Finally, after over two years of being in power, the Liberal Government has proposed amendments to the Fisheries Act. The Prime Minister promised to undo the gutting of the Act by former PM Harper when he did away with protections to the habitat (better known as HADD). This was done and it a positive proposed change.
This bill has passed second reading and will now be going to a Parliamentary committee so First Nations and other interested in the fishery need to ask to go before the Standing Committee or get their written submissions in and lobby MP’s and eventually senators on needed changes to this bill.
Like all proposed legislation, there are good things and not so good things. In light of the Liberals commitments to implement the Universal Declaration of Indigenous Rights (UNDRIP), the mandate letter to Ministers, their work on reconciliation, and Nation to Nation efforts, I would have hoped for a lot more.
There was an extensive process to ask First Nations what they wanted to see in the Fisheries Act and as usual, only parts of what was asked for was integrated into the proposed bill. Now, going before the parliamentary committee and asking for more changes, lobbying members of parliament and the senators will be the only way to make changes that are needed to Bill C-68. Here are some things to consider and remember this is not a comprehensive review of the Bill.
SOME DEFINITIONS ARE PROBLEMATIC
s. 2.1 is amended by adding the following definitions:
Indigenous Governing Body: means a council, government, or other entity that is authorized to act on behalf of a indigenous group, community or people that holds s.35 rights
This definition is not very clear. A First Nations Council or Government is understandable. But what does an entity that is authorized to act on behalf of a indigenous group, community of people that holds s. 35. Rights means? This can be confusing as it could mean the AFN, or a tribal Council, or provincial First Nation organization. It is the First Nations themselves that holds the rights, not an “entity” or “organization”. These rights are held collectively by the members of the First Nation in question. This definition could lead to confusion in who has the ability to exercise rights or speak about them. Throughout the bill there is talk of an indigenous organization that is not defined causing you to wonder what an indigenous organization it.
Laws: includes the BY-LAWS made by an indigenous governing body.
If that body is a First Nation, this does not recognize the laws of the First Nation. Demeans the inherent laws of the First Nations. Should be made clear it can be a law or by-law.
Indigenous, in relation to a fishery, means that fish is harvested by an Indigenous organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Indigenous organization
Not sure how this fits into the Fisheries Act, but if there is an indigenous fishery, it is being harvested by an organization (which is undefined) not the indigenous First Nation and it is only for food, social and ceremonial or as defined in a treaty. There is no room in this definition for commercial fisheries and that is very problematic in relation to many court cases including the Ahousaht court case. The right to a commercial fishery has always been the position of First Nations.
Provisions of the Fisheries Act
s. 2.a: The purposes section of the Act is new but surprisingly there is no specific provision for the recognition and implementation of indigenous peoples right. It should say something like the Act recognizes and implementsFirst Nations right to the fishery and sea resources as well as their role to manage the fishery.
s. 2.3: s. 35 rights cannot be abrogated or derogated by the Fisheries Act.
This section basically says that the Fisheries Act cannot override the constitution Act and the rights recognized and affirmed there.
s. 2.4 DUTY OF MINISTER: When making a decision, Minister SHALL CONSIDER any adverse affect the decision may have on s. 35 Indigenous rights
This is not a strong provision. It does not say the Minister has to protect indigenous rights, just “shall consider”. He can consider them and not do anything about them or decide in the public interest as we have seen in the past with projects such as Site C and Kinder Morgan. This section really needs to be more proactive in protecting the right to fish
2.8 Considerations for Decision Making: The Minister MAY take into consideration:
2.8(d) MAY take into consideration TK
This is too discretionary of a provision and must be changed. TK MUST be taken into consideration or the Minister can chose just scientific knowledge and leave out valuable information from First Nations.
s. 34.1: When preparing regulations and before recommending regulations to cabinet, they SHALL consider among other things
s.34.1(g) traditional knowledge of the indigenous peoples of Canada that has been provided to the Minister.
Under this section, TK must be considered as opposed to s. 2.4 where it MAY be considered.
s. 61.1(2) The Minister cannot require anyone to give him traditional knowledge.
Providing the Minister Traditional Knowledge is strictly voluntary.
61.2(1) TEK must be kept confidential unless Minister has been given written consent.
61.2(2) TEK CAN be disclosed if it publicly available, or If Minister needs to prove their decision was free of bias and followed the rules of natural justice. OR they can use it in court proceedings. (there will be regulations to elaborate on this more 61.2 (c))
First Nations people need to know that while most of the time TEK will be confidential that it can be used publicly without your consent. You therefore need to know that TK may be made public so FN will have to be careful what they share as there is no protection. Or First Nation's can have input into the regulations when they are developed or you can ask for a change in the proposed bill that TK remaining confidential at all times unless consent is given.
S. 4.1(1) NEGOTIATED AGREEMENTS: The Minister can enter into agreements with a province, any indigenous governing body or a co-management body established under a land claims agreement to further the purpose of this act including
a) facilitating cooperation between the parties to the agreement, including facilitating joint action in areas of common interest, reducing overlap between their respective programs and otherwise harmonizing those programs;
(b) facilitating enhanced communication between the parties, including the exchange of scientific and other information; and
(c) facilitating public consultation or the entry into arrangements with third-party stakeholders.
