FOPO Committee Report

Canada needs a statute that recognizes the Department of Fisheries and Oceans (DFO) as the lead agency in oceans policy. Such a statute would recognize the unique priority of the public fishery and the need to protect fish habitat.

The Oceans Act is not such a statute.

It was enacted to respond to the opportunities provided by the United Nations Convention on the Law of the Sea and was intended to be a significant step toward Canada’s ratification of the Convention.

The Law of the Sea Convention has never been ratified.¹

The Act was to strengthen the role of the Minister of Fisheries in oceans management and to recognize DFO as the lead agency for oceans policy. That has not happened.

Not only has the Oceans Act not served the basic function of recognizing Fisheries and Oceans as the lead agency for oceans policy, it has undermined the Minister of Fisheries unique constitutional role for the protection of fisheries and fish habitat.

When key decisions are made in regard to the ocean, its fisheries and their habitat, the Minister and his department are absent, they are off the radar screen.

Since the enactment of the Oceans Act serious questions have arisen as to whether the government intends DFO to be the lead agency for oceans policy.

The government has introduced the Marine Conservation Areas Act, Bill C-10, that would put large, yet undefined, areas of coastal waters under the control of the Minister of Canadian Heritage as marine conservation areas (MCAs). The Oceans Act already provided the Minister of Fisheries with a competing authority to establish marine protected areas (MPAs).

In keeping with the objective of the Oceans Act to create in the Minister of Fisheries the focal point for oceans policy, the Oceans Act should be amended to incorporate the objectives of Bill C-10. Integrated oceans management would be greatly facilitated by having one Minister responsible rather than two competing bureaucracies.

Fishermen and other stakeholders are completely confused by the number of competing processes to "plan" for the ocean environment and there is no integrated strategy and there won’t be as long as there are too many people and organizations taking responsibility for different pieces of the same pie.

The Department of the Environment (DOE) has released for public consultation a major policy document entitled, Compliance and Enforcement Policy for the Habitat Protection and Pollution Provisions of the Fisheries Act.

In the document, Environment claims it, not Fisheries and Oceans, has responsibility for the administration and enforcement of those sections of the Fisheries Act dealing with the deposit of deleterious substances in water frequented by fish (fish habitat). The Minister of Fisheries and Oceans should have been front and centre in this development, with fishermen involved at every step.

On the East Coast the government has allowed the Minister of Natural Resources to make the decisions about where and when to explore and drill for oil and gas, even though such decisions directly impact fish and fish habitat.

When an inquiry was established to consider the impact of oil and gas exploration in the area adjacent to Cape Breton, it was the Minister of Natural Resources who was ultimately responsible even though the fishery was the only area that could be directly impacted by exploration.

DFO failed to effectively insert itself into the key decisions involving oil and gas exploration.

Under section 91 of the Constitution the federal government has exclusive jurisdiction over the conservation and protection of Canada’s fisheries whether coastal or inland.

In the British Columbia Fisheries Constitutional Reference of 1913, the judgement stated that "the right [to fish] being a public one, all that could be done to regulate its exercise and exclusive power of regulation was placed in the Dominion Parliament." The high court was stating a fundamental constitutional point with regard to fisheries, the federal Parliament has exclusive responsibility to regulate the public fishery.

In Agawa, the Ontario Court of Appeal in 1988 neatly summarized the responsibility of the federal government and the Minister of Fisheries: "The purpose of the Fisheries Act and Regulations made thereunder, although binding upon all persons, is not to abolish the right to fish of all persons, but to monitor and regulate, so that the fisheries will provide an adequate supply of fish now, and in the future."

In 1996, the Supreme Court in the Gladstone decision reaffirmed the primary role of the "right to fish". This right, it said, could "only be abrogated by the enactment of competent legislation": It has been unquestioned law since Magna Carta that no new exclusive fishery could be created by the Crown and that no public right of fishing can be taken away without competent legislation.

Unfortunately the Oceans Act has created a conflict for the Minister between his primary duty to protect the fishery and fish habitat and his responsibility to manage ocean-based industrial activities.

For example the Minister stated, before Fisheries Committee on May 15, 2001, that as a result of the Oceans Act he now views his role as that of managing competing interests and activities in our coastal waters: "Traditional activities ― like fishing... ― are now joined by new expanding activities, like oil and gas development, tourism and aquaculture. All ocean users... deserve a say in how our oceans are managed over the long term. Managing this growth ― and these competing interests ― calls for a coherent, integrated approach. The Oceans Act gives just such an approach."

The Oceans Act does not oblige the Minister to ignore his primary responsibility to manage the public right to fish and thus to protect the fishery and fish habitat but it has provided the Minister and his Department with an excuse to emasculate the primacy of the fishery and fish habitat.

