Document Information

Date: 1980-09-08
By: Secretariat of the Conference
Citation: Federal-Provincial Conference of First Ministers, Report of the Continuing Committee of Ministers on the Constitution to First Ministers, Fisheries, Doc 800-14/ (Ottawa: 8-12 September 1980).
Other formats: On order.

DOCUMENT: 800-l4/
CONFIDENTIAL

FEDERAL-PROVINCIAL-CONFERENCE
OF
FIRST MINISTERS

Report of the Continuing Committee of Ministers
on the Constitution to First Ministers

FISHERIES

Ottawa
September 8-12, 1980

FISHERIES

Issues for Consideration by First Ministers

The Ministers believe that the following issues require
the consideration of First Ministers:

Inland fisheries, Marine Plants, Aquaculture and
Sedentary Species .

1. Should the federal government continue to exercise
exclusive jurisdiction over all aspects of inland
fisheries for an anadromous species (e.g. salmon)?

2. It is necessary for conservation purposes for the
federal government to continue to exercise exclusive
jurisdiction over marine plants?

3. To what extent is it necessary for the federal
government to exercise jurisdiction for the protection
of fish habitat?

4. What is the appropriate way for provision to be made
for native peoples’ fisheries?

Sea Coast Fisheries

1. Should there be concurrent jurisdiction over sea coast
fisheries or should exclusive federal jurisdiction
continue?

General

1. Regardless of possible changes in jurisdiction, is it
appropriate to make constitutional provision for mandatory
consultation in fisheries matters?

Overview Discussion

Regarding inland fisheries, aquaculture, marine plants
and sedentary species two formulations for amendment of the
British North America Act have emerged.

The first, supported by nine provinces, would make
these matters subject to exclusive provincial jurisdiction.
Most provinces would accept that the Government of Canada would
retain a paramountcy regarding certain matters related to the
conservation of anadromous fish stocks.

The second, supported by the Government of Canada
and Nova Scotia, would make inland fisheries, aquaculture and
sedentary species matters subject to exclusive provincial
jurisdiction except that the Government of Canada would retain
exclusive jurisdiction over anadromous species. The Government
of Canada would also wish provision to be made, regarding
protection of fish habitat in interprovincial and international
waterways, waters frequented by anadromous species, and provision
for native peoples’ fisheries. The Government of Canada would
also maintain exclusive jurisdiction over marine plants.

The alternative formulations appear as Appendix I.

A draft of a new section 92.1, prepared by the federal
government, was tabled for discussion purposes. This draft
incorporates (with minor variation) the formulations to which
reference is made above and also includes formulations which
attempt to meet the previously expressed concerns of the
Government of Canada regarding protection of fish habitat and
provision for native peoples’ fisheries.

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Ministers reviewed these draft formulations and
some provinces found unacceptable the formulation for the
protection of fish habitat.- All provinces expressed the desire
to seek further advice regarding the formulation providing for
native peoples’ fisheries before commenting.

A copy of the federal proposal is attached (Appendix
III) for the information of First Ministers.

Regarding sea coast fisheries. nine provinces support
the fundamental proposition that.there should be, at least,
concurrent jurisdiction in this area.

The Government of Canada and Nova Scotia maintain that
this area should remain under exclusive federal jurisdiction.
The best efforts’ draft of Vancouver (830-83/014) remains, in
the opinion of most provincial ministers, susceptible to promo-
ting the broad provincial concensus, which the federal government
indicated in the Toronto meetings, necessary for consideration
of the proposal by the federal government.

This draft appears as Appendix II.

Ministers also considered the federal proposal
concerning mandatory consultation in fisheries. The federal
government explained that this proposal should be considered
as a response to expressions of provincial concern regarding
the adequacy of existing consultative mechanisms. As such,
it could be included in any disposition made on the question
of fisheries jurisdiction. The proposal does not intend to
address that question. Most provinces, while
supporting the necessity for consultation, indicated that
the proposal, by itself, could not be considered an acceptable
response to the proposals advanced by provinces regarding
fisheries jurisdiction.

