On June 21, 2019 Canada amended its Fisheries Act, passing Bill C-68 which included new provisions for fish habitat protection, minimum rebuilding standards for stocks, and a ban on the importation and sale of shark fins within the country.
The bill was widely applauded by environmental groups and represented a step forward on some measures that had not been amended since the law’s genesis in 1868. Oceana Canada executive director, Josh Laughren, said if these amendments were implemented in the 1980’s, “The history of Atlantic Canada would be different,” and the collapse of the northern cod fishery in the 1990’s could have been avoided. (Hakai Magazine 2019). Many other headlines like this one from The Guardian, focused on the shark fin import ban as the most impactful aspect of the new bill. Canada banned the export and harvest of shark fins in its waters in 1994, but with Bill C-68 it became the first G7 country to ban shark fin imports.
To better contextualize the bill and understand the impact of the major amendments, we spoke with three Canadian fisheries experts representing three different perspectives: Christina Burridge, Executive Director of the British Columbia Seafood Alliance; Jeffrey Hutchings, Professor of Biology and Killam Memorial Chair of Fisheries and Oceans at Dalhousie University; and Jake Rice, Chief Scientist Emeritus for the Department of Fisheries and Oceans (DFO).
Habitat protection provisions were unanimously applauded
All three experts agreed that improved habitat provisions will have positive impacts on Canadian marine and freshwater species. “This administration has reinstated protection to fish habitat that the previous Conservative government had removed,” explained Hutchings. Bill C-68 extended conservation protection measures to all fish and fish habitat, regardless of an existing fishery. In 2012, the previous administration revised the law to limit habitat protection to only species pertaining directly to commercial, recreational or Aboriginal fisheries. But those limitations have now been reversed and expanded to include all fish species.
“We broadly support the rationale with this amendment, specifically to reverse the changes made by the previous government to the habitat provisions, and to strengthen the habitat provisions – we definitely support those”, said Burridge.
Habitat protection amendments may apply to marine mammals in new ways as well, considering that marine mammals could have formerly been classified as a species not part of a “fishery”. Most of Canada’s cetaceans are listed under the Species at Risk Act, but recently there has been high mortality rates for orcas and right whales.
“The enhancement of protection of marine mammals responded to a call from a very wide constituency of Canadians. We can debate whether the measures are really necessary or will actually make a difference for the wellbeing of Canadian marine mammals, but the law took pretty aggressive measures on a topic that is high on the public opinion debate, and that’s what a government is supposed to do,” said Rice.
How does the new Fisheries Act measure up to the Magnuson-Stevens Act (MSA)?
A primary difference between the Fisheries Act and the MSA is the standard for “rebuilding” fisheries. The MSA set the fishery rebuilding target as the biomass that produces maximum sustainable yield (BMSY) and required a ten-year time frame to reach this goal. The Fisheries Act however did not include any such rebuilding plans. “There were no requirements to rebuild a depleted fish stock,” in the Fisheries Act, Hutchings clarified. “Now there are new requirements for rebuilding, however they don’t go as far as the MSA in a couple of ways: one is that stock rebuilding pertains to the limit reference point (LRP) or Blim. This measurement typically identifies the stock level below which you would not permit directed catch on the fishery.” The philosophy for the Fisheries Act is to bring depleted fisheries up to a minimum biological point, whereas the MSA aims to rebuild fisheries to the point where they can sustain directed fishing effort.
The other primary difference is that there is no time frame articulated in the Fisheries Act revisions for reaching LRP comparable to the ten-year time frame instructed in the MSA. Hutchings remarked, “at least when you have a rebuilding timeframe of 10 years, even though it might often be aspirational, nonetheless it does communicate to the industry and to society that there is an expectation of rebuilding to BMSY over a decadal time frame. In the Canadian revisions if you don’t specify a timeframe – and the revisions do not specify such a timeframe – then I think that allows for more flexible interpretation of how rapidly or slowly a stock might be rebuilt.”
Burridge also mentioned the opportunity for flexible interpretation regarding rebuilding efforts: “this is different because it is enabling legislation, so the devil is in the details of the regulation and we don’t know what those are going to be yet. The law sets these broad targets and the regulations determine how those targets and objectives will be achieved. We need to see what the regulations will look like first.” Much of the regulatory power of this law will be determined by the minister, and therefore the results could be similar to fisheries outcomes in the US under the MSA, but only through a certain interpretation of the law.
The minister “may” do as he or she pleases
The Minister of DFO historically had wide discretion when making fisheries policy decisions and Bill C-68 reinforces that opportunity. (Watt 2019). The word “may” is used to describe actions for the minister, rather than the word “must”. For example, the minister may consider, “social, economic and cultural factors in the management of fisheries” as well as “the preservation or promotion of the independence of license holders in commercial inshore fisheries,” explained Daniel Watt in an article for McInnes Cooper in June. (2019). This basically gives the minister an excuse for valuing fishery economic output over ecological recovery if ever those two considerations conflict.
