Home  Infocentre  Publications  Annual Report 2001-2002

Previous Page

Table of Contents

Next Page

1.0 Introduction

The Fisheries Act contains provisions for the conservation and protection of fish habitat. These include provisions that prohibit harmful changes to fish habitat (habitat protection provisions) and others prohibiting the discharge of deleterious substances into fisheries water (pollution prevention provisions). Fisheries and Oceans Canada (DFO) is responsible for the administration and enforcement of the habitat protection provisions of the Fisheries Act while responsibility for the administration and enforcement of the pollution prevention provisions has been assigned to Environment Canada (EC).

The 1986 Policy for the Management of Fish Habitat ¹(Habitat Policy) provides guidance in the application of the habitat protection and pollution prevention provisions of the Fisheries Act through implementation strategies that support the conservation and protection as well as its restoration and development.

Within DFO, day-to-day delivery of the responsibility for the administration and enforcement of the habitat protection provisions of the Fisheries Act is shared between Oceans and Habitat Sector’s Habitat Management and Fisheries Management Sector’s Conservation and Protection (C&P), supported by the Science Sector.

Section 42.1 of the Fisheries Act requires the Minister of Fisheries and Oceans to table a report in Parliament on the Administration and Enforcement of the Fish Habitat Protection and Pollution Prevention Provisions of the Fisheries Act (Annual Report to Parliament), as soon as possible after the end of each fiscal year. This report provides an opportunity to communicate the achievements of DFO, EC and its partners in the conservation and protection of fish habitat as well as in its restoration and development. It is through this report that Parliamentarians and the public can witness how various partners work together to contribute to healthy and productive fish habitats and sustain fisheries in Canadian waters. This is the 11^th Annual Report tabled in Parliament.

The content of the Annual Report to Parliament has evolved over the years and will continue to do so as we develop and establish measures that align with the government-wide effort to improve its reporting to Canadians on the performance of its programs.

This report provides a summary of key activities for fiscal year 2001‑2002 (April 1, 2001, to March 31, 2002). The introductory section provides the following:

• background on the legal basis for the conservation and protection of fish habitat;
• a summary of DFO’s Habitat Policy; and
• an overview of the mandate and operations of DFO’s Habitat Management Program and the Pollution Prevention Program of EC.

The rest of the report provides highlights of results achieved in DFO’s National Habitat Management Program and in EC’s Pollution Prevention Program under the Key Activities of the Habitat Policy.

Further details on national and regional activities of the two programs are provided in the Supporting Documents, available on DFO’s website:<http://www.dfo-mpo.gc.ca/canwaters-eauxcan/infocentre/publications/index_e.asp>.

1.1 Legislative Basis for the Conservation and Protection of Fish Habitat

The federal government fulfils its constitutional responsibilities for “seacoast and inland fisheries” through the Fisheries Act. The Act contains provisions allowing the federal government to make decisions for the conservation and protection of fish habitat, mainly section 35, essential to sustaining freshwater and marine fisheries resources that provide Canadians with significant economic, social and environmental benefits. Other provisions of the Fisheries Act provide for the protection of fish (e.g., sections 20, 21, 22, 32); authorize the Minister to appoint inspectors and analysts; describe inspectors’ powers (including entry, search, and direction of preventive, corrective or cleanup measures); describe offences and punishment; and determine liability when a deleterious substance has been deposited.

Under the Fisheries Act (subsection 34.1), fish habitat is defined as “spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes.”

The Fisheries Act is considered to be one of the strongest pieces of Canadian legislation that can be applied for the conservation and protection of aquatic ecosystems. The habitat protection and pollution prevention provisions of the Fisheries Act are listed in Annex 1.

	top of page

Section 35, the key habitat protection provision of the Act, prohibits any work or undertaking that would cause the Harmful Alteration, Disruption or Destruction (HADD) of fish habitat, unless authorized by the Minister of Fisheries and Oceans or through regulations under the Act:

(1) “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.”

(2) “No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.” section 35, Fisheries Act.

Section 36, the key pollution prevention provision, prohibits the deposit of deleterious substances into waters frequented by fish, unless authorized by regulation under the Fisheries Act or other federal legislation.

