Guidance and transitional provisions of Bill C-68

Guidance for project proponents on Letters of Advice and the application of the transitional provisions of Bill C-68 for Ministerial Authorizations issued under the Fisheries Act.

On this page

• Purpose
• Context
• Key milestones
• Guidance with respect to Letters of Advice
• The transitional provisions of Bill C-68
• Transition of existing authorizations and management of applications for authorizations
• Annex 1: Transitional provisions related to the issuance of ministerial authorizations in Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence

Purpose

The purpose of this document is to provide guidance for proponents undertaking projects in or near water concerning the:

• management of Letters of Advice for works, undertakings or activities not completed as of the coming into force of the new Fish and Fish Habitat Protection Provisions of the Fisheries Act
• application of the transitional provisions included in Bill C-68, An Act to Amend the Fisheries Act and other Acts in consequence^{Footnote 1}, which will address circumstances surrounding:
• authorizations issued under the Fisheries Act as it read prior to royal assent of Bill C-68
• the management of applications for authorizations submitted during the transition to the amended Fisheries Act

Context

On February 6, 2018, the Government of Canada introduced Bill C-68, which reflected a commitment to review the changes made in 2012 to the Fisheries Act, in order to restore lost protections and incorporate modern safeguards. Changes proposed in the Bill included:

• protecting all fish and fish habitats
• restoring the previous prohibition against “harmful alteration, disruption or destruction of fish habitat” (HADD)
• restoring a prohibition against causing ”the death of fish by means other than fishing”

As a result of these amendments, the prohibition against works, undertakings or activities causing serious harm to fish that are part of, or support a commercial, recreational or Aboriginal fishery, is rescinded. As well, the enabling authority for the issuance of ministerial authorizations for works, undertakings, or activities is replaced by new authorities reflecting the new prohibitions. Concurrently with these amendments, the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations [PDF] (Applications for Authorization Regulations), which set out the information and documentation necessary to apply for a ministerial authorization, are repealed and replaced by new regulations, which align with the amended Act. The new regulations come into force at the same time as the Fish and Fish Habitat Protection Provisions, and include a transitional provision reflecting those in Bill C-68.

The new Fish and Fish Habitat Protection Provisions apply to fish habitat in Canada, and form part of the Fisheries Act framework, which provides for the proper management and conservation of fisheries and the conservation and protection of fish and fish habitat and the prevention of pollution.

Key milestones

The changes to the Fisheries Act come into force in 2 phases:

1. Royal assent is when most of the provisions in Bill C-68 came into force, on June 21, 2019. Royal assent is the process by which a Bill becomes an Act of Parliament and part of the law in Canada. These changes include the new purpose of the Act (section 2.1), new Indigenous provisions (sections 2.3 and 2.4), and new considerations for decision making (section 2.5)
2. Coming into force of the Fish and Fish Habitat Protection Provisions. The new Fish and Fish Habitat Protection Provisions, which replace the Fisheries Protection Provisions of the pre-royal assent Fisheries Act, are set to come into force after royal assent^{Footnote 2}, at a date to be fixed by the Governor in Council (as set out in clause 59 of Bill C-68). The new Fish and Fish Habitat Protection Provisions include:
• new factors to take into account (section 34.1)
• authorities to publish standards and codes of practice (section 34.2)
• the management of obstructions (section 34.3)
• the new death of fish (section 34.4) and HADD prohibitions (section 35)
• the designation of projects (section 35.1)
• the establishment of ecologically significant areas (section 35.2
• the habitat banking provisions (sections 42.02-42.04)
• the establishment of a public registry (sections 42.2 and 42.3)

The Fisheries Protection and Pollution Prevention Provisions of the Fisheries Act remain in force until the new Fish and Fish Habitat Protection and Pollution Prevention Provisions set out in An Act to amend the Fisheries Act and other Acts in consequence are brought into force.

The Figure below illustrates the timelines associated with royal assent of Bill C-68, the coming into force of the Fish and Fish Habitat Protection Provisions as well as the Applications for Authorization Regulations scheme.

