INTRODUCTION

Canada’s oceans and inland waters host a multitude of ecosystems containing some of the world’s richest fishing grounds. Commercial and recreational fisheries are major contributors to the economy and the sustainability of many rural communities. Fish, however, is not simply a commodity; it is also culturally important and essential to numerous communities’ food security. Many fish, such as salmon, are vital to Indigenous communities and have cultural and spiritual significance. Therefore, fish and fish habitat conservation and protection are matters of economic, social, cultural and environmental significance.

The Fisheries Act (the Act) is the main federal statute managing Canadian fisheries resources. The Act also includes provisions for the conservation and protection of fish and fish habitat.[1] In 2012, numerous changes to the Act were made. Those legislative amendments entered into force in November 2013. In light of concerns expressed by various segments of the population regarding those changes to the Government of Canada and the mandate letter requesting the Minister of Fisheries, Oceans and the Canadian Coast Guard to “review the previous government’s changes” to the Act, on 19 September 2016, the House of Commons Standing Committee on Fisheries and Oceans (“the Committee”) agreed to

review and study the scope of application of the Fisheries Act, and specifically the serious harm to fish prohibition; how the prohibition is implemented to protect fish and fish habitat; the capacity of Fisheries and Oceans Canada to deliver on fish and fish habitat protection through project review, monitoring, and enforcement; the definitions of serious harm to fish and commercial, recreational, and Aboriginal fisheries; the use of regulatory authorities under the Fisheries Act; and other related provisions of the Act, and provide its recommendations in a report to the House.[2]

The Committee convened 10 meetings in Ottawa from 31 October to 12 December 2016 to study the matter, examining submissions and hearing testimony in person and by videoconference from numerous participants including the Minister of Fisheries, Oceans and the Canadian Coast Guard, representatives of Fisheries and Oceans Canada (DFO), provincial governments, Indigenous organizations, fish harvester groups, scientists, non-governmental organizations, and various industry associations. The Committee members would like to express their thanks to the participants who shared their knowledge and recommendations with the Committee over the course of this study.

The Committee notes that DFO conducted online public consultations regarding the Act and fish habitat protection in Fall 2016 and agreed to provide the Committee with the input received.[3] However, the public input to DFO’s online consultations were not all delivered to the Committee in time to allow its members to take them into consideration when making recommendations for this report.[4] The Committee recognizes, however, that the departmental consultations are a separate and complementary process from this Committee’s study.

The Committee is pleased to present its report, in which it makes recommendations to the federal government. These recommendations are based on the testimony and submissions of study participants.

BACKGROUND

A.  Federal Jurisdiction

Under the Constitution Act, 1867, the federal Parliament was assigned legislative authority for seacoast and inland fisheries while provincial legislatures were assigned responsibility for matters of property and civil rights and the management of public lands. The Fisheries Act was enacted in 1868 in accordance with this responsibility. The Act primarily deals with the management of fisheries, the conservation and protection of fish, the protection of fish habitat and the prevention of aquatic pollution.

While the federal government has retained final authority over all fisheries and fish habitat management, a number of court references have confirmed provincial legislative responsibilities for inland fisheries. As a result, a system of delegation of federal administrative authorities over a number of fisheries was instituted. Management of fish habitat, however, remains under the responsibility of the federal government.[5]

The federal government’s jurisdiction to regulate fisheries and the protection of fish and fish habitat is not only reflected in the legislative history of the Fisheries Act requiring it to set national legal standards, it is also pursuant to Canada’s numerous international obligations under treaties such as the United Nations Fish Stocks Agreement and the United Nations Convention on Biological Diversity.

B.  Efforts to Modernize the Fisheries Act in 2007

Until 2012, the Act had not undergone substantial changes since habitat protection was added and pollution prevention provisions were strengthened in 1977. A legislative attempt to overhaul the Act occurred in 2007. That attempt was embodied by Bill C-32, an Act respecting the sustainable development of Canada's seacoast and inland fisheries, which was introduced in the House of Commons on 29 November 2007.[6] However, Bill C-32 died on the Order Paper when elections were called in September 2008.[7]

The proposed Bill C-32 reflected the growing emphasis of fisheries management strategies worldwide on ecosystem-based management, sustainable development and the use of the precautionary principle. It did so by including a preamble and principles to guide and to be applied to the management of fisheries as well as to the conservation and protection of fish and fish habitat. The preamble proposed by Bill C-32 also recognized that stable access to fisheries resources is important to the economic viability of fishing communities and industry.

C.  Changes Made to the Fisheries Act in 2012

1.  Protections Provided to Fish and Fish Habitat

One of the notable changes to the Act made in 2012 was that of focussing its protections on the productivity of fish that are part of a commercial, recreational or Aboriginal (CRA) fishery, or to fish that support such a fishery, rather than on all fish and fish habitat as was previously the case. In addition, prior to the 2012 legislative changes, the Act contained prohibitions against “killing fish by any means other than fishing” (section 32(1)) and against carrying on “any work or undertaking that results in harmful alteration, disruption or destruction [HADD] of fish habitat” (section 35(1)). Both prohibitions were subject to exceptions and regulations authorized by the Minister allowing the impacts to occur under certain conditions.

Those two provisions were replaced in 2012 with a single new prohibition in section 35(1) against carrying on “any 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.” This prohibition is subject to five exceptions related to authorizations and regulations. The new term “serious harm” is defined in section 2(2) as “the death of fish or any permanent alteration to, or destruction of, fish habitat,” with fish habitat defined as “spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes.”

Amendments to the Act also provide the Minister with the ability to designate ecologically significant areas for fish (section 37(1.1)). The Minister may require higher levels of protection for such areas and proponents would be required to submit plans for review if any activities are proposed within these areas. To date, however, no regulations have been established defining ecologically significant areas. Some witnesses, such as West Coast Environmental Law, recommended that this useful provision be used.[8]

2.  Factors and Purpose to Guide the Minister in Issuing Authorizations and Making Regulations

The Minister of Fisheries, Oceans, and the Canadian Coast Guard has the authority to issue authorizations that would allow the works, activities or undertakings to occur that cause serious harm to fish, under certain conditions. Section 6 to the Act sets out the following factors, which the Minister is required to consider before making regulations or issuing authorizations:

• the contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries;
• fisheries management objectives;
• whether there are measures and standards to avoid, mitigate or offset serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery; and
• the public interest.

The purpose of requiring the Minister to consider these factors is “to provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries” (section 6(1)). Definitions for the terms “commercial,” “recreational,” and “Aboriginal,” in relation to a fishery, were added to section 2(1).

3.  Framework for Entering into Agreements with Federal Departments, Provinces and Others, and Ministerial Authority to Undertake Programs and Projects with Partners

Sections 4.1 to 4.3 were added to the Act in 2012 to provide a legal framework to guide future agreements with the provinces to further the purposes of the Act. They also allow the Governor in Council to declare that certain provisions of the Act or its regulations do not apply in a province if a federal-provincial agreement provides that a provision under provincial law is equivalent to a provision of the federal regulations.

Section 4.4 provides the power for the Minister to implement programs and projects with partners for the purpose of the Act, and to provide financial support for such programs and projects. The Recreational Fisheries Conservation Partnerships Program was established in 2013 pursuant to section 4.4.

With respect to delegation, the Minister of Fisheries, Oceans and the Canadian Coast Guard can, through regulations (paragraphs 35(2)(c) and 43(1)(i.3)), provide other persons or entities the authority to issue authorizations under the amended Act, as long as their regulatory processes are consistent with the objectives, purpose and factors outlined in the Act.[9] An example of a delegation agreement is the 2013 DFO – National Energy Board (NEB)’s Memorandum of Understanding (MOU). Through this MOU, the NEB is responsible for assessing potential impacts to fish and fish habitat from proposed NEB-regulated pipeline and power line applications. If the NEB determines that an authorization or permit is required, DFO is notified and is responsible for issuing the authorization or permit.

4.  New Regulatory Powers

Some of the significant regulatory powers added in 2012 to the Act include:

• Regulations that spell out for proponents the information and documentation that must be submitted in applications for authorization under paragraph 35(2)(b).
• Once an application for authorization is received, DFO is bound by set time limits for the processing of the application and a decision on the issuance of an authorization, if required.
• Recognition of externally-developed standards (i.e., not developed by DFO) as appropriate to guide activities in and near waters.
• Equivalency of regulatory regimes could be established if the provincial regime “meets or beats” provisions of the Act or of its regulations.[10]

Under the amended Act, ministers can make regulations authorizing the deposit of a certain class of deleterious substances into waters or places within a certain class or resulting from a work, undertaking or activity within a particular class (section 36(5.2)). Pursuant to sections 35(3) and 36(5.2), on 26 June 2015, the Aquaculture Activities Regulations were published establishing conditions authorizing the deposit of deleterious substances in the operation of an aquaculture facility.

