Authorizations Concerning Fish and Fish Habitat Protection Regulations: SOR/2019-286

Canada Gazette, Part II, Volume 153, Number 17

Registration
SOR/2019-286 August 8, 2019

FISHERIES ACT

P.C. 2019-1183 August 7, 2019

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to paragraphs 43(1)(i.11) footnote a, (i.2)footnote a, (i.4)footnote a, (i.6)footnote a and (i.8)footnote a of the Fisheries Act footnote b, makes the annexed Authorizations Concerning Fish and Fish Habitat Protection Regulations.

Authorizations Concerning Fish and Fish Habitat Protection Regulations

Interpretation

Definition of Act

1 In these Regulations, Act means the Fisheries Act.

Authorizations

Required information and documents

2 (1) The Minister may, on application, issue the authorization referred to in paragraph 34.4(2)(b) or 35(2)(b) of the Act. The application must be made to the Minister in writing and include

Exception

(2) Paragraph (1)(b) does not apply if the applicant is Her Majesty in right of Canada, Her Majesty in right of a province or the government of a territory.

Required information — emergency situation

3 Only the information set out in Schedule 2 must be provided to the Minister in support of an application in respect of a work, undertaking or activity that needs to be carried on without delay in response to the following situations:

Processing of Non-Emergency Applications

Application

4 (1) This section applies to applications referred to in section 2.

Confirmation of receipt

(2) The Minister must, on receipt of an application, send to the applicant a confirmation of receipt that indicates the date of receipt.

60-day time limit

(3) Subject to subsections (6) and (8), the Minister must, within a period of 60 days beginning on the day on which the application is received, notify the applicant in writing that the application is complete, incomplete or inadequate. If the application is incomplete or inadequate, the notification must specify the information or documents to be provided.

Subsection (3) applies again

(4) The Minister must, on receipt of any information or documents set out in the notification, send to the applicant a confirmation of receipt that indicates the date of receipt. Subsection (3) applies again to the application, except that the period begins on the date indicated in the confirmation of receipt.

Minister’s decision

(5) Subject to subsections (6) and (8), the Minister must, within a period of 90 days beginning on the date of the notification informing the applicant that their application is complete, either issue an authorization or notify the applicant in writing of the refusal to do so.

Time limit ceases to apply

(6) The time limit referred to in subsection (3) or (5) ceases to apply if

Notice

(7) If a time limit ceases to apply, the Minister must notify the applicant in writing and, if it ceases to apply for a reason set out in any of paragraphs (6)(c), (d) and (e), inform the applicant of the reason and, if applicable, the information or documents that must be submitted.

Time limit starts over

(8) The time limit referred to in subsection (3) or (5) starts over as soon as all of the following conditions have been met:

Notice

(9) The Minister must notify the applicant in writing of the day on which the time limit referred to in subsection (3) or (5) starts over.

Amendment, Suspension or Cancellation of Authorization

Request for amendment

5 The holder of any authorization may request that the authorization be amended. The request must be submitted to the Minister in writing and include

Request for suspension

6 The holder of any authorization may request that the authorization be suspended in whole or in part. The request must be submitted to the Minister in writing and include

Request for cancellation

7 The holder of any authorization may request that the authorization be cancelled. The request must be submitted to the Minister in writing and include

Confirmation of receipt

8 (1) The Minister must, on receipt of a request referred to in sections 5 to 7, send to the authorization holder a confirmation of receipt that indicates the date of receipt.

60-day time limit

(2) Subject to subsections (5) and (7), the Minister must, within a period of 60 days beginning on the day on which the request is received, notify the authorization holder in writing that the request is complete, incomplete or inadequate. If the request is incomplete or inadequate, the notification must specify the information or documents to be provided.

Subsection (2) applies again

(3) The Minister must, on receipt of any information or documents set out in the notification, send to the authorization holder a confirmation of receipt that indicates the date of receipt. Subsection (2) applies again to the request, except that the period begins on the date indicated in the confirmation of receipt.

Minister’s decision

(4) Subject to subsections (5) and (7), the Minister must, within a period of 90 days beginning on the date of the notification informing the authorization holder that their request is complete, either amend, suspend or cancel the authorization or notify the authorization holder in writing of the refusal to do so.

Time limit ceases to apply

(5) The time limit referred to in subsection (2) or (4) ceases to apply if

Notice

(6) If the time limit ceases to apply, the Minister must notify the authorization holder in writing and, if it ceases to apply for a reason set out in any of paragraphs (5)(c), (d) and (e), inform the authorization holder of the reason and, if applicable, the information or documents that must be submitted.

Time limit starts over

(7) The time limit referred to in subsection (2) or (4) starts over as soon as all of the following conditions have been met:

Notice

(8) The Minister must notify the authorization holder in writing of the day on which the time limit referred to in subsection (2) or (4) starts over.

Amendment, suspension or cancellation by Minister

9 (1) The Minister may, on the Minister’s own initiative, amend or suspend, in whole or in part, or cancel any authorization if

Notice and representations

(2) If the Minister intends to amend or suspend, in whole or in part, or cancel the authorization, the Minister must notify the authorization holder in writing of this intention and give the authorization holder an opportunity to make written representations.

Suspension in urgent situations

(3) Despite subsection (2), the Minister may suspend an authorization, in whole or in part, without giving the authorization holder an opportunity to make written representations if the suspension is required to prevent the imminent death of fish or the imminent harmful alteration, disruption or destruction of fish habitat.

Notice of amendment, suspension or cancellation

(4) If the authorization is amended or suspended, in whole or in part, or cancelled by the Minister, the Minister must notify the authorization holder in writing of the amendment, suspension or cancellation, its effective date and, in the case of a suspension, the duration.

Reinstatement of authorization

(5) The Minister may reinstate the authorization at the expiry of the period indicated in the notice of suspension or, on written request, at any time during the suspension if the matter that gave rise to the suspension has been resolved or corrected. The Minister may require the authorization holder to submit a request for amendment in order to reinstate the authorization.

Transitional Provision

SOR/2013-191

10 If an application for an authorization under paragraph 35(2)(b) of the Fisheries Act is made in accordance with the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations before the coming into force of these Regulations, and the applicant has been notified by the Minister that the application is complete in accordance with the requirements of the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations, then the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations, as they read immediately before the coming into force of these Regulations, apply to the application.

Repeal

11 The Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations footnote 1 are repealed.

Coming into Force

S.C. 2019, c. 14

12 These Regulations come into force on the day on which section 22 of An Act to amend the Fisheries Act and other Acts in consequence comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

SCHEDULE 1

(Subsection 2(1) and paragraph 5(c))

Information and Documents To Be Provided

Contact Information

1 The applicant’s and, if applicable, their representative’s name, address and telephone number.

Description of Proposed Work, Undertaking or Activity

2 A detailed description of the proposed work, undertaking or activity and, if applicable, a detailed description of the project of which the proposed work, undertaking or activity is a part, including

3 If physical works are proposed, the project engineering specifications, scale drawings and dimensional drawings.

Phases and Schedule

4 A description of the phases and the schedule of the proposed work, undertaking or activity and, if applicable, a description and schedule of the project of which the proposed work, undertaking or activity is a part.

Location

5 A description of the location of the proposed work, undertaking or activity and, if applicable, of the location of the project of which the proposed work, undertaking or activity is a part, including

6 The name of the community nearest to the location and the name of the county, district or region and the province in which the proposed work, undertaking or activity will be carried on.

Consultations

7 A description and the results of any consultations undertaken in relation to the proposed work, undertaking or activity, including with Indigenous communities or groups and the public.

Fish and Fish Habitat

8 A detailed description of the fish and fish habitat found at the location of the proposed work, undertaking or activity and within the area likely to be affected by the proposed work, undertaking or activity, including

Effects on Fish and Fish Habitat

9 (1) A detailed description of the likely effects of the proposed work, undertaking or activity on fish and fish habitat. The description must include

(2) A detailed description of

Measures and Standards

10 A detailed description of the measures and standards that will be implemented, including an analysis of the expected effectiveness of those measures and standards, to

11 A detailed description of the monitoring measures that will be implemented to assess the effectiveness of the measures and standards referred to in section 10.

12 A detailed description of the contingency measures that will be implemented if the measures and standards referred to in section 10 do not meet their objectives.

13 A quantitative and detailed description of the death of fish referred to in subsection 9(2) after the measures and standards referred to in paragraph 10(a) are implemented.

14 A quantitative and detailed description of the harmful alteration, disruption or destruction of fish habitat referred to in subsection 9(2) after the measures and standards referred to in paragraph 10(b) are implemented.

Habitat Credit

15 The number of habitat credits that the applicant plans to use to offset the death of fish referred to in section 13 and the harmful alteration, disruption or destruction of fish habitat referred to in section 14, as well as the number of any certificate referred to in paragraph 42.02(1)(b) of the Act.

Offsetting Plan

16 A detailed description of a plan to offset the death of fish referred to in section 13 and the harmful alteration, disruption or destruction of fish habitat referred to in section 14 that were not offset by the habitat credits referred to in section 15, including

SCHEDULE 2

(Section 3 and paragraph 5(c))

Emergency Situations — Information To Be Provided

1 The applicant’s and, if applicable, their representative’s name, address and telephone number.

2 A detailed description of the proposed work, undertaking or activity, a description of the applicable situation referred to in paragraphs 3(a) to (c) of these Regulations and the reasons why the proposed work, undertaking or activity needs to be carried on without delay.

3 The timeline for carrying on the proposed work, undertaking or activity.

4 A description of the location of the proposed work, undertaking or activity, including its geographic coordinates and the name of any water sources and water bodies that are likely to be affected.

5 A detailed description of the death of fish and the harmful alteration, disruption or destruction of fish habitat that are likely to result from the proposed work, undertaking or activity.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Bill C-68, An Act to Amend the Fisheries Act and other Acts in consequence, recently amended the Fisheries Act by including, among other things, new prohibitions against the death of fish and the harmful alteration, disruption and destruction of fish habitat, as well as new authorities to amend, suspend and cancel existing authorizations. These new provisions will come into force on August 28, 2019.

Changes to the former Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations (PDF) (the former Regulations) are required to ensure alignment with the new and amended Fisheries Act provisions that were introduced.

Background

The 2015 Speech from the Throne included a commitment on the part of the Government to review environmental and regulatory processes. Also, in 2015, the mandate letter of the Minister of Fisheries, Oceans and the Canadian Coast Guard included a commitment to review the changes made in 2012 to the Fisheries Act, in order to restore lost protections and incorporate modern safeguards.

Canadians were engaged in this review by appearing before or providing submissions to Parliament’s Standing Committee on Fisheries and Oceans (SCOFO). To support this work, Fisheries and Oceans Canada (DFO) also engaged directly with Indigenous communities and groups, provinces and territories, and also engaged all interested Canadians through an open online consultation and ideas forum. Canadians expressed strong support for the protection of fish and fish habitat, including protecting the aquatic environment; protecting fish and fish habitat from human activities; and using the available Indigenous knowledge and scientific evidence in decision-making. Canadians also expressed a desire that the government focus efforts on better managing key threats: those causing environmental changes (loss of fish habitat and cumulative effects); those related to development activities; and those related to fishery activities.

On February 6, 2018, Bill C-68 was introduced in the House of Commons. Bill C-68 introduced a number of new tools to modernize the fish and fish habitat protection provisions of the Fisheries Act and to restore lost protection and incorporate safeguards.

This includes replacing the section 35 prohibition of the Fisheries Act which stated that “no person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational, or Aboriginal fishery, or to fish that support such a fishery” (“serious harm to fish”) with the following two prohibitions:

The Fisheries Act allows the Minister to authorize works, undertakings or activities under paragraphs 34.4(2)(b) and 35(2)(b).

Objective

In order to align with the new prohibitions under the Fisheries Act, the Authorizations Concerning Fish and Fish Habitat Protection Regulations (the Regulations) are being introduced to provide an updated scheme setting out the process for the submission and review of applications for paragraph 34.4(2)(b) or 35(2)(b) authorizations. The Regulations also introduce a new scheme to support applications to amend, suspend or cancel such previously issued authorizations.

These Regulations replace the former Regulations. While the Regulations do not change the main purpose of the former Regulations, the objective of the new Regulations is to introduce an updated scheme that will support and align with the new prohibitions of the Fisheries Act as well as the new authorities to amend, suspend or cancel existing authorizations.

Description

The former regulations are repealed and replaced by the Regulations.

The Regulations set out the information and documentation that must be submitted to the Minister by an applicant seeking to obtain a paragraph 34.4(2)(b) or 35(2)(b) authorization. The Regulations provide that, within 60 days of receipt of an application, the Minister must notify the applicant if the application is complete, incomplete or inadequate. If the application is complete, the Minister must proceed to review the application and, within 90 days, the Minister must make a decision on whether to issue or refuse the authorization. The Regulations also set out the circumstances in which these time limits may cease to apply as well as a process to restart the time limits, and also set out how applications submitted in emergency situations must be submitted and reviewed. In addition, the Regulations set out a process to apply for amendments, suspension or cancellation of previously issued authorizations, as well as circumstances where the Minister may proceed to do so on his or her own initiative, and when the Minister may reinstate suspended authorizations.

Factors to consider

The Minister of Fisheries and Oceans is required to consider the factors set out under section 34.1 of the Fisheries Act when considering whether to issue a paragraph 34.4(2)(b) or 35(2)(b) authorization. These factors provide direction to the Minister of Fisheries and Oceans in the course of decision-making under the applicable provisions.

The Minister of Fisheries and Oceans also, as required by section 34.1 of the Fisheries Act, considered the factors set out under section 34.1 of the Fisheries Act before recommending to the Governor in Council that these Regulations be made.

Categories of changes

The Regulations introduce six categories of changes from the previous Regulations which are listed here and described in greater detail below.

