The Management of Existing Facilities and Structures under the Fisheries Act and the Species at Risk Act

Position Statement

May 2023

Published by:
Fisheries and Oceans Canada 200 Kent Street
Ottawa, Ontario
K1A 0E6
© His Majesty the King in Right of Canada, 2023
Cat. No. Fs23-706/2023E-PDF
ISBN 978-0-660-48159-3

On this page

• Departmental Position Statement
• Purpose
• Disclaimer
• Background
• Scope
• Application of the Position Statement – Responsibilities of owner/operator
• Application of the Position Statement – The Department's approach
• Appendix 1. Legislative context
• Appendix 2. Provisions of the Fisheries Act, the Species at Risk Act and the Aquatic Invasive Species Regulations

Departmental Position Statement

The fish and fish habitat protection provisions of the Fisheries Act, in combination with relevant provisions of the Species at Risk Act and the Aquatic Invasive Species Regulations, apply to the ongoing operation, modification, maintenance, decommissioning or any other work, undertaking or activity associated with an existing facility or structure in or near water frequented by fish, including a facility or structure that was constructed prior to the enactment of these provisions and associated regulations.

Purpose

The purpose of this statement is to outline the position and approach of Fisheries and Oceans Canada (the Department) with respect to the application of the fish and fish habitat protection provisions of the Fisheries Act, in combination with relevant provisions of the Species at Risk Act and the Aquatic Invasive Species Regulations, to an existing facility or structure, in or near water frequented by fish,^{Footnote 1} including a facility or structure that was constructed prior to the enactment of these provisions.

This Position Statement replaces the previous position statement 'Application of the Habitat Protection Provisions of the Fisheries Act to Existing Facilities and Structures' (2007).

Disclaimer

The 'Position Statement for the Management of Existing Facilities and Structures under the Fisheries Act and the Species at Risk Act' is not a substitute for the Fisheries Act, the Species at Risk Act, or associated regulations. In the event of an inconsistency between this Position Statement and the Fisheries Act, the Species at Risk Act, and associated regulations, the legislations and regulations will prevail.

Background

Across Canada, there are thousands of existing facilities and structures located in or near water frequented by fish, that vary greatly in scale and complexity,^{Footnote 2} from small stream crossings to major hydroelectric dams. These facilities and structures may cause impacts to fish and fish habitat, including to listed aquatic species at risk, their critical habitat and residences.

Scope

This position statement interprets:

• The fish and fish habitat protection provisions^{Footnote 3} of the Fisheries Act, in combination with relevant provisions of the Species at Risk Act and the Aquatic Invasive Species Regulations, that protect fish and fish habitat, including listed aquatic species at risk,^{Footnote 4} their critical habitat and residences and specifically the provisions outlined in Appendix 2.

This position statement applies to:

• A person who carries on, owns or has the charge, management or control of an existing facility or structure including the operation, modification, maintenance, decommissioning of that facility or structure or any other associated work, undertaking or activity.
• Effects on fish^{Footnote 5} and fish habitat^{Footnote 6} arising from the ongoing operation, modification, maintenance, decommissioning or any other work, undertaking or activity associated with an existing facility or structure.

Application of the Position Statement – Responsibilities of owner/operator

A person who carries on, owns or has the charge, management or control of an existing facility or structure:

