|
1. Why Renew the Fisheries Act?
The current Fisheries Act does not meet Canadians' expectations for modern, transparent, inclusive and accountable government. The existing Act was enacted in 1868 and a lot has changed in the past 139 years.
The current system lacks transparency. For instance, the Minister (and, by association, department officials) has discretion over decision-making relating to all aspects of the fishery without having to meet standards, goals or objectives provided for in legislation.
The current Act lacks stability. The Minister can currently be lobbied for preferred access and allocations. It also lacks predictability. It does not set out a purpose for the fisheries, such as sustainable development or conservation, and does not obligate the Minister to act in a way to meet a particular purpose.
Finally, it does not respond to the needs of current day fisheries. We are unnecessarily dependent upon the courts for prosecuting fisheries offences, and the punishments do not necessarily fit the crime, resulting in a system where offenders view their fines as a "cost of doing business". There is little incentive for resource users to take greater responsibility and accountability for the resource which is ultimately required to meet conservation objectives. The resource has changed, the fishing industry has changed and resource users have changed. The current act does not reflect any of the changes the fishery has withstood.
2. Will C-45 increase the Minister's discretionary authority?
No. In fact, Bill C-45 seeks to increase transparency and provide stability, requiring the
Minister to adhere to clearly stated principles and invite input from the people involved in the
fishery.
The current Fisheries Act gives the Minister “absolute discretion” to issue fishing licences. You
cannot get more authority to manage the fishery than the Minister of Fisheries and Oceans currently
has. Plus, there is no requirement for him or her to explain their actions. The fishing industry
and provinces have told us repeatedly that they want a system that is transparent and predictable,
and based on cooperation among governments and stakeholders. Bill C-45 provides for a system where
everyone knows the rules and understands how, and why, decisions are made. This is something the
current Act lacks.
Under C-45, the Minister is not being given more discretionary powers to manage commercial, recreational and Aboriginal fisheries. The Minister would retain his authority to make access rules and allocation decisions, within certain parameters. Under C-45, the Minister would lose his absolute discretion. Departmental officials would issue licences based on regulations, and appeals of licensing decisions become the responsibility of an arm's length body – not the Minister.
3. Will fisheries resources remain common property under C-45?
Yes. The Supreme Court of Canada has confirmed that Canada's fisheries resources are a common
property, belonging to all the people of Canada. Nothing in C-45 contradicts this. In fact, C-45
is based on this very premise. The concept of a common property resource is affirmed in several
sections of the new Fisheries Act, including the preamble, guiding principles and Section 25. This
proposed Fisheries Act sets in place rules so that Canadians can continue to engage in
fishing activities now and in the future.
The Supreme Court also stated that the Minister has the duty to manage, conserve and develop the
fishery on behalf of Canadians in the public interest. Under C-45, this public resource will
continue to be managed on behalf of the public, by a public authority and in the interest of
Canadians.
4. Will the public right to fish be changed by C-45?
No. What is currently considered to be the "public right to fish" does not change under Bill C-45.
There has been a common law right to fish in tidal waters recognized since the Magna Carta in 1215. However, the Supreme Court of Canada has said that this right could be limited by the enactment of legislation. Parliament limited the common law right to fish by passing the Fisheries Act in 1868. Appropriate legislation and regulation were required to prevent disorder on the water and to protect the health of fish stocks. The Fisheries Act, and the regulations passed pursuant to it, have controlled fishing in Canada since that time.
The text of the existing Fisheries Act does not specifically refer to the public character of the management of the fisheries nor does it set out guidance to decision-makers on the management of the fisheries resource in such a way as to preserve an interest in the fisheries for Canadians.
Bill C-45 does both of these things. First, the preamble declares that "Parliament is committed to maintaining the public character of the management of fisheries and fish habitat." Secondly, section 25 states the Minister can take into account "the importance of maintaining public access to the fishery" when making licensing and allocation decisions.
5. Why are Licences a privilege, not a right?
A licence is an instrument by which an authority grants permission to do something based on eligibility criteria. A licence issued to a person who meets the eligibility criteria is not transferable. For instance, one cannot transfer a driver's or hunting licence to another person. The Minister must assess someone's eligibility on a case-by-case basis before granting a licence. A licence is a privilege, not a right.
Access to most natural resources in Canada is controlled through licensing regimes. Uncontrolled access could jeopardize the sustainability of the resource. A fishing licence is an instrument by which the Minister of Fisheries and Oceans, with authority of the Fisheries Act, grants permission to a person to harvest certain species subject to the conditions attached to the licence. Bill C-45 states that licences grant a privilege, not a right of property. This reflects existing law. A licence only grants someone a privilege to access the common property resource.
