On April 26, 2012, the Canadian federal government tabled, and on June 29, 2012 gave Royal Assent to, an omnibus budget implementation bill, Bill C-38: the Jobs, Growth and Long-Term Prosperity Act (An Act to Implement Certain Provisions of the Budget), which, among other things, will make some important changes to the Fisheries Act.
Bill C-38 was followed by Bill C-45: the Jobs and Growth Act, 2012, another omnibus budget implementation bill to catch items missed in C-38 and to deal with many further legislative changes, including further changes to the Fisheries Act. C-45 was introduced October 18 and given Royal Assent on December 14, 2012.
The Fisheries Act is one of the oldest and most widely-used pieces of legislation for environmental protection in Canada. Bills C-38 and C-45 make some very significant changes to the Fisheries Act, most of which will come into force once regulations are ready, expected in early 2013.
There will be a significant shift from habitat protection to fisheries protection.
The old Act states: no person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.
The changes in Bill C-38 will provide: 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.
Bill C-38 defines “serious harm to fish” as the death of fish or any permanent alteration to, or destruction of, fish habitat. However this will only apply to fish that fall under the three protected classifications: commercial, recreational or Aboriginal fisheries. Cabinet is given the power to exempt fisheries from the protected fisheries, there are new powers available to the Minister to allow habitat impacts from development and projects, and to consider economic factors, including productivity in the fishing industry and the public interest, in issuing approvals for habitat impacts.
Does this mean that habitat protection has been eliminated entirely?
The answer is no…but it will certainly be reduced. The key aspect in the new scheme is “serious harm to fish”. Any damage done to fish habitat must be permanent, and to one of the three protected fisheries, to trigger prohibitions under the revised Act. Temporary damage, or damage to fish habitats that are not part of or support one of the three protected fisheries, will not be prohibited.
In terms of project approvals, once all the changes from Bill C-38 are in force, “red tape” in the project approval process should be reduced as the changes will narrow the scope of when a project approval needs to be conducted.
Furthermore, projects will be able to seek approval specifically to impact fish habitat in three ways: 1) those prescribed by regulation; 2) those authorized by the Minister; and 3) those authorized by a person prescribed or allowed under the various regulations. Ministerial approval will need to take into account not only fish impacts and fisheries management objectives, but also the impact if any on ongoing productivity of commercial, recreational and Aboriginal fisheries (so economic interests), measure to avoid or mitigate serious harm to fish, and the public interest.
Although it appears that parts of the Fisheries Act may have been gutted, there are still plenty of teeth in the Act as fines for contravening the act will be significantly increased. Maximum fines are being increased to $1M for individuals and $6M for large corporations. New and significant mandatory minimum fines are coming in and along with a “doubling procedure” to double fines for a second offence (both the minimums and the maximums) which will mean much higher penalties for violations.
Surprisingly, aspects of enforcement in other federal environmental legislation have not been included for the Fisheries Act. For instance, there are no statutory sentencing principles or statutory aggravating factors (like profiting from a spill) that must be taken into account. There is no designation that all fines go to the Environmental Damages Fund and no public registry for offences. Furthermore, there is no notification requirement for corporations to alert their shareholders upon an offence. It would not be surprising to see these changes made to the Fisheries Act at a later date.
Bill C-45 also replaces the Navigable Waters Protection Act with the Navigation Protection Act. It is focussed on protecting navigation and the flow of commerce more than the water in which that navigation occurs. The new Navigation Protection Act no longer covers all navigable waters in Canada; it applies only to listed bodies of water which includes 62 rivers, 3 oceans and 97 lakes.
Bill C-38 and Bill C-45 have introduced important changes to the Fisheries Act and environmental protection in general. Developers, business people and Canadians should be cognizant of how these changes will affect them, the community around them, and the environment as a whole.