On May 27, 2019 the Standing Senate Committee on Fisheries and Oceans released its report on Bill C-68, the new federal Fisheries Act (the "Act"). A previous article discussed the Act's broader protections for fish and fish habitat, including changes to the definition of "fish habitat". Of particular interest was the introduction, at the House Committee stage, of a "deeming provision" that deemed water flow (previously understood to be a component of habitat) to be fish habitat itself:
2(2) For the purposes of this Act, the quantity, timing and quality of the water flow that are necessary to sustain the freshwater or estuarine ecosystems of a fish habitat are deemed to be a fish habitat.
The proposed change in definition prompted expressions of concern even before Bill C-68 came before the Senate Committee. The Minister of Fisheries, Oceans and the Canadian Coast Guard acknowledged this in his speech introducing Bill C-68 at the Senate:
I also know there has been a lot of concern in relation to the flow amendment in proposed section 2(2). That amendment was made in the house committee by MP Elizabeth May. Again, as indicated at second reading, we are open to amendments that will strengthen the bill to provide better certainty for proponents while also ensuring that fish and fish habitat are protected.
The Senate Committee heard from a variety of stakeholders, including farmers' organizations, forestry interests, and major hydroelectric operators from different provinces, all of whom were specifically concerned about the "deeming provision" in s. 2(2). These witnesses generally noted the deeming provision compounded their already-existing concerns about the breadth of the Act. In particular, they were worried that (1) this provision could imply onerous permitting obligations with respect to management of insignificant bodies of water (like ditches or agricultural ponds) and (2) might impair daily operations at dams and other control structures that routinely alter flow for various reasons, including to protect the safety of downstream residents.
Witnesses also expressed concerns with respect to the inclusion of "water frequented by fish" in the definition of Fish Habitat with respect to, and jurisdictional overlap, given flow regimes are governed by a variety of provincial statues such as the Ontario Water Resources Act. Representatives of hydro-power operators noted, for example, that they believed that consideration of flow was already embedded in everything they did, from water management plans, to permits and operational decisions.
The Senate Committee, based on this testimony, removed s. 2(2) from Bill C-68 and also removed the phrase "water frequented by fish" from the definition of "fish habitat". That definition is now limited to areas "on which fish depend directly or indirectly to carry out their life processes, including spawning grounds and nursery, rearing, food supply and migration areas". Regarding the change to the definition of "fish habitat", the Senator moving for the amendment noted that:
"The committee heard evidence from witnesses that by including "water frequented by fish" in the definition of fish habitat, it would result in locations that are not essential for the fisheries life cycle process to become subject to the act. […] As you're aware, we have also heard similar concerns for the definition of the water flow, that it would place an abundance of administrative and operational and financial burdens on industry, municipalities and DFO.
With the amendment to remove the "water frequented by fish," we maintain the important protection to the essential areas to life cycle processes while having a balance that will not distribute and complicate the work for the different industries, such as mining. By taking out the "water frequented by fish" from the definition, we are achieving the important balance of essential protection to fish habitat while allowing industry to maintain their work and not to overly burden DFO with further administrative work."
There was essentially no opposition from senators to removing the deeming provision at s. 2(2). In fact, that amendment was proposed by the government itself, through its Government Representative in the Senate:
I understand from transcripts and seeing the committee reports that you heard from numerous witnesses that the addition of 2.2 is problematic and creates uncertainty, particularly in the agricultural context, due to the lack of clarity.
As the Government Representative in the Senate, you recall during second reading debate that I committed to this change in response to Senator Plett's comments. I'm now fulfilling that commitment with the amendment you have before you.
These approvals will be welcome to those parties who are concerned about the potential breadth of the new Fisheries Act. Nonetheless, clarity is still required. It is expected that this clarification will be provided through a number of further documents, including codes of conduct for particular industries (agriculture, for example) and through regulations.
As for the timing of the further documents, the Fisheries and Oceans Canada representative present at the hearing suggested that a list of designated projects, for the purposes of Bill C-68, may be created through regulations within 18-24 months, in consultation with stakeholders. The same representative noted that codes of conduct and standards with respect to matters such as agricultural water management are intended to be developed within the first year of the Act coming into force.
Given the upcoming federal election this fall, it remains to be seen whether Bill C-68 and the corresponding regulations will be passed in accordance with the Government's proposed timeline.