Canada: Proposed Amendments To The Fisheries Act

The federal government's proposed amendments to the Fisheries Act may be seen as much needed measures to modernize, focus and streamline Canada's key piece of legislation protecting the national fisheries resource. With legislative change, and as yet unrevealed implementing regulations, comes a measure of uncertainty and concern, but the proposed legislative framework holds promise that the intent may indeed be achieved.

The proposed amendments are contained within the federal budget implementation bill tabled March 29, 2012, Bill C-38, at Division 5. They are to be staged, in two parts: one set of amendments to take effect on the passage of the bill, and the other to take effect on a later date to be set by Order-in-Council.

The legislation contains measures which would enable the elimination of jurisdictional inconsistencies, duplicative regulatory structures and conflicting standards across the country. The legislation would permit the federal government and the provinces to enter into agreements for joint action in areas of common interest, to establish joint administrative structures, and to harmonize policies and standards. As well, the federal government may make a determination that there is in force in a province provincial law equivalent to federal regulation, and it may accordingly declare the relevant part of the federal Act or regulations inoperative in the province in that respect.

An important component of the Fisheries Act has been and continues to be its prohibition against pollution. This is expressed as a prohibition against the deposit of a deleterious substance into waters frequented by fish. It has been the subject of considerable judicial interpretation, the essence of which has been that unless authorized, there is virtually zero tolerance in Canada for the release of any quantity of any substance which is harmful to fish in any waters which contain fish, whether or not actual harm to fish is proven to occur.

While the current Fisheries Act contains provision allowing for the authorization of the deposit of deleterious substances in waters frequented by fish, the authorization provisions proposed in this legislation are enhanced. Regulations could authorize deposits by class of substance, by class of waters or places, or deposits resulting from prescribed works, undertakings or activities, subject to conditions. Accordingly, without yet having the benefit of the proposed regulations, the scope of the exceptions to be created and the compliance conditions for such exceptions are unknown. However, there may be greater relief available for industry from the zero tolerance regime than there now is for planned and managed emissions within regulatory limits, while other deposits of deleterious substances to waters frequented by fish will remain strictly prohibited.

The Fisheries Act also protects Canada's fisheries resources through its provisions for the protection of fish habitat. It is prohibited to carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat, unless an approval is obtained or the work is in compliance with a regulation. This may range from establishing a mine tailings pond or a hydro-electric dam, or to the construction of a dock or an erosion prevention wall at one's summer cottage, or even the construction or alteration of inland ponds on a golf course. The focus of the prohibition is broad, and arguably inclusive of the trivial along with significant works and projects, all subject to the same provision of the Act.

The amendments to this part of the Fisheries Act would be staged. In the first phase, to come into effect on the passage of the bill, "activity" is added to "work" and "undertaking" as something captured by the prohibition against harmful alteration, disruption or destruction of fish habitat. A definition is added for "fish habitat". There would be enhanced authority for the government to make regulations to exempt works, undertakings, and activities subject to compliance with prescribed conditions. As well, the Minister could issue approvals for specified works, undertakings or activities, and may impose conditions for compliance. Furthermore, regulations may permit certain persons to carry on works, undertakings or activities which would otherwise be prohibited as harmful. Also exempt from the prohibition would be harm resulting from the doing of anything authorized under the Act, as well as works, undertakings or activities carried out in accordance with the regulations.

In the second phase of implementation, to take effect on a future enactment date, there will be a significant change: the protection of fish habitat would be removed and replaced with a prohibition against works, undertakings or activities that result "in serious harm to fish that are part of a commercial, recreational, or Aboriginal fishery, or to fish that support such a fishery". There is a clear resolution of focus on the three fisheries, on fish as opposed to fish habitat, and upon serious harm as opposed to any harm. A further narrowing of focus may be afforded by regulation, as the government may exclude designated fisheries from the definitions of Aboriginal, commercial and recreational fisheries.

The Fisheries Act is also to be amended to enhance the government's enforcement capabilities. Among the changes to be made are those which will strengthen the self-reporting requirements of the Act, the powers of officers and inspectors and increases in the penalties which may be imposed upon conviction.

Under the present Fisheries Act, there is some ambiguity with respect to the scope of the self-reporting requirement, and in particular whether there is only a reporting obligation if such is prescribed by regulation. The amendment proposed resolves this issue, and establishes a reporting obligation if there is an unauthorized harm to fish habitat or the unauthorized deposit of a deleterious substance, or a serious or imminent danger of either. It also establishes a remedial obligation upon the responsible person, as well as a post-incident written reporting obligation. In phase two, the reporting obligation would exist in the case of a serious harm to fish that are part of the fisheries, rather than in relation to harm to fish habitat.

The provisions of the Fisheries Act regarding the authority of officers and inspectors are to be replaced with a new provisions which will clarify their inspection and investigation powers, including their authority to enter premises with and without a warrant.

The amended penalty provisions of the Fisheries Act will establish significant minimum and maximum fine ranges for convicted individuals and corporations, with a somewhat lesser fine range for "small revenue corporations", i.e., those corporations with gross revenues of less than $5,000,000 in the preceding 12 months. Depending on the section contravened and whether it is first offence or not, for individuals, the minimum fine is from $5,000 for a less serious offence and $30,000 for a second or subsequent conviction for a more serious offence; and the maximum range is from $300,000 to $2,000,000 with up to 3 years imprisonment if convicted on indictment for a second or subsequent offence. For corporations that are not small revenue corporations, the minimum fine on conviction for a less serious offence is $100,000, and $1,000,000 for a second or subsequent conviction on indictment; while the maximum penalty for a less serious offence is $4,000,000 and for a second or subsequent conviction on indictment is $12,000,000.

Responding to the concern regarding the risks posed by invasive species in Canadian waters, the Act will allow the government to establish a list of aquatic invasive species, and to establish regulations respecting the control of aquatic invasive species.

Bill C-38 contains significant substantive amendments to the Fisheries Act. The announced intent is to establish a more focused legislative and regulatory regime, directed to real and significant threats to Canada's fisheries, to establish clear and consistent national standards and guidelines, and to provide the necessary tools and consequences for effective enforcement. We'll watch with interest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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