In 2012, several significant changes were made to the Fisheries
Act (the Act) and more were announced but are not yet in force.
In 2013 we have seen some draft regulations and policy
announcements giving some sense of direction but leaving many
questions unanswered. The new amendments, once fully implemented,
will impact the Act's purpose, its language, and the approval
process for future projects.
Some major changes to and coming to the Act include:
i. a shift in the Act's focus from protecting all fish
habitat to protecting the productivity of three specific fisheries
(commercial, aboriginal, and recreational), the fish that support
those fisheries and their associated habitats;
ii. a new broad goal of "making sure [the three types of
fisheries] are productive and sustainable for future
iii. a definition of "serious harm to fish" limited
to the permanent alteration to, or destruction of, fish habitat and
applying only to the three protected fisheries and the fish that
support them; and
iv. a new duty to report harm to habitat where an unauthorized
occurrence results in serious harm to fish that are part of the
three protected fisheries and the fish that support them.
The Act will provide for new mechanisms to obtain project
approval. Projects will be able to be approved as prescribed by
regulation, as authorized by the Minister, or as authorized by
another entity that has been set up to allow authorizations on
behalf of the Minister. Project approval conditions will be
enforceable: a violation of the conditions imposed by the project
approval authority will be an offence.
The Act's existing section 35 project approval process will
remain available but there will be an expanded requirement to
provide plans and specifications. These requirements are extensive
and may well impact the cost and timing of approvals. New statutory
factors will be a mandatory requirement, considered for every
project approval, focusing on the ongoing productivity of
commercial, recreational or aboriginal fisheries. These factors
the contribution of the fish impacted by the project to the
ongoing productivity of commercial, recreational or Aboriginal
fisheries; fisheries management objectives which means the
socioeconomic, biological and ecological goals of the relevant
fishery; measures by the project to avoid, mitigate or offset
serious harm to fish; and the public interest. Submissions for
approval will need to address all these factors.
Although not yet clear since the regulations are still under
development, these project approval mechanisms and approval
factors, along with
the government's announced intent of fewer submissions and
fewer permits, suggest that economic factors such as jobs and the
to the local economy may come into play for getting project
approval. However, the policy announcements by Department of
Fisheries and Oceans (DFO) would suggest the bureaucracy is
resisting these changes. This perhaps explains the long delay, now
15 months, in bringing the major changes into force.
DFO has indicated it is moving towards becoming a centralized
agency and away from permitting or approving smaller projects on a
project by project basis. Rather, it is developing broader
standards and guidelines. These will hopefully streamline the
review process and reduce the number of projects requiring approval
Project proponents and developers must however continue to be
vigilant, both in this time of transition and when the new scheme
is fully in place, since there will be an increased emphasis on
self-reliance, apparently a reduced presence by DFO to provide
assistance, and increased penalties in the statute should
enforcement action be warranted.
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
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