Vol. 148, No. 10 — May 7, 2014

Registration

SOR/2014-95 April 17, 2014

FISHERIES ACT

Experimental Lakes Area Research Activities Regulations

Whereas the Governor in Council has made the Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act under subsection 36(5.1) (see footnote a) of the Fisheries Act (see footnote b);

And whereas the conditions established in those Regulations for the exercise of the Minister’s regulation-making power under subsection 36(5.2) (see footnote c) of that Act have been met;

Therefore, the Minister of the Environment, pursuant to subsection 36(5.2) (see footnote d) of the Fisheries Act (see footnote e), makes the annexed Experimental Lakes Area Research Activities Regulations.

Ottawa, April 16, 2014

LEONA AGLUKKAQ
Minister of the Environment

EXPERIMENTAL LAKES AREA RESEARCH ACTIVITIES REGULATIONS

Definitions

1. The following definitions apply in these Regulations.

“Act”
« Loi »

“Act” means the Fisheries Act.

“aquatic research project”
« projet de recherche aquatique »

“aquatic research project” means a project that involves the deposit of a deleterious substance in water frequented by fish and any monitoring related to that project.

“deleterious substance”
« substance nocive »

“deleterious substance” has the same meaning as in subsection 34(1) of the Act.

“Director”
« directeur »

“Director” means the Director, Forest Products and Fisheries Act Division, Industrial Sectors Directorate, Environmental Stewardship Branch, Department of the Environment.

“Experimental Lakes Area”
« Région des lacs expérimentaux »

“Experimental Lakes Area” means the area located in Ontario and comprising the lakes set out in Schedule 1 and the streams set out in Schedule 2.

“operator”
« exploitant »

“operator” means the person who manages the Experimental Lakes Area.

Application

2. These Regulations apply in respect of the Experimental Lakes Area.

Authority to deposit deleterious substance

3. A deleterious substance may be deposited in the Experimental Lakes Area during the course of an aquatic research project if the purpose of the deposit is solely for scientific research and the conditions set out in sections 4 to 7 are met.

Condition — annual report

4. The operator must, not later than March 31 of each year, submit to the Director a report for the preceding calendar year containing the following information:

Condition — emergency response plan

5. (1) The operator must prepare an emergency response plan, update it annually and make it readily available on site to the persons who are to implement it.

Elements of the plan

(2) The emergency response plan must include the following elements:

Condition — requirement to notify

6. The operator must notify a fishery officer or an inspector in writing as soon as feasible in the event of unanticipated morbidity and mortality in fish that occurs as a result of any aquatic research project conducted in the Experimental Lakes Area.

Time limit for notification

7. The operator must notify the Director in writing if the processes referred to in section 3 of the Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act change in a way that could result in a failure to meet one or more of the conditions set out in that section, and must do so not later than 10 business days after that change occurs.

Coming into force

8. These Regulations come into force on the day on which they are registered.

SCHEDULE 1
(Section 1)

