Book 2, Tab C2 - Department Of Fisheries, Oceans And The Canadian Coast Guard Legislative Framework

The mandate of the Minister of Fisheries, Oceans and Canadian Coast Guard derives mainly from the Department of Fisheries and Oceans Act, the Fisheries Act, the Oceans Act, the Coastal Fisheries Protection Act, the Species at Risk Act, the Canada Shipping Act, 2001, the Arctic Waters Pollution Prevention Act and the Wrecked, Abandoned or Hazardous Vessels Act.

The main federal heads of powers related to the Department of Fisheries and Oceans (DFO)’s responsibilities for fisheries and navigation matters, as set out in section 91 of the Constitution Act, 1867, are:

• Beacons, Buoys, Lighthouses, and Sable Island
• Seacoast and Inland Fisheries;
• Navigation and Shipping;
• Public Debt and Property [i.e. federal public property]
• The Regulation of Trade and Commerce; and
• Indians and Lands Reserved for the Indians

The main provincial heads of powers affecting fisheries as set out in section 92 of the
Constitution Act, 1867, are:

• Property and Civil Rights in the Province;
• The Management and Sale of the Public Lands belonging to the Province; and
• Generally all matters of a merely local or private nature in the Province

Legislative Framework related to DFO

The primary statutes that provide for the Minister’s powers, duties and functions are the following:

• Department of Fisheries and Oceans Act,
• Fisheries Act;
• Coastal Fisheries Protection Act;
• Oceans Act;
• Species at Risk Act;
• Canada Shipping Act, 2001;
• Arctic Waters Pollution Prevention Act; and
• Wrecked, Abandoned or Hazardous Vessels Act

In addition, there are a number of other statutes, which the Minister administers:

• Atlantic Fisheries Restructuring Act,
• Fisheries Development Act,
• Fisheries Improvements Loan Act,
• Fishing and Recreational Harbours Act,
• Freshwater Fish Marketing Act; and
• Great Lakes Fisheries Convention Act

These statutes are discussed below.

2.1 Department of Fisheries and Oceans Act

The Department of Fisheries and Oceans Act establishes the Department of Fisheries and Oceans and sets out the powers, duties and functions of its Minister for matters relating to:

• Sea coast and inland fisheries;
• Fishing and recreational harbours;
• Hydrography and marine sciences;
• The coordination of the policies and programs of the Government of Canada respecting oceans; and
• All other oceans matters over which Parliament has jurisdiction and that have been by law assigned to the Minister

In addition, the Department of Fisheries and Oceans Act authorizes the Minister, with approval from the Governor in Council, to enter into agreements with the government of any province respecting the carrying out of programs for which the Minister is responsible.

2.2 Fisheries Act

The Fisheries Act is one of the oldest continuing federal statutes in Canada, having been first passed in 1868. Fisheries law in Canada borrows much from the common law developed over many centuries in England – including the “public right to fish” and the concept that fisheries are “a common property resource” for all, rather than property owned privately or by the Crown.

That being said, the public right to fish is subject to the exclusive jurisdiction of Parliament, which has enacted fisheries legislation to regulate access to fisheries in Canadian fisheries waters. Given Canada’s federal model dividing powers between Parliament and the provinces’ jurisdiction over certain aspects of inland fisheries on provincial Crown lands, collaboration with the provinces is key to harmoniously managing inland fisheries.

Put briefly, in tidal waters, Parliament has exclusive jurisdiction over all aspects of fisheries management. The provinces do not have jurisdiction in tidal waters, except in respect of fishing devices that are affixed to those soils that are vested in the Province. In such cases, the provinces have exclusive power to grant the right to attach such devices to the provincial subsoil. However, in non-tidal waters in a province, the constitutional jurisdiction over fisheries is shared. One way to express that shared jurisdiction would be that Parliament has responsibility for the conservation and protection for all fisheries, which includes matters such as fishing seasons, quotas, size limits and gear requirements, whereas the provinces’ jurisdiction over fisheries in non-tidal waters within the province is largely based on the provinces’ property rights as owners of public lands. This includes the beds of fish-bearing lakes, rivers and streams, within the province. That being said, the provinces’ ownership rights grant great flexibility to decide on many aspects of fisheries, including conveyances and leases of fisheries, who may fish, what privileges are conferred and what fees must be paid, as the case may be. In practice, fisheries management within the provinces has been largely delegated to provinces, perhaps in part to practically recognize their ownership of public lands.

