Regulations Amending Certain Regulations Made Under the Fisheries Act: SOR/2020-255
Canada Gazette, Part II, Volume 154, Number 25
SOR/2020-255 November 30, 2020
P.C. 2020-960 November 27, 2020
Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to subsection 43(1) footnote a of the Fisheries Act footnote b, makes the annexed Regulations Amending Certain Regulations Made Under the Fisheries Act.
Regulations Amending Certain Regulations Made Under the Fisheries Act
Atlantic Fishery Regulations, 1985
1 Subsection 2(1) of the Atlantic Fishery Regulations, 1985 footnote 1 is amended by adding the following in alphabetical order:
provincial or territorial fisher’s certificate has the same meaning as in section 2 of the Fishery (General) Regulations; (certificat provincial ou territorial de pêcheur)
2 The heading before section 13 of the Regulations is replaced by the following:
Registration Cards, Licences and Certificates
3 Subsection 13(2) of the Regulations is replaced by the following:
(2) If a licence is issued authorizing the use of a vessel to fish for a species of fish and an operator is not named in the licence, any registered fisher or any person holding a provincial or territorial fisher’s certificate may operate that vessel to fish for that species.
4 (1) Paragraph 14(1)(a) of the Regulations is replaced by the following:
- (a) the person holds a fisher’s registration card or a provincial or territorial fisher’s certificate; and
(2) Paragraph 14(1)(b) of the English version of the Regulations is replaced by the following:
- (b) the person is authorized under subsection (2) to fish for that species.
(3) Subsection 14(4) of the Regulations is replaced by the following:
(4) A person who is less than 16 years of age may engage in fishing without being registered or without holding a provincial or territorial fisher’s certificate.
5 (1) Paragraph 15(1)(a) of the Regulations is replaced by the following:
- (a) without being registered or without holding a provincial or territorial fisher’s certificate; and
(2) The portion of subsection 15(2) of the Regulations before paragraph (a) is replaced by the following:
(2) A person may, without being registered, without holding a provincial or territorial fisher’s certificate or without being licensed, and with a vessel that is not registered, engage in recreational fishing
(3) Paragraph 15(3)(a) of the Regulations is replaced by the following:
- (a) without being registered or without holding a provincial or territorial fisher’s certificate; and
Fishery (General) Regulations
6 Section 2 of the Fishery (General) Regulations footnote 2 is amended by adding the following in alphabetical order:
- provincial or territorial fisher’s certificate
- means a certificate of accreditation or registration, however described and regardless of format, that is issued to a commercial fisher through a program of accreditation or registration established under provincial or territorial legislation; (certificat provincial ou territorial de pêcheur)
7 Section 11 of the Regulations and the heading before it are replaced by the following:
Carrying and Producing Licences, Registration Cards and Certificates
11 Every holder of a licence, a fisher’s registration card or a provincial or territorial fisher’s certificate shall carry it at all times while engaged in any activity to which it relates and shall produce it on the demand of a fishery officer or fishery guardian.
8 Paragraph 39(1)(a) of the Regulations is replaced by the following:
- (a) does not hold a fisher’s registration card or a provincial or territorial fisher’s certificate;
Description of Offence
Failing to produce licence, fisher’s registration card or provincial or territorial fisher’s certificate
Maritime Provinces Fishery Regulations
10 The heading before section 4 of the Maritime Provinces Fishery Regulations footnote 3 is replaced by the following:
Licences, Registration Cards and Certificates
11 Paragraph 4(1)(b) of the Regulations is replaced by the following:
- (b) the person holds a fisher’s registration card or a provincial or territorial fisher’s certificate, as defined in section 2 of the Fishery (General) Regulations; and
Coming into Force
12 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues: In order to support the professionalization of fishers in Canada, Fisheries and Oceans Canada (DFO) will accept certification from provincial boards as an alternative to a Fisher’s Registration Card (FRC) in the provinces where professional certification boards have been created under provincial legislation. While this regime has been in place for over 20 years in some provinces, the regulations were not amended to support this practice.
Description: The Governor in Council has amended the Atlantic Fishery Regulations, 1985 (AFRs), the Maritime Provinces Fishery Regulations (MPFRs) and the Fishery (General) Regulations (FGRs) to formally recognize certification from provincial boards, where they exist, in lieu of obtaining an FRC from DFO. Additionally, a provision of the AFRs has been adjusted to be gender-neutral.