6. Can licences be transferred under C-45?
There have been a lot of questions raised regarding "licence tranfers" and how this will work under Bill C-45. It is correct that Section 30 of the new Act states that "licences grant a privilege, not a right of property, and may not be transferred." It is important to note that this reflects existing law and practice; meaning, nothing changes under C-45.
Today, a fisher does not "transfer" a licence to a new person. He submits to DFO a request that the department consider issuing a new licence to a specific person that the current licence holder recommends, for example a son or daughter. DFO then considers the request and based on the statute and applicable policies determines whether the person meets the eligibility criteria for this particular licence and, if so, the Minister would then issue the licence to the new holder. This is how things are done today; under C-45, licensing regulations will continue to provide for "requests for transfer".
7. How will allocation decisions change under C-45?
Let's start with an accurate explanation of allocations. A total allowable catch
(TAC) is determined on an annual basis for a specific fishery in a specific area
based on the best science available, taking into account the traditional knowledge
and the impacts on the ecosystem as a whole of this catch. Allocations are the amount,
or share, of the TAC that is distributed by the Minister to those permitted to harvest
the resource.
Currently, allocation decisions are made annually at the Minister's discretion,
based on whatever factors he considers relevant. Since 2004, allocations have been
stabilized in most commercial fisheries through policy, providing a greater degree
of predictability for industry. By removing uncertainty, resource users have more
assurance of access, which allows them to focus their efforts on their business
operations.
To secure the progress made in stabilizing allocations, Bill C-45 proposes that
the Minister may provide longer term allocations. In addition, the Bill guides the
Minister's decisions on allocations through considerations that he must take into
account when making allocation decisions and requires that these decisions be published.
These changes to the Act will provide more stability, predictability and
transparency for the fishery.
8. Will C-45 provide special access to Aboriginal fishers?
C-45 does not specify access for any participants in the fishery.
Aboriginal and treaty rights are protected by Section 35(1) of the Constitution Act, 1982 which states, "the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." The preamble of Bill C-45 specifically refers to Section 35(1). In addition, one of the stated principles of the Bill is that those involved in the administration of the Act must seek to manage fisheries and conserve and protect fish and fish habitat in a manner that is consistent with the constitutional protection provided for existing Aboriginal and treaty rights.
9. Will the proposed Fisheries Act privatize the fishery?
No. Bill C-45 will authorize the Minister to sign binding fisheries management agreements with commercial, Aboriginal and recreational groups regarding the management of their respective fisheries. Responsible groups of commercial and Aboriginal fishers, in particular, have demonstrated a willingness to take on significant operational roles and exercise a collective discipline over their members. These management agreements could address fleet planning, program delivery and administration of licensing functions. They will not "privatize" or delegate the Minister's authority and responsibility for fisheries management.
10. Will Bill C-45 limit recreational fishing opportunities?
The Fisheries Act, and the regulations passed pursuant to it since 1868, has limited the common law right to fish. The Act and regulations have controlled commercial and recreational fishing in Canada since 1868. In terms of recreational fishing, this legislative and regulatory control takes the form of daily catch limits, closed times, closed areas and/or restricted waters. The federal government has delegated the management of freshwater fisheries to many provinces and the Yukon Territory through intergovernmental agreements, regulations and other measures.
Recreational fishing is an important component of fisheries management; it is important to Canadians and it is a significant contributor to Canada’s economy. Bill C-45 recognizes the importance of the recreational fishing sector and affirms the importance of recreational fisheries through the preamble, application principles, licensing and allocation considerations.
The Preamble, for instance, recognizes several key values of interest to recreational fishers including: stable access to fisheries resources; commitment to maintaining the public character of the management of fisheries and fish habitat; and recognizing the desire of recreational fishers, among others, for more direct participation in decisions respecting the future of Canada’s fisheries and the management of their harvesting of fish.
Bill C-45 provides a transparent framework for fisheries decision-making that will include the interests of recreational fishers and balance these interests with those of the resource and other fishing sectors.
11. Will the new Fishery Management Agreements proposed in Bill C-45 mean a loss of accountability in Ministerial decision-making?
No. In fact, Bill C-45 could create greater opportunities for transparency, accountability and
collaboration between the Minister and responsible groups in the fishery.
Most importantly, access policies and allocation decisions would remain the exclusive
responsibility of the Minister and would not be addressed in Fishery Management Agreements (FMAs).
FMAs and allocation decisions would be managed separately.
