Annex A: legislative amendements

1 Fisheries Act

Bill C-68 currently awaits second reading in the Senate, which is expected to take place in the fall of 2018. Some provisions of the Bill, including the new fish and fish habitat protection provisions, will not come into force at Royal Assent. They will come into force at a later date to be fixed by order of the Governor in Council.

A key feature of Bill C-68 is the introduction of a purpose provision stating that the purpose of the Act is to provide a framework for the proper management and control of fisheries, and the conservation and protection of fish and fish habitat. When making any decision under the Act, the Minister will also have a statutory duty to consider any adverse effects that such a decision could have on the rights of the Indigenous peoples of Canada, as recognized and affirmed by section 35 of the Constitution Act, 1982.

1.1 Habitat protection

One of the major changes to the Act involves the habitat protection provisions (section 35 related provisions). The current regime, as a result of the 2012 amendments to the Act, only offers limited protection to the habitat of fish in that it only prohibits the permanent alteration or destruction of fish habitat and such protection only applies to the fish habitat of fish that are part of a commercial, recreational or Aboriginal fisheries, or to fish that support such a fisheries. Under the Bill, the scope of the protection will revert to the pre-2012 protection regime and expand the prohibition to all harmful alteration, disruption and destruction (HADD) of fish habitat. Furthermore, the protection will apply to the habitat of all fish species, whether fished or not. The death of fish by means other than fishing will be prohibited in a separate section.

Other significant changes to the habitat protection provisions of the Act will include such things as:

• an expansion of the factors that must be considered by the Minister before issuing a paragraph 35(2)(b) authorization allowing a work or activity that causes a HADD to proceed
• formal statutory powers allowing the Minister to amend, suspend or cancel such authorization
• the development of Standards and Codes of Practice to guide the proponents of smaller routine projects
• a legislative regime to guide the developing practice of habitat banking (where proponents get credits for fish habitat restoration work done before projects are undertaken)
• the creation of a new class of large “designated projects” that must receive special permits
• new provisions for the creation of special protected areas known as Ecologically Significant Areas and for the creation of a public registry that will facilitate access to records relating to the fish and fish habitat protection and pollution prevention matters

1.2 Fisheries management

Bill C-68 also proposes several amendments to fisheries management provisions, notably to:

• clarify that the Fisheries Act applies in Canada, and also in Canadian fisheries waters (CFW) and, with respect to sedentary species, any portion of the continental shelf of Canada that is beyond the limits of CFW
• provide that the Minister may take socio-economic and cultural factors into consideration in making decisions under the Act
• provide an authority for the Minister to establish advisory panels
• require that the Minister implement measures to maintain major fish stock at or above the level necessary to ensure the sustainability of the stock. If a major fish stock declines at or below its limit reference point (LRP), the Minister shall develop a plan to rebuild the stock above that LRP
• provide the authority to cancel or suspend a fishing licence where the Minister determines that the licence holder is party to an agreement that contravenes the Act or where the licence holder is in default of payment of a fine in relation to a contravention to the Act
• provide authority for the Minister to make Fisheries Management Orders prohibiting or limiting fishing activities in a given area of Canadian fisheries waters in order to address threats to the conservation and protection of fish in a prompt manner
• provides a fee setting scheme for services, use of facilities, products, cost recovery, rights and privileges and regulatory processes
• prohibit the taking into captivity of a cetacean (unless permitted by the Minister due, for instance, to distress or injury)
• clarifies certain Governor in Council regulations making authorities and provides for new ones, such as making regulations with respect to:
  • the rebuilding of fish stocks
  • the circumstances when the holder of a licence is required to personally carry out the fishing activities
  • the use and control of the rights and privileges under licence to fish
  • the import of fish
• provides a new authority for the Minister to make regulations with respect to fishing, for the purposes of the conservation and protection of marine biodiversity
• provide for an alternative measures scheme, other than judicial proceedings, to deal with a person alleged to have committed an offence under the Act
• provide for the authority for fishery officers to exercised their powers, duty and function under the Act in a foreign State, subject to the consent of that State
• otherwise modernizes the powers of fishery officers and address issues that arose out of court decisions

2 Oceans Act and the Canada Petroleum Resources Act

Bill C-55 proposes amendments to the Oceans Act and the Canada Petroleum Resources Act (CPRA). The Bill was introduced in the House on June 15, 2017, and is awaiting second reading in the Senate. The proposed amendments will help expedite the designation process of Marine Protected Areas (MPAs) to achieve Canada’s marine conservation targets by 2020.

The most important amendments in the Bill will allow the Minister of Fisheries and Oceans and the Canadian Coast Guard to designate MPAs by way of Ministerial Order, on an interim basis, for a period not exceeding 5 years. The Order will have the effect of prohibiting most new activities that have not been conducted within the area over the year preceding the coming into force of the Order. This authority will allow the Minister to effectively “freeze the footprint” of a given area until further studies and measures can be identified to secure sustainable activities in that area. Within the 5-year timeframe, the Minister shall either recommend that a permanent Marine Protected Area be established through Governor in Council regulations or determine that the Ministerial Order be repealed.

Other significant changes to the Oceans Act include:

• a new requirement that the Minister and the Governor in Council not use lack of scientific certainty regarding the risks posed by any activities as grounds for postponing or refraining from designating an MPA
• modernization of the legislative text to more clearly reflect the Minister’s responsibility to establish a national network of protected areas
• modernization of enforcement officer powers, including the application of certain enforcement provisions to ships
• updates to the fines provisions to better align with the Environmental Enforcement Act
• creation of new offences for engaging in prohibited activities within a Marine Protected Area designated by order, and for failing to comply with directions to ships, detention orders, and compliance orders

This enactment also makes related amendments to the CPRA to, among other things:

• expand the authority to issue a prohibition order to prohibit an interest owner from commencing or continuing oil or gas exploration / production related work in a Marine Protected Area designated under the Oceans Act
• create a new authority to allow for the surrender or cancellation of an interest that is located in an area designated, or that may be designated, as a Marine Protected Area under the Oceans Act, and to determine the compensation for the surrender or cancellation of such interest

3 Wrecked, Abandoned or Hazardous Vessels Act

As part of the Oceans Protection Plan, Bill C-64 will enact the Wrecked, Abandoned or Hazardous Vessels Act. The Bill passed third reading before the House of Commons, and has been reported to the Senate. When adopted, this Act will provide authorities to the Minister of Fisheries and Oceans, represented by the CCG, to deal with abandoned or hazardous vessels, including their removal and destruction. The owner of the vessel will be liable for costs and expenses of measures related to the hazard caused by the vessel. The Act will also create offenses for abandoning a vessel. It will incorporate the International Convention on Removal of Wrecks into Canadian law. The responsibilities of the Act will be shared between DFO and Transport Canada.

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