Oceans and the Canadian Coast Guard may issue a permit to a person authorizing the person to engage in an activity that would otherwise contravene a SARA prohibition. The permit may be issued only if the Minister of Fisheries, Oceans and the Canadian Coast Guard is of the opinion that certain conditions are met, including that the activity will not jeopardize the survival or recovery of the species and must contain any terms and conditions governing the activity that the Minister of Fisheries, Oceans and the Canadian Coast Guard considers necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.
2.5 Atlantic Fisheries Restructuring Act
The Atlantic Fisheries Restructuring Act (AFRA) provides that the Minister of Fisheries, Oceans and the Canadian Coast Guard may make contributions or loans to fishery enterprises to “facilitate the development of viable Atlantic Fisheries that are competitive and privately-owned through the restructuring of fishery enterprises”. The Act does not authorize the Minister of Fisheries, Oceans and the Canadian Coast Guard to make contributions to provinces or third parties that are not “fishery enterprises”. The AFRA applies only in Atlantic Canada and may not be relied upon for delivering the program elements elsewhere in Canada. The AFRA was used for the adjustment program for East Coast fishers after the cod moratorium, and the $12 million Ice Compensation Program in 2007.
2.6 Fisheries Development Act
The Fisheries Development Act (FDA) provides for the development of the commercial fisheries of Canada. Under this Act, the Minister of Fisheries, Oceans and the Canadian Coast Guard may undertake projects, including jointly with a Province or a person, for the more efficient exploitation of fishery resources and for the exploration and development of new fishery resources and new fisheries; the introduction and demonstration to fishermen of new types of fishing vessel and fishing equipment and of new fishing techniques; and the development of new fishery products and for the improvement of the handling, processing and distribution of fishery products.
The FDA is used from time to time for programs involving contributions or subsidies, such as to provide gear upgrades for fishers affected by ice (in 1991), the Northern Cod Early Retirement Program (1992), the Atlantic Groundfish Strategy (TAGS) Early Retirement Program (1994), the Aboriginal Fisheries Strategy Allocation Transfer Program (1994), the Pacific Fisheries Adjustment and Restructuring (1998), and the Fisheries Access Program (1999).
2.7 Fisheries Improvement Loan Act
The Fisheries Improvement Loan Act gives the Minister of Fisheries, Oceans and the Canadian Coast Guard the power to guarantee fishermen’s loans made for vessels, equipment, shore installations, buildings, or any prescribed (by regulation) development or improvement of a primary fishing enterprise.
2.8 Fishing and Recreational Harbours Act
The Fishing and Recreational Harbours Act provides for the management and maintenance of scheduled fishing and recreational harbours which are owned by the Federal Crown.
The powers of the Minister of Fisheries, Oceans and the Canadian Coast Guard under the Act include:
- the use, management and maintenance of scheduled harbours
- enforcement of regulations in scheduled harbours
- collection of charges for the user of scheduled harbours
- entering into agreements with provinces or individuals in order to jointly undertake projects or studies, or to provide grants or contributions
- granting leases and or licences for the use of scheduled harbours, subject to the regulations
- designation of enforcement officers, plus powers and consequences for obstructing them
- the removal, seizure, detention and sale of property
- establishing regulatory offences for contravention of the Act
2.9 Freshwater Fish Marketing Act
The Freshwater Fish Marketing Act (FFMA) creates a Crown Corporation, the Freshwater Fish Marketing Corporation (FFMC), for the purpose of marketing and trading in fish, fish products and fish by-products in and outside Canada and increasing returns to fish harvesters. The FFMC has a monopoly for inter-provincial and international marketing of freshwater fish from Participating Provinces; is mandated to purchase all, legally caught fish, offered; operates in a self-sustaining manner with no appropriation from Parliament; and is an agent of the Crown for all purposes. Currently the only participating provinces/territories are Manitoba, Alberta and the Northwest Territories. Of note is that Alberta has announced its intention to terminate its participation in the FFMC. However they have not formally executed the Termination Agreement.