• Is responsible for ensuring that the ongoing operation, modification, maintenance, decommissioning or any work, undertaking or activity associated with an existing facility or structure, is in compliance with the Fisheries Act and the Species at Risk Act. However, if the construction of the existing facility or structure precedes the enactment of the fish and fish habitat protection provisions of the Fisheries Act^{Footnote 7} or relevant provisions of the Species at Risk Act,^{Footnote 8} then impacts resulting from the construction (i.e., death of fish or harmful alternation, disruption or destruction of fish habitat from the construction of the facility or structure) are outside the scope of these provisions.
• Must notify the Department in the event of the death of fish and/or the harmful alteration, disruption or destruction of fish habitat that is not authorized under the Fisheries Act, or of a serious or imminent danger of such an occurrence [respectively, subsections 38(4) and 38(4.1) of the Fisheries Act]. The person will be required to take corrective measures to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or that might reasonably be expected to result from it [subsection 38(6) of the Fisheries Act].
• Is encouraged to work proactively and cooperatively with the Department to identify and evaluate impacts on fish and fish habitat, including to listed aquatic species at risk, their critical habitat and residences, resulting from the ongoing operation, modification, maintenance, decommissioning of, or any other work, undertaking or activity associated with, an existing facility or structure.
• Is encouraged to work with the Department to develop approaches^{Footnote 9} to achieve compliance with the Fisheries Act and the Species at Risk Act, by avoiding, mitigating or offsetting harmful impacts to fish and fish habitat, including to listed aquatic species at risk, their critical habitat and residences, caused by the ongoing operation, modification, maintenance, decommissioning or any work, undertaking or activity associated with an existing facility or structure.
• Is encouraged to adopt the important, and recommended, practice of engaging with Indigenous peoples early in the planning phases of proposed modifications, maintenance or the decommissioning of an existing facility or structure, or changes to its operation or to any work, undertaking or activity associated with an existing facility or structure, and in the development of avoidance, mitigation, offsetting and monitoring plans. Indigenous knowledge can inform the design of measures to manage impacts on fish and fish habitat, including to listed aquatic species at risk, their critical habitat and residences.
• Is encouraged to submit a request for review, if the scope of the ongoing operation, modification, maintenance, decommissioning or any other work, undertaking or activity associated with an existing facility or structure does not entirely fall within the Measures to Protect Fish and Fish Habitat or Standards and Codes of Practice.

Application of the Position Statement – The Department's approach

The Department's approach to the application of this statement will include:

• Promoting regulatory compliance through communication with the person who carries on, owns or has the charge, management or control of the operation, modification, maintenance, decommissioning or any other work, undertaking or activity associated with an existing facility or structure, in order to clarify the requirements of the provisions and approaches outlined in this statement.
• Applying an evidence informed risk-based approach to determine the likelihood and extent of potential impacts to fish and fish habitat and the implications on the conservation and protection of fish (including listed aquatic species at risk) and fish habitat, that are likely to result from the ongoing operation, modification, maintenance, decommissioning or any other work, undertaking or activity associated with an existing facility or structure. This approach will be informed by the best available information. In doing so, the Department will determine if the risk to fish and fish habitat and listed aquatic species at risk, their critical habitat and residences is best managed by:
  • Referring the person who owns or has the charge, management or control of an existing facility or structure to applicable best practices (e.g.: The Measures to Protect Fish and Fish Habitat, or Standards and Codes of Practice).
  • Providing advice on how to avoid or mitigate impacts to fish and fish habitat, including listed aquatic species at risk, their critical habitat and residences.
  • Requesting that the person who owns or has the charge, management or control of an existing facility or structure, submit an application for authorization^{Footnote 10} under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act, and, where applicable, an application for a permit under sections 73 and 74 of the Species at Risk Act. A record of any consultations with Indigenous groups, undertaken by the person, must also be included in the application for authorization. The Department reserves the right to not issue an authorization that, for example, conflicts with or compromises:
    • Meeting section 73 pre-conditions of the Species at Risk Act.
    • Species at Risk Act recovery strategies or plans.
    • The exercise of Aboriginal and treaty rights – if impacts on those rights cannot be avoided, measures to accommodate will be sought through consultation with affected Indigenous groups.
    • The conservation and protection of fish and fish habitat, including listed aquatic species at risk, their critical habitat and residences.
  • Requesting information as provided for under subsections 34.3(1) or 37(1) and issuing ministerial orders, under subsections 34.3(2)/(and 3) or 37(2), respectively of the Fisheries Act.
  • Issuing directions for corrective measures under subsection 38(7.1) of the Fisheries Act, to the person who carries on, owns or has the charge, management or control of the operation, modification, maintenance, decommissioning or any other work, undertaking or activity associated with an existing facility or structure, in order to implement all reasonable measures consistent with public safety and with the conservation and protection of fish and fish habitat, to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or might reasonably be expected to result from it.
  • Taking preventive, eradication or control measures with respect to non-indigenous and aquatic invasive species or issuing directions for such measures under sections 19, 22, 25, 26 or 27 of the Aquatic Invasive Species Regulations.
• Being guided by the following three approaches in its risk-based approach:
  • The precautionary approach ‒ The Department will apply the precautionary approach^{Footnote 11Footnote 12} by exercising caution when scientific information is absent, uncertain, unreliable or inadequate and, will not use the absence of adequate scientific information as a reason to postpone or fail to take action to avoid impacts on fish and fish habitat, including to listed aquatic species at risk, their critical habitat and residences.
  • The ecosystem approach ‒ The Department will apply the ecosystem approach to better conserve and protect fish and fish habitat, including listed aquatic species at risk, their critical habitat and residences. Processes linking ecosystems and species are complex, and an action taken in one location may have unforeseen consequences elsewhere and may only be evident over time. The ecosystem approach is a strategy that integrates the management of land, water and living resources, promoting conservation and sustainable use in an equitable way.^{Footnote 13}
  • The adaptive management approach ‒ The Department will apply the adaptive management approach, as part of the ecosystem approach to manage uncertainties associated with complex ecosystem processes. An adaptive management approach is one that incorporates new information to assess and monitor impacts over a period of time and determine the effectiveness of management measures. The use of an adaptive management approach may result in the application of contingency measures or modification of operations, where impacts to fish and fish habitat, including to listed aquatic species at risk, their critical habitat and residences are found to be different, than anticipated.
• Applying relevant program policies and guidance (e.g., Position Statement ‒ The Management of Death of Fish (other than fishing) under the Fisheries Act and the Species at Risk Act).
• Carrying out meaningful consultations when the duty to consult is triggered and where appropriate, meaningfully accommodate the potentially affected Indigenous group to the Department's proposed Crown conduct (e.g., proposed decisions to authorize or permit, or orders requiring modifications to an existing work, undertaking or activity). If any impacts occur on listed aquatic species at risk, their critical habitat and residences, that are found in an area where a Wildlife Management Board perform functions, or on reserve lands under the Indian Act, the Department must also consult the Wildlife Management Board or the band before authorizing the activity.
  • During consultations, Indigenous knowledge may be provided to the Department. Prior to making a decision about whether or not to issue a Fisheries Act authorization, Indigenous knowledge provided^{Footnote 14} will be considered alongside the other factors set out in subsection 34.1(1) of the Fisheries Act.
• Continuing to recognize any authorizations issued under previous iterations of the Fisheries Act^{Footnote 15} that were valid on August 28, 2019, the date on which the current fish and fish habitat protection provisions^{Footnote 16} came into force, including those that have the same effect as permits issued under the Species at Risk Act (as described in section 74). These authorizations continue to apply, as will those authorizations issued after the coming into force of the fish and fish habitat protection provisions of the Fisheries Act.^{Footnote 17}
• Taking enforcement actions that are fair, predictable, and consistent, using rules, sanctions and processes founded in law. The Department will prioritize enforcement actions by considering:
  • The extent of impacts to fish and fish habitat, including to listed aquatic species at risk, their critical habitat and residences, that are caused by the ongoing operation, modification, maintenance, decommissioning or any other work, undertaking or activity associated with an existing facility or structure;
  • Whether or not the alleged offence is a repeat occurrence; and,
  • Other situational factors to achieve compliance.

Appendix 1. Legislative context

The Department administers the fish and fish habitat protection provisions of the Fisheries Act, in combination with relevant provisions of the Species at Risk Act and relevant provisions of the Aquatic Invasive Species Regulations, in order to conserve and protect fish and fish habitat.

Works, undertakings or activities (other than fishing) that result in the death of fish, the harmful alteration, disruption or destruction of fish habitat or prohibited effects to listed aquatic species at risk, their critical habitat or residences, are offences under the Fisheries Act and the Species at Risk Act (if listed aquatic species at risk or their habitat are also implicated) unless otherwise excepted under subsections 34.4(2) and 35(2) of the Fisheries Act and by way of (among other things) a permit issued under section 73 of the Species at Risk Act, or an authorization issued under another Act of Parliament having the same effects as a permit issued under section 73 (as described in section 74 of the Species at Risk Act).

