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
- 3.1 Department of Fisheries and Oceans Act
- 3.2 Oceans Act
- 3.3 Canada Shipping Act, 2001
- 3.4 Arctic Waters Pollution Prevention Act
- 3.5 Wrecked, Abandoned or Hazardous Vessels Act
- 3.6 Impact Assessment Act
- Annex A: Legislative amendments
1 Constitutional framework
The mandate of the Minister of Fisheries, Oceans and Canadian Coast Guard derives mainly from the Department of Fisheries and Oceans Act, the Fisheries Act, the Oceans Act, the Coastal Fisheries Protection Act, the Canada Shipping Act, 2001, the Arctic Waters Pollution Prevention Act and the Wrecked, Abandoned or Hazardous Vessels Act.
The main federal heads of powers related to the Department of Fisheries and Oceans (DFO)’s responsibilities for fisheries and navigation 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
- 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 that provide for the Minister’s powers, duties and functions are:
- the Department of Fisheries and Oceans Act
- the Fisheries Act
- the Coastal Fisheries Protection Act
- the Oceans Act
- the Species at Risk Act
- the Canada Shipping Act, 2001
- the Arctic Waters Pollution Prevention Act
- the Wrecked, Abandoned or Hazardous Vessels Act
In addition, there are a number of other statutes, which the Minister 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; and
- 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 over which Parliament has jurisdiction and that have been by law assigned to the Minister
In addition, the Department of Fisheries and Oceans Act authorizes the Minister, 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. That being said, the public right to fish is subject to the exclusive jurisdiction of Parliament, which has enacted fisheries legislation to regulate access to fisheries in Canadian fisheries waters. Given Canada’s federal model dividing powers between Parliament and the provinces’ jurisdiction over certain aspects of inland fisheries on provincial Crown lands, collaboration with the provinces is key to harmoniously managing inland fisheries.
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 to the provincial subsoil. However, in non-tidal waters in a province, the constitutional jurisdiction over fisheries is shared. One way to express that shared jurisdiction would be that 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’ jurisdiction over fisheries in non-tidal waters within the province is largely based on the provinces’ property rights as owners of public lands, including the beds of fish-bearing lakes, rivers and streams, within the province. That being said, the provinces’ ownership rights grant great flexibility to decide on many aspects of fisheries, including conveyances and leases of fisheries, who may fish, what privileges are conferred and what fees must be paid, as the case may be. In practice, fisheries management within the provinces has been largely delegated to provinces, perhaps in part to practically recognize their ownership of public lands.
In certain cases, the federal and provincial jurisdictions may overlap in the sense that provincial rules on a particular subject (i.e. the number of fish that may be caught) may exist concurrently with federal rules on the same subject. In such a case, provincial rules would be subject to Parliament’s jurisdiction over the conservation and protection of fish. Overall, the management of fisheries in non-tidal waters in a province is a shared jurisdiction and may lead to situations that warrant a case-by-case analysis.
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 the 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.
The Fisheries Act also authorizes fisheries officers to exercise enforcement powers to verify compliance with the Act. These powers include the power to inspect, search, arrest and seize.
At a federal level, the Fisheries Act covers three broad areas:
- the fisheries provisions are for the management and control, conservation and development of fisheries on behalf of all Canadians and in the public interest; one tool to accomplish this is the granting of fishing privileges via licences and leases
- the fish and fish habitat protection provisions deal generally with protecting and managing the aquatic environment needed to sustain the fisheries resources
- “pollution prevention” provisions, found principally in subsection 36(3) to (6) of the Act, and currently managed in large part by Environment Canada as per the Order Designating the Minister of the Environment as the Minister Responsible for the Administration and Enforcement of Subsections 36(3) to (6) of the Fisheries Act (SI/2014-21).2
These are covered in greater detail below.
