Canadian Fisheries Management: Law, Policy and Discretion

1. Schulich School of Law Dalhousie University Marine and Environmental Law Institute Canadian Fisheries Management: Law, Policy and Discretion Phillip Saunders 8th Marine Law Symposium Roger Williams University School of Law Nov. 3, 2010

2. Introduction • Canadian approaches & Magnuson-Stevens • Rooted in different legal systems, legislative traditions • Parliamentary: Govt of day controls legislature: prefers discretionary powers • Outline • Common law position • Constitutional Jurisdiction • Legislation & regulation

3. Three Oceans: 7 mill. Sq km of jurisdiction EEZ proclaimed 1977 Source: Govt. of Canada

4. Common Law • Magna Carta– Public Right of Fishing • BUT – can be removed/limited by explicit act of legislature • No Public Trust Doctrine • Eliminates potential challenges if legislature acts • Closed list: no new uses

5. Constitutional Jurisdiction • Constitution Act 1867: legislative & proprietary jurisdiction • Legislative: Federal jurisdiction over “seacoast and inland fisheries” • Treaties and foreign affairs • Proprietary: all areas outside provinces fully federal • Provinces: retain proprietary rights inside provinces BUT subject to federal legislative power • Including effects outside province

6. Legislation, Regulation & Policy • Fisheries Act 1868 • Broad and brief - little or no direction on management or allocation policy • General prohibition on unlicensed fishing coupled with power to regulate. The Bluenose Source: Govt of NS

7. Fisheries Act Regulation Power 43.The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations (a) for the proper management and control of the sea-coast and inland fisheries; (b) respecting the conservation and protection of fish …….

8. Regulations Under Fisheries Act • Regulations under Act include, eg.: • Licensing requirements • Gear Restrictions • Closed Seasons • Zones and Fishing areas • But not: criteria for quotas, IQs and ITQs; allocations • These developed under general Ministerial power & policies

9. From 1977-early 1990s: expansion & Ministers ignoring scientific advice • Northern Cod Collapse & 1992 Moratorium • 1993: Establishment of Fisheries Resource Conservation Council (FRCC) • Govt. industry, academics • Advisory role: groundfish quotas (mostly followed) • New mandate: strategic and policy advice • Also: PFRCC

10. Policies • Much of management, allocation effort under policies which Minister may use as basis for exercising powers • Sustainable Fisheries Framework 2009: • Decision-Making Framework: Precaution • Impact on Benthic Habitat, Communities • Economic, planning policies • Application via Integrated Fisheries Management Plans (IFMPs)

11. IFMPs • Consultative exercise – but chaired, driven and finalized by Govt • Sets out status, management issues, objectives, access and allocation • Possible: Joint Project Agreements under IFMP (not quite binding) • Ultimately: discretion of Minister remains

12. Mandatory Wording in All IFMPs “This IFMP is not a legally binding instrument which can form the basis of a legal challenge. The IFMP can be modified at any time and does not fetter the Minister's discretionary powers set out in the Fisheries Act.The Minister can, for reasons of conservation or for any other valid reasons, modify any provision of the IFMP in accordance with the powers granted pursuant to the Fisheries Act.”

13. Summary • Improvements : more detailed policy guidance in recent years • But these documents are guidance, not law • Rests in end on broad discretionary powers of Minister • Pro: Can be creative, productive (vs slow pace of legislative change) • Con: Transparency, political influence, lack of opportunity to challenge

14. Thank you.