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FOPO Committee Report

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The New Democratic Party of Canada respectfully submits the following dissenting opinion to the Standing Committee on Fisheries and Oceans’ Review of Changes made in 2012 to the Fisheries Act and the Management of Canadian Fisheries.

It is our opinion that the restoration of HADD (Harmful Alteration, Disruption & Destruction) should have been implemented immediately following the last Federal Election. Once habitat protections were restored to the Act, a thorough review and consultation to further improve and modernize the Fisheries Act could have been undertaken.

While we respect the hard work of the Committee, we believe that there was insufficient time allotted to complete a thorough study. This abbreviated timeline prevented some written evidence to be translated and received by Committee members in a timely matter. We think this is an unfortunate circumstance that could have been easily remedied by allotting the proper amount of time necessary for a thorough review.

The Committee heard from a number of witnesses in a variety of formats but many Canadians and First Nations were excluded from presenting testimony in person. The Committee did not travel to costal and freshwater communities and as a result did not fully engage Canadians in this important process.

It was clear from the beginning of this study that the letter to the Committee from the Fisheries Minister combined with a public press release and website launch by the Department of Fisheries and Oceans announcing consultations on the review of the Fisheries Act caused confusion amongst Committee members and the public as to the perceived scope of the study.  This confusion remained evident throughout the Review.

It is our opinion that the final version of the report should include a reference to the huge outcry by those opposed to the 2012 changes to the Fisheries Act that removed the harmful alteration, disruption or destruction of fish habitat (HADD).  Specifically, four former Federal Fisheries Ministers wrote an open letter objecting to the 2012 changes and more than 700 scientists wrote a letter urging the government to keep habitat in the Act. Thousands of First Nations, environmental organizations and concerned citizens also spoke out against these changes. This is significant and should be mentioned in the report.

Finally, the report should reference the only court case that considered the 2012 Section 35 amendment. The Federal Court said this provision removed the protection of fish habitat.  We believe this judicial interpretation from judges, the ultimate legal experts, on the meaning of the 2012 amendments and its reference to Aboriginal Rights are significant and should be included in the report. The New Democratic Party of Canada supports evidence provided to the committee by West Coast Environmental Law in their written brief entitled: Habitat 2.0. 

It says:  It appears that the sole case commenting on this provision is Courtoreille v. Canada 36, the Mikisew Cree First Nation’s successful judicial review action challenging the inadequate consultation with First Nations on Bill C-38 which amended the Fisheries Act, among other matters, and substantially affected Aboriginal rights. The Federal Court pronounced on the Act as follows: [91] Hence the amendments to the Fisheries Act removed the protection to fish habitat from section 35(1) of that Act. The Applicant submitted that this amendment shifted the focus from fish habitat protection to fisheries protection which offers substantially less protection to fish habitat and the term “serious harm” permits the disruption and non-permanent alteration of habitat. [101] ... In addition, for the reasons the Applicant expressed above, the amendment to s. 35(1) of the Fisheries Act clearly increases the risk of harm to fish. These are matters in respect of which notice should have been given to the Misikew together with a reasonable opportunity to make submissions.

Based on evidence provided to the Committee, the New Democratic Party of Canada believes the following recommendations should be included in the Report, and ultimately incorporated into the Fisheries Act, in order to fully modernize the Act:

  1. Purpose Statement & Preamble – Insert a General statement of objectives or purposes of the Fisheries Act and a preamble.  Similar to the Oceans Act or The Species at Risk Act, both have an extensive preamble and short and succinct statement of purposes.  This should include: ecosystem management, a precautionary approach, and science-based management.
  2. Amended s.35. (1) that would prohibit any “work, undertaking or activity that results in harmful alteration or disruption, or the destruction of fish habitat.” Restore the former HADD and strengthen protection by including the word “activity.” Remove the concept of ‘serious harm to fish” from the Act, and reinstate the prohibition on HADD.
  3. Restore EnvironmentalAssessment triggers:

    Re-establish Section 32, 35 and 36 authorizations as EA triggers

  4. Prioritize the Protection of Fish and Fish Habitat
    • Renew DFO’s commitment to “No Net Loss” and “Net Gain”, with a renewed focus, effort and resources on enhancement of fish habitat;
    • Meaningfully resource the monitoring, compliance and enforcement components of DFO, and expand such activities through agreements and collaboration with First Nations;
    • Address known regulatory gaps promptly to ensure that DFO, in collaboration with First Nations, are capable of responding to all activities that are harmful to fish or fish habitat and are able to actually determine effects (e.g. ongoing collection of baseline data that allows determination of changes due to activities);
    • DFO must take the lead on both the protection of habitat and the restoration of habitat;
    • Remove the promotion of salmon farming as an industry and farmed salmon as a product from the DFO’s mandate;
    • Protect fish habitat from key Activities that can damage habitat, such as destructive fishing practices and cumulative effects of multiple activities;
    • Mandate rebuilding fish stocks when they have fallen below healthy levels;
    • Mandate a report annually to Parliament on the status of Canada’s fish stocks and on management decisions made for stocks in the critical zone;
  5. Emphasize principles of sustainability
    • Adopt key sustainability principles;
    • Protect ecological integrity of fish habitat;
    • Respect Indigenous laws regarding sustainability;
    • Take an ecosystem approach to protection and restoration of fish habitats so that the entire food web is preserved for fish;
    • Protect fish habitat from key threats, such as a changing climate;
    • Protect key areas of fish habitat activities.
  6. Advance the “Nation-to-Nation” Relationship with First Nations
    • Recognition of Indigenous rights in the Act;
    • Move beyond “delegation” to work with First Nations as partners in fisheries management;
    • Recognize First Nations right to all forms of commercial trade/barter opportunities;
    • Include guiding principles of reconciliation that allow for and promote consent-based shared decision-making processes (e.g. co-management/co-governance) with First Nations and that have the flexibility to reconcile pre-existing sovereignty and First Nations’ jurisdictional authority;
    • Expand factors considered in decision-making to include principles of sustainability (including ecological integrity and cultural sustainability), Indigenous law, protection of inherent Aboriginal rights, and the principles found in the United Nations Declaration of the Rights of Indigenous Peoples;
    • Ensure meaningful consultation, accommodation and a consent-seeking process with First Nations to build new regulations;
  7. Reduce discretionary power and expand scope of Ministerial Consideration
    • Reduce Ministerial discretion through establishment of shared decision-making;
    • Broaden the Minister’s mandate to consider long-term conservation and protection of fish and fish habitat when evaluating projects that contravene the Fisheries Act;
    • Limit the discretionary nature of the Ministerial Authorization and ensure that the remaining discretion is not structured in a way that infringes Aboriginal rights.
  8. Increase on the ground resources to enforce the Fisheries Act
    • Get more boots on the ground by recruiting and retaining habitat monitors, including Fishery officers who are dedicated to habitat protection and who have the power to make orders or charge people with non-compliance on site (such as with the Inspectors Direction).
    • Ensure habitat protection staff are adequately trained and resourced with long-term funding. Empower field staff to do their job to protect fish and fish habitat.
  9. General Regulation Changes
    • The Minister, in the exercise of their discretionary power over licencing, may specify conditions of licence respecting and in support of social and economic objectives, in addition to the conservation objectives currently identified.
    • Regulatory provisions should be promulgated, either in the Fisheries General Regulations or a separate instrument, setting out the Owner-Operator and Fleet-Separation policies in regulatory form, and specifying criteria for application of these measures to particular fisheries.
    • Regulatory change to state that the legal interest of the holder of a fishing licence and the related beneficial interest of the fishing licence are inseparable.