New powers also allow for the establishment of regulations prescribing works, undertakings or activities, or fisheries waters that do not require approval to cause serious harm (sections 35(2) and 35(3)). As a result of these new provisions, a self-assessment tool called “Projects near water” was developed by DFO and lists types of waterbodies and project activities and criteria where a DFO review is not required. If the project is deemed not to require a DFO review, project proponents must nevertheless follow Measures to avoid causing harm to fish and fish habitat including aquatic species at risk, as determined by DFO. If the project is deemed to require a DFO review by the self-assessment tool, project proponents must submit a request for review.

SECTION 35: SERIOUS HARM TO FISH PROHIBITION

A.  Definition and Implementation of the Serious Harm to Fish Prohibition

In the view of Justyna Laurie-Lean, Mining Association of Canada, changes made to the Act in 2012 have, “in practice, broadened the circumstances in which the section 35 prohibitions apply and increased the circumstances in which an authorization and offsets are required.”[11] In Manitoba Hydro’s view, the “addition of the word “activities” in the prohibition against serious harm to fish arguably represents greater protection for fisheries, as do the addition of requirements for reporting all incidents of serious harm, the duty to intervene to address impacts, the extension in the time limitation for laying of charges from two to five years, and the establishment of contravening conditions of licence as an offence.”[12] Ron Bonnett[13], Canadian Federation of Agriculture, and Fawn Jackson[14], Canadian Cattlemen’s Association, explained to the Committee that enforcement of the HADD prohibition under previous versions of the Act to works and undertakings related to artificial infrastructures, such as drainage ditches and irrigation canals, resulted in “significant barriers and costs to farmers.” They argued that artificial waterbodies should not be treated as fish habitat. Ron Bonnett added that, under the previous Act, there were “many accounts of inconsistency in enforcement, monitoring, and compliance across Canada.”

The Committee suspects that enforcement of the HADD prohibition under previous versions of the Act to works and undertakings related to artificial infrastructures could be due to the fact these infrastructures may provide habitat for fish. A 2008 scientific study found that “agricultural drains (ditches) provide necessary drainage for cropland and may also provide habitat supporting native fish assemblages.”[15] The same study recommended that “drains continue to be recognized as fish habitat under the Canadian Fisheries Act and that drain and fish habitat managers strive for logical, scientifically defensible drain maintenance practices that preserve fish biodiversity and habitat, while considering the needs of agriculture.” Similarly, the City of Winnipeg suggested that “an area that appears to hold little value at one time of the year may have a very important fisheries function at another time” and encouraged project proponents to, “[a]s a rule of thumb, assume that all ditches, creeks and sloughs provide fish habitat.”[16] The Committee notes that section 30 of the Act providing the Minister with the power to require the installation and maintenance of screens or guards to prevent the passage of fish into water intakes, ditches, canals and channels was repealed in 2012.

The Committee was informed by many other participants to the study that the definition of “serious harm”, as a replacement for the HADD provision, creates confusion in the implementation of the prohibition. David Browne, Canadian Wildlife Federation, indicated that there is a “lack of clarity around how the prohibition under section 35 applies to temporary alterations of fish habitat.”[17] Brett Favaro questioned the implications of the word “permanent alteration” of fish habitat used in the definition of “serious harm.” He stated:

What does “permanent” mean? Does it mean a human lifespan? Could you destroy a river if you promised that you would repair it 50 years in the future, and have that be considered a temporary alteration? These questions were never satisfactorily answered, and the only reasonable conclusion was that this wording would make it easier to cause harm to fish habitat.[18]

The Committee learnt from West Coast Environmental Law[19] that the sole court case, Courtoreille v. Canada, commenting on amendments made to section 35(1) of the Act, considered that those changes “increase the risk of harm to fish” and “removed the protection to fish habitat:”[20]

[91] Hence the amendments to the Fisheries Act removed the protection to fish habitat from section 35(1) of that Act. The Applicant submitted that this amendment shifted the focus from fish habitat protection to fisheries protection which offers substantially less protection to fish habitat and the term “serious harm” permits the disruption and non-permanent alteration of habitat.

[101] ... In addition, for the reasons the Applicant expressed above, the amendment to section 35(1) of the Fisheries Act’s clearly increases the risk of harm to fish.

According to Kristi Miller-Saunders the requirement for the death of fish to be deemed “serious harm” is also problematic and noted that

fish that are stressed in one environment may become physiologically compromised, but they may not immediately die within the habitat in which the initial stress occurred. Rather, this compromised state may manifest as an inability to adapt and thrive as these fish move to new habitats. In this case, the death of fish and the impact of the stressor are unobservable.[21]

Zo Ann Morten, Pacific Streamkeepers Federation, agreed with the above statement and pointed out that, while not being considered “serious harm” in the current Act, a simple environmental change, such as water quality or temperature, could cause great harm to fish and prevent them from reaching the next life stage.[22] Stephen Sutton, Atlantic Salmon Federation, added that the focus of “serious harm” on preventing permanent alteration or destruction of fish habitat is insufficient to address important human impacts on wild salmon productivity:

Atlantic salmon have specific habitat requirements at specific points in their life cycle and at specific times of the year. Temporary alterations to key habitats at times when they are needed can have substantial and long-lasting impacts. For example, temporary disruptions to water quality, flow, or temperature at key times during the fall of the year could render important spawning habitats useless when they are needed and have significant impacts on salmon productivity for years into the future.[23]

Stephen Sutton also informed the Committee that the focus of “serious harm” on preventing the death of fish is similarly inadequate. He suggested that many human activities, such as open net-pen salmon aquaculture, affect the “long-term health and productivity of salmon populations without actually causing the death of the fish that are being impacted.”

Dan Gibson, Canadian Hydropower Association, told the Committee that the definition of “serious harm” is ambiguous and could be interpreted in different ways, not only by stakeholders, but by DFO staff as well. As “serious harm” is presently a key concept in the application of section 35, divergent approaches in enforcing it may lead to uncertainties for project proponents. He submitted that death of fish could be “interpreted to include the incidental loss of an individual fish with no material impact on the fishery at large.”[24] The Committee heard similar arguments from James Duncan, Manitoba Sustainable Development. In his opinion, the lack of clarity in the definition of “serious harm” makes it difficult to determine with certainty when this prohibition applies.[25] Deputy Minister Derek Sturko, British Columbia’s Ministry of Agriculture, also expressed his concerns that “federal Fisheries Officers are not proceeding with enforcement actions because of the difficulty to prove serious harm.”[26]

Jay Walmsley, Canadian Electricity Association, recommended that this prohibition “focus on the sustainability of fisheries by protecting fish populations or stocks, and not individual fish”, with the exception of species at risk where harm to individual fish can threaten the population.[27] In addition to Jay Walmsley, the Nicola Tribal Association[28] and the A-Tlegay Fisheries Society[29], both in British Columbia, advised the Committee that the current Act does not define what constitutes the “sustainability” of a fishery.

According to Linda Nowlan, West Coast Environmental Law, and Margot Venton, Ecojustice, the HADD prohibition benefits from 40 years of judicial interpretation[30] and casts a “wide net intended to catch the myriad ways in which fish habitat can be harmed by human activities.”[31] In their view, “judicial interpretation of the HADD provision was clear that the offence was harming fish habitat, even temporarily, and did not require proof of either permanent damage or harm to fish directly.” Margot Venton added that DFO should establish “science-based thresholds and objectives for fish habitat at the watershed and ecosystem level” before issuing authorizations for a particular watershed and ecosystem.

While recommending the reinstatement of the HADD prohibition, Ducks Unlimited Canada pointed out that, under the previous Act, many of its “conservation projects and activities that sought to restore, enhance or manage wetland habitat were deemed to be “fish habitat destruction” by DFO.”[32] In its opinion, this interpretation of the Act limited the organization’s “ability to deliver new conservation programming designed to protect and conserve habitat that is essential for waterfowl and other wetland-dependent species, including fish.”

In its submission to the Committee, Metro Vancouver explained that the current regulatory approach considers potable tap water containing chlorine as a potential deleterious substance causing serious harm to fish.[33] For Metro Vancouver, such an approach can present challenges to the management and operation of public water utility systems. Therefore, it recommended a “relaxation of absolute prohibitions” in cases where actual risks to fish-bearing waters are unlikely giving chlorine dissipation rates but the risk to public utility system operations is high if the discharge is prohibited. The preceding paragraphs in this section indicate the differing testimony heard with no scientific or legal evidence provided to show whether the 2012 changes broadened or reduced the circumstances under which section 35 applies.