Rationale: DFO supports professionalization as an industry-run initiative that recognizes fish harvesting as a professional designation akin to other skilled trades. The amendments support a legal and legislative framework for current and future regimes to operate in a manner that is consistent with current practices, and fulfills a long-standing commitment to commercial harvesters in the Atlantic regions. The amendments also give harvesters, where this option will be available, the flexibility to choose whether to register with DFO or their board, without incurring any additional burden.
Professionalization is a form of trade certification that recognizes professional standards related to experience and training in the commercial fishery. Through professionalization regimes, a fish harvester’s skills, knowledge, and experience are assessed against provincial professional standards, placing fish harvesting in a similar category to other trade professions, such as electricians or plumbers. Professionalization represents a long-term approach to improving harvester safety, conservation and sustainable resource use, and increasing the capacity of the industry through individual harvesters. In order to support the professionalization of fishers in Canada, DFO created an alternative to the regulatory requirement for harvesters to obtain an FRC in the provinces where professional certification boards have been created under provincial legislation. While this regime has been in place for over 20 years in some provinces, the regulations were never amended to support this practice. The Department is now proceeding with these amendments to reflect the current practice in regulation, and to provide the legal foundation for other jurisdictions to create similar regimes.
Existing provincial certification boards provide commercial fish harvesters (licence holders and crew) with a form of trade certification in recognition of having achieved professional standards related to training and experience, commonly known as “professionalization.” These boards facilitate training on marine safety, conservation, and sustainable resource use, among other areas of specialized skills, which helps new entrants to the industry develop their skills and more experienced fishers to upgrade theirs.
These boards are industry-run institutions that are established through provincial legislation. Where legislation has authorized the establishment of boards, and boards have been established, the boards register harvesters and issue certifications according to established criteria. The guiding principles of professional provincial certification regimes are that they be industry led and driven, have broad industry support, and are open to all commercial harvesters.
DFO’s support for the professionalization of the commercial fishing industry dates back to 1990 with the Atlantic Fisheries Adjustment Program (AFAP). This program recognized that fishing should be regarded as a skilled profession that requires a range of technical and managerial skills acquired through the development of and participation in formal training, apprenticeship, and certification programs.
In 1995, the then-Minister of Fisheries and Oceans announced his support for professionalization and acknowledged that its development would be the responsibility of the fishing industry, thereby allowing industry to identify and address issues of concern.
Establishment of existing provincial certification boards
In 1996, the Province of Newfoundland and Labrador enacted the Professional Fish Harvesters Act, and the Newfoundland and Labrador Professional Fish Harvesters Certification Board (PFHCB) was established. In January 1997, the then-Minister of Fisheries and Oceans announced that the Department would recognize the certification and registration of fish harvesters in Newfoundland and Labrador by the PFHCB.
In 1996, Quebec fleets reached a consensus on the creation of a professionalization regime; in May 1999, the Bureau d’accréditation des pêcheurs et aides-pêcheurs du Québec (BAPAP) was created through provincial legislation entitled Loi sur le bureau d’accréditation des pêcheurs et des aides-pêcheurs du Québec. Since introducing legislation recognizing professional fish harvesters, the Ministère de l’Agriculture, des Pêcheries et de l’Alimentation du Québec (MAPAQ) and regional fisheries organizations have been requesting that DFO modify its regulations to recognize professional fish harvester status by providing an exemption from the FRC requirement.
Under the current Atlantic Fishery Regulations, 1985 (AFRs), Maritime Provinces Fishery Regulations (MPFRs) and Fishery (General) Regulations (FGRs) all commercial fish harvesters (licence holders and crew) are required to carry an FRC issued by DFO as proof of registration.
Following the establishment of the PFHCB and the BAPAP, DFO ceased registering fish harvesters in Newfoundland and Labrador and Quebec and stopped issuing FRCs in those provinces. Harvesters instead began registering with their respective boards. Although the provincial legislation that enabled the creation of the boards did not make professional certification mandatory; through policy, DFO started requiring commercial fishing licence holders in Newfoundland and Labrador to achieve a level II certification as an eligibility criteria to obtain a licence. Nevertheless, until now, the regulatory amendments required to reflect this long-standing practice had not been made to the federal regulations.
