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Chapter 4
Implementation Strategies

4.1 First Strategy

Protection and Compliance

Protect fish habitats by administering the Fisheries Act and incorporating fish habitat protection requirements into land and water use activities and projects.

General Interpretation:

1. The procedures for implementing the no net loss guiding principle, as described in Chapter 5, will be used as an integral part of this strategy to deal with proposed works and undertakings that could affect the fisheries. In addition, existing habitat problems will be addressed under this strategy.
2. The Department will ensure a uniform and equitable level of compliance with statutes, regulations and policies, as necessary to manage and protect fish habitats in jurisdictions where the federal government manages fisheries. The Fisheries Act contains powers to deal with damage to fish habitat, destruction of fish, obstruction of fish passage, necessary flow requirements for fish, the screening of water intakes and the control of deleterious substances. Potential adverse effects on fish habitats are frequently avoided by modifying the plans, designs and operating procedures for projects and activities, and by incorporating mitigation and compensatory measures.
3. The Department will, through collaboration with Environment Canada and the Department of Indian and Northern Affairs where appropriate, provide timely advice and specific requirements to any person, company or agency engaged in or responsible for work in or near the water, in an effort to control the potential adverse effects on fish habitats of liquid effluent discharges, water withdrawals, physical disturbances, non-point- sources of chemical pollutants such as pesticides, other environmental contaminants, and the introduction of exotic species, predators, parasites and competitors.
4. In jurisdictions where Fisheries and Oceans manages the fisheries and in recognition of the need to avoid cumulative habitat losses caused by small projects, the Department will participate with the provinces, territories and other federal departments in reviewing plans for activities regulated by other levels of government or other departments, in an effort to resolve, through inter-agency cooperation, potential resource conflicts involving fish habitat. In the course of such participation and consultation, while the Department will be prepared to use the habitat provisions of the Fisheries Act, it will also be prepared, as a first preference, to agree to solutions involving the use of other federal or provincial legislation, particularly when another agency is acting as the lead, and provided the solutions are consistent with the requirements of the Act and this policy.
5. The Department will work closely with Environment Canada in the administration of Sections 36 to 42 of the Fisheries Act, to control effluent discharges and maintain receiving water quality for the fisheries resource. In accordance with the Memorandum of Understanding between the two Departments, Fisheries and Oceans will collaborate with Environment Canada and the provinces and territories in identifying fisheries protection requirements. With respect to administration of Sections 20, 35 and other sections of the Act, where aspects of a project involve physical activities that could potentially disrupt fish habitat, the Department will work directly with the proponent, and will provide advice and input to referrals and permits managed by the provinces, territories or other federal agencies.

Proponent Responsibilities:

1. Pursuant to Section 37(l) of the Fisheries Act, proponents may be asked by the Minister of Fisheries and Oceans or his officials, to provide a statement of information so that the Department can assess the potential impact of existing or proposed works and undertakings on the fisheries resource. Usually such requests would apply to major projects, as defined in this document. The statement may include project-specific information on the resource in question, its supporting habitat and baseline fisheries information required to assess the potential impact of a proposed project. The terms of reference for such information statements should be developed by the proponent, in consultation with professional and technical staff of Fisheries and Oceans. To avoid delays in the assessment of projects, proponents should provide these statements on a timely basis.
2. Proponents may use the results and data of departmental scientific studies on fisheries and oceans to supplement their project-specific assessments.

   

3. The cost of mitigating any anticipated damages, and for implementing compensation measures and facilities designed to avoid losses of fish habitat and reductions in the supply of fish, will be the responsibility of proponents. Proponents will also be responsible for the costs of operation and maintenance of any such facilities.
4. The costs to government of activities undertaken to clean up spills of oil and other pollutants will be recovered, under Section 42 of the Act, from the person(s) who caused the damage, or from special financial security instruments pursuant to the Oil and Gas Production and Conservation Act.

