On June 21, 2019, Bill C-68, the Amended Fisheries Act, received Royal Assent and became law. The most significant change to the Act is reflected in subsection 2.1(b) of the new purpose clause:
2.1 The purpose of this Act is to provide a framework for
(a) the proper management and control of fisheries; and
(b) the conservation and protection of fish and fish habitat, including by preventing pollution.
It is arguable that because the previous version of the Act limited protection to fish and fish habitat that were part of a “commercial, recreational or Aboriginal fishery”, its purpose was limited to subsection 2.1(a): the “management and control of fisheries”.
Before the Bill C-68 amendments, section 35 prohibited unauthorized activities that resulted in “serious harm (defined as: “death of fish or any permanent alteration to, or destruction of, fish habitat”) to fish that are part of a commercial, recreational or Aboriginal fishery”.
The amended Act’s fish protection provisions are now much broader. The new section 34.4(1) reads: “No person shall carry on any work, undertaking or activity, other than fishing, that results in the death of fish.” And the new section 35(1) reads: “No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.” Neither of these prohibitions are any longer limited to a “commercial, recreational or Aboriginal fishery”.
Given the breadth of these prohibitions on killing a fish or harming fish habitat, it is not surprising that the amended Act also includes a new regulatory framework for the authorization of otherwise prohibited activities.
This includes providing regulation making powers to designate large-scale projects or activities that can be authorized on a case-by-case basis, as well as establishing codes of practice that if followed would allow small, routine projects to avoid prohibited impacts to fish and fish habitat.
The amended Act also formalizes the creation of fish habitat banks by a proponent of a project that can be used to offset unavoidable impacts to fish and fish habitat. Where previously an administrative, policy-based approach was used to permit fish habitat banking, the Act now provides for, and encourages, the use of proponent-led habitat banks for offsetting fish and fish habitat losses. Fisheries and Oceans Canada has developed a webpage that includes more information about the specific changes. This page also announces that a publicly accessible registry of Fisheries Act authorizations is expected to be in place by 2020.