On November 25, 2013, important modifications to the Fisheries Act (the “Act”) entered into force further to the adoption, in June 2012, of the Jobs, Growth and Long-term Prosperity Act1 (the “Amending Act”). These amendments substantially modify the fish habitat protection regime provided for by the Act, in particular at article 35.
In general, this protection regime henceforth aims to protect and maintain commercial, recreational or Aboriginal fishery in Canada. In this context, Fisheries and Oceans Canada (“FOC”) has published new administrative documents:
A Fisheries Protection Policy Statement,2 the purpose of which is to provide guidance and direction on how the Act will apply;
A Fisheries Protection Program Operational Approach3, which outline the approach by which the new provisions of the Act will be administered and the way in which the new Fisheries Protection Program will be implemented;
The Guidance for the Application of the Transitional Provisions for Ministerial Authorizations4; and
A Proponent’s Guide to Offsetting5, which lists the guidelines with respect to the measures to take in order to offset the serious harm caused to fish that are part of commercial, recreational, or Aboriginal fisheries, or that support such a fishery in order to help proponents of works, undertakings or activities, existing or proposed, that are susceptible to cause serious harm to fish.
Note that certain amendments to the Act regarding the prohibition of discharging specific waste, materials and substances have already been in force since June 29, 2012. In addition, it should be noted that other amendments also came into force on November 25, 2013 (for example, to fishways at article 20, to the prohibition to kill fish at article 32 and to the designation of inspectors at article 38), but the latter are not addressed in this text.
- “Fisheries protection”
In order to better define the fish that will now be protected by the Act, the following definitions have also come into force:
- Commercial fishery: “means that fish is harvested under the authority of a licence for the purpose of sale, trade or barter”;6
- Aboriginal fishery: “means that fish is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Aboriginal organization”;7 and
- Recreational fishery: “means that fish is harvested under the authority of a licence for personal use of the fish or for sport”.8
The general prohibition at article 35, which is the primary legal basis of the Act, states that:
“35(1) 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.
(2) A person may carry on a work, undertaking or activity without contravening subsection (1) if
a) the work, undertaking or activity is a prescribed work, undertaking or activity, or is carried on in or around prescribed Canadian fisheries waters, and the work, undertaking or activity is carried on in accordance with the prescribed conditions;
b) the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister;
c) the carrying on of the work, undertaking or activity is authorized by a prescribed person or entity and the work, undertaking or activity is carried on in accordance with the prescribed conditions;
d) the serious harm is produced as a result of doing anything that is authorized, otherwise permitted or required under this Act; or
e) the work, undertaking or activity is carried on in accordance with the regulations.”
This article will no longer focus on the “alteration”, “disruption” and “destruction” of fish habitat by the carrying on of work or an undertaking, but rather on the “serious harm to fish that are part of a commercial, recreational, or Aboriginal fishery”9 caused by a work, undertaking or activity that is not authorized by the Act.
Serious harm to fish is defined in the Act as harm causing “the death of fish or any permanent alteration to, or destruction of, fish habitat”10 According to the Fisheries Protection Policy Statement, FOC interprets this expression as meaning:
- the death of the 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.
- FOC Authorizations
The amendments brought to article 35 of the Act affect existing authorizations and new authorizations, as well as the information to be provided to FOC.
Authorizations granted by FOC prior to November 25, 2013, permitting the carrying on of a work, undertaking or activity that results in the alteration, disruption or destruction of fish habitat are deemed to be authorizations granted under article 35(2) despite the change to the protection regime.
However, the holder of such an authorization will have until February 24, 2014 to request that its authorization be reviewed by FOC. This procedure may be particularly relevant for corporations whose authorization or conditions thereof are outdated. As reissuing an authorization under the regime requires the reassessment of the file, there is however a risk that, in some cases, new conditions may be imposed by FOC. Additional details can be found in the above mentioned Guidance4.
Authorization under article 35(2)(b) is required if, after review of the documents transmitted by the proponent to FOC, it is determined that the project will cause serious harm to fish that are part of a commercial, recreational or Aboriginal fishery. Before granting an authorization, the new provisions of the Act dictate that FOC take certain factors into account, including (i) the importance of the relevant fish to the ongoing productivity of commercial, recreational and Aboriginal fisheries; (ii) fisheries management objectives; (iii) 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 (iv) the public interest.11
The authorization contemplated at article 35(2)(b) of the Act is also the subject of the new Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations12 that also came into force on November 25, 2013. This Regulation includes details of the information and documents that must be provided within the context of an authorization application, particularly for applications aimed at emergencies. It also lays out certain provisions with respect to processing the application. A Guide13 for submitting authorization applications under subparagraph 35(2)(b) of the Act is also available on the FOC website.
Information to be submitted to FOC
When a proponent is planning a project that may result in serious harm to fish that are part of one of the fisheries above, that proponent shall, at the FOC’s request, or in some cases, upon its own initiative, provide FOC with plans, specifications, studies, samples and other information that will enable FOC to determine if the project is likely to cause such harm and what measures must be taken to prevent or mitigate such harm.14
If, after reviewing the information and after affording the persons concerned an opportunity to make representations, FOC is of the opinion that an offence is being or is likely to be committed, it may, by order, require any modifications to the project or restrict, or even order the closing of the work or undertaking or the termination of the activity for any period that FOC considers necessary.
- Stricter penal regime
New rules with respect to penal sanctions will henceforth be in force in cases of non-compliance with regulations concerning the protection of the fish habitat and pollution prevention.
The new penal regime that shall enter into force differs substantially from the one that prevailed until now.15 There will be three categories of offenders: individuals, corporations and corporations that the court has determined to be a “small revenue corporation”. A court may make such a declaration if it is convinced that the corporation’s gross revenues did not exceed C$5 million for the year preceding the offence.
In addition, except for certain offence, there will now be a minimum amount for fines, from C$5,000 to C$15,000 for an individual and from C$100,000 to C$500,000 for a corporation. The maximum fines have also been increased, for a first offence, up to a maximum of C$1 million for an individual and up to C$6 million for a corporation. Minimum and maximum penalties have also been contemplated for small revenue corporations. These amounts vary depending on the nature of the offence and whether it is on summary conviction or on conviction on indictment.
For a repeated offence, individuals are liable to imprisonment for a term not exceeding three years16 and fines are doubled.
It is therefore important that proponents make note of the amended regulations with respect to the authorizations required under the Act and, given the numerous new administrative documents developed by the FOC, it will be important to follow the administrative implementation of the changes made to the Act. In addition, proponents who already have authorizations will have to make the required verifications in order to determine whether they will be obliged to have these authorizations reviewed by the FOC. Given the serious consequences of contravening the Act, proponents will have to ensure that they have a good understanding of the new fisheries protection regime in order to consider and plan their projects in consequence.