Issues for Consideration by First Ministers

The Ministers believe that the following issues require
the consideration of First Ministers:

Inland Fisheries, Marine Plants, Aquaculture and
Sedentary Species

1. Should the federal government continue to exercise
exclusive jurisdiction over all aspects of inland
fisheries for an anadromous species (e.g. salmon)?

2. It is necessary for conservation purposes for the
federal government to continue to exercise exclusive
jurisdiction over marine plants?

3. To what extent is it necessary for the federal
government to exercise jurisdiction for the protection
of fish habitat?

4. What is the appropriate way for provision to be made
for native peoples’ fisheries?

Sea Coast Fisheries

1. Should there be concurrent jurisdiction over sea coast
fisheries or should exclusive federal jurisdiction
continue?

General

1. Regardless of possible changes in jurisdiction, is it
appropriate to make constitutional provision for mandatory
consultation in fisheries matters?

BEST EFFORTS DRAFT
Appendix 3

Amendment
Alternative Formulations
Regarding Inland Fisheries, Marine Plants
and Sedentary Species

Supported by
Nine Provinces

92.1(1) The legislature of each
province may exclusively
make laws in relation to:

a)inland fisheries in the
non tidal waters of the
province;

b) marine and aquatic plants1
in the non tidal waters
of the province and in
tidal waters in or ad-
jacent to the province 1;

c) sedentary species in tidal
waters in or adjacent to
the province;

d) aquaculture within the
province and in tidal
waters or adjacent to the
province that is not
included in either a), b)
or c);

(2) Notwithstanding paragraph
1(a) the Parliament of Canada
may make laws in relation to
the determination of total
allowable catches for adrom-
ous species in non tidal waters
and their allocation between
provinces and any such law
shall be paramount.

Supported by
Federal Government and
One Coastal Province

The Legislature of each province
may exclusively make laws in
relation to:

a) inland fisheries in the non
tidal waters in the province.

c) sedentary species in tidal
waters in or adjacent to the
province;

d) aquaculture within the province
and in tidal waters or adjacent
to the provinces that is not
included in either a) or c);

Notwithstanding paragraph 1(a) the
Parliament of Canada may exclusive-
ly make laws in relation to sea
coast and inland fisheries for
adrmous species.

Comment

(1) The Federal government would also wish provision to be made for the protection of the fish habitat and native people’s fisheries.

Notes

1 Requires definition.

BEST EFFORTS DRAFT

Appendix II

Amendment Regarding Sea Coast Fisheries

(a) Section 9l(l2) of the British North America Act would be
repealed.

(b) A separate section in the British North America Act, in the
following terms, would be enacted.

95A (1) With respect to fish stocks adjacent to each province
(as defined in subsection (5) below), the Legislature may
make laws relative to the sea.coast fisheries but any law
covering those matters set out in subsection (3) shall have
effect in and for the province so long as they are not repugm
nant to any Act of the Parliament of Canada made under
subsection (2).

(2) The Parliament of Canada may make laws relative to
the sea Coast fisheries but any law covering those matters
set out in subsection (4) shall have effect in and for any
or all of the provinces so long as they are not repugnant to
any Act of the Legislature of a province made under subsection.
(1).

(3) The matters referred to in subsection (l) are:

(a) fixing parameters for the total allowable catch for
stocks;

(b) the allocation of quotas to foreign countries and the
licensing of foreign vessels;

(c) conservation of fish stocks.

(4) The matters referred to in subsection (2) are:

(a) fixing the level of catch within the parameters referred
to in subsection (3) (a) and the issuance of quotas up
to the level so fixed;

(b) licensing of fishing vessels other than foreign vessels
taking fish from the residual quota;

(c) all matters not referred to in this subsection and
subsection (3).