With legally binding FMAs, the Minister and fisheries organizations would share in the
responsibility for the programs, processes and decisions covered by the agreements. Some groups of
fishers have demonstrated a willingness to take on significant operational roles and exercise a
collective discipline over their members. A FMA could deal with such subject matters as the
process for establishing fishing plans, the scope and funding of scientific surveys and
responsibilities for routine licence administration. The provisions of FMAs would vary depending
on the willingness and capacity of each organization to take on a greater role in the day-to-day
management of those fisheries. Bill C-45 would enhance transparency around these decisions and
would require the Minister to publish these agreements.
12. Why doesn't the proposed Fisheries Act deal with the owner-operator issue?
Owner-operator is a separate issue, and will be dealt with by policy, not
legislation. See Canada's New
Government Announces A New Approach to Canadian Fisheries for more
information.
13. Does C-45 weaken conservation and protection of fish and fish habitat?
No. Bill C-45 strengthens the protection of the fisheries resource and fish habitat.
The current Fisheries Act does not provide a clear link between
fish habitat protection and fisheries management. Bill C-45 fixes that in a variety
of ways. Under C-45, DFO is committed to achieving a better understanding not only
of the fish resources being harvested, but of the effect of the environment on fisheries
resources and the impacts of fishing on other species and on fish habitats.
When making fisheries management decisions, the department will take into account
a broader set of factors, including predator-prey relationships, the effects of
weather and climate, interactions between fish and fish habitat, and impacts of
fishing gear on fish habitats. It also means more explicitly accounting for uncertainty
and possible risks to fish resources.
Under the new Act, these factors will be applied in consultation with stakeholders.
This will result in decisions that are more transparent and based on criteria that
is more comprehensive.
14. Does Bill C-45 provide effective conservation and protection of fish and habitat as well as prevention of pollution?
Yes. The current Fisheries Act is recognized as one of the strongest pieces of legislation to protect aquatic ecosystems in the country. C-45 adds to these strengths and reemphasizes the Minister's commitment to effective conservation and protection of fish and fish habitat and prevention of pollution. Bill C-45 recognizes that conservation and protection of fish habitat and prevention of pollution are essential elements of the management of Canada's fisheries, something the current Fisheries Act does not.
Section 6 (Application Principles) requires that sustainable development and the ecosystem and precautionary approaches be taken into account, and decisions are based on the best scientific information available. The Minister will be obligated under section 25 to clearly demonstrate how fish and fish habitat conservation and protection have been considered in making licensing and allocation decisions.
The general prohibition on the harmful alteration, disruption and destruction of fish habitat (S.35 of the current Act) and the discharge of a deleterious substance (S. 36 of the current Act) remain as the cornerstone for the conservation and protection of fish habitat (S.59, 60 of C-45). Decisions made under these sections which currently are triggers for the Canadian Environmental Assessment Act (CEAA) will remain as triggers under the new Act.
Please see additional section by section improvements under C-45:
- Section 57 will allow the Minister to request information, removal or modification of obstructions to fish passage.
- Section 66, conditions of authorizations, for activities such as compensation, mitigation measures and monitoring, will now be enforceable.
- Sections 73, 78 and 79 for Administration and Enforcement detail the expansion of the powers of inspectors to deal with both the conservation and protection of fish and fish habitat and pollution prevention provisions to better verify compliance with Ministerial directives.
- Implement new tools to control the impact of aquatic invasive species on fish or fish habitat.
15. Will C-45 delegate Ministerial powers related to fish habitat conservation and
protection to the provinces?
No. Under the new Act, the Minister's powers and authority with regard to fish
habitat protection will not be delegated. Accountability will continue to rest with
the Minister. The new Act will allow for more efficient administration of this authority.
It will avoid overlap and duplication by providing for the recognition of provincial
regulations should they provide equivalent protection and if they are implemented
and enforced.
The new Act will allow federal and provincial governments to jointly agree that
a provincial regulation will be used, and that the federal regulation will cease
to apply in that province, in cases where the province's statute or regulation
meets or exceeds the standards in the federal regulation. The scope of equivalency
is likely to be limited to a narrow set of activity-specific impacts, such as pulp
and paper effluent control. In these cases, the Minister will not relinquish his
responsibility or decision-making authority. The federal and provincial governments
will jointly agree on a monitoring and enforcement regime. Equivalency can
be repealed if provincial regulatory provisions no longer meet national norms or
are not being adequately applied or enforced.
Under Bill C-45 the department will not delegate decisions that trigger an environmental
assessment under the Canadian Environmental Assessment Act (CEAA) to the
provinces. Equivalency arrangements with provinces will not alter the relationship
between the Fisheries Act and the Canadian Environmental Assessment Act.
