Policy Sectors

Fish and Fish Habitat Protection (FFHP) Platform

NWAC’s Fish and Fish Habitat Protection (FFHP) portal is an online resource designed to promote awareness of federal laws and regulations concerning fish and fish habitat protection, particularly as they relate to Indigenous women, gender-diverse, and Two-Spirit people. The portal also facilitates the exchange of information, views, concerns and priorities in matters related to the FFHP through educational tools and summaries, surveys on various FFHP policies and regulations, as well as information on previous and upcoming NWAC virtual engagement sessions. The portal also includes links to reports and recommendations prepared by NWAC for the DFO on various topics related to the FFHP.

About the Platform

The Fish and Fish Habitat Protection (FFHP) program, under sections 34-42 of the Fisheries Act , aims to protect fish and fish habitat in Canada by:

  1. conserve existing fish and fish habitat resources
  2. protect these resources against future impacts
  3. restore fish habitat

To protect fish and fish habitat, the FFHP includes specific provisions that prohibit any work, undertaking or activity (other than fishing) that results in the death of fish or the harmful alteration, disruption, or destruction of fish habitat.

These provisions also set out the authority of the Minister to make orders to protect fish and fish habitats, authorize certain works, undertakings and activities that are otherwise prohibited, and make regulations (or recommend the making of regulations to the Governor in Council) in matters related to fish and fish habitat protections. There are two broad categories of decision-making under the FFHP:

Please include a pop-up link or window to a section of the portal that includes information on the Fisheries Act (content is provided below for this).

Regulation-Making Powers:

  • the restoration, conservation, and protection of fish habitat;
  • listing categories of works, undertakings and activities not subject to FFHP provisions prohibiting adverse impacts on fish and fish habitat;
  • Listing waters in which works, undertakings and activities may be carried out without contravening the FFHP provisions prohibiting adverse impacts on fish and fish habitat;
  • Establishing conditions and requirements for issuing authorizations to undertake works, undertakings activities that may adversely affect fish or fish habitat; and
  • Conditions under which confidential Indigenous knowledge provided under the Act may be disclosed without consent;

Administrative Decision-Making Powers:

  • Ministerial orders to take certain actions related to obstructions to the passage of fish or the protection of fish habitat;
  • Authorizations to undertake activities that result in adverse impacts on fish or fish habitat;
  • Designating categories of activities that are not subject to the prohibitions on causing harm to fish habitat;
  • Authorizations to undertake potentially harmful activities in ecologically significant areas; and
  • Ministerial orders to modify or restrict activities that may adversely impact on fish and fish habitat.

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Reports


Reporting and Comment

 

FFHP Decision Making Factors

There are two categories of factors for decision-making under the FFHP provisions: mandatory factors and optional factors.

The optional factors that should be considered when making decision under the Fisheries Act apply to decision-making under the entire Act and include Indigenous knowledge; social, economic and cultural factors; and the intersection of sex and gender with other identity factors.

This means that, before a decision is made under the authority of the Fisheries Act, the decision-maker should consider Indigenous knowledge that has been provided about the matter, as well as Indigenous gender-based issues affected by or relevant to the decision.

The mandatory factors that must be considered when making decisions under the FFHP provisions are:

  1. The productivity of affected fisheries;
  2. Management objectives for the relevant fisheries;
  3. Any measures that can avoid harm to fish and fish habitat;
  4. Cumulative effects on fish and fish habitat;
  5. Effects on existing fish and fish habitat conservation projects (conservation banks);
  6. Whether offset measures will contribute to the restoration of degraded fish habitat;
  7. Indigenous knowledge that has been provided to the Minister; and
  8. Any other factors that the Minister considers relevant.

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Section 2.5 of the Fisheries Act sets out considerations that the Minister may take into account, including Indigenous knowledge, social, economic and cultural factors in fisheries management, and the intersection of sex and gender with other identity factors.

However, Section 61.2 (2) of the Fisheries Act states that Indigenous Knowledge shared with the Minister in confidence can be disclosed if:

(a) it is publicly available;

(b) the disclosure is necessary for the purposes of procedural fairness and natural justice or for use in legal proceedings; or

(c) the disclosure is authorized in the circumstances set out in the regulations made under paragraph 43(1)(j.1).


FFHP Legislative History

1868

  • The Fisheries Act became one of Canada’s first laws and most important environmental laws
  • Result: Regulations of fishing and fisheries put into place and taking the first steps to protect fish habitat and the overall environmental well-being of Canada’s marine resources.

