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.

3.0 Administration and Enforcement of the Fish Habitat Protection Provisions of the Fisheries Act

3.1 Benefit for Canadians: Healthy and Productive Aquatic Ecosystems

HMP activities are aligned with DFO’s strategic outcome identified as healthy and productive aquatic ecosystems. This outcome involves the sustainable development and integrated management of resources in or around Canada’s aquatic environment through oceans and fish habitat management. Specifically, HMP activities support the development and use of aquatic resources for the benefit of all Canadians through ensuring the availability of healthy and productive fish habitat. Conserving and protecting fish and fish habitat requires the cooperation of Provinces, territories, industry, Aboriginal groups, individual Canadians and other stakeholders.

For more information on the impact of the Habitat Management Program Activity, as it contributes to progress towards the achievement of healthy and productive aquatic ecosystems, please refer to the annual Departmental Performance Report for Fisheries and Oceans Canada.⁷

3.2 Administration of the Fish Habitat Protection Provisions of the Fisheries Act

3.2.1 Overview

The administration of the Fish Habitat Protection Provisions of the Fisheries Act is the responsibility of DFO’s HMP. The program accomplishes this in part by reviewing development proposals (known as “referrals”). Proponents may voluntarily submit information about their proposed works or undertakings to determine if they comply with the habitat protection provisions of the Fisheries Act. The referral process enables HMP staff to review submitted proposals to assess if a HADD of fish habitat is likely to result from the proposed works or undertakings. As part of its practice, the HMP applies a Risk Management Framework consisting of three components: Aquatic Effects Assessment; Risk Assessment, and; Risk Management.⁸

As part of the referral process, Program staff send advice to a development proponent indicating the requirements for the conservation and protection of fish habitat. This advice informs proponents on how to proceed with their works or undertaking in a manner that will comply with the Fisheries Act, mainly with respect to avoiding the HADD of fish habitat (section 35). Advice is commonly provided in the form of a “Letter of Advice” or an “Operational Statement” for low risk activities. An “Authorization” pursuant to subsection 35(2) of the Act may be issued where HADD cannot be avoided.

Prior to issuing certain Authorizations pursuant to the Fisheries Act, HMP staff must verify whether the project under review has potential to adversely affect aquatic species listed under SARA, or their critical habitat, and ensure that an environmental assessment (EA) under CEAA (or other EA regimes) is completed.

DFO may exercise decision-making authority that triggers the CEAA under the following circumstances: where DFO is the project proponent; provides financial assistance; sells, leases, or otherwise transfers control or administration of federal land; or, makes certain regulatory decisions to enable a project to be carried out. In such cases, DFO becomes a “responsible authority” under the CEAA and must ensure that an EA is prepared prior to making a decision. Typically, an EA considers broad environmental issues linked to the project, as well as including those directly associated with fish and fish habitat. For more information regarding the nature of EAs under CEAA, please refer to the Website for the Canadian Environmental Assessment Agency.⁹

3.2.2 Review of Development Proposals (Referrals)

This section presents data recorded in the Program Activity Tracking System for Habitat (PATH) on review of referrals.

Table 2: Summary of Habitat Referrals by Work Category
Fiscal Year 2010-2011
(larger view)

DFO Region	Work Categories
	Aqua.	Contaminated Site Remediation	Control Nuisance Species	Dredging	Fish Offal Disposal	Habitat Improvement	Instream Works	Log Handling	Mineral, Aggregate & O&G Extraction	Shore Works	Structures in Water	Water Mgmt	Water-course Crossing	Other*	Total
Central and Arctic	1	18	6	114	0	23	277	0	131	553	370	210	1,153	255	3,111
Gulf	37	3	0	68	0	32	30	0	3	42	51	30	186	43	525
Maritimes	15	4	0	32	0	15	16	0	3	119	102	63	367	95	831
Newfoundland	14	8	0	34	0	2	35	0	72	118	146	43	227	174	873
Pacific	3	11	6	62	0	43	278	40	161	424	262	197	294	259	2,040
Quebec	8	7	1	33	2	10	36	0	6	65	54	24	93	3	342
Total	106	51	13	343	2	125	672	40	376	1,321	985	567	2,320	829	7,722

*Other includes those referrals where work category is to be determined.

