Canada: Bill C-38 Fisheries Act Changes: Jobs Growth And A Little Gutting Of The Act

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.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions