An Act to amend the Fisheries Act and other Acts in consequence (S.C. 2019, c. 14)

Marginal note:Factors

• 34.1 (1) Before recommending to the Governor in Council that a regulation be made in respect of section 34.4, 35 or 35.1 or under subsection 35.2(10), 36(5) or (5.1), paragraph 43(1)(b.2) or subsection 43(5) or before exercising any power under subsection 34.3(2), (3) or (7), paragraph 34.4(2)(b) or (c), subsection 34.4(4), paragraph 35(2)(b) or (c) or subsection 35(4), 35.1(3), 35.2(7) or 36(5.2), or under subsection 37(2) with regard to an offence under subsection 40(1), the Minister, prescribed person or prescribed entity, as the case may be, shall consider the following factors:

  • (a) the contribution to the productivity of relevant fisheries by the fish or fish habitat that is likely to be affected;

  • (b) fisheries management objectives;

  • (c) whether there are measures and standards

    • (i) to avoid the death of fish or to mitigate the extent of their death or offset their death, or

    • (ii) to avoid, mitigate or offset the harmful alteration, disruption or destruction of fish habitat;

  • (d) the cumulative effects of the carrying on of the work, undertaking or activity referred to in a recommendation or an exercise of power, in combination with other works, undertakings or activities that have been or are being carried on, on fish and fish habitat;

  • (e) any fish habitat banks, as defined in section 42.01, that may be affected;

  • (f) whether any measures and standards to offset the harmful alteration, disruption or destruction of fish habitat give priority to the restoration of degraded fish habitat;

  • (g) Indigenous knowledge of the Indigenous peoples of Canada that has been provided to the Minister; and

  • (h) any other factor that the Minister considers relevant.

• Marginal note:Application of subsection (1)

  (2) The obligation to consider the factors set out in subsection (1) applies only to the recommendations and powers that continue to be made or exercised by the Minister after an order is made under subsection 43.2(1) that sets out the powers, duties or functions that the designated minister may exercise or perform.

Marginal note:Standards and codes of practice

• 34.2 (1) The Minister may establish standards and codes of practice for

  • (a) the avoidance of death to fish and harmful alteration, disruption or destruction of fish habitat;

  • (b) the conservation and protection of fish or fish habitat; and

  • (c) the prevention of pollution.

• Marginal note:Content

  (2) The standards and codes of practice may specify procedures, practices or standards in relation to works, undertakings and activities during any phase of their construction, operation, modification, decommissioning or abandonment.

• Marginal note:Consultation

  (3) Before establishing any standards and codes of practice, the Minister may consult with any provincial government, any Indigenous governing body, any government department or agency or any persons interested in the protection of fish or fish habitat and the prevention of pollution.

• Marginal note:Publication

  (4) The Minister shall publish any standards and codes of practice established under this section, or give notice of them, in the Canada Gazette and he or she may also do so in any other manner that he or she considers appropriate.

Marginal note:Studies, etc. — management or control of obstruction

• 34.3 (1) If the Minister considers that doing so is necessary to ensure the free passage of fish or the protection of fish or fish habitat, the owner or person who has the charge, management or control of an obstruction or any other thing that is detrimental to fish or fish habitat shall, on the Minister’s request and within the period specified by him or her, conduct studies, analyses, samplings and evaluations, and provide the Minister with any document and other information relating to them, to the obstruction or thing or to the fish or fish habitat that is or is likely to be affected by the obstruction or thing.

• Marginal note:Minister’s order

  (2) If the Minister considers that doing so is necessary to ensure the free passage of fish or the protection of fish or fish habitat, the owner or person who has the charge, management or control of an obstruction or any other thing that is detrimental to fish or fish habitat shall, on the Minister’s order, within the period specified by him or her and in accordance with any of his or her specifications,

  • (a) remove the obstruction or thing;

  • (b) construct a fishway;

  • (c) implement a system of catching fish before the obstruction or thing, transporting them beyond it and releasing them back into the water;

  • (d) install a fish stop or a diverter;

  • (e) install a fish guard, a screen, a covering, netting or any other device to prevent the passage of fish into any water intake, ditch, channel or canal;

  • (f) maintain the flow of water necessary to permit the free passage of fish; or

  • (g) maintain at all times the characteristics of the water and the water flow downstream of the obstruction or thing that are sufficient for the conservation and protection of the fish and fish habitat.

• Marginal note:Modification, repair and maintenance

  (3) On the Minister’s order, the owner or person referred to in subsection (2) shall

  • (a) make any provision that the Minister considers necessary for the free passage of fish or the protection of fish or fish habitat during the carrying on of any activity mentioned in that subsection;

  • (b) operate and maintain anything referred to in that subsection in a good and effective condition and in accordance with any specifications of the Minister; and

  • (c) modify or repair it in accordance with any specifications of the Minister.

• Marginal note:Obstruction of free passage of fish

  (4) No person shall

  • (a) damage or obstruct any fishway constructed or used to enable fish to pass over or around any obstruction;

  • (b) damage or obstruct any fishway, fish stop or diverter constructed or installed on the Minister’s order;

  • (c) stop, impede or hinder fish from entering or passing through any fishway, or stop, impede or hinder fish from surmounting any obstruction or leap;

  • (d) damage, remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s order; or

  • (e) fish in any manner within 23 m downstream from the lower entrance to any fishway, obstruction or leap.