In Nova Scotia, a core group of fishing industry representatives have been pursuing professional certification for more than two decades. In 2012, the Province of Nova Scotia enacted legislation entitled Fish Harvesters Registration and Certification Board Act and the interim Fish Harvesters Registration and Certification Board of Nova Scotia (FHRCBNS) was established. In 2015, the FHRCBNS submitted a proposal to DFO that would allow it to register and certify fish harvesters in that province. The proposal was endorsed by the provincial government and, in August 2016, the then-Minister of Fisheries and Oceans conveyed his support, “in principle,” for the Nova Scotia proposal and directed departmental officials to begin the process to amend the relevant regulations under the Fisheries Act to exempt harvesters registered with certification boards from the requirement to register with DFO. In 2019, DFO’s then-Minister reiterated departmental support for the professionalization regime to the FHRCBNS and committed to make the necessary regulatory changes.
These amendments formally recognize existing and future provincial or territorial certification regimes within federal regulations by accepting either registration or certification with an established board as an alternative to registering with DFO and obtaining an FRC. In addition, section 14 of the AFRs has been adjusted to make the provisions gender-neutral.
The amendments modify the AFRs, the MPFRs, and the FGRs made under the Fisheries Act.
The waters to which the AFRs apply include the tidal waters of Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and Labrador, and Quebec; the waters of Ungava Bay; and the waters of the Hudson Strait lying east of 70°00′ west longitude. The MPFRs apply to Nova Scotia, New Brunswick, Prince Edward Island and in Canadian fisheries waters adjacent to those provinces. While the AFRs and MPFRs each apply across several jurisdictions, the amendments only impact commercial harvesters in Newfoundland and Labrador, Nova Scotia, and Quebec at this time. This is because provincial or territorial certification boards do not exist in New Brunswick, Prince Edward Island, or Nunavut. Provincial or territorial enabling legislation would need to be enacted prior to the establishment of certification boards in these areas.
The FGRs apply to fishing and related activities in particular areas, including British Columbia (B.C.). Given the current lack of interest for a provincial certification board in B.C., amendments to the Pacific Fishery Regulations, 1993 have not been pursued at this time. Should B.C. choose to establish a provincial certification board, it would need to enact provincial legislation and the Pacific Fishery Regulations, 1993 would need to be amended accordingly to acknowledge the provincial certification program specifically designed to accommodate the industry in that region.
Atlantic Fishery Regulations, 1985
Subsection 2(1) is amended by adding a reference to the definition of provincial or territorial fisher’s certificate, as found in the FGRs.
The heading before section 13 previously read “Requirement for Registration and Licences.” It is changed to “Licences, Registration Cards, and Certificates.”
Amendments to subsection 13(2), paragraph 14(1)(a), subsection 14(4), paragraph 15(1)(a), subsection 15(2), and paragraph 15(3)(a) of the AFRs allow for the recognition of provincial or territorial certification regimes, either existing or potential, by exempting harvesters from the obligation to register with DFO and carry an FRC if they are registered or certified by a provincial or territorial certification board.
Paragraphs 14(1)(a) and 14(1)(b) are amended to make the provisions gender-neutral.
Maritime Provinces Fishery Regulations
The heading before section 4 previously read “Licensing and Registration.” It is changed to “Licences, Registration Cards and Certificates.”
An amendment to paragraph 4(1)(b) of the MPFRs allows for the recognition of provincial or territorial certification regimes, either existing or potential, by exempting harvesters from the obligation to register with DFO and carry an FRC if they are registered or certified by a provincial or territorial certification board.
The requirement to issue FRCs where there is no provincial or territorial certification regime, and the option to issue FRCs upon request from harvesters who chose not to be registered or certified by a board where they exist, remains in place.
Fishery (General) Regulations
A definition of “provincial or territorial fisher’s certificate” is added to section 2 of the FGRs. The definition defines a fisher’s certificate as “a certificate of accreditation or registration, however described and regardless of format, which is issued to a commercial fisher through a program of accreditation or registration established under provincial or territorial legislation.”
The heading before section 11 previously read “Carry and Produce Licence and Fisher’s Registration Card.” It is changed to “Carrying and Producing Licences, Registration Cards and Certificates.”
In addition, section 11 is amended to
- (1) provide an alternative to the obligation to carry and produce an FRC card for harvesters that are registered or certified by a recognized provincial or territorial certification board; and
- (2) provide a fishery officer or fishery guardian with the authority to request evidence of registration or certification (in lieu of an FRC).
