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June 01, 2012

Gutting the Fisheries Act and Other Federal Environmental Legislation

At least at the federal level, it appears that the environmental law landscape in Canada is changing. With the announcement of the federal budget, it was clear that there would be wide and sweeping changes to both the Canadian Environmental Assessment Act (CEAA) and the Fisheries Act. On April 26, 2012 Bill C-38, the Jobs, Growth and Long-term Prosperity Act was given First Reading. 1 The proposed changes to CEAA and the Fisheries Act will be significant.

A new Canadian Environmental Assessment Act

Bill C-38 repeals the current version of CEAA. The new CEAA is being promoted as a streamlined, development- friendly process. Under Bill C-38, federal environmental assessments (EA) will only be required for a narrow range of projects, include fewer agencies, take less time and have greater ministerial discretion.

Triggers and environmental effects

The current list of ‘triggers’ for a federal EA will be eliminated. Instead, a project will only require a federal EA where it is designated by regulation or if required by the Minister. We expect the new federal EA process will apply to major projects.

In addition, a federal EA will no longer look at the broad environmental effects of a project, but only “significant adverse environmental effects that fall within the legislative authority of Parliament, or that are directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that is required for the carrying out of the project.” This will primarily limit environmental effects to changes affecting Aboriginal people, fish (under the Fisheries Act), aquatic species (under the Species at Risk Act), migratory birds (under the Migratory Birds Convention Act, 1994), and other components to be set out at a future date.

Responsible authorities

Under the current version of CEAA, approximately 40 agencies share responsibility for an EA, depending on the type of project and possible impacts.

The proposed new CEAA will delegate authority over most EAs to the Canadian Environmental Assessment Agency (CEA Agency). Where projects relate to the mandates of the Canadian Nuclear Safety Commission (CNSC) or the National Energy Board (NEB) these agencies will be responsible for overseeing EAs. CNSC and NEB projects would include nuclear projects and interprovincial or international pipelines and power lines.

Review types and timelines

The current system of four types of review processes (screening, comprehensive, review panel and mediation) will be replaced by just two kinds of reviews: either an EA or a review panel.

The new CEAA will also impose a number of deadlines:

  • Upon receipt of an adequate project description, the CEA Agency must decide within 45 days whether a federal EA is necessary.
  • Standard EAs led by the CEA Agency must be completed within 12 months.
  • Panel reviews generally must be completed within 24 months. If the project falls under the NEB Act, the panel review must be finished within 18 months.

The Minister of the Environment may extend a timeline by up to three months, and further extensions may be granted by the Governor in Council.

These timelines apply only to the deliberations of government agencies. The timelines do not apply to the time a project proponent needs to gather information.

Enforcement, compliance and follow-up

The new CEAA incorporates a number of environmental enforcement and compliance tools. Following permission to move forward with a project, federal inspectors will have the authority to examine whether or not conditions set out in an EA decision statement are met. If proponents of major projects fail to comply with the conditions set out in the decision statements, they could face proposed penalties ranging from $100,000 to $400,000. There are also proposed administrative monetary penalties for less serious contraventions.

In addition, Ottawa will introduce legally enforceable conditions for authorizations under the Fisheries Act. This means proponents will have to comply with the conditions set out in these authorizations or face penalties.

Changes to the Fisheries Act

Bill C-38 proposes sweeping changes to the habitat and environmental protection provisions of the Fisheries Act, granting the Minister wider discretionary authority, and allowing a number of powers to be delegated to other federal or provincial agencies. The amendments will restrict management and enforcement provisions to only those activities that impact commercial, recreational or Aboriginal fisheries.

Currently, the fish habitat provisions of the Fisheries Act are broadly defined to include water courses that are habitat for fish at any given life stage, including intermittent streams, storm water ditches or road side ditches with minimal evidence of fish. This presents a significant regulatory role for local projects to Fisheries and Oceans Canada (DFO). To streamline the process, DFO has delegated through agreements with Conservation Authorities, the authority to authorize fish habitat impacts that can be mitigated. By agreement DFO reserves its role for impacts that cannot be mitigated.