Figure 1: Timelines for royal assent of Bill C-68 and coming into force of the Fish and Fish Habitat Protection Provisions

• Step 1. Parallel lines represent the respective timelines for the coming into force of the amendments to the Fisheries Act and for authorizations
• Step 2. Amended Fisheries Act comes into force upon Royal Assent (given by the Governor General on June 21, 2019)
• Step 3. Old Applications for Authorization Regulations continue to apply
• Step 4. Fish & Fish Habitat Protection Provisions and new Regulations come into force (date set by Governor in Council)
• Step 5. New Regulations apply

Guidance with respect to Letters of Advice

Letters of Advice are non-regulatory tools currently issued to provide advice to proponents on the implementation of appropriate measures to avoid and mitigate harm to fish and fish habitat, to assist them in complying with the Act. Proponents are responsible for complying with the Act.

Letters of Advice issued prior to entry into force of the Fish and Fish Habitat Protection Provisions may not adequately protect fish and fish habitat in accordance with the amended Act. For example, the “serious harm to fish” prohibition of the pre-royal assent Act does not encompass temporary alterations to habitat (only permanent alterations).

The new HADD regime does so, by capturing “disruption” of fish habitat. It is therefore the responsibility of the holders of Letters of Advice to verify if additional measures should be implemented in order to remain compliant with the Act.

Upon the coming into force of the Fish and Fish Habitat Protection Provisions, proponents holding Letters of Advice issued prior to entry into force of the Fish and Fish Habitat Protection Provisions for projects which have not yet been completed should consult renewed guidance found on the DFO Projects near water website. The information provided will help proponents to determine whether they should seek additional assistance from the Department to remain compliant with the Act.

The transitional provisions of Bill C-68

Implementation of an amended Fisheries Act entails the transition of existing authorizations issued under the pre-royal assent Act to the amended Act, as well as the management of applications for authorizations submitted before, on and after royal assent and before, on and after the coming into force of the new Fish and Fish Habitat Protection Provisions. As the regulatory review process for works, undertakings, or activities conducted in or near water is integrated under both the Fisheries Act and the Species at Risk Act (SARA), the transition of authorizations and the management of applications encompasses:

• existing Fisheries Act authorizations which act as permits under SARA
• applications for authorizations which may include SARA-related aspects

To affect an orderly transition to the amended Act, Bill C-68 includes transitional provisions (clauses 52 and 53) related to authorizations and applications for authorizations made under section 35(2)(b) of the pre-royal assent Fisheries Act.

Clause 52 provides for the management of authorizations issued under subsection 35(2)(b) of the Fisheries Act, before the coming into force of the new Fish and Fish Habitat Protection Provisions. It stipulates that any authorization issued by the Minister under paragraph 35(2)(b) of the Fisheries Act (i.e. “serious harm” to fish that are part of, or support commercial, recreational, or Aboriginal fisheries) before the day on which the Fish and Fish Habitat Protection Provisions come into force, and that is still valid on that day, is deemed to have been issued under the new paragraphs 34.4(2)(b) [death of fish] and 35(2)(b) [HADD] in the amended Act.

Clause 53 provides for the processing of applications for authorizations under subsection 35(2)(b) submitted before the coming into force of the new Fish and Fish Habitat Protection Provisions, and sets out how ensuing authorizations are transitioned to the amended Fisheries Act. This clause also specifies that for incomplete applications submitted prior to coming into force, applicants be given at least 180 days to provide the required information.

The text of clauses 52 and 53 are included in Annex 1.

Transition of existing authorizations and management of applications for authorizations

The transitional provisions in Bill C-68 find application in the following four scenarios:

• Authorizations issued before coming into force
• Applications submitted before coming into force
• Applications submitted on or after coming into force
• Applications submitted before or after coming into force and Authorizations issued before coming into force for emergency situations

Authorizations issued prior to coming into force

Authorizations issued before the coming into force of the Fish and Fish Habitat Protection Provisions are be assessed and issued under the pre-royal assent Fisheries Act. Accordingly, applications for these authorizations are assessed under the Fisheries Protection Provisions, Accordingly, applications for these authorizations are assessed under the Fisheries Protection Provisions, which include the prohibition against serious harm to commercial, recreational or Aboriginal fisheries in section 35 of the pre-royal assent Fisheries Act:

Serious harm to fish

35 (1) 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.

