Table of contents
- What does the Fisheries Protection program do?
- The Fisheries Protection program’s project review process
- The Fisheries Protection Provisions of the Fisheries Act: Before and after the 2012/2013 Amendments
- Threats to fish and fish habitat in Canada
- The role of science
What does the Fisheries Protection Program do?
The Fisheries Protection Program (FPP) is responsible for the administration of the fisheries protection provisions of the Fisheries Act, including the establishment of guidelines and regulations. The FPP provides advice to proponents to enable them to proactively avoid and mitigate the effects of projects on fish and fish habitat, and undertakes the review of proposed works, undertakings and activities that may affect fish and fish habitat. The FPP ensures compliance with the Fisheries Act and the Species at Risk Act by issuing authorizations and permits, when appropriate, with conditions for offsetting, monitoring, and reporting.
The FPP also has specific legislative responsibilities in relation to federal environmental assessment regimes including, among others, the Canadian Environmental Assessment Act, 2012, and regimes in the territories and under land claims agreements. The FPP is responsible for meeting the duty to consult, and when appropriate, accommodate, in relation to potential impacts on Aboriginal and Treaty rights related to authorizations or permits that may be issued under the Fisheries Act or the Species at Risk Act.
In addition, the FPP provides expertise through the Federal Contaminated Sites Action Plan, delivers the Recreational Fisheries Conservation Partnerships Program, and supports the administration of the Aquatic Invasive Species Regulations.
The Fisheries Protection Program’s project review process
Fisheries and Oceans Canada (DFO) is the federal lead for managing Canada's fisheries, its oceans and freshwater resources, and safeguarding its waters.
DFO’s Fisheries Protection Program (FPP) seeks to maintain the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries and is the Departmental lead for the administration of the fisheries protection provisions of the Fisheries Act.
The FPP is responsible for the review of proposed works, undertakings and activities that may affect fish and fish habitat, and ensure compliance with the Fisheries Act and the Species at Risk Act.
- Proponent Self-assessment
DFO encourages all project proponents to avoid and mitigate the impacts of their projects to fish. Proponents are directed through a self-assessment process on the Fisheries Protection Program website, which provides common measures and best practices to avoid and reduce impacts to fish and fish habitat. Proponents who can avoid or mitigate impacts do not require further review from DFO.
- Regulatory review
Proponents who determine through the self-assessment process that they cannot avoid or mitigate impacts to fish and fish habitat, are to submit a Request for Review to their region’s Fisheries Protection Program office. DFO considers the project plans to determine the project’s likely impacts on fish and fish habitat. DFO works with the proponent to find any additional ways to reduce those impacts. If the proponent can design and plan their project so that serious harm to fish is unlikely to occur, a Fisheries Act authorization is not required.
If serious harm to fish will likely result from a project, proponents are required to submit an Application for Authorization, including detailed information about their project and potential impacts on fish and fish habitat.
The Authorization includes terms and conditions the proponent must follow to avoid, mitigate, offset (i.e., counterbalance impacts), and monitor the serious harm to fish resulting from the project. As part of the 2012 amendments to the Fisheries Act, failure to abide by these terms and conditions became a contravention of the Act. The Fisheries Act now outlines minimum and maximum financial penalties for contraventions, depending on the circumstances, and fines collected are directed to the Environmental Damages Fund for use to enhance the conservation and protection of Canada’s fisheries resources.
If Fisheries Act or Species at Risk Act regulatory decisions have the potential to adversely affect Aboriginal or Treaty rights, DFO consults with potentially affected Indigenous peoples and applies measures to minimize adverse impacts on Aboriginal or Treaty Rights, as appropriate.
The role of proponents
Proponents of proposed development activities taking place in or near water which may adversely affect fish or fish habitat should:
- understand the types of impacts their projects are likely to cause;
- take measures to avoid and mitigate impacts to the extent possible; and
- request Authorization from the Minister and abide by the conditions of any such Authorization, when it is not possible to avoid and mitigate impacts of projects that are likely to cause serious harm to fish.
