Canada: Major Amendments To Fisheries Act In Effect Soon

Much anticipated amendments to the Fisheries Act will come into effect on November 25, 2013. The most substantial of these amendments is the repeal of the prohibition against the harmful alteration or destruction ("HADD") of fish habitat, and its replacement with a new prohibition against "serious harm" to fish and fish habitat. 

HADD authorizations issued under the old Fisheries Act scheme will remain valid; however, some of these authorizations may become redundant. Persons wishing to amend or cancel authorizations issued under old Fisheries Act may apply to the Department of Fisheries and Oceans (the "DFO") by February 24, 2014 to do so. 

This bulletin outlines key changes to the Fisheries Act, which will be law on November 25.

Background

In 2012, the federal government introduced two omnibus budget bills that contained significant amendments to federal environmental laws, including the Fisheries Act. Bull Housser has been tracking these amendments, periodically releasing updates (available: here and here).

Before these recent amendments, the Fisheries Act prohibited the following activities unless authorization was issued in advance:

  1. the destruction of fish or fish habitat
  2. the deposit of deleterious substances in waters frequented by fish
  3. works or undertakings that result in the harmful alteration, disruption or destruction of fish habitat ("HADD") (s. 35(1))

The HADD prohibition has long been used by the DFO as a key tool for regulating projects in and near water. Relying on the HADD prohibition, DFO has required (among other things) that any loss or damage to fish habitat be remediated by habitat compensation (the creation or remediation of an alternative fish habitat). 

Repeal of HADD Provision

Effective November 25, 2013, the HADD prohibition will no longer be part of the Fisheries Act. Instead, the Act will prohibit "serious harm" to fish that are part of a commercial, recreational or Aboriginal fishery, or fish that support one of these fisheries (interpreted by DFO as fish that contribute to the productivity of a fishery (often, but not exclusively, as prey species). The Act defines "serious harm" as death of the fish, or permanent alteration to or destruction of fish habitat. With this amendment, fish habitat will only be protected if the work or undertaking causes a "permanent alteration" or "destruction" of habitat of fish in one of the three protected fisheries (or a fish that supports one of those fisheries). "Harmful alteration" or "disruption", by itself, will no longer trigger a Fisheries Act violation.

A DFO Fisheries Protection Policy Statement (effective November 2013), states that "serious harm" provision will be triggered in any of the following circumstances:

  • the death of 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; and
  • 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.

HADD Authorizations

Effective November 25, project proponents or operators will be responsible for avoiding and mitigating "serious harm" to fish that are part of or support commercial, recreational or Aboriginal fisheries. When proponents are unable to completely avoid or mitigate this harm, the project will normally require a Fisheries Act authorization for the project to proceed.

The Act contains transitional provisions that stipulate that authorizations issued under the previous Act remain valid. However, upon request by a holder of an authorization, the DFO will review that authorization and consider if it can be amended or cancelled. The request for such a review must be made to the DFO by February 24, 2014.

Duty to Report "Serious Harm" and Powers to Require Information

When in force on November 25, the Fisheries Act will also contain a new obligation to report "without delay" unauthorized serious harm to fish. The duty to report the deposit of deleterious substances in waters frequented by fish remains in force.

The Minister also may require the production of plans and specifications for projects that may cause serious harm to fish and to make orders to modify, restrict or close those projects. Anyone proposing to carry on work, undertaking or activity in an ecologically sensitive area must, on request of the Minister or as set out in regulation, provide information on that project to the Minister.

Higher Fines

Penalties for a first conviction under the Fisheries Act will carry a minimum fine of $15,000 for an individual and $500,000 for a large company. Second or subsequent offences have higher penalties.

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.

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