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On February 6, 2018, the federal government announced proposed amendments to the Fisheries Act (the Act), as we summarized here . In furtherance of the federal government’s reconciliation efforts with Indigenous peoples, the proposed amendments provide opportunities to increase and strengthen the role of Indigenous groups in decision-making under the Act, which includes the potential for an increased role in project reviews, monitoring and policy development. The amendments also expressly provide opportunities for DFO to consider traditional knowledge in decision-making under the Act.

We have outlined the key aspects of the proposed amendments as they relate to Indigenous peoples and participation opportunities below. Increased opportunities for Indigenous participation

The Bill builds in several opportunities to increase and enhance the role of Indigenous peoples in decision-making and management under the Act. In broad terms, the Bill provides that, when making decisions under the Act, the Minister may consider "cooperation" with any Indigenous governing body (as well as any body or co-management body established under a land claims agreement). i

Most notably, the Bill provides that the Minister may enter into agreements with such Indigenous bodies to further the purpose of the Act (including agreements to facilitate: cooperation, joint action in areas of common interest, reducing overlap and harmonizing programs, enhanced communication, and public consultation or the entry into arrangements with third party stakeholders). ii Such agreements may also provide for the application of Indigenous laws that are deemed equivalent in effect to a provision of a regulation, and the amendments appear to contemplate that such laws would be administered and enforced by the Indigenous body within its own territory. iii

The scope and content of such agreements is potentially very broad, as the new purpose of the Act is to "provide a framework for (a) the proper management and control of fisheries, and (b) the conservation and protection of fish and fish habitat, including by preventing pollution. iv By expressly contemplating agreements between the Minister and Indigenous groups to further the purpose of the Act, in our view, this measure is poised to have the largest impact of the Fisheries Act amendments in terms of increasing opportunities for Indigenous groups to participate in decision-making, monitoring and management of fish habitats, and to affect the development of policy.

We note that these amendments reflect what we have observed has already become an informal DFO practice in certain circumstances: developing arrangements and seeking the approval or cooperation of Indigenous groups prior to making significant decisions affecting their rights and interests. It is worth noting, however, that the amended Act does not require the entry into agreements with Indigenous groups under any circumstances, but rather presents it as an option for the Minister to consider. Consultation requirements

In respect of consultation, the language of the Bill appears to align with the well-established common law principles of the Crown’s duty to consult. The amended Act states that the Minister shall consider any adverse effects that a decision may have on the s. 35 rights of Indigenous peoples. v Elsewhere, the Act provides that the Minister may consult with any Indigenous governing body before establishing any standards and codes of practice in respect of avoidance of death to fish and harmful alteration, disruption or destruction of fish habitat, conservation and protection and pollution prevention, but it does not make such consultation mandatory. vi

Notably, there is an absence of any express requirement for government to seek or obtain free, prior and informed consent (FPIC) by Indigenous peoples in making decisions or granting authorizations under the Act. The Fisheries Act amendments provide a possible indication that the federal […]

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