B.  Focus on Commercial, Recreational and Aboriginal Fisheries

1.  Precautionary Approach to Fisheries Management

According to many study participants, the current Act’s focus of protections on the productivity of fish that are part of a CRA fishery, or to fish that support such a fishery, does not conform to the precautionary approach to fisheries management. In the view of Brett Favaro, for example, such a focus has no basis in science as there is currently “no scientific ability to divide fish into categories of fish that support a fishery and fish that do not.”[34] He added that the precautionary approach to fisheries management, especially in the context of climate change, implies avoiding the “highly risky assumption” that a fish or other aquatic organism is irrelevant to the ecosystem. Rather, he suggested a focus on protecting the integrity of the whole ecosystem since fish habitat is the best proxy for fish productivity.

2.  Ecosystem Approach to Fisheries Management

The Committee heard from Elizabeth Hendriks, World Wildlife Fund-Canada, that an ecosystem approach to fisheries management requires consideration for biodiversity and protection for all fish rather than simply fish that are part of a CRA fishery or fish that support such a fishery.[35] Committee members also note that, according to the DFO Fisheries Act Review Consultation Final Report, the clear majority (90%) of participants would like all fish and fish habitat, whether the fish are harvested or not, to be the focus of protection by the Act.[36]

Kristi Miller-Saunders pointed out that the current Act’s focus does not protect fish stocks that were once abundant, but are currently at record lows and unable to support a fishery, such as many Pacific wild salmon populations.[37] In her view, under the current section 35, these “stocks may no longer be provided enough protection to rebound and become viable in the future.” This would be in contradiction with DFO’s Wild Salmon Policy,[38] which calls for the conservation of genetic diversity of wild stocks to ensure the long-term sustainability of fish resources.

The Committee also notes the concern expressed by the Nicola Tribal Association regarding the need to protect fish to ensure the sustainability of predators such as bears, eagles and killer whales.[39] In the view of the City of Maple Ridge, British Columbia, the current Act’s focus on CRA fisheries “diminishes the importance of ecological linkages between features of watersheds that support fish and associated fisheries.”[40] The Newfoundland and Labrador Environment Network, therefore, proposed to “replace fish with aquatic animal in all parts of the Act and define aquatic life as appropriate with consideration for the whole food web.”[41]

For project proponents, such as Manitoba Hydro, however, the focus on CRA fisheries and fish that support such a fishery was not deemed to reduce fish habitat protection.[42] Nevertheless, the Mining Association of Canada testified that DFO’s “explanatory guidance, such as how to identify commercial, aboriginal, or recreational fisheries and fish that support such fisheries, or how to assess fisheries productivity, still falls short of what is necessary for clear and consistent national application.”[43]

3.  Indigenous Fishing Rights

In the view of Indigenous study participants, the inclusion and definition of “Aboriginal fishery” in the 2012 changes to the Act reduce the scope of protection to fish and fish habitat recognized by Indigenous perspectives and rights.[44] The Listuguj Mi’gmaq Government, Quebec, argued that Indigenous fishing rights include far more than fishing for food, social, and ceremonial purposes.[45] These rights also comprise commercial fishing with or without a licence as confirmed by the Marshall decision of the Supreme Court of Canada. Biigtigong Nishnaabeg, Ontario, stated that Indigenous fisheries should, at minimum, include:

fisheries with economic components, fisheries protected under historical treaties, traditional fisheries that are not currently active for conservation or other reasons, fisheries operating under First Nation granted licences, and unlicensed fisheries that are operating legally.[46]

The Maliseet Nation of New Brunswick suggested that, by only offering protections to species currently being fished or to fish that support such fisheries, the current section 35 freezes Indigenous fishing rights at a certain point in time.[47] The Nicola Tribal Association[48] and the Lower Fraser Fisheries Alliance,[49] both in British Columbia, submitted that sale, trade and barter fall under the commercial fishery definition in the current Act, yet court cases have declared that Indigenous fishing rights also include the right to sale, trade or barter. In addition, the Assembly of Nova Scotia Mi’kmaq Chiefs pointed out that the present section 35 appears to rank fisheries in order of importance with Indigenous fisheries ranked third after commercial and recreational fisheries. In its view, this ranking denigrates the significance of Indigenous constitutionally protected fisheries.[50]

The Committee recalls the Federal Court’s Courtoreille v. Canada case and notes that most Indigenous study participants called for the repeal of both the “serious harm” prohibition and its associated definitions of CRA fisheries, and the restoration of the HADD provision to section 35. In their opinion, all fish should be protected under the Act, not just fish that are deemed to be part of or supportive of an active fishery. As put by the Assembly of Manitoba Chiefs:

The changes to the Fisheries Act represent a capricious and arbitrary redefinition of what is sacred and inalienable. The fact that fish that are not currently a part of a fishery are not offered federal protection is contrary to Indigenous worldviews and laws.[51]

C.  Enhancing Fish and Fish Habitat Protection and the Management of Fisheries

The majority of the Committee recognizes that fish habitat has declined under the previous Act and the 1986 Policy for the Management of Fish Habitat, and continues to decline today as indicated by David Browne.[52] The 2009 Spring Report of the Commissioner of the Environment and Sustainable Development stated that since the 1986 “Habitat Policy was adopted, many parts of the Policy have been implemented only partially by Fisheries and Oceans Canada or not at all.”[53]

As noted by David Schindler, the current lack of environmental data coupled with a reduced DFO monitoring and enforcement capacity in past years preclude a quantitative assessment of the 2012 changes to the Act on fish and fish habitat protection since its coming into force three years ago.[54] Linda Nowlan reminded the Committee, however, that the “Committee on the Status of Endangered Wildlife in Canada, or COSEWIC, ranks freshwater and marine fishes very high on the danger list. In fact, the chair of COSEWIC says that, as a group, they are the second most endangered group of species in Canada, and that the leading cause of risk for most of these freshwater fishes is habitat loss and degradation.”[55] Kevin Stringer, DFO, expressed the hope that this review will provide an opportunity to modernize the Act giving DFO the regulatory authority and required resources to carry out quantitative impact assessments of legislative changes on the sustainability of fish and fish habitat.[56]

1.  Serious Harm and HADD Prohibitions

The majority of the Committee agrees with study participants regarding the definition of “serious harm” lacking clarity and concludes that the concept of “serious harm” in the current Act does not fully capture negative impacts to fish resulting from harmful alterations to fish habitat. Based on the testimony given, the “serious harm” prohibition also fails to conform to DFO’s Fishery Decision-Making Framework Incorporating the Precautionary Approach and Canada’s commitment to Principles of Ecosystem-Based Fisheries Management.

Although sufficient time may not have passed to fully assess the impacts of the 2012 legislative changes to the Act, we believe in the importance of taking a precautionary approach in the protection of fish and fish habitat and the management of fisheries. Therefore, the Committee recommends:

Recommendation 1

That section 35(1) of the Fisheries Act return to its wording as of 29 June 2012 which reads: “No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat.” Remove the concept of “serious harm” to fish from the Act.

Recommendation 2

That Fisheries and Oceans Canada take an ecosystem approach to protection and restoration of fish habitats so that the entire food web is preserved for fish by:

1. Adopting key sustainability principles;
2. Protecting the ecological integrity of fish habitat; and
3. Protecting key areas of fish habitat.

Recommendation 3

Any revision of the Fisheries Act should review and refine the previous definition of HADD due to the previous definition’s vulnerability to being applied in an inconsistent manner and the limiting effect it had on government agencies in their management of fisheries and habitats in the interest of fish productivity.

Recommendation 4

That Fisheries and Oceans Canada emphasize protection for priority habitats that contribute significantly to fish production within the context of section 6 of the Act.

Recommendation 5

That Fisheries and Oceans Canada fund more research dedicated to ecosystem science.

2.  Extending Protection to All Habitats

The Committee also heard from Susanna Fuller, Ecology Action Centre, and Trevor Taylor, Oceans North Canada, on the importance of ensuring that impacts of fishing practices on fish habitat being regulated under the Act.[57] Fishing practices were also mentioned by David Browne, in addition to destruction and alteration of habitat from projects and land use, as known causes of habitat decline.[58] Although DFO has established a Policy for managing the impact of fishing on sensitive benthic areas, the majority of the Committee believes that incorporating this policy in the Act will enhance enforcement and compliance and, therefore, recommends:

Recommendation 6

That protection from harmful alteration or disruption, or the destruction, of fish habitat be extended to all ocean and natural freshwater habitats to ensure healthy biodiversity.

