Next to federal taxation and trade legislation, the Fisheries Act (the 'Act') is probably the federal legislation of most concern to the BC forest industry. And for good reason. The Act contemplates maximum penalties for a contravention of up to $1 million, three years imprisonment, or both. A court is also able to impose an additional fine to remove any monetary benefit received due to noncompliance with the Act. If a contravention of the Act continues for more than one day, a separate offence occurs each day. And, most chillingly, if a company commits an offence under the Act, then any officer, director or agent of the company who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is personally guilty of the offence and liable to punishment as provided for in the Act.
Recently, the federal Parliament enacted two statutes — the Jobs and Growth Act, 2012 (Bill C-45), and the Jobs, Growth and Long-term Prosperity Act (Bill C-38) — that included amendments to the Act (the 'Amendments'). While the Amendments are largely focused on clarification, there are some substantive changes as well.
The Amendments have revised section 35 of the Act with respect to the alteration, disruption or destruction of fish habitat, probably the most well-known provision of the Act within the BC forest sector. Previously, section 35(1) prohibited any "work" or "undertaking" that resulted in harmful alteration, disruption or destruction of fish habitat. As amended, section 35(1) now also prohibits any "activity" that results in harmful alteration, disruption or destruction of fish habitat. The addition of "activity" as a category of prohibited acts serves as a catch-all that may significantly broaden the application of section 35(1).
The Amendments have also simplified the limitation period for the government to pursue a summary conviction under the Act. The Crown may elect to pursue a conviction under the Act "summarily" or by way of "indictment." In general terms, summary proceedings usually relate to less serious matters that expose the accused to a smaller penalty. Previously, the limitation on the Crown's ability to proceed summarily under the Act required the Crown to commence proceedings within two years of when "the Minister" became aware of the subject matter of the proceedings. Of course, this inevitably led to uncertainty as to when, exactly, "the Minister" became aware of something. The Amendments have done away with this uncertainty, and now the limitation period is simply five years measured from the date of the offence.
Some of the Amendments relate to the shared nature of the constitutional jurisdiction that the provincial and federal governments have with respect to environmental matters. The federal government now has the legislative authority under the Act to enter into agreements with the provinces to facilitate cooperation and joint action in relation to areas of common interest to further the objectives of the Act. This might include, for example, cooperation and joint action among the federal government and the provinces to control the spread of aquatic invasive species.
Through these agreements, the Amendments also have the potential to reduce duplicative regulation in the forest sector. If a provision of the Act is the equivalent of a provincial regulatory provision with respect to a given subject matter, the federal government is now authorised under the Act to suspend the federal provision with respect to that subject matter in the province pursuant to an agreement under the Act. So, for example, if the federal government agreed that the protection of fish and fish habitat under section 57 of the Forest Planning and Practices Regulation was equivalent to the prohibition against alteration, disruption or destruction of fish habitat under section 35 of the Act, BC and the federal government could enter into an agreement whereby section 35 of the Act would not apply in BC. Of course, the Act would require that the agreement include provisions that would allow the federal government to effectively monitor the enforcement of the provincial legislation. But if such an agreement were entered into it would remove the potential for multiple enforcement actions in respect of different federal and provincial regulatory provisions that do the same thing.
Originally published in the The Legal Perspective July-August 2013.
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