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.

3.3 Compliance and Enforcement of the Fish Habitat Protection Provisions of the Fisheries Act

3.3 Compliance and Enforcement of the Fish Habitat Protection Provisions of the Fisheries Act

DFO’s C&P Program is responsible for monitoring compliance with legislation and regulations regarding the conservation of fisheries resources and fish habitat. The Minister of Fisheries and Oceans appoints Fishery Officers to enforce fisheries regulations and management plans as well as the habitat provisions of the Fisheries Act.

In addition to protecting fish habitat, Fishery Officers conduct at-sea patrols in coastal and inshore areas, monitor catches, conduct forensic investigations and audits, conduct inland patrols and provide information to fishers regarding government policies and regulations. The enforcement and compliance monitoring activities of Fishery Officers are key to protecting Canada's fish and fish habitat.

The C&P Directorate has adopted a three-pillar approach to the delivery of its enforcement program to address existing challenges and to integrate intradepartmental compliance issues in a comprehensive compliance program. This approach, as described under the DFO National Compliance Framework, guides the application of compliance tools organized into three pillars of compliance management. Pillar One activities include under the heading “Education and shared stewardship”: informal and formal education programs and co-management / partnership agreements. Pillar Two, titled “Monitoring, control and surveillance”, include activities such as land, sea and air patrols; inspections and compliance monitoring of third-party service providers; and enforcement response to non-compliance. Pillar Three, titled “Major case / special investigations” include formal intelligence gathering and analysis, forensic audits and prosecutions.

For fiscal year 2010-2011, Fishery Officers dedicated a total of 39,255 hours to habitat compliance and enforcement activities. The percentage of Fishery Officer time allocated to habitat compliance management, as reported under the three-pillars of activities was 14%, 32% and 54%, respectively. Further analysis indicates there are five major habitat activities which accounted for this time. These habitat activities are in descending order: rural and urban development, transportation, recreational, forestry and industrial. The effort and time spent on habitat compliance management, identified as a single work element, represents 6% of the total amount of time Fishery Officers dedicated to other work elements.

Figure 5: Allocation of compliance effort by habitat-related activity

 

Data for Figure 5

Agriculture	4.85%
Aquaculture	0.39%
Forestry	10.04%
Hydro	2.82%
Industrial/Commercial	7.58%
Mining	3.87%
Oil/Gas	1.60%
Recreational	16.74%
Rural/Urban Dev.	33.47%
Transportation	18.66%
Grand total	100%

For more information on habitat compliance and enforcement activities, see the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act.¹⁵

Table 5, Table 6 and Table 7 summarize C&P’s compliance and enforcement activities by region in 2010-2011.

Table 5: Summary of DFO Habitat Enforcement Activities
Fiscal Year 2010-2011

Region	Warnings Issued	Charges Laid	Alternatives to Prosecution*
Newfoundland and Labrador	3	0	0
Maritimes	10	0	0
Gulf	4	0	0
Quebec	4	0	0
Central and Arctic	18	3	0
Pacific	36	1	5
Total	75	4	5

* Alternatives to prosecution include out-of-court settlements aimed at restoring unauthorized HADD in a timely manner.

 

Table 6:  Convictions Reported under the Habitat Protection Provisions of the Fisheries Act
Fiscal Year 2010-2011

Region	Section 35(1)	Section 36(3)	Section 40(3)	Total
Newfoundland and Labrador	0	0	0	0
Maritimes	3	0	0	3
Gulf	1	0	0	1
Quebec	0	0	0	0
Central and Arctic	3	1	0	4
Pacific	2	0	0	2
Total	9	1	0	10

Table 7: Summary of Convictions and Alternative Measures to Prosecution
Fiscal Year 2010-2011

The following are examples of results achieved through settlements in habitat protection enforcement actions.

$70,000.00 Dollars in Fines and Penalties for New Brunswick Habitat Destruction

A New Brunswick Provincial Court Judge accepted the joint sentence recommendation for a $5000 fine for the charge under Section 35 (1) of the Fisheries Act and a further $65,000 penalty for remediation works to be paid to the New Brunswick Court and then transferred to the Canaan - Washademoak Lake Watershed Commission.