1. Reflecting new and amended provisions of the Fisheries Act

As indicated, the Fisheries Act is being amended to replace the former prohibition against serious harm to fish, with two new prohibitions similar to some previously found in former versions of the Act:

Such works, undertakings or activities may be authorized by the Minister under paragraphs 34.4(2)(b) and 35(2)(b). The Regulations contain an updated scheme to support applications for such authorizations, including an updated set of information and documentation required to be included in these applications.

2. Amending, suspending or cancelling authorizations

Bill C-68 introduced new authorities for the Minister to amend, suspend or cancel previously issued authorizations (subsections 34.4(5) and 35(5) of the Fisheries Act). These new authorities apply to all authorizations, whether issued under the former Fisheries Act or the amended Fisheries Act, as well as to authorizations issued in emergency and non-emergency situations. The Regulations set out a process for authorization holders to request amendments, suspensions or cancellations of their authorizations.

The Regulations also provide a process for the Minister to amend, suspend or cancel any authorization at the Minister’s own initiative under circumstances listed in the Regulations.

Request to amend, suspend or cancel by an authorization holder

An authorization holder may submit a request to amend or suspend, in whole or in part, or cancel an existing authorization by submitting to the Minister the relevant information set out in the Regulations. This information includes

Upon receipt of a request to amend, suspend or cancel an authorization, the Minister is required to provide the authorization holder with written confirmation of receipt of the request and is required, within 60 days, to notify the authorization holder in writing of the completeness of the request. If the application is incomplete, the Minister is required to indicate in the notification the information or documentation to be provided.

Within 90 days of notifying the authorization holder of the completeness of the request, the Minister is required either to amend, suspend or cancel the authorization, or to notify the authorization holder in writing of his or her refusal to do so.

The Regulations will also allow for the cessation and restarting of time limits for the review of applications to amend, suspend, or cancel authorizations. The circumstances in which this may occur are the same as those for an initial application for authorization. The time limits can cease to apply when an authorization holder proposes changes to their amendment, suspension or cancellation request, when an authorization holder requests that the processing of the request be suspended, when circumstances require that additional information or documentation be submitted by the authorization holder, when consultations are required, and when an Act of Parliament, a regulation or a land claims agreement requires that a decision be made or that conditions be met before an amendment, suspension or cancellation can be made. The time limits can be restarted when all the information or documentation in support of a proposed changes have been provided, when the Minister receives a written request that the processing of the request be resumed, when the missing information or documentation has been provided, when consultations have been completed or when the requirements of an Act of Parliament, a regulation or a land claims agreement has been fulfilled.

Establishing identical time limits for amendment, suspension and cancellation allows for a similar level of diligence in the assessment of the application as that applied in initial application requests, including with respect to the assessment of the potential impacts on fish and fish habitat, and with respect to potential Crown consultation obligations.

Amendments, suspensions or cancellations at the Minister’s own initiative

The Minister may, at his or her own initiative, amend or suspend, in whole or in part, or cancel any authorization if

To provide for procedural fairness when considering, at his or her own initiative, an amendment, suspension or cancellation, the Minister is required to send the authorization holder a written notice of his or her intention to amend, suspend or cancel the authorization and provide the authorization holder an opportunity to make written representations. Only in exceptional circumstances when necessary to prevent the imminent death of fish or imminent harmful alteration, disruption or destruction of fish habitat, is the Minister able to suspend an authorization in whole or in part without giving the authorization holder an opportunity to make written representations.

Steps that apply in both circumstances

Once a decision has been reached, the Minister is required to provide the authorization holder with written notice of his or her decision to amend, suspend or cancel an authorization, which will need to include the effective date and, in the case of a suspension, the duration. Any part of the initial authorization that was unaffected by the amendment or suspension will remain valid and continue to take effect until the expiry of the authorization.

The Minister may reinstate a suspended authorization at the expiry of the period indicated in the notice of suspension or, upon written request, at any time during the suspension, if the matter that gave rise to the suspension were to be resolved or corrected. In either case, the Minister may require the authorization holder to submit a request for amendment in order to reinstate the authorization.

3. Use of certified habitat credits in lieu of or in addition to offsetting plans

Bill C-68 introduced new authorities under the Fisheries Act for the establishment of “a system for the creation, allocation and management of a proponent’s habitat credits in relation to a conservation project,” and allows the Minister to enter into formal arrangements with any proponent in relation to this purpose.

An offsetting measure is an action undertaken by a proponent to counterbalance the remaining death of fish and the remaining harmful alteration, disruption or destruction of fish habitat resulting from the carrying on of a work, undertaking or activity. Proponent-led habitat banking is a type of offsetting measure that creates, restores or enhances fish habitat under the authority of a fish habitat bank arrangement with DFO in advance of a work, undertaking, or activity being developed. According to the related definition provided by the Fisheries Act, a habitat credit means a unit of measure that is agreed upon by a proponent and the Minister which quantifies the benefits of a project that is carried on by a proponent for the purpose of creating, restoring or enhancing fish habitat within an area in order to acquire habitat credits for his or her future projects. The Minister may issue a certificate to the proponent with respect to the validity of any habitat credit acquired for the purpose of carrying on a conservation project. The proponent may use his or her certified habitat credits to offset adverse effects on fish or fish habitat from the carrying on of a work, undertaking or activity. The terms and conditions of a habitat bank are predetermined in a bilateral arrangement between the proponent and DFO. Other key definitions are provided in the Fisheries Act.

The role of the provision added to the Regulations is to provide applicants the option of using certified habitat credits — which have been certified under the new provisions of the Fisheries Act — in their application for an authorization as a proposed means of offsetting impacts from proposed works, undertakings, or activities for which they are seeking an authorization. The use of habitat credits could be in lieu of, or in addition to offsetting measures proposed to be undertaken through an offsetting plan. If their available credits are not sufficient to offset all of the impacts from a work, undertaking or activity, proponents would be required to complement them with offsetting measures.

4. New forms of acceptable financial security

The former regulations required, as part of an application, the submission of an irrevocable letter of credit by a recognized Canadian financial institution to cover the costs of implementing an offsetting plan in the event that its implementation is not completed. A letter of credit had to be sufficient to cover the cost of implementing all elements of the offsetting plan, including monitoring measures.

To increase flexibility for proponents and create alternatives for providing financial security in relation to offsetting plans, the new Regulations allow applicants to provide an irrevocable letter of credit issued from a recognized Canadian financial institution or another equivalent financial guarantee, including a performance bond, to cover the cost of implementing the offsetting plan.

5. Requiring geographic coordinates of proposed offsetting measures

To facilitate the review of proposed offsetting measures, as well as to improve the consistency and accuracy of data on approved offsetting measures, the new Regulations require that applicants provide the geographic coordinates and a small-scale site plan identifying the overall location and boundaries of the location where they would propose to implement offsetting measures. One set of coordinates is required from the applicant per offsetting site to ensure that a unique set of coordinates, provided by the applicant, is associated with each location.

6. Other changes

In addition to the changes listed above, a number of other changes are being introduced to the Regulations. These are intended to better align the Regulations with the amended provisions of the Fisheries Act and improve cohesion.

Title of the Regulations

The former title, Applications for Authorization Regulations Under Paragraph 35(2)(b) of the Fisheries Act Regulations, is being replaced by a new title, Authorizations Concerning Fish and Fish Habitat Protection Regulations.