Recommendation 7

To protect fish habitat from key activities that can damage habitat, such as destructive fishing practices and cumulative effects of multiple activities.

3.  Exceptions to Section 35 Prohibition

The Committee notes the appreciation of the Groundfish Enterprise Allocation Council[59] for exceptions provided by the current section 35(2) and considers that the listed exceptions to the HADD prohibition take into account the concerns of the agriculture and other industries. Types of waterbodies where a DFO review is currently not required already include private ponds, irrigation ponds or channels, and agricultural drains and drainage ditches.[60] Project activities such as bridges, causeways and culverts mentioned by Kate Lindsay, Forest Products Association of Canada,[61] as regular activities engaged by the forestry sector are also exempt from DFO reviews as long as they meet prescribed criteria.

Committee members agree with the Canadian Federation of Agriculture on the need to establish clear and enforceable guidelines for artificial infrastructures and recommend:

Recommendation 8

That Fisheries and Oceans Canada put sufficient protection provisions into the Fisheries Act that act as safeguards for farmers and agriculturalists, and municipalities.

Recommendation 9

That Fisheries and Oceans Canada work with the farm community and rural municipalities to provide incentives and expert advice to conserve and enhance fish habitat and populations and utilize the enforcement approach as a last resort.

Recommendation 10

That permitting be expedited to allow for works that involve the restoration of damaged infrastructure and emergency works to protect people and communities.

Recommendation 11

That the Fisheries Act should include a clear definition of what constitutes fish habitat.

4.  Engagement with Stakeholders

The Committee heard from Brian Parker, Manitoba Sustainable Development, that communication between local stakeholders and DFO management must be improved. He stated:

In some instances, the ability to communicate local issues and perspectives may have become more challenging due to the thematic focus within the federal fisheries protection program. For example, federal staff who are based in Manitoba may have the expertise to review a local oil and gas project, even though the project would typically be assigned to staff located in another province.[62]

Ron Bonnett also stressed the importance of communication and information sharing between federal, provincial and conservation authorities.[63] For Elizabeth Hendriks, enhanced communications with Canadians regarding the health of watersheds are vital for transparency and for identifying target areas for fish habitat protection’s improvements.[64] The Committee also heard from the Federation of Sovereign Indigenous Nations, Saskatchewan, on the need to increase Indigenous engagement at the strategic policy level.[65]

The Committee recommends:

Recommendation 12

That Fisheries and Oceans Canada assess and improve communications between fisheries stakeholders and the Department’s upper management and decision makers.

Recommendation 13

That communication within and between all levels of Fisheries and Oceans Canada be improved.

The majority of the Committee concurs with Susanna Fuller on the importance of DFO engaging in multi-stakeholder consultations to achieve optimal fish and fish habitat protection regulations while taking into account particularities of the agricultural sector and municipalities.[66] The Alberta Association of Municipal Districts and Counties and the Saskatchewan Association of Rural Municipalities reminded the Committee that municipalities take into account fish habitat protection when planning public works. For example, municipal “project plans include habitat protection and land use provisions when developing bridges and culverts.”[67]

5. Interpretation of the HADD Prohibition

To avoid conflicting interpretations and inconsistencies in enforcement of the HADD provision across Canada at the local level, the Committee recommends:

Recommendation 14

That Fisheries and Oceans Canada clearly define the parameters of what is considered a violation of the Fisheries Act.

Recommendation 15

That Fisheries and Oceans Canada should create a widely representative advisory committee to provide ongoing recommendation regarding the administration and enforcement of the Fisheries Act. The advisory committee should include but not be limited to, industry groups, project proponents, agricultural groups, municipal government representatives and commercial, recreational and Indigenous fisheries representatives.

Recommendation 16

To broaden the Minister’s mandate to consider long-term conservation and protection of fish and fish habitat when evaluating projects that contravene the Fisheries Act.

SECTION 35: AUTHORIZATIONS

A.  Time Limit

The Committee heard from Ron Bonnett that farmers’ experience with previous versions of the Act’s authorization process was characterized by “lengthy bureaucratic applications for permitting and authorizations” and the 2012 changes “drastically improved the timeliness and cost of conducting regular maintenance and improvement activities to their farms.”[68] Fawn Jackson concurred by indicating that many cattle producers found HADD authorizations to be long and administratively burdensome.[69]

For Matthew Pickard, Prospectors and Developers Association of Canada, “regulatory processes should be scalable and be proportionate to the nature, scope and duration of the project activities.”[70] In addition, Jay Walmsley proposed that the Act should contain provisions for long-term authorizations and for amending or extending authorizations as there are many long-term activities in the electricity sector.[71]

The Committee also heard from Chris Bloomer, Canadian Energy Pipeline Association, on the importance of a regulatory framework that would “outline clear accountabilities, contain transparent rules and processes, allow for meaningful participation and adhere to the need for timeliness.”[72] Committee members believe that regulations should ensure that decisions on section 35 authorizations are made within a reasonable and set period of time and with industry-specific considerations. Committee members also note the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations that entered into force in 2013 set time limits for the Minister to either issue an authorization or notify the applicant in writing of the refusal to do so.

Accordingly, the Committee recommends:

Recommendation 17

That Fisheries and Oceans Canada provide the Committee with a report within two years after the revision to the Fisheries Act detailing authorization requests and decisions timelines.

B.  Project Reviews: Self-Assessment of Project Impacts

Francis Bradley, Canadian Electricity Association, noted that the 2012 changes to the Act have strengthened protections for fish and fish habitat.[73] The requirement for industry to self-report serious harm to fish was given as an example of strengthened protections and was characterized by Dan Gibson as a burden on industry.[74] The Committee also heard from Fawn Jackson on the need for the reporting burden to reflect the size of the project’s risk.[75]

Prescribed works, undertakings and activities as well as projects deemed as low-risk by proponents’ self-assessments do not necessitate a DFO review. Currently, proponents are also not required to notify DFO of such projects taking place. The reliance by DFO on self-assessments completed by project proponents to streamline the authorization process and the lack of systematic monitoring was, however, criticized by many other study participants, such as the Ontario Federation of Anglers and Hunters[76] and northern Quebec’s Indigenous Hunting, Fishing and Trapping Coordinating Committee.[77] The Mohawk Council of Kahnawake, Quebec, called for the establishment of an appeal process that will “allow an Indigenous Nation or other interested party to request that a project designated as “minor work” be required to obtain a permit.”[78]

In the opinion of Krystyn Tully, Lake Ontario Waterkeeper, self-regulation is not appropriate to ensure compliance with the Act.[79] Minor projects may each carry low risk for fish and fish habitat but, as explained by Otto Langer, when considered cumulatively, they may represent “death by a thousand cuts.” He also stated:

From experience in Australia and elsewhere in the 50 years I've been around, that simply does not work, so we were going off in the wrong direction, hoping it would work. It was wishful thinking. It hasn't worked.[80]

Newfoundland and Labrador’s Minister Steve Crocker also expressed doubts regarding the self-assessment tool. In his view, self-assessment “translates to an unrealistic expectation that proponents must understand the type of ecological and biological impacts their projects are likely to cause.”[81] He suggested that a “more rigorous systematic, regionally-based assessment conducted by DFO officials” would offer better protection to fish and fish habitat. Stephen Sutton agreed with Minister Steve Crocker and stated:

People undertaking potentially damaging activities are typically not qualified to understand the complexities of salmon habitat requirements or to judge when their activities may have caused serious harm. There are also disincentives for people to report harm that they may have caused, yet the self-assessment tool currently used by DFO places most of the responsibility for protecting fish habitat with the project proponents. This provides significant opportunities for projects to proceed without sufficient oversight from monitoring and enforcement. We believe that this situation results in ongoing and cumulative habitat loss that is undocumented and unmitigated, and it makes it nearly impossible to assess future project impacts in light of previous damage.[82]

Zo Ann Morten also added:

With studies showing that over half the developers in North Vancouver did not know that their storm drains on the street were carrying the development waste directly to the local streams, I find it hard to imagine that the average person could self-determine if they might cause serious harm to fish or to a fishery, whether it be local or at sea.[83]

In the view of the Federation of Canadian Municipalities, the Act should continue to allow for a streamlined review process for low-risk projects but the federal government should “examine the issue of projects that individually may have small environmental impacts, but cumulatively may cause serious harm to fish.”[84] The Committee was informed by the Newfoundland and Labrador Environmental Industry Association that the “lack of regulator input (even on “low-risk” projects) presents challenge[s] for proponents when dealing with municipalities and other third-parties who would prefer an assurance that the regulator is aware of the project and has approved it.”[85]

