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.
Since 1978, Environment Canada (EC) has assumed the lead responsibility for the administration of the pollution prevention provisions of the Fisheries Act - namely subsection 36(3) and related provisions of the Fisheries Act. Subsection 36(3) deals with the deposit of deleterious substances into waters frequented by fish or places where the substances may enter such waters.
EC administers the pollution prevention provisions through a suite of activities including compliance promotion, regulations, environmental effects monitoring, water quality monitoring, enforcement, emergencies management and administrative agreements. The department’s 2010-11 activities may be summarized as follows:
In May 2009, the Commissioner for Environment and Sustainable Development (CESD) tabled in Parliament a review of the federal government’s activities under the Fisheries Act to protect fish habitat, including Environment Canada’s administration and enforcement of the pollution prevention provisions. The CESD report included a number of important recommendations for ways in which Environment Canada could make improvements. These included the need to set out clearer objectives, results expectations and accountabilities, to improve the department’s risk-based approach to assess and address the risks of non-compliance with the Fisheries Act Pollution Prevention Provisions (PPP), to review older regulations and guidelines, to improve enforcement quality assurance and to work with the Department of Fisheries and Oceans to more clearly establish expectations with respect to administration of the pollution prevention provisions.
Environment Canada has made progress over the past year with respect to the commitments it made in response to these CESD recommendations. The department has completed a number of elements of its Results-Based Management and Accountability Framework, is exploring ways to improve its risk-based approach and is nearing completion in its review of a number of older regulations and guidelines. Dedicated resources remain in place for enforcement quality assurance. Environment Canada and the Department of Fisheries and Oceans have an active dialogue underway on their respective roles and responsibilities and remain committed to renewing the Memorandum of Understanding between the two departments.
Compliance promotion relates to the planned activities that are undertaken to increase the awareness and the understanding of the Act and related risk management instruments. Through these activities, information is provided on what is required to comply, the benefits of complying with the law as well as the consequences of non-compliance.
The approach to compliance promotion is collaborative and coordinated across the department’s programs and regions and with Enforcement. It is achieved using various tools and approaches such as website postings, letters and emails, brochures, site visits, responses to inquiries and information sessions.
In 2010-2011, EC undertook compliance promotion activities relating to the general pollution prevention provisions, identified in sub-sections 36(3) and 38(4) of the Fisheries Act, across the country for a number of sectors and sources. EC undertakes compliance promotion primarily through the environmental assessment process, in collaboration with Enforcement activities and in response to inquiries.
EC undertook reviews of environmental assessment proposals for approximately 100 large scale projects, along with many smaller-scale projects. Reviews were used to identify issues related to Fisheries Act PPP and related Regulations, helping to incorporate proactive planning to ensure regulatory compliance into the development of the projects. These reviews included diamond, coal, potash and metal mining developments and oil and gas developments.
EC provided scientific and technical advice related to contaminated sites (federal and non-federal sites) and potential Fisheries Act PPP implications through various avenues including the Federal Contaminated Sites Action Plan (FCSAP), environmental assessments and provision of direct involvement during the assessment and remediation stages of contaminated site clean up.
EC responded to inquiries and provided information on a broad range of activities (e.g. mine water treatment/acid drainage from old coal mines; power plants; dredging of port facilities; fish and food processing plants; marine maintenance operations such as cleaning ship hulls; exploration programs at abandoned gold mines and potential mining sites; use of treated wood in marine environment; demolition of marine infrastructure; limestone storage).
EC's analysis of the effluent data generated during 200917 by Canadian pulp and paper mills and off-site treatment facilities concluded that these facilities continued to have high rates of compliance with the effluent quality limits prescribed in the Pulp and Paper Effluent Regulations (PPER). Across the country in 2009, the Regulations applied to 99 pulp and paper mills and 1 off-site treatment facility that deposit effluent directly into the environment. Compliance rates are unchanged from the previous year (i.e. over 99% for total suspended solids and biochemical oxygen demand and 97% for the requirement that effluent be non-acutely lethal to rainbow trout.)