Paragraph 39(1)(a) is amended to exclude harvesters that are registered or certified by a recognized provincial or territorial certification board from being eligible for designation as an observer. This amendment serves to maintain the same exclusion currently in place for harvesters holding an FRC.
Column II of item 1 to Schedule VIII is amended to include a provincial or territorial fisher’s certificate.
Although professionalization was first discussed at the federal level in 1990, early mentions of consultations with the provinces and territories included extensive consultations held throughout Newfoundland and Labrador between 1988 and 1995. Over the span of the past decades, various consultations occurred in Newfoundland and Labrador, Nova Scotia, New Brunswick, Prince Edward Island, British Columbia and Quebec, covering a range of professionalization-related initiatives, including departmental commitments, the development of a draft policy framework, and the need for regulatory support.
In 2016, the then-Minister of Fisheries and Oceans approved a proposed regulatory approach supporting provincial fish harvester certification and registration regimes. In early 2017, DFO developed a regulatory intent document. The first round of in-depth consultations on the policy intent and the proposed regulatory amendments were undertaken in Atlantic Canada (Newfoundland and Labrador, Nova Scotia, and New Brunswick) and Quebec during the fall and winter of 2017–2018. The consultation window closed at the end of February 2018.
During the course of the 2017–2018 consultations, DFO informed stakeholders, via letters, of the purpose of the consultations, the dates and locations of presentations providing an overview of the proposed amendments and the regulatory process, and where to find information online providing an overview of the consultative process and the consultation presentation itself. Consultations were conducted geographically, reflecting the Department’s regional structure. Details of the consultations are as follows:
On November 8, 2017, letters were sent to all implicated fish harvesters registered with DFO in the Gulf Region since 2015. Three in-person meetings were then conducted within the Gulf Region to provide additional detail on the proposed regulatory amendments and gather feedback from fish harvesters. Each session was attended by approximately 20 to 30 fish harvesters.
On December 12, 2017, the provincial governments of New Brunswick and Prince Edward Island, as well as fish harvester associations representing Eastern New Brunswick and Prince Edward Island, were advised of the Department’s proposed regulatory changes. It should be noted that if New Brunswick or Prince Edward Island choose to establish a board, they would first need to enact enabling provincial legislation allowing them to do so.
On January 1, 2018, letters and email notifications were sent to all Indigenous groups in the Gulf Region. No specific concerns regarding the proposed amendments were raised.
Overall, feedback directly related to the proposed regulatory amendments received during meetings was limited and no strong objections were noted. Throughout the consultations, most questions and comments from fish harvesters pertained to the purpose and governance of the provincial certification board they will have the option to register with if the proposed regulatory changes come into effect. Some questions were asked regarding DFO’s objectives for seeking these regulatory changes, and information was provided on the Department’s general support for industry-led fish harvester professionalization initiatives. No objections to the amendments were noted.
Beginning on September 25, 2017, letters were sent to all fish harvesters who had registered with the Department the year prior (~12 000) and would potentially be impacted by the proposed regulatory changes. Dedicated consultation and information sessions were held on the proposed regulatory changes in locations throughout the Region, and fish harvester associations were contacted by area offices in Nova Scotia and New Brunswick. In Southwest New Brunswick, fish harvesters were invited to a consultation session in Saint John via email and during advisory committee meetings. The FHRCBNS sent emails to their contacts, and representatives from the FHRCBNS attended consultation sessions in person to address questions about the FHRCBNS’s intended certification regime. Letters were also sent to Indigenous chiefs in the Region and the proposed amendments were discussed at already established meetings.
Overall, the consensus of the aforementioned attendees was that the industry was receptive to the information provided through these consultations. Attendance was strong throughout the Region and the proposed regulatory amendments were accepted as presented. The only observed concerns were surrounding the ease of transition, should the amendments move forward as proposed, and the possibility of the Province bringing in mandatory registration through certification boards.
On December 6 and 7, 2017, the Quebec Region, in collaboration with the BAPAP, held a meeting with the Liaison Committee between DFO and the capture sector. Attending stakeholders included 15 representatives from intersectoral associations (Gaspésie–Bas-Saint-Laurent, Îles-de-la-Madeleine, and Côte-Nord), 2 representatives from Indigenous associations, and one representative from the MAPAQ.