The administration and enforcement of the pollution prevention provisions of the Fisheries Act is the responsibility of Environment Canada. Section 36 provides the authority to designate substances as “deleterious”, to set limits for their discharge, to create regulations, and to designate those who can make site-specific authorizations and the conditions under which these authorizations may be granted. Regulations to authorize certain deposits have been established pursuant to section 36 (e.g., pulp and paper and metal mining effluents).

“Subject to subsection 36(4) of the Fisheries Act, no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.”

1.2 Policy for the Management of Fish Habitat

The Fisheries Act provides broad powers to conserve and protect fish habitat. In administering the habitat protection provisions of the Act, DFO is guided by the Habitat Policy. Established in 1986, the Policy provides a mix of regulatory and proactive strategies that, together, support the concepts of sustainable development and ecosystem approach. The Habitat Policy also applies to the pollution prevention provisions of the Act administered and enforced by EC.

The overall objective of the Habitat Policy is to “increase the natural productive capacity of habitat for the nation’s fisheries resources” (i.e., to achieve a “net gain” in fish habitat) through the three goals of conservation, restoration and development of fish habitat.

The Habitat Policy recognizes that first and foremost habitat objectives must be linked and integrated with fish production objectives. It also recognizes other sectors of the economy make legitimate demands on water resources. The Habitat Policy promotes integrated planning for habitat management as an approach to ensuring the conservation and protection of fish habitat that sustain fish production while providing for other uses.

A key element of the Habitat Policy is the guiding principle of “no net loss of the productive capacity of fish habitat” that supports the conservation goal and is applied when proposed “works or undertakings” result in a HADD of fish habitat. Prior to the issuance of an authorization under subsection 35(2) of the Fisheries Act, DFO applies the “no net loss” guiding principle, so that unavoidable habitat losses as a result of development projects are balanced by restored and/or newly created or enhanced habitat. If unacceptable losses of fish habitat cannot be prevented by these measures, the Habitat Policy calls for an authorization not to be issued. Furthermore, where deleterious substances result in harm to fish or damage to fish habitat, compensation² is not an option.

	top of page

1.3 The National Habitat Management Program

The mandate of the National Habitat Management Program is to ensure the conservation and protection of fish habitat that sustain fresh and marine fisheries resources that Canadians value. As a result of the enactment of the Canadian Environmental Assessment Act (CEAA)³ in 1995, the Program was assigned responsibilities to conduct environmental assessments of development proposals requiring certain regulatory decisions under the Acts administered by the Department.

The Program’s activities are organized as follows:

• Regulatory;
• Freshwater and Oceans Planning;
• Habitat Enhancement;
• Community Outreach and Stewardship;
• Scientific Support;
• Information Management; and
• Program Management.

These are implemented in collaboration with other federal departments, provincial governments, Aboriginal People, non-governmental organizations and industry.

Delivery of activities associated with compliance and enforcement of the habitat protection provisions of the Fisheries Act is undertaken by Fishery Officers from DFO’s C&P Program. Scientific support, including research, scientific advice and monitoring, is provided by scientists of the department’s Science Sector. The remaining activities are the responsibility of the Ocean Sector's Habitat Management Program.

The major focus of the Program is on regulatory activities. These include: the review of development proposals (referrals); compliance monitoring and enforcement of the habitat protection provisions of the Fisheries Act; and conducting environmental assessments under CEAA prior to making decisions under section 35 of the Fisheries Act, or prior to issuing certain approvals under the Navigable Waters Protection Act (NWPA)or the National Energy Board Act (NEBA).

National Headquarters staff are responsible for the overall coordination of the delivery of the program. They provide national policy direction, strategic advice and liaison with other departmental sectors, federal departments and national industry and non-governmental organizations.

Day-to-day delivery of the program is carried out by staff located in more than 60 departmental offices in six regions: Newfoundland and Labrador; Maritimes (parts of New Brunswick and Nova Scotia): Gulf (parts of New Brunswick and Nova Scotia, as well as all of Prince Edward Island); Quebec; Central and Arctic (Alberta, Saskatchewan, Manitoba, Ontario, the Northwest Territories and Nunavut); and Pacific (covering British Columbia and the Yukon). See Map 1 at the end of this report.

On June 18, 2001, the Minister announced the creation of the Gulf Region, which meant that specific departmental programs in the Maritimes Region would be realigned under the Gulf Region, including programs in the Oceans and Habitat Sector.