Habitat left unprotected

Bill C-38 will significantly reduce habitat protection from s. 35(1) of the Fisheries Act. As the provision currently reads, “no person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.” The proposed amendment would restrict this prohibition to “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.” This is followed by a list of exceptions for those works, undertakings or activities prescribed in regulation, undertaken in accordance with prescribed conditions, authorized by the Minister and/or authorized by a prescribed person or entity.

As a result of these amendments, the current Policy for the Management of Fish Habitat, including the “no net loss” principle, will be reviewed and revised to reflect the department’s focus on managing threats to recreational, commercial or Aboriginal fisheries. The Minister retains the power to draft regulations to address habitat destruction, the incidental killing of fish and aquatic invasive species that may threaten these fisheries.

Authorizations and authority

The DFO authorization process under the Fisheries Act would be altered to create three categories.

  1. Ecologically significant areas. Through regulation, the Minister could identify ‘ecologically significant areas’ for fisheries. Proponents with projects in these ecologically significant areas would be required to submit plans for review.
  2. Minimal fisheries or impact. Authorisation will not be required for designated classes of low-risk works or for projects in certain classes of waters. Authorizations will not be required for projects occurring in waters that do not support the recreational, commercial or Aboriginal fisheries.
  3. Medium-risk projects. These projects will be subject to a permit-by-rule system, where a proponent must meet certain published standards. For instance the Minister could adopt by reference fisheries protection standards, established by a province or industry, which are recognized as best practices.

The amendments will allow the Minister to delegate day-to-day management powers, including some authorizations, to other federal ministries and agencies or to provincial authorities, if provincial regulations are deemed equivalent. The department would also be able to enter into agreements with third parties – such as conservation groups or professional organizations – to carry out and further the purposes of the Act.

ions – to carry out and further the purposes of the Act.

Fines and enforcement

The compliance provisions of the Act have been rewritten, revising the powers of inspectors, implementing minimum penalties and raising the maximum fines for individuals, corporations and ‘small revenue’ corporations.

Some of the more significant changes are the following:

  • The maximum penalty for a subsequent conviction on indictment is $12 million and, for an individual, a term of imprisonment of up to three years.
  • The time limit for proceedings by way of summary conviction is extended from two years to five.
  • There is a new ‘duty to notify’, requiring any person with charge management and control or that causes or contributes to an occurence that results in the harmful alteration, disruption or destruction of a fishery to report the occurrence.

The extent to which tougher penalties will apply is unclear. Under new s.43(1) (5), the government may make regulations “exempting any Canadian fisheries waters” from the application of ss.20 and 21 (which cover fishways, dams and obstructions), s.35 (which prohibits harm to certain fisheries) and s.38(4) (the new duty to report).

The administration and enforcement of ss.36(3) to (6), which deal with the deposit of a deleterious substance (and the authorization of such deposits), can be delegated to another minister.

Conclusion

The delegation of management of fish habitat protection will continue and be expanded. However, there will be fewer circumstances when an authorization will be necessary. These amendments go hand in hand with the proposed revisions to CEAA, which will also reduce the frequency of federal environmental assessment.

Environmental groups have long relied on the Fisheries Act provisions to require federal oversight of harmful development, and are concerned that the lack of federal oversight may be to the detriment of environmental protection. On the other hand, there are circumstances where the current broad definition of fish habitat drains federal resources with little environmental benefit. A swing in favour of reducing regulation must be balanced with optimal environmental protection. Any refocus on fisheries must still include the habitat that supports fisheries.

Bill C-38 is a large and extensive bill totalling more than 400 pages and proposing changes to numerous existing statutes. The Bill covers a wide array of topics, from the environmental changes discussed above to Old Age Security, income tax changes and everything in between.

With so many topics for debate, it is unclear how the Bill may be amended over the course of the coming months and how interested parties can make their concerns known.

End notes
1 Bill C-38 can be found online at http://parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5524772

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