Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence (“Bill C-68”), was introduced on February 6, 2018, by the Federal Government. This bill aims to provide a framework for the proper management and control of fisheries and the conservation and protection of all fish and fish habit, including pollution prevention.
The Federal Government has described the purpose of Bill C-68 as restoring lost protections for fish and fish habitats, as well as to incorporate new safeguards in the Fisheries Act (R.S.C., 1985, c. F-14). In addition to certain changes to the Federal Government’s oversight of commercial fisheries, the proposed amendments will reinstate — and in some cases, expand — a number of environmental protections that existed in the Fisheries Act prior to June, 2012. The proposed amendments also include increased transparency through an online registry and enhanced enforcement and monitoring capacity.
This bulletin provides an overview of the main amendments to the Fisheries Act proposed by Bill C-68, focusing on the environmental protection and pollution prevention aspects of the proposed amendments.
Protection of fish and fish habitat
Bill-68 proposes amendments to regulate potential harms to fish and fish habitat by introducing various prohibitions. No person may, absent authorization:
- Carry on any work, undertaking or activity, other than fishing, that results in the death of fish (s. 34.4(1)); and
- Carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat (s. 35(1)).
Bill C-68 also proposes amendments that will modernize the permitting process under the Fisheries Act to authorize works, undertakings and activities that may result in the death of fish or the harmful alteration, disruption or destruction of fish habitat, or the introduction of a deleterious substance into waters frequented by fish.
The definition of fish habitat is also modified and broadened to include any waters frequented by fish in Canada. This modification will result in many more water bodies in Canada falling within the definition of fish habitat and therefore being subject to expanded federal regulatory oversight.
Authorizations of designated projects
In addition to new powers to designate environmentally sensitive areas, Bill C-68 introduces a new regulatory instrument related to projects that could affect fish and fish habitat. Some key components include:
- The introduction of a new category of “designated projects” (or classes of projects). This appears to be a significant departure from the current requirements to have authorizations only in respect of specific harms to fish and fish habitat.
- No person may carry on any work, undertaking or activity that is part of a designated project without a federal permit.
- The ability to establish standards and codes of practice for the avoidance of the death of fish and harmful alteration, disruption and destruction of the fish habitat, the conservation and protection of fish or fish habitat, and the prevention of pollution. Such codes of practice will be applicable through all phases of the project development lifecycle.
- Establishing a new system for project proponents to create fish habitat banks in exchange for certified habit credits that the proponent can apply to offset a project’s adverse effects on local fish and fish habitat.
The proposed regulations setting out the types of “designated projects” have not yet been released. It remains to be seen how broadly the Federal Government intends to apply these new powers and what kinds of projects it intends to regulate under the Fisheries Act.
Factors to be taken into consideration by the Minister when taking a decision
Bill C-68 proposes a series of factors that the Minister must consider when making regulations or orders under the fish habitat and pollution prevention provisions in the Fisheries Act, or when exercising powers related to authorization and permits, including in respect of designated projects.
Decision makers must consider the following factors, among others:
- The contribution to the productivity of relevant fisheries by the fish or fish habitat that is likely to be affected by a decision;
- Whether there are measures and standards to avoid, mitigate or offset death to fish or harmful alteration, disruption and destruction of the fish habitat; and
- The cumulative effects of carrying on proposed works, in combination with any other works, on fish and fish habitat.
The Minister also has the discretion to consider, among other things, the application of a precautionary and ecosystem approach and sustainability of the relevant fisheries.
The proposed amendments contain a number of provisions with respect to rights of Indigenous peoples and utilization of Indigenous traditional knowledge, including:
- Explicit reference to the protection of the rights of Indigenous peoples under section 35 of the Constitution Act, 1982;
- Mandatory requirements to consider any adverse effects on section 35 rights when making a decision under the Fisheries Act;
- Authority for the Minister to enter into agreements with Indigenous governing bodies relating to fisheries and fisheries management (formerly restricted to provinces and territories);
- Mandatory requirements to consider the traditional knowledge of Indigenous peoples and cooperation of Indigenous governing bodies when making decisions under the Fisheries Act, including recommendations on regulations and decisions on authorizations and permits; and
- Confidentiality for traditional knowledge of Indigenous peoples that is provided under the Fisheries Act in confidence, subject to some narrow exceptions.
The proposed amendments would provide enhanced enforcement powers under the Fisheries Act. In addition, Bill C-68 proposes an alternative to traditional prosecutions in the event of non-compliance. The Federal Government may offer some persons charged with offences under the Fisheries Act to enter into “Alternative Measures Agreements” in lieu of prosecution.
Under the amended Fisheries Act a public registry will be established, with records relating to, among other things:
- Agreements with provinces, territories and Indigenous governing bodies;
- Permits issued in respect of a designated project; and
- Authorizations with respect to the fish and fish habitat protection provisions.
The new registry would only contain information that would be subject to disclosure in accordance with the federal Access to Information Act.
The changes to Canada’s regime for protecting fish and fish habitat from potential environmental harms must still be passed by Parliament. Until the new rules come into effect, the current Fisheries Act continues to apply.
By Pierre-Olivier Charlebois, Jean-Philippe Therriault and Kerry Kaukinen, Fasken