Updated federal regulation on new fisheries act

The Federal Government has recently released a new regulation governing authorizations for works that may kill or harm fish or harmfully alter, damage or destroy their habitat. The new regulation replaces the former Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations. The new authorization process is contemplated in ss. 34.3(2)(b) and 35(2)(b) of the new Fisheries Act.

The regulations set out the information that must be submitted with the application and creates a service timeline for those applications. The proponent must be notified within 60 days of receipt of the application if the application is complete and adequate. Within 90 days, a decision must be made on the applications.

The factors the Minister will consider in assessing an application are set out in s 34.1 of the Act, which was introduced in this year's amendments:

1. the contribution to the productivity of relevant fisheries by the fish or fish habitat that is likely to be affected;
2. fisheries management objectives;
3. whether there are measures and standards
   1. to avoid the death of fish or to mitigate the extent of their death or offset their death, or
   2. to avoid, mitigate or offset the harmful alteration, disruption or destruction of fish habitat;
4. the cumulative effects of the carrying on of the work, undertaking or activity referred to in a recommendation or an exercise of power, in combination with other works, undertakings or activities that have been or are being carried on, on fish and fish habitat;
5. any fish habitat banks, as defined in section 42.01, that may be affected;
6. whether any measures and standards to offset the harmful alteration, disruption or destruction of fish habitat give priority to the restoration of degraded fish habitat;
7. Indigenous knowledge of the Indigenous peoples of Canada that has been provided to the Minister; and
8. any other factor that the Minister considers relevant.

In addition to the service timelines noted above, the regulation introduces a number of new powers and requirements associated with the authorization process including:

• giving the Minister new authority to amend, suspend or cancel previously-issued authorizations (and a process for doing so);
• allowing proponents to rely on "habitat credits" instead of offsetting plans. Offsetting the impact of development by creating or improving habitat elsewhere is a practice that DFO has encouraged since the late 1980s and is now officially recognized in the legislation. The use of "habitat credits" appears to allow a proponent to rely on previously-undertaking habitat work, rather than creating a new offsetting plan.
• Allowing proponents to rely on financial security aside from irrevocable letters of credit; and
• Requiring geographic coordinates of proposed offsetting measures

A number of elements of this regulation will require further clarification through Department of Fisheries and Oceans guidance and policy documents. The concept of a "habitat credit", for example, is only vaguely defined. Clarity will be required to ensure consistency as to what constitutes a "credit" to ensure (among other things) that a) the habitat improvement truly offsets the impact proposed work and b) to ensure proponents' habitat improvement efforts are treated equally across the country. Further guidance should also be expected on key terms such as "death of fish", "fish habitat", and "harmful alteration, disruption, or destruction" of fish habitat.