In certain cases, the federal and provincial jurisdictions may overlap in the sense that provincial rules on a particular subject (i.e. the number of fish that may be caught) may exist concurrently with federal rules on the same subject. In such a case, provincial rules would be subject to Parliament’s jurisdiction over the conservation and protection of fish. Overall, the management of fisheries in non-tidal waters in a province is a shared jurisdiction and may lead to situations that warrant a case-by-case analysis.

Aquaculture is another subject matter of shared jurisdiction in Canada. In sum, where aquaculture activities may be considered a fishery Footnote 1 , the federal fisheries power applies to those activities and Parliament has exclusive jurisdiction over the fisheries aspects of aquaculture (e.g. conferring the right to fish and the right to operate the aquaculture facility). Where such aquaculture activities are located within a province, the province has jurisdiction over the property aspects of aquaculture and over all other aspects of a purely local nature (e.g. conferring the right to affix structures to the bottom of the water body in question located within the province). When an aquaculture activity is carried out outside provincial territory, the property aspects of aquaculture fall under federal jurisdiction under the federal property head of power.

The Fisheries Act also authorizes fishery officers to exercise enforcement powers to verify compliance with the Act. These powers include the power to inspect, search, arrest and seize.

At a federal level, the Fisheries Act covers three broad areas:

• the fisheries provisions are for the management and control, conservation and development of fisheries on behalf of all Canadians and in the public interest; one tool to accomplish this is the granting of fishing privileges via licences and leases;
• the fish and fish habitat protection provisions deal generally with protecting and managing the aquatic environment needed to sustain the fisheries resources; and
• “pollution prevention” provisions, found principally in subsection 36(3) to (6) of the Act, and currently managed in large part by Environment and Climate Change Canada (ECCC) as per the Order Designating the Minister of the Environment as the Minister Responsible for the Administration and Enforcement of Subsections 36(3) to (6) of the Fisheries Act (SI/2014-21). Footnote 2

These are covered in greater detail below.

It is noted that there is some overlap between the responsibilities of DFO and those of ECCC. DFO manages and protects fisheries, and regulates activities which cause the harmful alteration, disruption or destruction (HADD) of fish habitat or the death of fish by means other than fishing (DOF) Footnote 3 ; while ECCC manages water quality which may be harmful to fish, and prohibits and regulates the deposit of “deleterious substances” into “waters frequented by fish” (with the exceptions of deposits in the context of aquatic research projects for scientific research, aquaculture and deposits for the control or eradication of aquatic invasive species and aquatic pests).

2.2.1 Fisheries Management

The Courts have long recognized that the Fisheries Act provides the Minister with authority to manage and control, conserve and develop the fisheries on behalf of Canadians in the public interest in conjunction with steps taken to carry out social, cultural or economics goals and policies. Footnote 4

Licensing is a tool available to the Minister under the Fisheries Act and regulations adopted under this Act (e.g. section 7 of the Fisheries Act or section 52, 56 and 68 of the Fishery (General) Regulations) to manage the fishing activities of licence holders in Canadian fisheries waters and on the high seas.

The Minister has an “absolute” discretion to either "issue" or "authorize the issuance" of fishing licences (except where an exclusive right to fish exists by law). However, the Minister’s discretion is subject to:

• Certain administrative law principles (i.e. decisions must be reasonable; the Minister has to base his or her decision on relevant considerations Footnote 5 ; avoid arbitrariness, and act in good faith in his or her decision making process); and
• Rights and obligations set out in comprehensive land claim agreements, self-government agreements or other similar agreements with Indigenous Peoples, and to the guidance provided by the courts respecting the constitutional protection provided to Aboriginal and treaty rights under section 35 of the Constitution Act, 1982, including constitutionally protected fishing rights;

A fishing licence is not a right, it is a document that reflects a privilege to fish. This privilege allows the licence holder to fish in accordance with the conditions attached to the licence (e.g. quota). The privilege to fish does not convey property rights in fish or in the licence itself, and the privilege terminates upon expiry of the validity period of the licence.

