Back to What We HADD: Introducing New Regulations under the Fisheries Act

by Marika Cherkawsky and JoAnn P. Jamieson

On August 28, 2019, the Federal Government introduced the Authorizations Concerning Fish and Fish Habitat Protection Regulations (the “Regulations”).  The new Regulations provide an updated process for the submission and review of applications for Fisheries Act authorizations, as well as a new scheme to support applications to amend, suspend or cancel previously issued authorizations.  The new Regulations were introduced under the recently amended Fisheries Act (the “Act”), which brought back the pre-2012 prohibitions against the death of fish and the harmful alteration, disruption and destruction of fish habitat (“HADD”), as well as providing for more comprehensive protection of fish and fish habitat in Canada.  

Submission and Review of Applications

 

The Regulations set out the information and documentation that must be submitted to the Minister to obtain an authorization to carry out work or an activity that results in the death of fish (section 34.4(2)(b) of the Act) and the HADD of fish habitat (section 35(2)(b) of the Act).  The Regulations provide that an applicant must be notified by the Minister within 60 days of receipt of an application as to whether the application is complete, incomplete or inadequate.  Upon completion of the application, the Minister must make a decision on whether to issue or refuse the authorization within 90 days.  The Regulations allow for the cessation or restarting of these time limits in certain situations, such as where consultation with Indigenous groups or the public at large is required before a decision can be made.

 

Factors to be Considered

 

In assessing applications, the Minister is required to consider the factors set out in section 34.1 of the Act, which include:

• the contribution to the productivity of relevant fisheries by the fish or fish habitat that is likely to be affected; 
• fisheries management objectives; 
• whether there are measures and standards 
• to avoid the death of fish or to mitigate the extent of their death or offset their death, or 
• to avoid, mitigate or offset the HADD of fish habitat; 
• the cumulative effects of the carrying on of the work, undertaking or activity referred to in a recommendation or an exercise of power, in combination with other works, undertakings or activities that have been or are being carried on, on fish and fish habitat;
• any fish habitat banks, that may be affected; 
• whether any measures and standards to offset the HADD of fish habitat give priority to the restoration of degraded fish habitat; 
• Indigenous knowledge of the Indigenous peoples of Canada that has been provided to the Minister; and 
• any other factor that the Minister considers relevant.

Amendments, Suspensions or Cancellations

 

The Regulations also set out a process for authorization holders to request amendments, suspensions or cancelations of authorizations.  The timeline for such requests are the same as those for an initial application for authorization.

In addition, the Regulations provide a process for the Minister, at his or her own initiative, to amend, suspend or cancel any authorization under circumstances such as where the Minister has reasonable grounds to believe that conditions in the authorization have not been or will not be met, or where new information demonstrating that the impact to fish and fish habitat is significantly greater than originally anticipated. The Minister will be required, however, to provide the authorization holder with written notice of his or her intention and provide the authorization holder with an opportunity to make written representations. 

Habitat Credits

 

The Regulations introduces “habitat credits” as an offsetting measure to counterbalance the possible death of fish and the HADD of fish habitat caused by the proposed work.  A “habitat credit” is defined as “a unit of measure that is agreed to between any proponent and the Minister”, which quantifies the benefits of a project that is carried on by a proponent for the purpose of creating, restoring or enhancing fish habitat within an area in order to acquire habitat credits for his or her future projects.  Going forward, the applicant may use his or her certified habitat credits as a proposed means of offsetting impacts from proposed work, rather than creating a new offsetting plan.

 

Additional Changes

 

The Regulations also introduce the following changes:

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• Applicants are allowed to rely on financial security aside from irrevocable letters of credit, in order to increase financial flexibility for applicants;
• Applicants must provide the geographic coordinates and small-scale site plan identifying the overall location and boundaries of the location of proposed offsetting measures;
• Applicants must include information about any consultation with Indigenous communities or groups and the public already undertaken prior to submitting the application; and
• The term “fish habitat” replaces the reference to “water source or water body” to better reflect an intent to obtain a description of the fish and fish habitat at the location of the proposed work.

Note that the federal Department of Fisheries and Oceans has committed to provide further guidance and clarification of a number of elements of the Regulation, including the definition of key terms such as “death of fish”, “fish habitat”, and the “harmful alteration, disruption, or destruction” of fish habitat as well as clarification around the concept of the habitat banking system and use of habitat credits.

Conclusion

 

The amended Fisheries Act seeks to improve the protection of all fish and fish habitat in Canada, not just those related to a “commercial, recreational or Aboriginal fishery” or when there is “serious harm to fish” as stipulated under the previous version of the Fisheries Act. The implementation of the Regulation provides a detailed scheme to accomplish that stated objective.