LAKES

Item Column 1

Lake Number		 Column 2

Latitude		 Column 3

Longitude
1. 93 49°44′55″N 93°50′45″W
2. 106 49°44′04″N 93°46′31″W
3. 109 49°44′23″N 93°49′10″W
4. 110 49°44′37″N 93°49′19″W
5. 111 49°44′34″N 93°50′06″W
6. 114 49°40′18″N 93°45′22″W
7. 115 49°40′36″N 93°46′46″W
8. 149 49°41′13″N 93°55′51″W
9. 164 49°37′18″N 93°49′12″W
10. 165 49°37′27″N 93°48′40″W
11. 191 49°34′43″N 93°46′46″W
12. 220 49°42′20″N 93°43′44″W
13. 221 49°42′05″N 93°43′36″W
14. 222 49°41′47″N 93°43’21″W
15. 223 49°41′54″N 93°42’28″W
16. 224 49°41′24″N 93°43′01″W
17. 225 49°41′15″N 93°42′50″W
18. 226 49°41′23″N 93°44′38″W
19. 227 49°41′16″N 93°41′20″W
20. 239 49°39′46″N 93°43′22″W
21. 240 49°39′16″N 93°43′36″W
22. 260 49°41′49″N 93°46′02″W
23. 261 49°42′50″N 93°41′56″W
24. 262 49°42′42″N 93°41′33″W
25. 265 49°43′32″N 93°37′44″W
26. 302 49°40′36″N 93°45′39″W
27. 303 49°39′51″N 93°44′30″W
28. 304 49°39′33″N 93°44′55″W
29. 305 49°41′27″N 93°41′33″W
30. 309 49°39′46″N 93°38′49″W
31. 310 49°39′55″N 93°38′05″W
32. 373 49°44′41″N 93°47′55″W
33. 375 49°44′44″N 93°47′16″W
34. 377 49°43′16″N 93°46′23″W
35. 378 49°42′38″N 93°46′32″W
36. 382 49°42′18″N 93°40′40″W
37. 383 49°42′57″N 93°37′41″W
38. 385 49°42′49″N 93°36′37″W
39. 421 49°45′16″N 93°43′14″W
40. 428 49°45′29″N 93°46′00″W
41. 442 49°46′32″N 93°49′03″W
42. 470 49°39′33″N 93°44′04″W
43. 622 49°45′52″N 93°50′50″W
44. 623 49°45′56″N 93°50′11″W
45. 624 49°46′08″N 93°49′21″W
46. 626 49°45′12″N 93°47′52″W
47. 627 49°45′29″N 93°47′10″W
48. 629 49°44′57″N 93°50′09″W
49. 632 49°40′36″N 93°47′36″W
50. 635 49°39′07″N 93°49′03″W
51. 658 49°44′01″N 93°44′13″W
52. 659 49°43′30″N 93°45′26″W
53. 661 49°39′34″N 93°44′26″W
54. 663 49°37′56″N 93°44′10″W
55. 664 49°37′24″N 93°44′39″W
56. 938 49°40′22″N 93°57′38″W
57. 979 49°38′48″N 93°43′34″W
58. 980 49°37′36″N 93°43′58″W

SCHEDULE 2
(Section 1)

STREAMS

Item Stream
1. Stream between Lake 649 (49°48′59″N, 93°45′33″W) and Lake 653 (49°46′49″N, 93°47′58″W)
2. Stream between Lake 653 and Lake 376 (49°45′25″N, 93°44′37″W)
3. Stream between Lake 376 and Lake 660 (49°47′14″N, 93°41′41″W)

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The pollution prevention provisions of the Fisheries Act (the Act) prohibit the deposit of any deleterious substance in water frequented by fish unless authorized by federal regulations made either under the Act or under another Act of Parliament. This prohibition creates a potential legal risk to operations of the Experimental Lakes Area (ELA), a scientific research facility in operation since 1968 which, due to the nature of that research, requires the ability to deposit substances that could be considered deleterious in water frequented by fish. The federal government has historically operated the ELA, however, as part of the Deficit Reduction Action Plan, the Department of Fisheries and Oceans (DFO) announced its decision to cease its operation of the ELA. Subsequently, the DFO has identified an operator who is better suited than the Government of Canada to conduct whole-lake ecosystem manipulation and continue operation of the ELA.

Background

The ELA covers approximately 270 km2 in the Kenora District of Northern Ontario and is made up of 58 small lakes and their terrestrial basins as well as three streams. The ELA is a unique, world-class facility for conducting whole-lake ecosystem experiments and can provide significant scientific contributions to the management of fish habitat and aquatic ecosystems. The Government of Canada believes that the continuation of such research is in the public interest, as it builds knowledge related to the conservation and protection of aquatic ecosystems. Further, the Government of Canada believes that non-governmental organizations are better suited to conduct the kind of whole-lake ecosystem manipulation that is undertaken at the ELA. Since 2012, the Government of Canada has been working to identify a non-governmental organization to operate the ELA. Those efforts included a discussion hosted by the DFO and the Province of Ontario with ELA-related universities and other organizations, including the International Institute for Sustainable Development (IISD). Over the last year, the governments of Canada and Ontario conducted an extensive dialogue with the IISD to secure agreements on the transition of responsibility for the operation of the ELA to the IISD. As it is a not-for-profit organization focused on public policy research for sustainable development, the IISD is expected to continue scientific research at the ELA similar to that conducted over the past four decades.

