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2.0 Regulatory Activities

Regulatory activities of DFO’s National Habitat Management Program include:

• reviewing proposed works or undertakings (“referrals”) that may affect fish habitat;
• monitoring compliance and applying enforcement in cases of
  non-compliance with the habitat protection provisions of the Fisheries Act;
• conducting environmental assessments; and
• developing regulations, policies and guidelines related to the habitat protection provisions of the Fisheries Act.

2.1 Review of Development Proposals (Referrals)

Regional Highlights

Examples of regional activities during fiscal year 2001‑2002 are highlighted below. Details are provided in Supporting Documents available electronically at <http://www.dfo-mpo.gc.ca/canwaters-eauxcan/infocentre/publications/index_e.asp>.

Table 1 summarizes the number of referrals (by work category) submitted to DFO for review. Table 2 summarizes the number of authorizations issued and letters of advice provided by regions.

*Note: “Other” includes referrals identified with Work Categories of Deleterious Substances, Hazardous Materials, Research, Ocean Management, Ocean Dumping, Power Projects, Railway, Research, Seismic Activities and Class Screenings of Habitat Restoration projects.

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Note: Table 2 is a summary of all “decisions” as recorded in the Habitat Referral Tracking System. Advice provided to proponents or others include advice provided in writing to: federal agencies, provincial/territorial/other agencies, letters of advice to proponents, letters of approval to proponents, mitigation measures provided to permitting agencies, specialist advice to federal agencies and advice provided to the Canadian Coast Guard for the issuance of approvals under the NWPA.

Newfoundland

• Of the 1,449 referrals received by the Region, approximately 72% were related to land use, roads and shoreline works. Another 22% were related to instream works, forestry and aquaculture.
• Staff provided advice in 872 cases and issued one authorization.

Maritimes

• Instream, road and shoreline works comprised 80% of the 1,548 referrals received by the Region. Staff provided advice in 1,008 cases, and issued seven authorizations.

Quebec

• Road and shoreline works comprised 54% of the 351 referrals received by the Region; referrals related to aquaculture, water management or instream works accounted for 32% of the total.
• Staff provided advice in 113 cases and issued 28 authorizations. Other referrals dealt with forestry, land use and oil & gas.

Central and Arctic

• The majority of the 4,436 referrals received by the Region were for projects involving shoreline works and instream works (47% combined); road-related projects were the third most common, with 21%, followed by oil and gas projects with 12%. Other referrals dealt with aquaculture, forestry, land use, mining and water management.
• Staff issued authorizations in 330 of the cases, and provided advice in another 3,311, a 72% increase from the previous year.

Pacific

• The four most common work categories of the 4,643 projects referred were shoreline works, in-stream works, forestry and general land use which represented 64% of referrals. Mining and road work accounted for 25%.
• The region issued 72 authorizations (for about 2% of referrals) and 1,618 letters of advice (for about 96% of referrals). These proportions are approximate as any single referral may generate one or more authorizations or letters of advice or both.

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2.2 Compliance and Enforcement

National Highlights

National Headquarters’ C&P Program is responsible for monitoring compliance with legislation and regulations regarding the conservation of fisheries resources and fish habitat. The Minister of DFO appoints Fishery Officers to enforce fisheries regulations and management plans as well as the habitat provisions of the Fisheries Act. In addition to protecting fish habitat, Fishery Officers conduct at-sea patrols in coastal and inshore areas, monitor catches, conduct forensic investigations and audits, conduct inland patrols and provide information to fishermen regarding government policies and regulations. The enforcement and compliance monitoring activities of Fishery Officers are vital to the Habitat Management Program and are key to protecting Canada’s fish and fish habitat.

Six Guiding Principles govern the application of the Fisheries Act in this regard and are identified in the new Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. The Policy was co-developed by DFO and EC and published in November 2001. <http://www.ec.gc.ca/ele-ale/policies/c_and_e_fisheries_act/main_e.asp>.

The Guiding Principles are as follows:

• Compliance with the habitat protection and pollution prevention provisions and their accompanying regulations is mandatory.
• Compliance will be encouraged through communication with parties affected by the habitat protection and pollution prevention provisions.
• Enforcement personnel will administer the provisions and regulations in a manner that is fair, predictable, and consistent. Rules, sanctions and processes securely founded in law will be used.
• Enforcement personnel will administer the provisions and accompanying regulations with an emphasis on preventing harm to fish, fish habitat or human use of fish caused by physical alteration of fish habitat or pollution of waters frequented by fish. Priority for action to deal with suspected violations will be guided by:
  • the degree of harm to fish, fish habitat or human use of fish caused by physical alteration of fish habitat or pollution of waters frequented by fish, or the risk of that harm; and/or
  • whether or not the alleged offence is a repeat occurrence.
• Enforcement personnel will take action consistent with this Compliance and Enforcement Policy.
• The public will be encouraged to report suspected violations of the habitat protection and pollution prevention provisions of the Fisheries Act.

