These two statutes ought not to be two solitudes, and the committee would make a significant contribution if it could identify concrete ways in which the two statutes need to interact.
The act no longer has a general statement of objectives or purposes. Neither does it have a preamble to offer a statement of the shared premises on which the act is based. We have already referred to the preamble to the Oceans Act. The Species at Risk Act contains both an extensive preamble and a short and succinct statement of purposes.
While we acknowledge that it will be more difficult to draft a statement of purpose for the Fisheries Act, we think it is worth the effort, because a statement of purpose serves to highlight the important normative goals that act is aiming to achieve.
If an objectives or purposes section seems beyond the remit of the committee, the committee should at least consider adopting a preamble that sets out the shared premises on which the act is based. We'll not provide a complete text for either, but we offer both an example of a purposes statement and a couple of preambular clauses, all of which speak to the central significance of habitat and habitat protection, as included in the papers you have in front of you.
The law on any subject comprises both rules and principles. Principles help fill in the gaps between the rules and provide guidance to those who must exercise discretionary powers and interpret and administer the act on a daily basis. Principles also provide guidance to courts in fulfilling their authoritative interpretive role. There is no statement of principles in the Fisheries Act. By contrast, statutes such as the Oceans Act do contain useful statements of principles.
In the case of the Oceans Act, the statement of principles is contained in part II of the act and is dealing with the duty to develop a national oceans strategy for the management of estuarine, coastal, and marine ecosystems. Section 30 of the Oceans Act speaks to principles of sustainable development, integrated management, and the precautionary approach. Similar principles are freely acknowledged and applied in numerous DFO policy and management documents. For example, the department's sensitive benthic areas policy has a section entitled “Guiding Principles”, which refers to ecosystem management, a precautionary approach, and science-based management.
Finally, it is important that the Fisheries Act acknowledge respect for aboriginal and treaty rights and provisions of modern land claim agreements, as well as the goal of reconciliation. While the act has been amended to refer to the Nisga'a agreement and some other B.C. land claim agreements, it was never amended to take into account many other modern land claim agreements, such as the Nunavut agreement. This has required the beneficiaries of this agreement and others to resort to litigation to establish that the minister's broad discretionary powers are in fact limited by the terms of Nunavut agreement and other land claim agreements.
One of the characteristic features of fisheries administration in Canada and the protection of fish habitat is that there is an unusually large disconnect between the Fisheries Act and the policies of the department. Thus, the act is completely silent on such things as the development of integrated fisheries management plans, the opening of new fisheries, the protection of sensitive benthic areas, and the allocation of quota.
The principal implication of this, of course, is that the minister and the department have an extraordinary degree of discretion over the management of the fishery and the protection of fish habitat. It also means that parliamentary oversight is reduced, in the sense that Parliament fails to direct its mind to these important issues and to direct how the balance should be struck between economic interests and environmental protection.
It also means that there is little opportunity for oversight by the courts. Indeed, what we have instead are numerous decisions by the courts commenting on the breadth of the minister's discretion and declining to interfere with the exercise of that discretion, which is not bad if you're a minister, but it doesn't work a lot for everybody else.
Oceans North therefore takes the view that it is time for Parliament to provide more direction as to how the department should discharge its responsibilities in relation to important issues such as fish habitat and new fisheries. For example, in the case of the protection of important fish habitat, the act might impose on the minister the obligation to identify and protect ecologically and biologically sensitive benthic areas. Section 37 of the act references the concept of “ecologically significant areas”, but puts very little flesh on this idea, and clearly does not establish a duty on the minister to identify and protect such areas.
We recognize that the department has taken several steps to achieve the goals suggested here, including the sensitive benthic area policy and the coral and sponge conservation strategy for eastern Canada, and it has instituted closures in some sensitive benthic areas. These are significant and important initiatives; however, Oceans North takes the position that the Fisheries Act should mandate the minister to undertake these activities. Protection of marine habitat from harmful fishing activity should not be a discretionary matter.
Oceans North takes the same position with respect to new fisheries. The act has nothing to say about the idea of new fisheries, which might refer to fishing in an area where there is no history of fishing or to an existing fishery that proposes to target a new species. The department does, however, have several policies that address new fisheries. The most explicit statement is in the new emerging fisheries policy, but new fisheries are also addressed in the sensitive benthic areas policy and the policy on new fisheries for forage species. Oceans North suggests that the core ideas and process steps of these policies should be distilled and embedded in the Fisheries Act itself.
Finally, a critical piece to understanding how well our fisheries and marine habitat are managed is the timely access to information on the conduct of the fishery. Recently, the minister announced an initiative to make access to DFO fisheries science data more accessible. This is a worthwhile initiative, enabling those interested in the science on which fisheries management is based to have easier access to it. It wasn't that this information was kept from the public domain; it was just sometimes hard to access.
The same approach needs to be taken with management information. In trying to access information on the management and practice of the fishery—unlike science, however—some of the information is purposefully kept from the public domain. The department cites protection of proprietary information as the reason for keeping some information out of the public domain. This is not a valid reason. Information relating to the fishing activity of fishing vessels, areas fished, incidence of bycatch, incidence of small fish, and so on should be available for all vessels and each vessel. Accountability can only be ensured when full disclosure occurs.
In Iceland, by way of example, one can visit a website called “Fiskistofa”. I assume, in my superb command of the Icelandic language, that this means “fish stuff”.