November 14, 2012 - The federal government recently gave first reading to the omnibus Bill C-45, proposing, among other things, to implement changes to the federal Navigable Waters Protection Act (the “NWPA”) and to the federal Fisheries Act. Bill C-45 follows the earlier omnibus Jobs, Growth and Long-term Prosperity Act (the “JGLPA”) enacted earlier this year which introduced significant changes to the Fisheries Act and other federal environmental legislation.
Once enacted, Bill C-45 would (among other things) significantly narrow the scope of the NWPA and create a mechanism for modifying conditions of fisheries authorizations issued under the current, more restrictive, scheme.
Navigable Waters Protection Act
The NWPA regulates the building of various structures which could obstruct the flow of navigation in Canadian waters. It imposes various notification and removal requirements and gives power over approval for the building of various structures in or over these waters to the Minister of Transport. The Act currently applies to all of Canada’s water bodies that support navigation.
This proposed amendment to the NWPA would, among other things, reduce its scope from applying to all of Canada’s water bodies that support navigation to only a listed 97 lakes, 62 rivers and the three oceans touching Canadian shore. Many of Canadian bodies of water would thus be fully or partly excluded from the application of the NWPA.
The proposed amendments to the NWPA would reduce the scope of application of the Act. It remains to be seen whether the Province and municipalities would step in and enact regulations to fill in the gap that would be left by the proposed NWPA amendments.
Bill C-45 proposes transitional provisions to address existing authorizations issued by the Department of Fisheries and Oceans (“DFO”) under sections 32 [killing of fish] and 35 [alteration, disruption and destruction of fish habitat] of the Fisheries Act.
Under the current statutory regime, section 32 of the Fisheries Act prohibits killing of fish by means other than fishing, unless authorized to do so by the DFO. Similarly, section 35 of the Fisheries Act prohibits alteration, disruption and destruction of fish habitat unless authorized to do so by the DFO. The JGLPA had put forward two versions of sections 32 and 35 of the Fisheries Act. The first version (which made minor changes to the pre-JGLPA sections) was enacted on June 29, 2012. The second version (which would repeal section 32 and significantly reduce the scope of section 35) has not yet come into force.
The transitional provisions set out in Bill C-45 stipulate that an authorization issued under pre-JGLPA sections 32 and 35 of the Fisheries Act would continue as valid. Upon request by a holder of an authorization, the DFO would review the authorization and consider if it can be amended or cancelled. The request for such a review must be made within 90 days of the second version of sections 32 and 35 coming into force.
The proposed transitional sections are of significant importance. They would establish a mechanism for those who have conditional authorizations under the current (more restrictive) Fisheries Act to either seek relaxation of such conditions or cancellation of the authorizations as unnecessary in light of the upcoming regulatory regime. The time-lines set out in the transitional provisions are fairly tight – three months from the order in council bringing new sections 32 and 35 into force. Therefore, once Bill C-45 becomes law, those who anticipate benefitting from the transitional provisions set out in Bill C-45 should immediately put in place a system of monitoring the enactment of the remaining sections of the JGLPA.