Canada: Federal Review Of Environmental And Regulatory Processes Underway

On February 6, 2018, the Federal Government introduced amendments to the Fisheries Act aimed at enhancing protection to fish and fish habitat. The proposed amendments form part of a system-wide review of Canada's environmental and regulatory processes, which will also include amendments to the Navigation Protection Act, and the introduction of the Impacts Assessment Act and the Canadian Energy Regulator Act. Combined, these legislative amendments will have important implications for industry and project developers.

This blog post is Part I of a series that will deal with the regulatory changes proposed under Canada's environmental and regulatory processes review.

The Proposed Amendments

The proposed amendments represent a return to the model under the pre-2013 Fisheries Act, expanding the scope of regulation of fish and fish habitat. The current Fisheries Act is concerned primarily with fish that are part of a commercial, recreational or Aboriginal fishery. In line with the discussion paper released by the Federal Government in June 2017, the proposed amendments extend protection to all fish and fish habitats.

While the proposed amendments are extensive, we have highlighted some of the most notable below related to the regulation of fish and fish habitat.

1. Decision Making

The proposed amendments require the Minister to consider the adverse effects a decision under the Fisheries Act may have on the rights of Indigenous Peoples. They also enable the Minister to consider other factors, including: the sustainability of fisheries; scientific information; community knowledge; social, economic and cultural factors; traditional Indigenous knowledge (if provided); and cooperation established under land claims agreements.

2. Protection of Fish and Fish Habitat

The marquee update of the proposed amendments is the restoration of provisions protecting all fish and fish habitats. In particular, the proposed amendments:

  • restore the previous prohibition against "harmful alteration, disruption or destruction of fish habitat" (HADD), subject to certain exceptions;
  • include a prohibition against carrying on any work, undertaking or activity, other than fishing, that results in the death of fish, subject to a list of exceptions and allowances in ss. 34.4(2);
  • impose two new notification requirements, requiring specified persons to report (1) an unauthorized fish death or (2) an unauthorized HADD; and
  • require that the Minister, when making certain recommendations or exercising certain powers, consider the cumulative effects to fish and fish habitat of carrying on certain works, undertakings, or activities in combination with other works, undertakings or activities that have been or are being carried on.

The proposed amendments include grandfathering provisions for existing section 35(2)(b) authorizations. In addition, the proposed amendments have not changed the minimum and maximum fines for an offence under s. 35(1) of the Fisheries Act.

3. Updated Permitting Framework

The proposed amendments update the management of projects by enabling the Minister to make regulations regarding permits for "designated projects". Persons are prohibited from carrying on work, undertakings or activities that are part of "designated projects", except in accordance with a permit. These new requirements are in addition to the requirements to obtain authorizations to undertake activities that cause HADD.

The proposed amendments also allow the Minister to establish codes of practice, which may provide formal guidance for small routine projects.

4. Introduction of Habitat Credits

The proposed amendments introduce "habitat credits", which can be acquired by a proponent who conducts a conservation project within a fish habitat. These credits are intended to quantify the benefits of a conservation project that seeks to create, restore, or enhance a fish habitat.

The intent is to allow project developers to use the habitat credits to offset the adverse effects a project may have on fish or fish habitats. When entering into an arrangement for habitat credits, the Minister and the proponent must agree to, among other things, the unit of measure that would quantify the benefits of a conservation project, and critical details regarding the administration, management and operation of the arrangement. Once the amount of habitat credits is settled, the Minister would issue a certificate respecting the validity of the credits acquired.

The Minister may establish a system for the creation, allocation and management of habitat credits. As currently proposed, several elements of the habitat credit system remain unclear (including whether habitat credits will be tradable), but are likely to be clarified in the regulations.

5. Alternative Measures Agreements

The proposed amendments also introduce Alternative Measures Agreements (AMAs). AMAs are measures, other than judicial proceedings, which may be used to deal with a person alleged to have committed an offence under the Fisheries Act. An alleged offender who has been charged with an offence under the Act may apply to participate in the use of an AMA, if doing so is not inconsistent with the purpose of the Act and, subject to meeting various conditions, such as the Attorney General being satisfied the measures are appropriate, taking into account the alleged offender's history of compliance and acceptance of responsibility.

The Minister is granted broad regulation-making power on the terms and conditions that may be included in AMAs and their effects on the alleged offender. As a point of comparison, these provisions may be implemented similarly to the Environmental Protection Alternative Measures in force under the Canadian Environmental Protection Act.

6. Indigenous Integration

The proposed amendments are intended to enhance Indigenous people's role in project reviews, decision-making, and policy development. The proposed amendments require the Minister to consider "any adverse effects" that a decision under the Fisheries Act may have on the rights of Indigenous peoples as well as any provided Indigenous traditional knowledge when making habitat decisions.

The proposed amendments allow the Minister to declare that certain provisions of the Act or regulations do not apply in a province or territory of an Indigenous governing body in which an agreement has been entered into, where that province or Indigenous governing body has provision in force that is equivalent in effect.

7. Details Left to the Regulations

As noted above, much of the practical detail is left to regulations that are yet to be drafted.

The Minister may enact regulations setting out classes of projects to be designated as resulting in fish death or HADD.

The Minister also may establish standards and codes of practice for the avoidance of fish death and HADD, which may specify procedures and practices during any phase of a project from construction to abandonment. The Governor in Council is also granted extensive authority to make regulations.

Timeline and Next Steps

The proposed amendments are still subject to change as they work through the Parliamentary process. The public can express their views on the proposed amendments by filing written submissions, or by contacting their Member of Parliament.

The proposed amendments are part of a broader environmental and regulatory overhaul. Further changes to other pieces of environmental legislation will work in concert with these changes.

Impacts

The proposed amendments represent a return to the pre-2013 approach to fisheries regulation, with added elements. The result is increased regulatory burden and complexity.

Proposed development plans and existing operations will need to be reviewed to ensure compliance with the broader prohibitions on harmful effects to fish and fish habitat.

While the scope of protection under the Fisheries Act will be expanded, the approach to implementation will be left to the regulations. The content of those regulations will have a substantial impact on how development proceeds. Those interested in shaping that content should consider avenues to provide their input into the drafting of the regulations.

Once the amendments come into force, the other statutes referencing the Fisheries Act will be amended to reflect the new provisions introduced by the Proposed Amendments.

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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