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Major Project Review Procedures

1. The Department will conduct detailed reviews, frequently and preferably as a participant in a provincial or federal environmental review process, of major proposed industrial undertakings that could potentially harm habitats supporting the fisheries resources.
2. The Department recognizes the importance of timely approvals in the context of minimizing costs, assisting economic growth and providing new employment opportunities. In addition, the Department frequently collaborates closely with officials in other government agencies to discuss findings and review courses of action.
3. For major development projects, a senior level Habitat Policy Steering Committee chaired by an Assistant Deputy Minister of Fisheries and Oceans will provide overall guidance and direction respecting the Department's actions by:
   1. ensuring the consistent application of departmental and government policy;
   2. consulting as required with project proponents, senior representatives of other government agencies and other interested parties;
   3. receiving reports, briefings and draft departmental position statements from the Regional Project Committee; and
   4. recommending approvals, restrictions and prohibitions to the Deputy Minister and arranging for delivery of the departmental position to the proponent.
4. A Regional Project Committee reporting through the Regional Director-General to the Habitat Policy Steering Committee will be formed by the Department for each major project to carry out the following:
   1. establish contact at the management and working level with the proponent and with officials of other departments and levels of government;
   2. outline the Department's technical information requirements;
   3. review project assessments and environmental control proposals;
   4. prepare deficiency statements;
   5. provide conclusions and recommendations on habitat management considerations of the project to the Habitat Policy Steering Committee;
   6. prepare draft departmental position statements for transmittal to the Habitat Policy Steering Committee;
   7. present information and represent the Department at hearings and inquiries; and
   8. carry out follow-up work as required.

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Enforcement

1. The Department prefers to prevent damage to habitat and avoid losses to the fisheries resource, rather than to take court action against offenders after the fact. However, when voluntary compliance fails to produce the desired objective, and the Fisheries Act is contravened and the habitats supporting fisheries resources are altered, destroyed or degraded, enforcement officers of the Department will carry out enforcement action.
2. Except in emergency situations where immediate, on-the-spot enforcement action is required, enforcement officers will, in the interest of fair treatment, make every reasonable effort to consult with the person or persons involved including other regulatory agencies, before enforcement action is taken, in order to obtain as much information as possible about alleged incidents.
3. The Governor-in-Council may make formal orders under Section 37(2) to modify, restrict or close works or undertakings. Before recommending such action, however, the Minister of Fisheries and Oceans shall offer to consult with his colleague, the Minister of the Environment, for cases involving deleterious substances, and offer to consult with other federal departments and with the government of any province or territory that may be affected.
4. In critical situations where a violation is observed, and the offending party refuses to discontinue the action causing the violation, the equipment used in the commission of the offence may be seized, pursuant to Section 51 of the Act.
5. Officials of the Department will investigate fish kills, frequently in collaboration with officials of Environment agencies, and, where possible, ensure that action is taken to initiate mitigative measures and to eliminate the source of the problem. Alleged violators of the Act will be prosecuted when the evidence warrants.
6. Pursuant to the Memorandum of Understanding between Fisheries and Oceans and Environment Canada on the pollution control provisions of the Act, regional working agreements between the two Departments provide for coordinated enforcement of Section 36(3) violations.
7. In the event that discharges of deleterious substances are detected that present an immediate threat to fisheries, and no other government agency has initiated action, officials of Fisheries and Oceans will intervene directly by contacting the proponent and immediately advising appropriate regulatory agencies on required actions. Where necessary, the prohibition powers of Sections 36 and 79(2) will be used to stop the discharge as quickly as possible and to arrange for clean-up, if feasible. The Department will proceed with legal charges if the evidence warrants.
8. In situations where the Department becomes aware of a violation or potential violation that presents irreparable harm to fisheries resources, a court injunction may be requested under Section 41(4) to halt the work or undertaking.
9. Private citizens may initiate prosecutions under the habitat provisions of the Act. The Department will examine the circumstances surrounding each litigation and make recommendations to the Department of Justice concerning the public interest and the technical relevance of the case to the habitat provisions of the Act.
10. In cases where the courts have ruled a defendant guilty and where the damage to fish habitat can be corrected or remedied, officials of the Department or the Crown prosecutor may speak to sentence, urging the court to order restorative action.

