On November 25, 2013, significant changes to the Fisheries Act come into force. The most significant, and most controversial, change in the legislation is the shift away from “habitat” protection to “fisheries” protection. Fisheries and Oceans Canada (“DFO”) has published a policy, the Fisheries Protection Policy Statement, 2013, and an operational approach, the Operational Approach, which provides guidance and insight with respect to DFO’s interpretation of the new prohibition and authorization process under section 35(2)(b).
In addition, the new Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations (the “Regulations”) will come into force on November 25, 2013. The Regulations outline the requirements for all new authorizations and amendments to existing authorizations.
Before Bill C-38, section 35(2) of the Fisheries Act prohibited harmful alteration, disruption or destruction of fish habitat (“HADD”). On November 25, 2013, the prohibition will change to a prohibition against causing “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery” unless the work, undertaking or activity is prescribed or authorized. Previously, HADDs were prohibited regardless of whether they were temporary in nature or whether the HADD would cause actual harm to fish. Now, the prohibition is focused on protecting “commercial, recreational and Aboriginal fisheries” against “serious harm to fish”. The definition of “serious harm to fish” limits the prohibition against alteration to, or destruction of, fish habitat to permanent alteration or destruction. As before, it remains an offence to kill fish unless previously authorized.
The phrase “serious harm to fish” has been defined as the death of fish or any permanent alteration to, or destruction of, fish habitat. While DFO’s Fisheries Protection Policy is not law, it has clarified the definition of “serious harm to fish” and provided an indication of DFO’s interpretation of the new prohibition. In particular, DFO has indicated that permanent alterations to fish habitat which are of a “spatial scale, duration or intensity” that limit or diminish the ability of fish to use such habitats, directly or indirectly, for their life processes (spawning, nursery, rearing, food supply, and migration) are within the new section 35 prohibition. Permanent destruction of fish habitat which results in fish no longer being able to rely upon such habitats, directly or indirectly, for those life processes is also prohibited by the new section 35 prohibition.
The phrase “commercial, recreational or Aboriginal fisheries” has also been defined in the amendments:
“Aboriginal,” in relation to a fishery, means that fish is harvested by an aboriginal organization or any of its members for the purpose of using the fish as food or for subsistence or for social or ceremonial purposes;
“commercial,” in relation to a fishery means that fish is harvested under the authority of a licence for the purpose of sale, trade or barter; and
“recreational,” in relation to a fishery, means that fish is harvested under the authority of a licence for personal use of the fish or for sport.
Fish which support a commercial, recreational, or Aboriginal fishery are also protected. The Fisheries Protection Policy Statement, 2013 indicates that fish which support a protected fishery are those fish that “contribute to the productivity of a fishery (often, but not exclusively, as prey species)”. Fish that support a protected fishery may reside in water bodies that contain the protected fishery, or in water bodies that are connected by a watercourse to such water bodies.
It remains to be seen whether this new prohibition, with its focus on “serious harm” to “commercial, recreational, and Aboriginal fisheries”, actually limits the application of the Fisheries Act and reduces the regulatory overlap which occurs when both the federal and provincial governments review projects for environmental effects.
EXISTING AUTHORIZATIONS – TRANSITION
HADD authorizations issued under the former Act will remain valid when the amendments come into force on November 25, 2013.
Beginning on November 25, 2013, holders of existing HADD authorizations can apply to the regional DFO office for a review of their authorization to confirm whether it could be amended or be cancelled. An authorization can be amended if certain terms or conditions of the authorization are no longer required in order to comply with the new “serious harm to fish” prohibition. If a project will not cause serious harm to fish, then the authorization could be cancelled after such a review.
Holders of authorizations who seek amendments or changes to their authorizations should be aware that such changes could trigger a duty to consult with potentially affected Aboriginal groups. In addition, to the extent that any terms or conditions of an environmental assessment are included in the authorization, then DFO may be precluded from amending or cancelling the authorization.
The deadline for requesting a review is February 24, 2014. DFO will review the authorization and inform the holder in writing whether it will remain unchanged, be amended, or is no longer required by June 23, 2014.
NEW APPLICATIONS FOR AUTHORIZATIONS
Proponents requiring an authorization after November 25, 2013, or project proponents who need an amendment to an existing authorization, must make their application in accordance with the new Regulations. The new Regulations do not significantly impact the content of the application for an authorization, but the Regulations do codify the information requirements and documentation that must be submitted by an applicant, including:
Description of proposed work, undertaking or activity for all phases of the project, including a description of the purpose of the proposed project;
Project engineering specifications and drawings for proposed physical works in or around water;
Timeline for proposed project, including for particular phases of the project;
Information about the location of the proposed project;
Description of the fish and fish habitat found at the location of the proposed work;
Description of effects on fish and fish habitat;
Avoidance and mitigation measures and standards;
Quantitative description of anticipated serious harm to fish despite avoidance and mitigation measures; and
An offsetting plan.
Applicants will also be required to provide a letter of credit sufficient to cover the cost for implementing all elements of the offsetting plan, including monitoring measures. Applicants should consider providing further information such as a summary of public engagement or consultation with potentially affected Aboriginal groups.
In addition, the new Regulations establish time limits for the processing of applications, subject to particular circumstances which “pause” the timelines including amendments to the application, the involvement of other regulatory agencies, or consultation with Aboriginal groups. Under normal circumstances, the Minister has 60 calendar days to determine if the application is complete or incomplete. From the date that the Minister notifies the applicant that the application is complete, the Minister has 90 calendar days to issue an authorization or notify the applicant that the authorization is denied.
Applications submitted in emergency circumstances will be processed in priority and pursuant to a different form of application.
NAVIGATING THROUGH THE UNCERTAINTY
DFO is developing guidance which it promises will assist external stakeholders with determining whether a project requires a review or authorization and how to avoid or mitigate impact to fish and fish habitat. In particular, DFO is working on guidance identifying:
Marginal Waterbody types which are unlikely to support fish or fish habitat that are part of, or support, a commercial, recreational or Aboriginal fishery;
Sensitive Species and Habitats that are at greater risk of impact to the ongoing productivity of fisheries and which require a site-specific review by DFO; and
A Minor Impacts List identifying impact types and project types that are unlikely to result in effects to the ongoing productivity of commercial, recreational and Aboriginal fisheries where a site-specific review by DFO will not be required.
Further information from DFO on the new fisheries protection provisions can be found here.