Guidelines for Implementing the Fish Stocks Provisions in the Fisheries Act

Acronyms and abbreviations

• COSEWIC – Committee on the Status of Endangered Wildlife in Canada
• CPUE – Catch Per Unit Effort
• DFO – Fisheries and Oceans Canada
• FGR – Fishery (General) Regulations
• FSC – Food, Social, and Ceremonial (fisheries)
• FSP – Fish Stocks provisions
• HDR – Harvest Decision Rules
• IFMP – Integrated Fisheries Management Plan
• LRP – Limit Reference Point
• PA – Precautionary Approach
• PA Policy – A Fisheries Decision-Making Framework Incorporating the Precautionary Approach
• RR – Removal Reference
• SARA – Species at Risk Act
• SFF – Sustainable Fisheries Framework
• TAC – Total Allowable Catch
• TRP – Target Reference Point
• USR – Upper Stock Reference

1. Introduction

This document describes how Fisheries and Oceans Canada (DFO) will meet the obligations described in sections 6.1 and 6.2 of the Fisheries Act’s Fish Stocks provisions (FSP) for major fish stocks which are prescribed in regulation and thus subject to the FSP.

The FSP establish legally binding obligations on DFO to:

• manage prescribed major fish stocks at levels necessary to promote sustainability (section 6.1);
• develop and implement rebuilding plans for prescribed major fish stocks that have declined to or below their Limit Reference Point (Critical Zone) to grow the stock above that point (section 6.2); and
• prescribe in regulation the fish stocks to which the provisions will apply (section 6.3).

To meet these obligations, DFO will apply its 2009 A Fisheries Decision-Making Framework Incorporating the Precautionary Approach (PA Policy) to prescribed major fish stocks. The PA Policy outlines DFO’s method to apply the precautionary approach to set harvest levels and make decisions respecting harvest levels in fisheries on key harvested fish stocks managed by DFO.

Throughout this document, “must” is used to indicate when the guidance is mandatory to meet legislative, regulatory or policy requirements. “Should” is used to signal guidance that is strongly recommended.

2. Legislative, regulatory & policy context

Canada has international and domestic commitments to implement the precautionary approach into its fisheries decision-making framework. Our key commitments are highlighted below.

International agreements

The 1982 United Nations Convention on Law of the Sea (UNCLOS), the 1995 United Nations Fish Stocks Agreement (UNFSA), and the 1995 Food and Agriculture Organization’s (FAO) Code of Conduct for Responsible Fisheries establish principles for the conservation and management of fish stocks, including stock rebuilding. These agreements emphasize using the precautionary approach and best available scientific evidence when managing fisheries. More recent conventions, like the Convention on Biological Diversity (Aichi Target 6) reiterate the goals of sustainable fisheries management.

Fisheries Act: Fish stocks provisions

In 2019, amendments to the Fisheries Act received Royal Assent (Bill C-68). Among the amendments was the introduction of the FSP in sections 6.1 to 6.3. The FSP establish binding commitments on the Minister to implement measures to (1) maintain major fish stocks prescribed in regulation at levels necessary to promote sustainability of the stock, and (2) to develop and implement rebuilding plans when these prescribed stocks become depleted.

Fishery (General) Regulations: Fish stocks

The Fishery (General) Regulations (FGR), sections 69 (and Schedule IX) and 70 include the list of prescribed major fish stocks subject to the FSP and set out the required contents of rebuilding plans and their development timelines for fish stocks prescribed under the FSP.

Precautionary Approach Policy and rebuilding plan guidelines

DFO’s Sustainable Fisheries Framework (SFF), which applies to prescribed major fish stocks subject to the FSP as well as fish stocks on DFO’s Sustainability Survey for Fisheries, provides the basis for ensuring that Canadian fisheries support conservation and the sustainable use of resources. The 2009 Fishery Decision-Making Framework Incorporating the Precautionary Approach (PA Policy) and 2022 Guidelines for Writing Rebuilding Plans per the Fish Stocks Provisions and A Fishery Decision-making Framework Incorporating the Precautionary Approach (Rebuilding Plan Guidelines) are key SFF policies for implementation of the FSP. The PA Policy set outs a risk-management framework for fish stocks managed by DFO. It requires that a harvest strategy be incorporated into fisheries management plans to keep the removal rate moderate when the stock status is healthy, to promote rebuilding when stock status is low, and to ensure a low risk of serious or irreversible harm to the stock. The Rebuilding Plan Guidelines provides additional details on the development and content of rebuilding plans.

The Species at Risk Act

The Species at Risk Act (SARA) is intended to prevent wildlife species in Canada from becoming extinct, and protects species at risk and their critical habitat. The SARA also contains provisions to help manage species of special concern to prevent them from becoming endangered or extinct. The SARA is referred to in subsection 6.2(3) of the FSP (see section 4.2.3 of this document for more details).

2.1 Aboriginal and Treaty Rights and Engagement with Indigenous Peoples

DFO seeks to manage fisheries, including decisions flowing from the application of this guidance, in a manner consistent with the constitutional protection provided to Aboriginal and treaty rights by section 35 of the Constitution Act, 1982. In practice, this may include:

• Engaging in consultations with Indigenous people when there is a legal duty to consult;
• Seeking and including Indigenous input and Indigenous Knowledge when developing management measures or rebuilding plans, where applicable; and
• Ensuring priority access for Food, Social, and Ceremonial (FSC) fisheries.