Training and Guidelines

1. Training programs to explain the technical and policy aspects of habitat management are provided for enforcement officers whose responsibilities include habitat management. Professional and technical habitat staff of the Department will continue to be offered training in subjects such as habitat evaluation procedures, no net loss procedures, and integrated resource planning, including instruction on the activities of other resource industries such as forestry and mining.
2. As part of its implementation of this policy, Fisheries and Oceans will expand the preparation and publication of guidelines and procedures, in an effort to improve the Department's ability to administer the habitat provisions of the Fisheries Act, and to provide for consistent national application. Guidelines are currently available in some regions of Canada for subjects such as road construction, dredging and forestry, among others. National guidelines exist for various regulations under the Act, including pulp and paper, oil refining, metal mining and food processing. The following additional national guidelines are being prepared:
   1. A Procedural Guide to Achieving no net loss.
   2. Restoration and Development Guidelines.

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4.2 Second Strategy

Integrated Resource Planning

Participate in and encourage resource planning and management to incorporate fish habitat priorities into air, land and water use plans.

Interpretation:

1. Where it is responsible for managing the fisheries resource, the Department will seek opportunities to resolve multiple resource use conflicts affecting the fisheries by participating in resource planning and management with provincial, territorial and municipal governments, other federal government agencies and other resource users (where applicable), and by recognizing the mandate and objectives of all participants.
2. The Department will plan for the conservation, restoration and development of the fisheries resource and its supporting habitat, in support of its fisheries management objectives.
3. The Department is prepared to seek ways to accommodate the concerns of other resource interests, wherever feasible.
4. The Department is prepared to enter into agreements with provincial, territorial, municipal and other federal agencies to achieve mutually agreeable resource planning and management objectives and to carry out joint programs such as the development of habitat inventories.

4.3 Third Strategy

Scientific Research

Conduct scientific research to provide the information and technology necessary for the conservation, restoration and development of fish habitats.

Interpretation:

1. The Department will continue to carry out a broad program of basic scientific research on Canada's fisheries, part of which will be directed toward providing the knowledge, data and information required to:
   1. assess the relative importance of specific habitats as a factor contributing to fish production;
   2. assess the effects of human-induced chemical, physical and biological changes on fisheries resources and the habitats that support them;
   3. determine how adverse effects on fish habitat may be mitigated and establish criteria for the continued natural production and safe consumption of fish;
   4. develop and refine techniques to restore degraded and develop new habitats;
   5. refine our understanding of the factors that control the productive capacity of natural habitats and how to measure those factors; and
   6. develop improved methods of evaluating the economic and social worth of fish habitats.
2. The Department will encourage and participate in cooperative habitat-related research programs with other federal government departments, provincial and territorial agencies, and industry groups and associations to improve knowledge in areas of common interest, such as instream flow requirements, fish passage problems, chemical or biological contamination problems, forestry and energy developments.
3. The Department will continue to participate in and cooperate with international scientific organizations whose mandate relates to fisheries and the aquatic environment.
4. Habitat-related research priorities of the Department will be established through consultative arrangements with fishery managers, habitat managers, and where appropriate, industrial interests, government agencies, and the general public.
5. The Department's habitat-related research findings will be made public and reported in scientific and technical publications, and through a variety of public forums.

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4.4 Fourth Strategy

Public Consultation

Consult the public on major or controversial fish habitat issues and on the development of new policies and legislation for fish habitat management.

Interpretation:

1. Of the thousands of projects and activities examined by Fisheries and Oceans across Canada each year, few will constitute a sufficiently high risk to fisheries or be of such high public concern as to require any special process for public consultation, other than normal consultation with the proponent and any other interested parties.
2. Where it is determined by the Minister that an issue requires formal public consultation, the Department's first preference will be to participate fully in the established review procedures of other federal departments or provincial governments, for example, Environment or Energy agencies, provided the terms of reference for the review are satisfactory to the Minister.
3. In cases where other established public review processes would not normally apply to a project, and the Minister of Fisheries and Oceans determines that one is required for his purposes, he may initiate such a process. For this purpose, the following options will be considered in order of preference (a) joint sponsorship of an independent public review with another Minister, federal or provincial; or (b) a federal independent public review under the Inquiries Act.
4. The Minister will consider all views expressed in arriving at a decision.