Fishing is not just another ocean activity like aquaculture or oil and gas exploration and drilling. Constitutionally it is different because there is a right to fish, there is no comparable right to undertake aquaculture or oil and gas exploration and drilling. From an environmental perspective fishing is of a different order than aquaculture or oil and gas exploration and drilling. Foreign marine organisms and other pollutants once released cannot be recalled. Damage caused can be permanent.

The fundamental problem with the Oceans Act is a failure to address the unique position of fisheries and fishing. Due to this failure the Minister can be forgiven for seeing his job as one of merely balancing the demands of the many potential users of the ocean environment, all with an equal priority.

Instead of stating in the Act what the policy and its priorities was, Parliament advised the Minister to develop a policy and then to administer it.

Unfortunately Parliament abdicated its lawmaking role to the Minister and now is left with few if any criteria on which to judge if the Act is now working as it was intended. Unfortunately the Minister is equally adrift without clearly stated objectives and directives. At its root, Parliament failed to speak clearly about the primary responsibility of the Minister for fish and fish habitat. It forgot that fishing is a right not a privilege.

On this point, it is disheartening that the report of the Fisheries Committee also made this mistake at 3.23 when it stated: "It is also the understanding of the committee that commercial fishing licence fees are paid for the privilege of accessing a public fisheries resource..." In a public fishery the government is not the owner of the resource. The "public" in the "public fishery" refers to the public right of access to a common property resource rather than a resource owned by government. Put simply, in public waters there is a right to fish and fishing is a right not a privilege.

In failing to recognize the right to fish in public waters the Act fails to effectively differentiate between fishing and other ocean activities such as aquaculture and oil and gas drilling. Without a firmly established superstructure the Oceans Act has the form and texture of a jellyfish.

Because the Act fails to recognize the priority of the public right to fish, it also fails to recognize fishermen as the primary affected group in the establishment of marine protected areas. This is particularly unfortunate since it is fishermen and their families who would be most affected by the creation of MPAs.

It must be remembered that the Fisheries Act already provides an effective tool to protect and promote the fishery through the creation of refuges or no take zones. The Minister has the power to close an area for fishing if he believes it necessary, unfortunately he has often failed to do so. The creation of marine protected areas is not an appropriate substitute to effective fishery management.

Fishermen must be involved in the creation of protected areas in those relatively rare instances where MPAs are a more effective vehicle for protecting the fishery than closures under the Fisheries Act.

With any protected area fishermen will need to know what specifically the MPA is designed to do and what specific activity the MPA may curtail. There should be a clear indication that fishermen are the cause of specific conservation problems and that less severe conservation measures such as gear restrictions or closed season will not adequately address the targeted conservation problem. Any not-take regulations should be specific, there should be measurable criteria to determine the conservation benefit of a no-take zone on the affected stocks of fish and provide a timetable for periodic review of the continued need for the no-take zone.

Nowhere in Part III of the Oceans Act, where the powers and duties of the Minister of Fisheries and Oceans are spelled out, does it say that the primary responsibility of the Minister is the protection of the public fishery and fish habitat. Instead the Act adds a competing set of duties and responsibilities that are at odds with the protection of the public fishery and fish habitat.

This oversight could easily be remedied through a simple amendment to indicate the first responsibility of the Minister is the protection of the public fishery and fish habitat.

The Oceans Act could more effectively establish the Department of Fisheries and Oceans as the lead agency in oceans management if it recognized the constitutional priority of the fishery and the protection of fish habitat. In doing so, the Act would acquire a form and structure that it has, heretofore, lacked.

The government must reconsider its transfer of responsibility for marine conservation areas to the Minister of Canadian Heritage, fisheries habitat protection to Environment, and all decisions regarding oil and gas developments in coastal waters to Natural Resources. Fisheries and Oceans must be the senior agency in these matters, not a poor cousin.

In keeping with the recognition of the priority of the fishery, the Act should also recognize the special place of fishermen and involve them as much as is practicable in the creation and management of marine protected areas.

With the establishment of a foundation on which to build an oceans policy, DFO will acquire a framework within which to manage and regulate major industrial users of the marine environment such as aquaculture and oil and gas exploration and drilling. Without such a foundation these industries are more often than not viewed as threats to the marine environment. It is time to give them a legitimate place at the table.

Finally, the duties and responsibilities of the Minister of Fisheries and Oceans must be prioritized so that he is able to carry out his constitutional responsibilities for the fishery and fish habitat. If these duties are properly ordered much of the confusion that has been identified will be resolved.

The challenges in oceans policy are not insurmountable if a road map is available. The Oceans Act must provide such a map.

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1. If Canada were to ratify the Convention it might be allowed to formally establish the outer limits of the continental shelf beyond 200 nautical miles for the purposes of the Convention.