Appendix II

p.2
— continued —

(a) The allocation of the fish stocks adjacent to each Province
shall be determined by agreement between the Provinces
in accordance with equitable principles taking account
of all relevant information including traditional
fishing patterns.

(b) If no agreement can be reached within a reasonable
period of time, the Provinces concerned shall refer the
particular matter in dispute for expeditious
arbitration.

Appendix III

Draft Amendment to Section 92.1
Submitted By
the Federal Government

FOR DISCUSSION PURPOSES ONLY

CONFIDENTIAL

DISCUSSION DRAFT TABLED BY
GOVERNMENT OF CANADA OFFICIALS

1. Class 12 of section 91 of the British North America
Act, 1867, as amended, is repealed and the following substituted
therefor:

“l2.Sea coast fisheries except those
assigned exclusively to the legislatures
of.the provinces by subsection 92.l(l).”

2. The said Act is further amended by adding thereto
immediately after section 92 thereof the following heading and
sections:

Fisheries
powers of
provinces

“92.1(1) The legislature of a province may ex-
clusively make laws in relation to

(a) fisheries in waters within the province
other than tidal waters;

(b) sedentary species in waters within or
adjacent to the provinces; and

(c) aquaculture within or adjacent to the
province.

Exception for
anadromous
species

(2) Notwithstanding paragraph (1)(a),
Parliament may exclusively make laws in relation
to sea coast and inland fisheries for anadromous
stocks that migrate to sea.

Protection, etc.
of fish habitat

(3) Notwithstanding subsection (1),
Parliament may make laws for the protection and
enchancement of fish habitat in all tidal waters
and in:

(a) the waters of lakes, rivers and canals

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extending beyond the limits of any one
province; and

(b) inland waters that provide a spawning
ground or habitat for anadromous stocks that
migrate to sea.

Paramountcy
(4) A law made under subsection (2) or (3)
prevails over a law made under subsection (1) to the
extent of any inconsistency.

Definitions
(5) In subsection (1),
“Aquaculture”
“aquaculture” means operations in which
fish or other marine or aquatic organisms are
raised for harvest in an artificially enclosed
space;

“Sedentary species”
“sedentary species” means marine animals
which, at the harvestable stage, either are
immobile on or under the seabed or are unable
to move except in constant physical contact
with the seabed or the subsoil, but for
greater certainty does not include crabs,
lobsters or scallops;

“adjacent to the
province”
“adjacent to the province” means geographical
limits to be determined re sedentary species
and aquaculture.

Indian fishing
rights
92.1(1) Indians have the right to fish for food
throughout the year for their personal and community
use, both in the province in which they reside and in
any other areas to which an Indian treaty applicable to
then applies, on all unoccupied Crown lands and on any
other lands to which they may have a right of access,
subject to provincial conservation laws that are
reasonably necessary to secure to them a continuing
supply of fish for this purpose.

limitation
(2) Subsection (1) does not apply where the
right described therein has been expressly surrendered by
treaty.

-3-

rights

(3) Nothing in subsection 91) derogates from our
diminishes any other right enjoyed by Indians,
whether under treaty or otherwise.”

Fisheries
consultation

xx The minister of the government of Canada
responsible for fisheries and a minister designated
by each provincial government shall consult together
at least once in every year, either bilaterally or
on a regional basis, on the formulation, coordination
and implementation of policies and programmes of the
government of Canada respecting fisheries and
provincial policies and programmes significantly
affecting fisheries.

xxx The Schedule to the British North America Act,
1930 is amended by:

(a) in portion (1) relating to Manitoba, deleting
section 10 thereof and deleting in section 13 the
words ‘and fish” and “and fishing” wherever they
appear therein;

(b) in portion (2) relating to Alberta, deleting
section 9 thereof and deleting in section 12 the
words “and fish” and “and fishing” wherever they
appear therein; and

(c) in portion (3) relating to Saskatchewan,
deleting section 9 thereof and deleting in section 12
the words “and fish” and “and fishing” wherever
they appear therein.