Request a review of your project near water: Step 2. Understand the project review process
Before you request a review of your project or a project authorization, understand the overview of steps in this process:
1 Avoiding risks to fish and fish habitat
We encourage all project proponents to avoid working in or near water when possible in order to avoid the death of fish and the harmful alteration, disruption or destruction of fish habitat.
The measures to protect fish and fish habitat will help proponents avoid risks to fish and fish habitat. If there are aquatic species at risk in the area, proponents must also avoid harming, harassing, capturing or taking those species. Proponents who can implement these measures do not require a project review by the program.
2 Mitigating risks to fish and fish habitat
The Fish and Fish Habitat Protection Program recognizes that certain projects:
- must take place in or near water
- have the potential to cause harmful impacts to fish and fish habitat
We’ve developed a series of standards and codes of practice for routine works, undertakings and activities. These provide guidance on how to avoid and mitigate risks to fish and fish habitat and comply with the Fisheries Act and Species at Risk Act:
- Code of practice: beaver dam breaching and removal
- Code of practice: clear span bridges
- Code of practice: culvert maintenance
- Code of practice: end-of-pipe fish protection screens for small water intakes in freshwater (interim)
- Code of practice: ice bridges and snow fills
- Code of practice: routine maintenance dredging for navigation
- Code of practice: temporary fords
Public engagement on the following interim standards and codes of practice is underway:
- Code of practice: bridge repair and maintenance (interim)
- Code of practice: municipal and agricultural drain maintenance (interim)
- Code of practice: repair and maintenance of in-water structures (interim)
- Code of practice: repair, maintenance and construction of docks, moorings and boathouses (interim)
- Standard: in-water site isolation (interim)
3 Regulatory review
The various steps involved in the regulatory review of works, undertakings and activities under the Fisheries Act and the Species at Risk Act (and their respective regulations) are illustrated in the FFHPP Regulatory Review Process Map. The first page of this map demonstrates how proponents should use the guidance found on the Projects Near Water website to determine if a request for review form should be submitted.
In cases where risks to fish and fish habitat cannot be avoided, the project does not fall within water bodies where our review isn’t required, or the scope of the project is not entirely covered under a code of practice, proponents are asked to submit a request for review to their Fish and Fish Habitat Protection Program regional office.
Once a request for review form is received, the program will review the proposed project to identify risks to fish and fish habitat. The Fish and Fish Habitat Protection Program will work with the proponent to ensure that risks are managed in the best way possible.Pages 2-4 of the FFHPP Regulatory Review Process Map outline the internal decision making processes, including the review of submitted applications for Fisheries Act authorizations, and the various elements considered while conducting the review of proposed works, undertakings or activities in or near water.
4 Species at Risk Act Permit
- death, harm, harassment, capture or taking possession, collection, purchase, sale or trade of an individual (or any part or derivative of such an individual) of an aquatic species at risk
- damage or destruction of the residence of an aquatic species at risk
- the destruction of any part of the critical habitat of an aquatic species at risk
If the death of fish or the harmful alteration, disruption or destruction of fish habitat will likely result from a project, you are required to obtain an authorization from the Minister of Fisheries, Oceans and the Canadian Coast Guard as per Paragraph 34.4(2)(b) or 35(2)(b) of the Fisheries Act Regulations.
The authorization includes terms and conditions the proponent must follow to avoid, mitigate, offset (i.e. counterbalance impacts) and monitor the impacts to fish and fish habitat resulting from the project. Failure to abide by these terms and conditions is a contravention of the Act and may result in fines.
The Fish and Fish Habitat Protection Policy Statement explains the fish and fish habitat protection provisions of the Fisheries Act and outlines how the Department will implement these provisions.
If an aquatic species at risk or its critical habitat are also affected by the project, the authorization will also act as a SARA permit and contain terms and conditions to minimize impacts on the species and its critical habitat.
Offsetting impacts to fish and fish habitat
Offsetting impacts to fish and fish habitat is required when impacts can’t be avoided or mitigated and you’re applying for a project authorization.