Furthermore, proponents are required to ensure that their proposed projects conform to all other statutory requirements (e.g. other federal and provincial legislation, as applicable).
The role of enforcement
Enforcement of the fisheries protection provisions is carried out by the Conservation and Protection Directorate. Fishery Officers across Canada conduct regular patrols on the land, on the sea and in the air to monitor compliance with legislation and regulations regarding the conservation of fisheries resources and fisheries habitat. Enforcement decisions are taken in situations of non-compliance.
The Fisheries Protection Provisions of the Fisheries Act: Before and after the 2012/2013 Amendments
The Fisheries Act provides the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Environment and Climate Change Canada with powers and authorities to conserve and protect fish and fish habitat.
Before the 2012 Amendments
To address threats to fish from habitat loss/degradation and changes to natural flow regimes, the Fisheries Protection Program (formerly the Habitat Protection Program) administered the habitat protection provisions of the Fisheries Act, which remained essentially unchanged from 1977 until 2012.
The habitat protection provisions included two principal prohibitions:
- a prohibition against of the destruction of fish by means other than fishing (Section 32); and
- a prohibition against the harmful alteration, disruption or destruction of fish habitat, informally called the HADD prohibition (Section 35).
Under the habitat protection provisions, the Minister of Fisheries and Oceans had the authority to issue authorizations that would allow the impacts to occur under certain conditions.
The application of the former Section 35 prohibition was supported by the Policy for the Management of Fish Habitat, which had as its policy objective the “net gain of habitat for Canada’s fisheries resources”, i.e., to increase the natural productive capacity of habitats for the nation's fisheries resources, to benefit present and future generations of Canadians.
The Fisheries Act also gave the Minister the authority to require the construction, maintenance and operation of fish passage facilities at obstructions, to require sufficient water flow at all times below an obstruction, and to require the installation and maintenance of fish guards and screens to prevent the passage of fish into intakes and channels.
The 2012/2013 changes to the Fisheries Act
The intention of the recent changes to the Fisheries Act was to:
- focus the Act’s regulatory regime on managing threats to the sustainability and ongoing productivity of Canada’s commercial, recreational and Aboriginal fisheries;
- provide enhanced compliance and protection tools;
- provide clarity, certainty and consistency of regulatory requirements through the use of standards and regulations; and
- enable enhanced partnerships to ensure agencies and organizations that are best placed to provide fisheries protection services to Canadians are enabled to do so.
A key amendment was the replacement of the two prohibitions in the former Act with one new prohibition (also numbered Section 35) against “the carrying on of a work, undertaking or activity that results in serious harm to fish that are part of or support a commercial recreational or Aboriginal fishery.”
In the amended Act, “serious harm to fish” is defined as: “the death of fish or the permanent alteration to, or destruction of, fish habitat”, with fish habitat defined as “spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes.”
Definitions are also provided in the Act to clarify the scope of application of the prohibition against serious harm to fish. The terms “fish”, “commercial”, “recreational” and “Aboriginal” in relation to a fishery are defined.
- includes (a) parts of fish, (b) shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals, and (c) the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals. (Subsection 2(1))
- commercial, in relation to a fishery
- means that the fish is harvested under the authority of a licence for the purpose of sale, trade or barter. (Subsection 2(1))
- recreational, in relation to a fishery
- means that fish is harvested under the authority of a licence for personal use of the fish or for sport. (Subsection 2(1))
- Aboriginal, in relation to a fishery
- means that fish is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Aboriginal organization. (Subsection 2(1))
The Minister of Fisheries, Oceans, and the Canadian Coast Guard has the authority to issue authorizations that would allow the works, activities or undertakings to occur that cause serious harm to fish, under certain conditions.
The application of the fisheries protection provisions are supported by policy guidance in the Fisheries Protection Policy Statement (2013), with the policy goal of providing for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.
