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The Return of the HADD: Canada’s Proposed Amendments to the Fisheries Act

On February 6, 2018, the federal government introduced Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence. Bill C-68 is part of an overhaul of environmental legislation, as promised by the federal Liberal Party as part of its election platform. 

In November 2015, Prime Minister Justin Trudeau published mandate letters to his cabinet ministers detailing the federal government’s priorities. The mandate letter for the Minister of Fisheries, Oceans and the Canada Coast Guard prioritized the review of the previous government’s amendments to the Fisheries Act, the restoration of lost protections, and the incorporation of new safeguards. The House of Commons Standing Committee on Fisheries and Ocean studied the 2012 amendments to the Fisheries Act and, in February 2017, issued its report on the subject.

This blog post considers the changes proposed to the Fisheries Act by Bill C-68 relevant to those who are involved in developing or operating projects in or around fish habitat and waters frequented by fish. 

Protection of Fish and Fish Habitat

Bill C-68 proposes to include a “purpose” section declaring that one of the purposes of the Fisheries Act is the “conservation and protection of all fish and fish habitat, including pollution prevention.” The amendments also direct that decisions made under the Fisheries Act be guided by principles of sustainability, precaution and ecosystem management. Both of these provisions could become significant when interpreting provisions of the Fisheries Act.

The amendments restore the provisions for the protection of fish and fish habitat that were removed in 2012. In particular, Bill C-68 would amend the Fisheries Act by:

  • no longer limiting the protection of fish to “commercial, recreational or Aboriginal fisheries”;
  • restoring the express prohibitions against the harmful alteration, disruption or destruction of fish habitat (“HADD”); and
  • restoring the prohibition against killing fish (except by authorized fishing).

The amendments propose to encourage or promote fish habitat restoration as part of development projects and conservation projects by permitting proponents to create “fish habitat banks” in exchange for certified habit credits which could be used to offset any adverse effects from a project. 

The Minister would also have the power to recommend that areas be designated “ecologically significant areas,” which would require any work, undertaking or activity to be authorized under the Fisheries Act

New Permitting Process and Codes of Practice

With the reintroduction of the HADD provision, the government has said it intends to enact regulations that will designate which projects require a federal assessment and permit. Certain types of works, undertakings or activities would be permitted to proceed without federal assessment or permits, but would still have to comply with codes of practice established by regulation.

The new permitting framework and codes of practice are not yet published and are still in the consultation phase.

Reconciliation with Indigenous Peoples

Consistent with the federal government’s objective of achieving reconciliation with Indigenous peoples, Bill C-68 expressly states that the Minister must consider any adverse effects of a decision on the constitutional rights of Indigenous peoples and must use any traditional knowledge provided by Indigenous peoples to inform habitat decisions. 

Bill C-68 also provides authority for the Minister to consult with, or enter into agreements with, Indigenous governing bodies. Further, if the laws of an Indigenous governing body are equivalent to the provisions of the Fisheries Act or its regulations, the Minister has the power to invoke an equivalency provision for the territory that is subject to the Indigenous governing body. 

Transparency

Bill C-68 would also require the creation of a public registry including any standards, codes of practice, permits or authorizations.

Enforcement

Bill C-68 introduces the potential for Alternative Measures agreements to be used as an alternative enforcement tool. Alternative Measures agreements permit alleged offenders and the Ministry to enter into an agreement to resolve any alleged offence(s) out of court provided certain conditions have been met. In the right circumstances, Alternative Measures agreements can be a useful tool to encourage remediation or conservation projects to redress any alleged harm caused to the environment while reducing the burden that these complex prosecutions can have on the justice system.

The federal government has committed to spending $284 million over the next five years to protect fish habitat, with a portion of this money being reserved for enforcement activities including an increase in officers and enhanced monitoring.

We will provide further updates as Bill C-68 progresses through the legislative process and on the government’s consultation process, as well as the proposed regulations around its new permitting and codes of practice framework. For more information, please contact Clifford Proudfoot, Lauren Cook or a member of our Environmental & Regulatory Group.

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Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.

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