Regulations Amending the Fishery (General) Regulations: SOR/2022-73

Canada Gazette, Part II, Volume 156, Number 8

Registration
SOR/2022-73 April 4, 2022

FISHERIES ACT

P.C. 2022-328 April 4, 2022

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 6.3footnote a and paragraphs 43(1)(b.1)footnote b and (p)footnote c of the Fisheries Act footnote d, makes the annexed Regulations Amending the Fishery (General) Regulations.

Regulations Amending the Fishery (General) Regulations

Amendments

1 The Fishery (General) Regulations footnote 1 are amended by adding the following after section 68:

PART XIV

Fish Stocks

69 For the purposes of section 6.3 of the Act, the major fish stocks referred to in sections 6.1 and 6.2 of the Act are listed in the table in Schedule IX.

70 (1) A plan to rebuild a major fish stock, required under subsection 6.2(1) of the Act, shall contain the following information:

(2) The plan shall be developed within 24 months after the day on which the Minister first had knowledge that the major fish stock had declined to or below its limit reference point.

(3) The Minister may extend the time period to the extent necessary for completing the plan, by a period not exceeding 12 months.

(4) If the Minister extends the time period, the Minister shall publish the reasons for doing so on the Internet site of the Department.

(5) If fishing of the major fish stock while the plan is being developed is permitted by the Minister, the Minister shall ensure that the level of fishing of the stock during that time is consistent with the rebuilding of the stock above the limit reference point.

(6) Despite paragraph 1(d), if the Minister determines that it is not feasible to establish a timeline for achieving the target for rebuilding the major fish stock, the plan shall include, instead of such a timeline, the reasons why it is not feasible to do so.

(7) The Minister shall publish the plan to rebuild a major fish stock and the results of any periodic review of the plan on the Internet site of the Department.

2 The Regulations are amended by adding, after Schedule VIII, the Schedule IX set out in the schedule to these Regulations.

Coming into Force

3 These Regulations come into force on the day on which they are registered.

SCHEDULE

(Section 2)

SCHEDULE IX

(Section 69)

