Vol. 151, No. 39 — September 30, 2017

Regulations Amending Certain Regulations Made Under the Fisheries Act

Statutory authority

Fisheries Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Currently, certain regulations made under the Fisheries Act do not recognize the Labrador Inuit Land Claims Agreement (LILCA) or the settlement area (boundaries) of the Labrador Inuit. This limits the ability of the Department of Fisheries and Oceans (DFO) to implement conservation measures and/or fulfill the Department’s obligations as stated under the LILCA, and limits DFO’s ability to ensure the rights of the Labrador Inuit set out in the agreement are being met. For example, the LILCA provides the Labrador Inuit with a first demand (priority access) against a Total Allowable Catch or Total Allowable Harvest inside the settlement area.

Previous amendments to other regulations made under the Fisheries Act have recognized other land claim agreements and beneficiaries, including amendments made to the Atlantic Fishery Regulations, 1985 and the Marine Mammal Regulations, which recognize beneficiaries as listed under the Western Arctic (Inuvialuit) Claims Settlement Act, or the James Bay and Northern Quebec Native Claims Settlement Act.

The proposed amendments to the Newfoundland and Labrador Fishery Regulations, Atlantic Fishery Regulations, 1985, Marine Mammal Regulations, and Fishery (General) Regulations would recognize the Labrador Inuit Land Claims Agreement and add the Labrador Inuit as beneficiaries. This would also facilitate DFO’s ability to meet its obligations to implement the Labrador Inuit Land Claims Agreement and exercise its mandate for conservation, public health or public safety.

The above-mentioned regulations do not currently contain sufficient provisions that permit the Department to meet obligations to regulate harvest control rules for conservation, public health or public safety. While there are no significant abusive fishing practices being observed in the absence of these proposed amendments, regulatory measures are required to establish a management regime that is enforceable in a manner consistent with the Labrador Inuit Land Claims Agreement.

Background

In 2005, the Labrador Inuit Land Claims Agreement (LILCA), between the Inuit of Labrador, Canada and the Province of Newfoundland and Labrador, came into effect. Comprehensive land claims agreements are constitutionally protected modern-day treaties between Aboriginal claimant groups, Canada and the relevant province or territory. While each one is unique, these agreements usually speak to land ownership, financial management, wildlife harvesting rights, participation in land, resource, water, wildlife and environmental management as well as measures to promote economic development and protection of Aboriginal culture. The LILCA outlines the rights and responsibilities of each party and in this agreement, Canada retains the authority for species conservation, public health and public safety.

The LILCA covers the settlement areas of the coastal areas of central and northern Labrador, (see footnote 1) which encompass five Inuit communities. There are approximately 5 000 beneficiaries of this agreement, 50% of whom are living within the settlement area, and the rest reside outside of the settlement area.

As with other land claim agreements that include provisions relating to Aboriginal self-government, the LILCA provides for the establishment of the Nunatsiavut Government — the Inuit regional government responsible for making Inuit laws within the Labrador Inuit Settlement Area. Pursuant to section 13.9.1 of the LILCA, the Nunatsiavut Government may make laws in relation to, among other things, the management of the Inuit domestic fishery (see footnote 2) and the determination of who may harvest under commercial fishing licences issued to the Nunatsiavut Government, subject to the terms of the Agreement. Currently, no Inuit laws relating to fishing and no Inuit domestic fishery have been established.

The LILCA provides for the establishment of Inuit Domestic Harvest Levels, which are an estimate of the quantity of a species or stock of fish or aquatic plant in the Labrador Inuit Settlement Area needed annually by Inuit for their food, social and ceremonial purposes. The LILCA sets out that once an Inuit Domestic Harvest Level is established, the Nunatsiavut Government will provide eligible Inuit with documentation specifying the species or stock of fish or aquatic plant that may be harvested and the quantity that may be harvested by the Inuit. Therefore, in these circumstances, an Inuit does not need any form of permit or licence to exercise the right to harvest fish for food, social and ceremonial purposes.

However, if no Inuit Domestic Harvest Level is established, the LILCA, pursuant to section 13.4.1, sets out that Inuit have the right to harvest at all times of the year and throughout the Labrador Inuit Settlement Area any species or stock of fish or aquatic plant up to the quantity needed for their food, social and ceremonial purposes. This provision is silent with respect to whether or not Labrador Inuit require a communal fishing licence where no Inuit Domestic Harvest Level is established. Currently, DFO issues communal fishing licences (see footnote 3) to the Nunatsiavut Government under the Aboriginal Communal Fishing Licences Regulations (ACFLR), to regulate and manage the Inuit food, social and ceremonial fishery, for those species that require harvest control rules and limits in both Upper Lake Melville and the Labrador Inuit Settlement Area. These licences have conditions attached that specify what the management measures are for a specific fishery, and can include details such as who can fish in what area, what dates/times the fisheries are open, what gear is allowed to be used, and what harvest limits apply.

