Canada: Current And Prospective Amendments To The Fisheries Act RSC 1985, c F-14

The Fisheries Act (Canada) is undergoing changes that will have an impact on the regulation of Canada's fish habitats and waterways. An initial set of amendments came into force on July 18, 2012. A second set of amendments will come into force at a yet to be set date. The initial amendments are noteworthy, but it is the second set of amendments that are poised to significantly change the focus of the Act. While the Minister of Fisheries and Oceans has described the amendments as establishing priorities and "focusing protection on real and significant threats" to fisheries and habitat, environmental groups have argued that the amendments will result in a significant reduction in the federal protection of fish habitat.

The initial changes include the following:

• The addition of the word "activity" to s. 35 (the commonly used offence provision) of the Act, which now reads:
  
  
  "No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat."
  
  
  The addition of the word "activity" is not anticipated to have any impact on businesses. It was incorporated to catch non-commercial recreational activities such as ATVing, which could harm fish-bearing streams or rivers.
• The clarification of the duty to report harm to fish habitat by repealing the ambiguous reporting requirements under s. 38(4), and providing that a report in writing MUST BE made when there has been harmful alteration, disruption or destruction to fish habitat, or the deposit of a deleterious substance in water frequented by fish, that is not authorized by the Act.
• The "extension" of the limitation period for the prosecution of summary offences. Under the old Act, the Crown had two years from the date the Minister became aware of the subject matter of the offence to institute proceedings. Under the new Act, the time limit has been extended to five years, but the clock begins to run from the date the offence was committed.

Under the second set of Amendments, the most significant changes include:

• Section 35 of the Act will be rewritten, replacing the above, with the following:
  
  
  "No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery."
  
  
  Section 35 will no longer focus on fish habitat; the focus will be on fisheries. For the section to apply, there must be serious harm to fish "that are part of" a fishery. The protection of fish habitat is not completely lost, however, as it is referred to in the definition of serious harm.
  
  "Serious harm" means:
  
  "the death of fish or any permanent alteration to, or destruction of, fish habitat".
  
  Notably, the old section prohibited "harmful alteration or disruption", whereas the new section only prohibits "serious harm" which is defined as "permanent alteration or destruction". The inclusion of the word "permanent" and the deletion of the word "disruption", along with the use of the phrase "serious harm", indicates that the section will no longer apply to temporary disruptions to fish habitat that do not result in the death of fish.
  
  The new definitions of "commercial", "recreational" and "Aboriginal" fishery are also significant. Those definitions state that the fishery will only be protected if the fish are presently (as opposed to in the past or future), being harvested.
  
  Although s. 35 and these definitions will pose interpretative challenges, the intent of Parliament seems clear: a change of focus away from protecting fish habitat and towards protecting fisheries.
• Increased fines and mandatory minimums will be implemented. Under the current Act, the penalty for a summary offence is limited to $300,000 and the penalty for a indictable offence is limited to $1,000,000. Repeat offenders are subject to the same fines but can be imprisoned.
• Under the amendments, there are increased minimum and maximum fines. The new provisions also draw a distinction between individuals, small revenue corporations (defined as corporations with yearly revenues of $5 million or less), and corporations. Individuals and small revenue corporations will face significantly lower fines than corporations. The maximum and minimum fines for corporations will be as follows:

Thus, the maximum penalty for an indictable offence under the old Act ($1,000,000), will become the new minimum for an indictable offence for a repeat offender.

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