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Changes to the Fisheries Act - The Sky is (Not) Falling

Recent changes to the Federal Fisheries Act had been the subject of considerable speculation until the Harper Government’s 2012 Omnibus Budget Bill was tabled earlier this year confirming the details of the proposed changes, some of which became law on June 29, 2012.

The Business Council’s latest Environment and Energy Bulletin clarifies some of the misconceptions about the changes to the original Act, which is nearly 100 years old, and outlines what these changes mean for the business community. All legislation can and should be reviewed/revised from time to time to reflect modern interpretation, case law, in-the-field practice and new knowledge. Currently, there are at least 16 existing provincial and federal environment-related statues that touch on or can be used to protect fish and fish habitat.

As Blake, Cassels and Graydon LLP environmental lawyer Paul Cassidy notes:

The changes to the Fishers Act are at a minimum, neutral, and the constraints put on business activities may be more stringent than what existed under the “old” Fisheries Act. What the changes do is modernize this 100 year old legislation, make it consistent with other existing environmental legislation, codify what decision makers have been doing in practice, and draw stronger lines around what they can and cannot do.

Other items of note included in the Bulletin:

  • The modernized Act will be based on a more science-based investigation of the consequences of a project or activity on the productive capacity of the habitat to support the fishery.
  • Defining the fisheries as commercial, recreational, or Aboriginal confirms that the Act applies to all types of fisheries.
  • Under the new legislation, inspectors and officers have broadened authorities to issue orders regarding activities that cause potentially harmful deposits or impact fish habitat; furthermore ,the self-reporting requirements have been expanded to include impacts on fish habitat.
  • The modernized legislation should enable a greater degree or coordination/cooperation with other levels of government in respect of fisheries-related regulation.
  • The changes will see the Department of Fisheries and Oceans less involved in future environmental assessments, which should free up DFO staff resources for other purposes.

Overall, the Business Council concludes that the revised Fisheries Act, contrary to the claims of critics, will not significantly weaken what traditionally has been the main federal regulatory regime for the protection of fisheries.

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