The Fisheries Act,
one of Canada’s strongest pieces of environmental legislation, provides the
legislative authority for the management and regulation of fisheries (salt and fresh
waters), including access, control over the conditions of harvesting and
enforcing regulations. In addition to
allocating the right to fish, protecting fish and fish habitat is a major focus
of the Fisheries Act.
The Act applies to all fish
habitat and waterbodies relevant to a commercial, sport, or aboriginal fishery
in Canada. Unlike a lot of environmental legislation, the requirements of the
Fisheries Act apply to all lands: public, private or aboriginal lands. Fish habitat, as defined in the act,
includes spawning grounds and nursery, rearing, food supply and migration areas
on which fish depend directly or indirectly in order to carry out their life
processes. This broad definition means
that the powers of the Act are applied fairly broadly.
Administration of the Fisheries Act
Fisheries
and Oceans Canada is ultimately accountable for fisheries and
the Fisheries Act. However, Environment
Canada plays a lead role in relation to the pollution control sections
of the Act and associated regulations.
A 1987 Regional Working
Agreement between the two departments provides details on how the two
departments work together. Environment
Canada’s staff focuses on provision of technical expertise and advice provision
on effluent treatment technology and environmental effects monitoring for
permitted discharges, and acts as a single window for provincial agencies and
industry on pollution matters. DFO
deals with deposits of sediments from land clearing, other deleterious deposits
such as spills, particularly I remote areas, and fish kills, sometimes jointly
with Environment Canada. Fisheries and
Oceans Canada also provides expert advice on the protection requirements for
fisheries and has world-class scientific capability along with a cadre of
enforcement officers.
In addition, Fisheries and
Oceans Canada have made efforts to involve First Nations in fisheries
management through its Aboriginal Fisheries Strategy. The strategy provides for the appointment of
First Nations
Fisheries Guardians who can take over some of the government’s responsibilities
for monitoring compliance with the Fisheries Act.
Powers under the Fisheries Act
The Fisheries Act contains a number of tools for protecting fish and
fish habitat. The two most effective
are:
·
A requirement that a person obtain approval from Fisheries
and Oceans Canada before taking any action that alters
or destroys fish habitat.
·
A rule against dumping
anything that can harm fish into waters that contain fish.
Because of the importance of
these two tools they are dealt with in detail on two separate pages of the
Guide. For more information, please
follow the above links.
However, the Fisheries Act
has a number of additional powers that can be useful for protecting fish
habitat:
·
Fishways -- The Minister can require fishways –
artificial paths to permit fish to pass an obstacle – to be constructed and
maintained by the owner or operator of the obstruction. (ss. 20-21)
·
Water for Fish – The Minister can require that a
minimum flow of water over a dam be maintained to ensure that fish have enough
water passing through a dam spillway for downstream migration and/or enough
water below a dam for spawning. These
sections have not been widely used, with Fisheries and Oceans preferring to
rely upon negotiations. (s. 22)
·
Limitations on Fishing – The Act contains a
number of prohibitions against fishing during closed times or without a valid
lease or licence. (ss. 23-25)
·
Obstructions in a River – The Act requires that
at least 1/3 of the flow of a river or stream should be kept free of
obstructions so that fish can pass (s. 26), as well as providing other
prohibitions against obstructing the passage of fish. (ss. 27, 29)
·
Destruction of Fish – The Act prohibits the use
of explosives to hunt or fish for fish (s. 28) and the destruction of fish by
any means other than fishing (s. 32)
·
Fish Guards – The Act gives the Minister the
power to require placement of fish guards over the mouths of canals, ditches,
water intakes and other places that fish should not go. (ss. 30)
This is not to
say that the Fisheries Act will solve all ills. Critics charge that Fisheries and Oceans Canada is authorizing
over-fishing, depleting the wild stocks of salmon and other fish. Even the Fisheries Act powers related to
fish habitat protection are reactive (they impose penalties if harm occurs, but
may not be able to prevent harm).
Limited resources mean that the federal government may not be able to
detect violations of the Act or to collect the evidence needed to punish those
who harm fish or fish habitat.
Provincial Responsibility for Fish Habitat
Under
the Constitution Act, 1867, the federal government has responsibility for
fish. This has been interpreted to
include the ability to manage fish habitat.
Hence the sweeping powers under the Fisheries Act.
However,
the provincial government has responsibility for management of lakes and
rivers, as well as the management of industrial activity likely to impact on
fish. Thus the focus of the federal Fisheries
Act tends to be on the actual damage to fish or fish habitats, rather than
on requiring planning or regulating activities that could cause damage to fish
populations.
For
more information other (mostly provincial) laws and planning processes aimed at
protecting fish please link to the Guide’s Fish and Fish Habitat
Page.
Related
Guide Pages:
·
Fish and Fish Habitat
·
Fisheries Act – Harmful Alteration of Fish Habitat
·
Fisheries Act – Deleterious Substances
For
more information on the Fisheries Act:
·
Electronic version of the Fisheries Act.
·
Fisheries and Oceans
Canada Pacific Region web-site and their publication “Complying
with the Fisheries Act”.
·
Environment Canada Fisheries
Act Compliance and Enforcement Policy
·
David Suzuki Foundation publications on
threats to sustainable fisheries in B.C.