Exception

35 (2) A person may carry on a work, undertaking or activity without contravening subsection (1) if (…)
(b) the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister; (…)

And the factors listed in section 6 of the pre-royal assent Fisheries Act:

Factors

6 Before recommending to the Governor in Council that a regulation be made in respect of section 35 or under paragraph 37(3)(c) or 43(1)(i.01) or subsection 43(5), and before exercising any power under subsection 20(2) or (3) or 21(1), paragraph 35(2)(b) or (c) or subsection 35(3), or under subsection 37(2) with regard to an offence under subsection 40(1) or with regard to harm to fish, the Minister shall consider the following factors:

1. the contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries
2. fisheries management objectives
3. whether there are measures and standards to avoid, mitigate or offset serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or that support such a fishery
4. the public interest

At the coming into force of the new Fish and Fish Habitat Protection Provisions, existing valid authorizations are, by virtue of clause 52 of Bill C-68, automatically deemed to be HADD and death of fish authorizations under the amended Fisheries Act. Accordingly, the conditions in such authorizations are enforceable under the amended Fisheries Act and are considered to fall under the new death of fish and HADD provisions, notwithstanding having been assessed against the “serious harm to fish that are part of or support commercial, recreational, or Aboriginal fisheries” prohibition.

Authorizations issued between royal assent and coming into force

Where an authorization is issued in the period following royal assent and before the coming into force of the new Fish and Fish Habitat Protection Provisions, it is issued under the pre-royal assent Fisheries Act (i.e., serious harm to commercial, recreational, or Aboriginal fisheries). Where such an authorization has an expiry date that extends beyond the date of coming into force and is still valid at that time, it is, as of the date of coming into force, deemed to have been issued under the new HADD/death of fish prohibitions, as with existing authorizations, above.

Applications for Authorizations submitted prior to coming into force

Applications for authorizations submitted before the date of the coming into force of the Fish and Fish Habitat Protection Provisions are assessed against the pre-royal assent Fisheries Act, in accordance with the Applications for AuthorizationRegulations, provided certain conditions are met:

1. The applicant receives notification of the completeness of the application (as per subsection 6(1) of the Applications for Authorization Regulations), before, on, or after the date of coming into force (clause 53(1) of Bill C-68)


For applications that are deemed to be incomplete,

2. If the applicant receives notification that the application is incomplete before the date of coming into force, the applicant has up to 180 days, beginning on the date of coming into force, to provide the required information to complete the application and have it assessed under the pre-royal assent Fisheries Act, in accordance with paragraph 53(2)(a) of Bill C-68.*
3. If the applicant receives notification that the application is incomplete on or after the date of coming into force, the applicant has up to 180 days, beginning on the date of the receipt of notification, to provide the required information to complete the application and have it assessed under the pre-royal assent Fisheries Act, in accordance with paragraph 53(2)(b) of Bill C-68.

In scenarios b) and c) above, the applicant may provide the required information at any time up to 180 days following the date prescribed above in order to complete the application and have it assessed under the pre-royal assent Fisheries Act. Note that the 180-day period referred to in each of scenarios b) and c) is a one-time, fixed opportunity for the applicant to provide the required information, i.e. it does not stop, re-start, or repeat. Upon receipt of any required information, the requirements of subsection 6(2) of the Applications for Authorization Regulations apply, meaning the Minister must confirm receipt of the information and the date of receipt, and must inform the applicant within 60 days of that date as to whether the application is complete or incomplete. In accordance with paragraph 53(3) of Bill C-68, if the applicant is notified that the application is still incomplete, the authorization applied for is deemed to have been refused.

