Trudeau Government Moves to Reverse Harper Government Changes to the Fisheries Act

Note: This article, by David McRobert[1] and Burgandy Dunn,[2]  is a follow up piece on the article titled “New Directions in Fisheries Act Policy and Law: An Overview of the November 2015 Federal ECCC Mandate Letter & Proposed Legislative Reforms” authored by David McRobert and Julian Tennent-Riddell and published by the Ontario Bar Association on October 20, 2017.

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One of the environmental laws in Canada that has attracted considerable attention in the past decade is the federal Fisheries Act[3].  In the late 2000s, the Major Projects Management Office established by the federal government identified the federal Fisheries Act as a primary obstacle to the development of new infrastructure such as pipelines, roads, shipping terminals, LNG facilities, electricity transmission lines, mines and other large projects that the federal and provincial governments sought to promote.

To respond to industry and government concerns, Bill C-38, the 2012 Budget Implementation Act enacted by the federal government made numerous changes to the Fisheries Act and bundled them with amendments to 68 other laws, creating a massive omnibus bill.[4]

The public first learned about the proposed Fisheries Act amendments in March, 2012, when a retired Department of Fisheries and Oceans Canada (DFO) scientist shared a leaked document. Despite advice from federal civil servants, the federal government decided unilaterally, consistent with the advice of its Major Projects Management Office and with the support of major industry lobby groups and Cabinet, to forgo consultation that might have led to compromise and increased legitimacy.

Critics immediately identified numerous flaws in the legislation which have been described elsewhere.[5] Environmental and aboriginal groups, fisheries scientists and academics and others highlighted the lack of consultation, the lack of compromise (no changes were ever made to the proposed amendments), and the parliamentary process of bundling amendments to 69 laws into one budget bill and predicted that these changes would eventually require future legislative and regulatory surgery.

One of the biggest sources of concern had to do with the process used to bring about the change. Innovative stakeholder consultation models such as round tables were used in the 1970s and 1980s, DFO and Environment Canada, the two agencies responsible for enforcing the Fisheries Act, to hammer out agreements on new amendments to the Fisheries Act and various regulations, standards and policies to protect fish habitat and water quality, among industry, environmentalists and other parties. The compromises did not always please everyone, but because all stakeholders had an opportunity to express their views and have them taken into account by policy developers and legislators, most participants were willing to live with the outcome.

In 2012, the federal government’s consultation process on the exact contours on the proposed amendments to the Fisheries Act and its various regulations, standards and policies was practically non-existent. Advice provided at standing committee hearings and in written submissions by dedicated fisheries scientists, environmental non-government organizations (ENGOs) and First Nation communities and organizations after the amendments were tabled in Bill C-38 was ignored. For example, the recommendations of Dr. Jeffrey Hutchings, president of the Canadian Society for Ecology and Evolution, and of Dr. David Schindler, representing 625 Canadian fisheries scientists, were ignored. The expected opposition from scientists and environmentalists also was bolstered by very public and previously unheard-of protests by former Conservative fisheries ministers.

To its credit, the Justin Trudeau government has taken an entirely different approach to amending the Fisheries Act and proposing changes to reverse the impact of the 2012 changes. In early February 2018, after extensive consultations pursuant to Canada’s Review of Environmental and Regulatory Processes the federal government tabled draft legislation intended to ensure that the Fisheries Act provides ‘strong and meaningful’ protection for fish and fish habitat, promotes the long-term sustainability of marine resources, and improves certainty for industry.

On February 6, 2018, Bill C-68 was introduced by the federal government “to restore lost protections and incorporate modern safeguards.”[6]  Bill C-68 amendments to fisheries legislation are significant, and serve to undo many of the changes enacted in the Jobs, Growth, and Long-term Prosperity Act[7] by the previous Harper government. Notably, Bill C-68 returns the pre-2012 fish habitat protection provisions (the prohibition on the ‘harmful alteration, disruption or destruction’ of fish habitat, often referred to as ‘HADD’).

The Bill proposes to replace s. 35(1) with the following:

“35 (1) No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.”

Further, the habitation protection and pollution prevention provisions of Bill C-68 Act will again apply, as they did pre-2012, to all Canadian fisheries waters, restoring the comprehensive protection against harming all fish and fish habitat, (not only aboriginal, commercial and recreational fisheries, as was the case post-2012).[8] The prohibition on the deposit of deleterious substances, which has been in places since 1977, remains intact under Bill C-68. Certain additions which were made in 2012, such as increased penalties, an extended limitation period, and broader self-reporting requirements, have been maintained under Bill C-68.[9]

Included in Bill C-68 is a new purpose clause, which states that it is the purpose of the Act “to provide a framework for (a) the proper management and control of fisheries; and (b) the conservation and protection of fish and fish habitat, including by preventing pollution.” Bill C-68 also provides for the creation of new fisheries management tools to enhance the protection of fish and ecosystems.[10]  Tools to ensure ‘no net loss’ which appeared previously only in supporting policy documents, are now explicitly referenced in Bill C-68.  For instance, the new prohibition on harm to ecologically significant areas[11] provides that ministerial authorization may be given if the Minister is satisfied that avoidance and mitigation measures may be implemented to achieve objectives for the restoration and protection of fish and fish habitat.[12] Other new protections for fish and fish habitat, include: empowering the Minister to establish targeted short-term fisheries management orders prohibiting or limiting fishing for a period of 45 days to address a threat to the proper management and control of fisheries and the conservation and protection of fish; the ability to create long-term area-based restrictions on fishing activities to protect marine biodiversity; a prohibition on fishing for cetaceans with the intent to take them into captivity unless authorized by the Minister; provisions for the restoration of degraded habitat; and the power to make regulations for the purposes of the conservation and protection of marine biodiversity, and respecting the rebuilding of depleted fish stocks.[13] Further, when making regulations or orders, under the fish habitat and pollution prevention provisions in the Fisheries Act, the Minister can be guided by principles of sustainability, precaution, and ecosystem management.[14]