Policy development is another tool available to the Minister in the exercise of his or her general duties to manage the fishery. Policies provide a framework and guidance to the Minister’s officials. For example, different licensing policy approaches have been adopted for the granting of commercial fishing licences on the Atlantic and Pacific coasts over the years. However, policies have no force of law and are not enforceable. As a matter of law, the Minister’s discretion may not be fettered by these policies, so that they cannot be applied blindly; each situation must be assessed and based on its particular facts and circumstances; and exigent circumstances may warrant that an exception be made to the policy to meet the policy objectives.

On June 21, 2019, Royal Assent was given to Bill C-68 - An Act to amend the Fisheries Act and other Acts in consequence. Some changes came into force on June 21, 2019, while others, including amendments to the habitat protection regime, came into force on August 28, 2019.

Major changes include the following:

• New purpose provision which reflects the Minister’s mandate for the proper management and control of fisheries, and conservation and protection of fish and fish habitat;
• Increased focus on partnering and collaboration with Indigenous peoples and partners;
• Factors to consider – a list of broad considerations that may be taken into account for decision making;
• Advisory Panels – Clear authority for the Minister to establish advisory panels to support him or her in carrying out the purpose of the Act;
• Fish Stock Rebuilding – A new obligation for the Minister to maintain major fish stocks at a sustainable level and develop a plan to rebuild them if below that level, and a new authority to make regulations for this purpose;
• Fisheries Management Orders - New authority for the Minister to make a fisheries management order if prompt measures are required to address a threat to the proper management and control of fisheries and the conservation and protection of fish;
• Authority for the Minister to fix fees;
• Prohibition on fishing for a cetacean with the intent to take it into captivity and on the import and export of live cetaceans without authorization from the Minister;
• Authority for the Minister to issue licences authorizing the keeping or breeding of cetaceans in captivity or the possession of reproductive material of cetaceans to conduct scientific research, which would otherwise be offences under s. 445.2(2)(a)-(c) of the Criminal Code, and to issue licences authorizing the keeping of cetaceans in captivity where it is in the best interests of the cetacean’s welfare, which would otherwise be an offence under s. 445.2(2)(a) of the Criminal Code
• Prohibition against the practice of shark finning;
• Increased focus on habitat restoration;
• Protection for all fish and fish habitat - return of former prohibitions against “death of fish” and “harmful alteration, disruption or destruction” (HADD) of fish habitat;
• Authorities to improve regulatory clarity - designated projects, codes of practice, habitat banking;
• Online registry for increased transparency;
• Clear authorities to regulate certain aspects of the inshore fishing policies respecting the issuance of fishing licences, the use and control of the rights and privileges conferred under a licence to fish; as well as the importation of fish;
• New regulatory tool to enable the Minister to protect biodiversity over the long-term; and
• New tools and authorities for fishery officers

2.2.2 Fish and Fish Habitat Protection

The major change to fish and fish habitat protection was achieved through amendments to section 35 of the Fisheries Act.

The pre Bill C-68 section 35(1) established a prohibition against works, undertakings or activities (WUAs) that resulted in “serious harm to fish that are part of a commercial, recreational or aboriginal fishery, or to fish that support such a fishery”. “Serious harm to fish” was defined in subsection 2(2) of the Act as being “the death of fish or any permanent alteration to, or destruction of, fish habitat.”

The new Act replaced the “serious harm” prohibition by reverting to two separate prohibitions that preceded the “serious harm” regime. Subsection 35(1) prohibits WUAs that result in the harmful alteration, disruption or destruction of fish habitat (HADD). Subsection 34.4(1) prohibits the death of fish (by means other than fishing) (DOF). Subsections 34.4(2) and 35(2) sets out a variety of means for authorizing WUAs that would contravene these prohibitions, such as a Ministerial authorization (subparagraphs 34.4(2)(b) and 35(2)(b)) for a proposed work, undertaking or activity. Ministerial authorization will be the most frequently used means to permit WUAs that would otherwise contravene the prohibitions.

Ministerial regulations could also be made for authorizing HADD/DOF.

Part of the amendments introduced under Bill C-68 restored a more comprehensive protection of fish habitat by making the subsection 35(1) prohibition applicable to all fish habitat (whether the fish is fished or not) and by expanding the prohibition to all harmful alteration, disruption and destruction of fish habitat.

