Legislative and regulatory framework

Purpose

• Outline the powers and responsibilities of the Minister of Fisheries, Oceans and the Canadian Coast Guard stemming from a number of statutes and regulations
• Provide information on key statutes and regulations that are associated with the role of the Minister in managing Canada’s fisheries and oceans, including:
  • Managing and authorizing a diverse array of fishing activities
  • Authorizing industrial development activities which impact fish habitat
  • Working with ministers in other departments to conserve and protect fish, including cetaceans, marine ecosystems and aquatic species at risk
• Provide information on key statutes that are associated with the role of the Minister with regard to coast guard operations

Legislative and regulatory framework: Overview

Constitution

Fisheries fall largely under federal jurisdiction, as per the division of powers established in the Constitution Act, 1867. The provinces’ jurisdiction over fisheries relate mostly to ownership of river beds.

Legislation

Departmental mandate and objectives are outlined in seven primary statutes and seven issue-specific statutes. Recent amendments to the Fisheries Act and the Oceans Act have updated the Department’s mandate, as well as the Minister’s responsibilities and powers.*

Regulation

Five key pieces of legislation with associated regulations to manage Canada’s fisheries.

*Please see Annex A for recent amendments to the Fisheries Act and Annex B for recent amendments to the Oceans Act

Constitutional framework

The Constitution Act, 1867 establishes the division of federal and provincial powers

Unlike many resource-based federal departments, Fisheries and Oceans Canada manages a resource that falls largely under federal jurisdiction

Federal jurisdiction

• In tidal waters, fisheries are an exclusive federal jurisdiction
• Coast guard services are within the exclusive legislative jurisdiction of Parliament

Provincial and territorial jurisdiction

• The management of inland fisheries is administered by the provinces and territories; regulatory changes require federal support
• A strong relationship with these governments is essential to ensure the alignment of environmental, fisheries and aquaculture policies

Shared Jurisdiction

• In non-tidal waters, constitutional jurisdiction over fisheries is shared
• Parliament has jurisdiction over conservation issues, such as the setting of fishing seasons, quotas, and size limits
• Provincial legislatures’ jurisdiction are rooted in their ownership of the river beds, and relate mostly to the issuance of authorizations to fish within the province and to whom they are issued

Legislative framework: Overview

The mandate and objectives of Fisheries and Oceans Canada are outlined in seven primary statutes and seven issue-specific statutes.

Seven primary statutes:

• Department of Fisheries and Oceans Act
• Fisheries Act
• Oceans Act
• Coastal Fisheries Protection Act
• Fishing and Recreational Harbours Act
• Species at Risk Act
• some provisions of the Canada Shipping Act, 2001

Seven issue-specific statutes:

• Freshwater Fish Marketing Act
• Fisheries Improvement Loan Act
• Fisheries Development Act
• Atlantic Fisheries Restructuring Act
• Great Lakes Fisheries Convention Act
• Wrecked, Abandoned or Hazardous Vessels Act
• Arctic Waters Pollution Prevention Act

Other Acts of interest:

• Marine Liability Act
• Impact Assessment Act

Legislative framework: Seven primary statutes

Department of Fisheries and Oceans Act:

Creates the Department and outlines the general powers and responsibilities of the Minister in relation to: fisheries; harbours; hydrography and marine sciences; and, all policies and programs respecting oceans.

Fisheries Act:

Creates a framework for the Minister to manage and control fisheries and protect and conserve fish and fish habitat; and establishes powers related to fishing licences and leases.

Oceans Act:

Entrusts the Minister with leading integrated oceans management and provides for the powers, duties, and functions of the Minister in relation to Coast Guard and hydrographic services.

Coastal Fisheries Protection Act:

Creates a framework for the Minister to manage access by foreign fishing vessels to Canadian fisheries waters, including the issuance of licences and enforcement of fisheries law on the high seas.

Fishing and Recreational Harbours Act:

Provides the Minister with authority to regulate the use, management and maintenance of recreational or fishing harbours, including collection of fees for the use of those harbours.

Species at Risk Act:

Administered in partnership with Environment and Climate Change Canada and Parks Canada, the Act gives the Minister responsibilities associated with the management of aquatic species at risk.

Canada Shipping Act, 2001:

The Minister of Transport is responsible for this Act, which provides specific powers and authorities to the Minister of Fisheries and Oceans related to marine search and rescue, pollution response, and marine communications and traffic services.

Associated regulatory framework

There are five key pieces of legislation which have associated regulations that the Department relies on to manage Canada’s fisheries and aquatic ecosystems.