Pursuant to the agreements noted above, the operation of the ELA program will be conducted by IISD ELA Incorporated (IISD ELA Inc.), the sole member of which is the IISD. In order to facilitate the transition of responsibility for the operation of the ELA to IISD ELA Inc., the Government of Canada is working to put in place the necessary regulatory framework for conducting scientific research before the start of the 2014 research season.

Recent amendments to the Act have introduced a new authority to develop ministerial regulations to authorize deposits of deleterious substances under conditions established by the Governor in Council (GIC). These conditions are found in the Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act (the Enabling Regulations), and include the authority for the Minister to authorize deposits related to aquatic research activities that provide useful information to support the purposes of the pollution prevention provisions of the Act.

The process for the operation of the ELA by IISD ELA Inc. meets the conditions set out in the Enabling Regulations, which provide for the making of ministerial regulations related to aquatic research activities, subject to certain conditions. Therefore, the Minister of the Environment is making the Experimental Lakes Area Research Activities Regulations (the ELA Ministerial Regulations), that authorize deposits of deleterious substances related to research activities at the ELA, in order to provide the necessary regulatory framework for continued operation of the ELA.

Conditions in the Enabling Regulations

The conditions set out in the Enabling Regulations that are required to be met for aquatic research and the results of Environment Canada’s assessment of IISD ELA Inc.’s governance processes established for the operation of the ELA facility are that

1. There are processes in place such that the knowledge gained from research activities (see footnote 1) is for the purpose of managing, conserving, protecting or restoring fish populations or waters frequented by fish:

2. There are processes in place such that the research is conducted under the supervision of a qualified person who has expertise in conducting aquatic research under similar conditions, as evidenced by a substantial and relevant peer-reviewed publication record:

3. There are processes in place such that the research activities are designed to avoid harmful effects, other than those required to obtain valid scientific results, and to limit such effects to waters within the boundary for which the authorization is given:

4. There are processes in place for natural or assisted remediation within 20 years following the completion of research activities in the event that such deposits render the aquatic environment unsuitable for sustaining fish populations or fish populations unsuitable for human consumption:

5. There are processes in place to determine whether research activities are carried out in accordance with their design and to document any deviations from that design:

6. There are processes in place that result in making the findings from research activities available to the public:

Objectives

The objectives of the ELA Ministerial Regulations are to set out the conditions for the deposit of deleterious substances at the ELA for the purpose of aquatic research projects. The ELA Ministerial Regulations provide IISD ELA Inc. with the federal regulatory framework under the Act that is needed in order to operate the ELA.

Description

Given that the conditions established for the exercise of the Minister’s regulation-making power in the Enabling Regulations have been satisfied, the ELA Ministerial Regulations allow for the deposit of a deleterious substance in the ELA during the course of aquatic research projects under the following conditions:

1. The deposit is solely for scientific research;

2. The operator must submit to the responsible officer a written annual report, no later than March 31 of each year for the previous calendar year, containing the following information pertaining to the previous year (the reporting period):

3. The operator must prepare an emergency response plan, update it annually, and make it readily available on site to persons who are to implement the plan. The emergency response plan must include the following elements:

4. The operator must notify a fisheries officer or fisheries inspector in writing as soon as feasible in the event of unanticipated fish morbidity and mortality that occurs as a result of research activities conducted within the ELA.

5. The operator must notify the Director in writing within 10 business days in the event that the processes assessed by the Minister under the Enabling Regulations change in a way that could result in a failure to meet one or more of the conditions outlined in section 3 of those Regulations.

