Frequently Asked Questions - Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations (Fisheries Act Applications Regulations)

Background

Q1 What are the Fisheries Act Applications Regulations?

A1The Fisheries Act Applications Regulations are regulations that identify the information to be submitted with applications for paragraph 35(2)(b) Fisheries Act authorizations.

They also establish a process and time limits to be applied by the Minister of Fisheries and Oceans for the review of these applications.

The Regulations are in effect on November 25, 2013.

Q2 Do I have to pay a fee with my application?

A2 No. There is no processing fee for an application for authorization.

Q3 Why were the Fisheries Act Applications Regulations developed?

A3The recent changes to the Fisheries Act were part of the Government of Canada's initiative for Responsible Resource Development under Canada's Economic Action Plan. The changes establish new Fisheries Protection Provisions which focus Fisheries and Oceans Canada's regulatory regime on the management of threats to commercial, recreational and Aboriginal fisheries and to fish and fish habitat that support these fisheries.

The Fisheries Act Applications Regulations support the new section 35 (serious harm to fish) of the Fisheries Act. They provide clarity, transparency and regulatory certainty for proponents, which are key objectives of the Responsible Resource Development initiative.

Q4 Who do the Fisheries Act Applications Regulations apply to?

A4 The Fisheries Act Applications Regulations apply to anyone seeking a paragraph 35(2)(b) Fisheries Act authorization from the Minister of Fisheries and Oceans to carry on any work, undertaking or activity that is likely to result in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.

Applicants must satisfy the information requirements set out by the Regulations in their applications.

The Minister must apply the process and time limits set out in the Regulations when reviewing applications for authorization.

Application Process (Normal Circumstances)

Q5 What are the time limits?

A5 There are two time limits set out in the Fisheries Act Applications Regulations for processing applications under normal circumstances:

  • A 60-day time limit for the review of an application to determine whether the required information has been submitted and the application is complete; and
  • A 90-day time limit, from the date of the notification that the application is complete, to issue the authorization or notify the applicant of a refusal to issue an authorization.
Q6 Why might the processing of an application be stopped or resumed?

A6 The 60 or 90-day time limit for processing applications for authorizations may be ceased under the following circumstances:

  • there is a change to the proposed work, undertaking or activity, or the offsetting plan requiring additional or amended information;
  • an applicant asks that the process be delayed or stopped;
  • circumstances occur that require new or updated information; e.g., if a provincial regulatory or environmental assessment process raises issues that must be resolved before the authorization is issued or results in changes to the project or offsetting plan;
  • consultation requirements, such as those with Aboriginal groups, must be addressed prior to a decision on the issuance of an authorization; and
  • federal requirements, such as those under the Canadian Environmental Assessment Act, 2012, must be addressed before a decision on the issuance of an authorization can be made.

The processing of an application is resumed when:

  • additional or updated information is provided;
  • the applicant requests in writing a resumption of their suspended application processing;
  • Fisheries and Oceans Canada determines that it has completed its consultation requirements; and
  • other federal requirements have been met to allow the Minister to make the Fisheries Act authorization decision.
Q7 What happens when the processing of an application is stopped or resumed?

A7The Fisheries Act Applications Regulations require the Minister of Fisheries and Oceans to notify applicants, in writing, about the circumstance for stopping the processing of applications. If an application is incomplete, the Minister must also identify the information gaps.

The Regulations also require the Minister to notify applicants, in writing, of the resumption of the processing of applications.

The department will undertake these notifications on behalf of the Minister.

Q8 How can I stop the processing of my application?

A8 An applicant may request to have the processing of their application delayed or to have their application withdrawn. All requests must be made, in writing, to the Minister of Fisheries and Oceans, and should be directed to the Fisheries Protection Program office where the application was submitted.

Information Requirements (Normal circumstances)

Q9 What information needs to be submitted in an application for authorization made under normal circumstance?

A9 An application for an authorization made under normal circumstances must include all information listed in Schedule 1 of the Fisheries Act Applications Regulations and a letter of credit.

Applications must include the following information and document:

  • Contact Information;
  • Description of proposed work, undertaking or activity;
  • Timeline;
  • Location;
  • Description of fish and fish habitat (aquatic environment);
  • Description of effects on fish and fish habitat;
  • Measures and standards to avoid or mitigate serious harm to fish;
  • Residual serious harm to fish after implementation of avoidance and mitigation measures and standards;
  • Offsetting plan; and
  • Letter of credit (exemption for applications submitted by Federal, Provincial or Territorial Governments)
Q10 Is it necessary to submit a Letter of Credit with my application made under normal circumstances?