Although the actual financial transfer occurred as of April 1^st, 2002, Gulf Region assumed responsibility for Fisheries Act and CEAA reviews of aquaculture sites and applications in Prince Edward Island, as well as the environmental assessment related to the Petitcodiac Causeway, as of August 1, 2001.

To ensure consistent reporting for fiscal year 2000‑2001, Maritimes Region took the lead in preparing this Report, with contributions from the Gulf Region pertaining to Gulf activities.

	top of page

In an effort to strengthen the National Habitat Management Program, a Blueprint Initiative was launched in fiscal year 1999‑2000 as a direct response to DFO’s Strategic Plan to restore confidence and credibility, renew mandates and improve organizational effectiveness. In fiscal year 2001‑2002, the Habitat Management Program continued its efforts to address the four priorities that resulted from the Habitat Blueprint Initiative. These included:

• streamlining the development referral review and approval process;
• establishing greater national consistency in the delivery of the Program;
• achieving a more balanced approach between regulatory and proactive activities in implementing the Habitat Policy; and
• enhancing collaboration and accountability in the delivery of the Program through partnerships.

The Minister of DFO has the legislative responsibility for the administration and enforcement of the Fisheries Act. In 1978, the Prime Minister gave to EC, the administration and enforcement responsibilities of those aspects of the Act that prevent pollution of Canadian fishery waters (section 34 and sections 36 to 42 inclusively). In this context, EC works to: advance pollution prevention technologies; promote the development of preventative solutions; and work with the provinces, territories, industry, other government departments and the public on issues relating to the pollution provisions of the Fisheries Act.

The central pollution prevention provision is found in subsection 36(3) of the Act, and is commonly referred to as the “general prohibition”. This subsection prohibits the deposit, into fish-bearing waters, of substances that are deleterious to fish. The “general prohibition” provision can include harmful plant effluents and runoff of pesticides or fertilizers from land or individual substances deposited to water. Subsection 36(4) of the Fisheries Act provides for authorization to discharge deleterious substances by means of regulations under subsection 36(5) of the Fisheries Act or under other legislation. Environment Canada regularly consults with DFO on the development of regulations under subsection 36(5) as it is the Minister of DFO that has the responsibility to bring before Cabinet all proposed regulations under the Act.

Environment Canada, in collaboration with DFO, has regulated six sectors under subsection 36(5) of the Fisheries Act: pulp and paper; metal mining; meat/poultry processing; potato processing; chlor-alkali mercury plants; and petroleum refineries. There is also one site-specific regulation governing the effluent from a pulp and paper mill at Port Alberni in British Columbia ⁴. These regulations define deleterious substances and set discharge limits. Discharges that exceed those limits are in violation of subsection 36(3) and charges can be laid by EC’s Fishery Inspectors /Officers under those regulations. In addition, where no regulations exist, all discharges must comply with the general prohibition in subsection 36(3).

Over the years, EC has developed several programs to complement the six regulated sectors. The accomplishments and results of these programs are detailed in EC’s Supporting Document available electronically at: <http://www.dfo-mpo.gc.ca/canwaters-eauxcan/infocentre/publications/index_e.asp>.

Environment Canada’s regional enforcement activities related to the Fisheries Act are administered through five regional offices located across Canada: Atlantic (New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador); Quebec; Ontario; Prairie and Northern (Alberta, Saskatchewan, Manitoba, Nunavut and Northwest Territories; Pacific and Yukon (British Columbia and Yukon). See Map 2.

1. The full text of the Policy for the Habitat Management of Fish Habitat can be found at <http://www.dfo-mpo.gc.ca/canwaters-eauxcan/infocentre/legislation-lois/policies/fhm-policy/index_e.asp>.

2. See Glossary in the Policy for the Management of Fish Habitat for definition of compensation <http://www.dfo-mpo.gc.ca/canwaters-eauxcan/infocentre/legislation-lois/policies/fhm-policy/gloss_e.asp>.

3. For more details, see <http://laws.justice.gc.ca/en/C-15.2/index.html>.

4. Stricter limits were required for the effluent from the Port Alberni Pulp and Paper mill because of environmental conditions at the site.

Previous Page	Table of Contents	Next Page