What is new to this section is that agreements can be entered into with indigenous governing bodies not just provinces. (Purposes of agreements has not changed just reproduced them here for context.)
s. 4.2(2)(h): The indigenous governing body the circumstances and manner in which the government of (the province) or the Indigenous governing body is to provide information on the administration and enforcement of a provision of the laws of (the province) or the Indigenous governing body that the agreement provides is equivalent in effect to a provision of the regulations.
This section allows for the agreement to include a provision that lets an indigenous law to operate like a Fisheries Act regulation. (or a provincial law does the same and this can also be problematic for indigenous people)
s. 4.2 (1) If an agreement entered into under section 4.1 provides that there is in force a provision of the laws of (the province or) the Indigenous governing body that is equivalent in effect to a provision of the regulations, the Governor in Council may, by order, declare that certain provisions of this Act or of the regulations do not apply in the province or the territory governed by the Indigenous governing body, as the case may be, with respect to the subject matter of the provision of the laws of (the province or) the Indigenous governing body.
What this section does is to let the law of the Indigenous governing body apply and not the fisheries Act if that is part of the agreement.
s. 4.1(4) The Minister shall publish an agreement in any manner they feel appropriate but agreement must be posted on website for 60 days for public comments before signing. Minister must post a report how he dealt with the comments he received
After having negotiated an agreement for a period of time and posts it on a website for 60 days and DFO receives feedback and may see a need to make changes based on tgat feedback, This could cause the parties to go back to the table for further negotiations and could extend negotiations a long time if they have to republish for another 60 days.
It is difficult to know if agreements between First Nations and DFO that have been in existence for a long time would be subject to this posting. For example, Hupacasath and Tseshaht have had yearly Sales Agreements. They are usually completed in May or June for the fishing season. They would have to be negotiated much earlier in order to post for 60 days comment period. This fishery has been controversial and while some support it because of all the economic benefits it brings to the Alberni Valley, there are those that are opposed. This would be an opportunity for negative feedback on the website and cause the kind of racial divides we saw with the trial of Gerald Stanley.
Not sure if this would include reconciliation agreements based on fishery and this should be clarified in the amended Bill.
FEES AND REGULATIONS
s. 12(1): DFO can Institute fees to recover costs for services provided.
First Nations need to ensure that there cannot be fees for First Nations fisheries as it is our rights. Need an exception in the act for indigenous peoples
s. 34.1: Factors the Minister MUST consider prior to recommending regulations to the cabinet include (d) the cumulative effects of the carrying on of the work, undertaking or activity referred to in a recommendation or exercise of power in combination with other works, undertakings or activities that have been or are being carried on, on fish and habitat.
It is good to see that cumulative effects will be taken into consideration as this has not been a key factor in the past decision makings. Especially in areas like the Vancouver or Nanaimo Harbours where there is so already so much development. The continuing effect of more development affects the habitat of orcas and other fish stocks.
s. 34.2(4): Before establishing any standards and codes of practice the Minister MAY consult with any indigenous governing body or any persons interested in the protection of fish or fish habitat.
Again there is discretion in the Minister whether he consults with any “indigenous governing body”. The Minister MUST consult or obtain consent when any rights will be negatively impacted. This is very clear in case law and UNDRIP. Consent must be obtained by the First Nation who has the right, not an entity or organization.
s. 37(2) Minister can pass regulations creating ecological sensitive areas.
If First Nations want to designate a marine areas ecologically sensitive they have to work with Minister to create the area. This is not a given and is a timely process to engage in.
It is interesting that the Minister can establish ecologically sensitive areas but still allow development in ecological sensitive areas with conditions. Why have these areas designated if they can be disturbed? DFO words Work, undertaking of activity “is prohibited unless authorized.” When considering a work, undertaking of activity, the minister must ensure there is conservation and protection objectives for the ecologically sensitive area can continue to exist. Therefore if the FIrst Nation goes to the trouble to create an ecological sensitve area they need to know that development can occur and have to work to impose conditions on that development to protect what is important.
HARMFUL ALTERATION, DISRUPTION OR DESTRUCTION OF FISH HABITAT(HADD)
It is good news that the HADD provisions have been added back into the Fisheries Act. I have not analyzed them to any great extent in this analysis.
What should be carefully monitored and contributed into HADD is that the Minister can define what kinds of projects are designated projects, works and undertakings and can issue permits for certain designated project types. (S. 35.1)
The Minister can also establish standards and codes of practice for the avoidance of the death of fish and HADD.( s. 34.2) Again, First Nations need input into these standards and code.
Much of the detail of the Bill will be elaborated on when it becomes law and will be in regulations and policies.
This is not meant to be a complete analysis of Bill C-68. This is my interpretation of what could be problematic for First Nations. IF presentations were made during the consultations, you should review what if anyting was accepted and what still needs to be advanced.
First Nations need to get in front of the Parliamentary Committee on this act and/or make written submissions and lobby MP's and Senators when it gets to the Senate.
The Fisheries Act is a key Act that affects First Nations with fisheries and immediate attention must be given to it.