WILDLIFE AND
FISHERIES LAW
FEBRUARY 19, 2013
Overview
• Development of wildlife, fisheries law
• Wildlife management law (Ontario)
• Migratory Birds Convention Act
(Federal)
• Fisheries Act (Federal)
Issues
• Successes and failures in managing
wildife and fish populations
• Algonquin wolves
• Aborginal spring goose hunt
• Catastrophic collapse of northern cod
• Protecting fish habitat and “no net loss”
Market Hunting
• Unregulated hunting of wildlife for
commercial purposes was major
conservation issue in late 19th century
• Passenger Pigeons were globally one of
the most abundant birds in 19th century
(3 – 5 billion); hunted to extinction by
early 20th century
• Bison were 60 to 100 million in western
North America in mid 19th century;
hunted to near extinction
Market Hunting
• U.S. and Canadian laws banned market
hunting by early 20th century
• Early U.S. national parks (Yellowstone
had a small bison herd) also a response
to market hunting
• Migratory Birds Convention, Fish and
Wildlife Conservation Act response to
market hunting
Migratory Birds
Convention 1916
• Signed by U.S. and U.K. to protect
North American migratory birds from
overhunting and habitat loss
• Migratory Birds Convention Act 1917
• Market hunting (including spring
hunting) was of primary concern
• Hunting of non-game birds banned
• Nest destruction, egg taking prohibited
• Eskimos and Indians authorized to hunt
murres, puffins, auks
Migratory Birds
Convention 1916
• Set out a closed season for migratory
birds from March 11 to August 31
• Didn’t take into consideration aboriginal
spring subsistence hunt in northern
Canada
• Critical source of food in spring
• Geese and ducks arrived and departed
during closed season
Migratory Birds
Convention 1916
• Policy of non-enforcement of
Convention, MBCA, formalized in 1971
• Challenge to government of Canada
• Needed to convince U.S. to amend
Convention (Senate ratification)
• Canadian federal government no
constitutional authority with respect to
migratory birds except via Convention
Migratory Birds
Convention 1916
• Protocol to Convention 1995 recognized
aboriginal hunting rights
• Authorized aboriginal people to hunt
migratory birds and gather eggs
throughout year
• Sale of birds and eggs limited to
aboriginal communities
Fish and Wildlife
Conservation Act (Ontario)
• Regulates hunting, trapping and fishing
of vertebrate (mammals, birds, reptiles,
amphibians, fish) and certain
invertebrates (butterflies)
• No hunting, trapping of game mammals,
game birds; furbearing mammals etc.
without licence s.6.(1)
• No hunting of “specially protected
wildlife” s. 5.(1)
Fish and Wildlife
Conservation Act (Ontario)
• No buying or selling of game wildlife or
specially protected wildlife without
licence s. 48.(1)
• No keeping of live game wildlife or
specially protected wildlife without
licence s.40.(1)
• No trespassing for hunting on premises
marked pursuant to Trespass to
Property Act
Fish and Wildlife
Conservation Act (Ontario)
• No buying or selling of game wildlife or
specially protected wildlife without
licence s. 48.(1)
• No keeping of live game wildlife or
specially protected wildlife without
licence s.40.(1)
• No trespassing for hunting on premises
marked pursuant to Trespass to
Property Act
Fish and Wildlife
Conservation Act (Ontario)
• No hunting, trapping in a provincial park
or provincial game preserve s.9.(1)
• Any person can harass or kill wildlife
who on reasonable grounds believes it
is damaging or about to damage its
property on his/her land s.31.(1)
• A farmer can hunt or trap wildlife
(including wolves) on his/her property
without a licence s. 6.(3)
Eastern (Algonquin) Wolves
• Once occupied a range throughout
eastern North America north to boreal
• Now mainly limited eastern
Ontario/western Quebec centred on
Algonquin park
• Genetically distinct from grey wolf, but is
interbreeding with coyote
• Historically hunted/trapped outside
Algonquin park
Eastern (Algonquin) Wolves
• In 2004, CPAWS Ottawa Valley played
key role in establishing a buffer zone in
all 39 townships that surround
Algonquin Park
• Killing of wolves and coyotes is now
prohibited in these townships
Fish and Wildlife
Conservation Act (Ontario)
• How can this Act purport to regulate
fishing when inland fisheries is a federal
constitutional responsibility?