The topic of self-assessment also figured in the brief sent to the Committee by Deputy Minister Derek Sturko. He indicated that the “criteria for what constitutes a low-risk project are not always appropriate in areas of sensitive habitat which included habitat that has already experienced significant impacts. DFO’s reviewable project list and reliance on a proponent’s interpretation of project impacts on fish increases the risk for screening out high risk impacts at the self-assessment stage.”[86] The Yukon Fish and Wildlife Management Board and Yukon Salmon Sub-Committee submitted that “with declining Department capacity in terms of staff and resources, DFO’s focus has been on major projects and the small projects have fallen between the cracks in terms of assessment, compliance monitoring and enforcement and shuffled off to the self-assessment process which is clearly not working in Yukon and elsewhere.”[87]

In addition, the City of Port Moody, British Columbia, recommended DFO abandon the self-assessment process and “develop policy to provide clear approval processes and to establish strong, independent and clear performance standards for protecting, mitigating and where unavoidable, compensating for fish and watershed impacts.”[88]

In light of the above testimonies, the Committee recommends:

Recommendation 18

That any changes to habitat protection in the Fisheries Act must be supported by a reduced reliance on project proponent self-assessment.

C.  Enhancing Monitoring of Project Impacts

Brett Favaro told the Committee that, currently, there is neither a public registry nor auditing of self-assessed projects.[89] In order to monitor and understand project impacts on fish and fish habitat, especially on a cumulative basis, Martin Olszynski called for a public registry, similar to the Alberta Energy Regulator website, of self-assessed projects, which would contain information on all applications for section 35 authorizations, all authorizations and monitoring data following authorizations from proponents.[90]

Jay Walmsley[91] and Susanna Fuller[92] added that such a public registry, with spatial and temporal mapping capabilities, would increase transparency and accountability in the authorization process. In the opinion of the Kitsumkalum Indian Band, British Columbia, fishing areas that are critically important for Indigenous peoples should be outlined on a map and the information be made available to projects proponents.[93]

Committee members note from DFO’s online consultations that keeping the public informed was of great interest to participants. The preferred mediums to receive information were through regular website updates, public registry of development and restoration projects, annual reports to Parliament and social media.[94]

The Committee also recalls the following finding from the 2009 Spring Report of the Commissioner of the Environment and Sustainable Development regarding reviewed projects by DFO:

The Department has little documentation to show that it monitored the actual habitat loss that occurred, whether habitat was protected by mitigation measures required as a condition for project approval, or the extent to which project proponents compensated for any habitat loss.[95]

The report goes on to say that, in the 23 years since the Habitat Policy was adopted, the Department “cannot demonstrate that fish habitat is being adequately protected as the Fisheries Act requires.”

To ensure adequate monitoring of potential project effects and to enable the analysis of cumulative impacts, the Committee agrees with the suggestion from Brian Parker[96] on the need to establish clear standards and a rationale for monitoring requirements. The Committee, therefore, recommends:

Recommendation 19

That Fisheries and Oceans Canada put in place consistent monitoring requirements for proponents, with clear standards and rationale.

Recommendation 20

That Fisheries and Oceans Canada make investments into a public and accessible database system that will identify:

1. The location and status of projects that have been flagged by the Department of having a potential to cause harm to fish and fish habitat (authorizations, monitoring results and convictions) and their cumulative effects;
2. The location of different aquatic species;
3. Up-to-date monitoring of aquatic species at risk and their status; and
4. The status of authorizations.

D.  Projects Guidance and Enforcement

Patrick McDonald, Canadian Association of Petroleum Producers, recommended that any changes to the Act be “focused on enhanced compliance tools and further development of best practices for avoiding, mitigating, and offsetting harm to fish and fish habitat.”[97] In his opinion, DFO should “reinstate activity-specific operational statements[98] and/or develop new operational statements, or best practice guidelines, to guide proponents in how risks associated with routine activities can best be mitigated and managed by proponents.” In addition, Dan Gibson submitted that DFO-industry partnerships have been hindered by a reduction of staff at DFO regional offices:

Our members have found that the experts with whom they had once worked from Newfoundland all the way to B.C. have experienced some loss on the ground with these experts. They have either moved on or are simply no longer with the Department. This makes for less understanding and less strength in our relationships with our regulators. We believe the government should give serious consideration to restoring some of these lost resources with the objective of re-establishing the productive working arrangements that have existed.[99]

Enhanced project guidance by DFO for project proponents was also called for by Kate Lindsay. She informed the Committee that:

Operational statements were an effective and efficient set of guidelines, as well as a notification and tracking system. They outlined science-based timing windows and appropriate mitigation measures for proponents to undertake low-risk activities, both providing outcome-based objectives for avoiding or mitigating any impacts to fish and fish habitat, but also allowing DFO staff to focus on more time-intensive reviews on activities that were deemed higher risk to fish and fish habitat.[100]

In the view of Ducks Unlimited Canada, habitat enhancement or restoration projects should not be subject to the same regulatory requirements as the ones intended for non-habitat projects. Therefore, it proposed that the Act make a distinction between a project proponent and a project partner and that DFO develop operational requirements specific to conservation organizations seeking to restore fish habitat.[101]

The Committee heard from Martin Olszynski that, based on DFO’s enforcement data, there has been a “massive decrease” in enforcement hours dedicated to fisheries and fish habitat protection provisions.[102] Deputy Minister Derek Sturko noted that, with reduced enforcement staffing in British Columbia, “there has been almost no DFO field presence responding to occurrences or potential violations.”[103] David Browne added that, in terms of enforcement, DFO staff and equipment were “severely cut, with no alternative arrangement in place with provinces, and few fines or warning[s] are being issued.”[104] Minister Dominic LeBlanc acknowledged that DFO cut the number of fish habitat protection offices from 63 to 16 in recent years and added:

One of the concerns we have is that, over the last five years, the Department suffered a series of budget cuts, $35 million, which led to almost 1,100 positions being eliminated. If you think about 1,100 positions over the last five years, many of them were front-line enforcement people, habitat protection people, and scientific people.[105]

To improve compliance, enforcement and fish habitat protection, Margot Venton advocated for provisions that would allow concerned citizens to “request that DFO investigate an alleged fish habitat violation” and “take actions in the courts to enforce the Act where DFO is unable or unwilling to do so.”[106] She added that citizen enforcement provisions have worked effectively in other jurisdictions and such a provision already exists in the Canadian Environmental Protection Act, 1999.

The Committee also notes the suggestion from the Inuvialuit Settlement Region’s Fisheries Joint Management Committee[107], Northwest Territories, and the A-Tlegay Fisheries Society, British Columbia, to create a “mechanism for First Nations Guardians, provincial and local governments to be involved to assist with evaluating, monitoring and enforcement of projects.”[108]

In light of the above testimonies, the Committee recommends:

Recommendation 21

That Fisheries and Oceans Canada ensure that significant investments are made in hiring more field personnel to improve fish habitat enforcement, to assist in fisheries enhancement projects and to establish positive consultative relationships with local communities.

Recommendation 22

That Fisheries and Oceans Canada meaningfully resource the monitoring, compliance and enforcement components of the Department.

Recommendation 23

That Fisheries and Oceans Canada increase enforcement staff on the ground by recruiting and retaining habitat monitors, including fishery officers who are dedicated to habitat protection.

Recommendation 24

That Fisheries and Oceans Canada ensure that habitat protection staff are adequately trained and resourced with long-term funding and empower field staff to do their job to protect fish and fish habitat.

The Committee also recommends:

Recommendation 25

That Fisheries and Oceans Canada re-establish the Habitat Protection Branch, adequately resourced to provide advice to proponents of projects that may impact marine and freshwater habitats and to enforce compliance.

E.  Trigger Under the Canadian Environmental Assessment Act

As part of the 2012 legislative changes, authorizations under the Fisheries Act no longer trigger an environmental impact assessment under the new Canadian Environmental Assessment Act, 2012 (CEAA). According to Graeme Gawn, Canadian Independent Fish Harvesters Federation, without the trigger:

Fishing communities, coastal fishermen, and the ocean floor no longer have full protection from increasing uses of the coastal marine environment by other industries. Activities such as dredging, pipelines and cables, aquaculture operations, and renewable energy operations all impact fish habitat and must be subjected to very careful environmental impact assessments before being approved.[109]

In the opinion of Susanna Fuller, the loss of CEAA triggers partly explains the present difficulty in assessing impacts of the 2012 changes to the Act on fish and fish habitat.[110] Therefore, environmental non-governmental organizations and First Nations representatives advocated restoring environmental assessment triggers for Fisheries Act authorizations.[111]

Recommendation 26

Re-examine sections 32, 35 and 36 Fisheries Act authorizations as environmental assessment triggers.

