Category Archives: Fisheries Regulation

Disappointment at the Bank: The Fish Habitat Banking Provisions of Bill C-68

By: Dave Poulton

PDF Version: Disappointment at the Bank: The Fish Habitat Banking Provisions of Bill C-68

Legislation Commented On: Bill C-68: An Act to amend the Fisheries Act and other Acts in consequence

Over the past weeks several ABlawg contributors have posted their summaries and commentary on the suite of environmental assessment and protection legislation introduced by the federal government in the form of Bills C-68 and C-69. The series started with Martin Olszynski’s overview of the two pieces of legislation, to which readers are referred for background to my contribution.

The purpose of this post is to examine fish habitat banking, a fisheries management tool that for the first time stands to be legislated through the amendments to the Fisheries Act, RSC 1985, c F-14 found in Bill C-68. Habitat banking is a mechanism to enable the provision of habitat “offsetting”. To understand habitat banking, therefore, it is necessary to start with the concept of offsetting. Continue reading →

Asking the Right Questions about Amendments to the Fisheries Act

By: Martin Olszynski, Brett Favaro and Nicolas Lapointe

PDF Version: Asking the Right Questions about Amendments to the Fisheries Act

Legislation Commented On: Bill C-68, An Act to Amend the Fisheries Act

On February 5, 2018, the federal government tabled Bill C-68, An Act to Amend the Fisheries Act. This Bill is the product of roughly two years of study and public consultation by both the Standing Committee on Fisheries and Oceans (FOPO) and Fisheries and Oceans Canada (DFO) – study and consultation that was promised by the then-opposition Liberals during the last federal election campaign. That promise was itself a response to the previous Conservative government’s changes to the Fisheries Act, RSC 1985, c F-14, as part of its overhaul of the federal environmental regime back in 2012. With respect to the Fisheries Act specifically, the previous government took direct aim at the habitat protection provisions of that legislation (section 35). While some of the changes were positive, such as broadening protection to include not just “works and undertakings” but also “activities”, most of them were widely panned (see e.g. here, here, here, here, here, and here). Whereas the original prohibition protected all fish and fish habitat, post-2012 only those fish (and their habitat) that were part of, or supported, a commercial, recreational or Aboriginal fishery are protected. The level of protection has also been reduced: whereas the previous version of section 35 protected against “harmful alterations, disruption, or destruction” of fish habitat, the 2012 version only protects against the “permanent alteration or destruction” of fish habitat. Continue reading →

A Missed Opportunity to Strengthen Compliance and Enforcement under the Federal Fisheries, Environmental Assessment and Canadian Energy Regulator Acts

By: Alastair Lucas

PDF Version: A Missed Opportunity to Strengthen Compliance and Enforcement under the Federal Fisheries, Environmental Assessment and Canadian Energy Regulator Acts

Bills Commented On: Bill C-68, An Act to Amend the Fisheries Act, and Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and make consequential amendments to other Acts

Many expected changes and even new approaches to compliance and enforcement under Bills C-68 and C-69. Unfortunately, this is not the case. Continue reading →

In Search of #BetterRules: An Overview of Federal Environmental Bills C-68 and C-69

By: Martin Olszynski

PDF Version: In Search of #BetterRules: An Overview of Federal Environmental Bills C-68 and C-69

Legislation Commented On: An Act to amend the Fisheries Act and other Acts in consequence (Bill C-68) and An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (Bill C-69)

Last week, the federal government tabled its much-anticipated package of federal environmental law reforms. Regular ABlawg readers will know that the Faculty of Law’s Natural Resources, Energy, and Environmental Law group has been actively participating in this process from the beginning, with several members submitting briefs and testifying before both parliamentary committees and expert panels (a full list of relevant ABlawg posts is included at the end of this post). In this post, I provide an initial overview and analysis of Bill C-68 (Fisheries Act) and the proposed Impact Assessment Act under Bill C-69. Subsequent posts will examine specific issues in more detail, as well as the proposed Canadian Energy Regulator Act. Continue reading →

Recent Analysis Shows Canada was Losing Fish Habitat Before 2012 Budget Bills

By: Martin Olszynski and Brett Favaro

PDF Version: Recent Analysis Shows Canada was Losing Fish Habitat Before 2012 Budget Bills

Matter commented on: Standing Committee on Fisheries and Oceans’ Review of the Fisheries Act RSC 1985, c F-14

Back in October of last year, we appeared before the Standing Committee on Fisheries and Oceans (FOPO) in the context of its review of the 2012 changes to the habitat protection provisions of the Fisheries Act. Shortly after our appearance it occurred to us that it would be useful, using the best evidence available in the short time that was left, to provide FOPO – indeed all Canadians – with some quantifiable estimate of the state of fish habitat protection in Canada (the deadline for public submissions was November 30th, 2016).

Consequently, we returned to Professor Olszynski’s original access to information request from 2015 that provided the evidentiary basis for his article “From ‘Badly Wrong’ to Worse: An Empirical Analysis of Canada’s New Approach to Fish Habitat Protection Laws” (2015) 28(1) J Env L & Prac 1). Briefly, Professor Olszynski obtained all of the subsection 35(2) authorizations issued by DFO’s two largest regions (Pacific, Central and Arctic) over a six-month period (May 1 to October 1) for the years 2012, 2013, 2014. Generally speaking, each authorization contains information about the project proponent, project type (e.g. a bridge, a mine, a dam), project location, the size and kind of impacts to habitat, and the amount of compensation or offsetting habitat required – if any. We recorded the total area that each project was authorized to impact (in m2), as well as the total amount of compensation habitat required. Of the 86 authorizations in 2012, eight authorized impacts that were not described in terms of area (e.g. the proponent was authorized to destroy 1,500 eelgrass plants, or to dewater a stream killing all its fish); these were excluded from our analysis, leaving us with 78 authorizations. Continue reading →