1. REVIEW OF THE FISHERIES ACT Major changes & preliminary issues
Workshops on the federal government’s Review of Environmental and Regulatory Processes
October 26, 2016

2. Presentation outline Context of the modifications
Background of the formation of the working group
First meeting of the working group
Examples of modifications and preliminary issues
Extent of protective measures
Powers of the Minister and the Governor in Council
Positioning of the act: “Factors” section
New procedures
Summary of the preliminary issues

3. Context of the modifications
Implementation of the 2012 federal budget through the use of different tools:
Jobs, Growth and Long-term Prosperity Act (Omnibus Bill C-38), entered into force on June 29, 2012;
The Jobs and Growth Act (Omnibus Bill C-45), whose provisions relevant to the Fisheries Act were decreed into force on November 26, 2013;
The Fisheries Protection Policy Statement, approved by the Minister of Fisheries and Oceans and entered into force on November 25, 2013.
These tools and the changes that they would bring were implemented without the consultation or the possibility of the participation of Aboriginal communities.

4. Background of the formation of the working group
FNQLSDI activities
Objectives of the activities
Discussions with FN experts
Creation and facilitation of working groups:
Organization of teleconferences (and meetings in person?) until January ;
Possibility of other meetings after January.
Stimulate the participants’ thinking.
Highlight issues of FN in connection with the environmental and regulatory processes under review.
Raise questions about the processes and get expert advice on these subjects.
Discuss how to modernize the processes.
Technical support
Drafting of typical briefs
Offer documents that provide an adaptable framework.

5. First meeting of the working group
A first meeting of the working group was held on October 13, 2016 by teleconference.
This meeting allowed for discussions with 11 First Nations experts.
Diverse levels of experience and knowledge.
Different expectations expressed such as:
Understanding the scope of the modifications made in ;
Sharing information between communities and organizations;
Seizing the opportunity to establish a shared vision for FN;
Ensuring that the interests of the FN are integrated into the modernization process of the Act.

6. Examples of modifications Extent of protective measures
Sec. 32: No person shall kill fish by any means other than fishing.
Paragraph 35(1): No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat.
Paragraph 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.
Before
After
Aboriginal : “in relation to a fishery, means that fish is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Aboriginal organization.”
Working group
The definition of “Aboriginal fishery” seems problematic.
Should include the aspect of Aboriginal fishing rights.
Could be tweaked using elements established by court decisions (e.g. Marshall case).
Could be enhanced by incorporating the subsistence fishing aspect.
Throughout the Act, the term “Aboriginal fishery” should appear before the terms “commercial” and “recreational” considering the importance of the rights associated with it.

7. Examples of modifications Extent of protective measures
Serious harm to fish : “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.”
Sec. 32: No person shall kill fish by any means other than fishing.
Paragraph 35(1): No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat.
Paragraph 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.
Before
After
Working group
Seems to allow for the disturbance and deterioration of the habitat.
Facilitates project approval (docks, pipelines, etc.) and avoids many environmental assessments. This supports that there is an interdependence between the Fisheries Act, the Canadian Environmental Assessment Act, the Navigation Protection Act and the operation of the National Energy Board.
Elimination of the “ecosystem approach” concept (also emerged as part of the working group on environmental assessments). Each species has a role to play, and it is essential to protect the habitat that supports them.

8. Examples of modifications Powers of the Minister
New powers of the Minister:
Summary of paragraph 35 (3): The Minister may make any regulations governing the carrying out of any kind of work, undertaking or activity in prescribed fisheries that results in serious harm to fish that are part of an Aboriginal, commercial of recreational fishery, or to fish that support such a fishery.
Summary of paragraph 35 (4): These regulations are exempted from the “Examination of Proposed Regulations” section of the Statutory Instruments Act.
Working group
Feels as though there are more (or even too many) discretionary powers given to the Minister.
Opens the door to the approval of projects that would not have been approved otherwise.
Concerns regarding the lack of review of the regulations made under this authority.

9. Examples of modifications Powers of the Minister
New powers of the Minister :
Summary of paragraph 37 (1.1): The Minister may require a person who proposes to carry on any work, undertaking or activity in an ecologically significant area to provide documents and other information relating to the work/undertaking/activity or to the water/place/fish habitat likely to be threatened.
Working group
The “ecologically significant” wording is very random. Ideally, there should be a list or directory of areas that are “ecologically significant”, supported by scientific facts.
Could we not use the term “sensitive areas” instead?
This is a broader concept that does not only focus on areas that seem to be a “priority”.
Possibility to integrate not only ecological sensitivity but also cultural sensitivity.
This concept should also be addressed in an environmental assessment, which once again emphasizes the close relationship between the Fisheries Act and the Canadian Environmental Assessment Act (2012).

10. Examples of modifications Powers of the Minister
New powers of the Minister :
Summary of paragraph 37 (1.1): The Minister may require a person who proposes to carry on any work, undertaking or activity in an ecologically significant area to provide documents and other information relating to the work/undertaking/activity or to the water/place/fish habitat likely to be threatened.
Working group
What types of documents and information can be requested?
The documents and information provided by the FN could differ from what is sought by the Canadian general public.
The requested documents and information should recognize Aboriginal traditional knowledge and other forms of documentation from First Nations archives.