A10 Yes. The Fisheries Act Applications Regulations require that all applications for authorization made under normal circumstances must include a letter of credit to cover the cost of implementing an offsetting plan. There is anexception to this requirement when the applicant is Her Majesty in right of Canada or Her Majesty in right of a province or the government of a territory (i.e., the federal government or a provincial or territorial government) .

Applications for authorizations made under emergency circumstances are not required to include a letter of credit.

Q11 Is it necessary to submit all the information and documentation set out in the Fisheries Act Applications Regulations?

A11 Yes. Not submitting all of the information and documentation prescribed by the Fisheries Act Applications Regulations will likely result in delay with the processing of your application. If there are gaps in the information/documentation provided, the Minister of Fisheries and Oceans will notify you accordingly and your application will not be processed until the required information and documentation are submitted.

Q12 Can an application for authorization be supported with the information provided to Fisheries and Oceans Canada during preliminary discussions in advance of making an application?

A12 An applicant must attach all supporting information and relevant documentation prescribed by the Fisheries Act Applications Regulations to their application. If this information was provided to Fisheries and Oceans Canada during preliminary discussions and the applicant chooses not to re-submit the information, the applicant must appropriately reference the information or titles of documents previously submitted, as well as identify the submission date and any appropriate reference number in their application.

Emergency Circumstances

Q13 Are emergency circumstances identified in the Fisheries Act Application Regulations?

A13 Section 4 of the Fisheries Act Application Regulations provides the following three emergency circumstances in relation to applications in respect of a work, undertaking or activity to be carried on without delay:

  • a matter of national security;
  • a national emergency for which special temporary measures are taken under the Emergencies Act; or
  • an emergency that poses a risk to public health or safety or to the environment or property.
Q14 Why are separate requirements set out for projects undertaken in response to emergencies?

A14 To allow for the timely issuance of authorizations required under emergency circumstances, the Fisheries Act Applications Regulations set out a separate set of comprehensive information requirements, with fewer requirements, for applications made in response to emergencies circumstances.

Q15 What information needs to be submitted in an application made under emergency circumstance?

A15 An application for an authorization made under emergency circumstances must include all information listed in Schedule 2 of the Fisheries Act Applications Regulations.

These applications must include the following information:

  • Contact information;
  • Nature of the matter of national security, national emergency or emergency;
  • Proposed work, undertaking or activity;
  • Timelines;
  • Location; and
  • Description of the serious harm to fish that is likely to result from the proposed work, undertaking or activity.

Applications for authorizations made under emergency circumstances are not required to include a letter of credit.

Q16 What should I do if my emergency work, activity or undertaking is time sensitive and I am unable to apply for an authorization because I must proceed immediately?

A16 It is understood that responding to emergency circumstances often requires immediate action. Schedule 2 of the Fisheries Act Applications Regulations set out the information to be included in an application for an authorization made for an emergency work, undertaking or activity. There are no time limits established for processing applications made in response to emergency circumstances. Such applications will be reviewed on a priority basis.

During exigent circumstances, where a person causes serious harm to fish that is not authorized under the Fisheries Act, or causes a serious and imminent danger of such an occurrence, the person must without delay notify an inspector, or fishery officer or an authority prescribed by regulations of the occurrence as required under subsection 38(4) of the Fisheries Act.

Related Questions

Q17 Should I submit a new application for authorization under the Fisheries Act Applications Regulations if the processing of my application, submitted before November 25, 2013, is still ongoing?

A17 An applicant who has submitted an application for authorization before the Fisheries Act Applications Regulations came into force, i.e., submitted before November 25, 2013, should not submit a new application under the Fisheries Act Applications Regulations.

The ongoing review of these applications is not subject to the procedural process and time limits set out by the Regulations. The Minister of Fisheries and Oceans will review these applications in a timely manner, along the principles set out by the Regulations, in context of the new section 35 Fisheries Act provisions; i.e. "serious harm to fish".

Q18 Should I submit an application and information requirements set out in the Fisheries Act Applications Regulations if I am requesting to confirm, amend or cancel an existing authorization under Section 177 of the Fisheries Act?

A18 No. The Fisheries Act Applications Regulations do not apply to requests to confirm, amend or cancel existing authorizations under section 177 of the Fisheries Act. Authorization holders seeking a review of their authorization should not apply the Regulations.

Q19 If I need more than one authorization for my project, can I submit a single application for authorization?

A19No. Every request for a paragraph 35(2)(b) Fisheries Act authorization to the Minister of Fisheries and Oceans must be made individually. Each application must meet the requirements set out in the Fisheries Act Applications Regulations.

Applicants with projects requiring multiple authorizations should contact Fisheries and Oceans Canada early in their planning to discuss the authorization requirements of their projects.