During these initial consultations, the BAPAP was supportive of the proposed regulatory amendments and noted that an evolving fishery must have a trained workforce with sufficient accommodation for the next generation of harvesters. Overall, the desire to professionalize was very strong, however, not all participants were fully supportive. Questions raised during the consultation session included applicability of the professional qualifications to Indigenous groups, accessibility and training criteria (i.e. number of hours), the experience required for accreditation, and provincial funding.
Newfoundland and Labrador Region
On November 23, 2017, representatives of the Newfoundland and Labrador Region met with two representatives of the provincial Department of Fisheries and Land Resources (DFLR) and five representatives from the PFHCB. DFO officials met with two representatives of the Fish, Food and Allied Workers Union (FFAW) on January 15, 2018.
Indigenous consultation letters were sent to five organizations in Newfoundland and Labrador on November 23, 2017. Letters were provided to the Nunatsiavut Government, the Innu Nation, the Miawpukek First Nation, the NunatuKavut Community Council and the Qalipu First Nation. On December 15, 2017, DFO officials also conducted phone calls with the Nunatsiavut Government and the Torngat Joint Fisheries Board.
Comments received by the Newfoundland and Labrador Regional office during this timeframe reflected support for the proposed amendments, and the Department interpreted comments received as posing no strong opposition. Although both the DFLR and the PFHCB clearly stated that they were supportive of advancing the regulatory proposal, the DFLR expressed a preference that harvesters register with the PFHCB only. Some harvesters expressed their concerns regarding the PFHCB’s current professionalization requirements; however, no concerns were expressed regarding the proposed DFO regulatory amendments themselves. The FFAW (the officially recognized labour organization representing Newfoundland and Labrador harvesters) appeared fully supportive of the proposed amendments.
Pacific (British Columbia) Region
The issue of professionalization was the subject of consultations with the Pacific Region as early as 2003 but received considerable resistance from a number of industry groups. Correspondence from January 2018 from a major stakeholder group in British Columbia stated that, although they do not object to the amendments, they do not support DFO compelling, encouraging, or assisting with the formation of provincial bodies. Should British Columbia choose to establish a board, it will need to enact enabling provincial legislation to do so. Once in place, the Department would then need to amend the Pacific Fishery Regulations, 1993. Given the lack of interest on the Pacific coast for professionalization, further consultations were not undertaken.
Central and Arctic Region
In December 2017, representatives of the Central and Arctic Region sent letters to stakeholders in Nunavut asking for comments with respect to the proposed professionalization amendments. The Department received no comments or feedback from the stakeholders that were contacted and there were no requests to discuss the proposal; informal follow-up resulted in no further comments.
Fisheries and Oceans Canada has never issued FRCs in the Nunavut area, as crews operating in the region (such as in the waters of the Hudson Strait) are for the most part southern-based and will obtain certification from their home provinces.
There is no board currently in place in Nunavut. Should the territory choose to establish a board following the amendments to the Regulations, enabling territorial legislation will need to be enacted in order to allow for the establishment of a board.
Prepublication in the Canada Gazette, Part I, and follow-up
On February 16, 2019, the Department prepublished the Regulatory Impact Analysis Statement and the proposed Regulations in the Canada Gazette, Part I (CGI), for a 30-day public comment period. In total, the Department received seven comments; three from provincial certification boards, three from fish harvesters’ representative bodies, and one from a provincial government. While two comments were generally supportive of the proposed way forward, the other five raised concerns that have been taken into account by DFO and are outlined here.
During the CGI public comment period, the existing boards in Quebec and Newfoundland and Labrador, the Fish and Food Allied Workers Union, the Province of Newfoundland and Labrador, and the Canadian Council of Professional Fish Harvesters explicitly called on DFO to make professional certification by boards mandatory. The main concern expressed across these submissions pertained to the Department’s intent to maintain the issuance of FRCs (upon request by a harvester), even where certification boards exist. While the primary purpose of the regulatory changes is to advance certification programs by affirming their validity in federal law, these stakeholders were of the view that maintaining the option to request an FRC could result in an erosion of membership among existing boards. Comments also indicated that if DFO did not make professional training and education mandatory it could impact efforts to improve safety at sea. One of the key objectives of certification boards is to see all harvesters become provincially certified where boards exist and receive the safety training offered by boards.