The Minister of Fisheries, Oceans and the Canadian Coast Guard is accountable to Parliament for the FFMC. This accountability encompasses the Minister’s responsibilities under the Financial Administration Act (FAA) and the FFMC, and the appointment, with GIC approval, of federal directors and provincial directors recommended by a participating province. The Chairperson and President of the FFMC are GIC appointments. The Minister of Fisheries, Oceans and the Canadian Coast Guard reviews the FFMC Board’s corporate plans and submits them to Treasury Board for approval. The Board of Directors of the FFMC is accountable to the Minister. The President of the FFMC is accountable to the Board for the management of the corporation. The Minister’s role is limited to assessing the FFMC mandate and effectiveness as a policy instrument; and providing broad policy direction to the FFMC unless the Minister issues a directive to the Board under the FAA.
2.10 Great Lakes Fisheries Convention Act
The purpose of the Great Lake Fisheries Convention Act (GLFCA) is to implement the Convention on Great Lakes Fisheries between Canada and the United States of America. The Convention establishes the Great Lakes Fishery Commission with members from both countries. The Commission has powers with regard to research, measures based on research, the sea lamprey eradication/minimization program, and publication of scientific information.
2.11 Oceans Act
Part I of the Oceans Act provides for Canada’s Maritime Zones, including the territorial sea and contiguous zone, the internal waters of Canada, the exclusive economic zone, and the continental shelf.
Part II of the Oceans Act provides the Minister of Fisheries, Oceans and the Canadian Coast Guard with the power to develop and implement an Oceans Management Strategy in collaboration with other government departments and agencies and other stakeholders and to establish Marine Protected Areas. Thus far, eight Marine Protected Areas (MPAs) have been designated through regulations under the Oceans Act.
Part III of the Oceans Act sets out the Powers, Duties and Functions of the Minister of Fisheries, Oceans and the Canadian Coast Guard making the Minister responsible for oceans and all federal matters related to oceans not assigned by law to another department, board or agency of the Government of Canada. The Oceans Act sets out the Marine Sciences functions which include fisheries science, hydrography, Oceanography and other marine sciences.
3 Legislative framework of the Canadian Coast Guard
The powers of the Canadian Coast Guard (CCG) derive primarily from: the Department of Fisheries and Oceans Act; the Canada Shipping Act, 2001, and the Oceans Act. In addition, the CCG has powers under the Arctic Waters Pollution Prevention Act. There statutes are discussed below.
3.1 Department of Fisheries and Oceans Act
The Canadian Coast Guard became a Special Operating Agency (SOA) within the Department of Fisheries and Oceans on April 1, 2005. As an SOA, the CCG uses common services of DFO such as Finance, Human Resources, Legal Services and Real Property, Safety and Security. CCG has its own Treasury Board approved spending authorities and flexibilities required to deliver on its operational mandate as set out in Oceans Act s.41.
3.2 Canada Shipping Act, 2001
The Minister of Transport is responsible for the Canada Shipping Act, 2001. This statute also assigns to the Minister of Fisheries, Oceans and the Canadian Coast Guard specific responsibilities, such as the coordination of marine search and rescue, vessel traffic services, aids to navigation including lighthouses (lights, signals buoys and beacons), and leadership of the response to ship-source marine pollution spills, including oil pollution. These responsibilities are exercised on behalf of the Minister by the Canadian Coast Guard.
The ship-source marine pollution response regime established under this Act is complemented by the liability and compensation regime established under the Marine Liability Act, which the Coast Guard relies on to recover its costs from shipowners or the Ship-Source Oil Pollution Fund.