The revisions do include more stringent wording, requiring that the minister must, “take into account whether measures are in place to rebuild the stock,” if a fish stock has fallen below the LRP. (Watt 2019). “If loss of fish habitat contributed to the decline, the Minister must consider whether measures are in place to restore that habitat.” (Watt 2019). However, “the Minister isn’t compelled to order such measures, and ultimately decides whether stock is in decline or there is habitat loss.” (Watt 2019).
Ultimately the sensibilities of the current minister can have a profound effect on the interpretation of the Fisheries Act. “That can be an extremely positive change, or almost no change at all depending on how it is implemented by the minister,” believed Rice. “It’s a great opportunity, but what factors are involved and which measures to use will really determine the consequences, and those circumstances are not entrenched in the legislation.”
Jeff Hutchings on the other hand was concerned about the current minister’s interpretation after the recent decision to increase Newfoundland’s Atlantic cod quota by 30%. This was the same cod fishery that infamously collapsed in 1992, and this action seemed in contradiction to the LRP rebuilding standards detailed in Bill C-68.
“We have the northern cod fishery that is estimated to be at less than half of the [LRP] and the minister just approved a 30% increase in the direct quota. That, I think, draws attention to an overall limitation to Canada’s Fisheries Act, and that is the fact that the minister has discretion to basically do whatever she or he wishes to do. This has long been seen as an overarching weakness of the fisheries act, that the minister enjoys this discretion. I would say we have just seen what happened a few days ago − the quota increase in northern cod − to be an example of ministerial discretion being exercised, despite the fact that a few days earlier parliament passed a law that contradicts that.” (Hutchings 2019).
Still, Burridge expressed a concern with a new fisheries policy model that lacks dynamism to respond to the diversity of Canadian fisheries issues. “The route that I would not like to go down is eternal legislation, which is a bit the US model. I’d like to see flexible but dynamic regulations that fit a range of fisheries that allow for changing environmental conditions.” Ministerial discretion could facilitate such a model.
What Canadian fisheries will be most affected by Bill C-68?
The Atlantic cod fishery is already seeing the impacts of these amendments, but what other fisheries or species will be most impacted? “We have twenty-five to thirty fish stocks considered to be below [LRP], but we have rebuilding plans for fewer than five of them,” described Hutchings. “Herring, flatfishes, turbot, American plaice, white hake – there’s a number of relevant species.” Rebuilding plans to bring these stocks back up to LRP are now required under the new bill.
New habitat protection measures will likely impact a few species in particular. “I think salmon will benefit the most, it’s affected by habitat changes at every point,” said Burridge. “We have no idea, really, what goes on out in the ocean so we can only look at controlling what’s in our path,” regarding salmon restoration.
“What the ministry does for west coast salmon fisheries will be interesting,” echoed Rice. But he also identified the potential need to re-examine LRP and other indicators for some Canadian fisheries. “Pacific Cod have extremely good management and extremely good harvest control rules. But the stock is nearly down to LRP despite great management. It’s because the warm water has been so pervasive along the Gulf of Alaska for several years in a row, and stock productivity is way down. At what point do you decide that a stock LRP’s under much colder environmental conditions aren’t right for a management decision? This is going to be a complex thing to consider and it’s a discussion we need to have.”
How significant was the shark fin ban?
The most commonly reported aspect of the revisions was the shark fin import ban. This amendment solidified Canada as the first G7 country to ban the importation of shark fins, although the harvest and export of shark fins has been illegal in Canada since 2004. Everyone we spoke to agreed that this was an overdue measure to officially include in the Fisheries Act. “Canada was one of the larger importers of shark fins,” Hutchings told us.
But Rice felt this revision may have garnered a disproportionate amount of the media coverage: “I’m not sure how big an impact banning the import of it in Canada will actually have on fishery operations abroad. I was in charge of groundfish on the west coast for seven years and never heard of [shark finning operations] once and I knew the industry very well. I’ve just never heard anyone discuss it as part of their fishery strategy.”
Despite limitations, Bill C-68 was a positive step forward for Canadian fisheries
All three experts were disappointed with various parts of the law, or at least felt like it could have gone further on certain points. But all three were also adamant that these amendments were significant and an important step forward towards better fisheries management in Canada.
Hutchings summed up the sentiments best: “Even though I might sound critical, I do want to underscore the positive side of this which is, there have been attempts to revise the Fisheries Act for decades, and there have been some really serious attempts to incorporate a requirement for rebuilding for at least 25 years into the Act, and now it has finally come about. It might not have as strong a rebuilding requirement as the MSA, but it’s a hell of a lot better than what we had, and it’s an excellent starting point for strengthening the act further.”