One of the most significant provisions in the federal
Fisheries Act is the prohibition in section 36(3) against releasing
deleterious substances into waters frequented by fish. This
prohibition has been interpreted broadly by the courts and may
result in significant penalties even if an activity has been
approved by Fisheries and Oceans Canada (DFO) and the applicable
provincial regulators. On February 15, 2014, DFO released draft
regulations under section 36 of the Fisheries Act to
provide a framework for future Ministerial Regulations to permit
deposits of deleterious substances in three circumstances:
to regulate aquaculture, aquatic pests and aquatic invasive
to allow for aquatic research; and
where the deposits of deleterious substances are already
managed by provincial and/or federal regulating authorities.
With respect to the last category, which is of most significance
for resource developers, the Regulations Establishing
Conditions for Making Regulations under Subsection 36(5.2) of the
Fisheries Act (the Proposed Regulations) allow the Minister of
Environment to issue regulations permitting the deposit of
deleterious substances if the following conditions are met:
the deleterious substance to be deposited, its deposit or the
work, undertaking or activity that results in the deposit is
authorized under federal or provincial law or is subject to
guidelines issued by a federal or provincial government and is
subject to an enforcement or compliance regime;
the federal or provincial law or guidelines set out conditions
that result in a deposit that is not acutely lethal and contains a
quantity or concentration of deleterious substance that, when
measured in that deposit or in the relevant water frequented by
the recommendations of the Canadian Water Quality
Guidelines for the Protection of Aquatic Life that were
published in 1999 by the Canadian Council of Ministers of the
Environment, as amended from time to time, or the recommendations
that were derived from those guidelines on their site-specific
application, as amended from time to time, or
the recommendations of any peer-reviewed guidelines that are
established for the purpose of protecting aquatic life and adopted
by a federal or provincial body; and
the effects of such a deposit on fish, fish habitat and the use
by man of fish have been evaluated in accordance with generally
accepted standards of good scientific practice.
In our view, these conditions would apply to many major resource
development projects where provincial or federal regulatory
authorities ensure that development occurs in a manner that will
not result in significant impacts on fish. As a result, if the
Proposed Regulations are approved, they will provide for a
significant shift in the regulatory regime for managing water
quality in Canada. The current regulatory regime involves overlaps
and inefficiencies between provincial and federal authorities and
creates legal uncertainty for proponents of activities that may
result in deposits of deleterious substances. Current jurisprudence
regarding the deposit of deleterious substances into water
frequented by fish states that impacts to fish in the receiving
waters are irrelevant whereas the Proposed Regulations specifically
focus on this issue. The Proposed Regulations will allow the
federal government to rely on provincial permitting programs to
manage industrial developments. This will reduce regulatory overlap
and inefficiencies, and will remove a key source of legal risk for
major projects. As a result, we believe that these Proposed
Regulations, if approved, will be very beneficial for resource
developers. Comments on the Proposed Regulations are due on or
before March 17, 2014.
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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