On April 10, 2014, the federal cabinet granted the Minister of Fisheries and Oceans the power to issue regulations allowing certain deposits of deleterious substances, provided they are authorized under other federal or provincial laws or guidelines. This may turn out to be one of the most significant actions arising from changes made to the Fisheries Act in 2012.

The Fisheries Act contains a broad prohibition on the deposit of deleterious substances in fish-bearing waters across Canada. One of the challenges with this provision has been the inability to obtain authorizations for activities which caused deposits, even under stringent conditions. This was because the narrow language in the statute effectively only provided for authorizations under industry-specific regulations, such as for the pulp and paper and mining sectors.

With this new government initiative, the minister may issue regulations recognizing instruments (such as permits, regulations or guidelines) issued under other federal or provincial legislation, as also authorizing the deposit of deleterious substances under the Fisheries Act. There are conditions to the exercise of this power, including:

  • The other instruments are enforceable
  • The substance being deposited is not acutely lethal to fish when measured in the deposit or in the receiving waters
  • The receiving waters remain in compliance with the Canadian Water Quality Guidelines for the Protection of Aquatic Life or other similar guidelines that have been adopted by a provincial or federal body
  • The effects of the deposit on fish and fish habitat have been evaluated

The Regulations Establishing Conditions for Making Regulations Under Subsection 36(5.2) of the Fisheries Act effectively pave the way for the authorization of deposits into fish-bearing waters through reliance upon existing provincial permits, regulations or guidelines. The streamlining potential impact of these regulations cannot be overstated. All of the provinces have mechanisms for permitting deposits into fish-bearing waters under prescribed conditions, which in many cases are likely to already meet the conditions required under the new regulations or could do so with fairly minimal changes. The new regulations provide the potential for industries which are permitted to deposit substances under provincial regulations or permits to also meet the requirements of the Fisheries Act, without the need for additional federal regulatory instruments.