Enforcement Activities and Convictions for the Gulf Region are presented separately in this section.

Table 3 summarizes the range of enforcement activities of DFO and EC in fiscal year 2001‑2002.

Table 4 presents a regional summary of 29 convictions under the habitat provisions of the Fisheries Act reported during fiscal year 2001‑2002. Details are provided in regional Supporting Documents available electronically at <http://www.dfo-mpo.gc.ca/canwaters-eauxcan/infocentre/publications/index_e.asp>.

*Since the methods for compiling statistical data agreed upon by the Quebec Wildlife and Parks Corporation differ slightly from those of DFO, they are not reported in this table. For more details, please refer to the Supporting Document of the Quebec Region.

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Note: The number of convictions from Environment Canada reported in the Annual Report for fiscal year 2000‑2001 should be two (2) and not 12.

Regional Highlights

Newfoundland

There were no convictions in the Newfoundland Region under the habitat protection provisions of the Fisheries Act in fiscal year 2001‑2002. Four charges are pending and C&P staff issued 16 warnings under subsection 35(1) of the Fisheries Act. As well, one prosecution against a forestry company under subsection 35(1) is underway as a result of a siltation incident.

Maritimes

Ten incidents developed into violations of the Fisheries Act (two of these were multiple violations) while several investigations of cases that began in previous years carried over into this fiscal year for a total of 19 violations (4 warnings; 11 charges pending; 4 convictions). The majority of violations dealt with rural and urban developments and many waterfront developments by commerce, industry and the general public.

Gulf

There were three convictions made in the Gulf Region under subsection 35(1) of the Fisheries Act in fiscal year 2001‑2002. Convictions involved forestry operations as well as dam construction. Conservation & Protection staff have 15 charges pending and issued 28 warnings under subsection 35(1).

Quebec

Due to pressures on C&P to monitor and control commercial fishery and poaching activities, no regular monitoring was carried out by the Fishery Officers to ensure compliance with the fish habitat protection provisions of the Fisheries Act.

During fiscal year 2001‑2002, there was an increase in cases concerning fish habitat that needed to be investigated by Fishery Officers. C&P has very little surveillance capacity and cannot insure a minimal follow-up of cases involving fish habitat because of lack of personnel.

DFO Fishery Officers conducted nine investigations in fiscal year 2001‑2002, resulting in seven warnings and two violations. The main cases brought to court during fiscal year 2001‑2002 are summarized in the Supporting Document for the Quebec Region.

Central and Arctic

No convictions were given under the habitat provisions of the Fisheries Act in fiscal year 2001‑2002. A total of 52 warnings were issued, nine charges laid while 33 are still pending.

Pacific

A total of 18 convictions resulted in this fiscal year. The region issued 135 warnings, laid 40 charges while 107 are still pending.

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2.3 Pollution Prevention Provisions

This section provides highlights of the enforcement program activities of Environment Canada (EC) for the Fisheries Act in fiscal year 2001‑2002. Details are provided in EC’s Supporting Document available electronically at <http://www.dfo-mpo.gc.ca/canwaters-eauxcan/infocentre/publications/index_e.asp>.

Municipal Sector

During fiscal year 2001‑2002, EC focused on the development of a risk management strategy addressing ammonia, inorganic chloramines and chlorinated wastewater effluents. These substances meet the definition of a “toxic substance” under the Canadian Environmental Protection Act 1999 and are also considered harmful to fish under section 34 of the Fisheries Act.

Pulp and Paper Mills

In fiscal year 2001‑2002, EC worked on amendments to the Pulp and Paper Effluent Regulations (PPER). The amendment necessary for the signing of the proposed Canada-Quebec administrative agreement is to be pre-published in the Canada Gazette Part I in June, 2002 for public review and comments. A general amendment to the PPER is underway to streamline and improve the regulations without altering the values of the discharge limits that currently exist. Both amendments are expected to be published in the Canada Gazette Part II in late fiscal year 2002‑2003.

• Environmental Effects Monitoring (EEM). The EEM program falls under the PPER of the Fisheries Act. During the reporting period, the PPER required 121 pulp and paper mills to conduct regular EEM studies on their receiving environments in order to assess and monitor effects that may be caused by the mills’ effluent.

