On June 29, 2012, the Fisheries Act was amended. Policy and regulations are now being developed to support the new fisheries protection provisions of the Act (which are not yet in force). The existing guidance and policies continue to apply. For more information, see Changes to the Fisheries Act.
The Fisheries Act is federal legislation dating back to Confederation. It was established to manage and protect Canada's fisheries resources. It applies to all fishing zones, territorial seas and inland waters of Canada and is binding to federal, provincial and territorial governments. As federal legislation, the Fisheries Act supersedes provincial legislation when the two conflict. Consequently, approval under provincial legislation may not necessarily mean approval under the Fisheries Act.
The Government of Canada's authority over fish and fish habitat arose from the Constitution Act (1982) that established the respective roles and authority of the Government of Canada and provincial governments. This Act deemed the Government of Canada responsible for sea, coastal and inland fisheries, navigation and migratory birds and fiduciary responsibility to aboriginal people. Provincial governments were given the right to make laws governing property, public lands and property rights. While the Government of Canada has the authority to manage fish habitat, it has essentially no control over the use of inland waters, beds of watercourses or shorelines which fall under provincial jurisdiction. Alternatively, the provinces cannot make regulatory decisions concerning fish habitat.
The prime focus of the Habitat Management Program's regulatory activity is Section 35 of the Fisheries Act. Nevertheless, all the habitat protection provisions must be considered when reviewing the negative effects of a project to fish habitat. Additional sections of the Fisheries Act that frequently apply to project proposals are sections 20, 22, 30, 32, 36(3) and 37. Each section is discussed briefly below.
Subsection 35(1) is a general prohibition of harmful alteration, disruption or destruction (HADD) of fish habitat. This means that any work or undertaking that results in HADD is a contravention of Subsection 35(1). The only relief from this general prohibition is when a Subsection 35(2) Authorization is issued for the HADD. It is important to note that this 35(2) Authorization authorizes the HADD and not the project resulting in the HADD. The project does not need a 35(2) Authorization to proceed. However, if a HADD results and an Authorization was not issued, the proponent may be guilty of an offence. Many proponents prefer to obtain an Authorization before they proceed considering these penalties for violating Subsection 35(1) include fines of up to $1,000,000, up to 6 months imprisonment, or a combination of both.
Section 20 deals with fish passage around obstructions and two subsections dealing with fishways. According to Subsection 20(1) the owner/occupier must provide for the safe passage of fish around an obstruction. The requirement for a fishway or canal is discretionary. When the Minister determines it is in the public's interest, the owner/occupier of the obstruction needs to provide a fishway. DFO has the option to include Section 20 requirements within a Section 35(2) Authorization.
This section is for the provision of minimum flow below obstructions. Subsection 22(1) requires sufficient flow over the spill way or crest of an obstruction for the safe decent of fish. Subsection 22(2) requires the owner of an obstruction to provide sufficient flow for free upstream and downstream passage of fish during the construction of an obstruction. Subsection 22(3) requires sufficient flow downstream of an obstruction to provide enough water for fish spawning and egg incubation. The requirement for sufficient flow over an obstruction (Subsection 22(1)) is at the Minister's discretion. The Minister also establishes measures to accommodate fish movement during construction of an obstruction and the quantity of water to be maintained downstream of an obstruction for fish spawning and egg incubation.
Subsection 30(1) requires that every water intake, ditch, channel or canal constructed for irrigation, manufacturing or power generation has a fish guard or screen to exclude fish if the Minister believes it is in the public interest. Furthermore, according to Subsection 30(2), the size of the screen is specified by the Minister, and the screen must be maintained in a way that is satisfactory to the Minister.
Section 32 prohibits the unauthorized killing of fish by means other than fishing. This section normally applies to the detonation of explosive in or near water to kill fish. DFO's Guidelines for the Use of Explosives In or Near Water (1998) provide information to proponents who are proposing works or undertakings that involve the use of explosives in or near Canadian fisheries waters, and to which Sections 32 and 35 in particular, may apply. DFO has the option to include Section 32 requirements within a section 35(2) Authorization.
Subsection 36(3) prohibits the deposit of deleterious substances. Environment Canada is responsible for administering this subsection. Unlike Subsection 35(2), there is no provision to authorize the deposit of deleterious substances except by Regulation or an Order in Council. A deleterious substance is defined by the Fisheries Act as any substance that, if added to water, makes the water deleterious to fish or fish habitat or any water containing a substance in such quantity or concentration or has been changed by heat or other means, that if added to water makes that water deleterious to fish or fish habitat. Currently there are regulations that authorize the deposit of pulp and paper liquid effluent, metal mining liquid effluent, petroleum liquid effluent, and effluents from other industrial sectors.
Subsection 37(1) allows the Minister to request plans, specifications, studies or any other information that will allow the Minister to determine if the deposit of deleterious substances or a HADD is likely to occur. Subsection 37(2) empowers the Minister, after reviewing the plans, studies or other information requested under Section 37(1), to modify or add to the work or undertaking to avoid or mitigate the deposit of a deleterious substance or a HADD to fish habitat. Furthermore the Minister can restrict the operation of the work or undertaking and direct the closing of the work. Ministerial orders can only be made pursuant to a regulation or with the approval of the Governor in Council.