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members are required to examine such proposals to ensure compliance
with the provisions of the Fisheries Act that relate to protection
of fish habitat. Where applicable, they may also issue authorizations
for projects that are likely to cause damage to fish habitat.
The Department applies its Policy for the
Management of Fish Habitat in administering the habitat
protection provisions of the Act.
Following the enactment of the Canadian Environmental
Assessment Act in 1995, the Program's mandate was expanded
to include the environmental assessment of development proposals
that trigger decision making under to the Fisheries Act.
The Fisheries Act and protection of fish habitat
The
Fisheries
Act is a federal law that deals with three important subjects:
- management
and monitoring of fisheries
- conservation
and protection of fish and fish habitat
- pollution
prevention.
In
the Fisheries Act, Parliament gives the federal Department of
Fisheries and Oceans responsibility for exercising the powers
and administering all matters related to the conservation and
protection of fish habitat in Canadian fisheries waters. The Fisheries
Act applies to marine and freshwater resources throughout
Canada, whether in private or public areas. Fisheries and Oceans
Canada is required to report to Parliament on the measures taken
to enforce the Act, including the fish habitat provisions.
The
main provisions intended to conserve and protect fish habitat
and prevent pollution of fisheries waters are set out in sections
34 to 43 of the Act. The federal government alone is empowered
to carry out the duties and exercise the decision-making powers
associated with these provisions in Canada.
Subsection
34(1) states that fish habitat means spawning grounds and nursery,
rearing, food supply and migration areas on which fish depend
directly or indirectly in order to carry out their life processes.
Section
35, the main provision dealing with habitat protection states
that:
(1) No person shall carry on any work or undertaking that results
in the harmful alteration, disruption or destruction of fish
habitat.
(2)
No person contravenes subsection (1) by causing the alteration,
disruption or destruction of fish habitat by any means or under
any conditions authorized by the Minister or under regulations
made by the Governor in Council under this Act.
Most
projects that affect fish habitat are evaluated with reference
to section 35 of the Act. Fisheries and Oceans Canada can therefore
issue an authorization permitting the modification of fish habitat
under conditions applicable to the specific project. However,
the proponent and the Department will examine various options
for the design, implementation and operation of the project
with the aim of minimizing or eliminating adverse impacts on
fish habitat. An environmental assessment
must be conducted prior to the issuance of an authorization
pursuant to subsection 35(2).
Main sections
and subsections of the
Fisheries Act dealing with fish habitat
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Installation
of fish passage facilities to permit the free passage
of fish
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20(1)
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Every
obstruction across or in any stream where the Minister
determines it to be necessary for the public interest
that a fish-pass should exist shall be provided by the
owner or occupier with a durable and efficient fish-way
or canal around the obstruction, which shall be maintained
in a good and effective condition by the owner or occupier,
in such place and of such form and capacity as will in
the opinion of the Minister satisfactorily permit the
free passage of fish through it.
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Maintenance
of a sufficient flow of water over a spillway
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22(1)
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At
every obstruction, where the Minister determines it to
be necessary, the owner or occupier thereof shall, when
required by the Minister, provide a sufficient flow of
water over the spill-way or crest, with connecting sluices
into the river below, to permit the safe and unimpeded
descent of fish.
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Provision
for the free passage of fish during construction activities
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22(2)
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The owner or occupier of any obstruction shall make such
provision as the Minister determines to be necessary for
the free passage of both ascending and descending migratory
fish during the period of construction thereof.
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Maintenance
of a sufficient flow of water to ensure the submersion
of spawning grounds
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22(3)
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The
owner or occupier of any obstruction shall permit the
escape into the river-bed below the obstruction of such
quantity of water, at all times, as will, in the opinion
of the Minister, be sufficient for the safety of fish
and for the flooding of the spawning grounds to such depth
as will, in the opinion of the Minister, be necessary
for the safety of the ova deposited thereon.
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Prohibition
to destroy fish by any means other than fishing
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32
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No
person shall destroy fish by any means other than fishing
except as authorized by the Minister or under regulations
made by the Governor in Council under this Act.
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Prohibition
to destroy fish habitat
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35(1)
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No person shall carry on any work or undertaking that results
in the harmful alteration, disruption or destruction of
fish habitat.