Metal Mines

As part of its compliance promotion program, EC developed a status report on the prevention and control of water pollution in the Canadian metal mining industry. The report was provided to stakeholders and the public in July 2001. A performance report covering the period of 1999‑2000 is expected to be published in the summer of 2002.

Shellfish Water Quality Protection

Environment Canada, Fisheries and Oceans Canada and the Canadian Food Inspection Agency are responsible for the Canadian Shellfish Sanitation Program. As of April 2001, over 11,500 square kilometres of shellfish areas were classified as approved for harvesting. Approximately 3,300 square kilometres were classified as closed.

Environmental Assessments

Many proposed projects that are required to undergo environmental assessments under the Canadian Environmental Assessment Act (CEAA) include a review of the potential impacts under the pollution prevention provisions of the Fisheries Act. In EC’s Ontario Region, six sewage treatment proposals were reviewed in fiscal year 2001‑2002 under the Canada Infrastructure Program. In EC’s Prairie and Northern Region, over 500 projects were reviewed for potential water quality impacts and Fisheries Act implications.

Contaminated Sites

In EC’s Yukon Region, in association with partners in the Georgia Basin Ecosystem Initiative, a Pesticide Return program was established so that local agricultural producers could return their pesticides at no cost. By the end of fiscal year 2001‑2002, 55,000 kg of unwanted pesticide within the Georgia Basin, in British Columbia were collected and safely destroyed.

In EC’s Pacific and Yukon Region, numerous site assessments and remediation projects were reviewed including abandoned mines. Compliance requirements were also negotiated with DFO and the Province of British Columbia.

Pollution Prevention

The Pollution Prevention (P2) and Non-Point Source Pollution are broad-based initiatives aimed in-part to use various instruments to avoid or minimise the creation of pollutants and waste, as opposed to strictly managing wastes after they have been created. As a result, stakeholders are better able to adopt pollution prevention attitudes and practices to meet the intent of the Fisheries Act. In fiscal year 2001‑2002, a number of activities such as the development of manuals, presentations and meetings with key stakeholders took place.

Enforcement Program

In fiscal year 2001‑2002, the total number of inspections across Canada increased approximately 5%, from 3,353 to 3,513. In addition to the planned inspections, EC’s enforcement officers who are designated as Fishery Inspectors, also responded to events such as on-scene spill inspections, tips, complaints and referrals.

Bilateral Agreements

During fiscal year 2001‑2002, EC maintained and operated bilateral agreements with the provinces of Alberta, Saskatchewan and Quebec. The agreements provide for “a work-sharing arrangement for the cooperative administration of section 36 of the Fisheries Act.” Please refer to EC’s Supporting Document for more details.

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2.4 Environmental Assessments

Decisions under certain provisions of the Fisheries Act, in particular, subsection 35(2), trigger the need for an environmental assessment (EA) under CEAA. For projects for which DFO is to make a decision under those provisions of the Fisheries Act, DFO becomes a responsible authority and is required to conduct an EA in accordance with CEAA and consider broader environmental issues than those associated with the habitat protection provisions of the Fisheries Act.

In addition to EAs arising from triggers under the Fisheries Act, the Habitat Management Program is also responsible for EAs required as a result of certain regulatory decisions under the Navigable Waters Protection Act (NWPA) and/or the National Energy Board Act (NEBA), administered by DFO’s Canadian Coast Guard.

National Highlights

In fiscal year 2001‑2002, 828 EAs were started as a result of the Fisheries Act, the NWPA and/or the NEBA. Table 5 provides a summary of EAs initiated, completed and ongoing in each region in fiscal year 2001‑2002.

(1) EAs started between April 1, 2001 and March 31, 2002
(2) EAs on-going as of March 31, 2002 (started at any time and not concluded or cancelled at March 31, 2002)
(3) EAs concluded or cancelled between April 1, 2001 and March 31, 2002 (regardless of when they were started)

Regional Highlights

Examples of regional activities during fiscal year 2001‑2002 are highlighted below. Details are provided in Supporting Documents available electronically at <http://www.dfo-mpo.gc.ca/canwaters-eauxcan/infocentre/publications/index_e.asp>.

Newfoundland

The region initiated 50 environmental assessments, concluded 47, and had 29 ongoing. Approximately 97% were pursuant to the Fisheries Act and all were at the screening level of assessment with the exception of one which was a comprehensive study. Projects included the following:

• Continuation of the Carole Mining Project - Luce Pit Development
• Duck Pond Copper-Zinc Mining Project
• White Rose Offshore Oil Project

Maritimes

This region initiated 87 environmental assessments, concluded 62, and had 76 ongoing projects. These included:

• Oil and natural gas exploration and development projects including the Deep Panuke Comprehensive Study Report
• 100-Series highways in Nova Scotia and New Brunswick
• a number of shellfish and finfish aquaculture proposals throughout the region.

