Effective November 25, 2013, the long-awaited and controversial amendments to the fisheries protection provisions of the Fisheries Act (the “Act”) are now in force. The accompanying Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations (the “Regulation”) describe the information that must be submitted by a proponent seeking an authorization under the amended Act.
These amendments are regarded as representing a significant shift in the federal government’s approach to fisheries regulation and environmental protection in general. This alert highlights the major changes that anyone involved in activities that may harm or disrupt fisheries needs to be aware of.
From Habitat Protection to Fisheries Protection
The most significant change brought about by the amendments is the change in focus from habitatprotection to fisheries protection.
The Act previously stated that “no person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.”
The Act now states that “no person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.”
The key concept is “serious harm to fish”, which is defined as the death of fish or any permanent alteration to, or destruction of, fish habitat. The new Fisheries Protection Policy Statement (the “Policy”) published by Fisheries and Oceans Canada (the “DFO”) breaks this definition down into its three component parts and states that the DFO will interpret serious harm to fish as including any one of the following:
- the death of fish;
- a permanent alteration to fish habitat of a spatial scale, duration or intensity that limits or diminishes the ability of fish to use such habitats as spawning grounds, or as nursery, rearing, or food supply areas, or as a migration corridor, or any other area in order to carry out one or more of their life processes;
- the destruction of fish habitat of a spatial scale, duration or intensity that fish can no longer rely upon such habitats for use as spawning grounds, or as nursery, rearing, or food supply areas, or as a migration corridor, or any other area in order to carry out one or more of their life processes.
The prohibition against serious harm to fish only applies, however, to fish that are part of one of the three protected classifications of fishery or to fish that “support” fish in these protected classifications (often, but not exclusively, as prey species). The definition of “fishery” remains unchanged under the amendments, and is essentially any area or place where fish are caught. The three protected classifications are defined as follows:
- Commercial – fish is harvested under the authority of a licence for the purpose of sale, trade, or barter;
- Recreational – fish is harvested under the authority of a licence for personal use or sport; and
- Aboriginal – fish is harvested by an Aboriginal organization or any of its members for the purposes of using the fish as food, for social or ceremonial purposes, or for purposes set out in a land claims agreement.
Notably, in discussing the scope of the prohibition against serious harm to fish, the Policy states that “[i]n Canada, most water bodies contain fish, or their habitat, that are part of or support commercial, recreational or Aboriginal fisheries and are therefore subject to the prohibition against serious harm to fish.” Indeed, it appears that water bodies not subject to the prohibition will be the exception, as the policy goes on to state that exempt water bodies will have to be determined on a case-by-case basis.
While habitat protection is reduced and focused on fisheries, the pollution protection provisions remain largely unchanged. However, the Minister has been given new, discretionary regulation making powers to authorize the deposit of deleterious substances of certain classes into particular waters and places, or arising from particular classes of works, undertakings, or activities, and the power to establish conditions regarding the quantity or concentrations of these substances that can be deposited.
Under the amendments, the requirement under the Act to provide plans and specifications only applies where a project will result in serious harm to fish that are part of one of the three protected classifications. There will, though, be special treatment for any projects that impact an “ecologically significant area”. These areas will be established by regulation. Projects in them will be required to provide information on request or as set out by the regulation.
Authorization for projects to impact habitat without contravening the Act was expanded by earlier amendments to allow three different categories of work, undertaking, or activity: (i) those prescribed by regulation; (ii) those authorized by the Minister; and (iii) those authorized by another prescribed person or entity who has been set up to allow authorizations under the regulations. It remains unclear which option will become the most common route for projects.
There are also new statutory factors that must be considered by the Minister when determining whether to approve projects. The purpose of these factors is to provide for the “sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries”. The factors themselves are:
- the contribution of the relevant fish to the ongoing productivity of commercial, recreational, or Aboriginal fisheries;
- fisheries management objectives;
- whether there are measures to avoid, mitigate, or offset serious harm to fish that are part of the protected fisheries; and
- the public interest.
With regard to the third factor, the Policy sets out a hierarchy of measures: avoidance > mitigation > offsetting. Proponents are now required to submit an offsetting plan to demonstrate that the measures and standards will be fully applied to first avoid, then mitigate, and finally offset any residual serious harm to fish that are part of or support commercial, recreational or Aboriginal fisheries. Proponents are also now required to demonstrate that the offsetting measures will maintain or improve the productivity of fisheries.
The Regulation outlines the specific information that must be included as part of any application for an authorization under section 35(2). In addition, the Regulation requires that an irrevocable letter of credit issued by a recognized Canadian financial institution sufficient to cover the costs of implementing the required “offsetting plan” be provided.
The Regulation also sets out timelines for responses by the Minister. In most circumstances, the Minister has 60 days to determine the completeness of an application and another 90 days to either issue or refuse the authorization.
Though many commentators have viewed the amendments as weakening the fisheries protection regime, the penalties for contravention have in fact been increased. Maximum fines are being increased to $1M for individuals and $6M for large corporations. Mandatory minimum fines have also been introduced, along with a “doubling procedure” for repeat offenders.
Existing authorizations will remain valid when the amendments are in force. However, after February 24, 2014, the new offence provision relating to failure to comply with a condition of an authorization begins to apply to all authorizations, including grandfathered authorizations. Holders of existing authorizations have until that date to request a review to determine whether their authorization should remain unchanged, be amended, or is no longer required.
Despite the controversy that has surrounded these amendments since they were introduced back in June 2012 as part of Bill C-38, based on the Policy it appears that fisheries protection will remain relatively comprehensive. There has been a change in emphasis, but the substantive effect of this change remains to be seen. Much depends on the approach adopted by DFO operational personnel and the detailed regulations that are yet to come. Accordingly, future developments in this area deserve close attention.
For further reading, the complete Policy and related links can be found here.