Objectives

The proposed amendments have three objectives:

  • to recognize the creation of the Labrador Inuit Settlement Area within the Fisheries Act’s associated regulatory framework;
  • to allow the provisions of the LILCA to be implemented until such time as the Nunatsiavut Government is in a position to introduce its own fishing regulations; and
  • to provide the necessary regulatory tools to allow DFO to manage the fisheries in the Labrador Inuit Settlement Area and fulfill its mandate of conservation, public health or public safety.

Once the Nunatsiavut Government is able to assume management of its Inuit domestic fishery, and have its own legislative and regulatory tools in place, the Department would continue to retain responsibility over the conservation of species and public health or public safety within the settlement area.

Description

Currently, the fish being harvested by the Labrador Inuit are being managed and regulated under the voluntary acceptance of a licence under the Aboriginal Communal Fishing Licences Regulations. As mentioned above, when there is no Inuit Domestic Harvest Level established (no quota set) section 13.4.1 of the Labrador Inuit Land Claims Agreement is silent in respect to whether a licence in needed by the Inuit to exercise the right to fish for food, social and ceremonial purposes. In such circumstances, DFO has been issuing communal fishing licences to the Nunatsiavut Government to regulate and manage the food, social and ceremonial fishery in Upper Lake Melville and the Labrador Inuit Settlement Area.

The proposed regulatory amendments to the Newfoundland and Labrador Fishery Regulations are intended to complement the current process of an annually negotiated food, social and ceremonial communal fishing licence, ensuring the Labrador Inuit have a first demand access to its resource in their settlement area, as well as allow DFO to manage and control the fisheries with respect to conservation, public health or public safety.

The majority of the changes to the Newfoundland and Labrador Fishery Regulations, Atlantic Fishery Regulations, 1985, Fishery (General) Regulations and Marine Mammal Regulations involve administrative amendments. These include amendments to the application and definition sections of the regulations to reflect the LILCA and recognize the Labrador Inuit Settlement Area. Other key amendments to the Newfoundland and Labrador Fishery Regulations would be to establish the parameters within which to manage the Inuit domestic fishery, including establishing close times and retaining certain sections in various regulations that pertain directly to conservation and protection measures. It should be noted that these amendments are not intended to change how the Inuit conduct their food, social and ceremonial fisheries; the amendments are necessary to facilitate DFO in meeting its obligations (see footnote 4) in implementing the Labrador Inuit Land Claims Agreement.

The list of amendments is as follows:

