Fisheries Act Renewal

1
Fisheries Act Renewal

• Developing a Modern Tool
• to Support New Directions
• Fisheries and Oceans Canada
• Presentation to NGOs, October 12, 2005

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Contents

• Context
• What Is Needed in a Renewed Fisheries Act?
• Elements of a Renewed Fisheries Act
• Governance
• Allocation
• Licensing
• Fisheries Co-Management
• Administrative Sanctions
• Habitat Management

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Context

• The current Fisheries Act dates back to 1857 it
  has served Canadians long and well, but does not
  reflect or respond to the evolving needs of the
  resource and to citizens expectations
• Resource users and others have communicated the
  changes they seek in fisheries and fish habitat
  management Stable management framework
  allocation stability participatory
  decision-making co-management more effective
  enforcement and administrative sanctioning
• Many policy and program changes have been made in
  recent years and some areas require legislative
  change

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What is Needed in a New Fisheries Act

• Statement of public purposes, values, management
  principles, to guide use of regulatory powers
  conferred by Parliament
• Recognition of role of Provinces/Territories,
  commercial fleets, Aboriginal groups,
  recreational fishers and others in planning,
  policy-making and operations
• Changes to promote stability for resource users
• Longer-term licences and allocations
• Provision for co-management with regulated
  population
• Effective tools for managers and enforcement
  staff and a clear commitment to sustainable
  outcomes
• Alternative to costly and slow criminal court
  system for fisheries infractions

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Elements of a Renewed Fisheries Act
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Governance

• A renewed Fisheries Act could provide direction
  on use of Ministers and departments broad
  regulatory powers
• A framework of values and guiding principles
  would bring Fisheries Act into line with modern
  governance practice
• Minister and department would remain fully
  accountable to Parliament and Canadians for
  fisheries and fish habitat management

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Governance

• A proposed governance framework could include
• Preamble to set the context
• Purpose Clause
• Fisheries and Habitat Management Principles
• Access and Allocation Principles
• Authority to set Licensing Policy
• Authority to establish Advisory Bodies
• Allocation Instrument, with any process
  requirements

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Governance

• Fisheries and Fish Habitat Management Principles
  could apply to entire Fisheries Act, including
  habitat management and inland fisheries
  management by Provinces/Territories for example
• Conservation and protection of fisheries
  resources and their supporting habitat is the
  highest priority of management
• Constitutional protection provided to aboriginal
  and treaty rights is to be taken into account in
  fisheries and fish habitat management
• Management of fisheries resources and their
  supporting habitat shall apply
• The Precautionary Approach
• Risk management principles
• Principles of integrated management, using an
  ecosystem approach
• Principle of public engagement in decision-making
  including the use of traditional ecological
  knowledge
• Fisheries and fish habitat management shall be
  public management

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Governance

• As complement to co-management arrangements with
  resource users, Minister could be authorized to
  establish standing or ad hoc Advisory Bodies to
  generate policy advice and provide broad public
  access into fisheries decision-making
• Demonstrates our commitment to public engagement
  in resource management
• Use these bodies for policy issues of broad
  public concern co-management arrangements would
  deal with operational issues and those internal
  to the group
• Possible advisory structure models
• Representative body drawn from groups having
  interest in or likely to be subject to decisions
  taken
• Expert body to tender thoughtful, disinterested
  advice, especially on technical issues
• Body to hold public hearings or solicit advice
  from affected constituencies and make
  recommendations
• Problem-solving body (arbitration or mediation)
  as dispute settlement mechanism

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Allocation

• Current allocation (share-setting) process,
  especially for commercial fisheries, is often
  criticized for being unstable and unpredictable
• However, there is also support for Minister to
  retain authority over access and allocation
• Minister already establishes shares for
  fleets/groups of fishers for a fixed period of
  time (a practice rooted in policy) renewed
  Fisheries Act could lay out principles to govern
  future changes and the process for doing so