Major Fish Stocks

Definition

1 In this Schedule, NAFO means the Northwest Atlantic Fisheries Organization.

TABLE
Item

Column I

Stock Name

Column II

Scientific Name of Species

Column III

Stock Area
1 Atlantic cod, NAFO 3Pn4RS Gadus morhua The Area composed of Subdivision 3Pn described in paragraph 4(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985, and Divisions 4R and 4S described in paragraph 5(b) of that note
2 Atlantic cod, NAFO 2J3KL Gadus morhua The Area composed of Division 2J described in paragraph 3(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985, and Divisions 3K and 3L described in paragraph 4(b) of that note
3 Atlantic cod, NAFO 3Ps Gadus morhua Subdivision 3Ps described in paragraph 4(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985
4 Atlantic cod, NAFO 4TVn Gadus morhua The Area composed of Division 4T described in paragraph 5(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985 and Subdivision 4Vn described in that paragraph
5 Atlantic halibut, NAFO 3NOPs4VWX5Z Hippoglossus hippoglossus The Area composed of Divisions 3N and 3O described in paragraph 4(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985, of Subdivision 3Ps described in paragraph 4(b) of that note, of Divisions 4V, 4W and 4X described in paragraph 5(b) of that note, and Division 5Z described at paragraph 6(b) of that note
6 Atlantic herring, NAFO 4T (Spring Spawner) Clupea harengus Division 4T described in paragraph 5(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985
7 Atlantic mackerel Scomber scombrus The Area composed of Subarea 3 described in paragraph 4(a) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985, and of Subarea 4 described in paragraph 5(a) of that note
8 Bocaccio rockfish Sebastes paucispinis The Area composed of all Areas as defined in section 1 of the Pacific Fishery Management Area Regulations, 2007
9 Chinook salmon, West Coast of Vancouver Island Oncorhynchus tshawytscha The Area composed of
  • (a) all rivers that drain into the Pacific Ocean on the west coast of Vancouver Island between the Goodspeed River in the north and the Sooke River in the south;
  • (b) the Goodspeed River and the Sooke River; and
  • (c) all bodies of fresh water that flow directly or indirectly into any of the rivers referred to in paragraphs (a) and (b)
10 Chinook salmon, Okanagan Oncorhynchus tshawytscha The Area composed of
  • (a) the part of the Okanagan River that is between its confluence with Shuttleworth Creek and the border between Canada and the United States; and
  • (b) all bodies of fresh water that flow directly or indirectly into the part of the Okanagan River referred to in paragraph (a)
11 Coho salmon, Interior Fraser Oncorhynchus kisutch The Area composed of
  • (a) the part of the Fraser River that is upstream from its confluence with Ruby Creek;
  • (b) Ruby Creek; and
  • (c) all bodies of fresh water that flow directly or indirectly into the part of the Fraser River referred to in paragraph (a) or into Ruby Creek
12 Lobster, Lobster Fishing Areas 19-21 Homarus americanus The Area composed of Lobster Fishing Areas 19 to 21 illustrated and enumerated in Part III of Schedule XIII to the Atlantic Fishery Regulations, 1985
13 Northern shrimp, Shrimp Fishing Area 6 Pandalus borealis Shrimp Fishing Area 6 illustrated and enumerated in Schedule XVII to the Atlantic Fishery Regulations, 1985
14 Northern shrimp, Shrimp Fishing Area 8 Pandalus borealis Shrimp Fishing Area 8 illustrated and enumerated in Schedule XVII to the Atlantic Fishery Regulations, 1985
15 Northern shrimp, Shrimp Fishing Area 9 Pandalus borealis Shrimp Fishing Area 9 illustrated and enumerated in Schedule XVII to the Atlantic Fishery Regulations, 1985
16 Northern shrimp, Shrimp Fishing Area 10 Pandalus borealis Shrimp Fishing Area 10 illustrated and enumerated in Schedule XVII to the Atlantic Fishery Regulations, 1985
17 Northern shrimp, Shrimp Fishing Area 12 Pandalus borealis Shrimp Fishing Area 12 illustrated and enumerated in Schedule XVII to the Atlantic Fishery Regulations, 1985
18 Pacific hake, offshore Merluccius productus The Area composed of Areas 1 to 12, 20, 21, 23 to 27, 101 to 111, 121, 123 to 127, 130 and 142 described in Schedule 2 to the Pacific Fishery Management Area Regulations, 2007
19 Pacific herring, Haida Gwaii Clupea pallasii The Area composed of Subareas 2-1 to 2-19 and 2-31 to 2-37 described in Schedule 2 to the Pacific Fishery Management Area Regulations, 2007
20 American Plaice, NAFO 4T Hippoglossoides platessoides Division 4T described in paragraph 5(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985
21 Acadian redfish, Unit 3 Sebastes fasciatus The Area composed of Division 4X described in paragraph 5(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985, the portion of Subarea 5 described in paragraph 6(a) of that note lying west of the Meridian located at 67°40′ west longitude, and the portion of Division 4W described in paragraph 5(b) of that note lying north of straight lines joining the following points in the order listed: 44°10′ north latitude and 60°00′ west longitude, 44°10′ north latitude and 61°00′ west longitude, 43°30′ north latitude and 61°00′ west longitude, 43°30′ north latitude and 61°30′ west longitude, 43°40′ north latitude and 61°30′ west longitude, 43°40′ north latitude and 61°40′ west longitude, 43°50′ north latitude and 61°40′ west longitude, 43°50′ north latitude and 62°10′ west longitude, 42°40′ north latitude and 62°10′ west longitude, 42°40′ north latitude and 63°20′ west longitude
22 Sablefish Anoplopoma fimbria The Area composed of all Areas as defined in section 1 of the Pacific Fishery Management Area Regulations, 2007
23 Silver hake, NAFO 4VWX Merluccius bilinearis The Area composed of Divisions 4V, 4W and 4X described in paragraph 5(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985
24 Snow crab, Southern Gulf of St. Lawrence Chionoecetes opilio The Area known as the Southern Gulf of St. Lawrence that is composed of Crab Fishing Areas 18, 19, 25 and 26, illustrated and enumerated in Part III of Schedule XI to the Atlantic Fishery Regulations, 1985, and the portion of Crab Fishing Area 12 illustrated and enumerated in Part IIB of Schedule XI to those Regulations lying south and west of straight lines joining the following points in the order listed: 48°45′18″ north latitude and 64°09′54″ west longitude, 48°53′30″ north latitude and 63°48′54″ west longitude, 49°17′00″ north latitude and 64°44′00″ west longitude, 49°21′25″ north latitude and 65°35′30″ west longitude, 49°40′20″ north latitude and 64°54′50″ west longitude, 49°00′00″ north latitude and 63°08′30″ west longitude, 48°02′30″ north latitude and 61°07′00″ west longitude, 47°44′30″ north latitude and 60°25′15″ west longitude, 47°21′30″ north latitude and 60°16′00″ west longitude, 47°18′30″ north latitude and 60°18′00″ west longitude, 47°16′25″ north latitude and 60°17′40″ west longitude, 47°02′15″ north latitude and 60°24′55″ west longitude
25 Snow crab, North-Eastern Nova Scotia (N-ENS) Chionoecetes opilio The Area composed of Crab Fishing Areas 20 to 22 illustrated and enumerated in Part III of Schedule XI to the Atlantic Fishery Regulations, 1985
26 Snow crab, South-Eastern Nova Scotia (S-ENS) Chionoecetes opilio The Area composed of the portion of Crab Fishing Areas 23 and 24 illustrated and enumerated in Part IIB of Schedule XI to the Atlantic Fishery Regulations, 1985 lying east of Divisions 4W and 4X described in paragraph 5(b) of Note A of Schedule III to those Regulations
27 Winter flounder, NAFO 4T Pseudopleuronectes americanus Division 4T described in paragraph 5(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985
28 White hake, NAFO 4T Urophycis tenuis Division 4T described in paragraph 5(b) of Note A of Schedule III to the Atlantic Fishery Regulations, 1985
29 Yelloweye rockfish, Inside waters Sebastes ruberrimus The Area composed of Areas 13 to 20, 28 and 29, and Subareas 12-1 to 12-13 and 12-15 to 12-48 described in Schedule 2 to the Pacific Fishery Management Area Regulations, 2007
30 Yelloweye rockfish, Outside waters Sebastes ruberrimus The Area composed of Areas 3 to 11, 21, 23 to 27, 101 to 111, 121, 123, 126, 127, 130 and 142, and Subareas 1-1 to 1-5, 2-1 to 2-19, 2-31 to 2-100, 12-14, 124-1 to 124-4 and 125-1 to 125-6 described in Schedule 2 to the Pacific Fishery Management Area Regulations, 2007