Definition of “offsetting plan” from section 1

The definition of “offsetting plan” is being removed from the Regulations, because a description of an offsetting plan is located in section 15 of Schedule 1 of the Regulations, making the definition unnecessary.

Sufficiency of information in applications for authorization

In the former Regulations, the Minister was required within a period of 60 days beginning on the date of receipt of the application, to notify the applicant in writing whether the application was either complete or incomplete. In the new Regulations, the Minister continues to have this authority though also has the authority to find the application to be inadequate. This inclusion confirms the Minister’s authority to assess the quality and scope of the information provided and to request additional information when the application contains inadequate information. If an application were to be found to be incomplete or inadequate, the written notification to this effect will specify the information or documentation to be provided.

Information related to consultations undertaken with Indigenous peoples or the public

A new provision is being introduced in the Regulations to require that the applicant include information about any consultation already undertaken prior to submitting the application. These consultations would have to relate to the work, undertaking, or activity for which an authorization is sought. The description should provide an overview of consultations, if any, held with Indigenous groups and with the public at large. The former Applicant’s Guide to Submitting an Application for Authorization under paragraph 35(2)(b) of the Fisheries Act recommended that this information be included with an application; this is now becoming a requirement under the new Regulations.

Replace “water source or water body” with “fish habitat” in the description of fish habitat

Among the information requirements formerly contained in Schedule 1 of the former Regulations, the section 7 was intended to obtain a description of the fish and fish habitat found at the location of the proposed work, undertaking or activity, including a description of the type of water source or water body, their characteristics, and how those characteristics support fish in carrying out their life processes. In order to pursue this intent, paragraph 8(b) of the new Regulations is replacing the reference to “water source or water body” with “fish habitat.” This adjustment is to maintain and properly reflect this intent. This change improves clarity in specifying the information required in an application, while simplifying the intent of information sought from the applicant, and enabling more precise information for DFO in reviewing an application.

7. Transitional provision

Bill C-68 includes transitional provisions in clauses 52 and 53 that pertain to existing Ministerial authorizations and applications for authorizations being processed at the time at which the new fish and fish habitat protection (FFHP) provisions of the Fisheries Act come into force. These clauses set out the rules that apply to such authorizations and applications in order to transition existing authorizations to the new FFHP provisions of the Fisheries Act, and govern the processing of applications under review at the time of coming into force of these provisions. These clauses provide for the orderly and transparent management of existing authorizations and applications for authorizations made under the former regulations.

The new Regulations will come into force on the day on which the new FFHP provisions of the amended Act are brought into force. To ensure a smooth transition for applications undergoing a review at the time of the coming into force of the new Regulations, the Regulations contain a transitional provision aligning with those in the Fisheries Act confirming that applications for authorizations made under the former Regulations before the coming into force of the new Regulations that are confirmed to be complete in accordance with the terms of the former Regulations will continue to be processed under the former Regulations.

Regulatory development

Consultation

Engagement 2018

A “Consultation Paper: Approach to a Key Regulation under the Proposed Fish and Fish Habitat Provisions of the Fisheries Act” setting out the proposed changes to the former Regulations was published online for a 58-day comment period from August to September 2018. Engagement on the paper was undertaken through a series of conference calls, meetings, and targeted email correspondence with long-time partners and stakeholder groups who share an interest in protecting and conserving fish and fish habitat. DFO hosted national conference calls for stakeholders on September 6 (Industry and Indigenous groups), September 7 [conservation organizations and environmental non-governmental organizations (ENGOs)] and September 12 (resource management boards). DFO further presented the proposed amendments to the Canadian Council of Fisheries and Aquaculture Ministers (CCFAM) Task Team on August 24 and September 18, and presented the changes to the Quebec government on September 19. At the regional level, DFO engaged key stakeholders through targeted email notifications, conference calls and meetings held upon request. Respondents were generally supportive of the amendments proposed to the Regulations in the consultation paper. Comments were received from 72 respondents, which included

The consultation paper posed six questions, which aligned with the proposed categories of changes to the former Regulations, as well as with specific related provisions in Bill C-68. Comments received were analyzed to identify important gaps and highlight concerns.

A summary of the comments received during the above-mentioned consultations and how they were taken into account is presented below.

Reflecting new and amended provisions of the Fisheries Act

Most respondents expressed support for the return of the prohibitions against the death of fish by means other than fishing and the harmful alteration, disruption or destruction of fish habitat. Some stakeholders, including industry representatives, raised concerns regarding the possibility of overly expansive interpretation and application of the returned prohibitions, as well as the implications of the new provisions for existing facilities. As well, some municipal representatives expressed concerns regarding the requirements for approval of smaller-scale projects. Respondents were consistent in recommending the need for clear policy and guidance to ensure consistency in the interpretation and application of the new prohibitions. It was also urged that DFO work closely with other regulators to ensure alignment with other regulatory regimes.

Response: DFO is reviewing its internal policies and guidance regarding the interpretation of the new FFHP provisions. These policies and other tools are expected to be ready for the day of coming into force of the Regulations. Approaches to address questions such as the management of existing facilities and small-scale projects are part of this effort. For example, standards and codes of practice — guidance documents to be used by proponents of smaller projects, with measures to avoid impacts to fish and fish habitat — will provide clear and predictable processes for managing activities that could impact fish and fish habitat, where there is a clear understanding of impacts and measures to avoid them.

Extensive guidance will be provided to partners, stakeholders and Canadians to provide clarity on the application of the new provisions, as part of ongoing communication and coordination. In addition, extensive training of DFO staff, and continuing coordination with, and training of, DFO’s regulatory partners (e.g. other federal regulators, provinces) on the implementation of the new FFHP provisions of the Fisheries Act provisions are critical elements of DFO’s approach to implementation.

Amending, suspending, or cancelling authorizations

Most respondents were generally supportive of these proposed new authorities. However, many expressed the need for clear time limits and criteria to be established to provide certainty to proponents, particularly where the Minister initiates amendment, suspension or cancellation. Others, however, advocated flexibility in time limits to fully assess the implications of amending, suspending or cancelling authorizations. Other recommendations related to involving stakeholders, Indigenous groups, and the public in decisions to amend, suspend or cancel authorizations.

Response: Clear time limits have been provided in the Regulations to provide greater certainty to proponents. These time limits have been developed to reflect the time limits of an initial application to ensure an in-depth review of the requests. However, the time limits are maximum time limits and DFO can process a request in a shorter time frame when appropriate. The processing of the amendment, suspension and cancellation request is the same as for the initial request of authorization, and with the same criteria.

Respondents recommended that non-compliance with the conditions of an authorization be grounds for the suspension, amendment or cancellation of an authorization.

Response: Paragraph 9(1)(a) of the Regulations provides that the Minister may amend or suspend, in whole or in part, or cancel any authorization if the Minister has reasonable grounds to believe that the conditions of the authorization have not or will not be met.

Respondents wanted the Regulations to include a provision that would permit a third party to request amendments, suspensions or cancellations to authorizations.

