The federal government amended the Fisheries Act in 2012 under the omnibus Bill C-38. Included in the changes is the replacement of the commonly cited prohibition against harmful alteration, disruption, or destruction of fish habitat, along with greater penalties that took effect Nov. 25.
A new “Fisheries Protection Policy” and an “Operational Approach” have been posted online by Fisheries and Oceans Canada.
The amendments include an increase in the penalties under s. 40 of the act, including a minimum fine of $500,000 for large corporations and a maximum $6 million fine for companies on first offences (on indictment) and that doubles on second offences for environmental provisions (fines on illegal fishing have not changed).
That is an increase from the previous maximum of $300,000. For an individual it’s a minimum fine of $15,000 and maximum of $1 million (on indictment). There is also a shift from managing all fish to only those that form part of an “identified fishery.”
“There are two big issues the government is going to have to issue guidance on and I suspect it’s quite likely that guidance will at some point be debated in the courts,” says Martin Ignasiak, a partner with the environment, regulatory, and aboriginal group at Osler Hoskin & Harcourt LLP in Calgary. “The first is what constitutes a fishery — an aboriginal, sports, or commercial fishery — and the second is how are you going to define ‘serious harm?’
“If they don’t come up with the guidance you will see a patchwork of operations across the country as different offices apply it in different ways because it is open to a fair bit of interpretation,” adds Ignasiak.
The greater detail will be determined by biologists and lawyers in the days to come says Janice Walton, counsel with Blake Cassels & Graydon LLP in Vancouver.
“If you compare it to the former Fisheries Act policy it was much more specific in terms of how they figure out what the impact on habitat was. From a biology perspective this is a little skinny,” says Walton. “There’s no question in my mind this is going to have to go through judicial review; there’s going to have to be some court cases in which the court is able to look at it through the eyes of a real scenario, and determine what the ‘serious harm to fish prohibition’ in the act actually means.
“Policy is just policy, it’s not law. I think it’s going to be challenging for the courts — a battle of the experts, but then it always is.”
Walton argues previous court cases including Supreme Court of Canada decisions have determined the Fisheries Act applies to fisheries as a resource and that a fishery can be “recreational, aboriginal, or commercial.”
“In the policy documents it notes that aboriginal fisheries applies to not just where they are currently fishing but where they can fish and areas that support fisheries such as creeks — I don’t see this as much narrower than what we have now,” she says. “Where in Canada would there arguably not be an aboriginal fishery?”
The changes in the act have been “very disappointing” for the environmental community, says Jean Piette, chairman of the environmental law group at Norton Rose Fulbright Canada LLP in Quebec City. “The previous act covered protection of fish habitat wherever they occur throughout Canada whether in salt water or fresh water. Now the focus is on fisheries.”
“Environmental groups have expressed concern with this and opposed the changes — they say all fish habitats should enjoy projection, not only the ones stipulated,” says Piette.
Under the old Fisheries Act legislation Ignasiak says it was pretty clear: “If you disturbed a pebble in the water where there was fish habitat you were engaging in a HADD [harmful alternation, disruption, or destruction] of fish habitat. Even as something as simple as putting in a boat dock at your cabin was technically a HADD.
“So one of the questions would be if you have a major bridge facility with two piles going into the riverbed it’s quite open as to whether that would constitute a requirement for authorization under the new act,” says Ignasiak.
The Fisheries Act is one of the oldest pieces of legislation in Canada and the penalties were considered to be outdated. Walton says the new penalties are in line with the Environmental Enforcement Act that came into force four years ago, which amended other pieces of legislation.
“It’s a sign of the times,” says Walton. “It’s probably consistent with the tough-on-crime policy our government has.”
Piette adds the high minimum fines may drive more companies to challenge charges in court.
“With fines of half a million or more we will likely see more challenges to the charges brought against a corporation, but I think that’s the good news — the deterrent value of fines will certainly come into play and induce developers before they do work to make sure it will not prejudicially affect commercial, aboriginal, or recreational fishers.”