Week #8: Fisheries Act , Oceans Act, and Endangered Spaces

Question 1

What are the 3 acts we need to learn for this week?

Answer 1

Fisheries Act , Oceans Act, and Endangered Spaces

Question 2

What does the Supreme court of Canada say about Canada’s Fisheries?

Answer 2

• a “common property resource”

* belonging to all the people of Canada

Question 3

Whosee job is it to protect the fisheries, and what is the act related to that?

Answer 3

• It is the Minister’s duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest.
• Various tools available under the Fisheries Act to manage and conserve the fisheries.

Question 4

What are the main heads of power over the fisheries legislation

Answer 4

• s. 91(12) - Federal jurisdiction over Sea Coast and Inland Fisheries;
• Parliament has exclusive jurisdiction over conservation, protection and management of all fisheries throughout Canada (tidal and non-tidal waters) (• Resource conservation and preservation measures - quota, gear restrictions, closed seasons, species and size of fish that may be caught, legislate with respect to fish habitat protection)

• s. 92(13) - The provinces have jurisdiction over Property and Civil Rights in the Province ( over all other aspects of fisheries • E.g. the issuance of licences, who can fish, fees to be paid, fishery leases)

Question 5

What is the purpose of the Federal Fisheries act, and when was it first enacted?

Answer 5

The proper management and control of fisheries and the conservation and protection of fish
• First enacted in 1868; amended regularly but never completely revised
• Regulates and protects marine and inland fisheries

Question 6

What are the 3 major components of the Federal Fisheries act?

Answer 6

• Fisheries MANAGEMENT provisions generally pertaining to granting fishing licences for the sustainable exploitation of the common property resource;
• Fisheries PROTECTION provisions focused on protecting the aquatic environment needed to sustain the fisheries;
• Pollution PREVENTION provisions respecting environmental protection and water quality.

Question 7

The Federal Fisheries Act also contains 2 other stuff…

Answer 7

• Contains REGULATION-MAKING POWERS: 41 regulations enacted pursuant to the Fisheries Act
• Contains various ENFORCEMENT mechanisms

Question 8

How does the Federal Fisheries Act define a fish?

Answer 8

“Fish” is defined in section 2 of the Act as follows:
fish includes
(a) parts of 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; (poissons)

Question 9

What are the 3 tools in the Federal Fisheries act for management of the fish?

Answer 9

• Regulations
• Licences
• Policies (no force of law)

Question 10

What are the main characteristics of licenses? ( 1. Definition, 2. How 3. More technical how 4. conditions?)

Answer 10

1. A “licence” grants permission to do something which, without such permission, would be prohibited.
   Essentially, it is a privilege to do something, subject to the terms and conditions of the licence.
2. Fisheries are managed in large part by the conditions that are included in the licence.
3. Regulations authorize the Minister to include conditions relating to the proper management and control of the
   fisheries and the conservation and protection of fish. (s. 22 of the Fishery (General) Regulations)
4. Conditions of licence are enforceable:
   • Non-compliance with a condition is an offence under the Fisheries Act – prosecution may be launched
   (s. 22(7) FGR);
   • Non compliance with conditions of licence may lead to a suspension or cancellation of a licence.
   (s. 9 of the Fisheries Act).

Question 11

What are 5 measures for protection of fish and pollution prevention? (This is the important slide I feel)

Answer 11

• Measures protecting the free passage of fish (s. 20)
• Prohibition against serious harm to fish (s. 35(1))
• Prohibition against depositing deleterious substances (s. 36(3))
• Ministerial order (s. 37(2))
• Enforcement and compliance measures (s. 38)

Question 12

How does section 2 of the Federal Fisheries act define “fish habitat”?

Answer 12

• fish habitat means spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes; (habitat)

Question 13

What is the provision against harm to fish?

