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Government of Canada Government of Manitoba

CANADA – MANITOBA MEMORANDUM OF UNDERSTANDING ON FISH HABITAT MANAGEMENT ("MOU")

September 2003


Between:

The Government of Canada as represented by the Department of Fisheries and Oceans (herein after referred to as "Canada")
 

And:

The Government of Manitoba as represented by Manitoba Conservation (herein after referred to as "Manitoba")

(1) Whereas, the Constitution Act, 1867 assigns to the federal government exclusive jurisdiction for sea coast and inland fisheries AND the Fisheries Act sets out the powers and duties of the federal government with respect to the conservation and protection of fish habitat; and

(2) Whereas, the Constitution Act, 1867 assigns to the provinces exclusive jurisdiction over matters dealing with property and civil rights, and the management of public lands, and matters of a local and private nature in the province AND based on these heads of power, the provinces may regulate certain aspects relating to fisheries such as conveyances, leases, and resource usage and protection; and

(3) Whereas, delegation of responsibility for administration of fisheries management in the Province of Manitoba has taken place through regulations and agreements, while the federal government has retained its responsibilities for administration of conservation and protection of fish habitat; and

(4) Whereas, the federal government and Canada’s provinces and territories, including the Province of Manitoba, have entered into an Agreement on Interjurisdictional Cooperation with Respect to Fisheries and Aquaculture that provides both the foundation for the Canadian Council of Fisheries and Aquaculture Ministers (CCFAM) and sets out the principles of cooperation found in Annex 1; and

(5) Whereas, CCFAM is developing and has agreed to implement a Freshwater Fisheries Strategy that clarifies roles and responsibilities and includes the goals and principles found in Annex 1; and

(6) Whereas, Manitoba manages provincial Crown lands, water, fisheries (as referenced in paragraph 3, above) and wildlife, and develops integrated watershed plans through various legislation, policies, and guidelines and has established laws and policies that provide for the integration of fish habitat protection and conservation considerations and measures in its decision making and regulatory processes; and

(7) Whereas, the Governments of Canada and Manitoba share mutual interests in cooperating to conserve and protect fish and fish habitat; and

(8) Whereas, the Governments of Canada and Manitoba recognize the importance of the fisheries resources and fish habitats to the economic well being and social fabric of provincial communities and Aboriginal Peoples, and are committed to conserving, enhancing, and protecting fish habitat required to sustain the province’s fisheries resources for present and future generations of Canadians and to collaborating and sharing responsibilities in the delivery of habitat management activities in the Province of Manitoba, where it is of mutual interest,

Therefore, the Governments of Canada and Manitoba (the "Parties") agree to the following MOU:

1.0 Guiding Principles

1.1 Fish habitat conservation, restoration and enhancement will be managed in accordance with the Department of Fisheries and Oceans’ Policy for the Management of Fish Habitat (1986).

1.2 For greater certainty, no fish habitat related decision-making powers set out in the Fisheries Act (Canada) are delegated to Manitoba.

1.3 Nothing in this MOU abrogates or derogates from any Aboriginal, treaty or other rights of Aboriginal People, including self-government.

1.4 The Parties agree to establish, wherever possible, clear, comprehensive and harmonized policies, standards, guidelines and procedures to guide decisions in protecting fish habitat.

1.5 The Parties agree to coordinate work activities to ensure comprehensive and effective protection of fish habitat and to ensure that decisions are made in an efficient and timely manner.

1.6 The Parties agree to pursue cooperative arrangements with local governments, Aboriginal Peoples, industries and non-governmental organizations to enhance the protection of fish habitat.

1.7 DFO will participate in integrated resource planning, stewardship and information management and sharing activities in the Province of Manitoba.

1.8 The Parties may jointly fund or contribute in kind to support projects and initiatives that sustain program priorities such as database development and sharing and habitat enhancement, but there will be no transfer of resources for delivery of fish habitat program elements.

2.0 Goal

This MOU is intended to facilitate a collaborative approach in increasing certainty, consistency, efficiency and effectiveness in the conservation, protection and enhancement of fish habitat in the Province of Manitoba through the implementation of federal and provincial legislation, regulations, policies and programs identified in Annex 2.