It is noted that there is some overlap between the responsibilities of DFO and those of the Department of Environment and Climate Change Canada (ECCC). DFO manages and protects fisheries, and regulates activities which cause the harmful alteration, disruption or destruction (HADD) of fish habitat or the death of fish by means other than fishing (DOF)3; while ECCC 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 Courts have long recognized that the Fisheries Act provides the Minister with authority to manage and control, 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.4
Licensing is a tool available to the Minister under the Fisheries Act and regulations adopted under this Act (e.g. section 7 of the Fisheries Act or section 52, 56 and 68 of the Fishery (General) Regulations) to manage the fishing activities of licence holders in Canadian fisheries waters and on the high seas.
The Minister 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:
- Certain administrative law principles (i.e. the Minister has to base his/her decision on relevant considerations5; avoid arbitrariness, and act in good faith in his or her decision making process)
- Rights and obligations set out in comprehensive land claim agreements, self-government agreements or other similar agreements with Indigenous Peoples, and to the guidance provided by the courts respecting the constitutional protection provided to Aboriginal and treaty rights under section 35 of the Constitution Act, 1982, including constitutionally protected fishing rights
A fishing licence is not a right, it is simply 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 (quota) or in the licence itself, and the privilege terminates upon expiry of the validity period of the licence.
Policy development is also another tool available to the Minister in the exercise of his general duties to manage the fishery. Policies provide a framework and guidance to the Minister’s officials. For example, different licensing policy approaches have been adopted for the granting of commercial fishing licences on the Atlantic and Pacific coasts over the years. 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.
On June 21, 2019, Royal Assent was given to Bill C-68 - An Act to amend the Fisheries Act and other Acts in consequence. Some changes came into force on June 21, 2019, while others, including amendments to the habitat protection regime, are to come into force on August 28, 2019. Major changes include the following:
- New purpose provision which reflects the Minister’s mandate for the proper management and control of fisheries, and conservation and protection of fish and fish habitat
- Increased focus on partnering and collaboration with Indigenous peoples and partners
- Factors to consider – a list of broad considerations that may be taken into account for decision making
- Advisory Panels – Clear authority for the Minister to establish advisory panels to support him or her in carrying out the purpose of the Act
- Fish Stock Rebuilding – A new obligation for the Minister to rebuild regulated major fish stocks, and a new authority to make regulations for this purpose
- Fisheries Management Orders - New authority for the Minister to make a fisheries management order to address a threat to the proper management and control of fisheries and the conservation and protection of fish
- A scheme for the Minister to fix fees
- Prohibition to fish for a cetacean to take it into captivity
- Prohibition against the practice of shark finning
- Increased focus on habitat restoration
- Protection for all fish and fish habitat - return of former prohibitions against “death of fish” and “harmful alteration, disruption or destruction” (HADD) of fish habitat
- Authorities to improve regulatory clarity - designated projects, codes of practice, habitat banking
- Online registry for increased transparency
- Clear authorities to regulate certain aspect of the inshore fishing policies respecting the issuance of fishing licences, the use and control of the rights and privileges conferred under a licence to fish; as well as the importation of fish
- New regulatory tool to enable the Minister to protect biodiversity over the long-term
New tools and authorities for fishery officers.
2.2.2 Fish and fish habitat protection
The major change to fish and fish habitat protection was achieved through amendments to section 35 of the Fisheries Act.
The pre Bill C-68 section 35(1) established a prohibition against works, undertakings or activities (WUAs) that resulted 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” was defined in subs. 2(2) of the Act as being “the death of fish or any permanent alteration to, or destruction of, fish habitat.”
The new Act replaces the “serious harm” prohibition by reverting to two separate prohibitions that preceded the “serious harm” regime. Subsection 35(1) prohibits WUAs that result in the harmful alteration, disruption or destruction of fish habitat (HADD). Subsection 34.4(1) prohibits the death of fish (by means other than fishing) (DOF). Subsections 34.4(2) and 35(2) sets out a variety of means for authorizing WUAs that would contravene these prohibitions, such as a Ministerial authorization (subparagraphs 34.4(2)(b) and 35(2)(b)) for a proposed work, undertaking or activity. Ministerial authorization will be the most frequently used means to permit WUAs that would otherwise contravene the prohibitions.
Ministerial regulations could also be made for authorizing HADD/DOF but this authority has not yet been exercised.
