Bill C-68, An Act to amend the Fisheries Act
On February 6, 2018, the government of Canada introduced Bill C-68 to the House of Commons. The Bill proposes An Act to amend the Fisheries Act and other Acts in consequence and was announced by Fisheries Minister Dominic LeBlanc as part of a promised overhaul of the Fisheries Act by the Liberal government. Fisheries, as well as river, lake, and ocean resources represent an integral part of the diet, socio-economic well-being, and cultural identity of many Indigenous communities. As such, this Bill may have consequences for First Nations.
In 2012, the then-Conservative federal government scaled back protections under the Fisheries Act to only protect fish that were part of commercial, recreational, or Aboriginal fisheries. They also removed the prohibition against the “harmful alteration, disruption, or destruction of fish habitat” or “HADD”. This was widely viewed as a substantial watering down of the Fisheries Act and its power to protect the environment and promote sustainable fisheries. Under Bill C-68, those protections would be restored. That means that the Minister must not authorize activities that would result in adverse impacts on fish habitats.
In addition to this reintroduction, the bill offers a number of provisions that could strengthen Indigenous rights and engagement in relation to fisheries protection and management. This includes explicit consideration of adverse effects to Indigenous rights, the inclusion of traditional knowledge in decision-making, and management agreements that allow Indigenous governments to enact their own fisheries laws. While these are improvements to the previous Fisheries Act, it is yet to be seen how effective they will be as the Minister would have a considerable amount of discretionary power regarding their implementation.
Changes to the Fisheries Act proposed in Bill C-68
As noted above, Bill C-68 introduces a number of amendments that could benefit First Nations. The Bill would enable the Minister to enter into management agreements with Indigenous governing bodies (eg. councils, governments) in the same manner as the federal government is able to with provincial governments. Under such agreements, Indigenous governing bodies could pass their own fisheries laws, which could prevail over provisions of the Act. This may allow for greater self-determination for First Nations in fisheries management and protection.
The Bill also requires the Minister to consider any adverse effects on Aboriginal and treaty rights when making decisions. Although this is nice to see, it is not a significant change as the Minister must already consider such effects in order to fulfil the Crown’s constitutional duty to consult with Aboriginal groups. The bill would also add a non-derogation clause to affirm that the Act is not interpreted to abrogate or derogate from Aboriginal and treaty rights. This is a positive affirmation in light of the increased Ministerial discretion provided by this Bill, but as caselaw only permits legislative infringement of rights in express and exceptional cases, this change would likely not alter the status quo.
Another amendment would explicitly encourage the Minister to consider any traditional knowledge provided by Indigenous communities when making decisions. While traditional knowledge is included in the list of possible considerations, its discretionary status means it is not required. Therefore, while this is a step in the right direction, the interests of Indigenous communities would be better served by a mandatory requirement for the Minister to consider traditional knowledge when Indigenous people choose to provide it. There may be concerns among traditional knowledge holders about sharing that knowledge in the public sphere. The Bill attempts to alleviate this concern by requiring that the knowledge shared not be revealed to the public or to project proponents without the written consent from the Indigenous group. However, there are exceptions to this confidentiality provision and the level of protection may depend on how those exceptions are interpreted and how the necessary regulations are crafted. It is also unclear how this protection would interact with requests made under federal freedom of information legislation.
The Bill also sets out that the purpose of the Act is to provide a framework for the proper management and control of fisheries and the conservation and protection of fish and fish habitat, including by preventing pollution. This is positive interpretive direction; however, a more substantial purpose section was requested by some First Nations that included, among other things, reconciliation with Indigenous peoples as a purpose of the Act. This request was not incorporated in the Bill
In addition to the proposals discussed, Bill C-68 contains re a number of other welcome amendments that would:
• introduce the “precautionary principle” as a consideration for decision-making;
• allow the Minister to order the rebuilding of fish stocks;
• allow short-term restrictions on fisheries in case of emergencies;
• prohibit the capture of whales and dolphins for keeping in captivity (unless injured and in need of aid);
• create a new online public registry designed to increase transparency and help prevent cumulative impacts to fish habitats;
• establish a new permitting framework and codes of practice for the management of projects impacting fish and fish habitat;
• create new fisheries management tools taking into account the protection of fish and ecosystems;
• strengthen long-term protections of marine refuges for biodiversity;
• provide the ability to enshrine inshore fisheries policies into regulations, to protect independent inshore licence holders; and
• modernize enforcement powers.
As with any legislation, the devil is in the details – the discretion, regulations, and policy that are yet to be realized. As such, the full ramifications of Bill C-68 are difficult to predict. We believe that the Bill restores necessary protections to fish and fish habitat and offers some positive opportunities for Indigenous governments to engage in fisheries management. Nonetheless, we are still some way from securing adequate recognition and respect for Indigenous rights in relation to fisheries given the broad discretion that remains with the Minister. It will be important for Indigenous communities to continue to remind the federal government of what is necessary to achieve reconciliation and to take full advantage of all the opportunities present in this Bill.