Some Cases That May Interest You...

  • Prince Albert, SK area cattle rancher fined for failing to obey inspector's direction to stop manure going into a stream and not finding alternative water for his cattle
  • Two mushroom growing companies in Abbotsford, BC fined $90,000 for harming fish habitat
  • Composting operation fined for disharging material to water and harming fish habitat
  • Town of Ponoka, AB convicted of discharging wastewater that killed fish (2011)
  • Hatchet Lake Denesuline First Nation (La Ronge, SK) fined for diesel spill into a river

Some Possible Scenarios

  • Bridges – installation, maintenance
  • Grazing of livestock near water
  • Clearing of vegetation near water
  • Spills into water or near water
  • Drainage, flood control, water management
  • Waste water management
  • Manure management/ Composting
  • Vehicles near water or crossing streams

An Example: Vegetation Clearing

Recent Changes to the Fisheries Act What do I need to know...

  • Significant increase in Penalties
  • New duties to report
  • Additional powers to enforcement officers
  • New offence – failing to comply with Authorization condition
  • Opportunity to amend/ cancel Authorizations

What Fish Are Now Protected New Serious Harm Regime

35. No person shall carry out any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery Ability to exempt fisheries What Actions Are Covered? Focus on "serious harm" 35: "No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery"

"Serious harm" means:

"...serious harm to fish is the death of fish or any permanent alteration to, or destruction of, fish habitat"

The New "Serious Harm" Regime

"...serious harm to fish is the death of fish or any permanent alteration to, or destruction of, fish habitat"

Administrative Guidelines

  • Fisheries Protection Policy Statement
  • Fisheries Protection Program Operational Approach
  • Guidance for the Application of the Transitional Provisions for Ministerial Authorizations
  • Applicant's Guide to Submitting an Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act

http://www.dfo-mpo.gc.ca/habitat/changeschangements/index-eng.htm

Subsection 36(3): Deposit of Deleterious Substances

  • General prohibition unchanged – protection not limited to CRA fisheries

Reporting

  • New reporting obligation: duty to report occurrence that results in serious harm to fish (ss.38(1) – (10))

(This is in addition to the existing duty to report a deposit of deleterious substances.)

Inspector's Directions

  • Increased power to issue directions
  • Previously inspectors had power to issue directions to take correcting measures
  • Amendments provide:
    • That both inspectors and fisheries officers have the power to issue directions
    • Situations where directions may be issued are expanded to include where a HADD has occurred or where there is serious danger of an occurrence

Enforcement / Penalties

  • Fines for sections 35 and 36(3) related offences are increased for consistency with fines under the Environmental Enforcement Act
  • Minimum and maximum penalties now
  • Penalties increased
  • Penalties vary depending on the accused:
    • Individuals
    • Small revenue corporations
    • Other corporations
      • 1st offence (indictment):$500k (min) - $6m (max)
      • 2nd offence: $1m (min) - $12m (max)
  • New offence for failing to comply with s35(2) condition – in force

Transitional Provisions: Review of Existing Authorizations

  • Existing Authorizations are deemed to be an authorization under the new regime
  • Review of existing Authorizations available until Feb 24, 2014
  • Amend your Authorization now?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.