SECTION 32: KILLING OF FISH BY ANY MEANS OTHER THAN FISHING

According to Elizabeth Hendriks, the 2012 repeal of section 32 created a gap in the protection of fish from industrial activities.[112] She recommended reinstating section 32 and adding prohibitions against sub-lethal harm (e.g., injury or reduction of fitness) to fish. The Committee notes that this position is also supported by many other study participants, such as the Mikisew Cree First Nation[113] in Alberta, the Nuu-chah-nulth Tribal Council[114] in British Columbia, and Michael d'Eça from the Nunavut Wildlife Management Board. Micheal d'Eça pointed out that while the HADD provision in section 35 protected fish habitat, section 32 provided safeguards for fish.[115]

AGREEMENTS, DELEGATIONS OF AUTHORITY, PROGRAMS AND PROJECTS

A.  Legal Framework to Guide Agreements With the Provinces

In the opinion of Brian Parker, “provincial and territorial input is essential in determining impacts to long-term sustainability and productivity of fisheries, including the determination of cumulative impacts.”[116] Minister Steve Crocker indicated that, “engagement and collaboration between DFO and provincial and territorial departments and agencies are essential for the development and implementation of clear and effective legislative policies.”[117] In the view of the Alberta Association of Municipal Districts and Counties, the current Act provides a “better balance of federal oversight and local autonomy, both through the simplification of prohibitions related to fish habitat damage, and through the involvement of local authorities to self-identify potential impacts on fish habitats.”[118]

The Committee also heard from Fawn Jackson that the Canadian Cattlemen’s Association “encourages coordination with the provinces.”[119] Kate Lindsay added that the equivalency of regulatory regimes and the recognition of externally-developed standards to guide activities are elements of the 2012 changes that should be maintained to reduce regulatory duplication.[120] In the opinion of Derek Sturko, agreements with provinces provide “opportunities to create regulatory efficiency”, a one-window approach to approvals as well as potential of delegation to First Nations.[121]

Zo Ann Morten also expressed her support for the continued ability to share the responsibility for fish and fish habitat protection where it could be established that a provincial regime “meets or beats” provisions of the Act or of its regulations.[122] However, she cautioned the Committee that monitoring standards and on-the-ground outcomes are vital to ensuring that DFO protection goals are met. The ability to pull out of federal-provincial agreements when the provincial partner is no longer able to meet or beat the standards set out by the federal Act was, therefore, deemed necessary.

Chief Robert Chamberlin, Union of British Columbia Indian Chiefs,[123] and Brenda Gaertner, First Nations Fisheries Council of British Columbia,[124] were dismayed, however, that sections 4.1 to 4.3 enable a legal framework to guide agreements with the provinces but that First Nations were not included. Brenda Gaertner pointed out that:

Indigenous inherent rights and section 35 [of the Constitution Act, 1982] aboriginal and treaty rights, including aboriginal title, have and will always include the right and responsibility of First Nations to govern and manage the fish, fish habitat, both in the fresh and marine environments, and fisheries, and to be stewards of the rivers, lakes, and waters in their territories.

Therefore, she recommended:

That the Act enable the Department of Fisheries and Oceans and the Minister to enter into direct agreements with First Nations governments in a manner that would allow them to facilitate collaboration among First Nations, the province, and the federal government as it relates to the management of fish, fish habitat, and fisheries.

In the view of the Mikisew Cree First Nation, the delegation of federal powers to provinces can be problematic because provincial agencies have more “restrictive rules around Aboriginal participation in decision making.”[125] The Mikisew Cree First Nation indicated that such a delegation would “run contrary to the important role that DFO has played in the oil sands region, where DFO has been the sole regulatory voice to point out that provincial water licences for oil sands projects would reduce fish habitat if granted in the manner approved by Alberta.”

B.  Delegation of Ministerial Authority

With respect to delegations of the ministerial authority to issue authorizations under the Act to other persons or entities, Chris Bloomer recommended to the Committee that the MOU between the NEB and DFO be maintained.[126] In his view, the delegation of authority to the NEB does not weaken the protection for fish and fish habitat. He stated that the NEB is the best-placed regulator as it has unique knowledge of the history of success of mitigation methods specific to pipelines projects.

The Committee notes that the Manitoba Metis Federation and Otto Langer did not share Chris Bloomer’s opinion on delegations of authority and the NEB-DFO MOU. Otto Langer called for the centralization of expertise in the “right agency.” He indicated:

When we're dealing with an energy issue, the National Energy Board should just be dealing with that energy issue. Do we have enough natural gas for future generations? Do we build a pipeline across provincial boundaries? Why would the National Energy Board then determine what's good for fish in every stream they put that pipeline across? That makes no sense at all. Get all the agencies to do their job properly and efficiently versus the fragmentation we now have.[127]

In the view of the Manitoba Metis Federation, the protection for fish and aquatic habitat is not part of the NEB’s mandate and the NEB “lacks the key capacity, experience and expertise to be able to competently assess impacts” of energy projects on fish and fish habitat.[128]

C.  Power to Implement Programs and Projects with Partners

The Recreational Fisheries Conservation Partnerships Program, established pursuant to the power for the Minister to implement programs and projects with partners, was noted as one of the positive aspects of the 2012 amendments to the Act mentioned by many study participants. Ron Bonnett emphasized to the Committee that “ecological goods and service programs offer an excellent vehicle that should be explored further to improve the quality of fish habitat on or near agricultural lands.”[129] Susanna Fuller added that further work could be done under the regulations to incentivize fish habitat conservation.[130]

In the view of David Browne, DFO should increase its “capacity to design, operate, and enforce a fish habitat protection program” and “continue building partnerships with NGOs and other sectors of society to deliver it, because DFO cannot do this alone. If it's going to succeed, this is going to have to be a co-operative and collaborative approach to protecting fish habitat.”[131]

The Committee also heard the call from Jay Walmsley for more focus to be placed on “supporting and encouraging partnerships and stewardship activities, including broad area planning initiatives to protect and restore fish habitat.”[132] For the Fisheries Council of Canada, the power to implement programs and projects with partners, such as fishing companies and harvester groups, represents a “boon for co-management.”[133]

Therefore, the Committee recommends:

Recommendation 27

That Fisheries and Oceans Canada continue to fund fisheries conservation and enhancement projects in co-operation with the Indigenous communities, the agricultural communities, and fisheries conservation organizations.

POWERS IN ISSUING AUTHORIZATIONS AND MAKING REGULATIONS

A.  Guiding Factors and Transparency

Despite the factors and purpose introduced by the 2012 amendments to the Act to guide the ministerial discretion in issuing authorizations and making regulations, Martin Olszynski informed the Committee it is still impossible for anyone to know in any given instance whether and how the Minister considered those factors.[134] In Susanna Fuller’s view, the high level of ministerial discretion makes it difficult for decisions to adhere to scientific advice or plans recommended by co-management boards.[135] Michael d'Eça also expressed concern regarding the expansion of regulation-making powers under section 43 of the Act which allows the Governor in Council to “exclude fisheries from the definition Aboriginal, commercial and recreational.”[136]

Margot Venton indicated to the Committee that factors guiding decision-making under the Act need to be clarified further to expressly reflect habitat concerns. She argued that inconsistencies in the implementation of the HADD prohibition under previous versions of the Act stemmed, in part, from the broad discretion under section 35(2) authorization power. In her opinion, the power to authorize harm to fish and fish habitat must be guided by clear principles, based on science. Therefore, Margot Venton recommended adding:

science-based considerations to guide any authorization of fish habitat, including consideration of cumulative effects on fish habitat of individual authorizations; consideration of the long-term stability of ecosystems; consideration of the habitat needs for struggling or recovering fish stocks and aquatic species at risk; and consideration of the predicted effect that climate change is expected to have on the habitat in question.[137]

In addition to the factors listed above, the Committee heard from Brenda Gaertner that the Minister should be charged with “exercising his discretion in a manner that meets the requirements of the Fisheries Act and meets the requirements of subsection 35(1) of our Constitution as well as the United Nations Declaration on the Rights of Indigenous Peoples.”[138] The Mikisew Cree First Nation also suggested that traditional knowledge, treaty rights, culturally significant fish and fishing areas to Indigenous peoples, the principles of reconciliation and the precautionary principle should be included among the factors guiding the ministerial discretion.[139]

Considering the testimony given, the Committee recommends:

Recommendation 28

That the exercise of ministerial discretion be subject to transparency principles and public disclosure.