Response: Paragraph 9(1)(c) of the Regulations provides that the Minister may amend or suspend, in whole or in part, or cancel an authorization if he or she becomes aware of new information that demonstrates that the death of fish, by means other than fishing, or the harmful alteration, disruption or destruction of fish habitat is or will be significantly greater than anticipated by the Minister at the time of the issuance of the authorization. New information leading to such conclusion could be brought to the Minister’s attention by a third party.

Using certified habitat credits in lieu of, or in addition to offsetting plans

The complexity of a habitat banking system was recognized by respondents, and the need for clear policy, rigour and guidance on the establishment of habitat banks and the use of habitat credits was widely expressed. Many recommended that the use of habitat credits be closely linked to impacts and locations of work, undertaking or activity for which they provide offsetting measures, while others recommended greater flexibility.

Response: The establishment and administration of habitat banks and the certification of habitat credits is enabled by the amended Fisheries Act. To support this new habitat banking scheme, DFO will provide guidance on the establishment and administration of habitat banks. The Regulations also support this scheme by allowing applicants to submit certified habitat credits in lieu of, or in addition to, an offsetting plan.

New forms of acceptable financial security

A range of positions were expressed regarding the proposal to allow for new forms of acceptable financial security. Some respondents cautioned that additional methods to provide financial security must not result in a lower degree of protection.

Response: The DFO’s decision to allow specific alternate forms of financial security in applications for authorizations is not expected to result in a lower degree of protection as alternate forms of financial security must be equivalent to an irrevocable letter of credit issued by a recognized Canadian financial institution to cover the cost of implementing the offsetting plan. This flexibility in providing for alternate forms of financial guarantee intends to lessen the administrative constraints for applicants.

Some respondents expressed the need to eliminate the financial and administrative burden of providing financial security.

Response: DFO maintains this requirement, as it is an essential means of recovering the costs of implementing an offsetting plan in the event that its implementation is not completed.

Requiring geographic coordinates of proposed offsetting measures

Concerns were raised regarding the protection of data and information, including the circumstances in which it may be made public. It was recommended that there be clarification on the methods and media for providing this information.

Response: DFO does not intend to publish the applications for authorizations on the Fisheries Act Public Registry, once the registry is established.

Notifying Indigenous communities

DFO had previously considered including a provision in the Regulations that would have required DFO to notify Indigenous groups of the receipt of an application for an authorization. This proposal was described in the initial consultation paper published in July 2018.

Concerns were expressed by many regarding uncertainty as to which Indigenous communities would have to be notified. It was widely urged that clear criteria be developed for deciding which Indigenous communities would have to be notified. Many respondents recommended that Indigenous communities should determine if and when they should be notified.

Response: In reviewing options, questions were raised as to whether a regulatory approach would best achieve the original intent, i.e. to provide notice immediately on receipt of an application which would enable Indigenous peoples to share Indigenous knowledge relevant to decision-making and provide information about the project’s potential impacts on Indigenous or Treaty rights. It was found that some options could have risked excluding communities and groups that might have wished to be notified (such as those without defined territories), while others could have risked overwhelming communities and groups with multiple notifications which might not be of interest. It became apparent that a regulatory approach would not provide the flexibility necessary to achieve the original intent and meet the varied needs of Indigenous groups and communities across the country.

In light of this, DFO is pursuing a non-regulatory approach to notifying Indigenous communities, by developing regional notification processes for the receipt of applications for authorizations. These processes will be developed in collaboration with Indigenous communities and groups, and will set out processes that would be less constrained by regulatory parameters and allow for greater flexibility in providing notifications, to better suit the unique circumstances of individual Indigenous communities and groups. This revised approach was presented in the 2019 discussion paper.

Prepublication exemption

The 2018 “Consultation Paper: Approach to a Key Regulation under the Proposed Fish and Fish Habitat Provisions of the Fisheries Act” indicated that draft Regulations would be prepublished in the Canada Gazette, Part I, for public comment. However, as Bill C-68 was undergoing Parliamentary review in early 2019, a discussion paper was instead released online for a 30-day public comment period from April 3 to May 3, 2019, in replacement of prepublication in the Canada Gazette, Part I. This was done to allow for the new Regulations to be ready to be made by the Governor in Council and published in the Canada Gazette, Part II, shortly after royal assent of Bill C-68 and for the new application for authorization scheme to be in place upon the coming into force of the new provisions in the Fisheries Act.

Engagement 2019

A “Discussion Paper: Proposed modifications to the Applications for Authorization Regulations under Paragraph 35(2)(b) of the Fisheries Act Regulations” setting out the proposed changes to the former Regulations, was published online for a 30-day comment period starting on April 3, 2019. A series of conference calls, meetings, and targeted email correspondence with long-time partners and stakeholder groups who share an interest in protecting and conserving fish and fish habitat were then undertaken. DFO hosted national conference calls for stakeholders on April 16, 2019 (Indigenous and resource management boards), and April 17, 2019 (Industry, conservation organizations and ENGOs). DFO further presented the proposed amendments to the Canadian Council of Fisheries and Aquaculture Ministers (CCFAM) Task Team on April 12, 2019, and, presented the proposed amendments to the Quebec government on May 2, 2019. At the regional level, DFO engaged key stakeholders through targeted email notifications, conference calls and meetings held upon request. Submissions were received from 52 respondents, which included

The discussion paper proposed categories of changes to the former Regulations. Comments received were analyzed to identify important issues and highlight concerns. A summary of the comments received during the above-mentioned consultations and how they were taken into account is presented below.

Reflecting new and amended provisions of the Fisheries Act

Similar to consultations undertaken during 2018, many respondents, across several sectors, emphasized the need for clear policy and guidance, as well as transition plans, to ensure consistency in the interpretation and application of the new prohibitions as they are implemented, as well as on related aspects in the new Regulations. This includes guidance on the definitions of key terms such as “death of fish,” and “harmful alteration, disruption, or destruction” of fish habitat.

Response: DFO continues to review internal policies and guidance regarding the interpretation of these terms, and the development of policies, guidance and other tools to support coherent and consistent overall implementation of the new FFHP provisions. Extensive guidance will be provided to partners, stakeholders and Canadians to provide clarity on the application of the new provisions. As well, coordination with, and training of, DFO’s regulatory partners (e.g. other federal regulators, provinces) on the implementation of the new FFHP provisions is a critical element of DFO’s approach to implementation.

Amending, suspending, or cancelling authorizations

Most respondents were generally supportive of these proposed new authorities and associated processes to apply for amendments, suspensions or cancelling of authorizations. However, many expressed the need for clear time limits within which such requests must be processed and for criteria to be established to provide certainty to proponents, particularly when the Minister proceeds on his or her own initiative with the amendment, suspension or cancellation of authorizations. Others, however, advocated for flexibility in time limits in order to allow a full assessment of the implications of amending, suspending or cancelling authorizations. Other recommendations related to involving Indigenous groups and the public in decisions to amend, suspend or cancel authorizations.

