One of Canada’s oldest and most important environmental laws, the Fisheries Act, was enacted in 1868 – a year after Confederation. In the late 1970s habitat protection provisions were added to the Act, including a prohibition (unless authorized) against the “harmful alteration, disruption or destruction of fish habitat” (HADD). This provision became widely regarded as one of Canada’s most powerful environmental legal protections.
No habitat, no fish. That’s the slogan on old Fisheries and Oceans Canada (DFO) buttons. The science is clear: fish need habitat to survive and flourish. Loss of fish habitat has historically been a chief cause in fisheries decline.
So when two budget omnibus bills in 2012-13 substantially weakened the federal Fisheries Act provisions on fish habitat protection, an outcry arose across the country from scientists, former fisheries Ministers, fishing and wildlife organizations, and environmental groups.
The changes were made with no public participation, respect for First Nations title and rights, or scientific evidence.
Fortunately, the federal government promised to review those changes. In November 2015, Prime Minister Justin Trudeau publicly released the mandate letters for newly appointed federal Cabinet Ministers. In his mandate letter, the Minister of Fisheries, Oceans and the Canadian Coast Guard was tasked with ‘restoring lost protections’ and ‘incorporating modern safeguards’ to the Fisheries Act.
In fall 2016, the government began taking action to fulfill its promises through two related reviews, by a Parliamentary Committee and an online consultation portal. West Coast Environmental Law Association and many others urged the government to reinstate the prohibition on HADD, and to make a number of other changes to improve fisheries management and better protect all fish all across the country.
In February 2018, the federal government tabled Bill C-68, which introduced amendments to the Fisheries Act. The bill included the restoration of important habitat safeguards, stronger enforcement measures and clearer rules for authorizing projects or proposals that may damage habitat. In May, amendments to this Bill were passed with support from West Coast and many groups across the country, including provisions to protect flows of water as critical components of fish habitat.
Fish need full protection for the habitats they call home. West Coast will continue to hold the government accountable in making this bill into law and restoring a strong safety net for fish in Canada.
In order to ensure the long-term stewardship of Canada’s marine and aquatic ecosystems, there are some key changes that need to be made to the Fisheries Act (as West Coast Environmental Law Association wrote in our report Scaling Up the Fisheries Act).
The most important way to restore lost protections is to bring back HADD. The law needs to apply to fish habitat, not just fisheries.
Many modern safeguards can be incorporated to this antiquated law, such as limiting discretion through sustainability guiding principles and purposes, designating some essential fish habitat that cannot be destroyed or compensated, and creating a public registry of habitat authorizations.
Finally there is a huge need to increase enforcement. There has been a severe lack of enforcement for fish habitat damage since the Act’s changes came into force late in 2013. Strengthening enforcement will require more resources for fisheries enforcement officers and could also include more delegated authority for groups such as Indigenous Guardian Watchmen, who are already out on the water monitoring activities.
On February 24th, 2017 the Parliamentary Standing Committee on Fisheries and Oceans released a report and recommendations following its review of the changes made in 2012 to the Fisheries Act. The report called for a return to strong habitat protection under the Act, as well as the creation of a new public registry for transparency and better tracking of cumulative impacts, more resources for enforcement, and less reliance on self-assessment by project proponents.
West Coast Environmental Law looks forward to working with the government, Indigenous peoples, and all stakeholders to enshrine these important recommendations in law, and ensure that Canadian fish and ecosystems are preserved for generations to come.
- Scaling up the Fisheries Act: Restoring lost protections and incorporating modern safeguards
(By West Coast Environmental Law Association, March 2016)
West Coast Environmental Law Association brief outlining preliminary recommendations for achieving key elements of Fisheries Act reform that the Minister of Fisheries, Oceans and the Canadian Coast Guard was tasked with in his 2015 mandate letter.
- Habitat 2.0: A new approach to Canada's Fisheries Act
(By West Coast Environmental Law Association and FLOW Canada)
This brief – submitted to the Standing Committee on Fisheries and Oceans by West Coast and the Forum for Leadership on Water (FLOW) – establishes the need for national legal fish habitat protection standards, addresses the current state of the law, and sets out recommendations for a modern Fisheries Act.
- When wild salmon win — toward a renewed Fisheries Act?
(By Linda Nowlan, October 2016)
West Coast’s Linda Nowlan explains how a renewed Fisheries Act should work to safeguard critical salmon habitat like the area threatened by the Pacific NorthWest LNG project.
An online portal dedicated to strengthening the Fisheries Act, with links to a petition, resources and an open letter signed by NGOs, First Nations and scientists calling on the federal government to put habitat protection provisions immediately back into the Act, along with stronger monitoring and enforcement.
- From ‘Badly Wrong’ to Worse: An Empirical Analysis of Canada's New Approach to Fish Habitat Protection Laws
(By Martin Olszynski , University of Calgary - Faculty of Law, August 2015)
This recent empirical analysis of DFO authorizations makes the case that the Fisheries Act is 'an area of law in need of serious reconsideration.'
Blogs on Canada’s Fisheries Act: