Discussion Paper: Proposed modifications to the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations

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A Fisheries Act for the future

Contents

Purpose

The purpose of this paper is to inform partners and stakeholders of proposed changes to the Applications for Authorization Under Paragraph 35(2)(b) of the Fisheries Act Regulations (hereafter the Applications for Authorization Regulations, or the Regulations), and to provide an opportunity to comment on the proposal. New Regulations would be proposed to replace the current Applications for Authorization Regulations, to align with amendments to the Fisheries Act currently proposed in Bill C-68 (An Act to amend the Fisheries Act and other Acts in consequence).

The 2018 “Consultation Paper: Approach to a Key Regulation under the Proposed Fish and Fish Habitat Provisions of the Fisheries Act” indicated that draft Regulations would be pre-published in Canada Gazette, Part I for public comment. However, to ensure an orderly transition to the amended Act, the proposed new Regulations would need to come into force at the same time as the new fish and fish habitat protection provisions proposed in Bill C-68. As Bill C-68 is still undergoing Parliamentary review, this discussion paper is being published based on the current form the of the Bill in advance of Royal Assent to allow for the proposed Regulations to be ready to be made by the Governor in Council and published in Canada Gazette, Part II, as soon as possible following Royal Assent of Bill C-68.

This paper describes the modifications to be included in the proposed new Regulations, and reflects comments received during initial engagement on changes to the Regulations. It is important that all interested and affected parties provide feedback on this discussion paper, as draft Regulations will not be pre-published in Canada Gazette, Part I.

Background and Context

Review of the 2012 changes to the Fisheries Act

The 2015 Speech from the Throne included a commitment on the part of the Government to review environmental and regulatory processes. Also in 2015, the mandate letter of the Minister of Fisheries, Oceans and the Canadian Coast Guard included a commitment to review the changes made in 2012 to the Fisheries Act, in order to restore lost protections and incorporate modern safeguards.

Canadians were engaged in this review by appearing before, or providing submissions to Parliament’s Standing Committee on Fisheries and Oceans (SCOFO). To support this work, the Department of Fisheries and Oceans (DFO) also engaged directly with Indigenous communities and groups, provinces and territories, and also engaged all interested Canadians through an open online consultation and ideas forum. Canadians expressed strong support for the protection of fish and fish habitat, including protecting the aquatic environment; protecting fish and fish habitat from human activities; and using the best available Indigenous knowledge and scientific evidence in decision-making. Canadians also expressed a desire that the government focus efforts on better managing key threats: those causing environmental changes (loss of fish habitat and cumulative effects); those related to development activities; and those related to fishery activities.

On February 6, 2018, the Government of Canada introduced Bill C-68, An Act to Amend the Fisheries Act and other Acts in Consequence. Changes proposed in the Bill include:

The effects of these changes would include improved oversight of development activities and the management of fish and fish habitat, including:

The fish and fish habitat protection provisions proposed in Bill C-68 would apply to Canadian fisheries waters, and would be part of the Fisheries Act framework which provides for the proper management and conservation of fisheries and the conservation and protection of fish and fish habitat.

Initial engagement on proposed modifications to the Applications for Authorization Regulations

New Regulations would be required to align with the new prohibitions and authorities under the Fisheries Act proposed in Bill C-68, to reflect lessons learned from implementation of the current Applications for Authorizations Regulations, as well as to reflect comments received during engagement for Bill C-68, and to improve the cohesion of the Regulations. To this end, in July 2018, the Government of Canada published a consultation paper seeking input on its intention to propose changes to the Applications for Authorization Regulations.

The “Consultation Paper: Approach to a Key Regulation under the Proposed Fish and Fish Habitat Provisions of the Fisheries Act set out the proposed changes to the Applications for Authorization Regulations, and was published online for a 58-day comment period. Engagement on the paper was undertaken during August and September 2018, through a series of conference calls, meetings, and targeted email correspondence.

The consultation was an opportunity to provide information about the proposed changes to the Applications for Authorization Regulations, garner insight and perspective on how project proponents, stakeholders, Indigenous communities and groups, and Canadians feel about the proposed changes, and whether they had suggestions to guide development. A summary of comments received is included in Annex 2.

What we are proposing

Changes to the Fisheries Act would introduce new prohibitions and authorities that are intended to be reflected in the proposed new Regulations. Because the new elements of the Regulations would be made pursuant to new regulation-making authorities in the amended Act, the current Regulations would have to be repealed and replaced by the proposed new Regulations.

The proposed Regulations would be very similar to the current Regulations, including the manner in which applications for authorizations are processed, but would also include a series of changes. These include five elements outlined in the initial consultation paper, as well as three additional ones. One element proposed in the initial consultation paper – regarding notifying Indigenous communities – has been replaced with an alternative approach. These nine elements are listed here and described in greater detail below. 

  1. Reflecting new amended provisions that would be part of the Fisheries Act;
  2. Amending, suspending or cancelling authorizations;
  3. Using certified habitat credits in lieu of, or in addition to offsetting plans;
  4. New forms of acceptable financial security;
  5. Requiring geographic coordinates of proposed offsetting measures;
  6. Notifying Indigenous communities - alternative approach;
  7. Other changes;
  8. Housekeeping changes;
  9. Transitional provision.

Description

1. Reflecting new and amended provisions that would be part of the Fisheries Act

Bill C-68 would amend the Fisheries Act to change the current prohibition under the fisheries protection provisions, which states that “[n]o 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 Bill would amend the Fisheries Act to introduce two prohibitions that restore the language of the prohibitions found in former versions of the Act:

To reflect this in the Regulations, changes to the title of the Regulations, to relevant provisions, and to the Schedules would be necessary. For example, in some provisions of the Schedules to the Regulations, the phrase “on fish that are part of a commercial, recreational or Aboriginal fishery, or on fish that support such a fishery, and the likely effect on the habitat of those fish” would be replaced by the phrase “on fish and fish habitat” to reflect the new provisions.

2. Amending, suspending or cancelling authorizations

Bill C-68 proposes new authorities for the Minister to amend, suspend or cancel authorizations (subsections 34.4(5) and 35(5) of the Bill). These new authorities would apply to all authorizations, whether issued under the current Fisheries Act or the amended Fisheries Act, as well as to authorizations issued in emergency and non-emergency situations. Amendment, suspension or cancellation of authorizations would be processed under the proposed new Regulations.

To operationalize these new authorities, the proposed Regulations would provide a process for the Minister to amend or suspend, in whole or in part, or cancel any authorization, either at the request of an authorization holder, or at the Minister’s initiative under circumstances listed in the proposed Regulations.

At the request of an authorization holder

An authorization holder would be able to request to amend, suspend or cancel an existing authorization by submitting to the Minister the relevant information set out in the proposed Regulations. This information includes:

The timelines for reviewing an authorization holder’s request to amend, suspend or cancel an authorization would be identical to the current timelines for an initial application for authorization. Upon receipt of a request to amend, suspend or cancel an authorization, the Minister would be required to provide the authorization holder with written confirmation of receipt of the request and would be required, within 60 days, to notify the authorization holder in writing of the completeness of the request. If the application were incomplete, the Minister would be required to indicate in the notification the information or documentation to be provided.

Within 90 days of notifying the authorization holder of the completeness of the request, the Minister would be required to either amend, suspend or cancel the authorization, or notify the authorization holder in writing of his/her refusal to do so.

Provisions would also be proposed to provide for the cessation and re-starting of time limits for the review of applications to amend, suspend, or cancel authorizations. These would be the same as for an initial application for authorization. Establishing identical timelines for amendment, suspension and cancellation would allow for a similar level of diligence in the assessment of the application, including the potential impacts on fish and fish habitat, and with respect to the Crown’s duty to consult.

At the Minister’s initiative

The Minister would be able, at his/her own initiative, to amend or suspend, in whole or in part, or cancel any authorization if:

To ensure procedural fairness when considering an amendment, suspension or cancellation at his/her own initiative, the Minister would be required to send the authorization holder a written notice of his/her intention to amend, suspend or cancel the authorization and provide the authorization holder an opportunity to make written representations. Only in exceptional circumstances when necessary to prevent the imminent death of fish or harmful alteration, disruption or destruction of fish habitat, would the Minister be able to suspend an authorization in whole or in part without giving the authorization holder an opportunity to make written representations.

Steps that apply in both circumstances

Once a decision had been reached, the Minister would be required to provide the authorization holder with written notice of his or her decision to amend, suspend or cancel an authorization, which would have to include the effective date and, in the case of a suspension, the duration. Any part of the initial authorization that was unaffected by the amendment or suspension would remain valid and continue to take effect until the expiry of the authorization.  

The Minister would be able to reinstate a suspended authorization at the expiry of the period indicated in the notice of suspension or, upon written request, at any time during the suspension, if the matter that gave rise to the suspension were to be resolved or corrected. In either case, the Minister could require the authorization holder to submit a request for amendment in order to reinstate the authorization.

3. Use of certified habitat credits in lieu of, or in addition to offsetting plans

Bill C-68 proposes new authorities for the Minister to establish “a system for the creation, allocation and management of a proponent’s habitat credits in relation to a conservation project“, and to allow the Minister to enter into formal arrangements with any proponent in relation to this purpose. Section 28 of the Bill outlines what would have to be included in such arrangements (Figure 1).

An offsetting measure is an action undertaken by a proponent to counterbalance the negative impacts of a work, undertaking or activity on fish and fish habitat. Proponent-led habitat banking is a type of offsetting measure that creates, restores or enhances fish habitat under the authority of a fish habitat bank arrangement with DFO in advance of a work, undertaking, or activity being developed. Proponents may then draw from their certified habitat credits to offset future development impacts. 

Flowchart
Figure 1: Key steps involved in the administration and management of a proponent-led habitat banking arrangement
Figure 1
  • Figure 1 highlights the process of proposing a proponent-led habitat bank arrangement, including the possible arrangement annexes.
  • Step 1. Proposal for a proponent-led habitat bank arrangement. This agreement is composed of annexes that are described at Step 6
  • Step 2. Negotiate the terms of the arrangement.
  • Step 3. Proponent-led habitat bank arrangement.
  • Step 4. Monitoring and reporting on progress of the arrangement.
  • Step 5. Renewal or termination of the arrangement.
  • Step 6. The arrangement mentioned in Step 1 to 6 has annexes.
    • An annex about the Habitat bank description and principles of management
    • An annex about the: Conservation project proposal, Conservation project approval, followed by the Conservation project plan.
    • An annex about the: Habitat Credit Ledger.
    • An annex about: the Arrangement progress reports, followed by the Conservation project performance reports.

The proposed Regulations would provide a mechanism allowing for the use of certified habitat credits to offset impacts from proposed works, undertakings, or activities. The use of habitat credits could be in lieu of, or in addition to offsetting measures proposed to be undertaken through an offsetting plan. If available credits would not be sufficient to offset all of the impacts from a work, undertaking or activity, proponents would be allowed to complement them with offsetting measures.

The proposed Regulations would provide applicants the option of using  their certified habitat credits to offset impacts from proposed works, undertakings, or activities. The use of habitat credits could be in lieu of, or in addition to offsetting measures proposed to be undertaken through an offsetting plan. If available credits would not be sufficient to offset all of the impacts from a work, undertaking or activity, proponents would be allowed to complement them with offsetting measures.

4. New forms of acceptable financial security

The current Applications for Authorization Regulations require, as part of an application, the submission of an irrevocable letter of credit by a recognized Canadian financial institution to cover the costs of implementing an offsetting plan in the event that its implementation is not completed. A letter of credit must be sufficient to cover the cost of implementing all elements of the offsetting plan, including monitoring measures.