11. Examples of modifications Powers of the Governor in Council
New powers of the Governor in Council:
Summary of paragraph 43 (1): The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including excluding fisheries from the definitions Aboriginal, commercial and recreational;
Working group
Impression that these broad powers could have major implications.
How can a law go so far?
The definition of “Aboriginal fisheries” is problematic. Aboriginal fishing rights are therefore at risk of being misunderstood by the Governor in Council.
Concerns regarding the making of regulations that could interfere with Aboriginal fishing rights.

12. Examples of modifications Powers of the Governor in Council
New powers of the Governor in Council:
Summary of paragraph 43 (5): The Governor in Council may make regulations exempting any Canadian fisheries waters from the application of:
Section 20: Powers of the Minister to require, among other things, studies, samplings and the free passage of fish;
Section 21: Powers of the Minister regarding the installation of certain devices;
Section 35: Prohibition of causing serious harm to fish;
Paragraph 38 (4): Duty to report an occurrence that results in serious harm to fish.
Working group
There is a tremendous amount of discretionary powers.
Possibility for the Governor in Council to make decisions that are not only related to fisheries, but also related to elements of other components under review (e.g. watercourses not governed by the Navigation Protection Act).
Concerns about the impacts, particularly in terms of food fisheries for many inland communities that do not have access to commercial fisheries.
The consultation obligations with First Nations should be clearly stated as well as the need to perform follow-up (e.g. in an annual report).

13. Examples of modifications Positioning of the act: “Factors” section
The modifications of namely included the addition of a “Factors” section (article 6).
This section requires the Minister, prior to recommending to the Governor in Council to make regulations under certain articles or to exercise various powers, to consider the following factors:
The contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries;
Fisheries management objectives;
Whether there are measures and standards to avoid, mitigate or offset serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or that support such a fishery;
The public interest.
Working group
What is the definition of “public interest”?
Concerns regarding the lack of consideration for the interests of First Nations when they diverge from the “public interest”.

14. Examples of modifications New procedures
Certain procedures before the changes of , as discussed in the Spring Report of the Commissioner of the Environment and Sustainable Development (Chapter 1 – Protecting Fish Habitat):
“The Department conducts project reviews under the 1986 Habitat Policy’s “no net loss” guiding principle, striving to balance unavoidable habitat losses with habitat replacement, on a project-by-project basis.”
If damage to fish habitat cannot be avoided, a Fisheries Act authorization—a ministerial permission to harm habitat—may be issued. This allows the project to proceed but triggers an environmental assessment, which ultimately results in a report and a recommendation on whether or not the project should proceed, with a proposed mitigation and follow-up program.”

15. REMINDER - Context of the modifications
Implementation of the 2012 federal budget through the use of different tools:
Jobs, Growth and Long-term Prosperity Act (Omnibus Bill C-38), entered into force on June 29, 2012;
The Jobs and Growth Act (Omnibus Bill C-45), whose provisions relevant to the Fisheries Act were decreed into force on November 26, 2013;
The Fisheries Protection Policy Statement, approved by the Minister of Fisheries and Oceans and entered into force on November 25, 2013.
These tools and the changes that they would bring were implemented without the consultation or the possibility of the participation of Aboriginal communities.

16. Examples of modifications New procedures
Summary of the development proposal review and decision making project (Fisheries Protection Policy Statement, 2013)

17. Examples of modifications New procedures
Project review after the modifications of :
“It is the proponent, not the DFO, who is expected to make this determination when considering activities which have the potential to impact water. Once it has been determined that an activity has the potential to cause serious harm to fish that are part of or support a fishery, the next question will be whether that activity will need authorization by the DFO.”
“The Policy sets out a hierarchy of goals for undertaking activities that may cause serious harm to fish – avoid, mitigate or offset – and contains a discussion of what the DFO considers these three terms mean. However, only the third circumstance – offsetting – requires authorization under the Act. Thus, mitigation of impacts is considered sufficient to not warrant authorization.” - Excerpts from the bulletin “Fisheries Act changes effective November 25, 2013” (Blakes, 2013)
Working group
The impacts to be considered in the evaluation of a project should include the potential repercussions on Aboriginal fishing rights.
The transfer of the responsibility for the project review to the proponent rather than the DFO seems problematic (self-assessment).
Since it is the proponent who hires specialists, the project review could be biased.
Need to include the proponent AND other stakeholders (including FN).
Concerns about a potential circumvention of obligations relating to consultation (legal opinion to be obtained).

18. Summary of the preliminary issues
Working group
Importance of incorporating the concept of “ecosystem approach” (all species and the habitat on which they depend).
Importance of the connections between the four components of “the federal review of the environmental and regulatory processes” (holistic approach).
Concerns regarding the consideration of Aboriginal fishing rights:
Problematic definitions (“Aboriginal fishery”, “public interest”, “ecologically significant areas”).
Scope of the powers of the Minister and the Governor in Council.
Project review process giving too much leeway to the proponent.

19. Thank you! Questions