The Fisheries Act Before Bills C-38 and C-45
The Fisheries Act is the federal statute that regulates Canada’s fisheries, and it has provisions to protect both fish and fish habitat. Formerly, sections 35 and 36 protected fish habitat, and were added in 1977 as a way to enable the Government to better protect the health of the ecosystem, which supports the fish themselves.1
Before the new Bills, Section 35(1) read “No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat”, also known as the HADD provision. This offered strong environmental protection, as it forbade any alteration or disruption of fish-bearing waters without approval by the Minister. This provision also used to be a trigger for an environmental impact assessment under the former CEAA 19952, which is now no longer the case.
Section 36(3) forbade any person from contaminating water frequented by fish, stating: “…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.” This section also offered protection for fish and fish habitat, as it forbade the pollution of fish-bearing waters, and the Courts have construed the phrase “deleterious substance” very broadly. However, such pollution could be authorized through regulations enacted by federal cabinet pursuant to sections 36(4), 36(5) and 36(6).
Under the amendments, the prohibition in s. 36(3) remains in place – but an authorization made under s. 36(5) no longer triggers an environmental assessment under the new CEAA, 2012.
Section 32(1) provided that “No person shall kill fish by any means other than fishing” but then subsection 32(2) went on to describe the circumstances when killing of fish would be permitted. This included Ministerial authorization, just like in section 35. This requirement for authorization also used to act as a trigger for an environmental assessment under the former CEAA 1995.
The Fisheries Act After Bills C-38 and C-45
In April of 2012, the Government of Canada tabled the Budget Implementation Act, otherwise known as Bill C-38. This Bill has now been passed and sections relevant to the Fisheries Act have come into effect. A second budget omnibus bill, the Jobs and Growth Act, otherwise known as Bill C-45, was introduced in October of 2012, and came into effect in December of 2012. It is important to remember at this point that these legislative changes are still very recent, and so it is unclear exactly what these changes will mean for fish and fish habitat protection.
The most important change is in section 35, which, under Bill C-38, was merged with section 32. This new section 35(1) prohibits “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.” This new term of “serious harm” incorporates aspects of both former sections 32 and 35, and is defined as “death of fish or any permanent alteration to, or destruction of, fish habitat.” Section 35(2) provides for exceptions to the general prohibition under s. 35(1) by way of an authorization. However, it seems likely that the authorization required under section 35(2) will now only apply in situations where the fish that will be impacted support those “commercial, recreational or Aboriginal” fisheries. In addition, section 35(2) now allows for regulations to be created that automatically exempt certain works, undertaking, activities and Canadian water bodies from protection under 35(1). This would result in works that could potentially harm fish or fish habitat occurring without any notification or consultation of government officials.
What this means
Sections 35 and 36 of the Fisheries Act no longer trigger federal environmental assessments. Moreover, Bills C-38 and C-45 grant the Minister significant discretion to exempt projects and activities from the protections formerly afforded by s.35. Until we see how the government exercises this discretion, it is difficult to know the full impact of these amendments in terms of which fish and fish habitat will be protected.3