Book 2, Tab C4 - Fish and fish habitat protection decision-making

On this page

• Purpose
• Protections for fish and fish habitat
• Impact assessments
• Metal and Diamond Mining Effluent Regulations
• How does the Department undertake project reviews?
• How does the Department manage risk of harmful impacts?
• How does the Department monitor decisions and report to Canadians?
• What are the current issues for the Department?
• Annex: Key assessments

Purpose

• To provide an overview of Fisheries and Oceans Canada’s (DFO) responsibilities related to:
  • Protection for fish and fish habitat
  • Federal impact and environmental assessments
  • The Metal and Diamond Mining Effluent Regulations

Protections for fish and fish habitat

• Under the Fisheries Act, an authorization from DFO is required for works, undertakings and activities that may result in harmful impacts to fish and fish habitat.
  • DFO officials base decisions on best available science, level of risk, Indigenous knowledge, impact on Indigenous rights, etc
• Under the Fisheries Act,DFOalso has the authority to recommend regulations be made under the fish and fish habitat protection provisions of the act. Such regulations could:
  • Establish ecologically significant areas to protect Canada's most sensitive, productive, rare, or unique ecosystems
  • Prescribe works or waters that can be excepted from the prohibitions against harmful impacts to fish and fish habitat under prescribed conditions
  • Identify designated projects to improve predictability for proponents of major works.
• DFO 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
• The Department has arrangements with other federal agencies (Canada Energy Regulator, Canadian Nuclear Safety Commission) and with some provinces (NB, NS, and PEI) that allow them to conduct preliminary reviews of project risks to fish and fish habitat.

To note

DFO also has authorities to protect and conserve fish and fish habitat under the Species at Risk Act (see Species at Risk decision making deck) and the Aquatic Invasive Species Regulations.

Aquatic Invasive Species (AIS)

DFO’s AIS program aims to protect Canadian marine and freshwater ecosystems from the introduction and spread of AIS, and to mitigate the negative impacts of established invasive species for the benefit of Canada’s biodiversity, economy, and society.

Impact assessments

• DFO provides expert advice on potential impacts to fish and fish habitat and aquatic species at risk for assessments under the Impact Assessment Act and other federal impact and environmental assessment regimes. DFO also participates in consultation with Indigenous peoples during these processes.
• DFO also has responsibilities under the Impact Assessment Act to conduct assessments of projects on federal lands when implementing or enabling these projects to proceed through issuance of funding, land, or regulatory decisions.
• Under federal assessment regimes in the territories, the Department provides its expertise, and may act as a decision body/Responsible Minister under relevant legislation for projects requiring its approvals.
• For projects subject to federal impact/environmental assessments, Ministerial authorizations cannot be issued until the impact or environmental assessment is complete and the decision allows the project to proceed.

Metal and Diamond Mining Effluent Regulations

• Canadian mining facilities are subject to the Metal and Diamond Mining Effluent Regulations established under section 36 of the Fisheries Act and are fully the responsibility of Environment and Climate Change Canada. Canadian mining facilities 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.
• DFO provides expert advice to Environment and Climate Change Canada on approving Fish Habitat Compensation Plans.
• Fish Habitat Compensation Plans areprepared 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 Metal and Diamond Mining Effluent Regulationsare enforced by Environment and Climate Change Canada in accordance with the Compliance and Enforcement Policy for the Fish and Fish 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 reviews?

• The Department assesses proposed projects to determine the risk of impacts to fish and fish habitat under the Fisheries Act, Species at Risk Act and Aquatic Invasive Species Regulations.
• For works, undertakings and activities that may result in harmful impacts, a Ministerial authorization is required – consultation with Indigenous peoples is undertaken if the authorization may result in impacts to Indigenous rights.

Factors to consider checklist (when making decisions related to the fish and fish habitat protection provisions of the Fisheries Act,such as issuing an authorization)

• Contribution to productivity of fisheries
• Fisheries management objectives
• Any measures or standards to avoid, mitigate or offset death of fish or harmful alteration, disruption or destruction of fish habitat
• The cumulative effects of carrying out the project
• Impacts on 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 manage risk of harmful impacts?

The Department works with proponents to avoid or mitigate impacts whenever possible, and, when necessary, to offset harmful impacts to fish and fish habitat.

Avoid

Provide advice and guidance to avoid impacts to fish and fish habitat. Measures to avoid impacts can be found on the Projects Near Waterwebsite (i.e., Measures to Protect Fish and Fish Habitat)

Mitigate

Provide advice and guidance to mitigate (minimize) impacts to fish and fish habitat.

Offset

Determine offsetting required when harmful impacts to fish and fish habitat can’t be avoided or mitigated. This can include building new habitat near to the project site.

How does the Department monitor decisions and report to Canadians?

• DFO is committed to monitoring compliance and ensuring program effectiveness and continuous improvement by:
  • Evaluating conformity to management measures recommended or imposed by the Department
  • Collaborating with DFO Science to better understand the effectiveness of measures aimed at avoiding, mitigating and offsetting impacts to fish and fish habitat
  • Working with the Department's Conservation and Protection service to monitor compliance with the Fisheries Act and the Species at Risk Act and with authorizations or permits issued under these Acts.
• The Department's Fisheries Act Registry makes information accessible to Canadians about projects in or near water that are authorized under the Act.
• New information will be added to the Registry over time (e.g., authorization documents and state of fish and fish habitat reporting).

What are the current issues for the Department?

Program Implementation

• The Fish and Fish Habitat Protection Provisions of the modernized Fisheries Act came into force August 28, 2019.
  • $284.2 million over five years (2018-2023) was provided to program and support implementation of the modernized Fisheries Act.
• The program collaborates with partners and stakeholders to influence planning processes and support restoration activities, and reports publicly to strengthen decision making.
• Work continues to: align and modernize operational systems, processes and tools; develop new regulations; 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 of Canada to clarify roles and responsibilities.

Annex: Key assessments

• Trans Mountain Expansion (TMX): DFO is implementing multiple initiatives and Indigenous accommodations to support the Government’s approval of the TMX, an expansion of the existing Trans Mountain pipeline system between Edmonton, Alberta and Burnaby, British Columbia. The project includes an expansion of the marine terminal to accommodate 34 tankers per month.
• Roberts Bank Terminal 2 (RBT2): DFO is participating in the environmental assessment of the Vancouver Fraser Port Authority’s proposal to construct and operate a new container terminal in the Fraser River estuary, in Delta, BC.
• Tilbury Marine Jetty (TMJ): DFO is participating in the environmental assessment of Tilbury Jetty Limited Partnership’s proposal  to construct and operate of a new Liquefied Natural Gas (LNG) marine jetty located on Tilbury Island, on the Fraser River in Delta, B.C.
• Marathon Palladium Project: DFO is participating in the environmental assessment  of Generation PGM Inc’s proposal to construct, operate and decommission an open pit palladium mine approximately 10 km from Marathon, Ontario.
• Mary River Iron Mine – Phase 2: DFO is participating in, and is a decision maker for, the environmental assessment of Baffinland Iron Mines’ proposal to expand an approved iron mine with a private port on Baffin Island, approximately 100 km south of Pond Inlet, Nunavut.
• Regional Assessment of Offshore Wind Development: Led by the Impact Assessment Agency of Canada, DFO is participating in a Regional Assessment that will be conducted for areas offshore of Newfoundland and Labrador and Nova Scotia.