Federal Bills C-38 and C-45, both of which received royal assent
in 2012, made several noteworthy changes to the Fisheries Act,
amendment to s. 35 of the Act such that rather than prohibiting
harmful alteration, disruption or destruction of fish habitat
(HADD), there will be a prohibition against carrying out works or
activities that result in "serious harm" to fish (defined
as the "death of fish or any permanent alteration to, or
destruction of, fish habitat") that are part of a commercial,
recreational or Aboriginal fishery;
the conferral of broad powers under to the Governor in Council
to create regulations exempting classes of works or activities from
the s. 35 "serious harm" prohibition, which should reduce
the number of s. 35(2) authorizations that are required for
an increase in the penalties under s. 40 of the Act to
unprecedented levels, including a minimum of $1 million and a
maximum of $12 million fine per offence; and
an overall shift in the focus of the Act from managing all fish
to only those that form part of an identified fishery.
On November 6, 2013, an Order in Council was issued announcing
that the above changes will come into effect on November 25,
New regulations were also released on November 6, 2013 to
provide guidance on applications under s. 35(2). Under these
new regulations, applications for authorizations under s. 35(2)(b)
must include specific details, such as: (i) specifications of the
proposed work or undertaking; (ii) a description of the fish or
fish habitat to be impacted; (iii) the details of a plan to
implement measures to offset the contemplated harm (referred to as
an "offsetting plan"); and (iv) a letter of credit to
cover the costs of implementing the offsetting plan.
Ministerial decisions on s. 35(2)(b) applications are expected
within five to eight months. Note, however, that this
timeframe may be extended where consultation is required before an
authorization can be issued.
The Minister will be required to consider the factors set out
under s. 6 of the Act (which will also come into effect on November
25) when considering whether to issue a paragraph 35(2)(b)
authorization. These factors include:
the contribution of the relevant fish to the ongoing
productivity of commercial, recreational or Aboriginal
fisheries management objectives;
whether there are measures and standards to avoid, mitigate or
offset serious harm to fish that are part of a commercial,
recreational or Aboriginal fishery, or that support such a fishery;
the public interest.
The Act expressly states that the purpose of considering these
factors is to "provide for the sustainability and ongoing
productivity of commercial, recreational and Aboriginal
The above changes to the Fisheries Act represent a
fundamental shift in the focus and scope of the Act that could have
significant implications for resource development. However,
there remains considerable uncertainty in how these new provisions
will be applied by the Department of Fishers and Oceans Canada
(DFO). We expect to see additional regulations and guidance
documents from DFO in the coming months to provide clarification on
the above changes.
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