3.0 Scope of Application

3.1 This MOU applies to all fish habitats, as defined in Annex 3, in the Province of Manitoba.

3.2 This MOU pertains to the administration and enforcement of the fish habitat protection provisions of the Fisheries Act as specified in Annex 4.

3.3 The scope of activities in Annex 5 will be used as a guide to develop joint priorities in subsequent protocols.

4.0 Management and Specific Objectives of this MOU

Canada and Manitoba agree to:

4.1 Establish a Canada/Manitoba Fish Habitat Management Oversight Committee at the Regional Director General (DFO) and Assistant Deputy Minister level (Province). This Committee would meet as required to provide direction to the Canada/Manitoba Fish Habitat Management Committee regarding issue resolution.

4.2 Establish a Canada/Manitoba Fish Habitat Management Committee at the Director level or equivalent, including field representation, and develop appropriate terms of reference and an annual work plan within six months of the signing of this MOU. This Committee will meet annually or more frequently as required to fulfil the specific objectives of this MOU, namely to:

4.2.1 oversee the implementation and ongoing delivery of this MOU;

4.2.2 monitor, evaluate and report to senior officials on the implementation and ongoing delivery of this MOU;

4.2.3 examine and pursue opportunities and ensure appropriate consultation between the Parties during amendments or development of legislation and regulations related to fish habitat protection;

4.2.4 provide for the development and delivery, wherever possible, of clear, consistent and comprehensive harmonized policies, standards, guidelines and procedures to ensure the integrated conservation and protection of fish habitat;

4.2.5 establish joint strategic objectives and priorities for fish habitat protection;

4.2.6 pursue cooperative arrangements with all orders of government, Aboriginal Peoples, industries and non-government organizations to achieve the purpose and objectives of this MOU;

4.2.7 identify fish habitat inventory/information and research needs and priorities;

4.2.8 standardize the operational definition and field application of fish habitat protection policies, standards and guidelines and associated mitigation and compensation measures; and

4.2.9 provide for means to achieve administrative and functional efficiencies by supporting and coordinating joint training programs for internal staff and external parties to expand fish habitat protection capacity and increase consistency in approaches.

4.3 Establish Canada/Manitoba Fish Habitat Working Groups, or use appropriate existing committees or decision-making frameworks to develop a coordinated local approach to:

4.3.1 setting joint objectives for fish habitat protection including but not limited to:

  1. priorities for fish habitat protection, inventory/information and research needs; and,

  2. establishing common boundaries for worksharing purposes;

4.3.2 supporting inclusive and integrated watershed planning processes, as defined in Annex 2, that identify fish habitat protection requirements;

4.3.3 ensuring that fish habitat requirements are incorporated into natural resource allocation and land use planning processes for urban, rural, agricultural and forest lands;

4.3.4 processing inter-agency referrals for development activities in a manner that increases effectiveness and reduces agency workloads through the use of:

  1. procedures that identify specific activities that do not require referrals;

  2. guidelines for development activities that protect fish habitat;

  3. approaches to referral processing that provide improved coordination and efficiency in the management of development referrals (such as, one window service, worksharing agreements, areas of specialization);

  4. coordinated fish and fish habitat information; and,

  5. communication materials that increase public and proponent awareness of fish habitat protection requirements and approval processes;

4.3.5 providing coordinated fish and fish habitat information to environmental impact assessments under the Canada and Manitoba Environmental Assessment Processes, as provided for under the Canada - Manitoba Agreement for Environmental Assessment Cooperation.

4.3.6 monitoring for compliance and effectiveness with respect to fish habitat related legislation, guidelines and/or advice provided to proponents, including but not limited to the setting of priorities, plans and the use of joint:

  1. monitoring processes and procedures; and,

  2. standards and indicators;

4.3.7 improving fish habitat protection enforcement including but not limited to:

  1. setting integrated enforcement priorities in consultation with respective enforcement staff;

  2. examining options for enforcement and technical support teams that will specialize in fish habitat protection enforcement issues; and,

  3. sharing of expert witnesses and technical support;

4.3.8 pursuing cooperative arrangements with all orders of government, Aboriginal People, industries and non-government organizations to advance the goal and objectives of this MOU; and,

4.3.9 ensuring that administrative and functional efficiencies are achieved by supporting and coordinating joint training opportunities for internal staff and external partners to expand fish habitat protection capacity and increase consistency in approaches.