B.  Fisheries Management Objectives

Fisheries management objectives (FMO) are one of the four factors in section 6 which the Minister is required to consider before making regulations or issuing authorizations. Gary Swanson, Manitoba Hydro, submitted that the requirement to consider FMOs is necessary and logical to ensure the long-term sustainability and productivity of fisheries.[140] However, Dan Gibson told the Committee that FMOs are not clearly articulated at present. He indicated that properly defined FMOs could be very useful for the hydropower industry when designing facilities and operations to avoid negative impacts to fish.[141]

In the view of the First Nations Fisheries Council of British Columbia, FMOs should also take into account existing First Nations management objectives informed by Indigenous laws, traditional knowledge and objectives developed through co-management agreements.[142]

C.  Aquaculture Activities Regulations

With respect to the Aquaculture Activities Regulations (AAR) introduced in 2015 pursuant to the Minister’s new regulatory powers, Graeme Gawn indicated that those regulations weaken the protections for wild marine species from illegal pesticide use by open net-pen salmon farms.[143] He pointed out to the Committee that the use of pesticides threatens coastal lobster fisheries, the most valuable fishery in Eastern Canada. The Committee notes similar criticisms against the AAR expressed by Nova Scotia’s Eastern Shore Fisherman’s Protective Association[144], New Brunswick’s Grand Manan Fishermen’s Association[145] and by the Maritime Fishermen’s Union.[146]

Susanna Fuller concurred with Graeme Gawn and added that, as aquaculture activities are now permitted under class authorizations and are exempt from section 35(1) of the Act on an individual basis, there is a lack of tracking regarding the deposit of deleterious substances.[147] For his part, Chief Robert Chamberlin, citing findings from the Cohen Commission’s final report, called for the removal the DFO’s mandate to promote the salmon farming industry and its products.[148] This position was also supported by Nikki Skuce of Northern Confluence in British Columbia.[149]

The Committee also heard contrasting opinions from Minister Steve Crocker. In his view, the AAR provided “improved clarity” with regard to aquaculture activities and any “review of the Fisheries Act should take the AAR into consideration and ensure that any proposed changes do not duplicate or conflict with the applications of the AAR.”[150] Matt Sullivan, P.E.I. Aquaculture Alliance, also deemed the 2012 changes to the Act as having positive outcomes for the aquaculture industry.[151] He commended the streamlined approach to authorizing low-risk projects, such as oyster aquaculture leases.

Kristi Miller-Saunders cautioned the Committee, however, that given the declining productivity of large numbers of Pacific wild salmon stocks, it is “imperative that the regulations put in place to assure minimal impacts of aquaculture on wild stocks are strongly evidence-based, and that the research to understand these risks be transparent, objective, and independent of influence from industry.”[152]

MODERNIZING THE FISHERIES ACT

Witnesses testified that fish habitat conditions have been declining under previous versions of the Act and continue to deteriorate in Canada. Numerous study participants, therefore, proposed that a renewed Act should include “modern safeguards”. As put by Elizabeth Hendricks, in the context of climate change, incorporating such elements in the Act would:

ensure that the Fisheries Act is brought into the 21st century and is an effective cornerstone in Canada's environmental legislation by including sustainable principles, and specifically an ecosystem approach; the precautionary principle; community-based management to guide fisheries management decision-making and cumulative effects; prescriptive guidance on fish management objectives, principles, and procedures; and better monitoring, open data, and transparency.[153]

A.  Preamble, Purposes and Guiding Principles

Marc Allain, Canadian Independent Fish Harvesters Federation, pointed out to the Committee that the Act presently does not have a purpose statement.[154] In his view, it is “critical that the “Purposes” section of the Act clearly establish the authority of the Minister to manage the fishery in pursuit of cultural, social, and economic objectives in addition to the conservation and protection of fish.” The Committee notes similar arguments made by the Cape Breton Fish Harvesters Association[155] and Capitaines-Propriétaires de la Gaspésie.[156] The BC Seafood Alliance[157], the Fisheries Council of Canada[158] and Jay Walmsley put the emphasis on the sustainability of fisheries by stating:

the purpose of the Fisheries Act should be to provide for the sustainability of Canada's marine and inland fisheries by ensuring that environmental, economic, and social considerations, including the impact on other water resource uses, are systematically taken into account in the management of fisheries, and the conservation of fish and fish habitat. The underlying principles should be ecosystem-based management and sustainable development.[159]

The Committee heard from Susanna Fuller that a purpose section would “ensure that current and future policy frameworks are enabled by the Act, including those on desired conservation, social, and economic outcomes.”[160] The Mikisew Cree First Nation and Trevor Taylor both emphasized the need for the Act to “acknowledge respect for Indigenous and treaty rights and provisions of modern land claim agreements, as well as the goal of reconciliation.”[161] To take into account Indigenous fishing rights, the First Nations Fisheries Council of British Columbia proposed to the Committee that the Act’s purpose section be drafted as follows:

The purpose of the Act is to ensure the protection of fish, fish habitat and fisheries for present and future generations through the protection, conservation, and restoration of fish, fish habitat, and biological diversity, the application of precaution, ecosystem-based management, and achieving reconciliation with Indigenous peoples.[162]

For its part, Manitoba Hydro informed the Committee that the “key to providing meaningful protection for fisheries lies in the clear description of the purpose of the Act, which leads to a fuller integration of fisheries management objectives.”[163] Gary Swanson, therefore, suggested that the current section 6 merits “increased prominence within the Fisheries Act” and should guide all considerations in the determination of harm to fish. For the British Columbia Commercial Fishing Caucus, decision-making must be shared with local fishers, First Nations, and adjacent coastal communities.[164]

Elizabeth Hendriks proposed to add a preamble to the Act that, in line with other Canadian statutes such as the Canadian Environmental Protection Act, would ensure that fundamental guiding principles are included, such as: evidence-based decision-making, an ecosystem approach, the precautionary principle, transparency and accountability, co-management, and incorporation of Indigenous traditional knowledge.[165] The Committee also heard similar arguments from Trevor Taylor on the importance of adding a preamble to the Act. He pointed out to that both the Oceans Act and the Species at Risk Act have preambles that offer a statement on the shared premises on which the act is based.[166]

Recommendation 29

That the Minister, in the exercise of his or her discretionary power over licencing, may specify conditions of licence respecting and in support of social and economic objectives, in addition to the conservation objectives currently identified.

B.  Rebuilding Depleted Fish Stocks

In Fall 2016, the Commissioner of the Environment and Sustainable Development found that for 12 of the 15 major fish stocks that were in the critical zone and required rebuilding plans, DFO had neither plans nor timelines for developing them. The Department accepted the Commissioner’s recommendation for DFO to set out:

priorities, targets, and timelines for putting in place Integrated Fisheries Management Plans for all major fish stocks. These should include long-term, specific, measurable objectives, performance reviews, and rebuilding plans for stocks in the critical zone that are still being fished. These plans should also be made publicly accessible.[167]

In the opinion of Stephen Sutton, a revised Act should include “purposes for restoring lost or depleted populations and re-establishing fisheries.”[168] Similarly, Oceana Canada recommended to the Committee that the Act be amended to “mandate the rebuilding of fish stocks when they have fallen below healthy levels.”[169] Elizabeth Hendriks argued that quantitative definitions for overfishing and recovery, mandating recovery plans, and rebuilding timelines and targets for overfished and depleted fish stocks are required in the Act to increase political accountability and transparency.[170] In addition, Susanna Fuller proposed that an annual report to Parliament on the progress of rebuilding depleted fish stocks should be mandated.[171]

Consequently, the Committee recommends:

Recommendation 30

That any revision to the Fisheries Act should include direction for restoration and recovery of fish habitat and stocks.

C.  Legal Entrenchment of the Fleet Separation and Owner-Operator Policies

Fleet separation and owner-operator policies for inshore fisheries are in place throughout eastern Canada. They are designed to “ensure that inshore fish harvesters remain independent, and that the benefits of fishing licences flow to the fisher and to Atlantic coastal communities.”[172] The fleet separation policy keeps ownership of fish harvesting and processing sectors separate by preventing processing companies from acquiring the fishing licences of inshore vessels (those measuring less than 19.8 m or 65 ft). The owner-operator policy requires the holders of licences for inshore vessels to be present on the boat during fishing operations.