Part of the amendments introduced under Bill C-68 restore a more comprehensive protection of fish habitat by making the subsection 35(1) prohibition applicable to all fish habitat (whether the fish is fished or not) and by expanding the prohibition to all harmful alteration, disruption and destruction of fish habitat.
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 and Diamond Mining Effluent Regulations and the Pulp and Paper Effluent Regulations.
Changes to the Fisheries Act in 2012 have formalized the respective roles of the Minister and the Minister of Environment and Climate Change (MECC) with respect to subsections 36(3) to (6):
- An Order in Council has designated the MECC responsible for the administration and enforcement of subs. 36(3) to (6) of the Fisheries Act. However, the Minister 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 constitutes a pest to the fisheries
- A new power was introduced in 2012 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 broadens the ability for Environment Canada and DFO to manage their respective responsibilities under the Act more efficiently and effectively
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 Canadian fisheries waters (CFW), including Canadian ports; implements international fisheries agreements and arrangements for the conservation and management of fish and marine plants on the high seas and for combatting illegal, unreported and unregulated fishing, to which Canada is a party; and regulates access by foreign fishing vessels to CFW including to sedentary species on Canada’s 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, including 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 a statute, regulation or a treaty. The CFPA 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 implementing 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.
Amendments to the CFPA implement the UN Fisheries and Agriculture Organization (FAO) Port State Measures Agreement (PSMA) were passed by Parliament and given Royal Assent on June 18, 2015. These amendments were declared in force on June 16, 2019. Complementary amendments to the CFPR were published in the Canada Gazette, Part II on June 26, 2019. 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. Canada ratified the PSMA on June 20, 2019.
The CFPA also establishes a framework and regulatory authority for implementing other international fisheries agreements to which Canada is a party, such as the Convention on the Conservation of Anadromous Stocks in the North Pacific Ocean.
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 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 MECC is the competent minister. As competent minister, the Minister 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 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 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 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 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
- 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 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, 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 must prepare a management plan that must include measures for the conservation of the species that he considers appropriate.
As competent minister, the Minister 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 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 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 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 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 $12M 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 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 vessels 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 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 that are owned by the Federal Crown.
The powers of the Minister 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 Alberta and the Northwest Territories. Of note is that Alberta has announced its intention to terminate its participation in the FFMC and has stopped all commercial fishing. However, they have not formally executed the Termination Agreement.
The Minister is accountable to Parliament for the FFMC. This accountability encompasses the Minister’s responsibilities under the Financial Administration Act (FAA) and the FFMA, 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 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’s 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 is the portion of the Act pursuant to which the Minister adopted Canada’s Oceans Strategy, a far- reaching policy framework reflecting Canada’s vision for modern oceans management. It is also under this Part II that authority is found to make regulations or Ministerial orders designating Marine Protected Areas and prescribing conservation and protection measures specific to the area in question. Regulations and orders made under this Part of the Oceans Act will also support Canada’s objective to increase the proportion of Canada’s marine and coastal areas that are protected to ten percent by 2020. Thus far, fourteen Marine Protected Areas (MPAs) have been designated under the Oceans Act.
Part III of the Oceans Act provides for the Powers, Duties and Functions of the Minister, making him 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. This Part provides for the mandate of the Minister, related to Coast Guard services and the Marine Sciences functions, which include fisheries science, hydrography and oceanography.
3 Legislative framework related to the Canadian Coast Guard
The powers of the Minister, related to Coast Guard services derive primarily from: the Department of Fisheries and Oceans Act; the Oceans Act; the Canada Shipping Act, 2001; the Arctic Waters Pollution Prevention Act; and the Wrecked, Abandoned or Hazardous Vessels Act. These statutes are discussed below.
3.1 Department of Fisheries and Oceans Act
The Canadian Coast Guard is a Special Operating Agency (SOA) within the Department of Fisheries and Oceans since 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 section 41 of the Oceans Act.
3.2 Oceans Act
Part III of the Oceans Act provides for the Minister’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.