2.2.3 Pollution Prevention

Subsection 36(3) of the Fisheries Act prohibits the deposit of deleterious substances into waters frequented by fish, unless the deposit is authorized by regulations, such as the Metal and Diamond Mining Effluent Regulations and the Pulp and Paper Effluent Regulations.

Changes to the Fisheries Act in 2012 formalized the respective roles of the Minister and the Minister of Environment and Climate Change (MECC) with respect to subsections 36(3) to (6):

• An Order in Council has designated the MECC responsible for the administration and enforcement of subs. 36(3) to (6) of the Fisheries Act. However, the Minister retains administration and enforcement responsibilities in relation to:
  • the construction, operation, modification and decommissioning of, and other activity in relation to, an aquaculture facility, and the resulting effects of those activities on the waters frequented by fish;
  • the control or eradication of any aquatic invasive species or aquatic species that constitutes a pest to the fisheries; and,
  • aquatic research projects for scientific research

  2.3 Coastal Fisheries Protection Act

  The Coastal Fisheries Protection Act (CFPA) protects Canada’s fisheries resources from foreign fishing; preserves Canada’s sovereignty over Canadian fisheries waters (CFW), including Canadian ports; implements international fisheries agreements and arrangements for the conservation and management of fish and marine plants on the high seas and for combatting illegal, unreported and unregulated fishing, to which Canada is a party; and regulates access by foreign fishing vessels to CFW and to sedentary species on Canada’s continental shelf. The CFPA prohibits: (1) foreign fishing vessels from entering CFW, including Canadian ports, for any purpose; and (2) any person aboard or any crew member of a foreign fishing vessel from fishing in CFW and fishing for sedentary species (e.g. scallops, snow crab) on any portion of the continental shelf of Canada beyond the limits of CFW; unless the vessel or person is so authorized by a statute, regulation or a treaty. The CFPA also authorizes protection officers to exercise enforcement powers under the Act, including powers to inspect, arrest and seize foreign fishing vessels and goods.

  In 1999, the CFPA was amended to implement the UN Fish Stocks Agreement (UNFA) boarding and inspection scheme. The amendments provide authority for Canadian protection officers to board and inspect a fishing vessel of another state party to UNFA in designated areas of the high seas to ensure that the vessel is complying with relevant conservation and management measures.

  Amendments to the CFPA implementing the UN Fisheries and Agriculture Organization (FAO) Port State Measures Agreement (PSMA) were passed by Parliament and given Royal Assent on June 18, 2015. These amendments were declared in force on June 16, 2019. Complementary amendments to the CFPR were published in the Canada Gazette, Part II on June 26, 2019. The purpose of the PSMA is to harmonize the application of port state measures to vessels that engage in illegal, unregulated and unreported (IUU) fishing, enhance regional and international cooperation in this regard, and block the flow of IUU-caught fish into national and international markets. The PSMA stipulates minimum port state measures, although states may adopt more stringent measures. Canada ratified the PSMA on June 20, 2019.

  The CFPA also establishes a framework and regulatory authority for implementing other international fisheries agreements to which Canada is a party, such as the Convention on the Conservation of Anadromous Stocks in the North Pacific Ocean.

  2.4 Species at Risk Act

  The purposes of the Species at Risk Act (SARA) are to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and to manage species of special concern to prevent them from becoming endangered or threatened.

  The Minister is the “competent minister” under SARA for “aquatic species” (a wildlife species that is a “fish” or “marine plant” as defined in the Fisheries Act), except for individuals in or on federal lands administered by the Parks Canada Agency, for which the MECC is the competent minister. As competent minister, the Minister has several responsibilities with respect to protection, recovery planning and the issuance of permits, as explained below, which are triggered upon the species being listed on the List of Wildlife Species at Risk set out in Schedule 1 of SARA (the List).

  Listing of species is initiated by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), an arm’s length organization that assesses the status of each species considered by it to be at risk and classifies the species as extinct, extirpated, endangered, threatened, of special concern, not at risk or lacking sufficient information to classify the species. COSEWIC assessments are forwarded to the MECC who, after consulting appropriate wildlife management boards and the Minister as competent minister for aquatic species, makes a recommendation to the Governor in Council (GiC), as to whether the species should be added to the List, not added to the List or referred back to COSEWIC for further information or consideration. The Minister also conducts consultations with Indigenous groups, provinces and territories, and stakeholders to inform the MECC’s listing recommendation. The GiC must make a decision within nine months after receiving a COSEWIC assessment of the status of a species from the MECC, failing which the MECC must amend the List in accordance with COSEWIC’s assessment. In practice, the Minister prepares listing advice and the regulatory packages for the MECC’s recommendation.