Answer 13

Prohibition against “Serious harm to fish”
• 35 (1) No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.
• “serious harm to fish” as defined in s. 2(2):
• “serious harm to fish is the death of fish or any permanent alteration to, or destruction of, fish habitat”.

Question 14

What is the exception to section 35 regarding fish protection?

Answer 14

The minister can allow some actions: • 35(2)(b): A person may carry on a work, undertaking or activity without
contravening subsection 35(1) if the carrying on of the work, undertaking or activity is authorized by the Minister and is carried on in accordance with the conditions established by the Minister.

Question 15

What are some offenses to the Fisheries Act

Answer 15

• Causing serious harm to fish without an authorization is an offence. (s.40(1))
• Non-compliance with a condition of an authorization is an offence. (s. 40(3)(a))

Question 16

What does the government do with the fines collected from offenses to the Federal Fisheries Act?

Answer 16

• Fines received in respect of the commission of these (and other) offence are credited to the Environmental Damages Fund and used for purposes related to the conservation and protection of fish or fish habitat or the restoration of fish habitat, or for administering that Fund. (s.40(6))

Question 17

Can the courts order something that are not fines according to the Federal Fisheries Act?

Answer 17

Yes, according to” Other measures (s. 79.2)” (Various creative punishment)

Question 18

What is the section regarding the deposit of deleterious substance in the Federal Fisheries Act?

Answer 18

• 36(3) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.

Question 19

What is the section regarding pollution prevention in the Federal Fisheries Act?

Answer 19

Subsection 34(1) defines “deleterious substance” as follows:
• (a) any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that
frequent that water, or
• (b) any water that contains a substance in such quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any other water, degrade or alter or form part of a process of degradation or
alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water,

Question 20

What is the exception to section 34 about deposit of deleterious substance (of the Federal Fisheries Act)

Answer 20

• 34(4) No person contravenes subsection 36(3) unless the deposit is authorized by regulations made by the Governor in Council.
• Regulations may specify such things as deleterious substances authorized to be deposited; the waters or places where deposits may occur; quantities or concentrations; works or undertakings in the course of which deposits are authorized; conditions under which deposit may take place; the persons who may authorize the deposit.

Question 21

What are the 5 enforcement related section of the Federal Fisheries Act that creates these powers for officials? (ANOTHER IMPORTANT SLIDE)

Answer 21

• Inspection powers (s. 38(3) and s. 49(1))
• Duty to notify (s. 38(4) and (5))
• Duty to take corrective measures (s. 38(6))
• Authority of inspectors and fishery officers to take corrective measures or
order such measures (s. 38(7.1))
• Search (s. 39, 49.1(1)); Arrest (s. 50); Seizure (s. 51)

Question 22

What are the main characteristics of the Oceans Act?

Answer 22

• Outlines Canada’s oceans territory and Canada’s responsibilities in it.
• Gives Minister the authority to develop and implement a national oceans management strategy.
• Provides authority to establish marine protected areas.
• Sets out marine sciences functions, including fisheries science, hydro geography, oceanography and other marine sciences.
• Sets out Minister’s powers respecting the Canadian Coast Guard (aids to navigation, marine communications, traffic management services, ice breaking, marine search and rescue and pollution response).

Question 23

Which section of the Federal OCeans Act define marine protected area?

Answer 23

• 35 (1) A marine protected area is an area of the sea that forms part of the internal waters of Canada, the territorial sea of Canada or the exclusive economic zone of Canada and has been designated under this section for special protection for one or more of the following reasons:
(a) the conservation and protection of commercial and non-commercial fishery resources, including marine mammals, and their habitats;
(b) the conservation and protection of endangered or threatened marine species, and their habitats;
(c) the conservation and protection of unique habitats;
(d) the conservation and protection of marine areas of high biodiversity or biological productivity; and
(e) the conservation and protection of any other marine resource or habitat as is necessary to fulfil the
mandate of the Minister.

Question 24

Who has power to make regulations according to the Federal Oceans Act, and concerning which fields?

