Significant and much anticipated changes to the Fisheries Act regime referred to in the September 2012 and October 2012 editions of EnviroNotes! will finally take effect on November 25, 2013.
These changes will shift the focus of protection from “fish habitat” to “fisheries”. Although the government says the changes are designed to streamline the law and reduce the amount of regulation, the initial implementation period will likely be marked by a heightened degree of uncertainty as regulators and the regulated come to terms with the meaning of the new provisions. This will be exacerbated by the new Fisheries Protection Policy and Operational Approach, both of which have just been released.
The new Applications for Authorization Regulations also take effect on November 25, 2013. This sets out the process, information requirements and timelines for Authorizations under section 35(2)(b).
If you have an existing Authorization under the old regime, you have until February 24, 2014 to request a review. On the one hand, a review may be warranted if your activity may now not require an authorization and compliance with its conditions, which are onerous and/or expensive, or if the conditions are no longer relevant under the new regime. However, before you do, we suggest you consider obtaining legal advice as this review may trigger other reviews and issues of which you are not currently aware.
Lack of compliance with the new regime comes at a much higher price now, with minimum penalties, significantly increased penalties (up to $6 million in some cases) and a doubling of penalties for second offences.
The Changes in More Detail
The federal Fisheries Act (the “Act”) is arguably the most powerful and most applied, on a day to day basis, federal environmental law in the country.
Section 35: Serious Harm to Fish
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 old 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.
The new section 35 says:
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.
The key changes are:
1. The harm to fish now has to be serious harm, not just any harm; and
2. 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 defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat.”
The definition does not include a prohibition against the “disruption” of fish habitat (ie, temporary alteration), as did the old version of subsection 35(1).
The Application for Authorizations Regulations set out the requirements for applications for authorizations under s.35(2)(b), including the timeline for Fisheries and Oceans Canada dealing with such applications. The information requirements include descriptions of the likely effects on fish, the measures and standards to avoid or mitigate serious harm to fish, and monitoring and contingency measures.
Where there is residual serious harm to fish after mitigation and avoidance measures are taken into account, an offsetting plan is required, and a cost estimate for implementing the plan (for financial security purposes).
Section 36: Deleterious Harm to Fish
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 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.
It is an offence to fail to comply with an Authorization.