16. How will C-45 improve environmental assessments and strengthen fish habitat conservation
and protection?
The current Fisheries Act provides for a general prohibition on harming
fish habitat unless the harm is authorized. This authorization automatically triggers
the need for an environmental assessment. Bill C-45 does not change this. However,
C-45 will provide, but not require, an opportunity to do business in a different
way.
Bill C-45 will give us new tools to streamline the process for reviewing projects
which may harm fish habitat. Right now, there's no distinction in the Act between
how a large or small project is reviewed. The new Act enables the government to
make regulations to allow low risk activities to go forward and to focus on activities
that have a higher risk of causing harm to fish habitat, like large-scale developments.
Members of the public and concerned groups will be given a more active role under
the new Fisheries Act. The creation of any regulation will be done in a transparent
manner and involve an open consultation process. The department will work collaboratively
with its partners and stakeholder groups to develop regulations that allow for economic
development while maintaining the highest standards for fish habitat protection.
Some would argue that the development of regulations leads to more objective
application of the Act because the standards would be set in advance and would be
public so they would be transparent and predictable. It would allow the department
to concentrate habitat reviews and environmental assessments on projects where the
risks of harming fish habitat are greatest.
17. Did Fisheries and Oceans Canada (DFO) consult with Canadians on the proposed Fisheries Act?
Yes. Bill C-45 grew out of hundreds of fisheries renewal consultations and information sessions from coast to coast to coast designed to build a modern fisheries management regime that meets the challenges of the 21st century. Work on a renewed Fisheries Act has been ongoing for a number of years.
Over a span of several years, the department conducted its largest-ever engagement process. Virtually everyone associated with the fishery has had the chance to make their views known on what works in the current Act, and what doesn't work. For example, DFO officials met 305 different Canadian stakeholder groups to discuss the modernization initiative between August 2005 and December 2006.
Did anybody see the actual contents of the legislation before Bill C-45 was tabled? No. Members of Parliament have the privilege and the legal right to be presented first with the bill in the House of Commons. To show stakeholders the words of the text in advance would violate the Canadian Evidence Act. Does C-45 contain the principles, themes and common-sense ideas that blossomed into a modernized Fisheries Act? Absolutely. It was stakeholders themselves who painted the picture of what they wanted.
18. What is the current status of Bill C-45?
Bill C-45 is currently in second reading in the House of Commons, awaiting a vote by Members of Parliament to refer the proposed legislation to the Standing Committee on Fisheries and Oceans. Debate on the Bill will resume in the House of Commons after the Summer break.
Once referred to Committee, a thorough review of the Bill text will be conducted and the Committee will consider whether sections of the Bill need to be amended. Individuals and organizations will be able to participate in this process and provide input to the Committee.
19. Will the public have an opportunity to express their views on Bill C-45?
Yes. Since the Act has been tabled and made public, DFO has held information sessions with hundreds of groups including Aboriginals, provinces/territories, fishing groups, industry, and ENGOs to answer questions and to receive feedback. Formal consultation on the Bill will take place through the Parliamentary Process, where there is an opportunity for stakeholders to express their views on Bill C-45 and for changes to be made to the Bill text.
The opportunity to provide input is through the review and study of the bill
by the Standing Committee on Fisheries and Oceans. The role of the committee is to review the text of the bill and approve or modify it. It is at this stage that the committee may invite individuals and representatives of organizations that have an interest in the legislation to provide comments either in writing or by personal appearance.
The public will again have an opportunity for input as the Bill goes through
a similar process in the Senate before it can receive Royal Assent. The public
can contact their Members of Parliament with views on Bill C-45.
20. Can changes or amendments to the proposed Fisheries Act occur after Second Reading debate,
once it reaches the Committee stage?
Yes. The purpose of Second Reading is to provide Members of Parliament the opportunity to hold a
general debate on the principles and general scope, and not its individual provisions. Once Second
Reading debate concludes, the Speaker tables a motion for Members to vote on whether the Bill should
to be referred to committee (standing, special or legislative) for detailed scrutiny.
During consideration in committee, Members examine the clauses of the bill in detail. It is at
this stage that they have their first opportunity to propose amendments to the text of the bill. It
is also at this step that individuals and representatives of organizations that have an interest in
Bill C-45 will be invited to express their views and to make recommendations for changes to be
made to the Bill text. Witnesses may either appear before the committee or provide a written
submission most likely to members of the Standing Committee on Fisheries and Oceans
Please visit this
link on the Government of Canada's Parliamentary website for further
information about ‘Stages in the Legislative Process'.
|