3.3 Oceans Act
Part III of the Oceans Act also sets out the Minister of Fisheries, Oceans and the Canadian Coast Guard’s powers with regard to Coast Guard Services. These include the provision of aids to navigation, marine communications and traffic management services, ice breaking, channel maintenance, marine search and rescue, marine pollution response, and the support of federal departments through the provision of ships, aircraft and other marine services in a cost effective manner.
3.4 Arctic Waters Pollution Prevention Act
The objective of the Arctic Waters Pollution Prevention Act (AWPPA) is to promote exploitation and transport of the natural resources of the Arctic in a manner that takes cognizance of Canada’s responsibility for the welfare of the Inuit and other inhabitants of the Canadian Arctic and the preservation of the peculiar ecological balance that now exists in the water, land and areas of the Canadian Arctic. It applies to “arctic waters”, defined to mean the internal waters of Canada, the waters of the territorial sea of Canada, and the exclusive economic zone of Canada in the Arctic. The AWPPA provide for powers and responsibilities to three ministers: the Minister of Transport, the Minister of Indigenous and Northern Affairs, and the Minister Natural Resources. The Act provides for Shipping Safety Control Zones that have been established by Transport Canada. Some officers of the Canadian Coast Guard, Environmental Response are designated “Pollution Prevention Officers” under the Act and have inspection and enforcement powers.
4 Laws of general application
There are several laws of general application which apply to DFO/CCG, including: the Charter of Rights and Freedoms; the Access to Information Act; the Canadian Environmental Assessment Act, 2012; the Federal Accountability Act; the Financial Administration Act; the Public Service Labour Relations Act; the Public Service Employment Act; the Official Languages Act; and the Privacy Act. The Canadian Environmental Assessment Act, 2012 is discussed below.
4.1 Canadian environmental assessment Act, 2012
The Minister of Fisheries, Oceans and the Canadian Coast Guard does not administer the Canadian Environmental Assessment Act, 2012 (CEAA 2012) but is often required to participate in project reviews. CEAA 2012 also makes distinctions between “designated projects” and “projects”.
Under CEAA 2012, “responsible authorities” are responsible for conducting environmental assessments of “designated projects”.2 There are three designated responsible authorities under the CEAA 2012: the Canadian Environmental Assessment Agency, the Canadian Nuclear Safety Commission and the National Energy Board. Environmental assessments may also be conducted by a review panel.
Under CEAA 2012, the Minister of Fisheries, Oceans and the Canadian Coast Guard is no longer subject to the duty to ensure the conduct of an environmental assessment. However, the Minister of Fisheries, Oceans and the Canadian Coast Guard remains a “federal authority” under the CEAA 2012 and, in this capacity, is required to provide expert information or advice (usually relating to environmental effects on fish and fish habitat) if requested by the panel or responsible authority carrying out the environmental assessment of a designated project.
Under CEAA 2012, “projects”3 proposed to be carried out on federal lands or outside Canada are also subject to a different regime. The Minister of Fisheries, Oceans and the Canadian Coast Guard has specific obligations as an “authority” in relation to “projects” that are proposed to be carried out on federal lands. When the Minister of Fisheries, Oceans and Canadian Coast Guard himself/herself proposes to carry out a project on federal lands, or when the Minister of Fisheries, Oceans and Canadian Coast Guard must exercise a power, duty or function that would allow a project to proceed on federal lands (e.g. issue a Fisheries Act authorization, or provide funding for the project), the Minister must make an environmental effects determination in relation to the proposed project, before proceeding to carry out the project or before exercising the relevant power, duty or function.
In the case of both an environmental assessment and an environmental effects determination, when a designated project or project are found likely to result in significant adverse environmental effects by the responsible authority, panel or authority, the proposal must be referred to the Governor in Council (GIC) for a determination on whether those significant effects are justified in the circumstances. It is only in instances where such significant effects are considered to be justified that a designated project or project is able to proceed to be carried out. If a project or designated project is not considered likely to result in significant adverse environmental effects, it may proceed without referral to the GIC.
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