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Authorization
to modify fish habitat
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35(2)
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No person contravenes subsection (1) by causing the alteration,
disruption or destruction of fish habitat by any means
or under any conditions authorized by the Minister or
under regulations made by the Governor in Council under
this Act.
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Prohibition
to release deleterious substances into fish habitat
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36(3)*
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Subject
to subsection (4), no person shall deposit or permit the
deposit of a deleterious substance of any type in water
frequented by fish or in any place under any conditions
where the deleterious substance or any other deleterious
substance that results from the deposit of the deleterious
substance may enter any such water.
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The Prime Minister of Canada assigned responsibility for
enforcing subsection 36(3) of the Fisheries Act to the Minister
of the Environment. |
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Obligation
to provide information on a project proposal
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37(1)
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Where
a person carries on or proposes to carry on any work or
undertaking that results or is likely to result in the
alteration, disruption or destruction of fish habitat,
or in the deposit of a deleterious substance in water
frequented by fish […] the person shall, on the request
of the Minister or without request […] provide the
Minister with such plans, specifications, studies, procedures,
schedules, analyses, samples or other information relating
to the work or undertaking and with such analyses, samples,
evaluations, studies or other information relating to
the water, place or fish habitat that is or is likely
to be affected […]
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Fish Habitat Management
Policy
A guide for administering the habitat protection provisions
of the Fisheries Act
Policy for the Management of Fish Habitat , established in 1986,
provides a mix of regulatory and proactive strategies that together support the concepts
of sustainable development and ecosystem approach. The policy also applies to the pollution
prevention provision of the Act administered by Environment
Canada.
The
object of the policy is to increase the natural productive capacity
of habitats supporting the fish populations that sustain commercial,
sport and subsistence fisheries. The overall goal is to achieve
a "net gain" of fish habitat through the conservation,
restoration and development of such habitat.
Procedures
for applying the guiding principle of "no net loss"
of productive capacity of fish habitat in relation to project
proposals are set forth in the policy. In addition, this framework
document describes the review and analysis process that DFO
must follow to identify the mitigation measures required to
minimize or eliminate the adverse effects of projects on habitat
or the compensation measures that apply in the event of a loss
of fish habitat. The policy also specifies the proponent's responsibilities
with regard to minimizing or eliminating damage to fish habitat.
The
policy recognizes that other sectors of the economy have a legitimate
need to use water resources. Accordingly, it promotes the adoption
of an integrated planning approach designed to ensure fish habitat
protection and conservation while permitting the use of water
resources for other purposes.
Canadian Environmental
Assessment Act
On January 19, 1995, the Canadian
Environmental Assessment Act (CEAA) came into force, compelling
the federal government to conduct an environmental assessment
of all projects for which it is the proponent, provides funding
or land or issues a permit or authorization pursuant to federal
legislation. When Fisheries and Oceans Canada is called upon
to make a decision under certain habitat protection provisions
of the Fisheries Act that are covered by the Law
List Regulations of the CEAA, an environmental assessment
must be carried out. These provisions include subsections 22(1),
22(2) and 22(3), section 32 and subsections 35(2) and 37(2).
An
authorization issued under subsection 35(2) of the Fisheries Act
triggers this requirement related to the CEAA. In such a case, the
proponent must broaden the evaluation of the potential impacts of
the project and it may have to meet environmental, social and economic
requirements that go beyond fish habitat . The regulatory activities
of the Fish Habitat Management Program include conducting environmental
assessments in accordance with the CEAA before a decision is made
under section 35 of the Fisheries Act or permits are issued.
Pulp and Paper Effluent Regulations
The Pulp
and Paper Effluent Regulations made pursuant to the Fisheries
Act came into force on January 1, 1996. These Regulations, developed
in response to concerns raised in the late 1980s about the impacts
of pulp and paper effluents, help to bring about a considerable
reduction in the amount of effluent discharged into Canadian
fisheries waters. An environmental effects monitoring program
involving industry participation has been implemented under
the regulations. Industrial plants carry out monitoring studies
that help the government to track the effectiveness of the regulations
in terms of reducing adverse effects on fish. Environment Canada
is the Department charged with administering the Pulp and Paper
Effluent Regulations, in keeping with its responsibilities under
section 36 of the Fisheries Act.
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