On April 10, 2014, the federal cabinet granted the Minister of
Fisheries and Oceans the power to issue regulations allowing
certain deposits of deleterious substances, provided they are
authorized under other federal or provincial laws or guidelines.
This may turn out to be one of the most significant actions arising
from changes made to the Fisheries Act in 2012.
The Fisheries Act contains a broad prohibition on the
deposit of deleterious substances in fish-bearing waters across
Canada. One of the challenges with this provision has been the
inability to obtain authorizations for activities which caused
deposits, even under stringent conditions. This was because the
narrow language in the statute effectively only provided for
authorizations under industry-specific regulations, such as for the
pulp and paper and mining sectors.
With this new government initiative, the minister may issue
regulations recognizing instruments (such as permits, regulations
or guidelines) issued under other federal or provincial
legislation, as also authorizing the deposit of deleterious
substances under the Fisheries Act. There are conditions
to the exercise of this power, including:
The other instruments are enforceable
The substance being deposited is not acutely lethal to fish
when measured in the deposit or in the receiving waters
The receiving waters remain in compliance with the Canadian
Water Quality Guidelines for the Protection of Aquatic Life or
other similar guidelines that have been adopted by a provincial or
The effects of the deposit on fish and fish habitat have been
The Regulations Establishing Conditions for Making
Regulations Under Subsection 36(5.2) of the Fisheries Act
effectively pave the way for the authorization of deposits into
fish-bearing waters through reliance upon existing provincial
permits, regulations or guidelines. The streamlining potential
impact of these regulations cannot be overstated. All of the
provinces have mechanisms for permitting deposits into fish-bearing
waters under prescribed conditions, which in many cases are likely
to already meet the conditions required under the new regulations
or could do so with fairly minimal changes. The new regulations
provide the potential for industries which are permitted to deposit
substances under provincial regulations or permits to also meet the
requirements of the Fisheries Act, without the need for
additional federal regulatory instruments.
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