  1. Amendments to the Atlantic Fishery Regulations, 1985
    • The proposed amendments would add a definition of Inuit domestic fishing and the Agreement in the “Interpretation” section (subsection 2(1)). As the definition of Inuit domestic fishing is new, it would validate this activity and recognize that the activity pertains to the Labrador Inuit for harvesting in the settlement area outlined by the LILCA. Further, the amendments would add a suite of provisions to the “Application” section to clearly state what parts of the Regulations would apply to harvesting under the Inuit domestic fishery. This will allow the Department to manage the conservation and protection of the Inuit domestic fishery with respect to the Atlantic Fishery Regulations, 1985.
  2. Amendments to the Fishery (General) Regulations
    • The proposed amendments would add a definition of Inuit domestic fishing and the Agreement in the “Interpretation” section. The amendments would also add some provisions to the “Application” section to clearly state that many sections of the Fishery (General) Regulations apply to harvesting under the Inuit domestic fishery except for certain provisions. These provisions are being excluded, as they pertain to vessel ownership, recreational and sport fishing licences, and gear tags, items that do not fall under the Inuit domestic fishery.
    • The amendments would also ensure the Labrador Inuit Land Claims Agreement is added as an exemption under the “Sale of Fish” section, which has been done for other land claims agreements. Adding this exemption allows the Labrador Inuit to sell non-edible products of fish, which is currently prohibited under the present Regulations.
  3. Amendments to the Marine Mammal Regulations
    • The proposed amendments would add a definition of Inuit domestic fishing and the Agreement in the “Interpretation” section (subsection 2(1)). The proposed amendments would add the term “Agreement” under the term “beneficiary” to ensure the Regulations recognize Labrador Inuit under this definition of the “Interpretation” section. As previously mentioned, when there is no Inuit Domestic Harvest Level established (no quota set), section 13.4.1 of the Labrador Inuit Land Claims Agreement is silent in respect to whether a licence is needed by the Inuit to exercise the right to fish for food, social and ceremonial purposes. In these circumstances, DFO has been issuing communal fishing licences to the Nunatsiavut Government to regulate and manage the food, social and ceremonial fishery in Upper Lake Melville and the Labrador Inuit Settlement Area. By being recognized as a beneficiary under the Marine Mammal Regulations, a Labrador Inuit who is enrolled under the Agreement may, without a licence, fish within the settlement area for marine mammals (e.g. seals, cetaceans except beluga, walrus) for food, social and ceremonial purposes. It should be noted that subsection 6(2) refers to fishing only and not hunting. Other amendments include adding an exemption under section 16 (Sale and Transportation) for beneficiaries operating under a permit issued by the Nunatsiavut Government and under subsection 34.1(3) [Close times] for beneficiaries operating under the LILCA.
  4. Amendments to the Newfoundland and Labrador Fishery Regulations
    • The proposed amendments would add a definition of Inuit domestic fishing and the Agreement to the “Interpretation” section. Furthermore, the “Application” section would clearly state what parts of the Regulations would apply to harvesting under the Inuit domestic fishery, including those sections that apply to the communal licences and mandatory fishing practices. Except for the provisions outlined in the “Application” section, the rest of the Regulations [Part I – General and Part II – Salmon, Char and Trout Fishing (Coastal Waters of Labrador)] would not apply to beneficiaries harvesting under the LILCA. This is because most of Part I and Part II of the Newfoundland and Labrador Fishery Regulations describe management of aquatic species and related fisheries in other inland and coastal fisheries that do not pertain to Labrador Inuit, as they are operating under the LILCA. A new Part III will be used to manage fishing in the Labrador Inuit Settlement Area and will add definitions for Inuit Domestic Fishery, Labrador Inuit Settlement Area, and Agreement. Part III will also outline how fishing in the Labrador Inuit Settlement Area would be managed under the Inuit domestic fishery, including provisions that would allow for control over when species would be harvested (close times).

“One-for-One” Rule

The “One-for-One” Rule (see footnote 5) does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens (see footnote 6) does not apply to this proposal, as there are no costs to small business, or costs are insignificant.

Consultation

The proposed amendments pertain exclusively to the regulatory requirements stemming from the implementation of the Labrador Inuit Land Claims Agreement. The Labrador Inuit were consulted on all aspects of the proposed amendments during the Land Claims process and are supportive of the amendments. The Land Claims process involved three parties, namely the Government of Canada, the Labrador Inuit, and the Province of Newfoundland and Labrador.

The proposed changes were discussed with the Labrador Inuit on numerous occasions, including in 2010, 2012 and 2013 at DFO and Nunatsiavut Government Technical Working Group (see footnote 7) meetings; in 2014 at a DFO and Nunatsiavut Government meeting of senior officials and a DFO and Nunatsiavut Government meeting (Nunatsiavut legal counsel participated); in 2015 at a DFO and Nunatsiavut Government Technical Working Group meeting; and in 2016 at a DFO and Nunatsiavut Government meeting where a full presentation of the proposed amendments was discussed. During these various sessions, the proposed changes to the regulations were discussed and informed the development of the proposed Regulations. Overall, the Nunatsiavut Government is in support of the proposed changes and has no concerns or issues with the proposed changes.

These changes do not affect other Aboriginal, commercial or recreational fishers. The amendments pertain to the beneficiaries of the Labrador Inuit Land Claims Agreement, who are the Labrador Inuit, and affect the Labrador Inuit domestic fishery only.

Rationale

Since the proposed regulatory amendments are intended to complement the current process for the food, social and ceremonial communal fishing licence by ensuring the Labrador Inuit have first demand access to fisheries resources in their settlement area, there are no economic gains or losses expected for stakeholders, because food, social and ceremonial communal fishing is a non-commercial activity. The proposed amendments will not affect harvest levels, since they are not intended to change how the Inuit fish for food, social and ceremonial purposes. Furthermore, the proposed amendments will allow DFO to meet its obligations to effectively manage and control the Inuit domestic fishery; yet doing so will not trigger an incremental increase in government costs with respect to fishery enforcement measures, since these activities will be covered by existing government resources. In addition, there will be no foreseeable administrative burden imposed on stakeholders as a direct result of the proposed amendments, since no new administrative requirements will be introduced. Finally, the implementation of the proposed amendments will not impose costs on Canadians. Since food, social and ceremonial communal fishing is considered a non-commercial activity, and since no costs will be imposed as a result of the proposed management regime, there are no anticipated economic impacts associated with these regulatory amendments.

Implementation, enforcement and service standards

The proposed amendments would come into force on the day on which they are registered.

The proposed management regime would be enforced by fishery officers with the Department of Fisheries and Oceans and conservation officers from the Nunatsiavut Government who are designated under the Fisheries Act.

As the proposed amendments will only apply to the Inuit domestic fishery, it is not anticipated that any additional enforcement will be required. Regulatory requirements in the Inuit domestic fishery will use the same tools to manage the fishery as in previous years, such as close times.

The areas impacted by these Regulations are currently patrolled by the enforcement personnel of DFO and the RCMP, and by Aboriginal fishery guardians. These personnel provide information to fishers and enforce the regulations.

Contacts

Samia Hirani
Senior Policy Advisor
Legislative and Regulatory Affairs
Fisheries and Oceans Canada
Ottawa, Ontario
Telephone: 613-998-9887
Email: samia.hirani@dfo-mpo.gc.ca

Wayne King
Area Chief
Resource Management
Fisheries and Oceans Canada
Goose Bay, Newfoundland and Labrador
Telephone: 709-896-6157
Email: wayne.king@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 43(1) (see footnote a) of the Fisheries Act (see footnote b), proposes to make the annexed Regulations Amending Certain Regulations Made Under the Fisheries Act.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Samia Hirani, Senior Policy Advisor, Legislative and Regulatory Affairs, Department of Fisheries and Oceans, 200 Kent Street, 14th Floor, Ottawa, Ontario K1A 0E6 (tel.: 613-998-9887; fax: 613-993-5204; email: samia.hirani@dfo-mpo.gc.ca).

Ottawa, September 21, 2017

Jurica Čapkun

Assistant Clerk of the Privy Council

Regulations Amending Certain Regulations Made Under the Fisheries Act

Newfoundland and Labrador Fishery Regulations

1 Subsection 2(1) of the Newfoundland and Labrador Fishery Regulations (see footnote 8) is amended by adding the following in alphabetical order:

  • food fishing means catching fish for personal consumption but not for sale or barter; (pêche de consommation)

2 Section 3 of the Regulations is replaced by the following:

  • 3 Only sections 2, 8, 21, 24.1, 29, 36 and 41 apply in respect of fishing and related activities carried out under the authority of a licence issued under the Aboriginal Communal Fishing Licences Regulations.

3 The definition food fishing in section 64 of the Regulations is repealed.

4 The Regulations are amended by adding the following after section 80:

PART III

Fishing in the Labrador Inuit Settlement Area

Interpretation

81 The following definitions apply in this Part.

  • Agreement has the same meaning as in section 2 of the Labrador Inuit Land Claims Agreement Act. (Accord)
  • Inuit domestic fishing means the exercise by a person of the right to harvest any species or stock of fish for food, social and ceremonial purposes in accordance with the Agreement. (pêche domestique des Inuit)
  • Labrador Inuit Settlement Area has the same meaning as in section 1.1.1 of the Agreement. (région du règlement des Inuit du Labrador)
Application
  • 82 (1) Despite section 3, only section 2 and this Part apply in respect of Inuit domestic fishing.
  • (2) In the event of a conflict between this Part and the Atlantic Fishery Regulations, 1985 or the Marine Mammal Regulations, this Part prevails to the extent of the conflict.
Limitations
  • 83 (1) A person who is carrying on Inuit domestic fishing shall not harvest or retain any species or stock of fish from the waters of the Labrador Inuit Settlement Area during the close time beginning on December 29 and ending on December 31.
  • (2) A person who is food fishing or fishing for recreational purposes shall not harvest or retain any species or stock of fish from those waters during the close time beginning on December 29 and ending on December 31.
  • (3) The close times established by subsections (1) and (2) are considered to be fixed separately and individually for each species or stock of fish.
  • 84 (1) The Minister shall, having regard to conservation measures applicable to salmon in the Labrador Inuit Settlement Area, issue tags to be attached to salmon harvested in the course of carrying on Inuit domestic fishing in that Area.
  • (2) Any person who retains a salmon referred to in subsection (1) shall immediately affix a tag by firmly fastening it to the salmon so that the tag cannot be removed without breaking the fastener, breaking or cutting the tag or cutting or tearing any part of the salmon.
  • (3) A person shall not be in possession of a salmon referred to in subsection (1) unless it is tagged in accordance with subsection (2).