Response: Clear time limits have been provided in the Regulations to provide greater certainty to proponents. These time limits have been developed to align with the time limits of an initial application to ensure an in-depth review of the requests. However, the time limits are maximum time limits and DFO can process the requests in a shorter time frame when appropriate. Time limits may also cease to apply under certain circumstances to allow for proper consideration of other factors. The decisions on whether to amend, suspend or cancel authorizations may be subject to the Crown’s duty to consult and the time limits can be stopped when such consultations are required.

Some respondents indicated that the Minister’s power to amend, suspend or cancel an authorization at his or her own initiative should only apply to cases when the conditions of an authorization established by the Minister have not been met, instead of in cases where there is a possibility that a condition may not be met.

Response: In circumstances where the Minister believes that the conditions of an authorization will not be met, the Minister will be required to notify the authorization holder in writing of his or her intention to amend, suspend or cancel the authorization and provide the authorization holder an opportunity to make written representations. This, in turn, will provide an opportunity for the authorization holder to demonstrate how he or she will ensure that the conditions of the authorization will be met and thus prevent the amendment, suspension or cancellation of the authorization in circumstances when the situation can and will be corrected.

Some respondents recommended replacing the expression “significantly greater” with “greater or materially different” in relation to the magnitude of the impact of a work, undertaking or activity allowing the Minister to proceed to amend, suspend or cancel an authorization on his or her own initiative.

Response: It was decided not to proceed with this change as the Department was satisfied that the common meaning of the expression “significantly greater” is an appropriate standard to apply to this exercise of ministerial authority and is sufficiently broad to apply to varying circumstances.

Respondents also requested further clarity around the use of the expression “exceptional circumstances” contained in the discussion paper as it applied to the Minister’s power to suspend, in whole or in part, an authorization without giving the authorization holder an opportunity to make written representations.

Response: The Minister’s power to suspend an authorization, in whole or in part, without giving the authorization holder an opportunity to make written representations will only be used in circumstances when required to prevent the imminent death of fish or the imminent harmful alteration disruption or destruction of fish habitat. The word “imminent” clarifies that the Minister’s power can only be exercised in circumstances when the possibility of such impact materializing is imminent. These situations are not expected to be common occurrences and therefore, it is anticipated that in the majority of cases, authorizations holders will be provided the opportunity to provide written representations.

Respondents further wished to know if Indigenous peoples would be consulted prior to a decision to amend, suspend or cancel an authorization at the Minister’s initiative.

Response: The Minister’s decision to amend, suspend, or cancel at his or her own initiative may be subject to the Crown’s duty to consult. Therefore, when the duty to consult is triggered, potentially impacted Indigenous groups will be consulted.

Some respondents requested that a shorter and more streamlined process be developed to deal with amendment requests that are administrative in nature to reduce unnecessary delays.

Response: The time limits for the review of amendment requests (60 days for completion, 90 days for decision) are maximum time limits imposed on the Minister. The Minister may process the request and issue the amended authorization well within this time frame when appropriate. When amendments to authorization are requested or required that are administrative in nature, internal guidance will be provided to staff for accelerating their treatment to the extent possible.

Some respondents further suggested that authorizations include certain conditions that would trigger the automatic suspension or cancellation of the authorization. Examples of such conditions include quantitative environmental limits (e.g. flow alteration, dissolved oxygen concentrations, fish population or mortality thresholds, and presence of species at risk).

Response: Under the Fisheries Act, the Minister has broad discretion to include conditions in an authorization, and such conditions are established on a case-by-case basis based, among other things, on internal policies and guidance materials and details specific to the impacts expected to result from the proposed work, undertaking of activity. The Regulations do not specify any requirements for the inclusion of these types of conditions in authorizations.

Using certified habitat credits in lieu of, or in addition to offsetting plans

The complexity of a habitat banking system was recognized by respondents, and the need for clear policy, guidance and rigour on the establishment of habitat banks and the use of habitat credits was widely expressed.

Response: To support this new habitat banking scheme, DFO will provide guidance on the establishment and administration of habitat banks.

Many respondents recommended that the use of habitat credits be closely linked to impacts and locations of projects for which they provide offsets, while others recommended greater flexibility.

Response: The establishment and administration of habitat banks and the certification of habitat credits are enabled under the amended Fisheries Act. The Act provides for an arrangement to be developed and signed by DFO and the banking proponent. Criteria and conditions related to the service area will be established on a case-by-case basis, guided by policy, and will be appended to the bilateral arrangement. A service area is the geographical area that encompasses a fish habitat bank and within which a proponent can carry on a work, undertaking or activity using credits from that particular bank. The Regulations also support this scheme by allowing applicants to submit certified habitat credits in lieu of, or in addition to, an offsetting plan. DFO is developing further guidance on defining the service area of a habitat bank.

Indigenous groups have expressed concern that habitat banking could also be a backdoor to avoid Indigenous consultation on a resource development project.

Response: DFO is committed to meeting its duty to consult obligations for every application for authorization. Habitat credits are one of several options for meeting offsetting plan requirements to address remaining impacts to fish and fish habitat. DFO is committed to meeting the consultation obligations that may arise with respect to applications for authorizations and decision on whether or not to issue the authorization sought. Applications are, and will continue to be, reviewed on a case-by-case basis and the consideration of the use of habitat credits, in whole or in-part, to meet the requirement of an offsetting plan will be part of consultations when consultation obligations are triggered.

New forms of acceptable financial security

A range of positions were expressed regarding the proposal to allow for new forms of acceptable financial security. Some respondents cautioned that additional methods to provide financial security must not result in a lower degree of protection.

Response: The DFO’s decision to allow specific alternate forms of financial security in applications for authorizations is not expected to result in a lower degree of protection as alternate forms of financial security must be equivalent to an irrevocable letter of credit issued by a recognized Canadian financial institution to cover the cost of implementing the offsetting plan. This flexibility in providing for alternate forms of financial guarantee intends to lessen the administrative constraints for applicants.

Some respondents expressed the need to further reduce the financial and administrative burden of providing financial security and did not see performance bonds as a significant improvement in that regard. Others proposed to exempt conservation and not-for-profit organizations, and municipalities, in particular, from the requirement.

Response: DFO maintains this requirement is essential to secure the recovery of the costs of implementing an offsetting plan in the event that its implementation is not completed by the authorization holder.

Industry stakeholders noted that in some instances, different provincial and federal departments require financial assurance for the same project and called for eliminating duplication when there are overlapping requirements.

Response: Until a mechanism is developed for coordinating requirements among provincial and federal partners, DFO must have the ability to cover the costs of implementing an offsetting plan required by an authorization issued by DFO in the event that its implementation is not completed.

Requiring geographic coordinates of proposed offsetting measures

Concerns were raised regarding the protection of data and information, including the circumstances in which it may be made public. It was recommended that there be clarification on the methods and media for providing this information.

Response: DFO does not intend to publish the applications for authorizations on the Fisheries Act Public Registry once the registry is established.

Some confusion arose regarding the requirement for habitat banks to be submitted with geographic coordinates, in addition to the same requirement for offsetting measures.

Response: Geographic coordinates are required under the Regulations to describe the location of offsetting measures while the geographic coordinates and description of habitat banks are already known as part of the information requirements for establishing a habitat bank.