1970s

  • The habitat protection and pollution prevention provisions were incorporated into the Fisheries Act.
  • Result: The protection and conservation of fish habitat as well as pollution and fish habitat destruction prevention.

2012

  • Changes were made to focus on the protection of fish and fish habitats that were a part of, or supported commercial, recreational, or Indigenous fisheries, and to streamline the regulatory process.
  • Result: This change only protected the fisheries listed above (commercial, recreational, and Indigenous fisheries) while disregarding other fish and fish habitat as it has been previously stated in the Act before that change took place.

2019

  • Changes were made to the Fisheries Act, under Bill C-68, to provide a framework for the conservation and protection of fish and fish habitat.
  • Result: This change produced new provisions for fish habitat and stronger protection of them, as well as explicitly including Indigenous knowledge as a factor for the Minister to consider when approving works.
 

The FFHP and Indigenous Women, Gender-Diverse, and Two-Spirit People

In many Indigenous communities, women and gender-diverse people have an important relationship to fish and fish habitat as food providers for their communities and as sacred water-keepers.[1] Thus, the sustainable use of fish and waters resources a significant and pressing concern for many Indigenous women and gender-diverse people’s physical, spiritual, and cultural health.[2] Adverse effects of human activities on fish stocks and habitats poses risks to the availability of important food staples, exacerbating health and poverty issues in Indigenous communities as transitions to expensive imported foods strain family finances and contribute to poverty and hunger, as well as diet related health issues.[3]

Indigenous women, gender-diverse, and Two-Spirit people’s role in traditional environmental conservation activities have also been impacted by colonialism through the imposed gendered-division of labor and roles. Consequently, colonialism, sexism, racism, and a lack of respect are barriers that play into gender-based issues in fish and fish habitat protection.

Although the amended Fisheries Act states that the Minister may consider Indigenous Knowledge when assessing several issues related to fish and fish habitat, there is no explicit reference to Indigenous women and gender-diverse people’s unique and important knowledge and roles regarding these issues.

Similarly, despite the Government’s new environmental regulatory initiative under Bill C-68, Indigenous women and gender-diverse people have largely been excluded in provincial, territorial, and federal consultations, roundtables and decision-making processes regarding fish and fish habitat, resulting in a lack of gender and community representation within consultations and decision-making forums. Importantly, this exclusion has also resulted in the omission of the unique knowledge and invaluable perspectives regarding fish and fish habitats held by Indigenous women as water keepers and protectors of their community waterways.

Given the important role that Indigenous woman, gender-diverse, and Two-Spirit people have in their communities relating to fish and fish habitat and the significant scope of the FFHP provisions pertaining to the sustainable use and protection of fish and habitats, FFHP and its specific provisions are significant to Indigenous women, gender-diverse people, and Two-Spirit people.


1 - National Inquiry into Missing and Murdered Indigenous Women and Girls, “Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls” Vol 1.a, 2019: 158.

2 - Ibid, 520.

3 - Gangnon, Valoree Sherick, “Environmental justice for seven generations: An institutional ethnography of fish, risk, and health in the Lake Superior toxic riskscape” Michigan Technological University, 2016: 154.

 

FFHP Concerns and Interests

NWAC’s engagements with Indigenous women on these issues and our research and analysis has identified several common Indigenous gender-based concerns and interests related to the FFHP provisions of the Fisheries Act. These are not an exhaustive list of issues, and these interests and concerns will vary from one community to another.

When engaging in processes under the FFHP provisions, we have identified the following categories of gender-based issues that Indigenous individuals, groups and governing bodies may want to consider:

Section 35 of the Constitution Act, 1982 affirms existing Aboriginal and Treaty rights. Where a right to participate in fishing activities is included in a treaty or it can be shown that fishing is a practice, custom or tradition integral to an Indigenous people’s distinctive culture that existed prior to European contact (or prior to “effective European control” for Métis) and continues today, that right is likely protected under section 35.

While the Courts have held that the Government of Canada may regulate the exercise of section 35 rights for justifiable conservation purposes, it is required to consult and accommodate before making any decisions that may affect such rights.

In the context of the FFHP and Indigenous gender-based issues, it is important to keep in mind that section 35 guarantees Aboriginal and Treaty rights equally to male and female persons and such rights often include rights respecting the fisheries. Thus, decisions under the FFHP provisions that can either have an adverse impact on fish and fish habitat related to section 35 rights or affect the ability to exercise section 35 rights, require consultation with rights holders. Moreover, as these rights are guaranteed equally to male and female persons, such consultations must ensure that such consultations do not discriminate against women, such as failing to consider specific interests and concerns of Indigenous women.

