Amendments to Federal Fisheries Act regulations seek to streamline authorizations
On July 1st, amendments to the Authorizations Concerning Fish and Fish Habitat Protection Regulations(the Regulations) were published in the Canada Gazette and will come into force on October 15th. The Regulations allow for the issuance of authorizations for works, undertakings or activities that would otherwise not be allowed due to causing fish death or impacts to fish habitat contrary to sections 34.4 and 35 of the federal Fisheries Act.
The amendments make significant changes to the application process and fish habitat offset requirements, as well as to the information required in applications and to the discretion to amend, suspend and cancel authorizations. There are also new provisions around DFO technical standards which may be used to further reduce the information required for an authorization application.
The Regulatory Impact Analysis Statement (found at the end of the regulatory amendments) indicates that the amendments arise from the federal government’s 2025 Red Tape Review and are meant to reduce the regulatory burden of obtaining statutory authorizations under the Fisheries Act. The amendments also align with the proposal in the Getting Major Projects Built Discussion Paper released by the federal government in May (see our comments on the discussion paper). It remains to be seen if future amendments to the Fisheries Act contemplated by the discussion paper may further streamline fisheries related authorizations and habitat offsetting to the detriment of aquatic systems.
Authorizations under the Fisheries Act
Under section 91(12) of the Canadian Constitution, the federal government is granted jurisdiction over the sea-coast and inland fisheries. Accordingly, the federal Fisheries Act is designed to manage and control fisheries, and to conserve and protect fish and fish habitat throughout Canada. There are several key provisions in the Fisheries Act which are meant to protect fish from harm and death, and to protect fish habitat.
Section 34.4 prohibits any work, undertaking or activity (other than fishing) that results in the death of fish although these may be allowed via issuance of a statutory authorization (section 34.4(2)(b)) or by regulation. Section 35, the so-called “HADD” provision, states:
35(1) No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.
Section 35(2)(b) allows the issuance of statutory authorizations to allow a work, undertaking or activity – subject to conditions – without contravening section 35(1). The Minister may make regulations pertaining to the issuance of statutory authorizations (sections 35(4) and 43(1)(a.1)). The Minister may also designate any work, undertaking or activity that they consider likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat and issue a permit allowing that work, undertaking or activity (section 35.1).
The issuance of statutory authorizations pursuant to sections 34.4 and 35 of the Fisheries Act is governed by the Authorizations Concerning Fish and Fish Habitat Protection Regulations(the Regulations).
Amendments to the Regulations
On July 1st, several amendments to the Regulations were published in the Canada Gazette and will come into force on October 15th, 2026. These changes include:
- changes to the authorization process and offset requirements;
- changes to application information requirements;
- the introduction of DFO technical standards; and
- changes to requirements for amendment, suspension and cancellation of authorizations.
1. Changes to the authorization process and offset requirements
The amendments introduce a new risk assessment process to determine whether or not offsetting measures will be required for an authorization application (section 4(2.1)). Within 90 days of the initial application, the Minister must advise the applicant of one of the following things:
- The application is inadequate and specify the information or documents required.
- The application is adequate with respect to information and documents, and that a risk assessment was conducted and offsetting is not required, and (if applicable) consultations are required.
- The application is adequate with respect to information and documents, and that a risk assessment was conducted and offsetting is required, and (if applicable) consultations are required. Information and documents in Part 3 of Schedule 1 or, if an existing facility, in Part 3 of Schedule 3 must be provided along with a financial guarantee (i.e. information and documents regarding habitat credits and the offsetting plan).
Once all the information and documents provided are found to be adequate, the Minister must notify the applicant and within 60 days of that notification, the authorization must be issued or a written refusal must be provided.
This is a change from the previous authorization process which required the provision of information about the offsetting plan to address death of fish and impacts to fish habitat (including the number of habitat credits planned to be used) with the initial non-emergency application. There was no up-front risk assessment as part of the process. As well, applicants were required to provide a financial guarantee to cover the costs of implementing the offsetting plan (section 2(1)(a)). Note that offsetting measures are guided by the Policy for Applying Measures to Offset Harmful Impacts to Fish And Fish Habitat.
2. Changes to application information requirements
Prior to the amendments, the information and documents to be provided in support of an application for an authorization were set out in Schedules 1 and 2. Schedule 1 listed the information required in non-emergency situations and Schedule 2 listed the information required in emergency situations. A matter is considered an emergency situation where it is a matter of national security; a national emergency for which special temporary measures are taken under the Emergencies Act; or an emergency that poses a risk to public health or safety, the environment or property (section 3).
With the amendments, there are now three Schedules:
- Schedule 1 addresses information and document requirements for standard applications;
- Schedule 2 addresses information and document requirements for an emergency situation; and
- Schedule 3 addresses information and document requirements for an “existing facility” (which is newly defined by the amendments as “a structure constructed prior to July 14, 1977 and located wholly or partially in fish habitat”, i.e. mainly hydroelectric facilities).