4.4 The Canada/Manitoba Fish Habitat Management Committee will submit an annual report on the implementation of this MOU and on the administration and enforcement of the fish habitat provisions of the Fisheries Act to the Minister of Fisheries and Oceans and to Minister of Manitoba Conservation as soon as practicable after the conclusion of the year. A year will be considered to run from April 1 to March 31.

5.0 Issue Resolution

Canada and Manitoba will resolve issues regarding the implementation of this MOU in a timely manner using mechanisms available through the Canada/Manitoba Fish Habitat Management Committee and Canada/Manitoba Fish Habitat Working Groups. Issues not resolved at this level will be referred to the Canada/Manitoba Fish Habitat Management Oversight Committee for resolution. Issues remaining unresolved will be finally determined by the pre-eminent jurisdiction responsible for the matter under consideration.

6.0 Term

The signatures of the parties will initiate this MOU. Either Canada or Manitoba can terminate this MOU on three months written notice to the other Party.

This MOU will be reviewed by respective senior executives three years after the date of its coming into force to evaluate its effectiveness and to make appropriate mutually acceptable adjustments as required. Additionally, the MOU can be amended at any time with the approval of both Parties.

7.0 Signatures



____________________________
The Honourable Robert G. Thibault
Minister of Fisheries and Oceans Canada
Government of Canada

Date: September 17, 2003



____________________________
The Honourable Steve Ashton
Minister of Conservation
Government of Manitoba

Date: September 17, 2003

ANNEX 1

Principles of the Canadian Council of Fisheries and Aquaculture Ministers Freshwater Fisheries Strategy

The foundation for the CCFAM and the Freshwater Fisheries Task Group is the Agreement on Interjurisdictional Cooperation with Respect to Fisheries and Aquaculture, which was signed by all Canadian jurisdictions in 1999. The Agreement sets out the following principles of cooperation, on which the Freshwater Fisheries Strategy and this MOU are also based:

  • Commitment to action

  • Coordination

  • Timely consultation

  • Harmonization

  • Information sharing

  • Aboriginal and treaty rights

  • Transparency

  • Flexibility

  • Accountability

Additionally, the following operational principles guide the implementation of the Freshwater Fisheries Strategy and this MOU:

  • Conservation is the primary objective in managing freshwater fisheries resources.

  • Aboriginal and treaty rights will be respected.

  • Governments and stakeholders share responsibility for conservation.

  • An ecological approach will guide freshwater fisheries and fish habitat management.

  • Tradeoffs between current harvest benefits and long term stock well being will be resolved in favour of the long term.

  • Governments will work together for sustainable fisheries management within their respective areas of jurisdiction.

  • There are various legitimate users of the freshwater fisheries resource (Aboriginal, commercial, recreational, and aquaculture).

  • Governments together are responsible and accountable for sustainable freshwater fisheries and their habitats.

Goals of the Freshwater Fisheries Strategy:

  • to conserve, manage, rehabilitate and protect healthy freshwater fisheries, fish habitats and aquatic ecosystems;

  • to support sustainable cultural, social and economic benefits from freshwater fisheries;

  • to engage Canadians in the management and stewardship of freshwater fisheries and fish habitats; and

  • to optimize Interjurisdictional cooperation, efficiency and effectiveness in freshwater fisheries and fish habitat management.
     

ANNEX 2

As stated in section 2.0 (Goal), this MOU will be achieved in the Province of Manitoba through the implementation of the following federal and provincial legislation, regulations and policies, including, but not limited to:

FEDERAL:

  • Fish habitat protection provisions of the Fisheries Act

  • The Canadian Environmental Assessment Act

  • The Policy for the Management of Fish Habitat

  • Habitat Conservation and Protection Guidelines

  • Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat

PROVINCIAL:

  • The Environment Act

  • The Fisheries Act (Manitoba)

  • The Conservation Districts Act

  • The Crown Lands Act

  • The Dangerous Goods Handling and Transportation Act

  • The Forest Act

  • The Mines Act

  • The Municipal Act

  • The Planning Act

  • The Public Health Act

  • The Water Resources Administration Act

  • The Water Rights Act

  • The Water Power Act

  • Manitoba Fishery Regulations

  • Manitoba Fisheries Policies 1996
     

ANNEX 3

Definitions

For the purpose of this MOU, the following definitions apply:

"Fish" includes:

(a) parts of fish,

(b) shell fish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals, and

(c) the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals.