“One-for-One” Rule

As IISD ELA Inc. is a not-for-profit organization that engages in activities for a public purpose (i.e. research), the “One-for-One” Rule does not apply. The ELA Ministerial Regulations are expected to result in a new administrative and reporting requirement costing approximately $1,200 annually. (see footnote 2)

Small business lens

As IISD ELA Inc. is a not-for-profit organization, it does not fall within the criteria of a “small business” as defined by the Treasury Board Secretariat. IISD ELA Inc. is the only regulatee that would be affected by the ELA Ministerial Regulations. Consequently, the small business lens does not apply to this proposal.

Consultation

The ELA Ministerial Regulations have only one regulatee and are expected to have minimal impact on other stakeholders or the public at large. The key stakeholders that will be affected by these Regulations are IISD ELA Inc. and the Province of Ontario, who have been consulted throughout the development of these Regulations. There were no major issues identified as a result of those consultations. IISD has expressed support for the ELA Ministerial Regulations, as they provide the necessary regulatory framework to operate the ELA and ensure compliance with the pollution prevention provisions of the Act.

The proposed ELA Ministerial Regulations were published in the Canada Gazette, Part I, on February 15, 2014. No comments were submitted during the 30-day public comment period.

Rationale

The research activities at the ELA can provide valuable scientific information to influence policy decisions related to human health and the environment and, in particular, to support the purposes of the pollution prevention provisions of the Act. However, the Government of Canada believes that non-governmental organizations are best suited to conduct the kind of whole-lake ecosystem manipulation that is undertaken at the ELA. Consequently, it is a priority for the Government of Canada to facilitate the operation of the ELA by a non-governmental organization. In order to make this possible and to afford reasonable protection to the aquatic environment in the area, the Government of Canada is working to provide the necessary regulatory framework for conducting research activities.

The costs of the regulatory proposal are low, for both the operator of the ELA and the federal government, as the ELA Ministerial Regulations have only one regulatee, who will be managed within existing resource allocations. The compliance costs associated with the ELA Ministerial Regulations include those associated with the preparation of an annual report and establishment of an emergency response plan. It is anticipated that the administrative and financial burden associated with these documents would be minimal due to the fact that the information to be included already exists and is readily available to the regulatee.

As a result of the authorization provided by the ELA Ministerial Regulations, there may be short- to medium-term effects on fish and on the water frequented by fish in the ELA. However, these environmental impacts would be balanced with the scientific advances and knowledge gained during the ELA operation that are expected to provide broader environmental and societal benefits. There will be processes in place for natural or assisted remediation within 20 years directly following project completion in the event that deposits render the aquatic environment unsuitable for sustaining fish populations or fish populations unsuitable for human consumption. Provincial regulations are in place that provide additional oversight on the research activities at a project level.

In finalizing the ELA Ministerial Regulations, the Minister is satisfied that the conditions set out in sections 3, 5 and 6 of the Enabling Regulations governing the Minister’s authority to make regulations are met.

Implementation, enforcement and service standards

Implementation and enforcement

The ELA Ministerial Regulations are in force on the day on which they are registered.

Environment Canada’s enforcement officers will be responsible for the enforcement of these Regulations. In verifying compliance with those Regulations, fisheries officers and inspectors will apply the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. The policy document, jointly published in November 2001 by Environment Canada and DFO, outlines among others,

Further details on the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act are available at the following Web site: www.ec.gc.ca/alef-ewe/default.asp?lang=En&n=D6B74D58-1&offset=1&toc =show.

Contacts

Stéphanie Johnson
Director
Forestry Products and Fisheries Act Division
Environmental Stewardship Branch
Environment Canada
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Telephone: 819-420-7761
Fax: 819-420-7384
Email: FPFA-PFLP@ec.gc.ca

Yves Bourassa
Director
Regulatory Analysis and Valuation Division
Strategic Policy Branch
Environment Canada
10 Wellington Street
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-7651
Fax: 819-953-3241
Email: RAVD.DARV@ec.gc.ca