The type of information and documents that must be supplied with an authorization application has also been modified. Both Schedules 1 and 3 are divided into 3 parts in order to accommodate the initial risk assessment phase now incorporated into the application process. The information required by Parts 1 and 2 of both Schedules 1 and 3 includes a description of the proposed work, undertaking or activity; the location; the fish and fish habitat at the location; the effects of the work, undertaking or activity on fish and fish habitat; and the measures and standards to be implemented to avoid and mitigate, among other things. Before the amendments, the Schedules of required information and documents typically required a “detailed description” but with the amendments, only a “description” will be required. Presumably, this reflects simplified application information being acceptable (as compared to pre-amendment requirements).
Part 3 of both Schedules 1 and 3 require information about the number of habitat credits planned to be used and the offsetting plan to address death of fish and harmful alteration, disturbance or destruction of fish habitat. Because Part 3 of Schedules 1 and 3 sets out information requirements for offsetting, this is only required if the initial risk assessment determines that offsetting is needed.
3. The introduction of DFO technical standards
The amendments also enable the use of “DFO technical standards” which are documents to be published by DFO and which will provide measures to avoid the death of fish or to mitigate the extent of their death, and to avoid or mitigate the harmful alteration, disruption or destruction of fish habitat. These technical standards may be used by providing a written confirmation that an applicable chapter of the DFO technical standards will be followed, with the result that an authorization application need not include the information and documents otherwise required. Presumably, this is intended to lead to easier and faster application processes and reviews.
4. Changes to requirements for amendment, suspension and cancellation of authorizations
Currently, a holder of a statutory authorization may request amendment, suspension or cancellation of the authorization (sections 5, 6 and 7 respectively). As well, under section 9 (prior to the amendments), the Minister on their own initiative may amend, suspend or cancel an authorization if:
- there are reasonable grounds to believe that the conditions in the authorization have not or will not be met;
- there are reasonable grounds to believe that the authorization was obtained by fraudulent or improper means, or by the misrepresentation of a material fact;
- there is new information that demonstrated the death of fish or the harmful alteration, disruption or destruction of fish habitat is or will be significantly greater than anticipated at the time of issuance of the authorization; or
- the authorization holder has not paid a fine issued to them under the Act.
With the amendments the Minister’s power to amend, suspend or cancel authorizations is expanded and improved. The amendments allow the Minister to amend, suspend or cancel an authorization where there is new information demonstrating that the death of fish or the harmful alteration, disruption or destruction of fish habitat is or will be different than anticipated, or the avoidance, mitigation or offsetting measures in the authorization are not achieving anticipated outcomes (section 9(1)(c)). This is a lesser test for amendment, suspension or cancellation which previously required a “significantly greater” fish death or impact to fish habitat. In addition, a new provision allows the Minister on their own initiative to amend an authorization “if they become aware of new information that demonstrates that further action is necessary to avoid, mitigate or offset the death of fish or the harmful alteration, disruption or destruction of fish habitat” (section 9.1).
Comments and concerns on the amendments to the Regulations
The amendments to the Regulations are ostensibly designed to lead to a more “streamlined and efficient regulatory environment” (as identified in the Getting Major Projects Built Discussion Paper). However, with lowered information requirements, an unclear risk assessment threshold for requiring offsetting, and questions around enforceability of the DFO technical standards, there is a risk of less informed decision-making and increased negative impacts on fish and fish habitat. While the expanded authority to amend, suspend or cancel authorizations is a welcome change, it should not replace sound initial decision-making at the front end of the process. Avoidance and mitigation of harm on the front end will always be more effective than trying to amend or suspend authorizations after they are granted (due to vested economic interests and increased needs for procedural fairness).
As mentioned, the amendments have lowered the information requirements for applications in general. Reducing the information and documentation requirements runs the risk of making decisions with less information and less consideration of potential impacts associated with works, undertakings and activities near or in fish habitat. This runs the risk that otherwise avoidable fish deaths or harmful impacts to fish habitat may occur.
Further, an applicant’s commitment to adhere to a “DFO technical standard” will lessen the need to submit certain information and documentation in support of an application. On the face of the Regulations, it is not clear how adherence to DFO technical standards will be monitored or enforced. Presumably, but not certainly, meeting the DFO technical standard will form part of the authorization. In combination with lowered information requirements, it is not clear that baselines around fish and fish habitat will be sufficiently established to effectively monitor the outcomes and effectiveness of implementing DFO technical standards.
It is also unclear the basis upon which the risk assessment will be made to determine whether or not offsetting will be required. Given the overall reduction in the information and documentation requirements at the outset, it is not clear that risk assessment will be properly undertaken given there will be less information than previously required. Not to mention existing data uncertainty regarding fish habitat, cumulative effects, and fish abundance, all of which are factors relevant to a risk assessment (among others).
There are no criteria or test provided in the Regulations as to which circumstances warrant offsetting or not. Even though there are references throughout the Regulations to avoidance, mitigation and offsets, a statement in the Regulations adopting the mitigation hierarchy – i.e. avoidance, then mitigation and offsets as a last resort – is still absent. It is important that the default approach does not become commitments to eventual offsetting of impacts.