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Presently, a number of commercially significant marine fish stocks in Canada are at low levels. Others are at risk of decline due to changing environmental factors and/or elevated levels of fishing pressure. Many Canadian communities depend on fishing or processing industries for their livelihood, and Indigenous communities rely on fish for food, social, ceremonial, and commercial purposes. These communities have expressed strong interest in the rebuilding of fish stocks that are depleted. Preventing their decline by managing them sustainably will preserve important ecosystem functions and improve economic outcomes for the fish and seafood sector.

In 2019, legislative amendments to the Fisheries Act strengthened Fisheries and Oceans Canada’s (DFO) decision-making framework to support sustainable fisheries management, including the development and implementation of rebuilding plans for depleted stocks, which have been previously articulated in A fishery decision-making framework incorporating the precautionary approach (“the PA Policy” or “the Policy”). A regulatory framework will bring accountability to the Government of Canada, and transparency and certainty to Canadians.

Background

Canada’s fish and seafood sector, which employs over 83 000 people, exported products valued at $7.44 billion in 2019. Healthy fish stocks are necessary for fisheries to continue to provide economic and social benefits to Canadians, including supporting livelihoods in remote Canadian communities. In addition, marine ecosystems provide important ecological goods and services to Canadians (e.g. carbon sequestration). When sustainably managed, healthy fish stocks contribute to stable and resilient ecosystems. However, when fish stocks decline, the fisheries on those stocks are likewise decreased, reducing their economic viability. For some communities, decreased fish stocks can also threaten food security and/or cultural activities. The development and implementation of stock rebuilding plans are widely accepted as essential to sustainable fisheries management.

Under the Fisheries Act, DFO is responsible for managing Canadian fisheries resources and for managing, conserving, and protecting Canadian fish and fish habitat. Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, which received royal assent on June 21, 2019, amended the Fisheries Act to introduce, among other things, binding commitments on the Minister of Fisheries and Oceans (the Minister) to (i) implement measures to maintain major fish stocks at levels necessary to promote sustainability; and (ii) develop and implement plans for stocks that have declined to or below their limit reference point (LRP) — the stock level below which productivity is sufficiently impaired to cause serious harm. However, the provisions only apply to stocks that are prescribed by regulation.

The fish stocks provisions in the modernized Fisheries Act formalize DFO’s existing policies around sustainable fisheries. For example, the PA Policy applies to key harvested fish stocks managed by DFO that are the specific and intended targets of a commercial, recreational, or subsistence fishery. The PA Policy requires that a harvest strategy be incorporated into respective fisheries management plans to keep the harvest level moderate when the stock status is healthy; to promote rebuilding when stock status is low; and to reduce the risk of serious or irreversible harm to the stock. It also requires a rebuilding plan when a stock reaches low levels. Likewise, the Guidance for the Development of Rebuilding Plans under the Precautionary Approach Framework: Growing Stocks out of the Critical Zone (the Rebuilding Guidance) provides an overview of the rebuilding plan process, including a review of objective development, rebuilding timelines and involvement of co-management partners, Indigenous peoples, fishery participants, and others with an interest in the fishery. This Rebuilding Guidance also includes information regarding the recommended contents of a rebuilding plan.

The new fish stocks provisions also address feedback provided by environmental non-governmental organizations (ENGOs) and Indigenous partners that highlighted the need to incorporate in law some of DFO’s existing policies for fisheries management, including, when necessary, the development and implementation of rebuilding plans.