Atlantic Fishery Regulations, 1985

5 Section 3 of the Atlantic Fishery Regulations, 1985 (see footnote 9) is amended by adding the following after subsection (5):

  • (6) Despite subsection (5), only sections 51, 53, 54, 59, 61, 61.1, 68, 76, 78 to 80 and 86 and Part X apply in respect of Inuit domestic fishing, being the exercise by a person of the right to harvest any species or stock of fish for food, social and ceremonial purposes in accordance with the Agreement defined in section 2 of the Labrador Inuit Land Claims Agreement Act.

Fishery (General) Regulations

6 Section 3 of the Fishery (General) Regulations (see footnote 10) is amended by adding the following after subsection (5):

  • (6) Sections 18 to 21, 23, 26 and 29 do not apply in respect of Inuit domestic fishing, being the exercise by a person of the right to harvest any species or stock of fish for food, social and ceremonial purposes in accordance with the Agreement defined in section 2 of the Labrador Inuit Land Claims Agreement Act.

7 Subsection 35(3) of the Regulations is replaced by the following:

  • (3) Subsection (2) does not apply if the buying, selling, trading or bartering is carried out in accordance with the terms of the Agreement defined in section 2 of the Western Arctic (Inuvialuit) Claims Settlement Act, the Agreement defined in section 2 of the James Bay and Northern Quebec Native Claims Settlement Act or the Agreement defined in section 2 of the Labrador Inuit Land Claims Agreement Act.

Marine Mammal Regulations

8 The definition beneficiary in subsection 2(1) of the Marine Mammal Regulations (see footnote 11) is amended by striking out “or” at the end of paragraph (a), by adding “or” at the end of paragraph (b) and by adding the following after paragraph (b):

  • (c) the Agreement approved, given effect and declared valid by the Labrador Inuit Land Claims Agreement Act.

9 Paragraph 13(2)(a) of the Regulations is replaced by the following:

  • (a) an Indian or Inuk, other than a beneficiary, within the Northwest Territories, Yukon, Quebec or Newfoundland and Labrador; or

10 Subsection 16(2) of the Regulations is amended by striking out “or” at the end of paragraph (a), by adding “or” at the end of paragraph (b) and by adding the following after paragraph (b):

  • (c) to a beneficiary who is transporting any marine mammal or marine mammal parts in accordance with the Agreement referred to in paragraph (c) of the definition beneficiary.

11 Section 34.1 of the Regulations is amended by adding the following after subsection (2):

  • (3) Subsection (1) does not apply in respect of Inuit domestic fishing, being the exercise by a person of the right to harvest any species or stock of fish for food, social and ceremonial purposes in accordance with the Agreement defined in section 2 of the Labrador Inuit Land Claims Agreement Act.

Coming into Force

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

[39-1-o]

  • Footnote 1
    The following link provides a map of the settlement area: https://www.gov.nl.ca/iias/wp-content/map.pdf.
  • Footnote 2
    Inuit domestic fishery: The Labrador Inuit Land Claims Agreement states that all beneficiaries have the right to harvest at all times of the year throughout the Labrador Inuit Settlement Area.
  • Footnote 3
    Communal fishing licences are issued under the ACFLRs and apply to Aboriginal organizations only, as opposed to other standard licences issued under other federal regulations. These licences allow DFO to exercise some control over food, social and ceremonial fisheries, as other standard licences do not apply.
  • Footnote 4
    Some of the obligations that DFO would implement include ensuring the LILCA is recognized, that the settlement area is recognized in regulations, and that Inuit are given a first demand against a Total Allowable Catch or Total Allowable Harvest.
  • Footnote 5
    The “One-for-One” Rule requires regulatory changes that increase administrative burden costs to be offset with equal reductions in administrative burden. In addition, ministers are required to remove at least one regulation when they introduce a new one that imposes administrative burden costs on business. More information can be found at http://www.tbs-sct.gc.ca/hgw-cgf/priorities-priorites/rtrap-parfa/ofo-upu-eng.asp.
  • Footnote 6
    The objective of the small business lens is to reduce regulatory costs to small businesses without compromising the health, safety, security and environment of Canadians. More details about the small business lens can be found at http://www.tbs-sct.gc.ca/hgw-cgf/priorities-priorites/rtrap-parfa/sbl-lpe-eng.asp.
  • Footnote 7
    The DFO and Nunatsiavut Government Technical Working Group meets two to three times annually to discuss implementation and management issues related to the various fisheries within the Labrador region.
  • Footnote 8
    SOR/78-443; SOR/2003-338, s. 1
  • Footnote 9
    SOR/86-21
  • Footnote 10
    SOR/93-53
  • Footnote 11
    SOR/93-56
  • Footnote a
    S.C. 2012, c. 19, ss. 149(1) to (4)
  • Footnote b
    R.S., c. F-14