As mentioned, the changes to the provisions around amendment, suspension or cancellation of authorization are welcome. The new provisions allow appropriate changes to an authorization to be made in light of different than anticipated impacts; ineffective avoidance, mitigation or offsetting measures; or the need for further action to avoid, mitigate or offset impacts to fish or fish habitat. This is an easier test to meet than the “significantly greater” test previously adopted in the Regulations. However, it is hoped that authorizations will not be granted hastily with insufficient information with the thought that it can be remedied in the future with amendments. An approach which lowers the initial bar to obtain authorizations with a vague idea of using adaptive management to address negative environmental outcomes is not desirable. The capacity to manage adaptively via amendments, suspensions or cancellations does not mean it will be exercised. Further, avoidance of environmental damage is better than attempts to clean-up or remedy negative environmental impacts, and this requires stronger decision-making at the outset not a game of catch-up. Once an authorization has been granted, it can be difficult (although admittedly not impossible) to halt activities in the face of vested economic interests.
What’s coming next?
The Department of Fisheries and Oceans’ Projects Near Water website indicates that more information will be published in the coming months to accommodate the amendments to the Regulations. The website does not indicate exactly what changes may be coming but this could potentially include clarification of which published standards and codes of practice may be applicable as “DFO technical standards” under the Regulations, and updated guidance around application processes.
Summary Table of Amendments
| Section Number | Current Section | Amended Section |
| 1 | Defines “Act” to mean Fisheries Act | Adds new definitions “DFO technical standards”, “existing facility” and “municipality” |
| 2 | Minister may issue authorization under s. 34.4(2)(b) or 35(2)(b) of Act – application for authorization must include information in Schedule 1 and financial guarantee | Removes the information and financial guarantee requirements |
| NEW 2.1 | n/a | Application for authorization must include information set out in Parts 1 and 2 of Schedule 1 Application for authorization for new facility must provide information set out in Parts 1 and 2 of Schedule 3 BUT information set out above is not needed if written confirmation that will follow applicable chapter of DFO technical standards |
| 3 | Sets information requirements for an emergency application (Schedule 2) – indicates which circumstances are emergencies | No substantive change – an emergency application can now include more than one work, undertaking or activity |
| 4 | Processing on non-emergency applications | Changes process for non-emergency applications – initial review to determine if offsetting and financial guarantee is required |
| 5 | Request for amendment of authorization | Updates to reference Schedules 1, 2 and 3 Lessens information requirements from “detailed description of likely effects of amendment on fish” to “description of likely effects of amendment on fish” |
| 6 | Request for suspension of authorization | Lessens information requirements from “detailed description of likely effects of suspension on fish” to “description of likely effects of suspension on fish” |
| 7 | Request for cancellation | Lessens information requirements from “detailed description of likely effects of cancellation on fish” to “description of likely effects of cancellation on fish” |
| 8 | Confirmation of receipt of request for amendment, suspension or cancellation – 60 days to advise request is complete or more information needed – once complete, 60 days to decision – time limits start over in certain circumstances | Amends timeline – 90 days to advise request is complete or more information needed – once complete, 60 days to decision – changes some of the circumstances in which the time limit will start over |
| 9 | Amendment, suspension or cancellation on Minister’s own initiative in certain circumstances including where new information demonstrates that death of fish or impacts to habitat is or will be significantly greater than anticipated | Amendments to the circumstances in which Minister can amend, suspend or cancel on own initiative (expanded reasons/lower bar) – i.e. new information demonstrating that the death of fish or the harmful alteration, disruption or destruction of fish habitat is or will be different than anticipated, or the avoidance, mitigation or offsetting measures in the authorization are not achieving anticipated outcomes |
| NEW 9.1 | n/a | Minister on own initiative may amend any authorization if aware of new information demonstrated that further action is necessary to avoid, mitigate or offset the death of fish or impacts to fish habitat |
| 10 | Transitional matters | New transitional provision – grandfathers in existing complete applications to regulations as they were prior to October 15, 2026 |
| 11 | Repeal previous regulations | Repealed |
| 12 | Coming into force | Coming into force October 15, 2026 |
| Schedule 1 | Information and documents for non-emergency applications | Information and documents for non-emergency applications (not existing facility) Divided into 3 parts: the third part deals with offsetting and is only required if initial risk assessment determines offsets are required Information requirements are lessened – only require a “description” (not a “detailed description” as previously required) |
| Schedule 2 | Information and documents for emergency applications | Information and documents for emergency applications |
| NEW Schedule 3 | n/a the concept of “existing facility” is new to the regulations | Information and documents for existing facility applications Divided into 3 parts: the third part deals with offsetting and is only required if initial risk assessment determines offsets are required Information requirements are lessened – only require a “description” (not a “detailed description” as previously required) |
Featured Photo by Jakob Owens on Unsplash
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