Federal Bills C-38 and C-45, both of which received royal assent in 2012, made several noteworthy changes to the Fisheries Act, including:
- amendment to s. 35 of the Act such that rather than prohibiting harmful alteration, disruption or destruction of fish habitat (HADD), there will be a prohibition against carrying out works or activities that result in “serious harm” to fish (defined as the “death of fish or any permanent alteration to, or destruction of, fish habitat”) that are part of a commercial, recreational or Aboriginal fishery;
- the conferral of broad powers under to the Governor in Council to create regulations exempting classes of works or activities from the s. 35 “serious harm” prohibition, which should reduce the number of s. 35(2) authorizations that are required for resource developments;
- an increase in the penalties under s. 40 of the Act to unprecedented levels, including a minimum of $1 million and a maximum of $12 million fine per offence; and
- an overall shift in the focus of the Act from managing all fish to only those that form part of an identified fishery.
On November 6, 2013, an Order in Council was issued announcing that the above changes will come into effect on November 25, 2013.
New regulations were also released on November 6, 2013 to provide guidance on applications under s. 35(2). Under these new regulations, applications for authorizations under s. 35(2)(b) must include specific details, such as: (i) specifications of the proposed work or undertaking; (ii) a description of the fish or fish habitat to be impacted; (iii) the details of a plan to implement measures to offset the contemplated harm (referred to as an “offsetting plan”); and (iv) a letter of credit to cover the costs of implementing the offsetting plan. Ministerial decisions on s. 35(2)(b) applications are expected within five to eight months. Note, however, that this timeframe may be extended where consultation is required before an authorization can be issued.
The Minister will be required to consider the factors set out under s. 6 of the Act (which will also come into effect on November 25) when considering whether to issue a paragraph 35(2)(b) authorization. These factors include:
- the contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries;
- fisheries management objectives;
- whether there are measures and standards to avoid, mitigate or offset serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or that support such a fishery; and
- the public interest.
The Act expressly states that the purpose of considering these factors is to “provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.”
The above changes to the Fisheries Act represent a fundamental shift in the focus and scope of the Act that could have significant implications for resource development. However, there remains considerable uncertainty in how these new provisions will be applied by the Department of Fishers and Oceans Canada (DFO). We expect to see additional regulations and guidance documents from DFO in the coming months to provide clarification on the above changes.