The Fisheries Protection Provisions of the Fisheries Act: Before and after the 2012/2013 Amendments
Before the 2012/2013 Amendments
To address threats to fish from habitat loss/degradation and changes to natural flow regimes, the Fisheries Protection Program (formerly the Habitat Protection Program) administered the habitat protection provisions of the Fisheries Act, which remained essentially unchanged from 1977 until 2012.
The habitat protection provisions included two principal prohibitions:
- a prohibition against of the destruction of fish by means other than fishing (Section 32); and
- a prohibition against the harmful alteration, disruption or destruction of fish habitat, informally called the HADD prohibition (Section 35).
Under the habitat protection provisions, the Minister of Fisheries and Oceans had the authority to issue authorizations that would allow the impacts to occur under certain conditions.
The application of the former Section 35 prohibition was supported by the Policy for the Management of Fish Habitat, which had as its policy objective the “net gain of habitat for Canada’s fisheries resources,” i.e., to increase the natural productive capacity of habitats for the nation's fisheries resources, to benefit present and future generations of Canadians.
The Fisheries Act also gave the Minister the authority to require the construction, maintenance and operation of fish passage facilities at obstructions, to require sufficient water flow at all times below an obstruction, and to require the installation and maintenance of fish guards and screens to prevent the passage of fish into intakes and channels.
After the 2012/2013 amendments
The intention of the 2012/2013 changes to the Fisheries Act was to:
- focus the Act’s regulatory regime on managing threats to the sustainability and ongoing productivity of Canada’s commercial, recreational and Aboriginal fisheries;
- provide enhanced compliance and protection tools;
- provide clarity, certainty and consistency of regulatory requirements through the use of standards and regulations; and
- enable enhanced partnerships to ensure agencies and organizations that are best placed to provide fisheries protection services to Canadians are enabled to do so.
A key amendment was the replacement of the two prohibitions in the former Act with one new prohibition (also numbered Section 35) against “the carrying on of a work, undertaking or activity that results in serious harm to fish that are part of or support a commercial recreational or Aboriginal fishery.”
In the amended Act, “serious harm to fish” is defined as: “the death of fish or the permanent alteration to, or destruction of, fish habitat,” with fish habitat defined as “spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes.”
Definitions are also provided in the Act to clarify the scope of application of the prohibition against serious harm to fish. The terms “fish,” “commercial,” “recreational” and “Aboriginal” in relation to a fishery are defined.
fish: includes (a) parts of fish, (b) shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals, and (c) the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals. (Subsection 2(1))
commercial, in relation to a fishery: means that the fish is harvested under the authority of a licence for the purpose of sale, trade or barter. (Subsection 2(1))
recreational, in relation to a fishery: means that fish is harvested under the authority of a licence for personal use of the fish or for sport. (Subsection 2(1))
Aboriginal, in relation to a fishery: means that fish is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Aboriginal organization. (Subsection 2(1))
The Minister of Fisheries, Oceans, and the Canadian Coast Guard has the authority to issue authorizations that would allow the works, activities or undertakings to occur that cause serious harm to fish, under certain conditions.
The application of the fisheries protection provisions are supported by policy guidance in the Fisheries Protection Policy Statement (2013), with the policy goal of providing for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.
Lastly, the provisions related to obstructions and fish passage remained relatively unchanged (Sections 20 and 21). The provisions were consolidated and updated. In summary, these provisions:
- allow the Minister to request studies and evaluations related to obstructions or other things that may be hindering fish passage or harming fish;
- allow the Minister to request: the removal of or modifications to obstructions or things that are harmful to fish or impede flow or fish passage; the installation of fish-ways, screens and guards; or that sufficient water flow be provided for fish passage; or
- prohibit the damage or removal of fish-guards, fish-ways, and screens.
The amended Fisheries Act gives the Minister the ability to develop regulations to ensure compliance with the prohibition and that improve certainty and transparency in the regulatory process. For example:
- Regulations that spell out for proponents the information and documentation that must be submitted in applications for authorization under paragraph 35(2)(b) of the Fisheries Act. Once an application for authorization is received, the Department is bound under these regulations by set time limits for the processing of those applications and a decision on the issuance of an authorization, if required.
- Incorporation by reference into regulations, will allow the department to recognize externally-developed standards (i.e., not developed by Fisheries and Oceans Canada), as appropriate to guide activities in and near waters that require our management.
- Equivalency of regulatory regimes could be established if the provincial regime “meets or beats” provisions of the Fisheries Act or its regulations.
- The Act allows the department and the Minister to identify areas where authorization, and therefore analysis by the department, will not be required.
- Finally, the amendments provide the Minister with the ability to designate ecologically significant areas for fish. The Minister may require higher levels of protection for such areas and proponents would be required to submit plans for review if any activities are proposed within these areas.
Compliance and enforcement
The amended Act includes a number of provisions that improve the compliance and protection of commercial, recreational and Aboriginal fisheries. For example, authorities have been granted to the Minister to effectively address threats such as aquatic invasive species.
In addition, a number of provisions enable enhanced protection of these fisheries by:
- aligning the Fisheries Act with the Environmental Enforcement Act (increased fines and penalties for offences);
- creating more easily enforceable conditions for Ministerial authorizations;
- modernizing inspector powers to assist them in ensuring compliance with Section 35; and
- establishing a “duty to notify” provision to establish obligations on persons whose actions result in harm to fish habitat to report and to take corrective measures.
Finally, the amendments provide the Minister with the ability to designate ecologically significant areas for fish. The Minister may require higher levels of protection for such areas and proponents would be required to submit plans for review if any activities are proposed within these areas.
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