Element of a New Fisheries Act - Discussion Document

CONSERVATION AND PROTECTION OF FISH AND FISH HABITAT AND POLLUTION PREVENTION

These amendments facilitate the implementation of policy, program and organizational changes being introduced through the Environmental Process Modernization Plan (EPMP), and clarify and strengthen the legislative framework for the Habitat Management Program.

PROTECTION OF FISH HABITAT

The substance of the prohibition in section 35 of the current Act remains unchanged. Carrying on a work or undertaking that results in the harmful alteration, disruption or destruction (HADD) of fish habitat continues to be prohibited. Persons are not guilty of contravening the HADD of fish habitat provision if they were operating in accordance with the Minister's authorization or regulations. This section was modified slightly to modernize the language and to clarify that the Act applies to any alteration or disruption that is harmful.

The new Act seeks enforcement of conditions to an authorization (compensation, mitigation measures and monitoring) separately from the enforcement of the general prohibition against causing a HADD. This new provision further clarifies that a work or undertaking carried out pursuant to an authorization issued under another provision of the Act would not contravene the HADD of fish habitat prohibition even if this work or undertaking results in a HADD.

Like the previous Fisheries Act, alteration, disruption or destruction of fish authorized by the Minister continue to trigger assessments under the Canadian Environmental Assessment Act. Maximum penalties for violating habitat protection measures also remain unchanged as they were increased in 1990.

No changes of significance were made to the pollution prevention provisions of the current Act - known as "Section 36" provisions - that regulate the deposit of deleterious substances in waters frequented by fish. However, a provision in a new Act provides a new definition of "deleterious substance", clarifying that it is the substance itself, and not the water in which the substance can be found, that is defined as deleterious to fish or fish habitat. This new definition eliminates unnecessary duplication of terms found in the current Act.

A number of sections in the existing Act on obstructions and fish passage been consolidated into one section in a new Act. Under this new section, the exercise of the ministerial authority is subject to a finding that the obstruction is detrimental to fish habitat. This authority would be exercised to allow for improved fish passage, reduced fish mortalities or improved flow to areas below the obstruction. Some provisions have been expanded to allow for consideration of fish habitat other than spawning areas and for their application to obstructions beyond those that are unused.

Certain antiquated provisions such as the provision of a hatchery in lieu of fish passage and the Minister paying for a portion of the costs of constructing a fish-way were deleted. In addition, there is a provision stating that the Minister may now direct the provision of information studies or plans related to obstructions. This mirrors provisions found in section 37 of the existing Act.

Under the new Act it is made clear that the Minister no longer requires Governor in Council approval to order modifications or restrictions in the operation of a work or undertaking. Such approval would still be required if the Minister orders closure or cessation of the work or undertaking. In all cases, unless immediate issuance of the order is necessary, the Minister would have to consult with the appropriate provincial and/or territorial government(s) and other federal departments before issuing the order.

There is a provision for the requirement to notify an inspector, a fishery officer or a prescribed authority of an occurrence or likely occurrence of a contravention to the subsection respecting a HADD or the subsection on deposit of a deleterious substance. Note that the requirement to notify would no longer be limited to the deposit of a deleterious substance scenario and to situations where this deposit took place "out of the normal course of events". The duty to take corrective measures would apply in cases of a contravention of the HADD subsection as well as in cases of a contravention to the subsection on the deposit of a deleterious substance.

A new Act also modernizes the powers of inspectors which includes allowing inspectors to consider impacts to habitat and a clause that allows fisheries officers, in addition to inspectors, to take corrective measures in case of a HADD or deposit of deleterious substance or to direct that these measures be taken by a person. In addition, this clause provides that the person who is responsible for the incident or who has control of the work or undertaking will assume the costs associated with the corrective measures.

Regulation-making provisions have been consolidated and expanded upon, and includes specific powers to deal with the alteration, disruption or destruction of fish habitat.

A provision is included that expands the civil liability exposure for the costs associated with corrective measures to a HADD scenario. A provision has also been included stating that loss of income incurred can now be claimed by any person who can establish that the loss has been suffered as a result of a HADD or a deposit of a deleterious substance. Loss of income could only be recovered by a licensed commercial fisherman under the former regime.

AQUATIC INVASIVE SPECIES

In addition to providing statutory authorities for managing fisheries and protecting fish and fish habitat, a new Act provides authorities for managing aquatic invasive species.

Aquatic invasive species are a major and increasing threat to Canadian aquatic biodiversity, fisheries and the aquaculture industry.

The Great Lakes Lamprey Control Program is managed by Canada and the U.S. under terms of the Great Lakes Fisheries Convention. Canada's contribution would be managed in Canada under the authorities provided in a new Act.

New aquatic invasive species provisions responds to the May 2003 Report of the Standing Committee on Fisheries and Oceans, which recommended among other things that DFO:

• Consolidate and streamline regulations applicable to aquatic invasive species within a comprehensive set of federal regulations; and
• Enact regulations prohibiting the sale and trade of live grass, bighead, silver and black carp in Canada.

Respecting regulations, new provisions would allow DFO to manage all challenges (within its mandate) in cooperation with the provinces with respect to aquatic invasive species. These amendments would promote the implementation of the Aquatic Invasive Species Action Plan approved by the Canadian Council of Fisheries and Aquaculture Ministers. The amendments would also ensure that measures being adopted to manage and control sea lamprey in the Great Lakes, for example, would be available to regulate all aquatic invasive species across Canada.

A provision has been included to ensure that whenever aquatic invasive species are released, transported, imported, or exported, such activities are carried out only in accordance with regulations enacted by the Governor in Council.

Amendments also include a provision that provides that the Minister or someone authorized by the Minister to authorize the destruction of invasive species in order to protect fish or fish habitat. It should be noted that destruction is only one control mechanism available to contain the spread of aquatic species that threaten fish and fish habitat. Other measures required to prevent the spread of aquatic invasive species would be implemented through a regulatory provision.

The new Act states that the Minister may destroy or authorize the destruction of aquatic invasive species that are listed in regulations. It also states that the Minister may, in exigent circumstances, destroy or authorize the destruction of aquatic invasive species that are not listed in the regulations if those species meet the criteria set out in the regulations qualifying them as an aquatic invasive species and circumstances require immediate action to protect local fish populations and their habitat.

The regulations linked to the aquatic invasive species provisions introduce a number of controls to manage invasive species in all Canadian waters including:

• Aquatic invasive species (AIS) would be defined;
• Certain species, such as lamprey in the Great Lakes or elsewhere, would be designated as such in order to apply control measures to them;
• Protocols to control the spread of AIS;
• Rules governing the import, export, transport and release of aquatic invasive species;
• The manner of authorizing persons other than the Minister to destroy aquatic invasive species; and
• The obligation to provide information about aquatic invasive species.

Maximum penalties for offences involving aquatic invasive species are $200,000 and a prison term not to exceed six months.