3.3 Canada Shipping Act, 2001
The Minister of Transport is responsible for the Canada Shipping Act, 2001. This statute provides the Minister with specific powers and responsibilities and a definition of their scope in marine search and rescue, Vessel Traffic Services, aids to navigation (including lighthouses and buoys), and response to ship-source marine pollution spills, including oil pollution. These powers and responsibilities are exercised by the 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 some of its costs from ship owners or the Ship-source Oil Pollution Fund.
Finally, the CSA 2001 provides that the Minister is responsible for the International Convention on Maritime Search and Rescue, 1979 and, jointly with TC, the International Convention on Oil Pollution Preparedness Response and Cooperation, 1990.
3.4 Arctic Waters Pollution Prevention Act
The objective of the Arctic Waters Pollution Prevention Act (AWPPA) is topromote 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. Some powers and responsibilities of the Governor in Council under the AWPPA are delegated through an Order in Council to three ministers: the Minister of Transport, the Minister of Indigenous and Northern Affairs, and the Minister Natural Resources. An Order made pursuant to the AWPPA prescribes certain areas of the Canadian Arctic waters as Shipping Safety Control Zones. Some officers of the Coast Guard, Environmental Response are designated “Pollution Prevention Officers” under the AWPPA and have inspection and enforcement powers.
3.5 Wrecked, Abandoned or Hazardous Vessels Act
As part of the Oceans Protection Plan, the Wrecked, Abandoned or Hazardous Vessels Act came into force on July 30, 2019. The Minister of Transport is responsible for this Act, which provides authorities to the two Ministers. The Minister, through the Coast Guard, has authority and powers to deal with hazardous vessels and with dilapidated vessels on the Minister’s property, including authorities for removing or destroying such vessels. The owner of the vessel is liable for costs and expenses incurred by the Coast Guard in dealing with the vessel. The Act incorporates the International Convention on Removal of Wrecks into Canadian law.
3.6 Impact Assessment Act
The Minister does not administer the Impact Assessment Act but is often required to participate in resource development project reviews. The IAA also makes distinctions between “designated projects” and “projects”. Under the IAA, the Impact Assessment Agency is responsible for conducting impact assessments of “designated projects”.6 Impact assessments may also be conducted by a review panel.
“Projects” are not “designated projects” under the IAA. They are physical activities that are carried out on federal lands or outside Canada in relation to a physical work.
Under the IAA, the Minister is not subject to the duty to ensure the conduct of an impact assessment. However, the Minister remains a “federal authority” under the IAA 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 Agency or review panel carrying out the impact assessment of a designated project. No power, duty or function can be exercised by the Minister that would enable the designated project to proceed in whole or in part until the assessment is completed and a decision is made that the project:
- is not likely to result in significant adverse environmental effects
- is likely to result in significant adverse environmental effects but the Governor in Council determined that such effects are justified in the circumstances
Similarly, Under the IAA, “projects” proposed to be carried out on federal lands or outside Canada will often be subject to a determination as to whether or not they will likely result in significant adverse environmental effects. As a federal authority who may be called to carry out a project on federal lands or exercise a power, duty or function with respect to such project, the Minister of Fisheries, Oceans and the Canadian Coast Guard must first determine if the project is likely to cause significant adverse effects before being able to exercise such authority over the project. If the Minister determines that the project is likely to result in such adverse effects, the matter must be referred to the Governor in Council for a decision whether these significant adverse environmental effects are justified in the circumstances. The Minister will be prevented from promoting the project or exercising any power, duty or function towards the project if the GiC decides that the adverse effects are not justified. A similar process will have to be followed for projects that the Minister wants to carry out outside Canada or for which he proposes to provide financial assistance.
Annex A: Legislative amendments
1. Fisheries Act
Bill C-68 received Royal Assent on June 21, 2019. Some provisions of the Bill, including the new fish and fish habitat protection provisions, will not come into force at Royal Assent. They will come into force on August 28, 2019.