Concerns were raised regarding the way in which geographic coordinates should be presented. It was expressed that a single set of coordinates does not provide sufficient information to represent an offsetting location.

Response: Upon consideration of recommendations to require a more precise description of the location of an offset, a provision has been added to the Regulations to require also a small-scale site plan identifying the overall location and boundaries.

Notifying Indigenous communities

Respondents showed support for the proposal to develop a non-regulatory approach for notifying Indigenous communities. Respondents requested more information regarding the proposed approach, including who would be notified of the receipt of an application, when and how.

Response: Since notification processes will be developed in a non-regulatory framework, information regarding who will be notified, and how and when they will be notified will become available at a later date as the notification processes are developed. At this time, it is anticipated that notifications would be given on receipt of an application for an authorization. The approach would also be focused on Indigenous communities determining their own areas of interest.

Respondents further sought clarity surrounding the timeline for the development of the notification processes and the anticipated process to reach out to Indigenous communities to develop notification processes.

Response: DFO is currently contemplating options for the development of the notification processes. A time frame has not yet been established.

Some respondents felt that notifications should occur after an application is deemed complete.

Response: The current proposal is to notify Indigenous communities on receipt of an application for authorization. Other suggestions will be considered when notification processes are developed.

Some respondents wished to see the notification process extended to non-Indigenous communities located in the vicinity of proposed projects. Others suggested that the notification process remain active and fluid so that it may evolve with changing circumstances.

Response: Options for notification processes will be reviewed as part of their development.

Other comments

Information related to consultations undertaken with Indigenous peoples of Canada or the public

Respondents asked for further explanation on the interpretation of “consultation” in the context of the new information requirement as part of an application for authorization.

Response: In section 7 of Schedule 1 of the Regulations the word “consultation” is used but is not intended to be limited to consultations undertaken in relation to consultations arising from the legal duty to consult. Since 2013, DFO has recommended that the applicants provide this information as part of an application for authorization to facilitate the Department’s review of an application. The former applicant’s guide defines this information as “a summary of any public engagement activities and outcomes; and a summary of any Indigenous engagement activities and outcomes; […].” The guidance on the information to be provided will remain the same.

Replace “water source or water body” with “fish habitat” in the description of fish habitat

Some respondents expressed their satisfaction with the replacement of “water source or water body” with “fish habitat” in the description of fish habitat, as it is more specific. Others were concerned that the shift may run counter to the consideration of cumulative effects or effects on other species, ecosystems or species at risk, and may not effectively reflect the updated definition of fish habitat in the Fisheries Act.

Response: DFO requires information that describes the fish habitat at the location of the proposed work, undertaking or activity, including a description of the type of water source or water body, their characteristics, and how those characteristics support fish in carrying out their life processes. As per subsection 34.1(1) of the Fisheries Act, DFO must consider cumulative effects, among other factors, in making a decision on an authorization. Other responsibilities of the Minister, such as the responsibility for managing aquatic species at risk under the Species at Risk Act, are also key considerations in making a decision. Obtaining this information from applicants will assist DFO in this regard.

Sufficiency of information in applications for authorization

Some respondents recommended that DFO provide full clarity around what would cause the Minister to deem an application “inadequate.”

Response: The addition of the ability for the Minister to consider an application to be “inadequate” in the Regulations is intended to provide a means of ensuring that information provided contains a level of detail that is sufficient for the Minister to properly assess an application for authorization, and to request additional information when it contains information that is considered inadequate. A revised Applicant’s Guide will include guidance on the scope and quality of information that the Minister will need to enable proper assessment of applications.

Assessment of modern treaty obligation

The new Regulations are introducing administrative changes related to information requirements and timelines for submitting and reviewing applications for authorizations, to align the Regulations with the amendments to the Fisheries Act introduced through Bill C-68, as well as to introduce a process to amend, suspend or cancel existing authorizations. The implementation of these amendments and new processes is not in itself expected to have any impacts on modern treaty rights, interests or self-government provisions.

As per the 2015 Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment was conducted on this regulatory proposal. The assessment concluded that implementation of this proposal will likely not have an impact on the rights, interests, or self-government provisions of any treaty partners. DFO will respect the consultation obligations set out in these implicated modern treaties when implementing the Regulations.

Indigenous engagement and consultation

Engagement on the first and second discussion papers was undertaken through a series of conference calls, meetings, and targeted email correspondence with Indigenous groups and organizations and resource management boards at the national and regional levels. DFO hosted national conference calls for Indigenous groups and resource management boards in September 2018 and April 2019. A summary of the comments received during these two phases of engagement is presented below.

Engagement 2018

The comments below, received from Indigenous groups, were in the same line as those of other stakeholders, and have been answered in the previous sections of the Regulatory Impact Analysis Statement (RIAS). Please refer to the Consultation section for DFO’s responses.

Indigenous groups wished to be formally consulted regarding any amendment, suspension or cancellation decisions located in their areas of interest. They were concerned that the time limits would not permit meaningful consultation, considering the increasing number of project proposals in certain regions requiring their attention. One recommendation was to have the Regulations include a provision that would permit a third party, such as an Indigenous group, to request amendments, suspensions or cancellations of authorizations. They recommended that non-compliance with the conditions of an authorization should be grounds for suspension, amendment or cancellation of the authorization.

Indigenous groups and resource management boards requested that habitat credits be used to compensate for similar habitats or species as those impacted by the project, and that the efficiency of the habitat bank be demonstrated before allowing the use of habitat credits. There was an expressed desire to be involved in the development of any habitat banking policy guidance, and to be consulted on the development of habitat banking arrangements and the use of habitat credits. They noted that habitat credits should only be allocated to restoration initiatives and not to initiatives aimed at maintaining or preserving existing habitats.

Indigenous groups and resource management boards were supportive of including geographic coordinates for offsetting measures and suggested that this information be made public using geo-spatial information, except where it could risk exposing the location of important or sacred sites. Thus, it was recommended that Indigenous communities be consulted on decisions to disclose the location of offsetting sites. It was also proposed that offsetting measures not be authorized for habitats of a very unique nature where compensation may not be possible.

Clarification was requested regarding whether notifications would be undertaken independently from the duty to consult, and whether Indigenous communities would be consulted in reviewing applications or in the decision-making process. Several suggestions were made to replace the word “vicinity,” including “traditional territories,” “land claim areas,” “in a set distance of a project,” “within the watershed of an application,” “in areas where Indigenous communities exercise their rights under the section 35 of the Constitution Act, 1982” or “within an area or claimed territory that includes proposed project impacts.” Also, Indigenous groups and resource management boards requested that appropriate time be given to Indigenous groups to respond to a notification.

Engagement 2019

The comments below, received from Indigenous groups, have been previously answered in the RIAS. Please refer to the Consultation section for responses.

Indigenous groups continued to express their desire to be formally consulted regarding any request for amending, suspending or cancelling authorizations in areas that they have identified as areas of interest to them. In addition, they wished to be notified of any decision to amend, suspend or cancel an authorization, including information supporting this decision in their areas of interest. They continued to indicate that there should be a provision that would allow them to request that an authorization be reviewed, amended, suspended or cancelled if the decision has potential to impact any Aboriginal or Treaty rights.

