• Project Development Under the New Fisheries Act Scheme
  • October 8, 2013 | Author: William McNaughton
  • Law Firm: Borden Ladner Gervais LLP - Vancouver Office
  • In 2012, several significant changes were made to the Fisheries Act (the Act) and more were announced but are not yet in force. In 2013 we have seen some draft regulations and policy announcements giving some sense of direction but leaving many questions unanswered. The new amendments, once fully implemented, will impact the Act’s purpose, its language, and the approval process for future projects.

    Some major changes to and coming to the Act include:

    1. a shift in the Act’s focus from protecting all fish habitat to protecting the productivity of three specific fisheries (commercial, aboriginal, and recreational), the fish that support those fisheries and their associated habitats;
    2. a new broad goal of “making sure [the three types of fisheries] are productive and sustainable for future generations”;
    3. a definition of “serious harm to fish” limited to the permanent alteration to, or destruction of, fish habitat and applying only to the three protected fisheries and the fish that support them; and
    4. a new duty to report harm to habitat where an unauthorized occurrence results in serious harm to fish that are part of the three protected fisheries and the fish that support them.

    The Act will provide for new mechanisms to obtain project approval. Projects will be able to be approved as prescribed by regulation, as authorized by the Minister, or as authorized by another entity that has been set up to allow authorizations on behalf of the Minister. Project approval conditions will be enforceable: a violation of the conditions imposed by the project approval authority will be an offence.

    The Act’s existing section 35 project approval process will remain available but there will be an expanded requirement to provide plans and specifications. These requirements are extensive and may well impact the cost and timing of approvals. New statutory factors will be a mandatory requirement, considered for every project approval, focusing on the ongoing productivity of commercial, recreational or aboriginal fisheries. These factors will include: the contribution of the fish impacted by the project to the ongoing productivity of commercial, recreational or Aboriginal fisheries; fisheries management objectives which means the socioeconomic, biological and ecological goals of the relevant fishery; measures by the project to avoid, mitigate or offset serious harm to fish; and the public interest. Submissions for approval will need to address all these factors.

    Although not yet clear since the regulations are still under development, these project approval mechanisms and approval factors, along with the government’s announced intent of fewer submissions and fewer permits, suggest that economic factors such as jobs and the benefit to the local economy may come into play for getting project approval. However, the policy announcements by Department of Fisheries and Oceans (DFO) would suggest the bureaucracy is resisting these changes. This perhaps explains the long delay, now 15 months, in bringing the major changes into force.

    DFO has indicated it is moving towards becoming a centralized agency and away from permitting or approving smaller projects on a project by project basis. Rather, it is developing broader standards and guidelines. These will hopefully streamline the review process and reduce the number of projects requiring approval going forward.

    Project proponents and developers must however continue to be vigilant, both in this time of transition and when the new scheme is fully in place, since there will be an increased emphasis on self-reliance, apparently a reduced presence by DFO to provide assistance, and increased penalties in the statute should enforcement action be warranted.