DFO aims to prescribe the majority of its key fish stocks in regulations, so that they will be subject to the new provisions of the Fisheries Act. Key fish stocks are those listed on DFO’s annual Sustainability survey for fisheries, which as of January 2022, sits at 180 stocks. The rate and size of future batches will be influenced by whether the key stock has an LRP, the completeness of its precautionary approach (PA) framework, and other economic, cultural and/or ecological considerations, as well as DFO’s capacity to develop fisheries management measures and rebuilding plans concurrently. Under the modernized Fisheries Act, the LRP is identified as the threshold that determines when a stock requires a rebuilding plan. LRPs are established by DFO using its Canadian Science Advisory Secretariat (CSAS) peer-review process. This process brings together members of the science community and other technical experts to impartially review the available data to develop expert advice (e.g. to identify LRPs or assess stocks), in keeping with the principle of science-based decision-making. In some cases, additional data collection and/or analysis is needed before this reference point can be determined. At present, 62% (112/180) of DFO’s key fish stocks have an LRP.

All key stocks will be managed by DFO in accordance with the Fisheries Act, its regulations and departmental policies.

Objective

The Regulations Amending the Fishery (General) Regulations (the Regulations) will formalize the Government of Canada’s commitment to promote healthier and more abundant Canadian fish stocks by establishing a transparent regime for the maintenance of prescribed major fish stocks and, where applicable, the contents and timelines for related rebuilding plans. This will strengthen DFO’s fisheries management framework leading to better conservation outcomes for the prescribed major stocks, more demonstrably sustainable fisheries, and compliance with the Fisheries Act. In addition, the Regulations will result in the increased transparency and accountability that accompanies regulatory oversight as compared with policy approaches.

Description

The Regulations will (1) prescribe a group of major stocks, thus making them subject to the fish stocks provisions; and (2) ensure that rebuilding plans for prescribed major stocks are developed consistently and within a reasonable time to encourage successful rebuilding.

(1) Prescribe the first batch of major stocks that will be subject to sections 6.1 and 6.2 in the modernized Fisheries Act.

The Regulations will prescribe 30 fish stocks. This first “batch” consists of 28 stocks from the stock list that DFO currently surveys as part of its annual Sustainability Survey for Fisheries (survey stocks)

Two Pacific salmon stocks, which are not on the survey, but are depleted and considered to be in the critical zone, are also part of the first batch of stocks to be prescribed, as DFO has committed to developing rebuilding plans for these stocks. Once prescribed, these two stocks will be added to the survey. Going forward, DFO intends to prescribe only stocks from the survey until the majority of the 180 stocks are prescribed.

The 14 stocks in the healthy or cautious zones (i.e. above their LRP) will be subject to section 6.1 of the Fisheries Act, which requires that the fisheries management measures maintain these stocks at or above the level necessary to promote their sustainability. These measures could comprise any number of actions that are already taken by DFO for each stock, including the quantity of fish harvested in a fishing season, fishing gear types used, issuance of licence, geographic and seasonal fishery closures, in the course of their normal management decisions.

The 16 stocks in the critical zone (i.e. at, or below their LRP), which include the two non-survey Pacific salmon stocks, will be subject to section 6.2 of the Fisheries Act, which requires that a rebuilding plan be developed and implemented to regrow these stocks above their LRP.

In the Regulations, the stocks are described by

For most of the 30 stocks, the stock area is based on fishing areas described in the Atlantic Fishery Regulations, 1985 or the Pacific Fishery Management Area Regulations, 2007. However, for Pacific salmon, the stock area boundaries are described using the river systems that the salmon return to when they spawn. The Pacific salmon stock area descriptions include the words “all bodies of fresh water that flow directly or indirectly into” a river. A small river that flows directly into the Fraser River is an example of a direct flow, whereas a creek that flows into a small river that then flows in the Fraser River is an example where the creek indirectly flows into the Fraser River.

Table 1 — List of prescribed major stocks
Common Stock Name Current Stock Status Relative to LRP Status or Targeted Rebuilding Plan Completion Date (Fiscal Year)
Atlantic cod, Northwest Atlantic Fisheries Organization (NAFO) 3Pn4RS Below To be determined
Atlantic cod, NAFO 2J3KL Below Completed
Atlantic cod, NAFO 3Ps Below By end of 2022–2023
Atlantic cod, NAFO 4TVn Below By end of 2022–2023
Atlantic halibut, NAFO 3NOPs4VWX5Z Above N/A
Atlantic herring, NAFO 4T (Spring Spawner) Below By end of 2022–2023
Atlantic mackerel table 2 note a Below Completed
Bocaccio rockfish table 2 note a Below Completed
Chinook salmon, West Coast of Vancouver Island Below By end of 2022–2023
Chinook salmon, Okanagan Below By end of 2024–2025
Coho salmon, Interior Fraser Below By end of 2024–2025
Lobster, Lobster Fishing Areas (LFA) 19-21 Above N/A
Northern shrimp, Shrimp Fishing Area (SFA) 6 Below Completed
Northern shrimp, SFA 8 Above N/A
Northern shrimp, SFA 9 Above N/A
Northern shrimp, SFA 10 Above N/A
Northern shrimp, SFA 12 Above N/A
Pacific hake, offshore Above N/A
Pacific herring, Haida Gwaii Below By end of 2022–2023
American plaice, NAFO 4T Below By end of 2022–2023
Acadian redfish, Unit 3 Above N/A
Sablefish table 2 note a Above N/A
Silver hake, NAFO 4VWX Above N/A
Snow crab, Southern Gulf of St. Lawrence Above N/A
Snow crab, North-Eastern Nova Scotia (N-ENS) Above N/A
Snow crab, South-Eastern Nova Scotia (S-ENS) Above N/A
Winter flounder, NAFO 4T Below By end of 2022–2023
White hake, NAFO 4T Below By end of 2022–2023
Yelloweye rockfish, Inside waters Below Completed
Yelloweye rockfish, Outside waters Above N/A

