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Simon Shields,
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Wild Animal Law of Canada

----------------------------
Fisheries Act (Canada)('FA')

(current to 01 October 2016)


Note Re Application of the Fisheries Act (Canada)('FA')

The federal Fisheries Act applies generally to 'Canadian fisheries waters', which means "all waters in the fishing zones of Canada, all waters in the territorial sea of Canada and all internal waters of Canada" [FA 2(1)]. This latter inclusion, 'internal waters of Canada' means that it has application broadly to internal provincial waters, insofar as they are 'fisheries' (which is broadly defined). The FA's general provisions also apply "in relation to any fishing vessel or aircraft on or over the High Seas that is subject to the jurisdiction of Canada", and to the federal Crown [FA 3(2), 87(1)].

For these purposes, 'fish' includes "shellfish, crustaceans, marine animals", and 'fishery' includes "the area, locality, place or station in or on which a pound, seine, net, weir or other fishing appliance is used, set, placed or located, and the area, tract or stretch of water in or from which fish may be taken by the said pound, seine, net, weir or other fishing appliance, and also the pound, seine, net, weir, or other fishing appliance used in connection therewith" [FA 2(1)].

This law bears on the wildlife issues of:
  • PROTECTION
  • SALE
  • IMPORT/EXPORT/RELOCATION
  • HABITAT
  • HUNTING, TRAPPING AND FISHING
  • CIVIL LIABILITY
The full current text of the Fisheries Act and it's Regulations may be viewed at the Canada statute website.

_________________________


Table of Contents
1. Split Federal-Provincial Jurisdiction
2. General Protections and Prohibitions
3. Marine Mammals
(a) Overview
(b) Marine Mammals Provisions
4. Invasive Species
(a) General
(b) Provisions Regarding Invasive Aquatic Species
5. Enforcement
(a) Administrative Enforcement
(b) Orders
(c) Reporting Duties
6. Civil Liability
______________________________________


1. Split Federal-Provincial Jurisdiction

The Constitution Act, 1867 (formerly the British North America Act) allocates jurisdiction over the "Sea Coast and Inland Fisheries" to the federal Canadian government [s.91(12)]. The 'inland fisheries' aspect of this jurisdiction has forced the federal government into extensive practical and legislative co-operation with individual provinces [FA 4.1], though in practice provincial involvement with fisheries is typically limited to licensing both recreational and commercial fishing within their workhorse hunting and fishing statutes (though sometimes within a free-standing provincial 'Fisheries Act').

The federal Fisheries Act has associated with it a dedicated regulation addressing each provincial and territorial fisheries relationship (Atlantic and Pacific provinces are treated together in merged Regulations) over fisheries. Typically each of these addresses issues such as sport fishing, commercial fishing, regulation of fishing gear and fishing methods, open seasons and catch limits. These Regulations are clearly written and do not benefit significantly from summarization or selection, so anyone considering a fish or fisheries issue in relation to a specific province, territory or coast should refer to the appropriate regulation, linked here:The FA provides that in the case where a province has legislated on some subject-matter, that federal law of similar effect may (by federal Cabinet Order) be held in abeyance for that province [FA 4.2(1)].


2. General Protections and Prohibitions

The following provisions apply to fish, fishing and fisheries:
  • it is prohibited to damage, obstruct any fishway constructed or used to enable fish to pass over or around any obstruction, or otherwise to interfere with the operation of fishways or similar constructions [FA 20(4)];

  • it is prohibited to damage or remove fish guards, screens, coverings, nettings or other devices installed "to prevent fish held for breeding from escaping or for any other purpose that the Minister considers to be in the public interest" [FA 21];

  • it is prohibited to "fish for, take, catch or kill fish in any water, along any beach or within any fishery described in any lease or licence, or place, use, draw or set therein any fishing gear or apparatus, except by permission of the occupant under the lease or licence", or to "disturb or injure any such fishery" [FA 23];

  • "(s)eines, nets or other fishing apparatus shall not be set or used in such manner or in such place as to obstruct the navigation of boats and vessels and no boats or vessels shall destroy or wantonly injure in any way seines, nets or other fishing apparatus lawfully set" [FA 24];

  • generally, fishing gear and appparatus shall be removed from waters during 'close times' (periods when fishing is prohibited, such as closed seasons) [FA 25];

  • it is prohibited to "hunt or kill fish or marine animals of any kind, other than porpoises, whales, walruses, sea-lions and hair seals, by means of rockets, explosive materials, explosive projectiles or shells" [FA 28];

