b'AdvertorialFive WaysCanadas Bill C-68 It is intended that this approach will provide a more consistent application of standards for minor projects, reduce the number of Changes Protection for Fisheries projects that will require DFO review, and make better use of regulators time, enabling By Kasey Clipperton and Tamara Darwish them to apply their expertise where it is most A ny development project in Canadaproject is reviewed compared to theneeded on major projects.Projects self-assessed under the previouswhether construction, mining, oilprevious legislation. legislation may not be compliant with the and gas or any other sectorthatnew legislation; it is the project proponents has the potential to impact a body3. Meaningful engagement and part- responsibility to ensure their project is com-of water is likely to be affected by changesnering with Indigenous groups pliant with the Fisheries Act when the new to the countrys Fisheries Act. The fish andBill C-68 strengthens the obligation of projectlegislation comes into force.fish habitat protection provisions of Bill C-68,proponents to partner and collaborate with which came into force on August 28, 2019,Indigenous peoples. Many of Canadas5.Factors to be consideredstrengthen some protections for aquaticIndigenous groups, particularly those living infor major projectsspecies and protect the interests of peoplecommunities far from urban areas, are heavilyWhen reviewing an application under the who depend on them, particularly dependent on fish and other aquatic species.Fisheries Act, DFO must consider several Indigenous communities. Indigenous communities need fisheries forfactors before issuing an authorization. Some food and cultural reasons, and decisionsof the factors remain unchanged (i.e., the Here are five of the most important changesmade under the Fisheries Act must considerpotential for the project to affect the produc-to the Fisheries Act that project developmentIndigenous Knowledge and potential adversetivity of a fishery and fisheries management stakeholders should keep in mind: effects on the rights of Indigenous people. objectives), but new factors have been 1. New focus on avoiding harm It will be more important for proponents toadded. These include consideration of Indig-to fish habitat reach out to Indigenous groups at the startenous Knowledge, cumulative effects, and a Previous legislation had, as one of itsof a project cycle, partly to determine earlypriority given to offsetting for the restoration central points, the prohibition of seriousin the planning stages what aspects of theof degraded habitats. These new factors will harm to fish. This has been replaced withproposed project may impact fisheries, sochange some of the information require-two prohibitions: (1) the death of fish by anythat the necessary changes to the projectments necessary to support a project appli-means other than fishing, and (2) the harmfulcan be made. cation. In issuing authorizations or permits alteration, disruption and destruction of fishunder the Fisheries Act for a HADD, there will habitat (abbreviated as HADD). In this, Bill C-68 parallels the trends seen inalso be a focus on increased transparency Bill C-69, which discusses the larger scopethrough the establishment of a public registry Its important to note that fish habitat doesof project reviews, with similarly enhancedfor project authorizations.not just mean waters where fish are caught;requirements to engage with Overall, although some of the wording in the it is a wider definition: Fish habitat meansIndigenous communities. legislation has changed, the application of water frequented by fish and any other areasthe Fisheries Act and the steps required to on which fish depend directly or indirectly in4.Codes of Practice instead ofget a project approved are largely unaltered. order to carry out their life processes, includ- self-assessment Although some new information may be nec-ing spawning grounds and nursery, rearing,Under previous legislation, it was often theessary to support applications, when it comes food supply and migration areas. case that project proponents would self-as- to evaluating the expected impact a project These provisions are, in some ways, a returnsess whether a proposed activity (e.g.,will have on fish and fish habitat, we expect to the protections provided under earlierinstalling a bridge or carrying out routineto be following many of the same steps versions of the Fisheries Act and are widelymaintenance activities) required a full regula- and using much of the same science weve seen as a response to criticisms that the mosttory review process under the Fisheries Act.always used, albeit with greater clarity in the recent Act, passed in 2012, did not provideIn some cases, the project proponent wouldapproach, and with more robust outcomes adequate protection. This change back to therequest the Department of Fisheries andfor protection of fish and fish habitat.HADD prohibition is also supported by a longOceans Canada (DFO, which administers the* Bill C-68 and Bill C-69 introduce significant history of case law in Canada, which providesAct) to review plans. For minor activities, thepolicy changes to environmental legislation. greater clarity as to what constitutes a HADD. DFO could prepare a letter of advice indicat- The Government of Canada announced that ing that a full project review was not required 2.Protecting all fish, not just thoseif work proceeded according to the plan. these new pieces of legislation, and associat-deemed important Bill C-68 has introduced a mechanism where- ed regulations will come into force on August The previous Act made a distinction betweenby Codes of Practice can be established for28, 2019.Clear rules for transitioning to the important fishthose that were significantroutine projects to replace the self-assess- new system are outlined in the legislation. for commercial fishing, sport fishing or asment process. Essentially, these codes willMuch of the framework for this new federal a food sourceand those that were not.outline the steps that need to be followedenvironmental legislation links to best prac-The new legislation considers all species offor common operations to avoid the deathtices and requirements within each of the fish, and all waters frequented by fish, to beof fish and other HADD prohibitions. Theseprovinces and can be beneficial to project equally in need of protection. Codes of Practice will be developed in orderplanning efforts. As with all legislative and In addition, the HADD prohibition now con- to allow projects that are of small scale, shortpolicy developments that affect our clients, siders both temporary and permanent activi- duration, and/or limited geographic area toGolder continues to monitor changes closely.ties, which will expand the potential scope ofproceed without a formal review while at theKasey Clipperton is a senior Fisheries the types of projects that may be consideredsame time using best practices to protectBiologist and Tamara Darwish is a Senior under the Fisheries Act. On the surface,aquatic environments and species. Larger orAquatic Biologist and Project Manager. Both this would appear to be a significant shift inlonger duration projects, and projects thatare members of Golders Aquatics team. For policy, but in practice, for larger projects, thecant comply with these Codes would bemore information visit, Golder.comchanges may not substantively alter how arequired to be submitted for formal review.'