Table 2 note(s)

Table 2 note a

Atlantic mackerel; Bocaccio rockfish; and Sablefish do not have specific stock areas listed as part of their stock name, as there is only a single stock for each of those species in Canadian fisheries waters.

Return to table 2 note a referrer

(2) Set out the required contents of a rebuilding plan and the timeline to put a plan in place for prescribed major stocks that have declined to or below their LRP.

For the major stocks prescribed in the Regulations that have declined to or below their LRP (i.e. in the critical zone), a rebuilding plan is required under section 6.2 of the Fisheries Act to grow the stock above its LRP. The Regulations support this obligation by setting out the required contents of those rebuilding plans and establishing a timeline for each rebuilding plan’s development.

The purpose of a rebuilding plan is to identify the main objectives and requirements for the stock in the areas covered by the plan, as well as the management measures that will be used to achieve these objectives. The plan provides a common understanding of the basic “rules” for rebuilding the stocks. Once the stock grows above the LRP, the Minister must implement measures to maintain or grow the stocks to or above the level necessary to promote sustainability per section 6.1 of the Fisheries Act.

The Regulations will require the following elements to be included in rebuilding plans developed under subsection 6.2(1) of the Fisheries Act:

These elements are based on the contents required in DFO’s existing policy guidance on developing rebuilding plans.

The rebuilding target is the overall objective for the rebuilding plan, as it is the target to which the rebuilding plan aims to rebuild the stock. The rebuilding plan will also contain other objectives aimed at rebuilding the stock to its target, such as objectives related to harvest levels, fishery monitoring and enforcement, closing science and other information gaps and habitat restoration, where appropriate. Each objective, including the rebuilding target, will have an associated timeline.

The Regulations also provide an exception to the requirement to include a timeline for achieving the rebuilding target if rebuilding is not feasible for biological or environmental reasons based on the best available science advice. If the Minister uses this exception, the reasons for doing so shall be explained in the rebuilding plan.

Each rebuilding plan must include the elements listed above; however, additional sections or information could be added to a rebuilding plan for the stock in question, as appropriate. The standard for each of the elements above will be set out in the Policy (e.g. the requirements for measurable objectives), which will be published once the Regulations enter into force. DFO will develop the rebuilding plan for each stock in consultation with modern treaty partners, Indigenous peoples and fisheries stakeholders through DFO’s established fisheries management advisory processes. Once approved, rebuilding plans will be published on DFO’s website.

The Regulations will also set out the time period for developing the rebuilding plans required under subsection 6.2(1) of the Fisheries Act. The plans will have to be developed and put in place within 24 months of subsection 6.2(1) being triggered. Section 6.2(1) will be considered triggered when the Minister first has knowledge that a prescribed stock has declined to or below its LRP. This will normally follow the approval of scientific advice produced by a DFO CSAS peer-review meeting of the stock assessment. For stocks that are already at or below their LRP when they are prescribed under the fish stocks provisions, the timeline will start when the Regulations enter into force. The Minister may extend the timeline up to 12 additional months, if necessary, to complete the plan. For example, additional time may be required to collect, analyze, write up and present critical scientific information about the stock, which is needed to complete the plan. If the Minister extends the timeline to develop the plan, this decision and the reasons for it, will be published on DFO’s website.

The Regulations will require that, during the 24-month period (or up to 36 months) when a plan is under development, the level of fishing permitted, if any, is consistent with the intent of rebuilding the stock above the LRP. This is consistent with the existing PA Policy which states that management actions must promote stock growth while the stock is below its LRP.

Under the Fisheries Act, the Minister of Fisheries and Oceans has broad powers for the proper management and control of commercial fisheries. For most commercial fish stocks, this involves making regular fisheries decisions that set out the management measures for a specific stock or group of stocks during a particular fishing season. A fisheries decision may include determination of total allowable catches, fishing gear types, opening and closing dates for the season, etc. These decisions are informed by scientific advice, stakeholder consultations and consideration of trade-offs between conservation and socio-economic factors. In respect of any fish stocks prescribed in regulations, any such management decisions must reasonably seek to promote the outcomes outlined in the provisions (i.e. maintain stocks at sustainable levels (subsection 6.1(1)), above the LRP (subsection 6.1(2)) or to develop and implement a rebuilding plan (subsection 6.2(1)).

