Notice

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.

2.0 The Policy and Legislative Setting

2.1 Purpose of Annual Report

Section 42.1 of the Fisheries Act requires the Minister of Fisheries and Oceans to table an annual report to Parliament on the administration and enforcement of the fish habitat protection and pollution prevention provisions.

The Annual Report is organized under the following four parts:

• Part 1.0 presents the executive summary.
• Part 2.0 provides the legislative and policy context for the conservation and protection of fish habitat, as well as an overview of DFO’s HMP.
• Part 3.0 reports on DFO activities in 2010-2011 for the administration and enforcement of the fish habitat protection provisions of the Fisheries Act. This part covers both the review of development proposals (referrals) by the HMP, and the support provided by the Ecosystem Science and C&P programs.
• Part 4.0 reports on the work of EC in developing regulations, policies and guidelines related to the pollution prevention provisions of the Fisheries Act.

2.2 Legislative Basis for the Conservation and Protection of Fish Habitat

The Government of Canada fulfills its constitutional responsibilities for sea coast and inland fisheries through the administration and enforcement of the Fisheries Act. This Act provides DFO with powers and authorities to conserve and protect fish habitat,³ which is essential to sustaining freshwater and marine fish species and populations that Canadians value.

Section 35 is the key habitat protection provision of the Fisheries Act. This section prohibits any work or undertaking that would cause the harmful alteration, disruption or destruction (HADD) of fish habitat, unless authorized by the Minister of Fisheries and Oceans or through regulations under the Fisheries Act.

DFO administers and enforces section 35 and other related habitat protection provisions of the Fisheries Act, including sections 20, 21, 22, 26, 28, 30, and 32. The full text of these provisions is available on the Justice Canada Internet site.⁴

A brief Summary of these sections is provided in Table 1.

Subsection 36(3) is the key pollution prevention provision. It prohibits the deposit of deleterious substances into waters frequented by fish, unless authorized by regulation under the Fisheries Act or other federal legislation. Regulations to authorize deposits of certain deleterious substances have been established for key industry sectors pursuant to subsection 36(5) (e.g., pulp and paper, and metal mining). EC is responsible for the administration and enforcement of the pollution prevention provisions of the Fisheries Act.

The Fisheries Act also contains provisions that support the administration and enforcement of the habitat protection and pollution prevention provisions. These include:

• Powers for the Minister to request plans and specification for works and undertakings that might affect fish or fish habitat (section 37);
• Authority for the Minister to appoint inspectors and analysts (subsection 38(1));
• Description of inspectors’ powers (including entry, search, and direction of preventive, corrective or cleanup measures) (subsections 38(3) and 38(6));
• Description of offences and punishment (section 40); and
• Determination of liability when a deleterious substance has been deposited (section 42).

Table 1: Habitat Protection and Pollution Prevention Provisions of the Fisheries Act

Section	Intent
20	The Minister may require fish-ways to be constructed.
21	The Minister may authorize payment, order construction or removal or require fish stops or diverters for fish-ways.
22	The Minister may require sufficient flow of water for the safety of fish and flooding of spawning grounds as well as free passage of fish during construction.
26	Prohibits obstruction of fish passage through channels, rivers and streams. In addition, the Minister may authorize devices to prevent the escape of fish.
27	Prohibits the damage or obstruction of fish-ways, the impediment of fish to fish-ways and nearby fishing.
28	Prohibits the use of explosives to hunt or kill fish.
30	The Minister may require fish guards or screens to prevent the entrainment of fish at any water diversion or intake.
32	Prohibits the destruction of fish by any means other than fishing.
34	Definitions used throughout sections 35 to 42.
35	Prohibits works or undertakings that may result in harmful alteration, disruption or destruction of fish habitat, unless authorized by the Minister or under regulations.
36	Prohibits the deposit of deleterious substances into waters frequented by fish, unless authorized under regulations.
37	The Minister may request plans and specifications for works or undertakings that might affect fish or fish habitat. The Minister may, by regulations or with Governor-in-Council approval, make orders to restrict or close works or undertakings that may harmfully alter fish habitat or lead to the deposit of deleterious substances.
38	Gives the Minister the authority to appoint inspectors and analysts and describes inspectors' powers, including entry, search and the power to direct preventive, corrective or cleanup measures. Provides for regulations that require reporting of abnormal deposits of a deleterious substance or substances that occur in contravention of the general prohibition, regulations or site-specific authorizations.
40	Sets out penalties in case of a contravention of: sections 35 or 36; failing to provide information or to undertake a project in compliance with section 37; or failing to make a report or to otherwise comply with section 38.
42	Those causing the deposit of deleterious substances in waters frequented by fish are liable for costs incurred by Her Majesty. Also, the Minister shall prepare an annual report on administration and enforcement of the fish habitat protection and pollution prevention provisions of the Fisheries Act as well as a statistical summary of convictions under section 42.1.
43	The Governor in Council may make regulations for carrying out the purposes and provisions of the Fisheries Act, including habitat protection and pollution prevention.

2.3 Policy for the Management of Fish Habitat

The Policy for the Management of Fish Habitat⁵ (the Policy), and its supporting operational policies provide a comprehensive framework for the administration and implementation of the habitat protection and pollution prevention provisions of the Fisheries Act consistent with the goal of sustainable development.

The Policy has an overall objective to “increase the natural productive capacity of habitat for the nation’s fisheries resources”. This is to be achieved through the Policy’s three goals of conservation, restoration, and development of fish habitat.

The Policy recognizes that habitat objectives must be linked and integrated with fish production objectives and with other sectors of the economy that make legitimate demands on water resources. As a result, the Policy identifies the need for integrated planning for habitat management as an approach to ensuring the conservation and protection of fish habitat that sustain fish production while providing for other uses.

A key element of the Policy is the guiding principle of “no net loss of the productive capacity of fish habitat”. This principle supports the Policy’s conservation goal. Prior to issuing an authorization under subsection 35(2) of the Fisheries Act, DFO applies the “no net loss” guiding principle, so that unavoidable habitat losses as a result of development projects are balanced by newly created and/or restored fish habitat.

If unacceptable losses of fish habitat cannot be prevented, the Policy calls for an authorization not to be issued. Furthermore, where deleterious substances result in harm to fish or damage to fish habitat, compensation⁶ is not an option.

2.4 National Habitat Management Program

The HMP has responsibilities pursuant to the Fisheries Act, the Species at Risk Act, the Canadian Environmental Assessment Act and northern environmental assessment regimes. Consequently, the HMP is a major federal regulator affecting many development projects occurring in or around fresh and marine fish-bearing waters across Canada.

HMP activities contribute to its mandate to conserve and protect fish habitat that sustain fisheries resources that Canadians value. The program helps Canadians manage the impacts of non-fishery activities on fish habitat in the context of government-wide initiatives for sustainable development. The program uses scientific knowledge and understanding to develop regulations and policies; provides formal advice and direction; engages with individuals, organizations, and other levels of government; and manages compliance with the fish habitat protection provisions of the Fisheries Act.

HMP staff located in National Headquarters are responsible for the overall coordination of the delivery of the HMP, providing national policy direction, strategic advice and liaison with other DFO sectors, federal departments and national industry and non-governmental organizations (NGOs). Day-to-day delivery of the program is carried out by habitat staff located in 63 DFO offices across the country.

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[3] Fish habitat is defined under subsection 34(1) of the Fisheries Act as “spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes”.

[4] Fisheries Act

[5] Policy for the Management of Fish Habitat

[6] Glossary in the Policy for the Management of Fish Habitat for the definition of compensation.