  When an aquatic species is listed as extirpated (a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild), endangered (a wildlife species that is facing imminent extirpation or extinction) or threatened (a species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction):

  • The following prohibitions apply: prohibitions against killing, harming, harassing, capturing or taking individuals of such species; prohibitions against possessing, collecting, buying, selling or trading individuals of such species, or any part or derivative of such individuals; and prohibitions against damaging or destroying the residence of individuals of species listed as endangered or threatened, or listed as extirpated if a recovery strategy has recommended the reintroduction of the species into the wild in Canada
  • As competent minister, the Minister must prepare a recovery strategy that must address the threats to the survival of the species identified by COSEWIC, including any loss of habitat, and must include, among others:
    • a description of the species and its needs that is consistent with information provided by COSEWIC;
    • an identification of the threats to the survival of the species, and threats to its habitat that is consistent with information provided by COSEWIC;
    • a description of the broad strategy to be taken to address those threats;
    • an identification of the species’ critical habitat, to the extent possible, based on the best available information, including the information provided by COSEWIC, and examples of activities that are likely to result in its destruction;
    • a schedule of studies to identify critical habitat, where available information is inadequate;
    • a statement of the population and distribution objectives that will assist the recovery and survival of the species, and a general description of the research and management activities needed to meet those objectives; and
    • a statement or when one or more action plans in relation to the recovery strategy will be completed
    • a statement of the measures that are to be taken to implement the recovery strategy, including those that address the threats to the species and those that help to achieve the population and distribution objectives, as well as an indication as to when these measures are to take place;
    • an identification of the species’ critical habitat, to the extent possible, based on the best available information and consistent with the recovery strategy, and examples of activities that are likely to result in its destruction;

    The prohibitions do not apply to aquatic species listed as species of special concern. There is also no requirement to identify and protect critical habitat for such species. As competent minister, the Minister must prepare a management plan that must include measures for the conservation of the species that they consider appropriate.

    As competent minister, the Minister may issue a permit to a person authorizing the person to engage in an activity that would otherwise contravene a SARA prohibition. The permit may be issued only if the Minister is of the opinion that certain conditions are met, including that the activity will not jeopardize the survival or recovery of the species and must contain any terms and conditions governing the activity that the Minister considers necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

    2.5 Atlantic Fisheries Restructuring Act

    The Atlantic Fisheries Restructuring Act (AFRA) provides that the Minister may make contributions or loans to fishery enterprises to “facilitate the development of viable Atlantic Fisheries that are competitive and privately-owned through the restructuring of fishery enterprises”. The Act does not authorize the Minister to make contributions to provinces or third parties that are not “fishery enterprises”. The AFRA applies only in Atlantic Canada and may not be relied upon for delivering the program elements elsewhere in Canada. The AFRA was used for the adjustment program for East Coast fishers after the cod moratorium and the $12M Ice Compensation Program in 2007.

    2.6 Fisheries Development Act

    The Fisheries Development Act (FDA) provides for the development of the commercial fisheries of Canada. Under this Act, the Minister may undertake projects, including jointly with a Province or a person, for the more efficient exploitation of fishery resources and for the exploration and development of new fishery resources and new fisheries. The introduction and demonstration to fishers of new types of fishing vessels and fishing equipment and of new fishing techniques; and the development of new fishery products and for the improvement of the handling, processing and distribution of fishery products.

    The FDA is used from time to time for programs involving contributions or subsidies, such as to provide gear upgrades for fishers affected by ice (in 1991), the Northern Cod Early Retirement Program (1992), the Atlantic Groundfish Strategy (TAGS) Early Retirement Program (1994), the Aboriginal Fisheries Strategy Allocation Transfer Program (1994), the Pacific Fisheries Adjustment and Restructuring (1998), and the Fisheries Access Program (1999).

