It is with concern that I read some of the comments being made about the new Fisheries Act, Bill C-45, introduced in the House of Commons by the Honourable Loyola Hearn, Minister of Fisheries and Oceans. Firstly, I encourage all fishers to read the new Act to see how it may affect you. I, personally, have read the Act several times and have been briefed on it by the Department of Fisheries and Oceans. In several parts of the Act I have sought clarification through a legal opinion as it is extremely important for me, as Member of Parliament for South Shore - St. Margaret’s, to accurately understand how this new Act will affect the fishers I represent.
The NDP have decided that there may be some remote chance of political gain by opposing Bill C-45 and have therefore set out to deliberately mislead fishers on this Bill. That is why they have joined forces with the Liberals, who formerly supported the new Act, but now have introduced a hoist motion which could effectively kill the Bill.
We will soon know if this Bill will make it through Second Reading and proceed to the Fisheries and Oceans Standing Committee. There is no reason why this legislation should not go to a second reading and be sent on to the Standing Committee. It is important to note that the NDP, Liberal and the Bloc Members of Parliament, who are critical of this Bill, hold the majority on the Fisheries and Oceans Standing Committee. As a result, literally any amendments they feel will improve this Bill, they can have made.
Below, I have compiled a list of some of the most commonly asked questions regarding Bill C-45. Hopefully they will answer some of the misrepresentations.
Why renew the Fisheries Act?
The current Fisheries Act does not meet Canadians’ expectations for modern, transparent, inclusive and accountable government. The existing Act was enacted in 1868 and a lot has changed in the past 139 years!
The current system lacks transparency. For instance, the Minister (and, by association, department officials) has discretion over decision-making relating to all aspects of the fishery without having to meet standards, goals or objectives provided for in legislation.
The current Act lacks stability. The Minister can currently be lobbied for preferred access and allocations. It also lacks predictability. It does not set out a purpose for the fisheries, such as sustainable development or conservation, and does not obligate the Minister to act in a way to meet a particular purpose.
Finally, it does not respond to the needs of current day fisheries. We are unnecessarily dependent upon the courts for prosecuting fisheries offences, and the punishments do not necessarily fit the crime, resulting in a system where offenders view their fines as a “cost of doing business”. There is little incentive for resource users to take greater responsibility and accountability for the resource which is ultimately required to meet conservation objectives. The resource has changed, the fishing industry has changed and resource users have changed. The current act does not reflect any of the changes the fishery has withstood.
Will fisheries resources remain common property under Bill C-45?
Yes. The Supreme Court of Canada has confirmed that Canada’s fisheries resources are a common property, belonging to all the people of Canada. Nothing in Bill C-45 contradicts this. In fact, Bill C-45 is based on this very premise. This proposed Fisheries Act sets in place rules so that Canadians can continue to engage in fishing activities now and in the future.
The concept of a common property resource is spelled out in several sections of the new Fisheries Act. For example, references to common property can be found in the preamble, the guiding principles, and is explicitly stated in Section 25.
The Supreme Court also stated that the Minister has the duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest. Under Bill C-45, this public resource will continue to be managed on behalf of the public, by a public authority and in the interest of Canadians.
Will the public right to fish be lost under Bill C-45?
No. There is a public right to fish in tidal waters. The current Fisheries Act regulates this public right to fish. Canadians may fish, unless restricted through licensing conditions. Fishing has been a regulated activity since Confederation. Without regulation and appropriate legislation, there would be chaos on the water and the health of fish stocks would be in peril.
Some licensing arrangements are established to ensure conservation, protection and the sustainable management of the fisheries resource as a common property. The current Fisheries Act grants absolute discretion on the Minister to issue licences (s. 7). Bill C-45 includes the commitment to maintain the public nature of fishery management and the importance of maintaining public access to the fishery (preamble and s. 25).
Why are Licences a privilege, not a right?
A licence is an instrument by which an authority grants permission to do something based on eligibility criteria. A licence issued to a person who meets the eligibility criteria is not transferable. For instance, one cannot transfer a driver’s or hunting licence to another person. The Minister must assess someone’s eligibility on a case-by-case basis before granting a licence. A licence is a privilege, not a right. However you will be able, as you have been in the past, to buy and sell that license.
Access to most natural resources in Canada is controlled through licensing regimes. Uncontrolled access could jeopardize the sustainability of the resource. A fishing licence is an instrument by which the Minister of Fisheries and Oceans, with authority of the Fisheries Act, grants permission to a person to harvest certain species subject to the conditions attached to the licence. Bill C-45 states that licences grant a privilege, not a right of property. This reflects existing law. A licence only grants someone a privilege to access the common property resource.
Under Bill C-45, licensing regulations will continue to authorize a ‘request for transfer’. This involves the relinquishment of an existing licence and the issuance of a new licence to another fisher recommended by the licence-holder. This request for transfer is what exists in the present Act and will continue in the new Act. I cannot stress strongly enough that anyone who is stating differently simply does not understand the Act or is deliberately misleading you.
Will the proposed Fisheries Act privatize the fishery?