3. Determining whether Section 6.1 or 6.2 of the FSP applies

The FSP establish two main stock conservation objectives. Section 6.1 requires DFO to maintain prescribed major stocks at levels necessary to promote sustainability and/or above the LRP, while s. 6.2 requires DFO to develop and implement rebuilding plans to grow the stock above its LRP. As a result, the prescribed stock’s status relative to its LRP is the factor that differentiates s. 6.1 from 6.2.

• Prescribed major stocks that are above their LRP are subject to section 6.1.
• Prescribed major stocks at or below their LRP are subject to section 6.2.

A stock will be considered at or below its LRP if the terminal year stock status indicator is estimated to be at or below the LRP with a greater than 50% probability or if the projected stock status indicator falls below the LRP with a greater than 50% probability under a zero catch scenario in a 1 year projection, unless an alternative method or probability is defined in stock-specific precautionary approach frameworks.

Probability, likelihood and risk tolerance

Risk is inherent to fisheries management and is the effect of uncertainty on fishery objectives, measured in terms of the consequences of an event and the likelihood of their occurrence. The terms “probability”, “likelihood”, and “risk tolerance” are used throughout this guidance document, and require definition:

• Probability: The chance (statistical or relative frequency) that a given event or outcome has or will occur. It is typically used when uncertainty is associated with an outcome and can be quantified.
• Likelihood: Although often used to describe the extent to which a proposition (a hypothesis, or a model) explains available information (past events; e.g., the likelihood that habitat degradation or loss has contributed to a stock’s decline), for the purposes of this guidance, likelihood is also the chance that a given event will happen, quantitatively or qualitatively (e.g., high likelihood). Annex 2B of DFO’s 2009 PA Policy provides a likelihood scale of qualitative descriptors with their corresponding probability range (also provided as Table 1 below).
• Risk: In general, the possibility of something undesirable happening, for example, of harm or loss, or of failing to meet fisheries management objectives. Risk occurs as a result of uncertainty, and is measured in terms of the consequences of an event and the probability of its occurrence.
• Risk tolerance: The tolerable, or acceptable, probability of an undesirable event occurring, such as a breach of a limit, or failure to achieve a target or other management objective.

The choice of risk tolerance when developing management measures or rebuilding plans shall be guided by Annex 2B of DFO’s 2009 PA Policy. For ease of reference, this table also available below as Table 1. To provide greater clarity throughout this document, Table 1’s title and column headers have been modified from the PA Policy to align with the definitions provided above.

4. How to interpret and meet the obligations of each provision

This section provides direction on how DFO will interpret and meet each subsection of the FSP.

1. Proceed to section 4.1 “Meeting the Obligations of Section 6.1 for Prescribed Major Fish Stocks Above Their LRP” if the stock is above its LRP.
2. Proceed to section 4.2 “Meeting the Obligations of Section 6.2 for Prescribed Major Fish Stocks At or Below their LRP” if the stock is at or below its LRP.

4.1 Meeting the obligations of Section 6.1 for prescribed major fish stocks above their LRP

This section describes how DFO will meet its FSP obligations for a prescribed major stock above its LRP.

4.1.1 – Subsection 6.1(1) of the FSP: Measures to maintain fish stocks

When does Subsection 6.1(1) of the FSP apply?

Subsection 6.1(1) of the FSP applies to a prescribed major fish stock above its LRP, which is subject to fishing (directed or bycatch). For such a stock, the obligations in subs. 6.1(1) must be met on an ongoing basis.

Subsection 6.1(1) applies to fishery management decisions and actions to implement fishery management measures concerning the conservation and sustainable use of a prescribed stock. Relevant decisions and measures would include such decisions as setting a Total Allowable Catch (TAC) and would include such measures as fishing seasons, trap limits, gear types, fishing times and duration, minimum legal fish sizes, or other relevant management measures.

How will DFO interpret and meet the obligations of Subsection 6.1(1) of the FSP?

Each bolded subheading is a quotation from the subs. 6.1(1) of the FSP followed by an explanation on how DFO will interpret and meet the quoted phrase.

“In the management of fisheries…”

This means that DFO must meet the obligations of subs. 6.1(1) of the FSP and the other FSP when managing fisheries. These obligations apply to prescribed major fish stocks defined at the scale of their LRPs, rather than to any specific fishery on a stock.

“…the Minister shall implement measures…”

This phrase highlights the ongoing nature of this provision. In other words, the obligations of subs. 6.1(1) of the FSP will be met when the management recommendations and decisions are implemented.

For clarity, while subs. 6.1(1) of the FSP applies continuously to stocks above their LRP, DFO will evaluate whether the ongoing and proposed measures meet the obligations when management recommendations are being developed and decisions made. Typically this will occur before the fishing season starts; however mid-season fisheries management changes (e.g., variation orders concerning the conservation and sustainability of a prescribed major fish stock) will also need to meet subs. 6.1(1) of the FSP.

“…maintain major fish stocks at or above the level necessary to promote the sustainability of the stock…”

This statement is a conservation objective, the “stock conservation objective,” and focuses primarily on the biological sustainability of the prescribed major fish stock. Neither the “level necessary” nor the term “sustainability” are defined in the Fisheries Act. Most definitions of sustainability in both the Canadian context and internationally consider both the idea of time, as in existing indefinitely or for a long-period of time, as well as equitable access to the resource, both now and in the future (Marentette and Kronlund, 2020; and DFO, 2020). DFO’s 2009 PA Policy and the principles in the policy’s Table 1 provide a framework and means to evaluate how DFO will meet this obligation.