The Government published Regulations Amending the Pulp and Paper Effluent Regulations (Miscellaneous Program) in the Canada Gazette, Part II on 25 March 2011. The amendments were administrative in nature and were intended to improve the clarity of the regulatory text by identifying a single Authorization Officer for each province (in Schedule V), and to improve the consistency in wording between the English and French versions (in Schedule IV.1). Further amendments to the PPER were made by the Regulations Amending Certain Regulations Made Under the Fisheries Act that were published in the Canada Gazette, Part II on 13 April 2011. The requirements for verbal notification in the event of a discharge out of the normal course of events (DONCE) were removed from the PPER. These requirements can now be found in the new Deposit Out of the Normal Course of Events Notification Regulations, also published in Part II of the Canada Gazette on April 13, 2011.
EC continued to provide guidance and advice to the pulp and paper sector on the Environmental Effects Monitoring (EEM) requirements under the PPER. The technical guidance document on EEM was updated in 2010 to ensure that it is adequate, up to date, clear and reflect the recommendations from the Smart Regulations Initiative18. Meetings with pulp and paper stakeholders were held to explain the updated guidance.
EC continued to provide compliance promotion advice to the pulp and paper sector on the requirements of the PPER especially at sites with temporary or proposed closures. EC highlighted requirements for continued compliance with the PPER, and with the general provisions of subsection 36(3) of the Fisheries Act.
Compliance promotion activities included continued support for the electronic reporting of data by regulated facilities and training on the utilization of the Regulatory Information Submission System (RISS) for pulp and paper mills. The information system is a web based reporting tool used by industry to report mandatory data as required under the PPER.
EC's analysis of the effluent data generated during 2009 by Canadian metal mines concluded that these companies continued to have high rates of compliance with the effluent quality limits prescribed in the Metal Mining Effluent Regulations (MMER). The Regulations applied to 104 mining facilities across the country in 2009, and the compliance rate with limits for arsenic, cyanide, lead and radium 226 was 100%, over 99% for copper, nickel, zinc and pH, and 94% for total suspended solids. The Regulations also require that effluent be non-acutely lethal to rainbow trout, and in 2009 the compliance rate for this requirement was 96.2%.
EC continues to provide guidance and advice to the metal mining sector on the EEM program required under the MMER. A national assessment of the EEM data from the second phase of monitoring was initiated in 2009-10 and work continued in 2010-11. EC continues to review its technical guidance document on EEM to ensure that it is adequate, up to date, clear and relevant and reflects departmental actions taken in response to recommendations from the Metal Mining Environmental Effects Monitoring Review Team19. Some chapters of the technical guidance were completed and made available.
The MMER were amended once in 2009. These amendments added portions of three water bodies to Schedule 2 of the Regulations. These water bodies are associated with a mine developments in British Columbia.
Compliance promotion activities in this sector included the provision of information and advice to the regulated community on the requirements of the MMER and the Fisheries Act, as well as in response to the Environmental Assessment (EA) project review process. Approximately 40 compliance promotion site visits were made to mines subject to the MMER and prospective mines, as well as to several operating facilities expected to become subject to the MMER in the future, including proposed mines undergoing environmental assessments. Several meetings were held throughout Canada with industry, provincial and municipal government representatives on the application of the Fisheries Act PPP and the MMER to Canadian mines and requirements to comply.
The Deposit Out of the Normal Course of Events Notification Regulations came into force on March 25, 2011. These Regulations apply to verbal notification requirements under the Fisheries Act. They give the regulated community and the public the name and telephone number of the person providing 24-hour emergency telephone service for the organization operating for the province or territory to which notifications are to be made, enabling that person to receive notifications on behalf of Environment Canada.
The Government published the proposed Wastewater System Effluent Regulations (WSER) in the Canada Gazette, Part I on March 20, 2010. These proposed Regulations are Environment Canada’s main tool to implement the Canadian Council of Ministers of the Environment (CCME) Canada-wide Strategy for the Management of Municipal Wastewater Effluent which was endorsed by the CCME on February 2009. The proposed WSER include risk-based implementation timelines and baseline effluent quality standards for secondary wastewater treatment. The proposed Regulations would be applicable to municipal, federal and community wastewater systems across the country, except those located in the far north.