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Allocation

• Proposal could include
• Allocation principles to guide future decisions
  in marine fisheries
• Legal instrument to establish allocations to
  fleets or groups in commercial, recreational and
  Aboriginal fisheries in waters for specified
  number of years
• Authority for Minister to name advisory body to
  hold public consultations, develop and provide
  public recommendations on those allocations
• Ability to rescind, alter or replace allocation
  in given circumstances
• Change would promote transparency, stability and
  predictability in allocation of fishery resources

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Licensing

• DFO licensing system has generally adapted well
  as fishery has evolved from open- to
  limited-entry and quota fisheries however,
  licensing provisions of Fisheries Act require
  updating
• Act does not distinguish between access and
  allocation role of Minister and routine business
  of licence administration
• There is no provision for Minister to issue
  long-term licences beyond 9 years without
  Governor in Council approval
• Certain licensing practices, including charges
  for breach of the requirement to comply with
  licence conditions and some communal fishing
  licensing practices, have been questioned

13
Licensing

• Proposal could include
• Minister to set licensing policy in fisheries
  administered by DFO, departmental officials to
  administer licensing program
• Overall licensing framework, administration rules
  and maximum number of licences prescribed in
  regulation
• Organizations issued licences e.g. Aboriginal
  organizations would be expressly authorized to
  designate who would fish licence
• Authority to attach licence conditions fishing
  contrary to conditions expressly prohibited
• Fees set by ministerial order, parallel to Oceans
  Act
• Ability for department to withhold licences under
  limited circumstances

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Co-Management

• Co-management is the sharing of responsibility
  and accountability for fisheries management
  results between DFO and resource users
• Many successful co-management arrangements have
  been negotiated on all coasts over past decade
• However, DFO has reached the limits of its legal
  and financial authorities
• Resource users and others consistently call for
  more collaborative approach to resource
  management that makes greater use of
  co-management arrangements in fisheries managed
  by DFO

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Co-Management

• Proposal could include
• Co-management tool which would allow the sharing
  of authority and accountability between DFO and
  responsible groups of resource users
• Legally binding co-management agreements could
  specify
• Harvesting rules for fishery, which become
  licence conditions
• Supporting programs and services
• Monitoring and other activities to be undertaken
  by the parties
• Planning structures and processes
• Funding arrangements
• Administrative Sanctions formula
• Provision to allocate fish to the organization to
  fund co-management activities under the agreement

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Administrative Sanctions

• Currently, Minister may suspend or cancel
  licences only for breaches of licence conditions
  breaches of regulations or general prohibitions
  of Act are dealt with in the context of a
  prosecution
• Some resource users have called for establishment
  of an administrative sanctioning system as the
  primary tool for handling licence violations
• An administrative tribunal or an internal process
  could sanction major and minor breaches of
  fisheries rules and regulations, including
  licence conditions, committed by licensed fishers

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Administrative Sanctions

• Proposal could include
• Arms length administrative tribunals operating
  on east and west coasts to impose licence
  sanctions and associated supplemental financial
  penalties on licensed fishers could also hear
  licence appeals
• Tribunal members would be independent, and
  experienced in and knowledgeable about fishery or
  administrative law
• Alternative to tribunal model could be an
  independent internal sanctioning process
• Fish habitat offences, offences in the inland
  fisheries managed by Provinces, and commercial
  poaching could remain in the court system

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Habitat Management

• DFO has made policy and program changes to
  improve effectiveness, efficiency and consistency
  in delivery of fish habitat conservation and
  protection responsibilities
• In 2004, DFO launched Environmental Process
  Modernization Plan (EPMP), a continuous
  improvement plan to redefine the Habitat
  Management Program (HMP)
• DFO is proposing amendments to the Habitat
  Protection Provisions and the Pollution
  Prevention Provisions of the Fisheries Act to
  clarify and strengthen the legislative framework
  for the HMP

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Habitat Management

• Possible changes to support Habitat program
  improvements could include
• Greater ability to enforce non-compliance with
  conditions of authorizations of harm to fish
  habitat
• Expanded powers of inspectors to include habitat
  protection provisions and to trespass
• Clarify habitat protection provisions
• Provide for alternatives to proceeding with
  charges and for directing fines for use in
  habitat restoration