The feedback highlighted a misconception that the Department could include mandatory requirements for all harvesters to register with the provincial boards, either in regulations or through policy. In reality, a mandatory professional certification program would more appropriately fall under the legislative authorities of education, training and labour standards, all of which are within provincial jurisdiction. Although the Department supports the mandatory training of fish harvesters in principle, requiring mandatory training is a significant departure from the current approach and has not been consulted upon or assessed in terms of its impacts.
The remaining two submissions (one from the FHRCBNS and one from the Nova Scotia Fisheries Council) fully supported the amendments as proposed and commended the Department for advancing professionalization of the fisheries sector.
After the closing of the 30-day public comment period, the Department consolidated the comments and identified potential options to mitigate the concerns and address them to the extent possible while respecting the legal and jurisdictional considerations. While the Department remains attentive to the requests coming from those stakeholders that provided dissenting comments, there remains a disconnect between the objectives of the regulatory amendments and the desires of the boards to make certification mandatory. In subsequent discussions with representatives from the PFHCB, the BAPAP and MAPAQ, DFO officials outlined the Department’s position and proposed options to find a mutually beneficial solution. During these meetings, the primary focus was communicating the jurisdictional limitations of the Department in making certification mandatory for crew. It was also made clear that DFO’s authority pertains strictly to the licence and by extension, licence holder. Consequently, any attempts to regulate actions that rest in the purview of provincial governments (such as the training and education of crew) would likely constitute an infringement on provincial jurisdiction. DFO officials reiterated the importance of recognizing board certification in departmental regulations in order to ensure that harvesters in Eastern Canada are in compliance. Finally, they emphasized the Department’s support for existing provincial programs and offered to continue to work with the boards, industry colleagues, and provincial legislators to explore options to make certification mandatory at the provincial level. In light of these considerations, the Department remains committed to moving forward with the regulatory amendment as proposed, with the understanding that additional work is needed to promote the advancement of professional certification across Canada.
Additional follow-up meetings were also held with the FHRCBNS and the Nova Scotia Fisheries Council, which sought reassurance that the regulatory amendment would go through. These two groups in favour of the regulatory proposal continue to express their support for the amendments as well as their desire for fast action to complete the process.
Modern treaty obligations
As per the 2015 Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment was conducted on this proposal. While the amendments will apply only to waters in the Labrador Inuit Settlement Region, the Nunavik Settlement Region, Eeyou Marine Settlement Region, and Nunavut Settlement Region, the assessment concluded that implementation of this proposal will not have an impact (positive or negative) on the rights, interests and/or self-government provisions of those modern treaties.
Costs and benefits
The PFHCB currently has approximately 9 500 fish harvesters registered in Newfoundland and Labrador, and BAPAP has 1 778 fish harvesters registered in Quebec; their respective fees are $75/year and $50/year. In Nova Scotia, the anticipated fee for registering with the FHRCBNS is expected to be comparable to Quebec and Newfoundland and Labrador’s current fees. Given that about half of the industry has indicated support for the instalment of a provincial certification board in Nova Scotia, over 6 400 fish harvesters could register with the FHRCBNS once in operation (based on the 2018 DFO provincial fish harvesting employment estimates).
The annual revenue loss for DFO since it stopped collecting registration fees from Newfoundland and Labrador and Quebec is approximately $739,000 (Newfoundland and Labrador) and $183,000 (Quebec). However, the effect of lost revenue on DFO appropriations from these uncollected FRC fees has been reconciled over time as a result of an incremental increase in other revenue.
Depending on the number of harvesters in Nova Scotia who choose to register with the board, it is anticipated that the annual loss of revenue collected by DFO stemming from a new certification regime in Nova Scotia could reach an additional $646,000 if all fish harvesters were to avail themselves of the exemption and register with the FHRCBNS. The loss of income will likely be negligible for the Department as, over time, the associated administrative costs will be transferred from the Department to provincial certification boards.
Increased certification fees assumed by fish harvesters (if they choose to certify with a board instead of DFO) are not considered in this analysis, since the regulatory amendment does not force fish harvesters to choose the more expensive certification option (administrative costs are comparable, but associated training costs could be more expensive). However, some impact on fish harvesters is likely if provincial certification is made mandatory in the future by provinces. Indirectly, this amendment provides a costing alternative for some fish harvesters (in Newfoundland and Labrador and Nova Scotia) though differences between the costs of either registration options are negligible.