The requirement to develop a rebuilding plan for fish stocks prescribed under the Regulations will not apply to species that are also listed as endangered or threatened on Schedule 1 (List of Wildlife Species at Risk) to the Species at Risk Act (SARA). Instead, the general prohibitions described under sections 32 and 33 of SARA (which are applicable to all species listed on Schedule 1 as extirpated, endangered or threatened) will apply; namely, for these species, it will be an offence to

Additionally, sections 37 and 47 of SARA require the development of a recovery strategy and action plan(s), respectively, including the identification and protection (section 58) of critical habitat, in order to provide for the recovery of endangered and threatened species.

However, species designated as special concern under SARA, that are also subject to the fish stocks provisions, will require both a SARA management plan (section 65) and meet the applicable requirement under the fish stocks provisions (e.g. Yelloweye rockfish). DFO will explore ways to minimize duplication of effort in meeting these two obligations.

Prescribed major stocks that have been assessed as an endangered or threatened species by the Committee on the Status of Endangered Wildlife in Canada and are either pending a listing decision on whether or not to add them to Schedule 1 of SARA, or for which a decision has been made not to include them on Schedule 1, will still require a rebuilding plan under section 6.2 of the Fisheries Act.

Regulatory development

Consultation

In 2018, DFO solicited feedback from key stakeholders, such as national Indigenous organizations, industry associations, ENGOs and provincial and territorial governments on the initial development of the regulatory proposal. From December 2018 to March 2019, DFO conducted a formal public consultation that informed stakeholders across Canada via letters, social media and the DFO website of the purpose of the consultations, an overview of the Fisheries Act amendments, the proposed Regulations and where to find additional information on related topics. During these consultations, DFO contacted a full range of modern treaty partners, Indigenous peoples, industry, ENGOs, provincial and territorial governments and other stakeholders. Feedback was also solicited during presentations and meetings conducted in all relevant DFO regional offices and national headquarters.

Prepublication in the Canada Gazette, Part I

The proposed Regulations were published in the Canada Gazette, Part I, on January 2, 2021, and open to public comment for a 30-day period. In response, 12 written submissions were received from First Nations and Indigenous organizations, industry associations, ENGOs, and provincial governments. Individual Canadians submitted 425 form letters and one distinct written submission. There was general support for the Regulations. The main views of those who submitted feedback are detailed below along with explanations of how this feedback was taken into account.

Indigenous groups

First Nations and Indigenous organizations recommended that rebuilding plans should be informed by Indigenous knowledge and that the Regulations should define the mechanism by which Indigenous knowledge, and cultural impacts, will be provided and identified to the Minister. DFO did not incorporate these recommendations, as the Minister can already consider Indigenous knowledge in fisheries management and rebuilding plans under section 2.5 of the Fisheries Act. DFO will continue to develop fisheries management measures and rebuilding plans in consultation with modern treaty partners and Indigenous peoples, as well as fisheries stakeholders, through pre-existing fisheries management advisory processes. As a result, there will be opportunities for Indigenous knowledge and cultural impacts to be considered by DFO and ultimately provided to the Minister.

First Nations and Indigenous organizations also indicated that rebuilding plans should explain how climate change was taken into account and incorporate a habitat restoration plan. Neither recommendation has been incorporated into the Regulations to avoid redundancy, as the Fisheries Act already requires that climate change and habitat restoration be taken into account in rebuilding plans. Specifically, subsection 6.2(1) requires that the rebuilding plans take into account the biology of the fish and the environmental conditions affecting the stock. “Environmental conditions” is a broad term that includes climate change. Similarly, subsection 6.2(5) requires that, as part of developing a rebuilding plan, DFO consider whether habitat loss or degradation contributed to the stock’s decline, and if so, whether or not restoration measures are in place.

Environmental non-governmental organizations

ENGOs expressed a desire for the Regulations to be more prescriptive in terms of standards to increase the strength of rebuilding plans and their likelihood of success. They recommended identifying a rebuilt target in the healthy zone, as defined in the PA Policy. DFO did not incorporate this recommendation, as it would have established a higher obligation than the fish stocks provisions in the Fisheries Act, which only require that the rebuilding plan be aimed at growing the stock above its LRP. Under the fish stocks provisions, once a stock is above its LRP, it will then be subject to section 6.1, whereby fisheries management measures must aim to maintain the stock at levels necessary to promote sustainability. In addition, existing policies recommend that a fisheries management plan should continue to promote the stock’s growth towards the healthy zone.

ENGOs also recommended that the Regulations include a maximum rebuilding timeline and they proposed a metric to define this timeline. This recommendation was not included, as the timeline to rebuild a stock will vary significantly depending on the stock’s productivity, biology, the impact of environmental conditions on the stock, the stock’s state of depletion, as well as the harvest level on the stock. Further, the metric proposed is not applicable to all fish stocks. As a result, DFO determined that regulations were not the appropriate instrument in which to specify a maximum timeline or metric. These will, instead, be defined in a policy and will be consistent with international best practice.