A key feature of the new Act is the introduction of a purpose provision stating that the purpose of the Act is to provide a framework for the proper management and control of fisheries and the conservation and protection of fish and fish habitat. When making any decision under the Act, the Minister will also have a statutory duty to consider any adverse effects that such a decision could have on the rights of the Indigenous peoples of Canada, as recognized and affirmed by section 35 of the Constitution Act, 1982.
1.1 Habitat protection
One of the major changes to the Act involves the habitat protection provisions (section 35 related provisions). The current regime, as a result of the 2012 amendments to the Act, only offers limited protection to the habitat of fish in that it only prohibits the permanent alteration or destruction of fish habitat and such protection only applies to the fish habitat of fish that are part of a commercial, recreational or Aboriginal fisheries, or to fish that support such a fisheries.
Under the new Act, the scope of the protection will revert to the pre-2012 protection regime and expand the prohibition to all harmful alteration, disruption and destruction (HADD) of fish habitat. Furthermore, the protection will apply to the habitat of all fish species, whether fished or not. The death of fish by means other than fishing will be prohibited in a separate section.
Other significant changes to the habitat protection provisions of the Act will include such things as:
- An expansion of the factors that must be considered by the Minister before issuing a paragraph 35(2)(b) authorization allowing a work or activity that causes a HADD to proceed
- Formal statutory powers allowing the Minister to amend, suspend or cancel such authorization
- The development of Standards and Codes of Practice to guide the proponents of smaller routine projects
- A legislative regime to guide the developing practice of habitat banking (where proponents get credits for fish habitat restoration work done before projects are undertaken)
- The creation of a new class of large "designated projects" that must receive special permits
- New provisions for the creation of special protected areas known as Ecologically Significant Areas and for the creation of a public registry that will facilitate access to records relating to the fish and fish habitat protection and pollution prevention matters
1.2 Fisheries management
Bill C-68 makes several amendments to fisheries management provisions, which:
- Clarify that the Fisheries Act applies in Canada, and also in Canadian fisheries waters (CFW) and, with respect to sedentary species, any portion of the continental l shelf of Canada that is beyond the limits of CFW
- Provide that the Minister may take socio-economic and cultural factors into consideration in making decisions under the Act
- Provide an authority for the Minister to establish advisory panels
- Require that the Minister implement measures to maintain major fish stock at or above the level necessary to ensure the sustainability of the stock. If a major fish stock declines at or below its limit reference point (LRP), the Minister shall develop a plan to rebuild the stock above that LRP
- Provide the authority to cancel or suspend a fishing licence where the Minister determines that the licence holder is party to an agreement that contravenes the Act or where the licence holder is in default of payment of a fine in relation to a contravention of the Act
- Provide authority for the Minister to make Fisheries Management Orders prohibiting or limiting fishing activities in a given area of Canadian fisheries waters in order to address threats to the conservation and protection of fish in a prompt manner
- Provides a fee setting scheme for services, use of facilities, products, cost recovery, rights and privileges and regulatory processes
- Prohibit the fishing for a cetacean with the intent to keep it in captivity (unless authorized by the Minister when, for instance, the cetacean is injured or into distress or in need of care)
- Prohibit the importation or exportation of a living cetacean, except that the Minister may issue a permit authorizing the importation or exportation of a living cetacean if the permit if for the purpose of conducting scientific research or keeping the cetacean in captivity if it is in the best interests of the cetacean’s welfare to do so
- Prohibit the practice of shark finning
- Prohibit the importation or exportation into or from Canada of shark fins or parts of shark fins not attached to a shark carcass, except that the Minister may authorize such importation or exportation for the purpose of scientific research
- Clarify certain Governor in Council regulations making authorities and provides for new ones, such as making regulations with respect to:
- the rebuilding of fish stocks
- the circumstances under which the holder of a licence is required to personally carry out the fishing activities
- the use and control of the rights and privileges under licence to fish
- the import of fish
- Provides a new authority for the Minister to make regulations with respect to fishing, for the purposes of the conservation and protection of marine biodiversity
- Provide for an alternative measures scheme, other than judicial proceedings, to deal with a person alleged to have committed an offence under the Act
- Provide for the authority for fishery officers to exercise their powers, duty and function under the Act in a foreign State, subject to the consent of that State
- Otherwise modernizes the powers of fishery officers and address issues that arose out of court decisions
2. Oceans Act and the Canada Petroleum Resources Act
Bill C-55 proposes amendments to the Oceans Act and the Canada Petroleum Resources Act (CPRA). The Bill was introduced in the House on June 15, 2017, and has most recently been referred to the Senate SCOFO. The proposed amendments will help expedite the designation process of Marine Protected Areas (MPAs) to achieve Canada's marine conservation targets by 2020.
