On February 6, 2018, the federal government announced proposed amendments to the Fisheries Act (the Act), as we summarized here. In furtherance of the federal government’s reconciliation efforts with Indigenous peoples, the proposed amendments provide opportunities to increase and strengthen the role of Indigenous groups in decision-making under the Act, which includes the potential for an increased role in project reviews, monitoring and policy development. The amendments also expressly provide opportunities for DFO to consider traditional knowledge in decision-making under the Act.
We have outlined the key aspects of the proposed amendments as they relate to Indigenous peoples and participation opportunities below.
Increased opportunities for Indigenous participation
The Bill builds in several opportunities to increase and enhance the role of Indigenous peoples in decision-making and management under the Act. In broad terms, the Bill provides that, when making decisions under the Act, the Minister may consider “cooperation” with any Indigenous governing body (as well as any body or co-management body established under a land claims agreement).[i]
Most notably, the Bill provides that the Minister may enter into agreements with such Indigenous bodies to further the purpose of the Act (including agreements to facilitate: cooperation, joint action in areas of common interest, reducing overlap and harmonizing programs, enhanced communication, and public consultation or the entry into arrangements with third party stakeholders).[ii] Such agreements may also provide for the application of Indigenous laws that are deemed equivalent in effect to a provision of a regulation, and the amendments appear to contemplate that such laws would be administered and enforced by the Indigenous body within its own territory.[iii]
The scope and content of such agreements is potentially very broad, as the new purpose of the Act is to “provide a framework for (a) the proper management and control of fisheries, and (b) the conservation and protection of fish and fish habitat, including by preventing pollution.[iv] By expressly contemplating agreements between the Minister and Indigenous groups to further the purpose of the Act, in our view, this measure is poised to have the largest impact of the Fisheries Act amendments in terms of increasing opportunities for Indigenous groups to participate in decision-making, monitoring and management of fish habitats, and to affect the development of policy.
We note that these amendments reflect what we have observed has already become an informal DFO practice in certain circumstances: developing arrangements and seeking the approval or cooperation of Indigenous groups prior to making significant decisions affecting their rights and interests. It is worth noting, however, that the amended Act does not require the entry into agreements with Indigenous groups under any circumstances, but rather presents it as an option for the Minister to consider.
In respect of consultation, the language of the Bill appears to align with the well-established common law principles of the Crown’s duty to consult. The amended Act states that the Minister shall consider any adverse effects that a decision may have on the s. 35 rights of Indigenous peoples.[v] Elsewhere, the Act provides that the Minister may consult with any Indigenous governing body before establishing any standards and codes of practice in respect of avoidance of death to fish and harmful alteration, disruption or destruction of fish habitat, conservation and protection and pollution prevention, but it does not make such consultation mandatory.[vi]
Notably, there is an absence of any express requirement for government to seek or obtain free, prior and informed consent (FPIC) by Indigenous peoples in making decisions or granting authorizations under the Act. The Fisheries Act amendments provide a possible indication that the federal government is following its stated intentions to implement the principles of UNDRIP (and specifically FPIC) by increasing opportunities for Indigenous participation in decision-making, in this case through the “cooperation” and agreement processes outlined above, rather than by implementing a stricter standard of consent in respect of all decisions affecting Indigenous peoples or rights. As a result, the amendments may be viewed by Indigenous groups as falling short of the federal government’s stated support for UNDRIP “without qualification”.
Consideration of traditional knowledge
As expected, the Bill provides for the consideration of traditional knowledge of Indigenous peoples in respect of decision-making under the Act. When making a decision under the Act, the Minister may consider traditional knowledge of Indigenous peoples that has been provided to the Minister, as well as community knowledge and other social, economic and cultural factors in the management of fisheries.[vii] Further, before the Minister makes a recommendation to the Governor in Council that a regulation be made or a permitting power be exercised in respect of particular sections of the Act (including the s.35 HADD provisions), the Minister shall consider traditional knowledge of Indigenous peoples that has been provided to the Minister.[viii]
It is worth noting that, with the exception of when the Minister is making a recommendation to the Governor in Council that a regulation be made or in exercising a permitting power under particular sections of the Act, the Bill does not otherwise require the Minister to consider traditional knowledge, and it also expressly states that the Minister shall not require any traditional knowledge to be provided to him or her in conducting research or collecting data or other information.[ix]
In keeping with the federal government’s preference for the term “Indigenous” over “Aboriginal”, the Bill replaces all references to Aboriginal with Indigenous. “Indigenous peoples of Canada” is defined in the Act as having the equivalent meaning as set out by the definition of “aboriginal peoples of Canada” in s. 35(2) of the Constitution Act, 1982. This includes “the Indian, Inuit and Métis peoples of Canada.”
Enhancing Indigenous partnering opportunities through a modernized fish habitat protection program
Although not expressly laid out in the proposed amendments to the Act, the federal government has also indicated that in support of the proposed changes to the Act, it will be introducing a modernized fish habitat protection program. The government has not yet provided details about the program or specified how it will be implemented (although it would likely be structured either through regulations or guidelines). However, the federal government states that one of the aims of the program will be to “enhance partnering opportunities with Indigenous communities regarding the conservation and protection of fish and fish habitat.” The government states that the proposed changes to the Act would enable Indigenous peoples to participate in: (i) developing national policy through a multi-interest advisory panel; (ii) project reviews; and (iii) monitoring. The government further states that it will work closely with Indigenous peoples to put these proposed changes into effect and provide opportunities for interested communities to participate in the conservation and protection of fish and fish habitat.[x]
As with much environmental legislation, the true impact of the new Fisheries Act, including its effects in respect of Indigenous rights and participation, will only be meaningfully gauged once the regulations and any applicable guidelines are published. We will continue to monitor and provide commentary as the proposed amendment legislation makes its way through Parliament.
[i] s. 2.5
[ii] S. 4.1(1). (Under the current Act, these types of agreements are only contemplated with the provinces).
[iii] Ss. 4.1(2)(h) and 4.2(1).
[iv] S. 2.1
[v] Summary (a) and s. 2.4
[vi] s. 34.2(3)
[vii] s. 2.5
[viii] s. 34.1(1)(g)
[ix] s. 61.1(1) and (2)