Book 2, Tab B5 - Fish and fish habitat protection decision-making

On this page

• Purpose
• Protections for fish and fish habitat
• Impact assessments
• Mining and Section 36 of the Fisheries Act
• How does the department undertake project reviews?
• How does the department manage risk of harmful impacts?
• How does the department monitor decisions and report to Canadians?
• What are the current issues for the department?
• Annex: Supporting the Clean Growth Agenda

Purpose

To provide an overview of Fisheries and Oceans Canada’s (DFO) responsibilities related to:

• protection for fish and fish habitat
• federal impact and environmental assessments
• the Metal and Diamond Mining Effluent Regulations and other requirements under Section 36 of the Fisheries Act

Protections for fish and fish habitat

Under the Fisheries Act, an authorization from DFO is required for works, undertakings and activities that may result in harmful impacts to fish and fish habitat.

• DFO officials base decisions on best available science, level of risk, Indigenous knowledge, impact on Indigenous rights, etc.

Under the Fisheries Act, DFO also has the authority to recommend regulations be made under the fish and fish habitat protection provisions of the act. Such regulations could:

• establish ecologically significant areas to protect Canada’s most sensitive, productive, rare, or unique ecosystems
• prescribe works or waters that can be excepted from the prohibitions against harmful impacts to fish and fish habitat under prescribed conditions
• identify designated projects to improve predictability for proponents of major works

DFO may also make regulations related to other aspects of fish and fish habitat, including:

• death of fish and protection of fish habitat
• respecting the flow of water to ensure fish passage

The department has arrangements with other federal agencies (Canada Energy Regulator, Canadian Nuclear Safety Commission) and with some provinces (NB, NS, and PEI) that allow them to conduct preliminary reviews of project risks to fish and fish habitat.

To note

DFO also has authorities to protect and conserve fish and fish habitat under the Species at Risk Act (see Species at Risk decision making deck) and the Aquatic Invasive Species Regulations.

Aquatic Invasive Species (AIS)

DFO’s AIS program aims to protect Canadian marine and freshwater ecosystems from the introduction and spread of AIS, and to mitigate the negative impacts of established invasive species for the benefit of Canada’s biodiversity, economy, and society.

Impact assessments

• DFO provides its expert advice on potential impacts to fish and fish habitat and aquatic species at risk, as well as other areas under the department’s mandate (e.g., fisheries management), for assessments under the Impact Assessment Act and other federal impact and environmental assessment regimes in Canada, such as those in the territories.
• Specific to federal assessment regimes in the territories, the department not only provides its expertise, but may also act as a Decision Body/Responsible Minister under relevant legislation for projects that may require a regulatory approval.
• DFO also participates in consultation, led by the Impact Assessment Agency of Canada or by the Northern Project Management Office, with Indigenous Peoples during impact assessment processes.
• DFO also has responsibilities under the Impact Assessment Act to conduct assessments of projects on federal lands when implementing or enabling these projects to proceed through the issuance of funding, land, or regulatory decisions. DFO may participate or lead on any associated Indigenous consultations during the assessment process.
• For projects subject to federal impact or other environmental assessments, Fisheries Act authorizations cannot be issued until the impact or environmental assessment is complete and the decision allows the project to proceed.

Mining and Section 36 of the Fisheries Act

• Mining facilities in Canada are subject to the Metal and Diamond Mining Effluent Regulations established under section 36 of the Fisheries Act and administered by Environment and Climate Change Canada, including enforcement (in accordance with the Compliance and Enforcement Policy for the Fish and Fish Habitat Protection and Pollution Prevention Provisions of the Fisheries Act). Under the Regulations, mining facilities are required to undertake specific measures to offset impacts to fish and fish habitat in water bodies designated as tailing impoundment areas.
• DFO provides expert advice to Environment and Climate Change Canada on approving Fish Habitat Compensation Plans.
• Fish Habitat Compensation Plans areprepared by project proponents to offset direct loss of fish habitat resulting from mine waste disposal as well as direct and indirect losses permitted under the Fisheries Act.
• Environment and Climate Change Canada is developing new Coal Mining Effluent Regulations to manage the threats to fish and fish habitat of new and existing coal mines. The proposed Regulations are targeted for publication in the Canada Gazette, Part I in the spring of 2025, for a 60-day consultation period.