  • it is prohibited to obstruct significant portions of fisheries waters, rivers or streams with "any seine, net, weir or other fishing appliance" [FA 29];

  • it is prohibited to "catch, fish for, take, buy, sell, possess or export any fish for the purposes of converting it into fish meal, manure, guano or fertilizer, or for the manufacture or conversion of the fish into oil, fish meal or manure or other fertilizing product", without Ministerial authorization [FA 31(1)];

  • the purchase, sale or possession of fish caught in violation of the FA regime is itself prohibited [FA 33];

  • it is prohibited to "carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery", except where allowed under the Regulations or with Ministerial authorization [FA 35];

    For this purpose, 'serious harm' to fish means "the death of fish or any permanent alteration to, or destruction of, fish habitat" [FA 2(2)].

  • it is prohibited to [FA 36(1)]:

    • "throw overboard ballast, coal ashes, stones or other prejudicial or deleterious substances in any river, harbour or roadstead, or in any water where fishing is carried on";
    • "leave or deposit or cause to be thrown, left or deposited, on the shore, beach or bank of any water or on the beach between high and low water mark, remains or offal of fish or of marine animals"; or
    • "leave decayed or decaying fish in any net or other fishing apparatus".

  • it is prohibited to "deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water", except where allowed under the Regulations [FA 36(3,4)].

  • where a fish is caught illegally and remains alive, it shall forthwith be released at the place from which it was taken in a manner that causes it the least harm [Fishery (General) Regulation ('FG Regs') 33(1,2)];

  • it is prohibited, under a commercial license, to "dump from a vessel any fish that has been caught in accordance with the Act and the regulations made thereunder" (wastage) [FG Regs 34(1)];

  • it is prohibited, under a recreational license, to "waste any fish that is suitable for human consumption" [34(2)];

  • it is prohibited, except in the case of marine mammals, to "buy, sell, trade, barter or offer to buy, sell, trade or barter any fish unless it was caught and retained under the authority of a licence issued for the purpose of commercial fishing" [FG Regs 35(2)];

  • transfer and release of live fish may only be done under license [FG Regs 55(1), 56].

3. Marine Mammals

(a) Overview

The Fisheries Act (which categorizes marine mammals within the definition of 'fish') allows licensed 'fishing' for marine mammals in the following categories: beluga, bowhead whales, narwhals (Inuk only), seals (both personal and commercial), nuisance seals, walrus and "(c)etacean other than beluga, bowhead whale, narwhal or right whale" [Marine Mammal Regulations ('MM Regs') 4(1)]. Indians and Inuk are exempt from license requirements in some cases, as are some other persons living next to seal habitat when taking for food purposes [MM Regs 6].

Such 'fishing' is subject to the close times, fishing quotas and area restrictions set out in the Marine Mammal Regulations.

(b) Marine Mammals Provisions

The following provisions apply to marine mammals:
  • except when legally fishing, it is prohibited to disturb marine mammals [MM Regs 7];

  • any killing of a marine mammal shall be done quickly [MM Regs 8];

  • anyone killing a marine mammal shall have "on hand the equipment that is necessary to retrieve it" [MM Regs 9];

  • anyone killing or wounding a marine mammal shall "make a reasonable effort to retrieve it without delay" or abandon or discard it (pelts and carcasses must be landed) [MM Regs 10, 33.1];

  • live marine mammals may not be moved "from the immediate vicinity in which it is found", without a license for experimental, scientific, educational or public display purposes [MM Regs 11(a)];

  • "(n)o person shall fish for a beluga calf, bowhead calf or narwhal calf or for an adult beluga, bowhead whale or narwhal that is accompanied by a calf" [MM Regs 18];

  • subject to some technical requirements, firearms may be used to fish cetaceans and walruses [MM Regs 19,25];

  • "(n)o person shall use a club or hakapik to strike a seal older than one year unless the seal has been shot with a firearm" [MM Regs 28(1.1)];

  • with respect to killing seals:

    • "(e)very person who strikes a seal with a club or hakapik shall strike the seal on the top of the cranium until it has been crushed and shall immediately palpate the cranium to confirm that it has been crushed" [MM Regs 28(2)];
    • "(i)f a firearm is used to fish for a seal, the person who shoots the seal or retrieves it shall palpate the cranium as soon as possible after it is shot to confirm that the cranium has been crushed" [MM Regs 28(3)];
    • "(e)very person who palpates the cranium of a seal and determines that the cranium is not crushed shall immediately strike the seal with a club or hakapik on the top of its cranium until the cranium has been crushed" [MM Regs 28(4)];
    • "(n)o person shall skin a seal until the cranium has been crushed and at least one minute has elapsed after the two axillary arteries of the seal located beneath its front flippers have been severed to bleed the seal" [MM Regs 29].

