Bill C-45 (Historical)

Fisheries Act, 2007

An Act respecting the sustainable development of Canada's seacoast and inland fisheries

This enactment repeals and replaces the Fisheries Act. It seeks to provide for the sustainable development of Canadian fisheries and fish habitat in collaboration with fishers, the provinces, aboriginal groups and other Canadians.
It sets out management principles governing the exercise of responsibilities under the Act, and provides tools and authorities to improve the ability of the Minister of Fisheries and Oceans to properly manage fisheries and fish habitat.
Part 1 establishes a regime for the proper management and control of fisheries. It allows the Minister to stabilize access and allocation in fisheries, issue fishing licences, conclude agreements with groups that participate in a fishery and issue fisheries management orders.
Part 2 provides for the conservation and protection of fish and fish habitat.
Part 3 provides for the control and management of aquatic invasive species.
Part 4 provides the necessary powers to administer and enforce the Act.
Part 5 establishes the Canada Fisheries Tribunal and sets out a system of licence sanctions for fisheries violations to be administered by that Tribunal, which will also consider appeals of licence decisions.
Part 6 provides for regulations and other related matters required for the administration of the Act.
Part 7 sets out transitional provisions, consequential amendments and coordinating amendments and repeals certain other Acts.

Ontario Fishery Regulations, 1989

[Randy Kamp, Conservative, Parliamentary Secretary to the Minister of Fisheries and Oceans]

Mr. Speaker, I am pleased to respond to the report tabled by the Standing Joint Committee on Scrutiny of Regulations.

First, let me thank the committee for its diligence on behalf of Canadians in overseeing the regulations that govern this country. I have served on that committee. I know that although the work can be tedious at times, it is very important.

Earlier this month the standing joint committee tabled a report that included a resolution to disallow subsection 36(2) of the Ontario fishery regulations under the Fisheries Act. The subsection in question states that:

No holder of a commercial fishing licence shall violate any of the terms or conditions of the licence.

The committee's view is that the Fisheries Act does not provide the authority to set out in a regulation the requirement to comply with licence conditions. The government is of the view that it does.

This has been a long standing issue between the government and the standing joint committee. Governments, long before ours, have always maintained that subsection 36(2) falls within the regulation making authority under section 43 of the Fisheries Act, that it is legally sound and that it is supported by court decisions.

Section 43 of the Fisheries Act is broad enough to include the requirement to comply with licence conditions. Among other things, section 43 provides the authority to make regulations: “for the proper management and control of the sea-coast and inland fisheries”.

It also provides authority to make regulations:

(b) respecting the conservation and protection of fish;

(f) respecting the issue, suspension and cancellation of licences and leases;

(g) respecting the terms and conditions under which a licence and lease may be issued;

The Ontario fishery regulations provide clear guidance as to the conditions that could be attached to a commercial fishing licence in that province. Similar regulations exist for other fisheries. These conditions include the species, size and quantity of fish that may be taken, where and when fishing can occur, and the type of gear that may be used.

Fishing licences, their attached conditions and the requirement to comply with them, are fundamental to the proper management and control of the fishery. They are crucial to protecting and conserving our fishery resources.

In fact, in a fairly recent development, one of which the committee may not have been aware, Ontario is using licence conditions to address a significant threat to its $2.3 billion recreational fishery. The province has placed certain restrictions on the movement of bait fish to control the spread of viral hemorrhagic septicemia. VHS has been implicated in killing a large number of sport fish in the province.

Clearly, compliance with these conditions as required by subsection 36(2) is critical for the sake of Ontario's sport fishing industry.

Let me add that individuals who participate in the commercial fishery know they must comply with licence conditions or face consequences. The government has always argued that in addition to the authority to suspend or cancel licences, Parliament did make it an offence to contravene the Fisheries Act or regulations under it in section 78 of the act.

The courts have agreed with the government's position. They have ruled that regulations made under the Fisheries Act that require compliance with licence conditions fall within the scope of the act's regulation-making authority, and they found that contravening this requirement is an offence under section 78 of the act.

So, from a legal perspective, in my opinion, subsection 36(2) of the Ontario fishery regulations is on firm footing.

However, I would be the first to say that we are not asking for the status quo. We believe that in most cases the potential for jail time is not an appropriate penalty for such contraventions. Fortunately, the courts have imposed fines in cases involving contravention of subsection 36(2) rather than imprisonment, but I do agree that greater clarity could be provided for the requirement to comply with licence conditions.

We are doing something about that. It comes to us in Bill C-45, which the minister tabled in December. The bill resolves the standing joint committee's regulatory concern with subsection 36(2) and does much more.

