Amendments to the Fisheries Act – New Fish Habitat Provisions and Increased Penalties

Tony Crossman, Vancouver

The federal Fisheries Act (the “Act”) is arguably the most powerful and most applied, on a day to day basis, environmental law in the country. Amendments to the Act that were passed in to law by the government on June 18, 2012 as part of Bill C-38, the omnibus budget implementation legislation, bring significant changes to the regulatory regime and consequently to those regulated by the Act.

The Act has changed its regulatory perspective over the years. Currently, the habitat and deleterious substance provisions in the Act are used as primary protection for the environment.  The section 35 habitat provisions prohibit the harmful alteration, disruption or destruction (HADD) of fish habitat, unless a person has an authorization to do so.  A HADD without an authorization is a punishable offence.

Bill C-38 significantly amends section 35 of the Act in a two-tiered manner.  The first changes, which came into effect immediately on June 18, 2012, seek to clarify and expand the scope of the provision by adding “activity” to those “works” or “undertakings” that are subject to the HADD prohibition.

The second and more significant change will come into effect on some future date and will be a replacement of subsection 35(1) with the following:   

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.

In summary, the amendments will bring the following key changes once fully implemented:  

1. While fish habitat is still captured in the definition of “serious harm”, the harm is now to fish only. 
2. The harm to fish now has to be serious harm, not just any harm; and
3. The fish that are harmed have to be part of a commercial, recreational or Aboriginal fishery, or that support such a fishery.

Serious harm is now defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat.”  Interestingly, the definition does not include a prohibition against the “disruption” of fish habitat (ie, temporary alteration), as in the current version of subsection 35(1) which states that, “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat”.  Policy analysts and the courts will have to grapple with what this means in the months and years to come.

Although there is no change to the deleterious substance provision (subsection 36(3)), the changes clarify the situations where the deposit may be authorized by regulation. 

There is also a clarification of reporting obligations – there is now a requirement to report an occurrence that results in serious harm to fish.

The other significant change to the Act is to the penalty regime.  Like other federal environmental laws, the Act will now provide for minimum and maximum penalties, and the penalties have been increased.  The regime now makes a distinction between individuals, small revenue corporations and other corporations for purposes of penalties and fines.  For corporations, the minimum fine for a first offence is $500,000 (by way of indictment) and the maximum is $6 million.  For a corporation’s second offence, the maximum fine is $12 million.

Bill C-38 also introduces streamlining concepts into the Act by allowing cooperation and delegation agreements between the federal and provincial governments and provisions to avoid multiple authorizations.

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