The subs. 6.1(1) management measures must seek to:

1. Avoid the prescribed major fish stock declining to or below its LRP (Critical Zone) with a high to very high likelihood (≥75%)¹;
2. Avoid exceeding its Removal Reference (RR) with a moderately high to very high likelihood (≥50%); and
3. Either:
   1. Maintain the prescribed major fish stock above its USR (i.e., in the Healthy Zone), if there is no Target Reference Point (TRP), with a moderately high or greater likelihood (>50%);
   2. Maintain the prescribed major fish stock at its TRP on average with a neutral likelihood (~50%); or
   3. If the prescribed major fish stock is above its LRP but below its USR (Cautious Zone), promote stock growth above its USR or to its TRP with a moderately high to high likelihood² (>50%) within a reasonable time frame³.

If a prescribed major fish stock is above its LRP but below its USR (i.e., Cautious zone) and cannot be grown to the Healthy zone due to prevailing environmental conditions, even in the absence of fishing, then maintenance of the stock at its current abundance/biomass would be considered consistent with subs. 6.1(1). If there is a desire to maintain a prescribed major fish stock in the Cautious zone for socio-economic or cultural reasons, see section 4.1.2 of this document for guidance on invoking subs. 6.1(2) of the FSP.

If the probability of a desired outcome in the criteria 1-3 above cannot be calculated for a prescribed stock, the intent of the PA Policy must be preserved.

If a stock does not have a defined RR, USR and/or TRP at the time it is prescribed under the FSP, the management measures for subs. 6.1(1) must seek to:

1. Avoid the stock declining to or below its LRP (Critical Zone) with a high to very high likelihood (≥75%);
2. Avoid exceeding the RR with a moderately high to very high likelihood (>50%), if a RR is available. If a RR is not available, but management measures are expected to achieve 3a or 3b below, it will be inferred that the level of removals is not exceeding the RR; and
3. Define an interim measurable biomass- or abundance-related (or proxy) management target (e.g., a defined biomass in metric tonnes, a catch per unit effort (CPUE) value, or a measurable objective related to stock growth without a specified “end point”) while the USR and/or TRP are being established and either:
   1. Maintain the stock around this defined measurable target; or
   2. Promote stock growth according to the defined interim measurable objective.

In cases where an interim biomass- or abundance-related management target cannot be defined, avoid exceeding the RR of the stock with a moderately high to very high likelihood (>50%) or define an interim measurable fishing pressure limit reference point (e.g., fishing mortality rate such as F_MSY and maintain the fishing pressure on the stock below this point or, if it is above this point, aim for a reduction in fishing pressure to below this defined measurable limit.

For a prescribed major fish stock that lacks a USR or a TRP, the management measures must seek to achieve a pre-specified, interim measurable fishery management objective. This management objective functions as the interim “level necessary to promote the sustainability of the stock” until such time as the USR and TRP are defined.

“…taking into account the biology of the fish and the environmental conditions affecting the stock…”

“Take into account” means that DFO must demonstrate that the Minister considered the biology of the fish and the environmental conditions affecting the prescribed major fish stock when setting the management measure(s).

• Biology of the fish includes life history characteristics, habitat, diet, etc.
• Environmental conditions have generally been interpreted broadly in previous legal decisions and could include but are not limited to factors such as oceanographic or hydrographic conditions, availability of food (e.g., prey), predation pressures, habitat, climate change, etc.

“Considered” means that DFO examined the influence of these factors on the prescribed major fish stock (quantitatively or qualitatively), regardless of whether that influence is likely to be positive, negative or neutral, and reviewed this information in the development of the management measures. These factors may not be independent of one another. DFO can, but is not required to, adjust the measures in response to these elements.

In some cases, qualitative or even no information of the potential impacts of these factors may be available. The precautionary approach should be applied; specifically, that management measures should be cautious when scientific information is uncertain. The absence of adequate scientific information is not a reason to postpone or fail to take action to avoid serious harm to the resource.

4.1.2 – Subsection 6.1(2) of the FSP: Limit Reference Point

When does Subsection 6.1(2) of the FSP apply?

Subsection 6.1(2) of the FSP is an exception to subs. 6.1(1) of the FSP. Subsection 6.1(2) can be invoked if the Minister forms the opinion that the measures in place, or proposed, to meet the obligation in subs. 6.1(1) are not feasible or appropriate for cultural reasons or because of adverse socio-economic impacts. Subsection 6.1(1)’s primary purpose is to set out a stock conservation objective for a prescribed major fish stock above its LRP. Subsection 6.1(2) allows the Minister to set measures that are less precautionary than those necessary to meet the stock conservation objective in subs. 6.1(1) of the FSP if the cultural or socio-economic impacts from the measures to meet subs. 6.1(1) are deemed too high.

If potential adverse impacts can be mitigated by implementing alternative measures to meet subs. 6.1(1) of the FSP, then subs. 6.1(2) would not be invoked.

How will DFO interpret and meet the obligations of Subsection 6.1(2) of the FSP?

“If the Minister is of the opinion…”

DFO will recommend to the Minister or delegated authority whether or not to invoke subs. 6.1(2) of the FSP.