In line with the CCME Strategy, the WSER would be applied in a harmonized regulatory framework with the provinces and territories. The intended outcome is to ensure that the release of wastewater effluent does not pose unacceptable risks to human and ecosystem health or fisheries resources through the application of one set of standards in a fair, consistent, and predictable manner.
Environment Canada continued to work with provinces, municipalities and others following the publication in the Canada Gazette, Part I to refine the WSER with the intention to publish the final WSER in Canada Gazette, Part II early in 2012.
While formal compliance promotion activities will not take place until the final regulation is published, a significant amount of outreach occurred in 2010-11 to help regulatees prepare to comply with the final regulation. Presentations were made to stakeholders on the CCME Canada Wide Strategy and the development of Regulations that would support the implementation of the CCME strategy. EC contacted over 100 municipalities, meeting with and providing follow-up information to over 30 of them. The follow up meetings provided an additional opportunity for discussion of the proposed regulatory requirements, an opportunity for those municipalities to make additional comments on the development of the regulations and an opportunity for Environment Canada to provide information on their current obligations under sub-sections 36(3) and 38(4) of the Fisheries Act.
Environment Canada continued its review of a number of older Fisheries Act PPP Regulations and Guidelines to ensure that they are up to date, relevant and enforceable. These include the Petroleum Refinery Liquid Effluent Regulations andGuidelines, Chlor-Alkali Mercury Liquid Effluent Regulations, Meat and Poultry Products Plant Liquid Effluent Regulations, Potato Processing Plant Liquid Effluent Regulations, Fish Processing Operations Liquid Effluent Guidelinesand Metal Finishing Liquid Effluent Guidelines.
Under the Canadian Shellfish Sanitation Program (CSSP), EC surveys bivalve molluscan shellfish growing areas for the purposes of harvesting area classification. EC makes classification recommendations to Fisheries and Oceans Canada (DFO) and the Canadian Food Inspection Agency (CFIA) pursuant to its responsibilities under the CSSP MOU. DFO considers this information and will implement closures for those areas as appropriate under the Management of Contaminated Fisheries Regulations, which DFO administers. In 2010-2011, over 30,300 marine water quality samples were collected to support the classification of approximately 15,426 square kilometres of shellfish harvest area along the coastlines of the Atlantic, Quebec (St. Lawrence Estuary) and Pacific regions of Canada. This was a decrease from the 19,416 square kilometers reported in 2009 due to improvements in area measurement using GIS technology in Quebec.
In 2010, there were 4,042 recorded spills to shellfish areas from wastewater treatment plants (WWTPs). This was an increase from 3,678 spills recorded in 2009. CSSP partners (CFIA, DFO, EC) worked together to raise awareness of WWTP operators about the importance of timely reporting pursuant to s. 38(4) of the Fisheries Act. EC assessed the adverse effects of such spills on harvest areas and made appropriate closure recommendations to DFO. The CSSP continues the process of redefining the classification of harvest areas near WWTPs, including EC's assessment of over 300 WWTPs that could potentially impact these areas.
Table 8 summarizes the number of occurrences, inspections and investigations carried out under the Fisheries Act PPP by EC in 2010-2011.The following explanations should be noted with respect to the table:
|Charges||Convictions||Written Directives||Written Warnings|
|Chlor-Alkali Mercury Liquid Effluent Regulations and Guideliness||-||-||-||0||0||0||0||0||0|
|Meat and Poultry Products Plant Liquid Effluent Regulations and Guidelines||12||-||12||0||0||0||0||0||0|
|Petroleum Refinery Liquid Effluent Regulations and Guidelines||49||1||50||0||0||0||0||0||0|
|Potato Processing Plant Liquid Effluent Regulations and Guidelines||21||3||24||0||0||0||0||0||0|
|Pulp and Paper Effluent Regulations||1060||75||1,135||3||0||0||0||1||27|
|Guidelines for Effluent Quality and Wastewater Treatment at Federal Establishments||-||1||1||0||0||0||0||0||0|
|Metal Mining Effluent Regulations||486||86||572||1||0||0||0||2||22|
|Fish Processing Operations Liquid Effluent Guidelines||2||30||32||0||0||0||0||0||0|
There were 14 referrals to other federal or provincial government departments or municipal bodies. Table 9 presents the breakdown of investigation in 2010-2011.