4.5 Fifth Strategy

Public Information And Education

Promote public awareness in the conservation, restoration and development of fish habitats.

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Interpretation:

1. Strong public sentiment in support of habitat conservation, restoration and development will reduce the likelihood that habitat abuse will occur.
2. The Department will foster increased public awareness of the importance of fish habitat and the threats to it by continuing to publish and distribute balanced and objective information material and technical guidelines; to produce videos and other education materials for use by the media and the public, particularly in schools; and to sponsor conferences, seminars, workshops and symposia.
3. The Department will cooperate with private organizations to encourage distribution of interpretive material on fish habitat management and to promote habitat awareness.

4.6 Sixth Strategy

Cooperative Action

Encourage and support involvement by government agencies, public interest groups and the private sector to conserve, restore and develop fish habitats.

Interpretation:

1. Community involvement in habitat-related activities will be encouraged so as to instill positive attitudes and local pride in the fisheries resource and its habitat, and to raise the level of understanding about the complex relationship between the resource and its supporting habitats. Employment and economic benefits can also be realized by involving local communities in habitat-related work.
2. The Department will, through inter-agency cooperative arrangements, participate in project referral systems and in established environmental and energy assessment and review procedures for the evaluation of projects and to support the habitat conservation goal.
3. The implementation of the objective and goals of this policy will be assisted by the development of cooperative arrangements, such as national or regional committees, foundations or boards involving industry, other non-government groups, other government agencies and departmental representatives.
4. The Department will encourage the development of approaches whereby interested companies and associations would use their own staff to protect fish habitat, in accordance with departmental guidelines and fish habitat management plans, and subject to departmental surveillance and audit.

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4.7 Seventh Strategy

Habitat Improvement

Initiate projects and provide advice to other interested groups to restore and develop fish habitats, in support of the net gain objective.

Interpretation:

1. Under this strategy, habitats may be restored by rehabilitating streams; by eliminating or controlling exotic species, predators, parasites, and competitors; by removing man-made and storm-related physical barriers and other initiatives; and, in cooperation with Environment Canada, requiring the installation and operation of suitable waste treatment technology.
2. The Department will support habitat restoration and development projects using departmental and other federal government funds, when such funds are available, and where resulting economic and employment benefits can be achieved through the fisheries resource.
3. Where it manages the fisheries directly, the Department will provide advice and guidance to community and conservation groups that wish to undertake habitat restoration and development projects; financial support also may be provided, depending on the availability of public funds for this purpose.

4.8 Eighth Strategy

Habitat Monitoring

Evaluate the effectiveness of decisions taken and techniques used to conserve, restore and develop fish habitats.

Interpretation:

1. Recognizing limitations in the ability to predict changes to fish habitats arising from proposed actions, the Department aims to monitor the effects, both during and, for a prescribed period, after development. In this way the effectiveness of departmentally prescribed conditions of approval, intended to maintain the productive capacity of fish habitats, would be evaluated and new knowledge acquired.
2. Proponents may be required to undertake follow-up monitoring studies on the effectiveness of habitat mitigation and compensation prescriptions as a condition of project approval by the Department, and subject to prior discussion and agreement with the proponent on the scope and schedule for monitoring.
3. The results of monitoring studies will be used by the Department as a basis for discussion with proponents, on the possible need for improvements in mitigation and compensation measures, immediately or as soon as practical after the facility or activity commences operations. The Department will identify, as a condition of approval, the possible need for follow-up corrective actions by proponents.
4. Studies designed to detect chemical hazard problems, to determine baseline conditions and the effects of change, and to establish environmental trends, may be undertaken by the Department as part of its in-house programs of scientific research, inventory and other investigations, such as those on the effects of acid rain.
5. The Department will address the problems associated with the chemical contamination of fish habitat and fisheries resources through the examination of inventory information on chemicals in use or proposed for use. Samples of fish, other aquatic biota, water and sediments will be analyzed to determine levels of specific chemicals and their by-products.
6. The Department will carry out project-related evaluations and effects monitoring on a selected basis, in support of the policy goals of habitat conservation, restoration and development.
7. The Department will consult with Environment Canada respecting that agency's compliance monitoring plans.

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