“…not feasible or appropriate for cultural reasons…”

Cultural reasons encompass both Indigenous and non-Indigenous reasons. The legislation does not define “not feasible or appropriate for cultural reasons.” The phrase means that the management measures under subs. 6.1(1) of the FSP are causing or would cause an unacceptable impact to a culture or cultural activity. The cultural reasons should be distinct from socio-economic impacts, as those are a separate factor under subs. 6.1(2) of the FSP.

“…not feasible or appropriate… because of adverse socio-economic impacts…”

The term “economic” refers to the benefits and costs that will affect economic welfare and economic growth. The term “social” refers to the potential distributional impacts of policies being evaluated. The Fisheries Act does not define “adverse socio-economic impacts”.

DFO will assess the socio-economic impacts when the proposed management measures differ from the decision implemented during the previous fishing season. It is expected that minor amendments to a current fisheries management plan or TAC are unlikely to trigger subs. 6.1(2) of the FSP. Major impacts may occur whenever there are significant changes to a stock’s TAC, or management approaches.

“…shall set a limit reference point and implement measures to maintain the fish stock above that point…”

To establish whether a stock will be subject to s. 6.1 or s. 6.2 of the FSP, a stock must have an LRP and a known stock status relative to its LRP. As a result, the first obligation of subs. 6.1(2)—to set a LRP—will have already been met.

The second part of the obligation is to “implement measures to maintain the fish stock above that point”, in other words, above its LRP. This implies that the prescribed major fish stock is being managed at a lower biomass level than in subs. 6.1(1) of the FSP, though this level must still be above the stock’s LRP. Moreover, the measures under subs. 6.1(2) of the FSP are not intended to grow or maintain a stock above the USR, around a TRP, or achieve an interim management objective as is required to meet the stock conservation objective in subs. 6.1(1).

As a result, the management measures under subs. 6.1(2) of the FSP must aim to:

• Avoid the prescribed major fish stock declining to or below its LRP with a high to very high likelihood (≥75%); and
• Avoid exceeding its RR with a moderately high to very high likelihood (>50%) if available. If the RR is not available, the management measures must still maintain the stock above its LRP with a high to very high likelihood per the first criterion.

If the probability of a desired outcome cannot be calculated for a prescribed stock, the intent of the PA Policy must be preserved.

In contrast to the criteria necessary to be consistent with subs. 6.1(1) of the FSP, which focus on both avoiding limits (LRP and RR) and achieving a target (above the USR, around the TRP or other defined objective), subs. 6.1(2) of the FSP focuses on avoiding the LRP and the RR but does not include an obligation to achieve a pre-specified target. The purpose of this provision is to provide the Minister the flexibility to mitigate a socio-economic or cultural impact that would result if the subs. 6.1(1) management option were implemented. The wording and structure of subs. 6.1(1) and 6.1(2) implies there is an order to the consideration of factors with respect to management decisions with biological sustainability (under subs. 6.1(1)) being the first consideration when setting measures followed by consideration of the possible cultural and socio-economic impacts of the measures.

“…taking into account the biology of the fish and the environmental conditions affecting the stock…”

The interpretation of this phrase is the same as for subs. 6.1(1) of the FSP. See “How will DFO Interpret and Meet the Obligations of Subsection 6.1(1) of the FSP?” for more details.

4.1.3 – Subsections 6.1(3) and 6.2(4) of the FSP: Publication of decisions

When do Subsections 6.1(3) or 6.2(4) of the FSP apply?

Subsection 6.1(3) of the FSP applies when the Minister invokes subs. 6.1(2) for a management decision.

Subsection 6.2(4) of the FSP applies when the Minister invokes either subs. 6.2(2) or subs. 6.2(3).

How will DFO interpret and meet the obligations for Subsections 6.1(3) or 6.2(4)?

“…publish the decision… on the Internet site of DFO…”

Notice of fisheries management decisions made under subss. 6.1(2), 6.2(2) or 6.2(3) of the FSP for prescribed major fish stocks will be published in both official languages on the Fisheries Management Decisions page of DFO’s website.

“…within a reasonable time…”

DFO will publish the notice of the relevant decision within 60 days of the decision. The date of the decision corresponds to the Minister’s signature date on the decision memorandum.

“…with reasons…”

The notice of a decision must also include a rationale for why the applicable exception was invoked. For decisions made under subss. 6.1(2) or 6.2(2) of the FSP, the reasons must be based on the cultural or social-economic impacts of a proposed management measure or rebuilding plan. This may take the form of feedback received from stakeholders during consultations or the results of a socio-economic analysis. For a subs. 6.2(3) decision, the reason will either be (a) the prescribed major fish stock is listed on Schedule 1 of the Species at Risk Act as Endangered or Threatened, or (b) the implementation of international management measures by Canada does not permit the development of a rebuilding plan for the stock.

4.2 Meeting the obligations of Section 6.2 for prescribed major fish stocks at or below their LRP

This section describes how DFO will meet its FSP obligations for a prescribed major fish stock at or below its LRP.

Rebuilding plans for prescribed major fish stocks subject to the Fish Stocks provisions must also follow the requirements set out in the Fishery (General) Regulations (Part XIV, subss. 70(1-7)). Guidelines on developing rebuilding plans are available and must be followed in addition to these FSP guidelines. See Guidelines for Writing Rebuilding Plans per the Fish Stocks Provisions and A Fishery Decision-making Framework Incorporating the Precautionary Approach.