The objective of offsetting is to counterbalance unavoidable impacts to fish and fish habitat.
The Policy for Applying Measures to Offset Impacts to Fish and Fish Habitat Under the Fisheries Act provides more offset guidance, consistent with the fish and fish habitat protection provisions of Canada’s Fisheries Act.
It’s recommended that an application for authorization only be pursued after a project review has been completed.
Consult our guidance documents for further information regarding authorizations.
Crown duty to consult and, when appropriate, accommodate
Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Indigenous Peoples of Canada. The Crown is required to consult with Indigenous Peoples (First Nation, Inuit or Metis Nation) when Aboriginal and treaty rights may potentially be adversely impacted by its decisions, including regulatory decisions under the Fisheries Act and Species at Risk Act.
For the Fish and Fish Habitat Protection Program (FFHPP), these include making a decision, among others, of whether to:
- authorize a work, undertaking or activity that results in the death of fish, other than by fishing, [Paragraph 34.4(2)(b) of the Fisheries Act]
- authorize a work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat [Paragraph 35(2)(b) of the Fisheries Act]
- enter into an agreement or issue a permit authorizing a person to engage in an activity affecting an aquatic species at risk, any part of its critical habitat or its residence [Subsection 73(1) of the Species at Risk Act]
- enter into a fish habitat bank arrangements with any proponent [Subsection 42.02(1) of the Fisheries Act], which would include, for instance, the description of the:
- proposed fish habitat bank, conservation project and service area [Paragraph 42.02(3)(a) of the Fisheries Act]
- administration, management and general operation of the arrangement by the parties (e.g. [Paragraph 42.02(3)(c) of the Fisheries Act ]
- making an environmental effects determination of a project on federal lands [Section 82 of the Impact Assessment Act]
These decisions are “Crown conduct” to which the duty to consult will apply and, when appropriate to accommodate, when Aboriginal or treaty rights may potentially be adversely affected.
The Department, through FFHPP, is legally required to address the Crown’s duty to consult and accommodate when recommending authorization decisions to the Minister of Fisheries and Oceans under the Fisheries Act and Species at Risk Act and to address any other consultation requirements that may apply under the Fisheries Act, Species at Risk Act or other federal statutes.
Other than during the duty to consult and accommodate, it is recognized that there are various situations when FFHPP would be leading or would be an active participant in Indigenous consultations activities, for example, when FFHPP:
- abides by the Species At Risk Act requirements, that must be met prior to the issuance of a permit, to consult wildlife management boards and bands under the Indian Act when the affected aquatic species at risk is found in land claim settlement areas, reserves or any other lands that are set apart for the use and benefit of a band [Subsections 73(4) and (5) of the Species at Risk Act]
- as a Federal Authority, participates in impact assessments of designated projects, regional assessments and strategic assessments under the Impact Assessment Act
- provides advice and makes decisions (in certain cases) to support environmental and impact assessments under federal legislation and agreements, such as:
- Mackenzie Valley Resource Management Act
- Inuvialuit Final Agreement
- Nunavut Planning and Project Assessment Act
- Yukon Environmental and Socio-Economic Assessment Act
- addresses consultation obligations set out in land claims agreements and modern treaties.
Information for Proponents
Addressing FFHPP’s consultation responsibilities may take time and may affect the timing of authorization decisions. Proponents of projects seeking authorizations under the Fisheries Act or permits under the Species at Risk Act should take this into consideration when planning their projects.
When consultation with Indigenous groups is required in relation to the Fisheries Act authorization decision, paragraph 4(6)(d) of the Authorizations Concerning Fish and Fish Habitat Protection Regulations ceases the 90-day time limit for the Minister (or delegate) either to issue an authorization or notify the applicant of the refusal until the consultation is adequate. The ceased 90-day time limit for carrying out consultation does not prevent FFHPP from continuing to review the application or from communicating with the proponent. Continued communications between FFHPP and the proponent may be necessary to address concerns raised by Indigenous groups. Note that consultation with Indigenous groups is not bound by specific timelines and thus, may take time - proponents should plan accordingly. Once consultation is adequate, the 90-day time limit will start over during which FFHPP will make a recommendation to the Minister (or delegate) on whether or not to issue the authorization - the proponent will be informed of the decision.