Revoking subsection 36(2) is not the right course of action, given that a bill has been tabled that addresses the committee's concern. That is why the minister filed the motion before us today to oppose the committee's resolution for disallowance.

Disallowing subsection 36(2) would create a serious legal gap in Ontario's ability to enforce licence conditions on some 500 commercial fishing licences and about 1,400 commercial bait fish licences.

Furthermore, the standing joint committee has indicated that if its resolution to disallow is supported, the committee would expect similar provisions in other fisheries regulations to be revoked. This would create an enforcement vacuum that would threaten these natural resources in virtually all of Canada's fisheries. During this vacuum, all that would be left to punish lack of compliance with license conditions would be suspension or cancellation of licenses, and the courts have made that process very difficult indeed.

Disallowing this regulation would then compel our government to draw up a quick fix bill to plug this regulatory gap and then get it passed through both Houses. This is something that has not worked on no less than three occasions in the past, Bill C-33 in 2003; Bill C-43 in 2004, which died on the order paper; as did Bill C-52 in 2005.

In fact, I did not support Bill C-52 as a solution when I sat on the other side of the House because I believed then, as I do now, that we have much more to offer Canada's fishers.

As tempting as it may be to try to pass a simpler minor amendment to deal with the committee's issue, we owe Canadians that and much more. We owe them a renewed Fisheries Act, one that would resolve this regulatory issue and provide for more collaborative, accountable and transparent fisheries management, which is exactly what Bill C-45 does. It resolves the standing joint committee's concern with subsection 36(2) of the Ontario fishery regulations by clarifying that compliance with fishing license conditions is a requirement of the act.

As I mentioned, the new Fisheries Act does much more. It puts forth a new licensing framework and an administrative sanctioning regime for most breaches of license conditions instead of relying on the courts. It introduces an arm's-length fisheries tribunal to handle violations of the act or its regulations.

The standing joint committee has also expressed concern that because license conditions are administrative decisions, non-compliance with them should not carry potential jail time for violators. Bill C-45 address this concern.

In the sanctions regime, as mandated in the new act, penalties for contravening the requirement to comply with license conditions would no longer include the possibility of jail time. The bill also responds to issues the committee has raised in the past with variation orders, and I will not get into that at this time.

The new Fisheries Act also includes measures for shared stewardship of our fisheries. It allows those with a stake in the fishery to have a say and take a hand in how the resource is managed.

Bill C-45 would also put in place a clearer and more accountable framework for stable access to the fishery and allocation of fish shares.

The new act also clearly spells out the considerations that the minister must take into account when making licensing and allocation decisions, and those which he or she may choose to consider. In other words, all the cards are now on the table.

Protecting fish habitat and preventing pollution are inextricably linked to sound stewardship of our fishery resources. Bill C-45 would compel everyone who administers the act to consider principles of sustainable development, and take an ecosystems-based and precautionary approach to conserving and protecting fish and habitat.

Speaking of principles, passage of Bill C-45 would, for the first time, set out management principles for fisheries and fish habitat right in the act.

In short, Bill C-45 would remedy the standing joint committee's immediate concern with subsection 36(2) of the Ontario fishery regulations and it does so much more on behalf of Canadians who depend on the fishery.

We have an opportunity here to make a lasting difference in better managing our fisheries and oceans by providing Canadians with a modern and more effective Fisheries Act, an act that would help deliver the ultimate sustainable value to the public from Canada's fish and ocean resources for generations to come.

I believe that concentrating the House's efforts on passing Bill C-45 is the right approach. I oppose disallowance of subsection 36(2) of the Ontario fishery regulations and will be voting to return the report to the committee so it can ensure that its concerns are addressed in Bill C-45. I encourage all members to do likewise.

I again thank the committee for its thorough scrutiny of this country's regulations. I think its work in respect to subsection 36(2) of the Ontario fishery regulations highlights the importance of passing Bill C-45 through Parliament as quickly as possible. I hope members of the House will agree that the time for change in the fishery has come.

[The Speaker, Peter Milliken]

I do not think it is a matter for the Chair to decide whether Bill C-45 addresses the concerns of the standing joint committee. That is a matter for the House to decide. The minister has moved a motion saying so. The Chair does not decide on the truth or otherwise of motions, and I do not think I am going to get into that, despite the argument presented by the hon. member for Mississauga South.

I do think it is a matter for debate, and as he knows, this debate is a special one held under specific provisions with respect to the report from the committee. The committee is always free to submit another report if the hon. member does not like the result that is obtained in the House as a result of the decision on the motion, and of course the motion can be accepted or rejected. It is a matter for the House to decide and I will leave it to the House to do so after a debate on the matter, which we will proceed with now.