Answer 24

(3) The Governor in Council, on the recommendation of the Minister, may make regulations
(a) designating marine protected areas; and
(b) prescribing measures that may include but not be limited to
(i) the zoning of marine protected areas,
(ii) the prohibition of classes of activities within marine protected areas, and
(iii) any other matter consistent with the purpose of the designation.

Question 25

How is “Conservation land” defined in the class?

Answer 25

• Conservation lands may include parks and wildlife-management areas or sanctuaries at the national, provincial, and territorial levels, as well as forest and ecological reserves, recreational land reserves, and a variety of special arrangements such as conservation easements and stewardship agreements to preserve private lands in their natural state.

Question 26

What is the Doctrine of Ecological Integrity?

Answer 26

• Ecological integrity is referred to as “the first priority” of the minister when considering parks management.
• The concept of ecological integrity itself is statutorily defined as a condition that is determined to be characteristic of its natural region and likely to persist, including abiotic components and the composition and abundance of native species and biological communities, rates of change, and supporting processes.

Question 27

What is the Canadian Parks and Wilderness Society v Canada (Minister of Canadian Heritage) case about?

Answer 27

(Concerns a project within a protected area)
• A national environmental organization challenged the Minister’s approval of a winter road for failing to meet the statutory standard established by the definition and its designation as “the first priority,” the trial court found no evidence that the concept of ecological integrity had even been addressed in the decision-making process.

HOWEVER, the appeal court overrid this:• The trial judge stated the doctrine could be overridden where impairment of such integrity can be minimized to a degree that the Minister concludes is consistent with the maintenance of the Park for the enjoyment of future generations.
• The Federal Court of Appeal (FCA), in upholding the lower court’s dismissal of the judicial review application, roughly equated the ecological integrity standard with a screening test for federal environmental assessment. Accordingly, the FCA concluded that the Minister’s approval of the road was not patently unreasonable and therefore a legitimate exercise of the statutory authority under which it was made.

Question 28

What is the public trust doctrine?

Answer 28

• Certain statutory provisions establish a trust in park areas for the benefit of the public or some designated class of persons that the government as trustee. Is a public trust a legally enforceable duty to uphold? Not really…

… Lerner J. concluded that the elements of a trust were lacking in the circumstances of the case in that the existence of legislative authority to increase, decrease, or close the park meant that the subject matter of the alleged trust was uncertain.
• In addition, Lerner J. found that the wide powers of discretion conferredupon the province to manage parks were inconsistent with the existence of a trust.

Question 29

Why does legislation protecting endangered species exist?

Answer 29

• Plant and animal species have been and remain extremely vulnerable to the direct impact of human activities on their populations or habitat and to the indirect, cumulative, and unintended consequences of human behaviour as well.
• Hunting and the capture whether for consumption, commerce, or other purposes and to the destruction of habitat for agricultural use, urban expansion, or transportation, species have been adversely affected by pollution and the release of toxic substances.
• New threats- whose ultimate impacts remain imperfectly understood- include the introduction of invasive species, the release of genetically-modified competitors, and climate change.
• At the international level, the importance of species preservation has been a recurring focus of concern. Since 1975 the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) has been one of the more prominent international
legalinitiatives directly affecting the development of species protection measures within Canada and approximately 180 other parties to the convention

Question 30

What are the 3 categories set out in the 1975 Convention on International Trade in Endangered Species of Wild Flora and Faune (CITES)

Answer 30

1. First, subject to “exceptional circumstances” outside the commercial context, CITES prohibits trade in species that are threatened with extinction.
2. Second, export permits are required for species that are not yet threatened but that might face pressures towards extinction in the absence of effective regulation.
3. A third category comprises species identified by individual CITES as protected under their own domestic regulatory regimes. Exports of such species from the listing state are subject to a system of export permits and to the presentation by importers of satisfactory documentation concerning origin.