DFO-supported provincial certification boards directly benefit the fishing sector in a number of ways. The training provided promotes safer marine work conditions and activities, sustainable resource awareness and increased operational efficiency. Fishing enterprises could use safer and more efficient fishing methods learned in training opportunities offered and/or subsidized by the boards that could benefit the enterprise economically by increasing operational and labour efficiencies. Currently, DFO does not provide any marine or fishing training or instruction in exchange for an FRC. Since the annual fees of the existing provincial certification boards are the same or marginally higher (+$25/year) than current DFO FRC fees, the potential benefits of receiving up-to-date safety and operational training and instruction from provincial certification boards far outweigh the small added annual cost to fish harvesters. However, as boards require harvesters to acquire training through accredited institutions, additional fees for training can vary.
This regulatory amendment gives participants in the fishing industry in the provinces where this option will be available the flexibility to choose whether to register with DFO or their board, forcing no added or increased fee burden.
Lastly, in Nova Scotia, DFO will realize some minor internal administrative cost savings associated with facilitating the processing of applications and the issuance of FRCs, as it is anticipated that demand for DFO FRCs in the province will decline.
Small business lens
The objective of the small business lens is to reduce regulatory costs on small businesses without compromising the health, safety and security of Canadians and the environment. As described in the following section, these amendments will reduce administrative burden costs on small businesses associated with applying for and renewal of FRCs. As described in the “Costs and benefits” section above, provincial certification boards would directly benefit the fishing sector by teaching safer, up-to-date marine operational practices, promoting sustainable resource exploitation and increased enterprise operational efficiency (through teaching of innovative operational practices and procedures). With this training and knowledge enhancement, fishing enterprises may use safer and more efficient fishing methods that could result in a positive economic benefit for the enterprise facilitated by increased operational and labour efficiencies. Currently, DFO does not provide any training or instruction that could provide the benefits described in exchange for an FRC.
Furthermore, these amendments would theoretically reduce a fishing enterprises’ legal risk related to not having the current authoritative regulations match current (provincial) practices. These amendments would also, to a small degree, provide some operational business certainty for the future. Since fishers will have the option to participate in either the provincial certification program or obtain an FRC from DFO, they will have the flexibility to participate under the legal framework of their choice.
As per the Policy on Limiting Regulatory Burden on Business, an incremental decrease can be claimed where a federal process or requirement is replaced with a provincial or territorial process or requirement. In this particular case, given that the amendments provide recognition of registration with a provincial or territorial board, the elimination of the mandatory requirement to register exclusively with DFO can be considered an OUT under the one-for-one rule.
From 2014 to 2018, the average number of harvesters registered was 1 696 in Quebec, 9 364 in Newfoundland and Labrador, and 12 270 in Nova Scotia.
The following additional assumptions are made:
- It takes approximately 30 minutes to perform a renewal, and 90% of registrations are renewals (for a BAPAP renewal, a range of 30 to 60 minutes was provided, so 45 minutes was used);
- New or initial registration takes 60 minutes, with an average of 10% new registrations per year;
- Five-year averages were used for registration/business counts — all businesses were assumed to be small business; and
- Work performed is done by an average Canadian worker with an associated cost of labour of $30.70 (2012, in Canadian dollars).
It is estimated that this results in an administrative savings of $ 234,562.
Strategic environmental assessment
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 for this regulatory proposal. The objective of the regulatory amendments is to provide fish harvesters with flexibility in registration options by formally recognizing provincial certification boards within regulations.
The regulatory amendments advance the Department’s objectives of supporting industry-led professionalization of the fishing industry through improved alignment of provincial and federal regimes and efforts to improve marine safety. The amendments allow for recognition of certification programs established under provincial or territorial legislation; an important step given that another province has now proposed similar certification initiatives and others may do so in the future.
This approach provides a regulatory regime that is transparent and consistent with current practices and departmental direction. The changes also improve clarity and transparency in terms of more accurately communicating regulatory requirements for licence holders and crew. Further detail on how objectives will be met is included below.