|Investigation Breakdown||# of Investigations|
|Investigations started and ended in fiscal year 2010-2011||9|
|Investigations started in fiscal year 2010-2011 and still ongoing at end of fiscal year 2010-2011||28|
|Investigations started before 2010-2011 and ended in fiscal year 2010-2011||48|
|Investigations started before fiscal year 2010-2011 and still ongoing at the end of fiscal year 2010-2011||18|
The measures are tabulated at the regulation level of a regulation. For example, if the outcome of an inspection is the issuance of a written warning which related to 3 sections of a given regulation, the number of written warnings is 1. This is the reason why we observe smaller numbers during 2010-11 than the previous fiscal years.
Prosecutions: The number of prosecutions is represented by the number of regulatees that were prosecuted by charged date regardless of the number of regulations involved.
Charges: The number of charges is tabulated at the section level of the regulation by charge date, by regulatee. For example, a regulatee violating sections 36(1) and 36(3) of the Fisheries Act may be charged with one count under section 36(1) and two counts under section 36(3). This is considered as two charges – one for each section. Charges are counted in relation to the date the charge was laid, not the date when the case began or ended.
Counts: The number of counts is tabulated at the section level of the regulation, by offence date relating to the regulatee’s charge.
Convictions: The number of convictions is represented by the number of counts where the regulatee was found guilty or pleaded guilty. For example, in a case where a regulatee is found guilty of one count under section 36(1) and two counts under section 36(3), this is considered three convictions.
On June 30, 2010, Corner Brook Pulp and Paper, after pleading guilty to an offence under the federal Fisheries Act earlier that month, was ordered to pay a total penalty of $50,000. An investigation by Environment Canada resulted in the company being charged for releasing a substance that is deleterious to fish, into fish-bearing waters. The penalty included a court ordered payment of $45,000 to the Environmental Damages Fund.
On August 4, 2010, the City of Moose Jaw pleaded guilty to one offence under the Fisheries Act for depositing a deleterious substance into fish-bearing waters and was fined a total of $55,000, which included a $5,000 fine and order to pay $50,000 to the Environmental Damages Fund.
On September 27, 2010, Claude Resources Inc. pleaded guilty in Provincial Court to three charges under the Metal Mining Effluent Regulations of the Fisheries Act following an investigation conducted by Environment Canada. The company was assessed penalties totalling $90,000 of which $40,000 was to be paid as a fine, and $50,000 was directed to the Saskatchewan Wildlife Federation to fund environmental projects.
On November 16, 2010 North 60° Petro Limited was ordered to pay a $2,000 fine and make a $28,000 contribution to the Environmental Damages Fund after pleading guilty on November 12, 2010 to failing to comply with an Environment Canada Inspector’s Direction, which constitutes an offence under the Fisheries Act. The Territorial Court also ordered North 60° Petro Limited to prevent the release of deleterious substances (i.e. hydrocarbons) into the Yukon River.
On December 22, 2010 Suncor Energy Inc. pleaded guilty to two charges under s. 36(3) of the Fisheries Act for the deposit of a deleterious substance into waters frequented by fish and was assessed a penalty of $200,000. The penalty includes a $20,000 fine, with the remaining $180,000 to go the Environmental Damages Fund.
On January 11, 2011, Rivers Inlet Resort in the Queen Charlotte Sound, and its director were convicted of a charge under the Fisheries Act. The director was fined $15,000 and Rivers Inlet Resort, $5,000 for depositing a substance deleterious to fish or fish habitat (diesel fuel) into waters frequented by fish.
