A New Fisheries Act (2019)

(This article was published in the 2019 CSEB Bulletin 76 (4))

In late August of this year, Canada’s Fisheries Act was revised. This was the second time in a short six years that the legislation has been significantly revamped. In 2013 the Stephen Harper government made dramatic changes to the then-current Act; changes that were vociferously decried in conservation and impact assessment circles. These changes included:

• replacing the concept of Harmful Alteration, Disruption, or Destruction of habitat (HADD) with an ambiguous measure of productivity, and
• redefining fish to be protected from all pisces (including ‘coarse’ fish) to only those species involved in Commercial, Recreational, or Aboriginal (CRA) fisheries, or those species that support those fisheries.

To the working fisheries biologist this made determining impacts and scale of impact much less rigorous and more challenging. Do sticklebacks count as fish now? Always? Only when they can be shown to be a food item to a CRA species? How do we measure productivity and the change in it due to an anthropogenic source? How do we account for seasonal fluctuation and yearly changes? Mr. Harper’s stated intent was to ‘streamline’ the regulatory process. After six years, fisheries biologists had finally achieved a level of comfort with the new paradigm and DFO was applying it consistently across the country. And then the politicians changed it. For the better.

As of August 28, 2019, productivity as a measure of fish use of a waterway has been largely done away with and is now referred only once in the Act, in the context of which the Minister may take it into account when assessing impacts to habitat. Instead, HADD has returned and DFO is to be congratulated for a return to a measurable and easily understandable – intuitive even – gauge of impact. There are several advantages to the HADD approach. First, it has a history with regulators and fisheries biologists; therefore most of the uncertainties and challenges for interpretation have been worked out. Second, it provides certainty as impacts are measured as an areal extent (empirical) that is altered, disrupted, or destroyed. This is a consequential starting point from which to discuss compensation or offsetting. Third, it is intuitive and straightforward; clients can understand consequences of altering an area of impact just as easily as lawyers.

The HADD approach is based on habitat rather than effects on individual fish or specific species. This makes it powerful as we don’t need to demonstrate deleterious effects on fish (difficult to do in a quantitative and compelling manner) but rather only that the habitat has been impacted. It is also more conservative in the sense that usually habitat for one group of fish (e.g., salmonids) is used as well by others (e.g., sculpins, minnows), and so protection or offsetting of the habitat affects multiple species in addition to the target one. Thus HADD is both conservative and empirical.

In the Spring 2018 Bulletin (Proposed amendments to Canada’s Fisheries Act – a step back. Volume 75(1)) I provided an update on the proposed amendments to the Fisheries Act. In that article I argued that HADD was a good step forward, but also that DFO needed to move away from the CRA concept and define a fish as all fish. This is less well done within the new Act (at least by my reading of it). The definition of fish remains problematic. While the new Act appears to broaden what they consider to be fish beyond CRA species, their efforts at defining fish are clumsy and, for me at least, raise concern that not all life stages of all species are included in the legislation. Fish are defined in the Act as (a) parts of a fish, (b) shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals, and (c ) the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans, and marine animals. There are two issues with such a convoluted definition. First, definition (a) is a circular reference. It says a fish is a part of a fish. This does not help our understanding. What is required is a clear definition of a finfish to accompany the use of crustacean and shellfish. I am not sure if the Act actually does protect the whole body of a finfish as it does not explicitly state so. Secondly, if I assume finfish are indeed included, to my interpretation some life stages are now not protected. For example, repeat spawning steelhead or Atlantic salmon, or post spawned adults of other freshwater species fall outside these lists. They contain neither eggs nor sperm, are not larvae nor juveniles, and could not be considered marine animals. Adult fish in freshwater, when not bearing gametes, are not specifically considered a fish by this definition.

So, is the new Fisheries Act trumpeted by the Minister a fundamental improvement over the Harper version? For the most part I would suggest ‘yes’. Return of HADD will, I believe, improve not only habitat protection, but also simplify measurement of impact for prosecution or compensation and offsetting. Returning to considering all fish as worthy of protection provides certainty not only to regulators and biologists but also, importantly, to proponents. I do have concerns that it may be challenged on the definition of fish, however, as I see scope for legal arguments that some life stages (particularly those that we are most often concerned about, for example, overwintering adults) are not included in the legislation.

The Fisheries Act of Canada has long been considered a strong piece of legislation; the new Act returns some of that strength to it which had previously been weakened.