  • "(n)o person shall fish for adult harp or hooded seals in whelping or breeding patches" [MM Regs 30].

4. Invasive Species

(a) General

Parts 2 and 3 of the Schedule to the Aquatic Invasive Species Regulation ('AIS Regs') list what the FA calls 'invasive aquatic species' [AIS Regs 1].

(b) Provisions Regarding Invasive Aquatic Species

The following provisions apply with respect to invasive aquatic species:
  • it is prohibited to "introduce an aquatic species into a particular region or body of water frequented by fish where it is not indigenous unless authorized to do so under federal or provincial law" [AIS Regs 10];

  • with respect to areas designated in the AIS Regs, it is prohibited to:

    • importat any live invasive aquatic species [AIS Regs 6];
    • possess any live invasive aquatic species [AIS Regs 7];
    • transport any live invasive aquatic species [AIS Regs 8];
    • release live invasive aquatic species [AIS Regs 9].

      The above provisions [AIS Regs 6-9] are exempted for "importation, possession, transportation or release of members of a species set out in Part 2 of the schedule" under permit for scientific, educational or aquatic invasive species control purposes, by educational institutions, a research facilities, zoos or aquariums, and a federal or provincial department with a mandate to manage or control aquatic invasive species (permit not required for governments) [AIS Regs 13(1,2)], and for some ballast water and biofouling [AIS Regs 17].

  • the Minister may undertake, authorize or direct measures to control or eradicate aquatic invasive species, including the use of 'deleterious substances' (pesticides) [AIS Regs 19,27];

  • fishery officers or guardians may Order persons to prevent the introduction of aquatic invasive species to waters that they are not indigenous to, or take direct action to achieve that result, including destruction of the fish [AIS Regs 22, 24-26].

5. Enforcement

(a) Administrative Enforcement

As with most regulatory statutes, the FA provides for the appointment of enforcment officers (here 'fisheries officers and also 'fisheries guardians') [FA 5(1)] and inspectors [FA 38], with authorities of entry and inspection [FA 49], warrant and warrantless searches [FA 39, 49.1], and arrest [FA 50].

Violations of FA provisions may be prosecuted as offences [FA 40,78].

(b) Orders

Where works or proposed works may threaten serious harm to fish, a fishery or an ecologically significant area, by the deposition of deleterious substances or otherwise, the Minister may require the proponent of the works to disclose their plans for the work - and may then Order that such work be closed, restricted, or that it be modified [FA 37]. For this purpose, 'serious harm' to fish means "the death of fish or any permanent alteration to, or destruction of, fish habitat" [FA 2(2)].

Where "necessary to ensure the free passage of fish or to prevent harm to fish", the Minister may make enforceable requests that "the owner or person who has the charge, management or control of an obstruction or any other thing that is harmful to fish shall" remove the cause of, or otherwise ameliorate, the harm caused (eg. by constructing a fishway) [FA 20(1-3)].

(c) Reporting Duties

The following reporting duties are created under the FA:
  • anyone in charge of a work where "an occurrence ... results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that is not authorized under this Act", or who causes such harm themselves, shall report the occurence to fisheries authorities without delay, and shall "as soon as feasible, take all reasonable measures consistent with public safety and with the conservation and protection of fish and fish habitat to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or might reasonably be expected to result from it" [FA 38(4,6)];

    For these purposes, 'fish habitat' means "spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes [FA 2(1)].

  • anyone in charge of a work where "there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under this Act, or if there is a serious and imminent danger of such an occurrence, and detriment to fish habitat or fish or to the use by humans of fish results or may reasonably be expected to result from the occurrence", or who causes such harm themselves, shall report the occurence to fisheries authorities without delay, and shall "as soon as feasible, take all reasonable measures consistent with public safety and with the conservation and protection of fish and fish habitat to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or might reasonably be expected to result from it" [FA 38(5,6)].

6. Civil Liability

Persons responsible for a deposit of an unauthorized deleterious substance in water frequented by fish may be liable to both the federal Crown and fisherman harmed by such deposit [FA 42(1,3)].



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