On March 11, 2011, Canadian National Railway (CNR) Company was convicted of an offence under the Fisheries Act for depositing a deleterious substance (diesel fuel) into waters frequented by fish. The company was ordered to pay a total of $75,000 of which $70,000 was to be directed to projects related to the conservation and protection of fish and fish habitat in the waters of the Fraser River and its tributaries.
On March 1, 2011, Ontario Northland Transportation Commission pleaded guilty to one charge of depositing a deleterious substance into fish-bearing waters in contravention of the Fisheries Act. The company was fined $60,000 of which $50,000 was directed to the Environmental Damages Fund and $10,000 was imposed as a fine.
EC’s Environmental Emergencies Program (EEP) plays an important role in responses to the deposit of deleterious substances in water frequented by fish. Subsection 38(5) of the Fisheries Act states that persons who own or are responsible for a deleterious substance, or persons who cause or contribute to a deposit of the deleterious substance in water frequented by fish, must “take all reasonable measures consistent with safety and with the conservation of fish and fish habitat” to prevent the deposit or, where that deposit actually does occur, “to counteract, mitigate or remedy any adverse effects that result or may reasonably be expected to result”. If a spill or other deposit out of the normal course of events occurs and if required, EC provides environmental and technical advice to the responsible parties, environmental response organizations and other levels of government.
In addition, EC’s Environmental Emergencies personnel:
EC works closely with partners and agencies at the regional level involved in an environmental emergency response. The scope and nature of on-site inspections varies across the country depending on the location of the incident, the responsible parties and arrangements that exist with other jurisdictions. EC’s seeks to protect the environment against deposits of deleterious substances in water frequented by fish in a way which minimizes duplication of administrative effort between federal, provincial and territorial governments. To support effective action in each region, EC coordinates Regional Environmental Emergencies Teams which provide agencies involved in an environmental emergency response with consolidated advice and scientific information on environmental protection, environmental damage assessment, clean-up measures and the disposal of waste resulting from cleanup activities.In 2010-2011, EC recorded approximately 1,877 occurrences (compared to 1,633 the previous year) involving the deposit of a deleterious substance out of the normal course of events under the Fisheries Act. EC’s Environmental Emergency Officers, who are designated as inspectors under the Fisheries Act, conducted 76 on site inspections to verify that the responsible parties complied with subsection 38(5) of the Fisheries Act. In 2010/11, EC also undertook a series of compliance promotion activities aimed at increasing compliance with subsection 38(4) of the Fisheries Act requiring notification of ‘deposits out of the normal course of events’ (DONCE). This included providing information to Federal government agencies, provincial governments, and a wide range of industrial sectors and operators as well as to First Nation communities.
Canada-Alberta Administrative Agreement for the Control of Deposits of Deleterious Substances under the Fisheries Act
This agreement entered into force on September 1, 1994. It establishes the terms and conditions for the cooperative administration of subsection 36(3) and the related provisions of the Fisheries Act as well as for regulations under the Fisheries Act and the Alberta Environmental Protection and Enhancement Act. The Agreement streamlines and coordinates the regulatory activities of EC and Alberta Environment (AENV) in relation to the protection of fisheries, and reduces duplication of regulatory requirements for regulatees.
In 2010-2011, Alberta Environment (AENV) reported 1845 incidents to EC, of which 449 were related to the Fisheries Act. This collaboration led to 273 (on-site and off-site) inspections and 10 investigations. EC conducted an additional 69 off-site inspections under the Pulp and Paper Effluent Regulations and the Petroleum Refinery Liquid Effluent Regulations for monthly and annual reports forwarded from AENV in accordance with the Agreement.22
In 2010-2011, the Canada-Alberta Environmental Occurrences Notification Agreement came into effectand consequently amended the 1994 Canada-Alberta Administrative Agreement for the Control of Deposits of Deleterious Substances under the Fisheries Act, with respect to the notification of environmental occurrences.
Canada-Saskatchewan Administrative Agreement for the Control of Deposits of Deleterious Substances under the Fisheries Act
This agreement sets out the principles for cooperation and identifies a preliminary list of activities where detailed collaborative arrangements could be developed. Existing collaborative arrangements are described in the five annexes to the agreement.