"Fish habitat" means 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.

"Integrated watershed planning" means a long term, strategic plan that defines fish habitat objectives on a watershed basis for fish populations, habitat protection, restoration and development, research and inventory and includes environments that:

  • directly or indirectly support fish stocks or fish populations that sustain, or have the potential to sustain, subsistence, commercial or recreational fisheries; or,

  • directly or indirectly support or have the potential to support, native wild fish populations; or,

  • although not directly supporting fish, provide nutrients and/or food supply to adjacent or downstream fish habitat or contribute to water quality for fish; or,

  • could contribute to the recovery of fish species at risk; or,

  • have been identified by Canada and Manitoba for investments in fish habitat restoration or enhancement.

Fish habitat management objectives are in addition to and in consideration of other planning objectives within the watershed.

ANNEX 4

Habitat Management Provisions of the Fisheries Act
REGULATORY ACTIVITIES Roles and Responsibilities Table

Note: This Table reflects the understanding of roles and responsibilities as of summer 2002 based on agreements, protocols and procedures currently under development. Changes to the roles and responsibilities set out below in respect of this MOU will be made as deemed necessary through direction by the Management Committee, as required. These activities will be supported through additional working agreements respecting database development and data sharing, communications and specific technical issues (i.e.: Agricultural Drains).

Section

Description

Review

Approval

Enforcement

Reference
20, 21 & 22

The authority to require the construction, maintenance and operation of fish passage facilities at obstructions in rivers; to require financial support for fish hatchery establishments constructed and operated to maintain runs of migratory fish; to remove unused obstructions

DFO
MC

DFO

DFO

Compliance Protocol
Referral Protocol *

26

Stream barriers

MC
DFO

DFO

DFO

Compliance Protocol
Referral Protocol *

28

Prohibits hunting or killing of fish by explosives

MC
DFO

  

DFO

Compliance Protocol
Referral Protocol *

30

Fish Screens

MC
DFO

DFO

DFO

Compliance Protocol
Referral Protocol *

32

Prohibits the destruction of fish by any means other than fishing

MC
DFO

DFO

DFO

Compliance Protocol
Referral Protocol *

35

Prohibits works or undertakings that result in the harmful alteration, disruption or destruction of fish habitat, except when authorized by the Minister designate.

DFO
MC

DFO

DFO

Compliance Protocol
Referral Protocol *

* Under development for specific activities.

ANNEX 5

KEY ACTIVITIES LIST FOR THE MANAGEMENT OF FISH HABITAT MANAGEMENT IN CANADA

REGULATORY
Protection and Compliance (Strategy 1) (incl. CEAA since 1995)

Review development proposals ("referrals") to assess compliance with the Fisheries Act

  • Examine referral documentation

  • Seek, request and/or provide additional information or clarification

  • Conduct site visits

  • Determine impacts to fish and fish habitat

  • Identify mitigation/compensation requirements

  • Make decision

  • Issue letter(s) of advice or authorization(s)

  • Communicate requirements, decisions, etc. to proponent

Conduct enforcement activities:

  • Establish habitat enforcement priorities

  • Conduct compliance monitoring (ensure compliance with the Fisheries Act, authorization, mitigation and/or compensation measures, directions and/or orders)

  • Investigate potential offences under Fisheries Act  and collect evidence, including testimony from key witnesses

  • Advice on potential violations

  • Recommend prosecution or pursue alternative actions

  • Provide expert witness testimony, support documentation or advice

  • Oversee that court directions are fully implemented.