Indigenous groups and resource management boards remained generally supportive of the proposed modifications and the use of certified habitat credits, provided that the Regulations, or policies clearly require offsetting measures to occur within the same area as the impacts of the proposed project. Concerns were raised that applying certified credits could result in bypassing Indigenous consultation, and they requested that they be consulted and permitted to review and comment on the use of habitat credits.

New forms of financial security must continue to provide the same level of protection as a letter of credit and must be able to cover all possible costs associated with implementing and monitoring an offsetting plan.

Indigenous groups and resource management boards continue to support the addition of requiring geographic coordinates of the proposed offsetting measures. They wish that the information submitted provide sufficient detail about the entire geographic area of the proposed offsetting measure, rather than a single coordinate.

Most Indigenous groups and resource management boards are supportive of the alternative approach to notifying Indigenous communities. The non-regulatory approach provides more flexibility to groups to define their areas of interest, especially for groups that do not have clearly defined territorial boundaries. They recognized that groups will face a large workload associated with increased numbers of notifications and consultations, but having the ability to identify their areas of interest is important to ensuring they are aware of all potential projects, even if they are not of great interest. They wish to be able to modify their areas of interest over time to allow them to capture more (or less) notifications. They continue to express that this is not a substitute for a Crown consultation.

Indigenous groups are generally supportive of the other changes presented in the discussion paper, including the ability to deem an application inadequate and replacing “water source or water body” with “fish habitat.”

Instrument choice

A regulatory instrument was selected as no feasible alternatives were identified that would provide the same degree of predictability for those seeking authorizations under the Fisheries Act, or amendments thereto, or suspension or cancellation thereof.

The majority of changes made in the Regulations are required to ensure alignment with the amended Fisheries Act, including with the new authorities and prohibitions. Some changes, such as the requirements to provide geographic coordinates for offsetting measures, the new acceptable forms of financial guarantees and the requirement to provide the results of undertaken consultations, are included, as they are intended to be mandatory for all Canadians seeking the review of applications for authorization for their proposed works, undertakings and activities that may affect fish and fish habitat.

As mentioned above, following the 2018 engagement, the proposal to notify Indigenous communities was removed from the initial consultation paper after consideration of the comments received, as it was deemed that this proposal would be better suited for a non-regulatory framework.

Regulatory analysis

Costs and benefits

These Regulations are estimated to marginally increase the administrative cost to businesses. It is anticipated that there will be a one-time impact on 300 businesses because of the addition of an information requirement in the form requesting geographic coordinates for offsetting projects. It is also anticipated that each year 3 additional businesses will assume these administrative costs, such that approximately a total of 330 businesses will be impacted over the 10-year period. The total present value of administrative costs are estimated to be approximately $2,613 and the annual administrative cost per year is estimated to be $372. No other additional costs are anticipated on businesses, Canadians and the government as a result of these Regulations.

The Regulations focus on updating the application processes for authorizations and are not anticipated to generate incremental benefits to businesses and Canadian society.

Small business lens

There will be an increase in administrative costs to businesses over the 10-year period. It is anticipated that there will be a one-time impact on 297 small businesses in the first year and on about 3 businesses each year thereafter as a result of the addition of information on geographic coordinates for offsetting projects in the application for authorization. The administrative cost on small businesses has been estimated to be approximately $368 per year, while the administrative cost per business per year is estimated to be $1.

“One-for-One” Rule

It is anticipated that these Regulations would add new administrative requirements on businesses. The additional administrative requirement would be the result of the additional information requirement regarding the geographic coordinates for where offsetting projects would be taking place. This additional field would be added to the existing Application for Authorization form.

As a consequence of this additional requirement, it is anticipated that there will be a one-time impact on approximately 300 businesses in the first year and on about 3 businesses each year thereafter over the 10-year analysis period. The annual administrative cost of this additional requirement is estimated to be $232, while the administrative cost per business is estimated to be $1 per year.

Regulatory cooperation and alignment

Additional regulatory cooperation and alignment were not required for the development of these new Regulations. DFO already has arrangements with federal agencies and provincial governments pursuant to which these partners conduct initial reviews of proposed projects to determine if these projects require authorizations under the Fisheries Act.

Strategic environmental assessment

A strategic environmental assessment was conducted as part of the preparation for Bill C-68. This regulatory proposal is directly linked to the changes that were proposed in Bill C-68 and the results of the strategic environmental assessment are applicable to these Regulations.

A strategic environmental assessment was conducted in accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals which followed the process set out by DFO. Overall, the proposed legislative amendments are expected to have positive environmental effects.

These Regulations fulfill targets and key priorities of the Federal Sustainable Development Strategy. They contribute to the objective for healthy coasts and oceans, pristine lakes and rivers, healthy wildlife populations, and safe and healthy communities. It will further contribute to the 2020 biodiversity goals and targets for Canada and will support the sustainability of Canada’s marine resources for generations to come. The changes will safeguard fish, protect the environment and benefit communities.

The modifications align with changes in the amended Fisheries Act. The effects of these amendments to the Act will include improving the oversight of development activities, and allow for better protection and management of potential adverse impacts on fish and fish habitat.

Gender-based analysis plus

The gender-based analysis plus (GBA+) for Bill C-68 concluded that the proposals to increase protection of aquatic environments would generally affect three groups of Canadians. The first group includes the public, who benefit from the restoration of lost protections and the conservation and protection of fish and fish habitat. Specifically, this group includes those who participate in any form of fishing in Canada, as well as those who benefit from the aquatic environment as natural capital or for recreational use. The second group is those who are seeking the reviews of their proposed works, undertakings and activities that may affect fish and fish habitat. The last group relates to Canadians who are both positively and negatively affected by projects that proceed as a result of DFO’s decisions. DFO has limited to no available information on the demographic composition of these client groups.

These Regulations are aimed mainly at updating procedural practices related to the authorization of works, undertakings and activities, hence no GBA+ impacts have been identified for this regulatory proposal.

Implementation, compliance and enforcement, and service standards

Implementation

These Regulations will come into force concurrently with the new FFHP provisions of the Fisheries Act. Guidance materials on completing their applications will be provided to guide applicants.

Furthermore, guidance materials will be available to support authorization holders and applicants through the transition to the new regime (including the transition of existing authorizations and the processing of applications for authorizations still underway).

Compliance and enforcement

The conditions included in existing authorizations (issued before the coming into force of the new FFHP provisions) remain valid and continue to apply, as will those included in authorizations issued after the coming into force. Compliance with conditions of authorizations will continue to be monitored and enforced.

Service standards

DFO reports to Parliament annually, notably through its report on the Administration and Enforcement of the Fish Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. This report includes reporting on authorizations issued under subsection 35(2) of the Act and on related enforcement activities. Future annual reports to Parliament will be used to report on DFO’s compliance with the time limits provided under the Regulations.

Contact

Charles Haines
Director
Ecosystems Management Policy and Practices
Ecosystems Management Directorate
Aquatic Ecosystems Sector
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6