No. Bill C-45 will authorize the Minister to sign binding fisheries management agreements with commercial, Aboriginal and recreational groups regarding the management of their respective fisheries. Responsible groups of commercial and Aboriginal fishers, in particular, have demonstrated a willingness to take on significant operational roles and exercise a collective discipline over their members. These management agreements could address fleet planning, program delivery and administration of licensing functions. They will not “privatize” or delegate the Minister’s authority and responsibility for fisheries management but they will give fishers a much greater say in regulations that affect them .
Will the public have an opportunity to express their views on Bill C-45?
Yes. Since the Act has been tabled and made public, DFO has held information sessions with hundreds of groups including Aboriginals, provinces/territories, fishing groups, industry, and NGOs to answer questions and to receive feedback. Formal consultation on the Bill will take place through the Parliamentary Process, where there is an opportunity for stakeholders to express their views on Bill C-45 and for changes to be made to the Bill text.
The opportunity to provide input is through the review and study of the Bill by an all-party parliamentary committee - most likely the Standing Committee on Fisheries and Oceans. The role of the committee is to review the text of the bill and approve or modify it. It is at this stage that the committee may invite individuals and representatives of organizations that have an interest in the legislation to provide comments either in writing or by personal appearance.
The public will again have an opportunity for input as the Bill goes through a similar process in the Senate before it can receive Royal Assent. The public can contact their Member of Parliament to voice their views on Bill C-45. MPs will debate the general scope of the Bill at Second reading.
Does Bill C-45 provide effective conservation and protection of fish and habitat as well as prevention of pollution?
Yes. The current Fisheries Act is recognized as one of the strongest pieces of legislation to protect aquatic ecosystems in the country. Bill C-45 adds to these strengths and re-emphasizes the Minister’s commitment to effective conservation and protection of fish and fish habitat and prevention of pollution. Bill C-45 recognizes that conservation and protection of fish habitat and prevention of pollution are essential elements of the management of Canada’s fisheries, something the current Fisheries Act does not.
Section 6 (Application Principles) requires that sustainable development and the ecosystem and precautionary approaches be taken into account, and decisions are based on the best scientific information available. The Minister will be obligated under section 25 to clearly demonstrate how fish and fish habitat conservation and protection have been considered in making licensing and allocation decisions.
The general prohibition on the harmful alteration, disruption and destruction of fish habitat (S.35 of the current Act) and the discharge of a deleterious substance (S. 36 of the current Act) remain as the cornerstone for the conservation and protection of fish habitat (S.59, 60 of C-45). Decisions made under these sections which currently are triggers for the Canadian Environmental Assessment Act (CEAA) will remain as triggers under the new Act.
Please see additional section-by-section improvements under C-45:
• Section 57 will allow the Minister to request information, removal or modification of obstructions to fish passage.
• Section 66, conditions of authorizations, for activities such as compensation, mitigation measures and monitoring, will now be enforceable.
• Sections 73, 78 and 79 for Administration and Enforcement detail the expansion of the powers of inspectors to deal with both the conservation and protection of fish and fish habitat and pollution prevention provisions to better verify compliance with Ministerial directives.
• Implement new tools to control the impact of aquatic invasive species on fish or fish habitat.
Did Fisheries and Oceans Canada (DFO) consult with Canadians on the proposed Fisheries Act?
Yes. Bill C-45 grew out of hundreds of fisheries renewal consultations and information sessions from coast to coast to coast designed to build a modern fisheries management regime that meets the challenges of the 21st century. Work on a renewed Fisheries Act has been ongoing for a number of years.
Over a span of several years, the department conducted its largest-ever engagement process. Virtually everyone associated with the fishery has had the chance to make their views known on what works in the current Act, and what doesn’t work. For example, DFO officials met 305 different Canadian stakeholder groups to discuss the modernization initiative between August 2005 and December 2006.
Did anybody see the actual contents of the legislation before Bill C-45 was tabled?
No. Members of Parliament have the privilege and the legal right to be presented first with the Bill in the House of Commons. To show stakeholders the words of the text in advance would violate the Canadian Evidence Act.
Does Bill C-45 contain the principles, themes and common-sense ideas that blossomed into a modernized Fisheries Act?
Absolutely! It was stakeholders themselves who painted the picture of what they wanted.
Why doesn’t the proposed Fisheries Act deal with the owner-operator issue?
Owner-operator is a separate issue, and will be dealt with by policy, not legislation. The Honourable Loyola Hearn, Minister of Fisheries and Oceans will be making an announcement on this policy in the near future.
There is no reason why this legislation should not go on to a second reading and be sent on to the Standing Committee on Fisheries and Oceans. It is important to note that the NDP, Liberal and the Bloc Members of Parliament, who are critical of this Bill, have the majority on the Fisheries and Oceans Standing Committee. As a result, literally any amendments they feel will improve this Bill, they can have made.
Thank you for your interest in this issue. Should you have any further questions regarding Bill C-45, please do not hesitate to contact me by calling 1-888-816-4446.
Sincerely,
Gerald Keddy, MP
South Shore – St. Margaret’s