ENGOs also recommended adding all of the stocks on DFO’s Sustainability survey for fisheries that are in the critical zone that are not already on the batch 1 list of 30 stocks. Currently, there are 10 stocks in the critical zone that are not on batch 1. DFO did not add any of these 10 stocks to the list of 30 stocks for a number of reasons. Complying with the fish stocks provisions and the Regulations for the 30 stocks represents a significant new commitment by DFO in the areas of science, fishery management and enforcement. Adding these additional stocks to batch 1 would impact DFO’s capacity to adequately develop rebuilding plans and put at risk DFO’s ability to comply with the fish stocks provisions. Additionally, some individual stocks lack of requisite data to comply with the fish stocks provisions (e.g. lack of an LRP), while other stocks are subject to international management arrangements which provide management frameworks to respond to stock declines and promote stock rebuilding. The stocks recommended by ENGOs may be considered as candidates for future batches. DFO remains committed to prescribing the majority of the 180 key stocks.

The form letters (emails) from individual Canadians echoed the recommendations raised by ENGOs.

Industry

The industry associations and individual harvesters generally recommended that the Regulations maintain flexibility and specifically recommended the removal of the timeline for achieving rebuilding objectives because it may not be possible to rebuild a stock in some cases. In response, in cases where the timeline cannot be determined for biological or environmental reasons based on the best available science advice, the Regulations now permit an exception to the requirement to include a timeline to achieve the rebuilding target. However, timelines for achieving rebuilding objectives, including the target, remain a requirement in the Regulations, as this is consistent with DFO’s existing policies on rebuilding plans and international best practice. The Regulations respond to this general recommendation for flexibility by setting out the required elements of rebuilding plans without specifying the standard for each element. As mentioned above, the standard for each of these elements will be set in the Policy.

Additionally, industry recommended that three stocks be removed from batch 1 based on their disagreement with the LRPs and concerns over the validity of stock assessments and whether there was sufficient data to meet the requirements of the Regulations. DFO did not incorporate this recommendation and the 30 stocks remain in the Regulations. DFO exercised due diligence and concluded that the LRPs were accurate and based on peer-reviewed scientific stock assessments, and that the information available was sufficient for DFO to meet its obligations under the fish stocks provisions and the Regulations, even for stocks unlikely to rebuild.

The industry also recommended adding to the Regulations a process to establish LRPs. This was not incorporated into the Regulations, as DFO has a long-established process to develop LRPs using its CSAS peer-review process. This process brings together members of the science community and other technical experts to impartially review the available data to develop expert advice (e.g. to identify LRPs or assess stocks), in keeping with the principle of science-based decision-making.

Provinces

The Government of Nova Scotia stressed the need for flexibility in rebuilding plans to mitigate economic impacts. Subsection 6.2(2) of the Fisheries Act provides the Minister with the option to amend a rebuilding plan to mitigate adverse economic or cultural impacts that may arise from the management measures aimed at rebuilding the stocks. Provision of such flexibility, therefore, does not need to be repeated in the Regulations. Additionally, the Regulations do not constrain this existing flexibility because they do not identify or require specific management measures.

Instrument choice

In its amendments to the Fisheries Act, the Government of Canada sought to elevate DFO’s existing fisheries management policies to legally binding obligations to ensure management decisions were focused on conservation and sustainable use. The Regulations are required to implement the fish stocks provisions in the Fisheries Act, as the provisions only apply to stocks prescribed in the Regulations. As a result, no other instruments were considered.

The principle of outcome-based regulations has been applied, particularly with respect to rebuilding plans. Under the Regulations, specific components will be required to be included in a rebuilding plan developed under subsection 6.2(1) of the Fisheries Act. However, the precise content of those components (i.e. management measures) are not prescribed and instead will be determined on a stock-by-stock basis in consultation with stakeholders.

Modern treaty obligations and Indigenous engagement and consultation

The list of prescribed major fish stocks are part of federally managed fisheries and fishing areas on the east and west coasts of Canada, including areas where Indigenous fishing occurs. However, the Regulations will not have a direct impact on Indigenous or treaty rights, interests or self-government provisions, as they solely establish obligations on the Government.

Implications for modern treaty partners and Indigenous peoples may arise during the development of fisheries management measures or rebuilding plans. The fisheries management process and the rebuilding plan development process are not covered under this regulatory change; instead, these are supported by pre-existing, dedicated engagement processes for co-management established in modern treaties, as well as with Indigenous peoples. DFO intends to continue to use these processes for prescribed major stocks.

