January 8, 2007

First overhaul of federal Fisheries Act reinforces habitat protection, introduces stronger compliance regime

A proposed overhaul of the federal Fisheries Act would modernize the way fisheries are managed and enshrine conservation measures designed to protect aquatic ecosystems so as to ensure long-term sustainability for commercial, recreational and Aboriginal fishing operations.

Bill C-45, An Act Respecting the Sustainable Development of Canada's Seacoast and Inland Fisheries (the Fisheries Act, 2007) would give fishery participants greater role in decision-making and would establish a new sanctions system, to be called the Canada Fisheries Tribunal, aimed at promoting more responsible fishing behaviour.

Most importantly, the bill reaffirms and strengthens the conservation and protection of fish and fish habitat-the cornerstone of the original Fisheries Act. It enshrines the principles of biological diversity protection and fish habitat conservation as the pillars of proper fisheries management. This is a significant departure from the current Act, which treats fish habitat protection and pollution prevention as issues separate from fisheries management.

The 138-year old Fisheries Act, enacted in 1868, has been amended perodically, but Bill C-45 marks the first time it has been completely rewritten to bring the legislation up to date. While it is still powerful and effective in some regards, said Fisheries and Oceans Minister Loyola Hearn, "everyone agrees it's showing its age."

"The Act was in place before British Columbia, Newfoundland and Labrador, and the North were part of Canada. Canadian industry has changed over the past century while the Fisheries Act has not. Science has made huge progress, while the Act stayed the same. Now is the time to get it right," Hearn stated.

The renewed Fisheries Act "will recognize the importance of the role of provinces, territories and stakeholders in decision-making," he said. "Simply put, it increases the direct influence of fishers over matters that affect their livelihoods.

"We have taken the words "absolute discretion" out of the Act," he explained, "so while the Minister is still ultimately responsible for decisions, he or she would need to officially consider a wide range of information prior to a decision being made."

A new compliance regime under the revised Act would allow certain offences to be dealt with by applying sanctions to fishing licences, such as reductions in quotas, licence suspensions and fines. This is in contrast to the current system, under which most Fisheries Act offences - even minor ones - are dealt with in the criminal courts. This is potentially both lengthy and costly.

Depending on the severity of a violation, sanctions would range from fines up to a maximum of $30,000, to the forfeiture of seized boats, gear and illegal catches, to the short-term suspension or revocation of a fishing licence. Taking away a licence or reducing a fisher's quota will have a significant deterrent effect since it will directly affect a fisher's livelihood.

The proposed legislation creates a new offence for failing to meet the terms and conditions set out in an authorization. This will allow the department to increase the effectiveness of the habitat protection program. The compensation, monitoring and reporting requirements of an authorization will all now be legally enforceable.

The bill provides clear guidance for applying alternative measures agreements as a method of dealing with some infractions, avoiding use of the criminal courts. They would be available to individuals who are prepared to accept responsibility for fishery and habitat offences and who are ready to take steps to remedy the wrong.

The Canada Fisheries Tribunal proposed under the new legislation would act as an arms-length administrative agency responsible for dealing with fishery licence infractions. Composed of fisheries experts, the tribunal would deal with offenders in a manner that is faster and more efficient than the court system. The tribunal could deal with issues such as the exceeding of quotas or catching undersized fish.

An expanded ticketing system in coastal fisheries - like driving fines for speeding - would also be handled by the tribunal. Poaching, offences against fish habitat and infractions in inland fisheries would remain in the court system.

In addition to creating the tribunal, the New Fisheries Act will require impacts on fish and fish habitat to be factored into all licensing and allocation decisions, strengthening the government's ability to conserve and protect fish habitat. The general prohibition on the harmful alteration, disruption or destruction of fish habitat remains the cornerstone of DFO's fish habitat program.

Bill C-45 also provides for shared stewardship, giving fishers a greater voice in how their fisheries are managed, but also holding them jointly responsible for ensuring fisheries are well-managed. The new Act would provide a legislated basis for developing legally binding agreements with fishing groups that would clearly define a shared management role for industry. Specifically, the Act would enable groups to take on a larger role and would also specify harvesting rules, programs, services and funding arrangements via conservation harvesting plans.

Another important provision of the Act would enable long-term access and allocation, increasing stability for fishers so they can better plan their operations. It would give the Minister a legal mechanism to set allocations up to 15 years for fleets and groups in commercial, recreational and Aboriginal fisheries in marine waters. The Minister would also have the authority to rescind, change or replace an allocation in certain circumstances, such as to meet conservation needs, subject to processes set by law.

Another section of the new Act provides for the control and management of aquatic invasive species. For the first time, the introduction of harmful fish or plant species to fish habitat will be prohibited under law, and habitat inspectors' powers will be expanded to include enforcing the aquatic invasive species provisions. The scope of habitat inspectors' powers will also be expanded to cover any project that can be harmful to fish habitat. Under the old Act, only fishery officers had this authority. Habitat inspectors will continue to monitor for the release of deleterious substances as well.

The existing Act makes no distinction between how a large or small project is reviewed. The new Act clarifies the government's ability to focus on activities such as large-scale developments, with a higher risk of causing harm to fish habitat, by creating regulations for lower-risk activities.

Members of the public and concerned groups will be given a more active role under the new Act. The creation of any regulation will be done in a transparent manner and involve an open consultation process.

The proposed Act provides tools for industry to navigate provincial and federal habitat protection regulations more efficiently without compromising the need to protect fish habitat. To eliminate unnecessary duplication of regulations, the new Act allows for provincial regulations to be deemed equivalent when they meet or exceed the federal regulations. If a province is failing to enforce its regulations, then the Minister will have the ability to reinstate the national regulations.

Provisions governing fisheries management orders (FMOs), fisheries management agreements and integovernmental co-operation illustrate the new Act's more streamlined approach to fisheries management. Under the new system, FMOs are simpler, clearer and faster. They may be made by the Minister, a DFO officer or a designated provincial official in order to effect changes more quickly and efficiently. These orders will control the number and size of fish caught, and prohibit the fishing of certain fish or harvesting of marine plants during closed times. Unlike the previous system, the orders will not take the form of regulations requiring hundreds of pages of schedules.

With regard to fisheries management agreements, the Minister will be able to enter into a greater range of legally binding arrangements with groups to do such things as furthering the protection and conservation of fish or participating in management decisions. The agreement could address matters such as the scope and funding of scientific surveys and management activities. This system would improve upon the existing array of arrangements between DFO and resource users such as joint project agreements, Aboriginal harvesting agreements and co-management agreements. While these agreements are legally binding, there is currently no overall framework that articulates what such arrangements may cover.

Similarly, the legislation provides a new, overarching legal framework for federal-provincial agreements and gives a clear authority for the Minister to enter into such agreements. This will promote and enhance increased collaboration in such areas as joint goal-setting, the exchange of information and engaging common stakeholders.

Canada's fishing and aquaculture industries provide more than 80,000 jobs, with annual wild harvest and aquaculture production valued at about $2.8 billion per year. Exports of fish product contribute upwards of $4.3 billion per year to the economy, while the economic value of the recreational and sport fishing industry is an additional $7 billion per year.

This sector is faced with the need to adapt to a number of challenges: environmental changes; dramatic market shifts; cyclical variations in the abundance of key stocks; and the rapid expansion of other industries that use oceans. Old legislative tools are no longer adequate to manage this key industry. Bill C-45 is the culmination of nearly seven years of stakeholder consultations conducted by Fisheries and Oceans Canada (DFO).

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