Quebec

This region initiated 60 environmental assessments, concluded 59, and had 79 ongoing. Projects included:

• construction of a dam and 526 MW hydroelectric power plant on the Toulnustouc River;
• Diversions of rivers Sault-aux-Cochons, Portneuf and Manouane towards the Bersimis hydroelectric plant;
• Construction of a golf course in the Leamy Lake Park - Hull;
• Building of marine infrastructures at Ivujivik and Kuujjuaq in Nunavut;
• Enlargement of the harbour of Grande-Entrée, Magdalen Islands; and
• Blue mussel farming project in Cascapédia Bay, in the Gaspé Peninsula.

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Central and Arctic

This region initiated 404 environmental assessments, concluded 393, and had 182 ongoing. Projects included:

• BHPB Ekati Diamond Mine and the Cameron Hills Pipeline and gathering facility in the Arctic
• the Manitoba Hydro Wuskwatim Generation Project in Manitoba, Fording Coal Mine and a number of new Oil Sands projects in Alberta
• The Port Hope Clean up Initiative, the Milton-Urban Development and Morningside Tributary Urban Development in Ontario.

Pacific

This region initiated 227 environmental assessments, concluded 147, and had 272 ongoing projects. More than 100 of the initiated projects were assessments of proposals for shellfish sites and finfish aquaculture tenure renewals and relocations. There was an increase of 155 ongoing projects from the previous fiscal year. Key projects included:

• Aishihik Hydroelectric Facility
• Alcan - Tahtsa Narrows
• Aquaculture Renewals and Relocations
• Bella Coola Gravel Mine and Port (update)
• Brilliant Powerplant Expansion
• Georgia Strait Pipeline Crossing
• Nisga’a Highway
• Seatech Float Fabrication Facility
• Tulsequah Chief Mine (update).
  

2.5 Regulations, Policies and Guidelines

National Highlights

The need for Standard Operating Policies to assist in achieving greater national consistency in decision making was identified as a high priority for fiscal year 2001‑2002. Following national consultations with Habitat Management staff, the Practitioners Guide to Habitat Compensation is scheduled to be released for implementation by regions in fiscal year 2002‑2003.

Three additional policy documents have also been identified to achieve greater national consistency:

• Practitioner’s Guide for Writing Letters Used in Fisheries Act Reviews;
• Practitioner’s Guide to Writing a Fisheries Act subsection 35(2) authorization; and
• Guidance on the determination of Harmful Alteration, Disruption or Destruction of Fish Habitat.

The next step will be to complete the above documents and consolidate them into a Standard Operating Policy document.

Five-Year Review of the Canadian Environmental Assessment Act

Many of DFO’s recommendations to improve CEAA were included in the government’s report and Bill C-19 to amend CEAA, both of which were tabled in Parliament on March 20, 2001. DFO’s recommendations included having the Canadian Environmental Assessment Agency coordinate environmental assessments and having a greater involvement of other departments in the implementation of mitigation measures. The Standing Committee on Environment and Sustainable Development continues its review of Bill C-19. It is expected to take more than one year before the Bill becomes law.

Regional Highligh ts

Examples of regional activities in this area during fiscal year 2001‑2002 are highlighted below. Details are provided in Supporting Documents and are available electronically at <http://www.dfo-mpo.gc.ca/canwaters-eauxcan/infocentre/publications/index_e.asp>.

Newfoundland

• A marine habitat classification system was under development in fiscal year 2001‑2002 to assist proponents and habitat managers in quantifying the harmful impacts on fish habitat resulting from various project developments within the marine environment. A guideline to aid proponents develop proposals entitled ‘Standard Methods Guide for the Classification/Quantification of Lacustrine Habitat in Newfoundland and Labrador’ was published.

Quebec

• The Quebec region did not develop new regulations, policies or guidelines during fiscal year 2001‑2002, nor did it amend any such existing docuements.

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Central and Arctic

• Agricultural Drain Maintenance Guidelines are being developed through a federal-provincial Drainage committee in Manitoba. The Guidelines will streamline the drainage approval process through classifying drains according to their fish habitat value. The region contributed financial resources to undertake the classification and inventory fieldwork.

Pacific

• Contributed to new national Metal Mining Liquid Effluent Regulations proposed by EC, to replace the existing regulations in place since 1977.
• The region completed a revision of its regional habitat prosecution procedures for staff, and implemented the new procedures in the fall of 2001.
• Developed regional policies and guidelines regarding aquaculture, ballast water management, bridge painting, stream crossings for logging roads, and seawall construction.

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