To increase flexibility for proponents in providing financial security in relation to offsetting plans, the proposed Regulations would allow applicants to provide other forms of financial guarantees that are equivalent to an irrevocable letter of credit issued by a recognized Canadian financial institution. A performance bond would be one such possible financial guarantee.

5. Requiring geographic coordinates of proposed offsetting measures

To facilitate the review of proposed offsetting measures, as well as to improve the consistency and accuracy of data on approved offsetting measures, the proposed Regulations would require that applicants provide the geographic coordinates of the location where they would propose to implement offsetting measures. One set of coordinates would be required from the applicant per offsetting site to ensure that a unique set of coordinates, provided by the applicant, was associated with each location.

6. Notifying Indigenous communities – alternative approach

In the 2018 consultation paper, DFO sought feedback on a proposal to include a new provision in the Regulations that would have required the Minister to notify any Indigenous community located within the vicinity of a proposed work, undertaking, or activity of the receipt of an application for authorization. The proposal was not intended to replace the duty to consult, but rather to complement it by offering an opportunity for Indigenous communities and groups to share Indigenous knowledge relevant to decision making for an authorization, and provide information about the proposed project’s potential impacts on Indigenous rights.

During the initial engagement on the proposed modifications to the Regulations, many Indigenous groups and organizations, as well as other stakeholders sought clarification regarding what was intended by “vicinity”, and how Indigenous groups and communities would be captured by a notification process. Numerous suggestions were offered to replace the word “vicinity”, including “traditional territories”, “land claim areas”, “in a set distance of a project”, “within the watershed of an application”, “in areas where Indigenous communities exercise their section 35 rights” or “within an area or claimed territory that includes proposed project impacts”.

In addition, many Indigenous groups and organizations recommended the adoption of a flexible approach that would capture as many Indigenous people as possible, while avoiding overwhelming communities and local organizations with notifications. Many Indigenous groups and organizations further indicated that they would prefer to identify their own areas of interest, and recommended the adoption of a one-on-one approach with Indigenous groups and communities to address their specific circumstances.

In reviewing options, questions were raised as to whether a regulatory approach would best achieve the original intent: to provide notice immediately on receipt of an application which would enable Indigenous peoples to share Indigenous knowledge relevant to decision making and provide information about the project’s potential impacts on Indigenous rights. It was found that some options could have risked excluding communities and groups that might have wished to be notified (such as those without defined territories), while others could have risked overwhelming communities and groups with multiple notifications which might not be of interest. It became apparent that a regulatory approach would not provide the flexibility necessary to achieve the original intent and meet the varied needs of Indigenous groups and communities across the country.

In light of this, DFO now proposes to pursue a non-regulatory approach to notifying Indigenous communities, by developing regional notification processes for the receipt of applications for authorizations. These processes would be developed in collaboration with Indigenous communities and groups, and would set out processes that would be less constrained by regulatory parameters and allow for greater flexibility in providing notifications, to better suit the unique circumstances of individual Indigenous communities and groups.

The approach would be focused on Indigenous communities determining areas for which they would wish to be notified of the receipt of authorization applications, thus better fulfilling the original intent of this proposal, and more closely aligning with common law consultation obligations. The proposed notification processes would complement federal consultation processes with Indigenous peoples flowing from the recognition and affirmation of Aboriginal and Treaty rights articulated in section 35 of the Constitution Act, 1982.

7. Other changes

In addition to the changes listed above, a number of other changes would be made to the Regulations. These would be intended to better align the Regulations with the proposed changes to be made to the Fisheries Act, as well as to address minor gaps in the Regulations and improve cohesion.

Title of the Regulations

The current title — Applications for Authorization Regulations Under Paragraph 35(2)(b) of the Fisheries Act Regulations — would be replaced by the new title.

Definition of “offsetting plan” from Section 1

The definition of “offsetting plan” would be removed from the proposed Regulations, because a description of an offsetting plan is located in section 13 of Schedule 1 of the current Regulations, making the definition unnecessary.