4.2.1 – Subsection 6.2(1) of the FSP: Rebuilding plan

When does Subsection 6.2(1) of the FSP apply?

Section 6.2(1) of the FSP applies to a prescribed stock at or below its Limit Reference Point (LRP).

Note that subs. 6.2(5) also applies to stocks at or below their LRP. See “Subsection 6.2(5) of the FSP: Habitat Loss or Degradation and Restoration Measures” for more details.

How will DFO interpret and meet the obligations of Subsection 6.2(1) of the FSP?

“…develop a plan to rebuild the stock above that point…”

Subsection 6.2(1) of the FSP requires that a rebuilding plan be developed to rebuild the prescribed major fish stock above its LRP. This is the stock conservation objective of this provision. Note that the legal obligation of subs. 6.2(1), which is to implement a rebuilding plan to rebuild the stock above its LRP, only applies while the stock is at or below its LRP. However, to increase the likelihood that a stock will not decline back to or below its LRP and to be consistent with the 2009 PA Policy’s intent to grow depleted stocks to healthier levels, a stock’s rebuilding plan will remain in effect until the stock reaches its rebuilding target (for more information on the rebuilding target, see Guidelines for Writing Rebuilding Plans per the Fish Stocks Provisions and A Fishery Decision-making Framework Incorporating the Precautionary Approach). Thus the “start” and “end” points for a rebuilding plan will be asymmetric.

“…in the affected area…”

This phrase means that a rebuilding plan applies to the entire area inhabited by a prescribed major fish stock, consistent with the overall understanding of the FSP applying to the management of a prescribed stock as a single unit within a defined geographic distribution. A rebuilding plan may set out specific management measures for a sub-area of the stock’s overall distribution (e.g., seasonal/area closures or habitat restoration measures) to address a threat that is limiting the stock’s recovery above the LRP. However, these area-specific measures would still be consistent with promoting the overall growth of the stock. 

“…taking into account the biology of the fish and environmental conditions affecting the stock…”

“Take into account” means that DFO must demonstrate that the Minister considered the biology of the prescribed major fish stock and the environmental conditions affecting the stock in the development of the rebuilding plan.

• Biology of the stock includes life history characteristics, habitat, diet, etc.
• Environmental conditions have generally been interpreted broadly in previous legal decisions and could include but are not limited to: oceanographic or hydrographic conditions, availability of food (e.g., prey), predation pressures, habitat, etc.

“Considered” means that DFO examined the influence of these factors on the prescribed major fish stock (quantitatively or qualitatively), regardless of whether that influence is likely to be positive, negative or neutral, and reviewed this information in the development of the rebuilding plan. These factors may not be independent of one another.

In some cases, qualitative or even no information of the potential impacts of these factors may be available. The precautionary approach should be applied; specifically, that management measures should be cautious when scientific information is uncertain. The absence of adequate scientific information is not a reason to postpone or fail to take action to avoid serious harm to the resource.

“…implement it within the period provided for in the plan…”

This phrase means that the rebuilding plan must be implemented within the timeline to achieve the rebuilding target set out within the rebuilding plan.

Requirements for rebuilding plans in regulation

For more details on the regulatory requirements and rebuilding plan development, see the Guidelines for Writing Rebuilding Plans per the Fish Stocks Provisions and A Fishery Decision-making Framework Incorporating the Precautionary Approach.

4.2.2 – Subsection 6.2(2) of the FSP: Amendment of rebuilding plans or implementation period

When does Subsection 6.2(2) of the FSP apply?

Subsection 6.2(2) of the FSP is an exception clause to subs. 6.2(1). Subsection 6.2(2) of the FSP can be invoked if the Minister forms the opinion that the proposed management measures in a rebuilding plan consistent with subs. 6.2(1) could result in adverse socio-economic or cultural impacts. Subsection 6.2(2) of the FSP allows the Minister to set measures that are less precautionary than those necessary to meet the stock conservation objective in subs. 6.2(1) if the cultural or socio-economic impacts from the measures to meet subs. 6.2(1) are deemed adverse. Subsection 6.2(2) cannot be invoked while a rebuilding plan is in development (i.e., to mitigate adverse impacts of management decisions made while subs. 70(5) of the FGR is in effect), as subs. 6.2(2) specifically refers to the adverse impacts resulting from the rebuilding plan.

If the potential adverse impacts can be mitigated by implementing alternative rebuilding measures to meet subs. 6.2(1), then subs. 6.2(2) would not be invoked.

Note that subs. 6.2(5) also applies to prescribed major fish stocks at or below their LRP. See section 4.2.4 of this document for further details.

How will DFO interpret and meet the obligations of Subsection 6.2(2) of the FSP?

“If the Minister is of the opinion…”

DFO will recommend to the Minister whether or not to invoke subs. 6.1(2) of the FSP.

“…adverse socio-economic… impacts…”

The term “economic” refers to the benefits and costs that will affect economic welfare and economic growth. The term “social” refers to the potential distributional impacts of policies being evaluated. The Fisheries Act does not define “adverse socio-economic impacts.”

