“Stephen Harper’s changes to the Fisheries Act and his elimination of the Navigable Waters Protection Act, have weakened environmental protections. We will review these changes, restore lost protections, and incorporate more modern safeguards.”
This quote is from the federal Liberals 2015 election campaign mandate.
On February 6 of this year, the now governing Liberals attempted to live up to a portion of that campaign promise with announced amendments to the Fisheries Act. Fisheries Minister Dominic LeBlanc said the amendments would restore lost protections and incorporate modern safeguards to protect Canada’s fish and their habitat for generations to come.
“To preserve, protect and help restore our environment we need a Fisheries Act that Canadians can trust. Today, I am pleased we are introducing amendments to the Fisheries Act that will restore the protections for fish and fish habitat that were lost under the previous government. We are responding to calls from Canadians who told us clearly that the health of our fish and ecosystems is important to them, and that they want us to protect and rebuild fish habitat. By restoring lost protections and incorporating modern safeguards, we are creating a Fisheries Act for the future to preserve our precious resources for generations to come.”
The main crux of Bill C-68 is aimed at restoring the protections to all fish and fish habitats that were lost with changes that were made by the Harper government in 2012.
“Proposed changes would also put in place new modern safeguards to help communities by better managing projects, enhancing marine protection and allowing the sustainable use of our resources while protecting them for our future.”
The government said it will invest up to $284.2 million to support restoring lost protections to fish and incorporating modern safeguards.
Along with the environmental focus of the Fisheries Act amendments, the government also emphasized its stance on enforcing PIIFCAF (Policy for Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries).
The proposed PIIFCAF-related amendments would “help ensure that the economic benefits of fishing remain with the licence holders and their community by providing clear ability to enshrine current inshore fisheries policies into regulations.”
According to government, the current legislation does not allow for any provisions regarding the independence of licence holders.
It appears the Liberals are attempting to strengthen the law surrounding PIIFCAF and greatly reduce future court challenges similar to the 2017 Kirby Elson and Canada (Attorney General) case.
In the highly publicized court decision, Justice Cecily Strickland ruled that the owner-operator, fleet separation and PIIFCAF policies were within the authority of the Minister of Fisheries and Oceans and could be enforced, thus, DFO was entitled to strip fishing licenses from Cartwright, Labrador fisherman Kirby Elson.
However, lawyers might not have to tidy up their resumes just yet as a result of the Fisheries Act amendments. If the changes are approved in Ottawa and turned into law, the revised Fisheries Act, according to some in the law profession might require more legal interpretation than ever before.
According to Cristin Schmitz, who writes for The Lawyer’s Daily website, the proposed legislation might actually be a boon for the legal community across the country.
Schmitx interviewed Jean Piette, a senior environmental lawyer with Norton Rose Fulbright in Quebec City, who explained that in its attempt to provide more clarity, the federal government actions might actually lead to the need for more legal interpretation, especially on the environmental front.
“Lawyers are going to be called to provide more advice [and] more guidance to private industry because private industry will have to live up to the requirements of the new legislation. The regulated community, which includes certainly fishermen but also includes all industries that have activities that may impact fish habitat or fish populations… will have more work to do under the Act to meet its objectives and adjust to this new regulatory environment. The government has added many new elements to the Fisheries Act, while trying also to make its requirements clearer and bring more certainty and predictability to fisheries regulation. But sometimes when you try to bring more clarity, you also insert items or considerations that can lead to litigation, so you might have that also in the proposed Act,” Piette told The Lawyer’s Daily.
So, has the government, in its attempt to clarify the Act, actually made it more complex? Hard to say.
While harvesters’ organizations across Atlantic Canada are praising the proposed amendments, notably the hardening of PIIFCAF, others in the fishing industry are taking a more wait and see approach.
The Fisheries Council of Canada (FCC) said it is cautious, but hopeful the proposed legislative framework will facilitate and enable the fisheries sector to be prosperous long into the future.
“The amendments are 76 pages in length. It will take time to review, digest and analyze the Bill. The Council is pleased the minister did not just restore old protections but in modernizing the Act, the scope of changes is more complex. The future of the fisheries sector depends on this framework legislation. The Fisheries Act is our bible, governing all aspects of the fisheries sector. The amendments are far-reaching and some implications may not appear for years to come. It is critical that we have an open and honest discussion to make sure we get it right,” FCC President Paul Lansbergen said in a press release.
So, are the fisheries legislation waters about to be more transparent for all involved, or is there another tide of legal murkiness about to cloud the view? Only time and the lawyers will tell.
