The following reproduces in note form a recent presentation to agricultural businesses in Regina, Sk and Langley, BC by Anthony Crossman of Miller Thomson LLP.

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?

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"

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"

The New "Serious Harm" Regime

"Serious harm" means:

"...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/pnw-ppe/changes-changements/index-eng.html

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: Existing Authorizations

  • Existing Authorizations are deemed to be an authorization under the new regime

Access the complete text at: http://www.millerthomson.com/assets/files/article_attachments2/AJC_2014-03_FisheriesAct.pdf

Originally published in the April 2014 issue of CERCN.

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.