    2.7 Fisheries Improvement Loan Act

    The Fisheries Improvement Loan Act gives the Minister the power to guarantee fishers’ loans made for vessels, equipment, shore installations, buildings, or any prescribed (by regulation) development or improvement of a primary fishing enterprise.

    2.8 Fishing and Recreational Harbours Act

    The Fishing and Recreational Harbours Act provides for the management and maintenance of scheduled fishing and recreational harbours that are owned by the Federal Crown.

    The powers of the Minister under the Act include:

    • the use, management and maintenance of scheduled harbours;
    • enforcement of regulations in scheduled harbours;
    • collection of charges for the user of scheduled harbours under Ministerial control;
    • entering into agreements with provinces or individuals in order to jointly undertake projects or studies, or to provide grants or contributions;
    • granting leases and or licences for the use of scheduled harbours, subject to the regulations which delegate the management of the facility and require that public access be ensured;
    • designation of enforcement officers, plus powers and consequences for obstructing them;
    • the removal, seizure, detention and sale of property;
    • establishing regulatory offences for contravention of the Act

    2.9 Freshwater Fish Marketing Act

    The Freshwater Fish Marketing Act (FFMA) creates a Crown Corporation, the Freshwater Fish Marketing Corporation (FFMC), for the purpose of marketing and trading in fish, fish products and fish by-products inter-provincially and outside Canada and increasing returns to fish harvesters. The FFMC has a monopoly for inter-provincial and international marketing of freshwater fish from participating provinces; is mandated to purchase all legally caught fish offered; operates in a self- sustaining manner with no appropriation from Parliament; and is an agent of the Crown for all purposes. Currently the only participating provinces/territories are Alberta and the Northwest Territories. While Alberta is a participating province under the FFMA, it closed its commercial fishery in 2014. DFO has undertaken stakeholder consultation to explore the possible transfer of FFMC ownership and operations to a private, user owned and controlled entity

    The Minister is accountable to Parliament for the FFMC. This accountability encompasses the Minister’s responsibilities under the Financial Administration Act (FAA) and the FFMA, and the appointment, with GiC approval, of federal directors and provincial directors recommended by a participating province. The Chairperson and President of the FFMC are GiC appointments. The Minister reviews the FFMC Board’s corporate plans and submits them to Treasury Board for approval. The Board of Directors of the FFMC is accountable to the Minister. The President of the FFMC is accountable to the Board for the management of the corporation. The Minister’s role is limited to assessing the FFMC’s mandate and effectiveness as a policy instrument; and providing broad policy direction to the FFMC unless the Minister issues a directive to the Board under the FAA.

    2.10 Great Lakes Fisheries Convention Act

    The purpose of the Great Lake Fisheries Convention Act (GLFCA) is to implement the Convention on Great Lakes Fisheries between Canada and the United States of America. The Convention establishes the Great Lakes Fishery Commission with members from both countries. The Commission has responsibilities with regard to research, measures based on research, the sea lamprey eradication/minimization program, and publication of scientific information.

    2.11 Oceans Act

    Part I of the Oceans Act provides for Canada’s Maritime Zones, including the territorial sea and contiguous zone, the internal waters of Canada, the exclusive economic zone, and the continental shelf.

    Part II of the Oceans Act is the portion of the Act pursuant to which the Minister adopted Canada’s Oceans Strategy, a far-reaching policy framework reflecting Canada’s vision for modern oceans management. It is also under this Part II that authority is found to make regulations or Ministerial orders designating Marine Protected Areas (MPAs) and prescribing conservation and protection measures specific to the area in question. (See discussion below with respect to powers to make Ministerial Orders, as well as other significant amendments adopted under Bill C-55, which received royal assent on May 27, 2019.) Regulations and orders made under this Part of the Oceans Act also helped Canada achieve its objective to increase the proportion of Canada’s marine and coastal areas that are protected to ten percent by August 2019. Thus far, fourteen MPAs have been designated under the Oceans Act.

    Part III of the Oceans Act provides that as the Minister responsible for oceans, the powers, duties and functions of the Minister extend to and include all federal matters related to oceans not assigned by law to another department, board or agency of the Government of Canada. This Part provides for the mandate of the Minister, related to Coast Guard services and the Marine Sciences functions, which include fisheries science, hydrography and oceanography.