DFO will assess the socio-economic costs and benefits of proposed rebuilding measures during the rebuilding plan’s development. In addition, DFO will assess the socio-economic impacts when the proposed rebuilding measures for a fishing season differ from the decision implemented during the previous fishing season. It is expected that minor amendments to the rebuilding measures are unlikely to trigger subs. 6.2(2) of the FSP. Major impacts may occur whenever there are significant changes to fisheries in TAC, access, allocation, or management approaches.

“…adverse…cultural impacts…”

Cultural impacts encompass both Indigenous and non-Indigenous considerations. The legislation does not define “adverse…cultural impacts.” The phrase means that the rebuilding plan measures under subs. 6.2(1) of the FSP are causing or would cause an unacceptable impact to a culture or cultural activity. The cultural reasons should be distinct from socio-economic impacts, as those are a separate factor under subs. 6.2(2).

“…may amend the plan or the implementation period in order to mitigate those impacts…”

If adverse socio-economic or cultural impacts are expected, DFO will explore whether alternative rebuilding measures or timelines can be implemented to meet the rebuilding objectives and mitigate these impacts such that plan is still consistent with the obligations of subs. 6.2(1) of the FSP; that is to rebuild the prescribed major fish stock above its LRP and within the guidelines for rebuilding plans set out in the Policy Guidelines for Writing Rebuilding Plans per the Fish Stocks Provisions and A Fishery Decision-making Framework Incorporating the Precautionary Approach.

If it is not possible to address the identified adverse impacts and remain aligned with subs. 6.2(1), the Minister can invoke subs. 6.2(2) and adjust the management measures in the rebuilding plan to mitigate the adverse socio-economic and/or cultural impacts. Under subs. 6.2(2) if the management measures are adjusted – for example, an increase in the allowable catch of the stock – this may make it necessary to extend the timeline to rebuild a stock above its LRP. For more details, see Guidelines for Writing Rebuilding Plans per the Fish Stocks Provisions and A Fishery Decision-making Framework Incorporating the Precautionary Approach.

“…minimizing further decline of the fish stock…”

The conservation-based obligation of subs. 6.2(2) of the FSP is to minimize further decline of the prescribed major stock. There must be a very low likelihood of preventable decline (<5% probability, as defined in Table 1 of these guidelines) for the duration of the amendment of the rebuilding plan. The intent of this guidance should be preserved if calculating probabilities or developing projections/simulations are not possible. This means that total fishing mortality on the prescribed major fish stock (both directed and bycatch) should be limited to levels that are expected to allow the stock to grow to the rebuilding target within the extended timeline.

4.2.3 – Subsection 6.2(3) of the FSP: Endangered or threatened species and international management measures

When does Subsection 6.2(3) of the FSP apply?

Subsection 6.2(3) of the FSP applies to a prescribed major fish stock that is at or below its LRP and is:

1. Part of a wildlife species listed on Schedule 1 of the Species at Risk Act (SARA) as Endangered or Threatened; or
2. Subject to an international management agreement that that does not permit Canada to meet the obligations in subs 6.2(1), for example to develop and/or implement a rebuilding plan for the stock.

How will DFO interpret and meet the obligations of Subsection 6.2(3) of the FSP?

“Subsection (1) does not apply…”

Subsection 6.2(3) of the FSP provides an exception from subs. 6.2(1). In other words, when subs. 6.2(3) applies to a prescribed major fish stock, the obligation to develop or implement a rebuilding plan no longer applies to that stock. If a rebuilding plan is currently in development, completion and approval of the rebuilding plan is no longer required. If the plan was previously approved, the implementation of the plan is no longer required. This provision is intended to eliminate conflicts that could arise if the prescribed major fish stock is required to meet the legislative obligations of the FSP as well as the SARA, or Canada’s international fisheries management obligations.

“…if the affected fish stock is an endangered or threatened species under the Species at Risk Act…”

This is the first situation where subs. 6.2(3) of the FSP may apply to a prescribed stock. It means that the Minister is not required to develop and implement a rebuilding plan to rebuild a prescribed major fish stock as per subs. 6.2(1) if the prescribed major fish stock is part of a wildlife species listed as Endangered or Threatened under Schedule 1 of the SARA.

If a stock is also a wildlife species listed on the SARA Schedule 1 as Endangered or Threatened before it is prescribed under the FSP, then DFO will not prescribe it under the FSP. If a stock is part of a wildlife species listed on Schedule 1 as Endangered or Threatened after it is prescribed by regulation under the FSP, DFO will invoke this exception to avoid conflicts between the FSP rebuilding plan and the provisions of the SARA.

This exception does not apply to stocks belonging to wildlife species listed on Schedule 1 of the SARA as Special Concern or Extirpated. A fish stock listed as Special Concern can also be prescribed under the FSP and be subject to section 6.1 or 6.2 depending on whether the stock is above or at or below its LRP.

In addition, this exception does not apply to stocks belonging to a wildlife species that have been assessed by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) that are still pending a SARA listing decision or are subject to a “Do Not List” decision. If a prescribed major fish stock is part of a wildlife species assessed by COSEWIC, but is pending a listing decision under SARA, DFO will continue to proceed to meet the applicable FSP obligation.

“…the implementation of international management measures by Canada does not permit it.”

This is the second situation when subs. 6.2(3) may apply to a prescribed major fish stock. It applies to prescribed major fish stocks subject to international management measures where the nature of those measures prohibits Canada from implementing its own rebuilding plan on its share of the international stock.

