Significant Changes to the Fisheries Act – What You Need to Know
Published on: 24/02/2014
As part of the omnibus Budget Bill in 2012, the federal government, through the Department of Fisheries and Oceans (DFO), passed significant amendments to the Fisheries Act which came into effect on November 25, 2013. The changes alter federal specifications on "harmful alteration, disruption or destruction of fish habitat" (the HADD Provision). In place of the HADD Provision are new requirements that focus on protecting fisheries rather than fish habitat.
The Act now states that "no person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery." The issue of "serious harm to a fish" is the crux of this new regulatory approach, and has been defined as any one of the following three things:
• the death of fish;
• the permanent alteration to fish habitat that limits/diminishes their ability to carry out one or more of their life processes (e.g. food supply, migration, spawning); or,
• the destruction of fish habitat that limits/diminishes their ability to carry out one or more of their life processes (e.g. food supply, migration, spawning).
The prohibition against serious harm to fish only applies, however, to fish that are part of one of the three protected classifications of fishery or to fish that "support" fish in these protected classifications (commercial, recreational, and Aboriginal), meaning that water bodies not subject to the prohibition will be exempt. It goes on to state that exempt water bodies will have to be determined on a case-by-case basis.
Pollution protection remains largely unchanged, save for one specific item that allows the Minister to authorize the "deposit of deleterious substances of certain classes into particular waters and places, or arising from particular classes of works, undertakings, or activities, and the power to establish conditions regarding the quantity or concentrations of these substances that can be deposited."
Additional items of interest include:
• special treatment for any projects that impact an "ecologically significant area," which will be established in regulations;
• the requirement to submit an "offsetting plan" to demonstrate that the measures and standards on a project will be fully applied to first avoid, then mitigate, and finally offset any residual serious harm to fish;
• the requirement to submit a letter of credit issued by a recognized Canadian financial institution sufficient to cover the costs of implementing the required offsetting plan;
• timelines for application approval, with 60 days for the DFO to determine the completeness of an application and another 90 days to either issue or refuse the authorization; and,
• increases in penalties for contravening the Act, which will include a minimum fine of $500,000 for large corporations and a maximum $6 million fine for companies on first offences (on indictment) and that doubles on second offences for environmental provisions.
Beginning February 24, 2014, holders of existing authorizations will have to request a review to determine whether their authorization should remain unchanged, be amended, or is no longer required.
The DFO has set up an online self-assessment process to help determine whether or not a project will cause "serious harm to fish" and thus will need to be authorized by the DFO. The self-assessment tool can be found at the following link.
If you have any questions about this bulletin, please contact Patrick McManus (Patrick.email@example.com or 905-629-8819).
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