Editors --- "Bill C-45: An Act respecting the sustainable development of Canada's seacoast and inland fisheries 2007 (Canada) - Digest" [2007] AUIndigLawRw 20; (2007) 11(1) Australian Indigenous Law Review 127

• Bill C-45: An Act Respecting the Sustainable Development of Canada’s Seacoast and Inland Fisheries (Canada)

Bill C-45: An Act Respecting the Sustainable Development of Canada’s Seacoast and Inland Fisheries (Canada)

First Reading Speech 13 December 2006

Bill C-45 amends the Fisheries Act 1985 (Canada) (‘the Act’). The proposed amendments increase the discretionary power of the Minister of Fisheries and Oceans and make only a few specific references to the rights of Aboriginal peoples, to fish and participate in fisheries management.

Preambular paragraph seven states:

Whereas subsection 35(1) of the Constitution Act 1982 recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada and Parliament recognizes the importance of fisheries to many aboriginal communities.

Preambular paragraph 10 states:

Whereas aboriginal, commercial and recreational fishers and their organizations, fish processors, communities, industry association and the public desire a greater and more direct participation in decisions respecting the future of Canada’s fisheries, including the conservation and protection of fish habitat.

Preambular paragraph 11 states:

Whereas aboriginal, commercial and recreational fishers and their organizations desire a greater and more direct participation in the management of their harvesting of fish.

While these statements do provide context for the Act and provide guidance for its interpretation, the preamble does not bind the Minister or others involved in the administration of the proposed Act.

Bill C-45 contains seven parts. The applicable principles to be followed in the administration of the Act are enumerated in section 6, which states that:

The Minister and every person engaged in the administration of this Act or the regulations must
…
(d) seek to manage fisheries and conserve and protect fish and fish habitat in a manner that is consistent with the constitutional protection provided for existing aboriginal and treaty rights of the aboriginal peoples of Canada.
(e) consider traditional knowledge, to the extent that it has been shared with them, with respect to the management of fisheries and the conservation and protection of fish and fish habitat;
(f) endeavour to act in cooperation with other governments and with bodies established under land claims agreements; and
(g) encourage the participation of Canadians in the making of decisions that affect the management of fisheries and the conservation or protection of fish or fish habitat.

While this section guides decision makers to consider traditional knowledge and encourage public participation, subsection (d) appears to confer a discretion on the decision makers to choose whether to uphold Aboriginal and treaty rights. This approach seems to be out of step with the otherwise constitutional status of these rights. The intention may be to activate the common law principle that Aboriginal and treaty rights are not absolute (as set out in R. v. Sparrow [1990] 1 S.C.R. 1075) (‘Sparrow’). However, if this is parliament’s intention, it seems contrary to the Supreme Court of Canada’s directions in Sparrow that the Crown has a fiduciary duty to deal with Aboriginal peoples in good faith and uphold the rights wherever possible.

Section 25(1) of the Bill sets out the considerations that the Minister must take into account when making regulations or allocating fisheries. The requisite considerations are:

(a) the need to conserve and protect fish and fish habitat;
(b) the compliance of fishers in the fishery with this Act or the regulations; and
(c) the importance of fishers of secure access to the fishery and of allocation stability.

While subsection 25(2) provides that the Minister may consider any other matter he should find of relevance, the section provides no specific reference to Aboriginal and treaty rights to fish.

Under section 43(1), the Minister has broad powers to enter into agreements to further the conservation or protection of fish, the sustainable development of a fishery or the participation of Canadians in fisheries management with ‘an organization that the Minister considers to be representative of a class of person or holders.’ Section 43(2) identifies some of the areas that may be included within such an agreement. Again, it is important to note that Aboriginal communities do not receive any special recognition within this section.

Part IV sets out the administration and enforcement provisions of the Bill. Once again, it is worth noting that there are no specific provisions that provide the public, including Aboriginal communities, to request an investigation into alleged contraventions of the Act. Such a provision would provide a powerful tool to allow Aboriginal communities to monitor and encourage enforcement of the Act and protect their resources.

Part V establishes the Canadian Fisheries Tribunal, which has jurisdiction over license appeals and violations of license conditions. However the Part does not include any explicit mention of public participation in the tribunal process. This may limit the ability of Aboriginal communities to participate in hearings that have the potential to negatively impact their rights.

It is difficult to assess whether these proposed changes, if implemented, would be beneficial or detrimental to Aboriginal people in Canada. Nevertheless, because of the amount of discretionary power conferred upon the Minister, any changes should be closely monitored with respect to their impact on Aboriginal rights.

The full text of this bill can be viewed on the Parliament of Canada web site at: <http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=2604605 & Language=e & Mode=1> .