It is also noted that through consultation with Indigenous groups, FFHPP and the proponent may receive new information about impacts to fish and fish habitat and Aboriginal and treaty rights. Based upon the information received, FFHPP may discuss with the proponent and recommend changes to the proposed work, undertaking or activity, and/or measures to avoid, mitigate and offset impacts to fish and fish habitat in order to address Indigenous concerns and impacts to Aboriginal and treaty rights, as well as better protect and conserve fish and fish habitat. In this case, the proponent will be informed to submit new or amended information or documentation, as per paragraph 4(6)(c) of the Authorizations Concerning Fish and Fish Habitat Protection Regulations.
As for applications seeking a Species at Risk Act permit, subsection 3(3) of the Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations establishes that the 90-day time limit does not apply when Indigenous consultations are necessary during the review.
Proponents undertaking early engagement with Indigenous groups whose Aboriginal or treaty rights may potentially be adversely affected
While it remains the Crown’s obligation to consult with Indigenous groups when contemplating conduct (such as a Fisheries Act authorization) that may adversely affect Aboriginal or Treaty rights, proponents can engage and work with Indigenous groups early in the development of their project plans to identify and address their potential concerns before applying for authorizations under the Fisheries Act. FFHPP, as the Crown, can rely upon the outcome of those discussions, such as proposed measures to avoid, eliminate and minimize adverse impacts to Aboriginal and treaty rights, or if not possible, means to accommodate. It is strongly recommended that communications between proponents and Indigenous groups begin long before an application for authorization is submitted.
The proponent also benefits from keeping detailed records of all discussions, meetings and correspondence that have occurred. It is expected that proponents will develop positive working relationships with Indigenous groups and that such relationships will be maintained throughout the lifecycle of their projects. This is becoming increasingly important as proponents continue to do business within Indigenous territories.
In addition, when the proponent is the federal or provincial Crown, the proponent may also have a duty to consult Indigenous groups and to accommodate, as appropriate. With consultation undertaken prior to submitting an application for authorization, FFHPP will have more to rely upon in determining what additional consultation may be required in relation to the Fisheries Act decision. Further, FFHPP and the Crown proponent may also discuss how to coordinate consultation to address their respective duty to consult obligations.
Indigenous groups may wish to provide Indigenous knowledge that should be applied to the review of the project. Proponents should work with the Indigenous groups to ensure Indigenous knowledge is being applied appropriately to the review of the relevant phase of the project. Indigenous groups and their knowledge can inform the design of projects and measures to manage adverse effects on fish and fish habitat, including offsetting. They can also inform measures to mitigate adverse impacts on their Aboriginal and treaty rights. If the Indigenous knowledge is shared with FFHPP, proponents are responsible to ensure that they have the appropriate approval(s) from the group providing the Indigenous knowledge.
During consultations conducted by proponents on their projects, it is beneficial to include discussions related to potential impacts to fish and fish habitat, impacts on Aboriginal treaty rights and any measures the proponent is taking to address these. Doing so may support FFHPP in meeting its requirements for consultations. Information provided by proponents on how issues and concerns raised by Indigenous groups have been considered and addressed will assist FFHPP in developing, in part, the Crown’s understanding of potential impacts to Aboriginal and treaty rights in relation to the decision and can support the Crown’s consultation. As per Section 7 of Schedule 1 of the Authorizations Concerning Fish and Fish Habitat Protection Regulations, a proponent applying for an authorization under the Fisheries Act is required to include in the application for authorization a “description and the results of any consultations undertaken in relation to the proposed work, undertaking or activity, including with Indigenous communities or groups...”.
Further information is available at: DRAFT Consultation and Accommodation Advice for Proponents
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