Fish and fish habitat protection decision making

Purpose

• To provide an overview of Ministerial authorities and Departmental responsibilities related to:
  • Protections for fish and fish habitats
• Impact and environmental assessments
• The Metal and Diamond Mining Effluent Regulations

Protections for fish and fish habitat

• Under the Fisheries Act, the Minister has the power to authorize undertakings and activities that may result in harmful impacts to fish and fish habitat.
  • This authority is usually delegated to departmental officials who base the decision on best available science, consultation, Indigenous knowledge, etc
• Under the Fisheries Act the Minister also has the power to recommend regulations be made under the fish and fish habitat protection provisions of the act. Such regulations could:
  • Establish ecologically sensitive areas to protect Canada's most sensitive and valuable ecosystems
  • Prescribe works and waters to streamline approval of routine activities
  • Identify designated projects to improve predictability for proponents of major works
• The Minister may also make regulations related to other aspects of fish and fish habitat, including:
  • Death of fish and protection of fish habitat
  • Respecting the flow of water to ensure fish passage

To Note:

The Minister also has authorities to protect and conserve fish and fish habitat under the Species at Risk Act and the Aquatic Invasive Species Regulations.

Impact assessments

• On behalf of the Minister, the Department provides expert advice on potential impacts to fish and fish habitat for assessments under the Impact Assessment Act and other federal impact and environmental assessment regimes
• For projects on federal lands requiring Fisheries Act authorizations, the Department conducts environmental assessments under the Impact Assessment Act
• Under federal assessment regimes in the territories, the Department provides its expertise, and addresses specific obligations under relevant legislation for projects requiring its approvals
• The Department has arrangements with other federal agencies and with some provinces (NB, NS, and PEI) that allow them to conduct preliminary reviews of project risks to fish and fish habitat
• For projects subject to federal impact/environmental assessments, Ministerial Authorizations cannot be issued until the impact or environmental assessment decision allows the project to proceed

Quick Fact:

The Department is currently involved in ~125 major projects, including the Trans- Mountain Expansion (TMX) project and the Teck Frontier project.

Metal and Diamond Mining Effluent Regulations

• Canadian mining facilities are subject to the Metal and Diamond Mining Effluent Regulations (MDMER) and are required to collect and report on effluent data and compliance rates
• Mining facilities are also required to undertake specific measures related to protecting water bodies designated as tailing impoundment areas
• The Minister of Fisheries and Oceans, through departmental officials, provides expert advice to the Minister of Environment and Climate Change Canada, on approving Fish Habitat Compensation Plans (FHCPs)
• FHCPs are prepared by project proponents to offset direct loss of fish habitat resulting from mine waste disposal as well as direct and indirect losses permitted under the Fisheries Act
• The MDMER are enforced by Environment and Climate Change Canada in accordance with the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act

Quick Fact:

The Metal Mining Effluent Regulations, which came into force on December 6, 2002, were amended on June 1, 2018, and became the Metal and Diamond Mining Effluent Regulations.

How does the Department undertake project review?

• For works, undertakings and activities that may result in harmful impacts, a Ministerial authorization is required

Factors to consider checklist

• Contribution to productivity of fisheries
• Fisheries management objectives
• Any measures or standards to avoid death of fish or harmful alteration, disruption or destruction
• The cumulative effects of carrying out the project
• Any fish habitat banks
• Whether measures to avoid harmful alteration, disruption or destruction prioritize restoration of degraded habitat
• Indigenous knowledge provided
• Any other factor considered relevant

How does the Department provide advice to proponents?

The Department works with proponents to Avoid, Mitigate, and when necessary

Offset harmful impacts to fish and fish habitat.

Avoid

Provide advice and guidance to avoid harm to fish and fish habitat. Measures to avoid harm can be found on the Projects Near Water
website.

Mitigate

Provide advice and guidance to mitigate harm to fish and fish habitat. This can include working when fish are not present in certain areas.

Offset

Provide advice and guidance to offset harm to fish and fish habitat. This can include building new habitat near to the project site.

How does the Department monitor decisions and report to Canadians?

• The Department is committed to monitoring compliance and effectiveness of program decision making
  • The Fish and Fish Habitat Program (FFHPP) works with the Department's Conservation and Protection Service to promote compliance with the Fisheries Act and authorizations or permits issued under the Act
  • The FFHPP is working with DFO Science to improve our understanding of the effectiveness of FFHPP instruments at protecting fish and fish habitat
• The Department is working to develop a public registry that will inform Canadians about the location of projects on or near water and the state of fish and fish habitat

What are the current issues for the Department?

• Program Implementation:
  • The modernized Fisheries Act received Royal Assent on June 21, 2019 and the new Fish and Fish Habitat Protection Provisions came into force August 28, 2019
  • Work continues to train staff and develop policies that reflect changes to the Act
• Implementation of the Impact Assessment Act
  • The Department continues to work with the Impact Assessment Agency to clarify roles and responsibilities