The most common exception to the Fisheries Act prohibitions, applied by the Department, is the issuance of a Ministerial authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act.

If listed aquatic species at risk, their critical habitat or residences are also affected by the work, undertaking or activity, the Species at Risk Act requires that several conditions outlined in section 73, are met before the activity can be authorized. ^{Footnote 1} Included amongst these requirements, subsection 73(3) states that the permit may only be issued if the Minister is of the opinion that:

1. All reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
2. All feasible measures will be taken to minimize the impact of the activity on the species, their critical habitat and residences (i.e. measures to mitigate and offset adverse impacts); and
3. The activity will not jeopardize the survival or recovery of the species.

The deposit of deleterious substances could also result in the death of fish, the harmful alteration, disruption or destruction of fish habitat or prohibited effects to listed aquatic species at risk, their critical habitat or residences. Subsection 36(3) of the Fisheries Act prohibits the deposit of deleterious substances in water frequented by fish, unless the deposit is authorized by regulations. The Department and Environment and Climate Change Canada share the responsibility for the administration and enforcement of the pollution prevention provisions of the Fisheries Act [subsections 36(3) to (6))]. The designation order^{Footnote 2} formally designates the Minister of the Environment as legally responsible for the administration and enforcement of the pollution prevention provisions of the Fisheries Act. However, the Minister of Fisheries and Oceans Canada retains administration and enforcement responsibilities in relation to aquaculture facilities or the control or eradication of any aquatic invasive species or aquatic species that constitute a pest to the fisheries that are subject to the Aquatic Invasive Species Regulations.

The Aquatic Invasive Species Regulations were made under the authority of subsections 34(2), 36(5), 43(1) and (2) of the Fisheries Act and came into force in 2015 to protect fish and fish habitat from the threat of aquatic invasive species. The Aquatic Invasive Species Regulations provide a suite of regulatory tools that can be used by federal, provincial and territorial authorities to prevent the introduction of aquatic invasive species into Canadian waters and to control and manage their establishment and spread, if introduced. These tools include prohibitions, directions, measures,^{Footnote 3} and licenses to fish for invasive species. The death of fish and/or the harmful alteration, disruption or destruction of fish habitat resulting from activities authorized under the Aquatic Invasive Species Regulations [i.e. under paragraphs 34.4(2)(d) and (e) and 35(2)(d) and (e) of the Fisheries Act], are not offences under subsections 34.4(1) and 35(1) prohibitions of the Fisheries Act. However, certain requirements and conditions of the Species at Risk Act may still apply.

Before considering whether to issue an authorization, the Minister is required under section 2.4 of the Fisheries Act to consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada (recognized and affirmed by Section 35 of the Constitution Act, 1982) and is required to consider the factors (which include provided indigenous knowledge) set out under subsection 34.1(1) of the Fisheries Act, as applicable. The Department consults with Indigenous peoples when asserted or established Aboriginal and treaty rights may be adversely affected by its proposed Crown conduct (e.g., proposed decisions to authorize or permit, or orders requiring modifications to an existing work, undertaking or activity).

Under the Species at Risk Act, the Department must also consult Wildlife Management Boards when authorized by a land claims agreement to perform functions in respect of the listed aquatic species at risk (i.e. subsection 73(4)), or consult bands under the Indian Act if the species is found in a reserve or any other lands set apart for the use and benefit of the band (i.e. subsection 73(5)).

The information, documentation requirements and time limits for processing applications for Fisheries Act authorizations under paragraphs 34.4(2)(b) and 35(2)(b), including when the time limits cease to apply and start over, are set out in the Authorizations Concerning Fish and Fish Habitat Protection Regulations (SOR/2019-286).^{Footnote 4}

Similarly, the Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations^{Footnote 5} establish the information requirements for Species at Risk Act permit applications, the time limit for the review of the submitted documents and the circumstances when the time limit stops, restarts or does not apply.

Appendix 2. Provisions of the Fisheries Act, the Species at Risk Act and the Aquatic Invasive Species Regulations

Table 1. Provisions of the Fisheries Act, the Species at Risk Act, and the Aquatic Invasive Species Regulations that protect fish and fish habitat, including Listed Aquatic Species at Risk, their critical habitat, and residences.