The Fisheries Act Changes: Shifting Focus
Environmental lawyer Bill McNaughton explains some of the proposed changes to Canada's Fisheries Act.
On April 26, 2012 the federal Parliament gave first reading to Bill C‑38, the Jobs, Growth and Long-term Prosperity Act, with second reading on May 14, 2012. This lengthy statute implements the federal government’s recent Budget, including major changes to the Fisheries Act, as well as repealing and replacing the current Canadian Environmental Assessment Act with an entirely new statute.
The biggest change in the Fisheries Act is the shift from habitat protection to fisheries protection. The government’s announced intention is to adopt a “more sensible and practical approach to protecting Canada’s fisheries” by moving away from the all encompassing fish habitat protection, which the Government describes as “indiscriminate and unfocused and [not reflecting] the priorities of Canadians.”
The current Fisheries Act protects all fish habitat regardless of where located or whether it is part of an active or productive fishery. Section 35(1) currently reads: “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat” (often called a “HADD”). The amendments would change this prohibition to: “No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery”, and adds definitions for commercial fishery (a fishery for the purpose of sale, trade or barter), recreational fishery (a fishery for personal use or sport) and Aboriginal fishery (a fishery by an Aboriginal organization or any of its members for the purpose of using the fish as food, subsistence, social, or ceremonial purposes). The Ministry says these changes will “protect the fisheries that Canadians value and the habitat that supports them” while at the same time “minimizing restrictions on every day activities that have little to no impact on Canada’s fisheries”.
Many commentators have suggested this means the elimination of habitat protection. That is incorrect. The key is in “serious harm to fish” which means the death of fish or any permanent alteration to, or destruction of, fish habitat. General protection for all fish habitat is gone, replaced by reduced habitat protection focused on permanent changes to fish habitat that is associated with the three protected types of fisheries and the fish that support them.
While habitat protection is reduced and focused on fisheries, the pollution protection provisions in the Fisheries Act that prohibit the deposit of deleterious substances in water frequented by fish are not changed. However, the Minister will be given new, discretionary regulation making powers to authorize the deposit of deleterious substances of certain classes, into particular waters and places, or arising from particular classes of works, undertakings or activities, and the power to establish conditions regarding the quantity or concentration of these deleterious substances that can be deposited. Bill C-38 will also permit the Governor in Council to designate another Minister as the Minister responsible for the administration and enforcement of the provisions in the Act dealing with prohibiting and authorizing deleterious deposits.
Approvals for projects that impact fish habitat will also change once the amendments come into force. The requirement in s. 37 to provide plans and specifications, currently applicable to a HADD, will only apply where a project will result in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery. However, there will be special treatment for any projects that impact an “ecologically significant area.” These areas will be established by regulation and will require information be provided on request or as dictated by the regulations. The s. 35(2) authorization for projects to impact habitat without contravening the Fisheries Act will be expanded to allow three different categories of work, undertaking or activities: (a) those prescribed by regulation; (b) those authorized by the Minister; and (c) those authorized by another prescribed person or entity who has been set up to allow authorizations under the regulations.
There are also new statutory factors that must be considered in exercising these powers to approve projects. The purpose of these factors is to provide for the “sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.” The factors themselves are: (a) contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries; (b) fisheries management objectives; (c) whether there are measures to avoid, mitigate or offset serious harm to fish that are pare of the protected fisheries; and (d) the public interest. These provisions will bring economic factors into play for every approval to be issued under s. 35(2).
A new duty to report harm to habitat, which will compliment the duty to report deposits of deleterious substances (only recently effective with regulations which came into force March 25, 2011), will provide some further habitat protection. Initially this duty to report covers an unauthorized HADD but when the C‑38 amendments are fully in force it will apply only to a unauthorized occurrence that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery or support such a fishery. While this would require reporting on the permanent alteration or destruction of habitat it leaves a grey area since fish habitat generally will no longer be protected.
The revisions to the Fisheries Act will also allow the Minister to enter into agreements with provinces and with other bodies to further the purposes of the Act. Such agreements with provinces may provide that where there is in force an equivalent provision under the laws of the province certain provisions of the Act or of the regulations will no longer apply in that province, effectively downloading administration and enforcement of those provisions to that province.
The other major change will come in the enforcement provisions. Penalties are going up! The penalty regime from the Environmental Enforcement Act (Royal Assent June 18, 2009 but only in force in part in December, 2010) will now be coming to the Fisheries Act. This penalty regime brings in significantly higher maximum fines, mandatory minimum fines, and different maximum and minimum fines for individuals, small corporations and larger corporations.
The new penalties will be significant. Fines for summary conviction (less serious) offences for individuals will be a minimum of $5,000 and a maximum of $300,000; for small corporations (with gross revenue less than $5 million in the preceding twelve months) a minimum $25,000 fine and a maximum of $2,000,000; and for other corporations a minimum fine of $100,000 and a maximum of $4,000,000. Indictable offences (those that are considered more serious by the Crown) have much more significant penalties, both for the minimums and maximums: (a) individuals $15,000 minimum/$1,000,000 maximum; (b) small corporations $75,000 minimum/$4,000,000 maximum; and (c) other corporations $500,000 minimum/$6,000,000 maximum.
It is worthwhile to note that both the minimums and the maximums double on a second or subsequent offence. This means a modest or large sized company (any corporation not “small”) on its second offence would be facing a minimum fine of $200,000 for a summary conviction and $1,000,000 if charged and convicted under indictment.
Somewhat surprisingly not all of the provisions of the Environmental Enforcement Act will be brought into the Fisheries Act by these amendments. The administrative monetary penalty (“AMP”) scheme is not mentioned in Bill C‑38. This may be because the regulations to bring that scheme, and the Environmental Violations Administrative Monetary Penalties Act, into force have not yet been issued. Expect that once issued the AMP scheme will end up applying to the Fisheries Act.
The amendments introduced through Bill C‑38 will require a number of regulations that are still to be drafted and issued. Accordingly, Bill C‑38 is set up to bring the changes to the Fisheries Act into force in stages. A number of the more minor amendments will come into force once Bill C‑38 receives Royal Assent. Most of the major changes will come into force by further Order‑in‑Council which is expected only once the detailed regulations are available.
Bill McNaughton is a partner at Borden Ladner Gervais LLP in the Vancouver office, national leader of BLG’s Environmental Focus Group, national leader of the firm’s Environmental, Municipal, Expropriation and Regulatory Practice Group, and regional leader in Vancouver for Team North. This article originally appeared in BLG’s June 4, 2012 newsletter and has been reprinted with permission.
For another article on the Fisheries Act, click here.