Section 2 of the current regulations

Section 2 of the current Regulations, which indicates that the Regulations apply to applications made to the Minister under paragraph 35(2)(b) of the Fisheries Act included in the proposed Regulations.

Sufficiency of information in applications for authorization

In the current Regulations the Minister must, within a period of 60 days beginning on the date of receipt of the application, notify the applicant in writing that the application is complete or incomplete. In the proposed Regulations, in addition to being able to deem an application complete or incomplete, the Minister would have the authority to find the application to be inadequate. This inclusion would confirm the Minister’s authority to assess the quality and scope of the information provided in an application.The proposed inclusion would also allow the Minister to request additional information when the application contains information considered inadequate. If an application were to be found to be incomplete or inadequate, the written notification would have to specify the information or documentation to be provided.

Information related to consultations undertaken with Indigenous Peoples of Canada or the public

A new provision would be added to the Regulations to require that the applicant include information about any consultation already undertaken prior to submitting the application. These consultations would have to have related to the work, undertaking, or activity for which an authorization would be sought. The description should provide an overview of consultations, if any, held with Indigenous groups and/or with the public at large. The current Applicant’s Guide to Submitting an Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act recommends that this information be included with an application, and this would now become a requirement in the proposed Regulations.

Replace “water source or water body” with “fish habitat” in the description of fish habitat

Among the elements in Schedule 1, section 7 of the current Regulations is a requirement to provide a description of the fish and fish habitat found at the location of the proposed work, undertaking or activity, including a description of the type of water source or water body, their characteristics, and how those characteristics support fish in carrying out their life processes. These requirements would be modified to refer to “fish habitat” rather than to “water source or water body”. This change would improve clarity in specifying the information required in an application, representing a simplification for the applicant, and more precise information for DFO in reviewing an application.

8. Housekeeping changes

In preparing these proposed Regulations, modifications to language would be made to improve the clarity and cohesion of the text. For example, where possible, word repetitions would be eliminated and some sentences would be reordered. This simplification exercise is a normal procedure when modifying regulations. These changes would not impact the requirements contained in the proposed Regulations.

9. Transitional provision

Bill C-68, which proposes to amend the Fisheries Act, includes transitional provisions in clauses 52 and 53 that pertain to existing Ministerial authorizations and applications for authorizations being processed at the time at which the amendments to the fish and fish habitat protection provisions of the Fisheries Act come into force. These clauses set out the rules that would serve to transition existing authorizations to the amended Fisheries Act, and govern the processing of applications being reviewed under the current Regulations. These clauses would provide for the orderly and transparent management of existing authorizations and applications for authorizations made under the current Regulations (Annex 3).

The proposed new Regulations would come into force at the same time as the fish and fish habitat protection provisions of the amended Act. To ensure a smooth transition to the amended Act, a transitional provision reflecting those in the Bill would be included in the proposed Regulations.

What’s next

This paper describes the modifications to be included in the proposed new Regulations. The proposed amendments in Bill C-68 would come into force in two phases if approved by Parliament. Most of the proposed amendments would come into force upon Royal Assent of the Bill. Other proposed amendments, including the new fish and fish habitat protection provisions, would come into force on a day to be fixed by the Governor in Council.

In order to ensure an orderly transition to the amended Act, the new Regulations described in this Discussion Paper would be published in Canada Gazette, Part II, after Royal Assent of the Bill and would come into force on the same day as the fish and fish habitat protection provisions of the Bill.

It is important that all interested and affected parties provide feedback on this discussion paper, as draft Regulations will not be pre-published in Canada Gazette, Part I.

Tell us what you think

We look forward to hearing your thoughts and comments on the proposal outlined in this discussion paper.

This Discussion Paper will be posted online for public comment for 30 days. You may submit your comments to: FPP-PPP.XNCR@dfo-mpo.gc.ca   

Annex 1: How the current Applications for Authorization Regulations work

Under the current Fisheries Act, subsection 35(1) prohibits the carrying out of a 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. However, under Paragraph 35(2)(b) of the Fisheries Act, the Minister of Fisheries and Oceans (the Minister) may issue an authorization setting out the conditions under which the proposed work, undertaking or activity that results in serious harm to fish can be carried out.