Debate on the motion, the hon. member for Pitt Meadows—Maple Ridge—Mission.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I rise on a point of order. The motion reads that Bill C-45 in fact addresses the concerns of the standing joint committee.

I would like to advise the House that today the Fisheries and Oceans department officials have confirmed that in fact Bill C-45 does not satisfy the concerns of the Standing Joint Committee on Scrutiny of Regulations, and accordingly, if the motion is not factually correct, the motion should be ruled out of order.

Mr. Speaker, should you rule that this is simply a matter of debate, I would then ask the government to immediately contact and confirm with Fisheries and Oceans officials that in fact Bill C-45 does not address the concerns raised by the scrutiny and regulations committee, that the motion be withdrawn, and that the government undertake to come forward with an appropriate bill to deal with this matter with the existing Fisheries Act.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Mr. Speaker, despite allegations to the contrary, Bill C-45 does not privatize or corporatize the fishery or destroy fish and fish habitat. The member keeps talking about that. He has not pointed us to a single section that actually demonstrates this. Rather, this bill means predictable access and allocation, greater transparency and stability, and more direct participation of Canadians in the management of Canada's fisheries.

The new habitat section strikes a careful balance between allowing opportunities for economic development and protecting fish and fish habitat for future generations.

Bill C-45 is all about the sustainable development of Canada's coastal and inland fisheries. Conservation and protection of fish and fish habitat is its cornerstone. A modernized Fisheries Act does indeed reflect the wishes of fishers in this country. I encourage my hon. colleagues to support this act.

[Randy Kamp, Conservative, Parliamentary Secretary to the Minister of Fisheries and Oceans]

Mr. Speaker, we have heard this speech before and saying it louder and more often does not make it any more true.

In fact, the proposed act reflects the wishes of fishermen in this country and would ensure that individuals who are licensed to fish will fish the resource for the benefit of their families and all Canadians.

Fishermen have repeatedly told us that they want predictable, stable and transparent decision making and that they want to be involved in decisions that affect their lives. They know that sustainable fisheries for the future means that conservation has to be their first goal. Bill C-45 considers all of these factors.

What Bill C-45 does not do is privatize the resource or corporatize the fishery.

The notion of fisheries as a common property resource is the law of the land as stated by the Supreme Court of Canada in 1997.

In the case of Comeau's Sea Foods Ltd. v. Canada, the Supreme Court of Canada stated:

Canada’s fisheries are a “common property resource”, belonging to all the people of Canada. ...it is the Minister’s duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest.

The concept of a common property resource is spelled out in several sections of Bill C-45 so that the public resource would continue to be managed on behalf of the public by a public authority and in the interest of all Canadians.

In the proposed bill, the preamble declares that, “Parliament is committed to maintaining the public character of the management of fisheries and fish habitat”.

Further evidence that the act would uphold the notion of the fisheries as a public resource is found under the considerations pertaining to access and allocation.

It states that the minister and others who administer the act must encourage the participation of Canadians in the making of fisheries management decisions, as well as decisions around the conservation and protection of fish and fish habitat.

The importance of maintaining the public access to the fishery is explicitly stated as an important consideration in section 25.

The bottom line is that we need to modernize the way we manage fish and fish habitat, and that is what Bill C-45 would do. Unlike the current act, Bill C-45 would require us to consider impacts on habitat from fishing. It would require us to consult with industry when changing the rules of the game. It would give us and the industry the tools to strengthen industry participation in the day to day management of the fisheries.

It would give a formal role to a broad range of stakeholders in determining how fisheries should be managed. It would take the politics out of access and allocation so that industry could focus on making their businesses viable and economically competitive in a modern and global marketplace.

In short, we are modernizing the fisheries management and the Fisheries Act to meet the needs of a modern industry, one that has evolved significantly over the last 20 years, not to mention over the last 139 years, with an absolutely clear commitment to the sustainable use of the fishery resources for present and future generations.

Like everything in life, use of a common property resource requires rules. Similarly, there are obvious boundaries on the public right to fish. It has been a regulated activity since the dawn of Confederation. In fact, there is currently very little fishing in tidal waters that is not completely regulated by federal legislation. That would continue under Bill C-45. Without regulation and appropriate legislation, there would be chaos on the water and the health of fish stocks would be in peril.

Unlike the current act, which makes no reference at all to common property resource or the public right to fish, a renewed Fisheries Act would set in place rules so that Canadians can continue to engage in fishing activities now and in the future.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Mr. Speaker, the other day I raised a question in the House regarding Bill C-45, the new fisheries act tabled by the Minister of Fisheries on December 13 of last year.