The best way to protect against sex-based discrimination in consultation processes is to ensure that the voices of Indigenous women are heard on an equal basis with men.

Decision-making related to the fisheries and the protection of fisheries-related resources is closely related to self-determination of many Indigenous peoples. Governance over Indigenous fisheries and the protection of fish and fish habitat can be highly important to the cultural, social and economic well-being of Indigenous communities and the exercise of decision-making powers over these matters can be very important to self-determination, reconciliation processes, and a system of cooperative federalism that respects the jurisdiction of Indigenous governing bodies.

The Fisheries Act makes space for Indigenous governance, such as recognizing that equivalent laws of Indigenous governing bodies may substitute certain provisions of the Act; however, there remains a long way to go to achieve a legislative framework that fully respects the jurisdiction of Indigenous governing bodies over the governance of their fisheries and fisheries-related resources.

AS progress is made toward Indigenous self-determination and cooperative federalism that respects the jurisdiction of Indigenous governing bodies, particular attention must be paid to the rights and interests of Indigenous women. Deficiencies in gender-balance and the consideration of the knowledge of Indigenous women in the processes of achieving self-determination can result in systems that do not adequately reflect the rights, interests and perspectives of Indigenous women.

Before undertaking decisions that may affect rights protected under section 35 of the Constitution Act, the government must first consult and accommodate the affected Indigenous group. This “consult and accommodate” standard is rooted in the honour of the Crown and the contents of this duty will vary depending on the circumstances. In some circumstances, the government will be required to undertake significant engagements and may even be required to obtain consent. In other circumstances, the duty to consult and accommodate may be rather easily satisfied.

The standard of consultation is likely affected by the unilateral declaration by the Government of Canada will implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada, and the recent introduction of a government Bill that would recognize UNDRIP as a universal human rights instrument with application in Canada. This is because UNDRIP includes provisions that require states to consult with Indigenous peoples in order to obtain obtaining their free, prior, and informed consent (FPIC) before adopting and implementing administrative measures that may affect them.

While the duty to consult and accommodate and the duty to obtain FIPIC both relate to procedural rights, the likely effect of the implementation of UNDRIP in Canada is to enhance the consultation standard. If UNDRIP is effectively implemented in Canada, decisions under the FFHIP provisions may require obtaining FPIC form affected Indigenous peoples. Where decisions are made post-UNDRIP implementation that affect Indigenous rights without FPIC, the standard of proving justification for infringing an Indigenous right may very well be a much stricter test.

The enhanced consultation standard of FPIC will likely contribute to better decision-making as greater efforts will be made to obtain consent, and any decisions that affect indigenous rights without FPIC will likely be subject to a higher standard of justification.

One of the most influential decision-making powers of the Government of Canada under the FFHP provisions is the authority to grant, or not grant, authorizations to undertake activities that can have negative impacts on fish and fish habitat, despite the FFHP provisions’ prohibitions on these types of activities. If an individual or company wants to apply for an authorization to undertake these types of activities, they must include in their application a detailed description of their consultations with Indigenous peoples about the project.

Because this description of consultations has to be included in the application for the authorization, there is a de facto requirement for authorization applicants to consult with potentially affected Indigenous peoples at the early stages of the project planning stage. This de facto requirement is also in the interests of the applicant because early consultations can ensure that project planning avoids any adverse impacts on Indigenous rights that could prevent approval of the authorization.

The Fish and Fish Habitat Protection Program includes activities that can support capacity for Indigenous peoples to engage in these processes. More information on this program can be found here: https://www.dfo-mpo.gc.ca/pnw-ppe/ffhpp-ppph-eng.html.

The Fisheries Act provides certain requirements that Indigenous knowledge that has been provided to the Minister, must be considered before making certain decisions under the FFHP provisions and also prohibits the disclosure of confidential Indigenous knowledge (unless it is publicly available, required for procedural fairness in legal proceedings, or regulations made under the Act permit disclosure).

The Act, however, does not define what “Indigenous knowledge” is. This is likely because how Indigenous peoples define “Indigenous knowledge” can vary from one group to another.

The absence of a definition of “Indigenous knowledge” under the Act and the requirement that it be considered and protected in certain circumstances creates a bit of a conundrum. Clarity can be brought to the legislative requirements concerning Indigenous knowledge under the Fisheries Act by ensuring that, from an early stage of engagement on FFHP-related matters, measures are taken to come to agreement on what constitutes “Indigenous knowledge” and how it will be considered and protected if disclosed to the Government of Canada.