The wording of this exception creates a high bar that the existing international management agreements Canada is party to do not meet. These international agreements were created to facilitate management of highly migratory or straddling stocks. Generally, a set of management measures is agreed to by the parties of the agreement (e.g., TAC, country shares of the TAC, monitoring and reporting requirements, and possibly other management measures). The member parties are then obligated to implement these management measures. However, none of these agreements have conditions that prevent member parties from imposing additional management measures on their share of the stock, and thus subs. 6.2(3) of the FSP does not apply.

4.2.4 – Subsection 6.2(5) of the FSP: Habitat loss or degradation and restoration measures

When does Subsection 6.2(5) of the FSP apply?

Subsection 6.2(5) applies to a prescribed major fish stock at or below its LRP that is subject to subs. 6.2(1) or 6.2(2). DFO must meet the obligations under subs. 6.2(5) during the development of the rebuilding plan required under subs. 6.2.(1) or 6.2(2) and continue to meet the obligations for the duration of the rebuilding plan.

How will DFO interpret and meet the obligations of Subsection 6.2(5) of the FSP?

“In the management of fisheries…”

This means that DFO must meet the obligations of subs. 6.2(5) of the FSP when managing fisheries. However, because this provision is subordinate to s. 6.2, it is interpreted to apply only to rebuilding plans and does not need to be met for s. 6.1 decisions.

“…if the Minister is of the opinion that…has contributed to the stock’s decline”

DFO will advise the Minister on whether or not loss or degradation of the stock’s fish habitat has contributed to the stock’s decline, based on the best available evidence. Based on this advice, the Minister will form their opinion on whether habitat loss or degradation has contributed to the stock’s decline to or below its LRP.

“…loss or degradation of the stock’s fish habitat…”

The Fisheries Act defines “fish habitat” as “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.”

“Loss or degradation” is not defined in the Fisheries Act but for the purposes of subs. 6.2(5), it is defined as “an adverse change in fish habitat.” This includes, but is not limited to, adverse changes in the physical characteristics of the water, a reduction or change in physical features, or a change in the availability or suitability of habitat.

“Habitat” forms part of the definitions of “biology of the fish” and “environmental conditions” which, per subs. 6.2(1), must be considered when developing a rebuilding plan. Where these considerations are discussed in a rebuilding plan, habitat should be clearly distinguished.

“…take into account whether there are measures in place aimed at restoring fish habitat.”

“Take into account” means that DFO must only demonstrate that the Minister checked and confirmed whether there are measures in place aimed at restoring the habitat that have been put in place by DFO, other government jurisdictions, Indigenous peoples or groups, non-governmental organizations, private or public companies or community organizations. “Take into account” does not obligate DFO to restore the stock’s habitat, even if the loss or degradation of the habitat contributed to the stock’s decline.

A “measure” includes, but is not limited to, projects or actions to restore fish habitat such as repairing damage to physical habitat, constructing new habitat, removing structures or obstacles to aid fish passage, installing structures to aid fish passage, or closures that will allow natural restoration of the habitat⁴.

“In place” means a measure to restore the stock’s habitat:

• has been implemented and has restored habitat and/or continues to contribute to restoring habitat;
• has recently been implemented and is expected to restore habitat; or
•  is in the process of being implemented and is already contributing to restoring fish habitat.

It is recommended though not required under subs. 6.2(5) that DFO take into account habitat restoration measures for the stock regardless of whether or not habitat loss or degradation has occurred to ensure the rebuilding plan is comprehensive and reflective of all efforts to rebuild the stock.

Habitat considerations in the subs. 6.2(1) or 6.2(2) rebuilding plan

Refer to the Guidelines for Writing Rebuilding Plans per the Fish Stocks Provisions and A Fishery Decision-making Framework Incorporating the Precautionary Approach for more details on how subs. 6.2(5) is addressed in a rebuilding plan.

5. Glossary

Bycatch

Any retained catch that includes species and specimens of the target species, such as specimens of a particular sex, size, or condition, that the harvester was not licensed to direct for but is required or permitted to retain; and all non-retained catch, including catch released from gear and entanglements, whether alive, injured or dead, and whether of the target species or the non-target species. See DFO’s Policy on Managing Bycatch.

Cautious Zone

The stock status zone above the Limit Reference Point (LRP) and below the Upper Stock Reference (USR) as described in DFO’s 2009 PA Policy.

Critical Zone

The stock status zone for stocks at or below the Limit Reference Point (LRP) as described in DFO’s 2009 PA Policy.

Fishery

Can refer to the sum of all fishing activities on a given resource, for example a hake fishery or shrimp fishery. It may also refer to the activities of a single type or style of fishing on a particular resource, for example a beach seine fishery or trawl fishery.

Harvest Decision Rules (HDR)

Pre-agreed management actions to be taken under different stock status scenarios as described in DFO’s 2009 PA Policy. They are often described as a function of variables related to the status of the stock. For example, a decision rule can specify how fishing mortality (F) or yield should vary with biomass. Management acts on the rules using management measures. These measures are how the fishery's harvest levels and fishing activity are controlled or managed and include adjustments to Total Allowable Catch (TAC), effort levels or fishing time, gear modifications or usage, time and area closures, etc. Harvest decision rules are also sometimes referred to as harvest control rules or more infrequently, TAC decision rules.

Healthy Zone

The stock status zone above the Upper Stock Reference (USR) as described in DFO’s 2009 PA Policy.

