On February 6, 2018, Dominic LeBlanc, the Minister of Fisheries and Oceans, tabled Bill C-68, An Act to amend the Fisheries Act (the “Act”). The Minister had been directed by the Prime Minister to restore the lost protections in the Fisheries Act as part of his mandate.
As part of the consultation process, the government received over 200 indigenous group submissions, as well as conducting 170 meetings with indigenous groups.
The proposed amendments would restore many of the protections present under the pre-Harper 2012 Fisheries Act. As a result of the Harper-era legislation, between 2012-2016 there were no prosecutions for fish damage. Alongside these new provisions, the federal government also pledged up to $284.2 million to ensure monitoring and enforcement, in order to remedy these shortcomings.
It is anticipated that these amendments will have the target deadline of June 2019 (election year) for receiving Royal Assent and being passed into law.Below is a summary of key changes in the new proposed Act and their potential impact to Indigenous peoples.
The new Act makes several proposed changes to the definition section. Perhaps most importantly, all fish are now considered equal – whereas the Harper-era Fisheries Act only protected fish that were part of an aboriginal, recreational, or commercial fishery.
In relation to a fishery, Indigenous now has the definition of “food that is harvested by an Indigenous organization or any of its members for the purpose of using the fish as food, for social, or ceremonial purposes, or any purposes set out in a land claims agreement.”
Indigenous Governing Body is defined as a “Council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act 1982.”
As well, the definition of laws under the Act is expanded to include by-laws made by and Indigenous governing body. This has important repercussions for First Nation groups who either have self-government or are in the process of formalizing their laws.
Decision-Making and Indigenous Peoples
In the new proposed section 2.4, the Minister shall consider any adverse effects that a decision made under the Act will have on the rights of Indigenous peoples of Canada, that have been recognized and affirmed by s. 35. However, it is unclear what is meant by “shall consider,” and how this differs from the present requirements for consultation under s. 35.
Under the common law, government consultation and accommodation with indigenous peoples must be conducted in relation to strength of the aboriginal claim. Since s. 2.3 states that nothing in the Act should be construed as derogating from Indigenous rights contained in s. 35, the question remains whether s. 2.4 provides consideration for consultation and accommodation to the rights of Indigenous people above and beyond what is already required. If it does not, then it is on its face a redundant provision.
In the list of factors that the Minister may consider when making a decision under the Act in section 2.5, there is now provision for considering traditional knowledge of the Indigenous peoples of Canada, community knowledge, as well as social, economic, and cultural factors, and cooperation with any Indigenous governing body established under a land claims agreement.
While the factors under s. 2.5 include a much broader scope of factors than the current Fisheries Act, it is important to note that these are only factors that the Minister may consider, and he has no requirement to do so, as he does in other sections in the proposed amendments, such as in s. 2.4 and s. 34.1(1). The use of discretionary language throughout the Act has already been criticized.
However, under the new proposed s. 34.1(1), the Minister shall consider traditional Indigenous knowledge before making a recommendation to the Governor in Council in regard to making regulations dealing with the death of fish or harming fish habitat.
Problematically, the new proposed amendments do not include a definition of traditional indigenous knowledge. It is unclear whether government will interpret traditional indigenous knowledge as being knowledge that is frozen in a historical period, or whether it can include current forms and modes of knowledge. More importantly, it remains to be seen how the government will handle and apply this knowledge, and whether capacity training will be required for government staff in order for them to be able to adequately make use of indigenous knowledge.
As a result of concerns raised in the consultation period, Indigenous traditional knowledge will be protected from being revealing publicly, or even to a project’s proponents, unless written consent is obtained from the Indigenous community that provided it (s. 61.2(1)).
Under the new proposed section 4.1(1), the Minister may enter into agreements with any Indigenous governing body in order to further the purposes of the Act.
The purposes of the Act have been reframed as:
(a) the proper management and control of fisheries;
(b) the conservation and protection of fish and fish habitat, including by preventing pollution.
Under the current regime, the government can already enter into two types of negotiated agreements with First Nations: Comprehensive Fisheries Agreements (CFA’s) and Project Funding Agreements (PFA’s). This was the case with Squamish Nation and the DFO, who entered into an agreement in regard to the amount of salmon that could be fished for food, social, and ceremonial (FSC) purposes in a CFA. However, after Squamish Nation repeatedly did not receive enough quota to fulfill their FSC needs, they become embroiled in a court battle with the DFO in an attempt to increase their quota. The matter is currently on appeal.
The scope of the new proposed co-management agreements is arguably broader, given the new stated purposes of the Act. It remains to be seen whether these co-management agreements will provide a chance for true and equal management and participation, or whether the problems that exist under the current regime will persist.
Under the new Act, the Minister may make an emergency “fisheries management order” if he or she is of the opinion that prompt measures are required to address a threat to fisheries. Under section 9.1(1), this order can make it prohibited to fish a certain type of fish, and use certain gear, as well as imposing other requirements with respect to fishing. These orders will stay in effect for 45 days, and can be renewed by the Minister as required (section 9.4(1) and (2)).
Section 34.2(3) also establishes that the Minister may consult with any Indigenous governing bodies or any person interested in the protection of fish or fish habitat, or the prevention of pollution. Because this provision states “Indigenous governing bodies or any person interested” it is broader than the consultation requirement under s. 35 owed when there is a potential impact on indigenous rights. For indigenous populations, this will allow for greater opportunities to participate in decision-making processes, even when rights are not directly affected.
When these provisions are paired with the ability of the Minister to enter agreements with First Nations, as well as the requirement elsewhere in the Act to consider traditional Indigenous knowledge, it will become more possible for First Nation’s to have more of a say in protecting species, such as herring, that are critical to their livelihood.
Protection of Fish and Fish Habitat
The amendments to the Fisheries Act also restores the pre-Harper era protections for fish habitat, also known as the “HADD” provisions. The definition of fish habitat is broadened to include any water frequented by fish.
Under the proposed section 35(1), no person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat unless authorized to do so by the Minister. The Minister also now has the power to make regulations related to the restoration of fish habitat.
The Department of Fisheries and Oceans states that the result of this modern fish habitat protection program will be to enable Indigenous peoples to participate in developing national policy through the multi-interest advisory panel, project reviews, as well as monitoring.
It is also worth noting that there are no provisions in the amendments dealing specifically with the harvesting fish via fish farms.
The proposed changes also call for the creation of a new public registry under section 42.2. This public registry will have a record of orders made by the Minister under the death to fish and harm to fish habitat provisions. A public record of these decisions may make it easier to determine the cumulative effects within a specific ecosystem.
Under the new proposed changes in section 92, the Fisheries Act will come under review every five years. This means that there may be potential for further consultation with First Nations in regard to future changes that need to be made to the Fisheries Act.
In conclusion, the amendments in the Fisheries Act are a step in the right direction, however given the discretionary powers remaining in some sections of the Act, it remains to be seen whether there will be any benefits to Indigenous peoples in practice, given the ambiguous scope of many of the new provisions and the uncertain impact of future regulations.
Lisa C. Fong and Kimberly Webber