Indigenous women are guaranteed protection from discrimination on the basis of race, sex and gender under section 15 of the Constitution Act, 1982 and are guaranteed equal enjoyment of Aboriginal rights under section 35. This right to equality is further enshrined in cornerstone international human rights instruments.

Despite these guarantees of equal treatment under the law and obligations on the Government of Canada to ensure protections from discrimination on the basis of sex and race, Indigenous women continue to represent one of the most vulnerable and marginalized groups in Canadian society.

Indigenous women are significantly underrepresented in employment in the fisheries and natural science fields related to environmental protection and conservation. Overt bias and discrimination and insufficient opportunities in education, training and governance likely contribute to the perpetuation of disadvantage of Indigenous women in the fisheries and fisheries management activities.

When engaging in FFHP processes, barriers or biases faced by Indigenous women should be actively identified, considered and addressed in decision-making. Where these matters are submitted to the government with respect to Indigenous knowledge, they must, under the Act, be considered.

Indigenous women and girls have been facing a genocide of violence in Canada for many generations. In addition to risks of violence related to participating in the fisheries, Indigenous women may also face risks of violence related to industrial projects.

Decision-making under the FFHP provisions, such as the granting of authorizations for undertaking industrial projects, can affect the undertaking of activities that can influence the risk of violence against Indigenous women and girls. It is important that these concerns be raised with government decision-makers so that the appropriate conditions be connected to authorizations under the FFHP provisions where there are risks of violence to Indigenous women and girls.

The fisheries can be a very important to the economic well-being of Indigenous fishers, their families and their communities. Despite the very important role of the fisheries in the economies of some Indigenous communities, Indigenous women continue to be under-represented in fish harvesting and natural science fields related to fish and fish habitat conservation. There are likely many factors that contribute to this under-representation, including bias and discrimination against women in commercial fishing, as well as education and training opportunities.

Indigenous women often carry family responsibilities that make striking a work-life balance difficult. Facing prejudice based on sex and gender can further exacerbate these challenges. Moreover, a lack of equal opportunity to achieve education and training in natural sciences can create barriers for Indigenous women to gaining access to employment in conservation fields.

Ensuring that Indigenous women have equal opportunity to participate in employment related to fisheries protections requires addressing overt and systemic discrimination, including the implementation of affirmative action programs in education and employment to ensure that Indigenous women and girls have access to the education necessary to participate in these fields.

Indigenous cultures are deeply connected to ecological systems and Indigenous women often have specific roles with respect to the stewardship of the environment.

Decision-making under the FHP provisions that authorizes activities with adverse environmental impacts can have a direct effect on Indigenous cultures because of the sometimes-indivisible nature of culture and nature. Where a requested authorization can result in adverse environmental impacts, it is important that the potential consequences for Indigenous cultures are raised.

Bringing these cultural impact matters to the attention of the Government of Canada, however, can present certain challenges and risks. Indigenous women have questioned the extent to which government authorities afford the appropriate level of respect and consideration for Indigenous knowledge and the risk of disclosure of confidential Indigenous knowledge can, itself, result in significant cultural harms.

 

FFHP Fact Sheet

The purpose of the Fisheries Act is to regulate both fishing activities and activities that can affect fish and fish habitat and to manage these activities in ways the conserve fisheries resources. This information guide is focused on the parts of the Fisheries Act that deal with protecting fish and fish habitat, also known as the “fish and fish habitat protection” (FFHP) provisions

The FFHP provisions work to, primarily, protect fish and fish habitat from activities (other than fishing) than can cause the death of fish or the harmful alteration, disruption or destruction of fish habitat. The FFHP provisions also set out the processes and requirements for requesting and receiving permission to undertake activities that can result in these harmful effects on fish and fish habitat.

Thus, the FFHP provisions work to both prohibit activities that are harmful to fish and fish habitat as well as regulate the activities that may cause such impacts. This includes the power to make regulations and administrative decisions.

For instance, the Government of Canada may make regulations setting out the processes for applying for an authorization to undertake activities that can adversely effect fish or fish habitat (i.e., impacts on water flow, obstructions of fish through waterways, or contamination of water). With respect to the power to make administrative decisions, the Government of Canada may decide whether to grant an authorization to undertake such activities.

By prohibiting works, undertakings and activities that can result in the death of fish or the harmful alteration, disruption or destruction of fish habitat and providing an opportunity for private actors to apply for authorizations, the FFHP provisions work to balance the conservation of fisheries-related resources with acceptable human activities that may have such adverse effects.

There are two categories of factors for decision-making under the FFHP provisions: Mandatory factors and optional factors.

