The Fisheries Act (Canada) is undergoing changes that will have
an impact on the regulation of Canada's fish habitats and
waterways. An initial set of amendments came into force on July 18,
2012. A second set of amendments will come into force at a yet to
be set date. The initial amendments are noteworthy, but it is the
second set of amendments that are poised to significantly change
the focus of the Act. While the Minister of Fisheries and Oceans
has described the amendments as establishing priorities and
"focusing protection on real and significant threats" to
fisheries and habitat, environmental groups have argued that the
amendments will result in a significant reduction in the federal
protection of fish habitat.
The initial changes include the following:
The addition of the word "activity" to s. 35 (the
commonly used offence provision) of the Act, which now reads:
"No person shall carry on any
work, undertaking or activity that results in the harmful
alteration or disruption, or the destruction, of fish
The addition of the word "activity" is not anticipated
to have any impact on businesses. It was incorporated to catch
non-commercial recreational activities such as ATVing, which could
harm fish-bearing streams or rivers.
The clarification of the duty to report harm to fish habitat by
repealing the ambiguous reporting requirements under s. 38(4), and
providing that a report in writing MUST BE made when there has been
harmful alteration, disruption or destruction to fish habitat, or
the deposit of a deleterious substance in water frequented by fish,
that is not authorized by the Act.
The "extension" of the limitation period for the
prosecution of summary offences. Under the old Act, the Crown had
two years from the date the Minister became aware of the subject
matter of the offence to institute proceedings. Under the new Act,
the time limit has been extended to five years, but the clock
begins to run from the date the offence was committed.
Under the second set of Amendments, the most significant changes
Section 35 of the Act will be rewritten, replacing the above,
with the following:
"No person shall carry 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."
Section 35 will no longer focus on fish habitat; the focus will be
on fisheries. For the section to apply, there must be serious harm
to fish "that are part of" a fishery. The protection of
fish habitat is not completely lost, however, as it is referred to
in the definition of serious harm.
"Serious harm" means:
"the death of fish or any permanent alteration to, or
destruction of, fish habitat".
Notably, the old section prohibited "harmful alteration or
disruption", whereas the new section only prohibits
"serious harm" which is defined as "permanent
alteration or destruction". The inclusion of the word
"permanent" and the deletion of the word
"disruption", along with the use of the phrase
"serious harm", indicates that the section will no longer
apply to temporary disruptions to fish habitat that do not result
in the death of fish.
The new definitions of "commercial",
"recreational" and "Aboriginal" fishery are
also significant. Those definitions state that the fishery will
only be protected if the fish are presently (as opposed to in the
past or future), being harvested.
Although s. 35 and these definitions will pose interpretative
challenges, the intent of Parliament seems clear: a change of focus
away from protecting fish habitat and towards protecting
Increased fines and mandatory minimums will be implemented.
Under the current Act, the penalty for a summary offence is limited
to $300,000 and the penalty for a indictable offence is limited to
$1,000,000. Repeat offenders are subject to the same fines but can
Under the amendments, there are increased minimum and maximum
fines. The new provisions also draw a distinction between
individuals, small revenue corporations (defined as corporations
with yearly revenues of $5 million or less), and corporations.
Individuals and small revenue corporations will face significantly
lower fines than corporations. The maximum and minimum fines for
corporations will be as follows:
1. Summary Offence: Minimum $100,000; Maximum
2. Repeat Summary Offence: Minimum $200,000;
3. Indictable Offence: Minimum $500,000;
4. Repeat Indictable Offence: Minimum
$1,000,000; Maximum $12,000,000.
Thus, the maximum penalty for an indictable offence under the
old Act ($1,000,000), will become the new minimum for an indictable
offence for a repeat offender.
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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