What is the Fisheries Act?
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
What are the 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.
What factors have to be considered when making decisions under the FFHP provisions?
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:
- The productivity of affected fisheries;
- Management objectives for the relevant fisheries;
- Any measures that can avoid harm to fish and fish habitat;
- Cumulative effects on fish and fish habitat;
- Effects on existing fish and fish habitat conservation projects (conservation banks);
- Whether offset measures will contribute to the restoration of degraded fish habitat;
- Indigenous knowledge that has been provided to the Minister; and
- Any other factors that the Minister considers relevant.
When is the Government of Canada required to consider Indigenous gender-based issues before making decisions under the FFHP Provisions?
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.
Will the confidential information I share with the Government of Canada under the FFHP processes be protected?
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.
Where can I find more information?
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 .