Quick fact

The Metal Mining Effluent Regulations, which came into force on December 6, 2002, were amended on June 1, 2018, and became the Metal and Diamond Mining Effluent Regulations.

How does the department undertake project reviews?

• The department assesses proposed projects to determine the risk of impacts to fish and fish habitat under the Fisheries Act, Species at Risk Act and Aquatic Invasive Species Regulations.
• For works, undertakings and activities that may result in harmful impacts, a Ministerial authorization is required – consultation with Indigenous Peoples is undertaken if the authorization may result in impacts to Indigenous rights.

Factors to Consider Checklist (when making decisions related to the fish and fish habitat protection provisions of the Fisheries Act, such as issuing an authorization)

• contribution to productivity of fisheries
• fisheries management objectives
• any measures or standards to avoid, mitigate or offset death of fish or harmful alteration, disruption or destruction of fish habitat
• the cumulative effects of carrying out the project
• impacts on any fish habitat banks
• whether measures to avoid harmful alteration, disruption or destruction prioritize restoration of degraded habitat
• Indigenous knowledge provided
• any other factor considered relevant

How does the department manage risk of harmful impacts?

The department works with proponents to avoid or mitigate impacts whenever possible, and, when necessary, to offset harmful impacts to fish and fish habitat.

Avoid

Provide advice and guidance to avoid impacts to fish and fish habitat. Measures to avoid impacts can be found on the Projects Near Water website (i.e., Measures to Protect Fish and Fish Habitat)

Mitigate

Provide advice and guidance to mitigate (minimize) impacts to fish and fish habitat.

Offset

Determine offsetting required when harmful impacts to fish and fish habitat can’t be avoided or mitigated. This can include building new habitat near to the project site.

How does the department monitor decisions and report to Canadians?

DFO is committed to monitoring compliance and ensuring program effectiveness and continuous improvement by:

• evaluating conformity to management measures recommended or imposed by the Department
• collaborating with DFO Science to better understand the effectiveness of measures aimed at avoiding, mitigating and offsetting impacts to fish and fish habitat
• working with the department’s Conservation and Protection service to monitor compliance with the Fisheries Act and the Species at Risk Act and with authorizations or permits issued under these Acts

The department’s Fisheries Act Registry makes information accessible to Canadians about projects in or near water that are authorized under the Act.

• New information will be added to the Registry over time (e.g., authorization documents and state of fish and fish habitat reporting)

What are the current issues for the department?

Program Implementation

In 2019, the Fisheries Act was amended to strengthen environmental protections and add modern safeguards, as well as to improve regulatory clarity for development projects, and advance reconciliation with Indigenous Peoples.

Implementation of the Impact Assessment Act

The department continues to work with the Impact Assessment Agency of Canada to clarify roles and responsibilities.

Supporting Priority Initiatives and Regulatory Efficiency

While working closely with other departments to scope and advance the clean growth initiative on a broader scale, DFO is looking at ways the department can improve its regulatory process.

Program Coherence & Consistency

DFO regulatory decision making for fish and fish habitat protection has relied on a risk management framework, related guidance and policies, and supporting digital infrastructure for over two decades. Currently, DFO is directing focussed effort to release additional risk management guidance, enhance and standardize the risk-based approach to decision making, and develop more integrated digital service delivery including the consideration of mechanisms for DFO to recover costs.

Annex: Supporting the Clean Growth Agenda

In September 2023, the Prime Minister announced the creation of the Ministerial Working Group on Regulatory Efficiency for Clean Growth Projects. This Working Group released an Action Plan (June 2024) and Cabinet Directive (July 2024).

The Action Plan and the Cabinet Directive call for:

• the creation of a federal permitting coordinator housed in the Privy Council Office
• the creation of a clean growth office housed in the Privy Council Office
• the creation of a crown consultation coordinator
• targets of two and five years to complete the assessment of non-designated and designated projects, respectively (“designated” refers to a project to be assessed under the Impact Assessment Act)
• a commitment that regulatory departments like DFO review internal and external guidance to improve predictability and transparency of regulatory processes
• a commitment to publicly track progress on clean growth projects on a public facing dashboard

In response, DFO is working across its regions and with other key federal departments to advance each of the above commitments to improve the efficiency of its regulatory processes.