    Bill C-55, which received royal assent May 27, 2019, amended parts of the Oceans Act and the Canada Petroleum Resources Act (CPRA). The amendments provided tools to help expedite the designation process of Marine Protected Areas (MPAs) to achieve Canada's marine conservation targets.

    The most important amendments in the Bill empower the Minister to designate MPAs by way of Ministerial Order, on an interim basis, for a period not exceeding 5 years. The Order has the effect of prohibiting most new activities that have not been conducted within the area over the year preceding the coming into force of the Order. This authority allows the Minister to effectively "freeze the footprint" of a given area until further studies and measures can be identified to secure sustainable activities in that area. Within the 5-year timeframe, the Minister shall either recommend that a permanent Marine Protected Area be established through GiC regulations or determine that the Ministerial Order be repealed.

    Other significant changes to the Oceans Act include:

    • A new requirement that the Minister and the GiC not use lack of scientific certainty regarding the risks posed by any activities as grounds for postponing or refraining from designating an MPA;
    • Modernization of the legislative text to more clearly reflect the Minister's responsibility to establish a national network of protected areas;
    • Modernization of enforcement officer powers, including the application of certain enforcement provisions to ships;
    • Updates to the fines provisions to better align with the Environmental Enforcement Act; and
    • Creation of new offences for engaging in prohibited activities within a Marine Protected Area designated by order, and for failing to comply with directions to ships, detention orders, and compliance orders

    This enactment also makes related amendments to the CPRA to, among other things:

    • Expand the authority to issue a prohibition order to prohibit an interest owner from commencing or continuing oil or gas exploration / production related work in a Marine Protected Area designated under the Oceans Act; and
    • Create a new authority to allow for the surrender or cancellation of an interest that is located in an area designated, or that may be designated, as a Marine Protected Area under the Oceans Act, and to determine the compensation for the surrender or cancellation of such interest

    2.12 Impact Assessment Act

    The Minister does not administer the Impact Assessment Act (IAA) but is often required to participate in resource development project reviews. The IAA also makes distinctions between “designated projects” and “projects”. Under the IAA, the Impact Assessment Agency is responsible for conducting impact assessments of “designated projects”. Footnote 6 Impact assessments may also be conducted by a review panel.

    “Projects” are not “designated projects” under the IAA. They are physical activities that are carried out on federal lands or outside Canada in relation to a physical work.

    Under the IAA, the Minister is not subject to the duty to ensure the conduct of an impact assessment. However, the Minister remains a “federal authority” under the IAA and, in this capacity, is required to provide expert information or advice (usually relating to environmental effects on fish and fish habitat) if requested by the Agency or review panel carrying out the impact assessment of a designated project. No power, duty or function can be exercised by the Minister that would enable the designated project to proceed in whole or in part until the assessment is completed and a decision is made that the project:

    • is not likely to result in significant adverse environmental effects; or
    • is likely to result in significant adverse environmental effects but the GiC determined that such effects are justified in the circumstances

    Similarly, under the IAA, “projects” proposed to be carried out on federal lands or outside Canada will often be subject to a determination as to whether or not they will likely result in significant adverse environmental effects. As a federal authority who may be called to carry out a project on federal lands or exercise a power, duty or function with respect to such project, the Minister of Fisheries, Oceans and the Canadian Coast Guard must first determine if the project is likely to cause significant adverse effects before being able to exercise such authority over the project. If the Minister determines that the project is likely to result in such adverse effects, the matter must be referred to the GiC for a decision whether these significant adverse environmental effects are justified in the circumstances. The Minister will be prevented from promoting the project or exercising any power, duty or function towards the project if the GiC decides that the adverse effects are not justified. A similar process will have to be followed for projects that the Minister wants to carry out outside Canada or for which he or she proposes to provide financial assistance.

    Legislative Framework related to the Canadian Coast Guard

    The powers of the Minister, related to Coast Guard services derive primarily from: the Department of Fisheries and Oceans Act; the Oceans Act; the Canada Shipping Act, 2001; the Arctic Waters Pollution Prevention Act; and the Wrecked, Abandoned or Hazardous Vessels Act. These statutes are discussed below.

    3.1 Department of Fisheries and Oceans Act

    The Canadian Coast Guard is a Special Operating Agency (SOA) within the Department of Fisheries and Oceans since April 1, 2005. As an SOA, the CCG uses common services of DFO such as Finance, Human Resources, Legal Services and Real Property, Safety and Security. CCG has its own Treasury Board approved spending authorities and flexibilities required to deliver on its operational mandate as set out in section 41 of the Oceans Act.