It is ironic that this very thick bill, almost two and a half times bigger than the previous act, represents a sweeping change to the oldest act of Parliament, the Fisheries Act, which is 138 years old. It is ironic that it was dropped on our desks on December 13. Shortly afterwards, we went on Christmas break.

After carefully reading the bill, I started asking questions of fishermen, their communities and their organizations, various provincial premiers, various aboriginal groups, and environmental groups. In the premise of the preamble and the news releases, it was said that the bill came from “extensive consultations”.

Believing the government to be honest, I started asking who had been consulted with. I am still waiting for the names of the people who were consulted. I asked: “Were you asked to help the government redefine a new Fisheries Act prior to December 13? Were you consulted or were you presented with papers?”

Consultation means to actually seek input from people, not tell them what we are going to do. I know that my hon. colleague, the parliamentary secretary from British Columbia, is going to answer this question, so I am going to give him a little preamble.

He probably already knows a very fine and learned gentleman, Mr. Christopher Harvey, Q.C., who is a very well spoken, articulate and very informed lawyer from British Columbia. I will quote a paragraph for the hon. member, because I know the hon. member himself is from B.C.

Mr. Harvey talks about the fact that Bill C-45 is a colossal expropriation of fishing rights, which means that it privatizes a public resource. The hon. member knows that in 1997 the Supreme Court of Canada ruled that the fisheries are a “common property resource” to be managed by the Government of Canada in the public interest. Mr. Harvey, in his dissertation on the act, says:

This is a transparent attempt to download unlimited and unspecified charges onto fishermen. Long ago, in the B.C. Terms of Union of 1871, the federal government agreed to “defray the charges” for protection and encouragement of fisheries.

That is what it said. The parliamentary secretary can say whatever he wants from his departmental notes. That is exactly what happens. This bill will not protect fish and fish habitat. It will privatize a public resource, will further destroy fishing families and their communities across the country, and will eventually divide and conquer first nations and non-aboriginal fishermen and further create a divide that is already there.

We have already said to the minister and his parliamentary secretary that if they truly want to have a new fisheries act, we welcome the debate. We would welcome the opportunity to take this to a special legislative committee before second reading so that we can truly consult with Canadians from coast to coast to coast, and those on our inland waters, in order to develop a new fisheries act that not only protects the habitat but enhances opportunities for commercial and recreational fishermen right across this country.

I have questions for the government.

Why were 31 environmental groups across the country unanimous in their condemnation of this bill the other day?

Why was the UFAW/CAW union in B.C. upset over this act?

Why were Otto Langer and Carl Hunt, two renowned fisheries biologists, one from B.C. and the other from Alberta, so very angry and upset over this bill?

Why was Phil Morlock, head of the CSIA, the association for our $7 billion sport fishing industry in this country, never once consulted on this bill?

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, today we will continue the debate on the Liberal opposition motion.

Tomorrow we will resume debate on Bill C-31, the voter integrity bill, with Bill C-35, the bail reform bill as backup.

Monday we will call Bill C-31, elections, if it is not completed tomorrow; Bill C-44, human rights; Bill C-11, transport; Bill C-33, technical income tax; Bill S-2, hazardous materials; and the statutory order. We have an ambitious agenda there.

Tuesday, February 20, and Thursday, February 22, will be allotted to the business of supply.

On Wednesday we will continue with the business outlined on Monday.

Next Friday, I will consider beginning the debate on Bill C-45, An Act respecting the sustainable development of Canada's seacoast and inland fisheries.

With respect to the debate on the statutory order regarding the Anti-terrorism Act, if an agreement on debate is not reached before February 28, certain provisions of the Anti-terrorism Act will sunset. It is the government's view that all members should be given the opportunity to decide the fate of these provisions because they involve the safety of people they represent.

Recent events have made us aware that the terrorist threats continue to specifically target Canada, but if the terms of the law are not extended by March 1, the protections that we have in place right now will cease to apply.

If an agreement can be reached, I am prepared to call the motion sooner and sit as long as necessary on that day to bring the debate to a conclusion.

Fisheries and Oceans

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Mr. Speaker, in 1997 the Supreme Court of Canada ruled that the fisheries of Canada is a “common property resource” and must be managed in the interests of all Canadians.

The Government of Canada has just released Bill C-45, one of the most sweeping changes to the Fisheries Act we have ever had in this country. It privatizes the fishery, corporatizes the fishery, destroys fish habitat and allows DFO officials to be off the hook for their decisions.

In 1992 the cod collapse cost the Canadian taxpayer $4 billion and nobody was held accountable.

Will the minister now bring in a new act that reflects the real wishes of fishermen in this country?