Lastly, the provisions related to obstructions and fish passage remained relatively unchanged (Sections 20 and 21). The provisions were consolidated and updated. In summary, these provisions:
- allow the Minister to request studies and evaluations related to obstructions or other things that may be hindering fish passage or harming fish;
- allow the Minister to request: the removal of or modifications to obstructions or things that are harmful to fish or impede flow or fish passage; the installation of fish-ways, screens and guards; or that sufficient water flow be provided for fish passage; or
- prohibit the damage or removal of fish-guards, fish-ways, and screens.
The amended Fisheries Act gives the Minister the ability to develop regulations to ensure compliance with the prohibition and that improve certainty and transparency in the regulatory process. For example:
- Regulations that spell out for proponents the information and documentation that must be submitted in applications for authorization under paragraph 35(2)(b) of the Fisheries Act. Once an application for authorization is received, the Department is bound under these regulations by set time limits for the processing of those applications and a decision on the issuance of an authorization, if required.
- Incorporation by reference into regulations, will allow the department to recognize externally-developed standards (i.e., not developed by Fisheries and Oceans Canada), as appropriate to guide activities in and near waters that require our management.
- Equivalency of regulatory regimes could be established if the provincial regime “meets or beats” provisions of the Fisheries Act or its regulations.
- The Act allows the department and the Minister to identify areas where authorization, and therefore analysis by the department, will not be required.
- Finally, the amendments provide the Minister with the ability to designate ecologically significant areas for fish. The Minister may require higher levels of protection for such areas and proponents would be required to submit plans for review if any activities are proposed within these areas.
Compliance and enforcement
The amended Act includes a number of provisions that improve the compliance and protection of commercial, recreational and Aboriginal fisheries. For example, authorities have been granted to the Minister to effectively address threats such as aquatic invasive species.
In addition, a number of provisions enable enhanced protection of these fisheries by:
- aligning the Fisheries Act with the Environmental Enforcement Act (increased fines and penalties for offences);
- creating more easily enforceable conditions for Ministerial authorizations;
- modernizing inspector powers to assist them in ensuring compliance with section 35; and
- establishing a “duty to notify” provision to establish obligations on persons whose actions result in harm to fish habitat to report and to take corrective measures.
- finally, the amendments provide the Minister with the ability to designate ecologically significant areas for fish. The Minister may require higher levels of protection for such areas and proponents would be required to submit plans for review if any activities are proposed within these areas.
The 2012/2013 amendments to the Fisheries Act coincided with a reorganization of the Fisheries Protection Program. Prior to the reorganization, the FPP was more decentralized, with local program delivery out of a greater number of regional offices. The FPP is now more centralized, with 16 offices across Canada delivering the program.
Threats to fish and fish habitat in Canada
The sustainability and productivity of fisheries today are threatened by multiple and interacting stressors, including:
- habitat degradation or loss, which may occur as a result of the fragmentation of habitat, infilling of lakes or streams, conversion of wetlands or other activities in a watershed such as logging, urbanization, or the clearing of riparian or aquatic vegetation;
- flow alteration, which may alter habitat characteristics or cause the death of fish, and may be caused by dams or other impoundments, water diversion, stream crossings or water extraction for uses such as municipal, industrial, or agricultural uses;
- aquatic invasive species, which may threaten fish through competition, predation or habitat impacts;
- overexploitation of fish, which may lead to depleted or unsustainable populations; and
- pollution of many kinds, which may adversely affect water quality and fish health.
All of these stressors take place in the context of a changing environment. While many of these stressors are beyond the control of any single regulatory body or individual, their impacts can be managed collectively to provide for sustainable and productive fisheries.
Although overexploitation, aquatic invasive species and pollution are all threats to the sustainability of fisheries, the Fisheries Protection Program within DFO focuses on the management of impacts to fish resulting from habitat degradation or loss and alterations to fish passage and flow. Other components of the Fisheries Act and various pieces of federal, provincial, and territorial legislation address these other threats.
The role of science
Robust science forms the basis of the Fisheries Protection Program’s evidence-based decision making. DFO’s science sector is a key partner of the Fisheries Protection Program, providing scientific advice to support the development of policy and guidance, as well as regulatory decisions about proposed development projects.