    3.2 Oceans Act

    Part III of the Oceans Act provides for the Minister’s powers with regard to Coast Guard services. These include the provision of aids to navigation, marine communications and traffic management services, ice breaking, channel maintenance, marine search and rescue, response to wrecks and hazardous or dilapidated ships, marine pollution response, and the support of federal departments through the provision of ships, aircraft and other marine services.

    3.3 Canada Shipping Act, 2001

    The Minister of Transport is responsible for the Canada Shipping Act, 2001. This statute provides the Minister with specific powers and responsibilities and a definition of their scope in marine search and rescue, Vessel Traffic Services, aids to navigation (including lighthouses and buoys), and response to ship-source marine pollution spills, including oil pollution. These powers and responsibilities are exercised by the Coast Guard.

    The ship-source marine pollution response regime established under this Act is complemented by the liability and compensation regime established under the Marine Liability Act, which the Coast Guard relies on to recover some of its costs from ship owners or the Ship-source Oil Pollution Fund.

    Finally, the CSA 2001 provides that the Minister is responsible for the International Convention on Maritime Search and Rescue, 1979 and, jointly with TC, the International Convention on Oil Pollution Preparedness Response and Cooperation, 1990.

    Wrecked, Abandoned or Hazardous Vessels Act

    As part of the Oceans Protection Plan, the Wrecked, Abandoned or Hazardous Vessels Act came into force on July 30, 2019. The Minister of Transport is responsible for this Act, which provides authorities to the Minister of Transport and the Minister of Fisheries, Oceans and the Canadian Coast Guard. The latter, through the Coast Guard, has authority and powers to deal with hazardous vessels and with dilapidated vessels in a scheduled harbour as defined in section 2 of the Fishing and Recreational Harbours Act or on any federal Crown property for which the Minister of Fisheries, Oceans and the Canadian Coast Guard is responsible, including authorities for removing or destroying such vessels. The owner of the vessel is liable for costs and expenses incurred by the Coast Guard in dealing with the vessel. The Act implements the Nairobi International Convention on Removal of Wrecks, 2007, in Canadian law.

    Footnotes

    Footnote 1

    The elements of capture and escape must be applied to determine whether an aquaculture activity is a fishery. The aquaculture activity will be considered a fishery where in the normal course of the activity, there is a real possibility of escape of the fish into the wild. Once the fish are securely captured, with no possibility of escape, and thus reduced to absolute possession, the fishing activity ends and the activities of cultivation of these fish – in a context where the inherent characteristic of fishing is absent - cannot be considered a fishery. There are other particularities to the notion of “fishery”. In the province of British Columbia, the Supreme Court ruled the finfish aquaculture activities on the coast of the province are activities that constitute a fishery. Morton v. British Columbia (Agriculture and Lands), 2009 BCSC 136

    Pursuant to section 2 of the Order, the Minister of Fisheries, Oceans and the Canadian Coast Guard remains responsible for the administration of these provisions with respect to undertakings in relation to aquaculture facilities and the control or eradication of aquatic invasive species.

    Bill C-68, which amended the Fisheries Act, replaced the pre-existing “serious harm” fish and fish habitat protection regime, which came into force in 2012 and 2013, with two prohibitions set out in s.35(1) and s.34.4(1) of the amended Act respectively. The HADD/DOF prohibitions are a reversion to the regime that immediately preceded the 2012-2013 changes that created the “serious harm” regime. The prohibitions came into force on August 28, 2019.

    This mandate is now clearly enshrined in new provisions of the Fisheries Act added in Bill C-68 to provide a framework for the proper management and control of fisheries, and the conservation and protection of fish and fish habitat, including by preventing pollution, as described in the purpose clause of the Act (s. 2.1).

    Relevant considerations those related to the purpose of the Fisheries Act, which means that considerations must be linked to the proper management and control of the fisheries and/or to the conservation and protection of fish and fish habitat. This may include social, economic factors such as the preservation of the economic value of the fisheries as a whole, as well as cultural or other factors.

    “Designated projects” are those projects identified in the Regulations Designating Physical Activities.