The Bill also presents a new permitting framework and the power to establish standards and codes of practice for (a) the avoidance of death to fish and harmful alteration, disruption or destruction of fish habitat; (b) the conservation and protection of fish or fish habitat; and (c) the prevention of pollution.[15] In the mid 2000’s, a risk-based approach was implemented by the Department of Fisheries and Oceans, under the Environmental Process Modernization Plan (EPMP), and the use of Letters of Advice and Operational Statements, extra-regulatory policy tools intended to promote compliance and divert projects from requiring an authorization (and in turn a federal environmental assessment). The 2012 changes to the Act formalized this approach and adopted broader regulatory powers to establish tools under which projects could proceed without authorizations, an approach continued by Bill C-68.[16] Bill C-68 also expands regulation-making authority to authorize works to include both individual and ‘classes’ of works. The new permitting framework also introduces a permitting scheme, whereby projects, prescribed by regulation, will be ‘designated’ and required to have a permit. [17]

Bill C-68 also lists factors which the Minister may consider in decision-making under the Act, including (a) the application of a precautionary approach and an ecosystem approach; (b) the sustainability of fisheries; (c) scientific information; (d) traditional knowledge of the Indigenous peoples of Canada that has been provided to the Minister; (e) community knowledge; (f) cooperation with any government of a province, any Indigenous governing body and any body — including a co-management body — established under a land claims agreement; (g) social, economic and cultural factors in the management of fisheries; (h) the preservation or promotion of the independence of licence holders in commercial inshore fisheries; and (i) the intersection of sex and gender with other identity factors.

Further, a set of factors is laid out which must be considered for prescribed decisions: (a) the contribution to the productivity of relevant fisheries by the fish or fish habitat that is likely to be affected; (b) fisheries management objectives; (c) whether there are measures and standards (i) to avoid the death of fish or to mitigate the extent of their death or offset their death, or (ii) to avoid, mitigate or offset the harmful alteration, disruption or destruction of fish habitat; (d) the cumulative effects of the carrying on of the work, undertaking or activity referred to in a recommendation or an exercise of power, in combination with other works, undertakings or activities that have been or are being carried on, on fish and fish habitat; (e) any fish habitat banks that may be affected; (f) whether any measures and standards to offset the harmful alteration, disruption or destruction of fish habitat give priority to the restoration of degraded fish habitat; (g) traditional knowledge of the Indigenous peoples of Canada that has been provided to the Minister; and (h) any other factor that the Minister considers relevant.[18]

Bill C- 68 amends the provisions introduced in 2012 allowing for the development of equivalency agreements by recognizing Indigenous governments and giving them equal footing to enter into equivalency agreements with the federal government. The Bill provides for the standing down of the federal Act where provisions equivalent in effect are in force in the province or the territory governed by the Indigenous governing body.[19] Bill C-68 also expands the role of Indigenous groups in project reviews, monitoring, and policy development^.;[20] part of the federal effort to renew its relationship with Canada’s Indigenous peoples.[21]

The federal government has stated that proposed changes in Bill C-68 will help to advance reconciliation with Indigenous peoples by, as noted above, requiring the minister and delegated decision makers to consider traditional knowledge when making habitat decisions[22] and evaluating the adverse effects on the rights of Indigenous peoples when making decisions under the Act. [23]  Bill C-68 also proposes to expand and codify regulations under the Act which allow for provision of enabling agreements with Indigenous governing bodies to carry out the purposes of the Act. In addition, the legislation would establish a modernized fish habitat protection program that would enhance partnering opportunities with Indigenous communities regarding the conservation and protection of fish and fish habitat.

Although the proposed legislation augments Indigenous peoples in the decision-making and provides the government discretion to delay or refuse decisions lacking consent from Indigenous groups, note that Bill C-68 does not  make reference the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) or the concept of “free, prior and informed consent.”[24]

Bill C-68 also addresses concerns with respect to transparency and public participation in decision-making by providing for the establishment of an online public registry on which regulatory instruments, guidelines and policies, as well as authorizations or permits issued under the Fisheries Act will be publicly available. [25]

In terms of enforcement, certain 2012 changes, such as steeper fines, have been retained in Bill C-68, however, the Bill is intended to clarify and modernize enforcement powers.[26] Bill C-68 includes the ability to address offences outside of courts using alternative measures agreements, in order to reduce costs and deter repeat offences. The Bill also is intended to provide for improved enforcement capacity,[27] and provides for the setting of fees, including for the provision of regulatory processes.[28]

Bill C-68 is an important effort to address concerns that arose after the enactment of the Jobs, Growth and Long-term Prosperity Act in 2012. DFO has indicated that regulations and policies in support of implementation of Bill C-38 are now being developed in consultation with Indigenous groups, industry officials, ENGOs, the provinces and other stakeholders. The exact implications of Bill C-68 will become more apparent once the regulations and updated policies and procedures under the new law are enacted. In addition, it will be necessary to evaluate the impact of other proposed amendments to the Canadian Environmental Assessment Act, the Navigation Protection Act, the National Energy Board Act and various other federal laws contained in Bill C-69, also tabled in early February 2018.