• Ontario Fishery Regulations are
Fisheries Act regulations
• Ontario Minister of Natural Resources
has authority under FWCA to issue
fishing licences under the Ontario
Fisheries Regulations
Fisheries Act:
Regulation of Fishing Effort
• Canada's authority over fish and fish
habitat based on sea coast and inland
fisheries authority under Constitution
• Fisheries and Oceans Canada
manages Canada's fisheries under the
Fisheries Act (research, oceanography,
hydrography, small craft harbours)
• Regulations and Ministerial orders to
mitigate the common property problem
in commercial fisheries
Fisheries Act
Regulation of Fishing Effort
• Province-specific regulations under
Fisheries Act regulating type and size
of gear used, vessel length, fishing
times and areas, catch limits, limiting
the number of licenses available to fish,
marketable harvest rights (individual
transferable quotas)
• Fisheries minister has authority to issue
orders to close fisheries (e.g., Pacific
salmon runs)
Collapse of the
Northern Cod Fishery
• Until late 1950s, cod fishery exploited
by migratory seasonal fleets and
resident inshore small scale fishers
• Late 1950s, offshore bottom trawlers
began exploiting stock, leading to large
catch increase, big decline in biomass
• Open fishing ended in 1970s
Collapse of the
Northern Cod Fishery
• Licences to fish required for all fisheries
by end of 1970s
• One fisher could hold licences for
several fisheries
• Licences bought and sold although in
theory were federal property
• No direct control on fisher numbers
• Licences restricted for non-Canadians
Collapse of the
Northern Cod Fishery
• DFO increasing use of conservation
quotas and fishing zones to limit and
allocate catch in 1970s
• Foreign fishing national issue by mid1970s (landings tripled to 600,000
tonnes per year)
• Canada extended fishing limits to 200
nautical miles in 1977, which allowed
reduction in fishing pressure
• Law of the Sea EEZ
Collapse of the
Northern Cod Fishery
• Cod stocks collapsed to low levels in
late 1980s, moratorium declared 1992
• What happened? Scientific stock
assessment models grossly inaccurate
• Scientists that did prophesy disaster
were ignored by DFO officials
• Secretive DFO culture
• Importance of breeding stock ignored
• Canada’s trawler fleet
subsidized
Collapse of the
Northern Cod Fishery
• Minister John Crosbie delayed
moratorium due to industry pressure
• Uncertainty in scientists’ stock
assessments used to justify high quotas
• Increased regulatory efforts and
scientific research failed
• Over 20 years later, cod still at low
levels; fundamental ecological changes
• Tragedy of the Commons?
• Lessons Learned?
Fisheries Act – Protection of Fish
Habitat
• 1977 fish habitat protected under
Fisheries Act based on understanding
that regulating fishing effort not enough
• S.35(1) prohibited harmful alteration,
disruption or destruction of fish habitat
• S.35.(2) provides for ministerial
authorization to destroy habitat (not
project itself)
• If habitat destruction occurs, proponent
may be guilty of offence
Fisheries Act – Protection of Fish
Habitat
• S.35.(2) supplemented by DFO’s “No
Net Loss of Fish Habitat” policy
• Developers/proponents who needed to
harm or destroy fish habitat were
required to replace or mitigate habitat
• A sustainability policy?
• Prior to 2012, CEAA environmental
assessments required before s.35.(2)
authorization could be issued
Fisheries Act – Pollution of Waters
Frequented by Fish
• S.36 creates offence to deposit
deleterious substances into waters
frequented by fish
• Pollution cannot be authorized except
under regulations (Metal Mining Effluent
Regulations, Pulp and Paper Effluent
Regulations)
Bill C-38 Omnibus Budget Bill 2012
• Bill C-38 narrows s. 35 but not s. 36
• “Long-term” amendment creates
prohibition against “serious harm to fish
that are part of a commercial,
recreational or Aboriginal fishery, or to
fish that support such a fishery”
• “Serious harm” is defined as “death of
fish or any permanent alteration to, or
destruction of, fish habitat”
Bill C-38 Omnibus Budget Bill 2012
• What’s the difference?
• Many alterations to fish habitat may be
temporary in nature but have lasting
harm to fish
• Removing vegetation from spawning
stream, adding sediment from road
could wipe out year class of salmon
Bill C-38 Omnibus Budget Bill 2012
• Expands the authorization of harm
• S.142.(1) authorizes harm to fish habitat
caused by certain works, undertakings,
activities prescribed by regulations
• S.142.(1) also provides that harm to
certain Canadian fisheries waters
prescribed by regulations would be
exempt from s.35.(1) prohibition
• Regulations exempt from regulatory
review/publication process
Bill C-38 Omnibus Budget Bill 2012
• Fisheries Act amendments broaden
discretion to remove regulatory controls
for development projects (pipelines, oil
and gas projects, mines)
• Provinces may not be able to fill any
gaps for projects such as pipelines, rail
nuclear facilities, rail lines