Over a year and half after being introduced into Parliament, the sweeping changes to the Fisheries Act under Bill C-38, the Jobs, Growth and Long-term Prosperity Act, are being brought into force. The controversy over the changes will now be replaced with uncertainty over interpretation and implementation, and what these really mean for operations impacting fish and fish habitat.
Fisheries and Oceans Canada (the DFO) has posted a new Fisheries Protection Policy (the Policy) and an Operational Approach, which together are intended to help the department and the public "prepare for the upcoming changes". This coincides with an order from the Governor in Council setting November 25, 2013 as the in-force date of the changes to the Act which remain outstanding. The policy documents confirm the DFO's view that the application of the Fisheries Act protection of fish and fish habitat to Canada's coastal and inland waters has not dramatically changed. What has changed is the manner in which the DFO will approach its oversight of activities impacting fish and fish habitat, which has the potential to streamline the current regulatory process. How successful that streamlining is may depend upon the comfort level of the DFO operational personnel and proponents of activities potentially impacting fish and fish habitat, with what is intended to be a more hands-off approach by the federal regulator.
In addition, the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations, which set out the information requirements for authorizations, along with timelines for the DFO review, are now in force.
The changes to the Fisheries Act proposed in Bill C-38 were discussed in our May 2012 and July 2012 Blakes Bulletins. Key changes are the replacement of sections 32 and 35 with a new section 35 and expanded enforcement powers.
NEW SECTION 35 PROHIBITIONS
The prohibitions on killing fish and causing harmful alteration, disruption or destruction of fish habitat (HADD) in sections 32 and 35 of the Fisheries Act have been replaced with a single 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. This change has been the most controversial of the amendments under Bill C-38, with many commentators suggesting it means that all of the fish habitat Canada would no longer be protected, and that the protection of waters that do fall under this prohibition would no longer be as comprehensive. The interpretation of the changes in the Policy suggests this is not the view of the ministry charged with enforcing it.
Crucial to understanding the extent and scope of the new section 35 prohibitions, are the definitions of "serious harm to fish" and "commercial, recreational and Aboriginal fisheries".
Serious harm to fish is defined as "the death of fish or any permanent alteration to, or destruction of, fish habitat". Thus, the former prohibition on killing fish is essentially unchanged, but the former prohibition of HADD no longer includes harmful disruption or alteration that is not permanent. The Policy sets out the DFO's view of the following three components of serious harm to fish:
- 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
- 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.
Applying these to specific situations may be challenging and, in particular, the second component may not be easily understood. What does appear to be clear, is that the DFO does not view serious harm to fish as being significantly different from HADD. What is also clear is that the determination of whether actual activities on the ground violate the prohibition will be very reliant upon the opinion of scientists acting on behalf of the DFO, project proponents and other interested parties. Ultimately of course, it will be up to the courts to determine if this interpretation of the prohibition is reasonable.
Also key to the scope of the prohibition are the definitions in the Act of what constitutes "commercial, recreational or Aboriginal fisheries" and "fish that support such fisheries", and how much these result in a narrowing of the applicability of the prohibitions across the country.
It is important to note the federal government's constitutional authority to regulate impacts to fish and fish habitat flow from its powers under the Constitution Act, 1867 over "coastal and inland fisheries". Canadian courts have confirmed, more than once, that these powers are limited to fisheries, as a resource, and do not mean the federal government has the power to regulate over all fish or fish habitat in Canada. In this respect, the new prohibitions are, to some extent, a codification of that which already exists at law.
The Policy sets out the government's view of the applicability of the prohibition to Canadian water bodies, based primarily upon the two following interpretations:
- Commercial, recreational or aboriginal fisheries. Those fish that fall within the scope of applicable federal or provincial fisheries regulations as well as those that can be fished by aboriginal organizations or their members for food, social or ceremonial purposes or for purposes set out in a land claims agreement.
- Fish that support fisheries. Fish that contribute to the productivity of a fishery and may reside in bodies of water that contain fisheries or in water bodies that are connected by a watercourse to such water bodies.
Ultimately, the DFO concludes that most bodies of water in Canada contain fish or their habitat that are part of or support commercial, recreational or aboriginal fisheries and are therefore subject to the prohibition against serious harm to fish. However, the Policy also recognizes that not all water bodies in Canada will contain one or both of these, and thus the determination of applicability of the section 35 prohibition to particular water bodies will need to be made on a case-by-case basis. It is the proponent, not the DFO, who is expected to make this determination when considering activities which have the potential to impact water.
Once it has been determined that an activity has the potential to cause serious harm to fish that are part of or support a fishery, the next question will be whether that activity will need authorization by the DFO. The Policy sets out a hierarchy of goals for undertaking activities that may cause serious harm to fish – avoid, mitigate or offset – and contains a discussion of what the DFO considers these three terms mean. However, only the third circumstance – offsetting – requires authorization under the Act. Thus, mitigation of impacts is considered sufficient to not warrant authorization. While the Policy does not specifically state it, this must logically mean the DFO considers mitigation means there will not be serious harm to fish and the prohibition will not apply and thus an authorization will not be needed.
Other questions are: what constitutes sufficient mitigation and how much direction or confirmation of the sufficiency of mitigation measures will be coming from the DFO itself? For a number of years, the DFO has been issuing letters of advice regarding proposed mitigation measures in circumstances where there was a potential HADD. Will this still occur, or are proponents on their own in determining whether mitigation measures will be sufficient to ward off allegations of non-compliance with the Act? According to the Operational Approach, the answer to these questions is that proponents are expected to make that determination themselves, using DFO's materials as guidance and their own experts in the field. Provided the DFO is prepared to accept the opinion of third-party experts, this is likely the key factor in streamlining the regulatory process for undertaking works impacting fisheries waters. It also may be the first aspect of this new regime which results in disputes before the courts.
For those projects that cannot be mitigated sufficiently, proponents will be required to submit an offsetting plan to the DFO in support of an application for authorization, which proposes offset measures to maintain or improve the productivity of the fisheries. The Policy also sets out details on what proponents must identify when a project is likely to cause serious harm to fish and how applications are to be made.
The amendments to the Fisheries Act included grandfathering provisions for existing sections 32 and 35 authorizations. Under these provisions, authorizations issued prior to November 25, 2013 will be valid authorizations under the new prohibitions in section 35, and thus will protect an entity from committing an offence under the amended Act. However, the amendments that came into force in July 2012 also included a new offence for failure to comply with an authorization. The application of this offence does not apply to existing authorizations until February 24, 2014, after which date compliance with the Fisheries Act will require complete compliance with all of the conditions in the existing authorizations.
Holders of existing authorizations may request the DFO to review them to determine if they are still required, or need amending. Such requests must be made before February 24, 2014. Entities with existing authorizations that believe they will no longer be needed under the amended Act may wish to consider submitting them to the DFO for a review prior to this date. A review may also be considered if the conditions in the existing authorizations are no longer practical and compliance with them is problematic. However, proponents must also be cautious, as such a review could result in a new set of conditions being imposed. Such decisions should therefore be made after discussion with both technical experts and legal counsel.
CHANGES TO ENFORCEMENT POWERS
The amendments to the Fisheries Act also include expanded enforcement powers, some of which came into force in July 2012, and some of which will come into force on November 25, 2013. This second category were discussed in detail in our July 2012 bulletin, and include: substantially higher maximum fines, and new minimum fines, for violations of sections 35 and 36; expanded duty to report and take corrective measures when there is an unauthorized killing of fish; and removal of the requirement for the federal cabinet to approve an order from the Minister to require modifications to, or restriction of, works and activities, or to shut them down altogether.
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.