FFHP: Resources

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.