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Fisheries Act amendments need judicial review

An overhauled Fisheries Act imposing stiffer fines, among other changes, has to be applied in a real scenario before it can be fully analyzed, Vancouver environmental lawyer Janice Walton says in Canadian Lawyer magazine.

The revamped act, which the federal government amended in 2012 under the omnibus Bill C-38, recently took effect, the article says, noting changes include the replacement of the commonly cited prohibition against harmful alteration, disruption, or destruction of fish habitat, along with greater penalties.

“There’s no question in my mind this is going to have to go through judicial review; there’s going to have to be some court cases in which the court is able to look at it through the eyes of a real scenario, and determine what the ‘serious harm to fish prohibition’ in the act actually means,” Walton, counsel with Blake, Cassels & Graydon LLP, says in the article.

“Policy is just policy, it’s not law. I think it’s going to be challenging for the courts — a battle of the experts, but then it always is.”

The amendments include an increase in the penalties under s. 40 of the act, including a minimum fine of $500,000 for large corporations and a maximum $6 million fine for companies on first offences (on indictment) and that doubles on second offences for environmental provisions, Canadian Lawyer reports. It’s an increase from the previous maximum of $300,000, the article says.

“If you compare it to the former Fisheries Act policy it was much more specific in terms of how they figure out what the impact on habitat was. From a biology perspective this is a little skinny,” Walton says in the article.

Previous court cases – including Supreme Court of Canada decisions – have determined the Fisheries Act applies to fisheries as a resource and that a fishery can be “recreational, aboriginal, or commercial,” says Walton.

“In the policy documents it notes that aboriginal fisheries applies to not just where they are currently fishing but where they can fish and areas that support fisheries such as creeks — I don’t see this as much narrower than what we have now,” she tells Canadian Lawyer. “Where in Canada would there arguably not be an aboriginal fishery?”

The new penalties are in line with the Environmental Enforcement Act that came into force four years ago, which amended other pieces of legislation, adds Walton.

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