Fisheries Act:

There are four general groups of regulations under the Fisheries Act: 1) Fisheries administered by the Department; 2) Fisheries administered by Provinces/Territories; 3) Regulations with respect to Indigenous fisheries; and, 4) Regulations with respect to marine mammals.

Oceans Act:

Regulatory instruments made under this Act are primarily various marine protected areas regulations and Ministerial Orders designating interim marine protected areas.

Coastal Fisheries Protection Act:

The Coastal Fisheries Protection Regulations (CFPR) establish the Minister’s power to issue licences authorizing foreign fishing vessels to enter Canadian fisheries waters to engage in specified fisheries- related activities. The CFPR also set out the applicable boarding and inspection procedures.

Fishing and Recreational Harbours Act:

The Fishing and Recreation Harbours Regulations regulate the use, management, and maintenance of certain fishing and recreational harbours in Canada, including setting out fees and charges.

Species at Risk Act:

Examples of regulatory activity under the Act include amending the List of Wildlife Species to the Act and the creation of orders to protect the habitat of at risk species.

Legislative framework: Seven non-primary statutes

Freshwater Fish Marketing Act:

Creates a Crown Corporation, the Freshwater Fish Marketing Corporation, for the purpose of marketing and trading in freshwater fish/fish products in and outside Canada and increasing returns to fish harvesters.

Fisheries Improvement Loan Act:

Gives the Minister the power to guarantee fishermen’s loans made for vessels, equipment, shore installations, buildings, or any prescribed (by regulation) development or improvement of a primary fishing enterprise.

Fisheries Development Act:

Provides for the development of the commercial fisheries of Canada. Under this Act, the Minister may undertake projects, including jointly with a Province or a person, for the more efficient exploitation of fishery resources and for the exploration and development of new fishery resources.

Atlantic Fisheries Restructuring Act:

Provides that the Minister may make contributions or loans to fishery enterprises to “facilitate the development of viable Atlantic Fisheries that are competitive and privately-owned through the restructuring of fishery enterprises”.

Great Lakes Fisheries Convention Act:

Implements the Convention on Great Lakes Fisheries between Canada and the United States of America. The Convention establishes the Great Lakes Fishery Commission with members from both countries.

Wrecked, Abandoned or Hazardous Vessels Act:

The Minister of Transport is responsible for this Act, which provides specific powers and authorities to the Minister of Fisheries and Oceans, through Coast Guard, to manage hazardous or dilapidated vessels on property under the Minister’s responsibility, including the authority to remove or destroy such vessels.

Arctic Waters Pollution Prevention Act:

The Minister of Transport, Minister of Indigenous and Northern Affairs, and Minister of Natural Resources are responsible for this Act, which promotes exploitation and transport of the natural resources of the Arctic.

Annex A: Amendments to the Fisheries Act

In the 42^nd Parliament, the Fisheries Act was amended with royal assent of Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence

Amendments to the Fisheries Act:

• A new purpose clause and a list of considerations the Minister may take for decision making
• Prohibition against the death of fish and the harmful alteration, disruption or destruction of fish habitat
• New requirements and protections to strengthen reconciliation with Indigenous peoples
• New prohibitions on fishing for cetaceans for the purpose of keeping them in captivity and the import or export of a cetacean without a permit
• The addition of specific prohibitions on the practice of shark finning, as well as the import and export of shark fins
• Empowers the Governor in Council to make new regulations related to the rebuilding of fish stocks and restoration of fish habitat

The Minister has new authorities to:

• Establish advisory panels, set fees, and collect information
• Make fisheries management orders to address a threat to the proper management and control of fisheries and the conservation and protection of fish
• Establish regulations to support independent inshore licence holders
• Establish regulations defining which projects (or parts of projects) would always require a permit, as well as the development of codes of practice for small, routine projects
• Establish regulations for the purposes of the conservation and protection of marine biodiversity

Annex B: Amendments to the Oceans Act

• Ability to designate an interim marine protected area (MPA) boundary and ‘freezing the footprint’ of ongoing activities in the area based on initial science and consultations via a Ministerial Order
• The interim MPA would be in force for up to five years during which the process to establish protection via a proposed permanent Governor in Council (GIC) regulation would continue. After the five years, the interim MPA would be repealed or replaced by a permanent GIC regulation
• The Minister is required to apply the precautionary principle when deciding to establish any Oceans Act MPA
• Enforcement powers and fines are strengthened to align with updated, current provisions in other legislation, such as the Environmental Enforcement Act