Figure 1: Referrals Received by Region, 2006-2007 to 2010-2011

Data for Figures 1 and 2:

Region	2006-2007	2007-2008	2008-2009	2009-2010	2010-2011
Newfoundland & Labrador	996	873	782	819	873
Maritimes	694	658	32	747	831
Gulf	397	311	430	589	525
Quebec	227	252	277	335	342
Central & Arctic	3,445	3,330	3,145	3,151	3,111
Pacific	1,486	1,909	2,087	1,814	2,040
Total	7,245	7,333	7,453	7,455	7,722

Figure 2: Percent of Referrals by Region, 2010-2011

3.2.3 Advice Provided and Authorizations Issued

Data recorded in PATH on advice provided by DFO and authorizations issued are presented below in Table 3.

Table 3: Advice Provided and Authorizations Issued
Fiscal Year 2010-2011

Region	Advice Provided to Proponent or Others10	Advice provided in form of Operational Statement	Authorizations Issued	Total
Newfoundland and Labrador	617	9	4	626
Maritimes	566	0	57	566
Gulf 11	468	0	28	468
Quebec	451	21	44	472
Central and Arctic	1,675	183	145	1,858
Pacific	628	22	91	650
Total	4,405	235	369	4,640

Figure 3 illustrates the regional distribution of advice. Figure 4 illustrates the number of authorizations by region in 2010-2011.

Figure 3: Advice Provided by Region, 2006-2007 to 2010-2011¹²

Data for Figure 3

Region	2006-2007	2007-2008	2008-2009	2009-2010	2010-2011
Newfoundland & Labrador	884	763	666	711	626
Maritimes	392	409	370	519	566
Gulf	260	172	287	420	468
Quebec	355	265	229	416	472
Central & Arctic	2,528	2,400	2,385	2,257	1,858
Pacific	612	653	499	496	650

Figure 4: Authorizations Issued by Region, 2006-2007 to 2010-2011¹³

Data for Figure 4

Region	2006-2007	2007-2008	2008-2009	2009-2010	2010-2011
Newfoundland & Labrador	1	6	2	5	4
Maritimes	47	19	55	57	57
Gulf	9	11	5	19	28
Quebec	24	25	40	42	44
Central & Arctic	304	162	129	112	145
Pacific	50	57	56	61	91

3.2.4 Notifications and Use of Regulatory Streamlining Tools

DFO uses operational statements as a management tool to improve efficiency and effectiveness of its regulatory reviews for low-risk activities. Operational statements have been developed for certain types of works or undertakings. They provide generic guidance and specify mitigation measures needed to avoid harm to fish habitat. Proponents incorporating measures outlined in an Operational Statement will comply with the Act and are not required to submit an application for an Authorization under subsection 35(2) of the Fisheries Act.

In addition, DFO has established the “class” authorizations process for agricultural municipal drains in Southern Ontario (Ontario-Great Lakes Area). The issuance of class authorizations for pre-defined drain maintenance activities eliminates the requirement for a site-specific review process. Similarly, an integrated regulatory regime for placer mining in the Yukon Territory provides a streamlined process for environmental review of placer mining proposals pursuant to the Yukon Environmental and Socio-economic Assessment Act.¹⁴

Table 4 provides a summary notifications of use of Class Authorizations and Operational Statements in Fiscal year 2010-2011.

Table 4: Notifications of use of Class Authorizations and Operational Statements
Fiscal Year 2010-2011

Region	Class Authorizations Notifications	Operational Statements Notifications	Total
Newfoundland and Labrador	0	37	37
Maritimes	0	2	2
Gulf	0	0	0
Quebec	0	33	33
Central and Arctic	310	3,485	3,485
Pacific	14	367	367
Total	324	3,924	4,248

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[7] DFO Reports and Publications

[8] Information on DFO's application of the RMF

[9] Canadian Environmental Assessment Agency

[10] Advice provided to others includes: written advice to federal agencies, provincial/territorial/other agencies, letters of advice to proponents, letters of approval to proponents, mitigation measures provided to permitting agencies.

[11] In the Gulf Region, as a result of an agreement with the Province of New Brunswick, DFO does not need to provide Operational Statements for streamlining certain activities.

[12] As of 2005-2006, the advice provided includes Operational Statements provided as Advice (following receipt of referral).

[13] Notifications of use of Class Authorizations are not included in this chart.

[14] For more information on placer authorizations refer to Yukon Placer Secretariat Resource Centre.