The current Applications for Authorization Regulations detail the information and documentation that must be submitted by an applicant requesting such an authorization. The requirements differ, depending on whether the application is submitted in normal circumstances, or in the context of a response to an emergency circumstance—for example, a situation in which there is a risk to public health or safety, or to the environment or property.

Sections 5 through 8 of the Applications for Authorizations Regulations establish the procedures and time limits for the Minister to process applications in normal circumstances, detailed in Figure 1.

Flowchart
Figure A-1:  Process for the Review of an Application under the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations (Normal Circumstances).
Figure A-1

Figure A-1 illustrates the process of issuing or refusing an authorization under the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations.

  • Step 1. A 60/90-day time limit may cease and restart depending upon: changes to the work, undertaking or activity, or offsetting plan; request by applicant; additional information requirements; Indigenous consultation; and other federal statutory requirements. NOTE: Regulations require the Minister to notify the applicant when the time limits cease and restart.
  • Step 2. Application for authorization is received. NOTE: Regulations require the Minister to notify the applicant.
  • Step 3. Is the application complete?
  • No: Proceed to Step 4
  • Yes: Proceed to Step 5 NOTE: Regulations require the Minister to notify the applicant.
  • Step 4. Information Gap NOTE: Regulations require the Minister to notify the applicant. Applicants submit required information. Return to Step 1.
  • Step 5. Consideration of application.
  • Step 6. Should the Minister authorize work, undertaking or activity?
  • Step 7. Authorization issued with conditions. NOTE: Regulations require the Minister to notify the applicant.
  • Step 8. Authorization refused with reasons. NOTE: Regulations require the Minister to notify the applicant.

Under the current Regulations, the Minister has 60 days to review the application for authorization and notify the applicant in writing if the application is complete or incomplete. If the application is determined to be incomplete, the Minister is required to include in the notification a list of information or documentation that is missing. Once the applicant has submitted the missing information, the Minister has another 60 days to review the application and notify the applicant if the application is complete.

Once an applicant is notified that an application is complete, the Minister has 90 days from the date the applicant was notified either to issue an authorization with conditions, or to advise the applicant that the authorization has been refused. The 60 and 90-day time limits can be ceased and re-started for a number of reasons. The Minister is required to notify the applicant when a time limit has been put on hold or has re-started.

Annex 2: Summary of comments received during initial consultations for changes to the Applications for Authorizations Regulations

A “Consultation Paper: Approach to a Key Regulation under the Proposed Fish and Fish Habitat Provisions of the Fisheries Act” setting out the proposed changes to the Applications for Authorization Regulations, was published online for a 58-day comment period from August to September 2018. Engagement on the paper was undertaken through a series of conference calls, meetings, and targeted email correspondence with long-time partner and stakeholder groups who share an interest in protecting and conserving fish and fish habitat. Comments were received from some 72 groups, which included:

The consultation paper posed six questions, which aligned with the proposed changes to the Applications for Authorization Regulations, as well as with specific related provisions in Bill C-68. Comments received were analyzed to identify important gaps and highlight concerns. Comments received are summarized below by question.

1. Reflecting new and amended provisions that would be part of the Fisheries Act

2. Amending, suspending, or cancelling authorizations

3. Using certified habitat credits in lieu of, or in addition to offsetting plans

4. New forms of acceptable financial security

5. Requiring geographic coordinates of proposed offsetting measures

6. Notifying Indigenous communities

Annex 3: Transitional provisions contained in Bill C-68

The transitional provisions contained in Bill C-68 stipulate that: 

If issued, such authorizations would be deemed to have been issued under the amended Fisheries Act and their conditions would continue to apply after the coming into force of the amended Act (clause 53 of Bill C-68).

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