On August 28, 2018, Prime Minister Trudeau issued a fresh mandate letter to Canada’s new Minister of Fisheries, Oceans and the Canadian Coast Guard, the Honorable Jonathan Wilkinson, who was appointed on July 18, 2018.
The minster is directed to implement and develop the Oceans Protection Plan; to achieve the government’s goal of protecting 10 per cent of its marine and coastal areas by 2020; to implement the G7 Charlevoix Blueprint for Healthy Oceans, Seas and Resilient Coastal Communities and the G7 Ocean Plastics Charter; to protect Canada’s fresh water, restore salmon stocks in the Fraser River, and to create a healthy future for Pacific salmon by 2019; and to formalize the moratorium on crude oil tanker traffic on British Columbia’s North Coast.
Also included in this list of top priorities is to advance Bill C-68, the reform of the Fisheries Act. Bill C-68 is currently in the Senate, where it passed first reading on June 20, 2018.
The Fisheries Act is one of the oldest pieces of federal legislation in Canada, and arguably the oldest piece of federal environmental legislation in Canada.
The mandate letter says that passage of the Bill C-68 will “restore lost protections, and incorporate modern safeguards so that fish and fish habitat are protected for future generations and so that Canada’s fisheries can continue to grow Canada’s economy and sustain coastal communities.”
The reference to “restor[ing] lost protections” is commonly understood as reversing the changes that the previous government made to the Act in 2012, specifically altering the Acts protection for fish and fish habitat in sections 32 and 35. At that time the government was heavily criticized by environmental groups for weakening the fish and fish habitat protections of the old Act.
The three iterations of these key fish and fish habitat provisions, are set out below:
The pre-2012 definition:
S. 34(1): “fish habitat” means spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes;
S. 2(1) “fish habitat” means 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.
New Bill C-68 definition:
S. 2(1) “fish habitat”?means water frequented by fish and any other areas on which fish depend directly or indirectly to carry out their life processes, including spawning grounds and nursery, rearing, food supply and migration areas;
Fish and Fish Habitat Protection Provisions:
The pre-2012 protections:
S. 32: No person shall destroy fish by any means other than fishing except as authorized by the Minister or under regulations made by the Governor in Council under this Act.
S. 35(1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.
S. 35(1) 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.
S. 2(2) For the purposes of this Act, serious harm to fish is the death of fish or any permanent alteration to, or destruction of, fish habitat.
New Bill C-68 protections:
S. 34.4(1) No person shall carry on any work, undertaking or activity, other than fishing, that results in the death of fish.
S. 35(1) No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.
Arguably, the major change in 2012 was to overtly link the fish and fish habitat protection provisions of the Act to the protection of “commercial, recreational or Aboriginal fisher[ies].” This is clearly being undone by Bill C-68. In fact, the new Act includes a Purpose section that makes it clear that the powers of the Fisheries Act are for both (a) “the proper management and control of fisheries” and (b) “the conservation and protection of fish and fish habitat”. That is, the powers of the Fisheries Act are not limited to regulating and protecting fisheries, rather the Act authorizes government action to protect fish and fish habitat as a purely environmental matter.
Other interesting amendments to the Act include a new section 2.5, which lists the considerations which may influence governmental decisions under the Act. These include: the application of a precautionary approach and an ecosystem approach; the sustainability of fisheries; scientific information; traditional Indigenous knowledge; social, economic and cultural factors in the management of fisheries; and the intersection of sex and gender with other identity factors.
Also of note, the new Act would explicitly permit “habitat banking”, which was described by the Minister when the Act was introduced as “an international best practice for offsetting project impacts where a freshwater or marine area is created, restored, or enhanced by working to improve fish habitat in advance of a project’s impact.” Habitat banks are areas where fish habitat has been created, restored or enhanced and then used to offset impacts to fish habitat from a future development.
Fisheries and Oceans Canada released a Consultation Paper titled “Approach to a key regulation under the proposed fish and fish habitat provisions of the Fisheries Act” which further explorers this concept of habitat banking, and is accepting comments from the public on the proposal until September 21, 2018.