Where an authorization is deemed to have been refused, the applicant will be informed that it will be necessary to submit an application under the new Regulations which will replace the Applications for Authorization Regulations, should they wish to pursue the process to obtain approval under the Fisheries Act. This application would be assessed under the amended Fisheries Act (HADD/death of fish) regime.

Any authorizations issued prior to the date of coming into force are under the “serious harm” regime of the pre-royal assent Fisheries Act, and after coming into force are deemed to be under the new HADD/death of fish regime. Any authorizations issued on or after the date of coming into force are also deemed to be HADD/death of fish authorizations, i.e., issued under paragraphs 34.4(2)(b) and 35(2)(b) of the amended Fisheries Act.

The figure below illustrates the management of applications for authorizations received in relation to the coming into force of the new Fish and Fish Habitat Protection Provisions.

Figure 2: Management of Applications for Authorizations During the Transition to the Amended Fisheries Act

• Step 1. Has the applicant submitted an application for authorization at any time before the date of coming into force (CiF) of the new Fish and Fish Habitat Protection Provisions of the amended Fisheries Act?
• Step 2. If NO – new applications made after coming into force date are assessed under the amended Act
• Step 3. If YES – is the application complete, as per the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations?
• Step 4. If application is complete - The application is processed under the requirements of the pre-royal assent Fisheries Act, and any authorization issued:
  • Prior to the coming into force date, is under the “serious harm” regime of the pre-royal assent Act and after coming into force is deemed to be a HADD/ death of fish authorization (Where authorisations extend beyond the date of coming into force, they are, as of the date of coming into force, deemed to be issued under the amended Act)
  • On or after the coming into force date, is deemed to be a HADD/death of fish authorization (i.e. issued under 34.4(2)(b) and 35(2)(b) of the amended Act)
• Step 5. If application is incomplete – When did the applicant receive notification?
• Step 6. If the applicant receives notification before the date of coming into force - The applicant has up to 180 days from the date of coming into force to provide the Minister with required information (180-day period to provide information is a one-time opportunity – does not stop, re-start, or repeat)
• Step 7. If the applicant receives notification on or after the date of coming into force - The applicant has up to 180 days from the date notificati on is received to provide the Minister with required information (180-day period to provide information is a one-time opportunity – does not stop, re-start, or repeat)
• Step 8. If the applicant receives notification before date of coming into force - is the application complete?
• Step 9. If NO – authorization is refused. Any re-application is subject to the amended Act
• Step 10. If YES - Application is processed under the requirements of the pre-royal assent Fisheries Act, and any authorization issued before coming into force is under the “serious harm” regime of the pre-royal assent Act, and after coming into force, is deemed to be a HADD/death of fish authorization (i.e. issued under 34.4(2)(b) and 35(2)(b) after coming into force.
• Step 11. If the applicant is notified on or after coming into force date - is the application complete?
• Step 12. If NO - authorization is refused. Any re-application is subject to the amended Act
• Step 13. If YES – application will be processed under the requirements of the pre-royal assent Fisheries Act, and any authorization issued is deemed to be under 34.4(2)(b) and 35(2)(b) of the amended Act.

Applications for Authorizations submitted on or after coming into force

Applications submitted on or after the date of coming into force of the new Fish and Fish Habitat Protection Provisions are assessed, and any authorizations issued, under the amended Fisheries Act. This means that these authorizations allow their holders to carry on works, undertakings, or activities without contravening the new HADD and death of fish prohibitions:

• 34.4 (1) No person shall carry on any work, undertaking or activity, other than fishing, that results in the death of fish
• 35 (1) No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat

As well, these applications are subject to additional provisions in the amended Act, including:

• Purpose (section 2.1), which sets out that the amended Act provides a framework for the proper management and control of fisheries, and the conservation and protection of fish and fish habitat, including by preventing pollution
• Indigenous provisions (sections 2.3 and 2.4), which serve to reinforce the importance of safeguarding Aboriginal rights as enshrined in the Constitution Act, 1982, and the requirement to consider impacts on those rights when making decisions under the Act
• Factors which shall be considered in making regulations or exercising powers under the new Fish and Fish Habitat Protection Provisions (section 34.1(1)), which include the contribution to the productivity of relevant fisheries, fisheries management objectives, cumulative effects, fish habitat banks, and Indigenous knowledge that has been provided, among others

As noted above, the Applications for Authorization Regulations, which set out the process by which project proponents may apply for authorizations under paragraph 35(2)(b) of the Fisheries Act to undertake works, undertakings, or activities in or near water, are repealed and replaced by new regulations.