Likelihood

Although often used to describe the extent to which a proposition (a hypothesis, or a model) explains available information (past events; e.g., the likelihood that habitat degradation or loss has contributed to a stock’s decline), for the purposes of this guidance, likelihood is also the chance that a given event will happen, quantitatively or qualitatively (e.g., high likelihood). Annex 2B of DFO’s 2009 PA Policy provides a likelihood scale of qualitative descriptors with their corresponding probability range (also provided as Table 1).

Limit Reference Point (LRP)

The stock status below which serious harm is occurring to the stock. At this stock status level, there may also be resultant impacts to the ecosystem, associated species and a long-term loss of fishing opportunities, as described in DFO’s 2009 PA Policy.

Maximum Sustainable Yield (MSY)

The maximum average annual catch, or yield, that can be removed from a stock over an indefinite period under prevailing environmental conditions. The maximum use that a fishery resource can sustain without impairing its renewability through natural growth or replenishment.

Precautionary Approach (PA)

Being cautious when scientific information is uncertain, unreliable or inadequate and not using the absence of adequate scientific information as a reason to postpone or fail to take action to avoid serious harm to the resource. See DFO’s 2009 PA Policy.

Prescribed Major Fish Stock

A stock that has been made subject to the Fish Stocks provisions in the Fisheries Act (ss. 6.1–6.3) by prescribing the stock in the Fishery (General) Regulations (ss. 69).

Probability

The chance (statistical or relative frequency) that a given event or outcome has or will occur. It is typically used when uncertainty is associated with an outcome and can be quantified.

Removal Reference (RR)

The limit fishing removal rate for the stock as described in DFO’s 2009 PA Policy. It is normally expressed in terms of fishing mortality (F) or harvest rate; but could also be described in other ways (e.g., number of trap-hauls). It includes mortality from all fishing pressures.

Risk

In general, the possibility of something undesirable happening, for example, of harm or loss, or of failing to meet fisheries management objectives. Risk occurs as a result of uncertainty, and is measured in terms of the consequences of an event and the probability of its occurrence.

Risk Tolerance

The tolerable, or acceptable, probability of an undesirable event occurring, such as a breach or a limit, or failure to achieve a target or other management objective.

Socio-economic Analysis

A broad concept which covers several different types of analysis. There is a wide array of methodological approaches to socio-economic analysis. The validity and usefulness of each type of approach depends on the issues and decisions being analyzed. Socio-economic analysis includes socio-economic profile, cost-benefit analysis, cost effectiveness analysis, multiple account evaluation or regional economic impact analysis.

Stock

A population of individuals of an aquatic species found in a particular area. Alternatively: the living resources in the community or population from which catches are taken in a fishery. Use of the term “fish stock” usually implies that the particular population is more or less isolated from other stocks of the same species and hence self-sustaining.

Target Reference Point (TRP)

Represents the overall stock level target for the stock as described in DFO’s 2009 PA Policy. It is determined by productivity objectives for the stock, broader ecological considerations and socio-economic objectives for the fishery. The TRP is typically set at or above the Upper Stock Reference (USR) and is unlikely to be the same level as the rebuilding target in a rebuilding plan.

Upper Stock Reference (USR)

The stock level threshold below which the removals must be progressively reduced in order to avoid, with high probability, reaching the LRP as described in DFO’s 2009 PA Policy. Here the USR is acting as an operational control point, and its selection depends on other components of the management procedure such as the target harvest rate, as well as the risk tolerance for an LRP breach.

Uncertainty

The incompleteness of knowledge about the state or processes (past, present, and future) of a natural system. Uncertainty can be divided into six types: including process, observation, model, estimation, institutional, and implementation. For a more detailed discussion, see Francis and Shotton (1997).

6. References

Benson A.J., Cooper A.B., Carruthers, T.R. 2016. An evaluation of rebuilding policies for U.S. fisheries. PLoS ONE 11(1): e0146278.

DFO. 2009. A fishery decision-making framework incorporating the precautionary approach. Last modified 2009-03-23..  

DFO. 2013. A science-based framework for assessing the response of fisheries productivity to state of species or habitat. DFO Can. Sci. Advis. Sec. Sci. Advis. Rep. 2013/067.

DFO. 2021. Science Advice For Precautionary Approach harvest strategies under the fish stocks provisions. DFO Can. Sci. Advis. Sec. Sci. Advis. Rep. 2021/004.

DFO. 2022. Guidelines for Writing Rebuilding Plans per the Fish Stocks provisions and A Fishery Decision-making Framework Incorporating the Precautionary Approach Policy. Last modified 2022-06-07.

Francis, R.I.C.C., Shotton, R. 1997. “Risk” in fisheries management: a review. Can. J. Fish. Aquat. Sci. 54(1699-1715).

Marentette, J.R. and Kronlund, A.R. 2020. A Cross-Jurisdictional Review of International Fisheries Policies, Standards and Guidelines: Considerations for a Canadian Science Sector Approach. Can. Tech. Rep. Fish. Aquat. Sci. 3342: xiii + 169 p.

Murawski, S.A. 2010. Rebuilding depleted fish stocks: the good, the bad, and, mostly, the ugly. ICES J. Mar. Sci. 67: 1830-1840.

NRC. 2014. Evaluating the Effectiveness of Fish Stock Rebuilding Plans in the United States. Washington, DC: National Research Council, The National Academies Press. 143 p.