Originally published in Blakes Bulletin on
Environmental Law, February 2008
On November 29, 2007, the federal Parliament introduced Bill
C-32: the Fisheries Act, 2007. The bill had been
introduced in 2006 but fell off the order of paper when
Parliament was prorogued. The re-introduced bill is essentially
identical to the bill introduced late in 2006, with four
exceptions which are relevant only to the fishing licensing
The bill is expected to be read for a second time in the
early spring, after which it will be considered by a
parliamentary committee. Speculation suggests that the
committee will likely invite some form of public submissions,
either written or oral, before it makes its recommendations to
parliament. All of this is, of course, contingent on there not
being a federal election in the spring.
Pollution Prevention And Habitat Provisions
The proposed Fisheries Act, 2007 will replace the
current Fisheries Act in its entirety. Like its
predecessor, the bill contains provisions on habitat protection
and pollution prevention. These provisions have been maintained
in a similar format to the current Act, although the minor
changes arguably have the potential to broaden their impact. In
addition, many of the administrative powers associated with
these provisions have been substantially enhanced. A number of
the changes could potentially be seen as positive for
operators, while some of them may pose problems, particularly
with respect to the regulatory "administrative"
burden on both project proponents and government.
The act proposed to allow the federal government the
authority to delegate to the provinces when there is
"equivalency" with provincial regulations. This has
the potential to reduce the regulatory burden on operators;
however, caution is noted that similar provisions in other
environmental legislation have not met with a great deal of
The manner in which works causing a harmful alteration,
disruption or destruction (HADD) of fish habitat may go
forward has been expanded, including granting the authority
to the federal government to create a regulation which would
preclude the necessity of obtaining a specific authorization
The prohibitions against HADD have been clarified and the
definition of fish habitat has been amended. This definition
may lead to arguments that what is considered part of the
habitat has been broadened.
Alternative measures have been added as an enforcement
measure. These create a way to avoid a trial and conviction
when charges have been laid and the accused is prepared to
admit the activity and submit to a courtordered remediation
program. These were first introduced under the Canadian
Environmental Protection Act and have proved to be an
effective part of the enforcement tool box.
The government's administrative powers have been
expanded. These include the ability to request information,
direct remedial action in relation to deposits of deleterious
substances or HADDs, or to order the removal of works that
are detrimental to fish habitat.
Broader self-reporting has been added. Under this
proposal, all deposits of deleterious substances and all
HADDs, including those that are considered to be
"imminent", will be required to be reported to the
The specific requirements in HADD authorizations will be
subject to enforcement.
The limitation period for laying of charges will be
extended from two to five years.
Key Areas Where No Change Is Proposed
One particularly interesting development is that, despite a
host of inconsistent decisions from the courts interpreting the
deleterious substance provisions, the government has not
provided clarification or reined in the "zero
tolerance" aspect of the definition.
The proposed Act also does not authorize statutory review or
appeals of decisions made by regulators under the pollution
prevention and habitat provision. This is a concern, as the
number of such decisions that can be made has been expanded
dramatically and include extensive order powers. While the Act
does establish an expert review tribunal, that body is only
charged with reviewing decisions made regarding fisheries
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general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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