Where an application for authorization is received after the date of coming into force of the new fish and fish habitat protection provisions using the application form associated with the Applications for Authorization Regulations, the applicant will be advised to re-submit their application using the form of the new regulations.

Applications for authorizations and authorizations issued under emergency circumstances

Applications for authorizations under emergency circumstances submitted during the transition period are processed under the Fisheries Act regime in place at the point in time when the Minister makes a decision regarding the issuance or refusal of the authorization (provided applicable conditions for emergency circumstances are met).

• For circumstances when the decision on the issuance or refusal of the authorization is made on or after the date of royal assent and before the date of coming into force of the new Fish and Fish Habitat Protection Provisions, the post-royal assent Fisheries Act applies, as well as the requirements of the Applications for Authorization Regulations (section 4, and information requirements in Schedule 2). Under the post-royal assent Fisheries Act, provisions that came into force upon royal assent apply. In addition, the prohibition against serious harm to fish that are part of or support commercial, recreational, or Aboriginal fisheries, as well as the factors to be taken into account in section 6 continue to apply.
• For circumstances when the decision on the issuance or refusal of the authorization is made on or after the date of coming into force of the new fish and fish habitat protection provisions, the amended Fisheries Act applies, as well as the requirements of the new regulations.

In accordance with the transitional provisions of Bill C-68, emergency authorizations are, as of the date of coming into force (as applicable), deemed to have been issued under the new HADD/death of fish prohibitions.

Annex 1: Transitional Provisions related to the issuance of ministerial authorizations in Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence

Authorization — Paragraph 35(2)(b)

52 Any authorization issued by the Minister under paragraph 35(2)(b) of the Fisheries Act before the day on which section 22 of this Act comes into force and that is still valid on the day on which that section comes into force is deemed to have been issued under paragraphs 34.4(2)(b) and 35(2)(b), as those paragraphs read after that day.

Application — Paragraph 35(2)(b)

53 (1) If an application for the issuance of 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 day on which section 22 of this Act comes into force, and the applicant has received notification from the Minister that the application is complete in accordance with the requirements of those regulations, then the Fisheries Act as it read immediately before the day on which this Act receives royal assent, applies to the exercise of the Minister’s power under that Act to authorize the carrying on of the work, undertaking or activity that is referred to in the application. Any authorization issued by the Minister is deemed to be an authorization that was issued under paragraphs 34. 4(2)(b) and 35(2)(b) of that Act, as those paragraphs read after the day on which section 22 of this Act comes into force.

Incomplete application

(2) If the Minister notifies the applicant in accordance with the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations, that the application is incomplete, then the applicant shall provide the Minister with the required information or documentation

1. no later than 180 days after the day on which section 22 of this Act comes into force, if the applicant receives the notice before that day;
2. no later than 180 days after the day on which the applicant received the notice, if the applicant receives the notice on or after the day on which section 22 of this Act comes into force.

Minister’s notification

(3) If the Minister notifies the applicant, in accordance with the Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations, following the receipt of any required information or documentation from the applicant within the time period referred to in subsection (2), that the application is complete, the Fisheries Act as it read immediately before the day on which this Act received royal assent applies to the exercise of the Minister’s power under that Act to authorize the carrying on of the work, undertaking or activity that is referred to in the application. Any authorization issued by the Minister is deemed to be an authorization that was issued under paragraphs 34.4(2)(b) and 35(2)(b) of that Act, as those paragraphs read after the day on which section 22 of this Act comes into force. However, if the Minister notifies the applicant that the application is still incomplete, then the authorization that was applied for is deemed to have been refused.