Graeme Gawn described inshore fishers as natural stewards of the marine environment upon which these fishers depend for their livelihoods.[173] Inshore fishers inherited their licences from “their great-great-grandfathers” and have developed intimate knowledge about their local environments. Graeme Gawn indicated to the Committee that the well-being and economic sustainability of eastern Canada’s fishing communities depend on the health of marine fish resources and their habitats.

In the view of Marc Allain, support for the economic sustainability of coastal communities and inshore fishers is linked to fish habitat and fisheries productivity protection.[174] Therefore, to ensure the protection of both marine fish habitat and resources and the viability of eastern Canada’s inshore fishing communities, the Canadian Independent Fish Harvesters Federation, Nova Scotia’s Eastern Shore Fisherman’s Protective Association,[175] Gulf Nova Scotia Fleet Planning Board[176], the Prince Edward Island Fishermen’s Association[177], and Quebec’s Regroupement des Pêcheurs Professionnels de la Haute et de la Moyenne Côte-Nord[178] called for the enshrinement of the fleet separation and owner-operator policies within the Fisheries Act.

Minister Steve Crocker also expressed his support for the legal entrenchment of the fleet separation and owner-operator policies as well as the DFO policy requiring that a harvester be certified as a level II professional fish harvester in order to receive the transfer of a core enterprise.[179] Marc Allain added that, without regulations tying policy requirements to the conditions of licence, these policies are subject to workarounds and violations that are difficult to track and enforce.[180]

D.  Baseline Data Collection

The Committee heard from Nick Lapointe, Canadian Wildlife Federation, that ongoing baseline assessment of fish habitat conditions across Canada is required for evidence-based decision-making and tracking of outcomes of habitat rehabilitation projects.[181] Brenda Gaertner insisted on the need for DFO’s commitment to environmental monitoring and a robust collection of baseline data in order to assess impacts of the Act on the ground.[182] The 2009 Spring Report of the Commissioner of the Environment and Sustainable Development also indicated that DFO “has limited information on the state of fish habitat across Canada – that is, on fish stocks, the amount and quality of fish habitat, contaminants in fish, and overall water quality,” and recommended that DFO “develop habitat indicators to apply in ecosystems with significant human activity.”[183]

In the view of Elizabeth Hendriks, the monitoring and reporting requirements of the Act need to be updated to include provisions for citizen monitoring. She indicated that “adequate resourcing must support these provisions so that a range of communities, Indigenous groups, and coastal communities can actively participate in monitoring.”[184]

Consequently, the Committee recommends:

Recommendation 31

That the Government of Canada address known regulatory gaps to ensure that Fisheries and Oceans Canada, in collaboration with all fisheries stakeholders, is capable of responding to all activities that are harmful to fish or fish habitat and is able to actually determine effect (e.g. ongoing collection of baseline data that allows determination of changes due to activities).

E.  Fish Passage and Environmental Flows[185]

The Committee was informed by David Browne that, although fish passage provisions in the Act were updated in 2012, they are discretionary and generally not applied. He indicated that, of more than 2,500 dams in Ontario, fewer than 50 have a fishway.[186] The impacts of dams on fish passage were also mentioned in the brief from the City of Maple Ridge, British Columbia. It recommended to the Committee to examine “legislative requirements that can assist with restoration and compensation programs for impacts on historical fisheries from existing or proposed dams and other instream infrastructure.”[187]

The Committee also heard from Lina Azeez, Watershed Watch Salmon Society, that flood control infrastructure operations are currently exempt from authorizations under the Act.[188] She indicated that these operations can have negative cumulative impacts on salmon habitat, but that current flood control standards do not consider fish passage or overall ecosystem health. Therefore, Randy Christensen proposed that fish-friendly flood control practices and the protection of environmental flows should become the norm through legislation and DFO authorizations should be required for flood control infrastructure operations.[189]

Linda Nowlan told the Committee that environmental flows are a key element in the protection of fish habitat and a renewed Act should provide a “legally binding national flow standard to conserve the quantity, timing, and quality of water flows.”[190] In her view, the Act should define conditions of flow alteration that constitute HADD of fish habitat based on advice from DFO scientists.

F.  Net Gain in Fish Habitat

David Browne advocated for a national goal of achieving a net gain in fish habitat allowing experimentation in authorizing, offsetting, and monitoring harm.[191] He pointed to habitat banking as a tool for achieving this goal and recommended DFO focus on “achieving a net gain in fish habitat in already impacted watersheds”[192] in order to not only prevent harm to fish habitat but also reverse past harm and restore ecosystems.

Jay Walmsley also mentioned conservation agreements and third-party offset habitat banks as possible “innovative and modern approaches to offsetting residual project impacts.”[193] While mentioning that it is still reviewing DFO’s 2016 Interim Fisheries Protection Program’s Guide to Proponent-led Habitat Banking, the Port of Vancouver recommended “maintaining the capability to create and bank habitat and thus contribute to an increase in habitat productivity in advance of any confirmed need for habitat offsetting.”[194]

Chief Robert Chamberlin, however, cautioned the Committee regarding habitat banking as follows:

There's this one company – I won't name the name – that was able to develop a marine bank, an area where they restored so many hundred thousand cubic metres of underwater environment. That was their bank, so they could destroy that same amount in our First Nations territory. It made no sense. It would be like tearing down the arena here in Kenora and rebuilding a new one in Toronto as some sort of way to compensate.[195]

Chief Robert Chamberlin also stressed that fish habitat mitigation measures should be developed in partnership with impacted First Nations “who hold the title for the lands where the destruction is going to occur.”

Recommendation 32

That Fisheries and Oceans Canada renew its commitment to the “No Net Loss” and “Net Gain” policies with a renewed focus, effort and resources on restoration and enhancement of fish habitat and fish productivity and that the Department allow project proponents flexibility to fulfill this requirement.

G.  Provisions Reflecting Land Claim Agreements and Indigenous Constitutional Rights

Trevor Taylor informed the Committee that, while the Act has been amended to reflect some land claim agreements in British Columbia, it was not yet modified to refer to many other modern agreements such as the Nunavut Land Claims Agreement.[196] This situation has “required the beneficiaries of this agreement and others to resort to litigation to establish that the minister's broad discretionary powers are in fact limited by the terms of Nunavut Agreement and other land claim agreements.” Raymond Andrews, Nunavut Wildlife Management Board, pointed out that fishing in Nunavut waters is still governed by the Northwest Territories’ regulations due to the lack of Nunavut-specific regulations in the current Act. ^[197]

In the view of Nunavut Tunngavik Incorporated, the lack of Nunavut Fishing Regulations “more than 23 years after the conclusion of the Nunavut Agreement is an ongoing blot on its implementation” and such regulations “could make a significant contribution to ongoing reconciliation and mutual benefit, as well as practical advantages in the form of a better regulated, more efficient, and more dynamic fishing industry in Nunavut.”[198]

The Yukon Fish and Wildlife Management Board and Yukon Salmon Sub-Committee also reminded the Committee that the lack of explicit reference and acknowledgement in the Act of the Yukon First Nation Final Agreement should be addressed.[199]

In addition, the Federation of Sovereign Indigenous Nations called for the establishment of an Indigenous Constitutional Rights Compliance Office to ensure that the Act’s decision-making processes respect Indigenous constitutional rights and fully engage Indigenous interests.[200]

CONCLUSION

In the Committee’s view, healthy fish habitat is critical for the vitality of fish populations, and by extension, for sustainable fisheries. To ensure the protection of Canadian fisheries for future generations, one of the most sensible places to start is to protect fish habitat since without healthy fish habitat there are no fisheries.

The Committee takes note of the testimony indicating that fish habitat was declining under previous versions of the Act and continues to decline today. Although the majority of the Committee believes that positive elements were introduced to the Fisheries Act in 2012, it stresses that, in light of the testimony received and in the context of environmental change, there is also room to enhance fish and fish habitat protections and fisheries management through the proposed amendments to the Act. In our view, decision-making regarding fish and its habitat and fisheries management must be transparent and guided by legislated principles based on science and Indigenous traditional knowledge.

Beyond assessing the 2012 legislative changes to the Act, the Committee considers that this review also represented a unique opportunity to modernize the Act. In our opinion, the proposed amendments included in this report reflect the values of ecosystem-based management, sustainable development, the precautionary principle and co-management in addressing fish habitat protection and fisheries management. We emphasize that this review was an open, non-partisan and not constricted by foregone conclusions process.

Regarding implementation of future amendments to the Act, the Committee calls on the federal government and DFO to develop appropriately resourced transition provisions, including having an implementation plan fully in place prior to the coming into force of any amendments.[201]