The charge stemmed from an incident that took place from 2008 to 2009 when the NB Coal Ltd. was moving its large drag line from one coal seam to another and in the move crossed four watercourses. The company had applied for and received the appropriate authorizations from the Department, but one significant rain event blew out their temporary causeway on Newcastle Creek, near Minto, New Brunswick. The company went outside of the work area, defined within the authorization, and created an approximately 1680 square metre "island" in the Newcastle Creek to put equipment on to remove the materials deposited during the rain event.

Illegal Alteration of Fish Habitat Results in $375,000 Fine for British Columbia Development Corporation

A British Columbia development corporation plead guilty to illegal alteration of fish habitat and received a fine of $375,000 for reparation costs in the Shuswap Lake area. The Judge fined the Corporation $5,000 and levied the additional sums of $70,000 to be paid to the Fraser Basin Council to support conservation and protection of fish and fish habitat in the Shuswap Lake area; and $300,000 to be held in trust to pay for habitat remediation of the damaged site. This work will be undertaken by the Corporation, overseen by Department of Fisheries and Oceans habitat biologists, and will include the replanting, irrigation, and fencing off of sensitive habitat from the upland development, as well as ongoing monitoring.

The case began in June 2007, when the Department launched an investigation around land clearing done between January and June 2007 on development property known as “Old Town Bay” near Sicamous, British Columbia. In early 2009, after a lengthy and extensive investigation, the Corporation was charged with clearing forest and vegetation from seven hectares of a relatively rare landform in the Eagle River delta area on Shuswap Lake. This investigation was coordinated by Conservation and Protection with expert advice provided by program staff as well as external partner agencies including the Department of Justice and the Provincial Ministry of the Environment.

The Eagle River and Shuswap Lake are habitat for Sockeye, Chinook, Coho and Pink Salmon, Rainbow Trout, Steelhead, Lake Char and a variety of other fish, and support commercial, recreational and First Nations fisheries. Most of the area of the delta that was logged was within foreshore areas under permanent protection from property development by both federal and provincial legislation.

Northwest Territories Power Corporation Fined $450,000 for Share Forks Spill

On January 19, 2011, a Judge of the Northwest Territories imposed a fine of $450,000 against the Northwest Territories Power Corporation for a violation of section 36(3) of the Fisheries Act.

Fisheries and Oceans Canada pursued a charge following a breach of a dyke that occurred at the corporation’s Snare Forks Hydro Facility in the Northwest Territories in June 2006. Suspended sediments considered to be harmful to fish entered the Snare River system and Strutt Lake in contravention of the Fisheries Act.

Of the fine imposed by the court, a penalty of $25,000 will be paid to the Crown and $425,000 will be put into a fund for future habitat compensation projects in the Northwest Territories. The Snare River system is an important habitat for species such as Whitefish, Arctic Grayling, Lake Trout and Northern Pike.

3.4 Oceans and Scientific Support

DFO’s Ecosystems and Oceans Science Sector conducts research and provides scientific advice to assist habitat management practitioners. In collaboration with managers in the Ecosystems Management Directorate, environmental scientists identify knowledge gaps related to habitat management, conservation, restoration and improvement, and devise research projects to address those gaps. Some of the research and scientific advice provided in fiscal 2010-2011 included:

• Science review of Athabasca River In-stream Flow Needs
• Review of the Sydney Tar Ponds Marine Environmental Effects Monitoring Program
• Reviews of several Offshore Oil and Gas Environmental Effects Monitoring Reports
• Primary literature published on fish habitat of several species (including Killer Whale, St. Lawrence Beluga, Atlantic Salmon, Wolf Fish and Dolly Varden)
• Production of several predictive models for benthic habitats for areas including British Columbia and the Estuary and Gulf of St. Lawrence
• Reviews Environmental Remediation Project Monitoring Reports (including the Sydney Tar Ponds)
• Examination of Potential Impacts of proposed finfish aquaculture sites.

Research results are transferred to HMP staff in the form of peer-reviewed scientific advice, scientific workshops, published reports, fact sheets, briefings, and personal consultations. Information provided can range from informal, one-on-one discussions, to regional peer-reviewed advice sessions and large-scale National Advisory Process workshops that follow a formal process to produce peer-reviewed, published advisory documents. The Canadian Science Advisory Secretariat (CSAS) within the Ecosystems and Oceans Science Sectors oversee the provision of scientific advice, and maintains a website where reports are made available to the Canadian public.¹⁶

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[15] Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act

[16] Canadian Science Advisory Secretariat