In 2010-2011, the Saskatchewan Ministry of Environment reported 704 spills to the EC's Enforcement Branch, of which 88 were possible Fisheries Act violations. Twenty-six of these led to inspections. The remaining 66 occurrence referrals did not require an on-site inspection but generated an additional 16 off-site inspections.
In 2010-2011, the Canada-Saskatchewan Environmental Occurrences Notification Agreement came into effectand consequently amended the 1994 Canada-Saskatchewan Administrative Agreement for the Control of Deposits of Deleterious Substances under the Fisheries Act, with respect to the notification of environmental occurrences.
Canada-Quebec Pulp and Paper and Metal Mining Sectors Administrative Agreement
Administrative agreements concerning the pulp and paper sector have been in place between the province of Quebec and the Government of Canada since 1994. The fourth agreement expired on March 31, 2007. On June 13, 2009, the proposed Canada-Quebec Pulp and Paper and Metal Mining Sectors Administrative Agreement was published in Part I of the Canada Gazette. The Parties have continued to cooperate in keeping with the spirit of the draft Agreement.
The proposed agreement recognizes Quebec as the principal interlocutor for receiving, from the pulp and paper and metal mining sectors in that province, most of the data and information required pursuant to the following four federal regulations:
Under the agreement, the province acts as a “single window” for the gathering of information from Quebec pulp and paper mills and forwards such information to EC for the purpose of enabling the latter to implement CEPA 1999 and the Fisheries Act, and their regulations. Both levels of government retain full responsibility for carrying out inspections and investigations and for taking appropriate enforcement measures in order to ensure compliance with their respective requirements on the part of the industry.
During this reporting period more than 570 reports produced by pulp and paper facilities in Quebec were examined against the regulations pursuant to Fisheries Act. These administrative inspections and the 21 on-site inspections verified that the facilities were in compliance with the applicable regulations. As well, EC presented compliance verification reports to Quebec. These presentations are made during meetings of the Management Committee established by the Agreement. In 2010–2011, the Management Committee met twice, on November 15, 2010 and March 30, 2011.
Federal, provincial and territorial laws require, in most cases, notification of the same environmental emergency or environmental occurrence, such as an oil or chemical spill. In order to reduce duplication of effort, Environment Canada and Fisheries and Oceans Canada entered into Environmental Occurrences Notification Agreements (“Notification Agreements”) with the governments of Alberta, British Columbia, Manitoba, Ontario and Saskatchewan, as well as with the governments of the Northwest Territories and Yukon.
These Notification Agreements came into effect on March 25, 2011, on the day the Release and Environmental Emergency Notification Regulations under CEPA, 1999, and the Deposit Out of the Normal Course of Events Notification Regulations under the Fisheries Act, came into force.
The purpose of the Notification Agreements is to establish a streamlined notification system for persons required to notify federal and provincial/territorial governments of an environmental emergency or environmental occurrence (spill, release, etc.). Under these Notification Agreements, 24-hour authorities operating
for the provinces and territories receive notifications of environmental emergencies or environmental occurrences, on behalf of Environment Canada, and transfer this information to Environment Canada.
 Reporting data for the PPER are submitted through one of four electronic and/or paper based systems across Canada, depending upon which province a given mill is located. 2009 is the most recent year for which data have been pooled, tabulated and analysed at an aggregate level.
 Improving the Effectiveness and Efficiency of Pulp and Paper Environmental Effects Monitoring: A Smart Regulation Opportunity. (Environment Canada, December 2005)
 Metal Mining Environmental Effects Monitoring Review Team Report, (Environment Canada, 2007).
 Number of Inspections: Only closed files using the end date are tabulated. The number of inspections relates to the number of regulatees inspected for compliance under each of the applicable regulations.
 Number of Investigations: Investigations are tabulated by number of investigations files, based on the Start Date of the investigation. An investigation file may include activities relating to other legislation and may concern one or more regulations. Therefore, the total number of investigations shown by regulation may not add to the total at the legislation level.
 Incidents reported through provincial agreements are included in the summary enforcement data provided in Table 8.