Changes to Fisheries Act take effect November 25

Changes to Fisheries Act take effect November 25

As part of its Omnibus Budget Bill last year, the government passed significant changes to the federal Fisheries Act which came into force November 25th (see Order in Council P.C. 2013-1107).

These changes mark the end of the prohibition against the harmful alteration, disruption or destruction of fish habitat (the HADD Provision). For decades, the HADD Provision has served as the primary focus of federal regulation under the Fisheries Act supported by the scientific principle that NO HABITAT = NO FISH.

In place of the HADD Provision is now a prohibition against works, undertakings or activities that result in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.  The definition of “serious harm” is the “death of fish or any permanent alteration to, or destruction of, fish habitat.”

These changes to the Fisheries Act result in a significant reduction in the level of protection for Canadian fisheries.  Previously, the Fisheries Act applied to all fish bearing waters within Canada.  Now, protection will be limited to only commercial, recreational or Aboriginal fisheries.   It appears that, in implementing this change, the government has overlooked the fact that a fishery can be invaluable for ecological reasons (without having value as a commercial, recreational or Aboriginal fishery).

As well, under the new provision, the permissible degree of harm is much higher.  The Fisheries Act now prohibits fish deaths or the permanent alteration or destruction of habitat (as opposed to harmful alteration, disruption or destruction of fish habitat).  The Department of Fisheries and Oceans’ interpretation of “serious harm” can be found in in the new Fisheries Protection Policy Statement (see below). 

In the policy, both the “permanent alteration” and “destruction” of habitat are interpreted in a similar manner referencing changes of a spatial scale, duration or intensity that affect the ability of fish to use the habitat as spawning grounds, or a nursery, rearing, or food supply areas, or a migration corridor, or any other area in order to carry out one or more of their life processes. Ultimately, it will be up to the courts to provide clarification of the meaning of “serious harm” including exactly what “permanent” means in the context of the revised Fisheries Act.

The Department of Fisheries and Oceans has published several policy and guidance documents in concert with changes to the Fisheries Act:

  • the Fisheries Protection Policy Statement;
  • operational  approach for implementing the changes;
  • guidance for existing and new authorizations from the department; and
  • the Fisheries Productivity Investment Policy: A Proponent’s Guide to Offsetting.

It is interesting to note that for those project proponents who received a Fisheries Act authorization before November 25th, an application for review may be made to determine if the authorization ought to be amended or cancelled in light of the reduced Fisheries Act requirements.

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