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On February 6, 2018, the federal government tabled Bill C-68 An Act to Amend the Fisheries Act and other Acts in consequence.
This bill implements an oft-repeated promise of the Liberal government of Prime Minister Justin Trudeau to restore fish and fish habitat protections removed by the previous Conservative government. You will remember that, in 2012, Stephen Harper’s government introduced amendments replacing the protection of fish and fish habitat by a more utilitarian vision of Canada’s fish resources by limiting certain Fisheries Act protections to “commercial, recreational or Aboriginal” fisheries or to fish that support such a fishery.
With the 2012 legislative amendments, the government of the day introduced the concept of “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery”while restricting the concept of “serious harm” so it included only the death of fish or any permanent alteration to, or destruction of, fish habitat. The concept of serious harm was inserted into six sections of the Fisheries Act, including a section that incorporated the concept into the minister’s discretionary powers in respect of a dozen sections of the Fisheries Act.
These amendments reduced the scope of the Fisheries Act, especially for industrial or commercial projects likely to affect the aquatic environment.
Bill C-68 proposes to replace the concept of serious harm by reviving the concept of “harmful alteration, disruption or destruction of fish habitat.” The concept of “habitat” will be broadened to clearly include all waters in which fish live. These and other amendments will roll back the changes introduced by the Conservatives, restoring the protections that existed before 2012.
Bill C-68 does not stop there, however. It is far more ambitious. It introduces new legal concepts that broaden the scope of the Fisheries Act and give great importance to Canada’s Indigenous peoples.
Bill C-68 reflects the government’s commitment to Canada’s Indigenous peoples. By making it a requirement in the Fisheries Act that the minister consider the rights of Indigenous peoples before making a decision, the government is taking a step that has obvious political and legal implications, since the Act applies to fishing, a traditional activity of considerable historical, cultural and economic importance to Indigenous peoples.
The bill provides such indigenous recognition in various ways, including by:
Bill C-68 requires that the minister consider a whole series of factors or criteria in exercising his or her discretionary powers under the Fisheries Act. Those factors, many of which have never been seen before, include:
While maintaining the discretionary nature of decisions made under the Fisheries Act, the above-listed factors, although still optional (“the minister may consider”), include considerations that are not always obvious for legislation designed to protect fish and the environment of fish. For example, Bill C-68 marks the first time that “the intersection of sex and gender with other identity factors” is being included in environmental protection legislation.
Under Bill C-68, projects deemed likely to affect fish or fish habitat will be “designated projects” and will require a ministerial authorization.
In a way, this innovation provides greater certainty, because developers of such projects will know in advance that they will need a permit. This will allow the federal government to further regulate projects of all kinds, including industrial, municipal and even government projects that are likely to affect fish. This new federal involvement in activities that have traditionally been regulated through permits issued under provincial laws could result in more environmental red tape for businesses and public bodies.
It will be interesting to follow the work of the standing committee of the House of Commons to which the bill will be referred, especially if it holds public hearings on the bill.
The EPA will apply enforcement discretion for noncompliance: (i) during the period of the policy; (ii) that results from the COVID-19 pandemic.