The most important amendments in the Bill will allow the Minister to designate MPAs by way of Ministerial Order, on an interim basis, for a period not exceeding 5 years. The Order will have the effect of prohibiting most new activities that have not been conducted within the area over the year preceding the coming into force of the Order. This authority will allow the Minister to effectively "freeze the footprint" of a given area until further studies and measures can be identified to secure sustainable activities in that area. Within the 5-year timeframe, the Minister shall either recommend that a permanent Marine Protected Area be established through Governor in Council regulations or determine that the Ministerial Order be repealed.
Other significant changes to the Oceans Act include:
- A new requirement that the Minister and the Governor in Council not use lack of scientific certainty regarding the risks posed by any activities as grounds for postponing or refraining from designating an MPA
- Modernization of the legislative text to more clearly reflect the Minister's responsibility to establish a national network of protected areas
- Modernization of enforcement officer powers, including the application of certain enforcement provisions to ships
- Updates to the fines provisions to better align with the Environmental Enforcement Act
- Creation of new offences for engaging in prohibited activities within a Marine Protected Area designated by order, and for failing to comply with directions to ships, detention orders, and compliance orders
This enactment also makes related amendments to the CPRA to, among other things:
- Expand the authority to issue a prohibition order to prohibit an interest owner from commencing or continuing oil or gas exploration / production related work in a Marine Protected Area designated under the Oceans Act
- Create a new authority to allow for the surrender or cancellation of an interest that is located in an area designated, or that may be designated, as a Marine Protected Area under the Oceans Act, and to determine the compensation for the surrender or cancellation of such interest
3 Wrecked, Abandoned or Hazardous Vessels Act
As part of the Oceans Protection Plan, Bill C-64 will enact the Wrecked, Abandoned or Hazardous Vessels Act. The Bill passed third reading before the Senate with one amendment, and has been returned back to the House. When adopted, this Act will provide authorities to the Minister of Fisheries and Oceans, represented by the CCG, to deal with abandoned or hazardous vessels, including their removal and destruction. The owner of the vessel will be liable for costs and expenses of measures related to the hazard caused by the vessel. The Act will also create offenses for abandoning a vessel. It will incorporate the International Convention on Removal of Wrecks into Canadian law. The responsibilities of the Act will be shared between DFO and Transport Canada.
4 Canada Shipping Act, 2001 (CSA, 2001)
As part of the Oceans Protection Plan, the CSA, 2001 was amended to strengthen the Coast Guard’s authorities and permit more pro-active responses in cases of potential pollution. These amendments came in to force on December 13, 2018.
5 Marine Liability Act (MLA)
Another part of the Oceans Protection Plan included amendments to the MLA. The Minister of Transport is responsible for this Act, which implements in Canada the international liability and compensation conventions adopted under the auspices of the International Maritime Organisation. This Act also creates the Ship-source Oil Pollution Fund (SOPF) and provides for the strict liability of the owner of the polluting vessel for the damages and the costs of response. The Coast Guard recovers its pollution response costs and expenses under this Act, from the SOPF or the owner of the vessel. The amendments include:
- authority for the SOPF to reimburse the Coast Guard for the costs and expenses it incurred before the oil pollution threat becomes grave and imminent (the international regimes cover costs and expenses incurred when the pollution threat becomes grave and imminent)
- creation of a process for advanced emergency funding for significant oil pollution incidents
- a "fast track" claims process at the SOPF for claims not exceeding $35k
These amendments came into force on December 13, 2018.
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