Improved alignment of provincial and federal regimes
Commercial fishing in marine waters falls under federal jurisdiction. However, as mentioned above, trade certification is an area of provincial jurisdiction. Certification boards must be recognized provincially or territorially and have formal authority to undertake trade certification. Therefore, this approach is consistent with the constitutional authority of provinces and territories over training and apprenticeship. It is also in the spirit of the Agreement on Inter-jurisdictional Cooperation with Respect to Fisheries and Aquaculture, signed by fisheries ministers across Canada in 1999.
To date, enabling provincial legislation that establishes certification boards has been passed in Newfoundland and Labrador, Quebec and Nova Scotia. Although the federal regulations will already have been amended, Prince Edward Island, New Brunswick, and Nunavut will require their own provincial or territorial legislation to be enacted to allow for the establishment of a board in those provinces and territories, and the current requirement for an FRC will remain in those jurisdictions. On the West Coast, should British Columbia choose to establish a board, they will need to enact provincial legislation and the Pacific Fishery Regulations, 1993 will need to be amended through a subsequent federal regulatory amendment.
One example of improved alignment and compatibility is the work undertaken in the Newfoundland and Labrador Region to ensure federal policy and provincial certification requirements are directly linked and mutually re-enforcing. Since its inception in 1997, certification from the Newfoundland and Labrador PFHCB has been directly linked to DFO licensing policy in the Newfoundland and Labrador Region. Specifically, DFO policy includes an eligibility criterion requiring that fish harvesters achieve a Level II certification with the PFHCB to be eligible for a federal fishing licence. Furthermore, since 2015, DFO has a regional licensing policy requiring harvesters to be registered as Level I or Level II as a criterion to being eligible to be designated as a replacement operator of a federal fishing licence.
Similar alignment efforts have been undertaken in Quebec, where DFO and the BAPAP have worked together to harmonize the licensing policies with provincial legislation in the Quebec Region. Despite DFO’s support for the work of the existing boards and existing practice, federal fisheries regulations continued to require that harvesters register with the Department and carry an FRC. The amendments rectify this situation by alternatively allowing registration with a provincial or territorial certification board in lieu of DFO, as well as improving clarity and transparency in terms of more accurately communicating regulatory requirements for licence holders.
Furthermore, the amendments recognize existing and future certification boards while maintaining the Minister of Fisheries and Oceans and the Canadian Coast Guard’s discretion over licensing and regulating who participates in the fisheries. In provinces and territories without professional certification boards, the Department continues to register harvesters and issue FRCs.
Improved marine safety
In 2006, a Memorandum of Understanding (MOU) between DFO and Transport Canada regarding the Safety at Sea of Commercial Fish Harvesters was established, providing a framework for cooperation between the two departments on marine safety. In order to make progress on the MOU, DFO has developed an action plan covering various elements aimed at strengthening safety at sea, including regulatory and policy review. These professionalization amendments, as a component of this plan, represent a commitment to support the work carried out by boards and their focus on providing harvesters with training to improve marine safety practices.
Overall, professionalization contributes to marine safety through the provision of training in a number of areas, including marine emergency duties, advanced marine first aid, and general seamanship and stability. Professionalization means that fish harvesters’ skills, knowledge and experience may be recognized. It allows them access to new training opportunities in a fishing industry with an established training culture and may also represent a long-term approach to achieving improved safety culture.
Implementation and enforcement
It is possible that some harvesters currently certified by existing boards in Newfoundland and Labrador and Quebec might ask to revert to registration via an FRC. However, since inshore harvesters in Newfoundland and Labrador and new entrants in Quebec will still be required by policy to achieve specific levels of certification to be eligible to hold a licence, it is anticipated that the majority of licence holders will continue to register with the board.
In Nova Scotia, licensing officers will continue to issue FRCs as requested by fish harvesters who choose not to seek registration or certification with the FHRCBNS. DFO staff in Gulf and Maritimes Region (in collaboration with National Headquarters), continue to work with FHRCBNS towards implementation, to ensure the needs of the board and DFO are satisfactorily met.
These amendments give authority to fishery officers or fishery guardians in Atlantic Canada and Quebec to board vessels to request evidence of registration or certification (in the absence of an FRC). Harvesters in regions where boards exist are required to produce either an FRC or proof of registration or certification from a board. Harvesters unable to produce either an FRC or provincial certification will be in violation of these regulations and subject to penalties under the Fisheries Act.
Fisheries and Oceans Canada
200 Kent Street, 14S-005