The optional factors that should be taken into account when making decision under the Fisheries Act apply to decision-making under the entire Act and include Indigenous knowledge; social, economic and cultural factors; and the intersection of sex and gender with other identity factors.

This means that, before a decision is made under the authority of the Fisheries Act, the decision-maker should consider Indigenous knowledge that has been provided about the matter, as well as Indigenous gender-based issues affected by or relevant to the decision.

The mandatory factors that must be considered when making decisions under the FFHP provisions are:

  1. The productivity of affected fisheries;
  2. Management objectives for the relevant fisheries;
  3. Any measures that can avoid harm to fish and fish habitat;
  4. Cumulative effects on fish and fish habitat;
  5. Effects on existing fish and fish habitat conservation projects (conservation banks);
  6. Whether offset measures will contribute to the restoration of degraded fish habitat;
  7. Indigenous knowledge that has been provided to the Minister; and
  8. Any other factors that the Minister considers relevant.

The requirement to consider Indigenous gender-based issues may vary from one case to another depending on the facts of each circumstance and the applicable constitutionally protected Aboriginal and treaty rights. With respect to the requirements to consider factors relevant to Indigenous gender-based issues specifically under the Fisheries Act, there are several decision-making powers under the FFHP provisions that require the consideration of Indigenous knowledge and which should take into consideration factors related to social, economic and cultural matters as well as the intersection of sex and gender with other identity factors.

The Governor in Council (Cabinet) may make certain regulations under the FFHP provisions where the Minister has made recommendations for Cabinet to make those regulations. Before the Minister can make those recommendations, however, they must first consider the mandatory factors listed above, including Indigenous knowledge that has been provided to the Minister. Where Indigenous knowledge provided to the Minister relates to Indigenous gender-based issues, they must consider this information. Where submissions do not include information related to Indigenous gender-based issues, the Minister should consider these issues as they are permitted to consider such factors in decision-making under the entirety of the Act.

The types of regulations that the Minister may recommend the Cabinet make include regulations governing the following matters, among other things:

  • The restoration, conservation and protection of fish and fish habitat;
  • Listing activities and types of activities that require authorizations before they can be undertaken and listing waters that require authorizations before certain activities can be undertaken as well as waters where authorizations are not required;
  • Listing persons or entities that may issue authorizations and the conditions that must be met before authorizations can be issued; and
  • Listing the circumstances where confidential Indigenous knowledge provided to the Minister may be disclosed without written consent.

The Minister also has the authority to make certain regulations under the FFHP provisions and must or may consider Indigenous gender-based issues before making those regulations. The types of regulations that the Minister may make under the FFHP provisions include the listing types of activities that may result in the death of fish or the harmful alteration, disruption or destruction of fish but which are, nonetheless, authorized.

The types of administrative decisions that the Minister or other designated authorities may make under the FFHP provisions, and that either permit or require the consideration of Indigenous gender-based issues, include the following matters, among other things:

  • Ministerial orders that any person who owns or controls obstructions and other objects that harm fish or fish habitat must take actions to protect fish or fish habitat, including removing obstructions, constructing fishways or diversions, or maintaining water flow or water characteristics;
  • Ministerial orders governing the minimum water flow that must be maintained;
  • Authorizations (including conditions for authorizations) of works, undertakings, activities, and categories of activities that may result in the death of fish or the harmful alteration, disruption or destruction of fish habitat;
  • Authorizations to undertake works, undertakings and activities that may result in the death of fish or the harmful alteration, disruption or destruction of fish habitat in areas designated as “ecologically significant areas”; and
  • Ministerial orders requiring modifications or restrictions on activities that are likely to constitute an offence under the Fisheries Act.

While the Fisheries Act includes specific prohibitions against disclosing confidential Indigenous knowledge provided to the Minister under the Act, there are certain exemptions. Specifically, the Minister may disclose confidential Indigenous knowledge without consent where the information is publicly available, the disclosure is necessary for procedural fairness in legal proceedings, or disclosure is authorized in circumstances set out in regulations made by Cabinet on the recommendation of the Minister.

While there are protections in the Fisheries Act that prohibit the disclosure of confidential Indigenous knowledge, there are circumstance under which this information may be disclosed and knowledge holders should keep this in mind when considering whether and how to engage in processes under the FFHP provisions.

Information about DFO’s Fish and Fish Habitat Protection Program can be found here: https://www.dfo-mpo.gc.ca/pnw-ppe/ffhpp-ppph-eng.html and information on recent amendments to the Fisheries Act can be found here: https://www.dfo-mpo.gc.ca/campaign-campagne/fisheries-act-loi-sur-les-peches/index-eng.html .