Conduct Environmental Assessment under CEAA triggered by regulatory decisions under the Fisheries Act and/or Navigable Waters Protection Act:

  • Coordinate federal input

  • Acquire legal input

  • Respond to subsection 12(3) requests

  • Maintain public registries

  • Conduct environmental assessment (analysis of information, communication with proponent, public participation, follow-up program, etc.)

  • Prepare Screening or Comprehensive Study report

  • Respond to inquiries

  • Coordinate and prepare response to Panel/mediator report recommendations

  • Conduct other Fisheries Act activities specific to Panel or mediation (participate at hearings, prepare written and/or oral submissions, make recommendations, etc.)

FRESH WATER AND OCEANS PLANNING
Integrated Resource Planning (IRP) (Strategy 2)

Define and establish fish habitat objectives and requirements at the ecozone, watershed and/or other levels:

  • Establish roles and responsibilities in IRP initiatives

  • Determine current health and status of fish habitat in relation to fisheries

  • Establish desired objectives and identify priorities

  • Develop and participate in IRP initiatives

  • Develop and implement action plans

  • Monitor and evaluate effectiveness of the action plans

HABITAT ENHANCEMENT
Habitat Improvement (Strategy 7)

Conduct habitat improvement activities:

  • Identify priorities for habitat improvement (see also IRP)

  • Develop projects to restore damaged habitat

  • Establish projects to develop (increas/improve) habitat

  • Provide support, advice and guidance on improvement activities

  • Monitor/evaluate effectiveness of improvement activities

COMMUNITY OUTREACH AND STEWARDSHIP
Public Information and Education (Strategy 5) Public Consultation (Strategy 4) Co-operative Action (Strategy 6)

Design/Implement proactive communication strategies to relay specific information and educational material:

  • Develop communication plans (including requirements, target audiences, mechanism, etc.

  • Develop communications materials

  • Disseminate material/information to external target audience(s)

  • Monitor and evaluate effectiveness of communications materials/initiatives

Conduct public consultations:

  • Establish policies, approaches and guidance for public consultation

  • Plan and hold consultation sessions on major or controversial fish habitat issues, as well as proposed new or revised policies and legislation

  • Collect information and feedback obtained during public consultation

  • Evaluate effectiveness of consultation

  • Provide feedback (Summary/conclusions) to participants

Maintain and develop co-operative arrangements

  • Identify clear roles and responsibilities of DFO and partners

  • Review current arrangements

  • Prioritize future partnering opportunities

  • Develop new partnering opportunities

  • Sustain arrangements

  • Evaluate progress/results or partnering arrangements

SCIENTIFIC SUPPORT
Scientific Research (Strategy 3) Habitat Monitoring (Strategy 8)

Conduct and communicate research in support of Regulatory, Integrated Watershed Management and Community Outreach activities:

  • Identify emerging issues/trends and scientific research

  • Undertake/contract research

  • Translate research results into user-friendly formats for different audiences

  • Provide input to effectiveness monitoring for guidelines and/or mitigation/compensation decisions

Ascertain "effectiveness" of decisions/techniques related to both referrals and integrated watershed projects:

  • Identify objectives and priorities to design appropriate monitoring techniques/plans

  • Monitor and evaluate projects to verify effectiveness of mitigation and/or compensation measures (baseline conditions and trends)

  • Provide direction for needed amendments or adjustments to mitigation and/or compensation measures

  • Share results with DFO staff, management and partners

INFORMATION MANAGEMENT

Manage Program data and information

  • Identify data and information requirements/sources

  • Design/build and maintain knowledge integration tools for staff and partners

  • Collect and adapt/package Program-related information and best practices

  • Disseminate Program-related information to internal staff and partners

  • Evaluate effectiveness of Program data and information management tools and modify as required

PROGRAM MANAGEMENT

Manage and administer Program:

  • Direct and co-ordinate Program-wide activities

  • Manage financial and human resources

  • Establish and monitor specialized contracts and work of external consultants, researchers, etc.

  • Respond to various requests for information (public inquiries, ATIP, Ministerial correspondence, briefing notes, Auditor General petitions, NACEC submissions, Auditor General reports, etc.)

  • Record, track and report on Program performance (e.g. TB Performance Management, Annual Report to Parliament, CEA Agency, etc.)

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