Regulatory analysis

Baseline

All 30 stocks that will be prescribed in the Regulations are currently managed under the PA Policy and are already actively managed by DFO every year. For each stock, DFO makes regular decisions on the quantity of the fish that can be harvested, gear types that may be used, issuance of licence, geographic and seasonal fishery closures, etc., in the course of its normal business. Fourteen of the 30 stocks fall within the healthy or cautious zones for which the PA Policy requires that a harvest strategy be incorporated into respective fisheries management plans to keep the removal rate moderate. With respect to the remaining 16 stocks that are below their LRP, the PA Policy calls for promoting the rebuilding of the stock above its LRP to reduce the risk of serious or irreversible harm to the stock. It also requires a rebuilding plan when a stock reaches low levels.

Management scenarios

Prescribing the stocks in the Regulations will not result in any immediate implementation of management measures. The specific stock management measures will not be prescribed in the Regulations; rather, these will be determined for each stock on an ongoing basis as part of their existing fisheries management cycle. For the 14 stocks above their LRP, section 6.1 of the Fisheries Act sets out an objective to maintain the stock at a sustainable level, similar to those principles established under the PA Policy for healthy and cautious zone stocks, i.e. the maintenance or growth of the stock towards the healthy zone. Similarly, the PA Policy requirements for a rebuilding plan for stocks that are in the critical zone does not differ from the regulatory requirements under section 6.2 of the Fisheries Act. The only difference is the timeframe in which the rebuilding plans will have to be developed. The Regulations will require that a rebuilding plan be developed for each stock within 2 years after the stocks have been prescribed (or up to 12 additional months, if necessary). Of the 16 stocks that will be subject to this requirement, rebuilding plans for 5 stocks have already been developed and the remaining 11 stocks are in varying stages of plan development. Moreover, the Regulations will not change the level of effort required to get these rebuilding plans developed, as most are targeted for completion by the end of fiscal 2021–2022 (i.e. within the prescribed timeframe) under DFO’s current publicly available work plan.

Benefits and costs

There will be no incremental costs to businesses, consumers or Canadians, as the Regulations impose obligations solely on DFO. The costs associated with future management measures under the fish stocks provisions of the Fisheries Act are expected to be comparable to those implemented in accordance with DFO’s existing fisheries management policies.

While the Regulations themselves will not have impacts on harvesters, Indigenous groups, other stakeholders, or Canadians, there may be benefits and costs as stock management measures are developed and implemented. The incremental impacts cannot be estimated at this time, as they are dependent on the specific management measures required for each stock. However, they will be assessed as part of the established fisheries management advisory processes, including the rebuilding plan development process, when applicable.

There may be some incremental costs to Government for developing the rebuilding plans; however, these are anticipated to be negligible, as rebuilding plans have already been developed through implementation of the PA framework. DFO previously committed resources to develop rebuilding plans more rapidly for the 16 stocks that will be prescribed under the Regulations. The Regulations do not have an enforcement component; therefore, no enforcement or compliance costs will be incurred.

Small business lens

Analysis under the small business lens concluded that the Regulations will not impact Canadian small businesses. The Regulations will only apply to DFO in the management of fisheries (e.g. to maintain stocks or to develop rebuilding plans with specific contents and in a specific timeframe). Under the existing DFO Policy, rebuilding plans are already required for depleted stocks.

One-for-one rule

The Regulations will not impose any administrative burden on businesses. Therefore, the one-for-one rule does not apply.

Regulatory cooperation and alignment

The Regulations are not related to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

The Regulations will fulfill targets and key priorities of the Federal Sustainable Development Strategy. They will contribute to the sustainable fisheries targets and help achieve progress towards the 2020 biodiversity goals and targets for Canada towards healthy coast and oceans and healthy wildlife populations. This will be accomplished through different means, including by moving forward on ensuring that fish stocks are managed and harvested sustainably and by promoting the health and status of major fish stocks.

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified, since the Regulations solely establish obligations on the Government of Canada.

Implementation and compliance and enforcement

Implementation

These Regulations will come into force on the day on which they are registered. For the prescribed major stocks that are already at or below their LRP and thus require a rebuilding plan, the timeline to develop the plan will begin on that day.

On November 21, 2018, the Government of Canada announced in its Fall Economic Statement that $107.4 million over five years, starting in 2019–2020, and $17.6 million per year ongoing would be made available to support the implementation of the fish stocks provisions of the renewed Fisheries Act. These investments are being used to, among other things, accelerate the implementation of the PA Policy for most of these prescribed major fish stocks, including the development of rebuilding plans for depleted stocks.

Compliance and enforcement

As the Regulations will only impose obligations on DFO, existing internal reporting mechanisms will continue to be used to monitor progress in developing rebuilding plans. DFO’s annual Sustainable Fisheries Framework Work Plan, the Sustainability survey for fisheries, and the Departmental Results Framework will continue to be published to report on this progress to Canadians.

Contact

Marc Clemens
Manager
Sustainable Fisheries Policy
Domestic Fisheries Policy
Strategic Policy Sector
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: DFO.Rebuilding-Retablissement.MPO@dfo-mpo.gc.ca