• Marginal note:Exception — removal for repairs

  (5) Despite paragraph (4)(d), a person may remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s order if the removal is required for modification, repair or maintenance.

• Marginal note:Statutory Instruments Act

  (6) Orders made under this section are not statutory instruments for the purposes of the Statutory Instruments Act.

• Marginal note:Regulations

  (7) The Minister may make regulations respecting the flow of water that is to be maintained to ensure the free passage of fish or the protection of fish or fish habitat.

Marginal note:Death of fish

• 34.4 (1) No person shall carry on any work, undertaking or activity, other than fishing, that results in the death of fish.

• Marginal note:Exception

  (2) A person may carry on a work, undertaking or activity without contravening subsection (1) if

  • (a) the work, undertaking or activity is a prescribed work, undertaking or activity or belongs to a prescribed class of works, undertakings or activities, as the case may be, or is carried on in or around prescribed Canadian fisheries waters, and the work, undertaking or activity is carried on in accordance with the prescribed conditions;

  • (b) the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister;

  • (c) the carrying on of the work, undertaking or activity is authorized by a prescribed person or prescribed entity and the work, undertaking or activity is carried on in accordance with the conditions set out in the authorization;

  • (d) the death results from the doing of anything that is authorized, permitted or required under this Act;

  • (e) the work, undertaking or activity is carried on in accordance with the regulations;

  • (f) the work, undertaking or activity is carried on in accordance with a permit issued under subsection 35.1(3), in the case of a work, undertaking or activity that is part of a designated project and that is designated by the Minister under subsection 35.1(2); or

  • (g) the work, undertaking or activity is a prescribed work, undertaking or activity under paragraph 35.2(10)(a) or belongs to a prescribed class of works, undertakings or activities under that paragraph, as the case may be, and carried on in an ecologically significant area in accordance with an authorization issued under subsection 35.2(7).

• Marginal note:Other conditions

  (3) The prescribed person or prescribed entity referred to in paragraph (2)(c) may, in addition to the prescribed classes of conditions impose, subject to the regulations, any other conditions that they consider appropriate in the circumstances.

• Marginal note:Regulations

  (4) The Minister may, for the purposes of paragraph (2)(a) and subject to paragraph 43(1)(i.1), make regulations prescribing anything that is authorized to be prescribed.

• Marginal note:Amendment, suspension or cancellation — paragraph (2)(b)

  (5) The Minister may amend, suspend or cancel an authorization issued under paragraph (2)(b).

• Marginal note:Amendment, suspension or cancellation — paragraph (2)(c)

  (6) A prescribed person or prescribed entity referred to in paragraph (2)(c) may amend, suspend or cancel an authorization issued under that paragraph.

Marginal note:Designated project

• 35.1 (1) The Minister may designate, as a work, undertaking or activity that is associated with a designated project, any work, undertaking or activity that the Minister considers likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat.

• Marginal note:Work, undertaking or activity designated by Minister

  (2) The Minister shall designate any work, undertaking or activity that is part of a designated project and that the Minister considers likely to result in the death of fish or the harmful alteration, disruption or destruction of fish habitat.

• Marginal note:Issuance of permit

  (3) The Minister may issue a permit to carry on any work, undertaking or activity designated under subsection (2) and attach any conditions to it.

• Marginal note:Prohibition

  (4) No person shall carry on any work, undertaking or activity that is designated under subsection (2) except in accordance with a permit issued under subsection (3).

• Marginal note:Amendment, suspension or cancellation

  (5) The Minister may amend, suspend or cancel a permit issued under subsection (3).

Marginal note:Ecologically significant area

• 35.2 (1) No person shall carry on a work, undertaking or activity prescribed under paragraph (10)(a) or that belongs to a prescribed class under that paragraph, in an ecologically significant area except in accordance with an authorization issued under subsection (7).

• Marginal note:Designation — ecologically significant area

  (2) The Governor in Council may, on the recommendation of the Minister, make regulations designating ecologically significant areas.

• Marginal note:Requirement to provide information

  (3) Any person who proposes to carry on a work, undertaking or activity referred to in subsection (1) in an ecologically significant area shall provide the Minister with any document and other information that is required by regulation in respect of the prescribed work, undertaking or activity, or the water, place, fish or fish habitat that is likely to be affected by the prescribed work, undertaking or activity.

• Marginal note:Request for additional information

  (4) Regulations made for the purpose of subsection (3) do not prevent the Minister from requesting additional information that he or she considers necessary in the circumstances.

• Marginal note:Compliance with request

  (5) Every person who is required to provide any additional information must provide it within the time and in the manner that the Minister specifies.

• Marginal note:Extension of time

  (6) The Minister may, on request in writing from any person who is required to provide any additional information, extend the specified time.

• Marginal note:Powers of Minister

  (7) If the Minister is satisfied, after having reviewed any document and other information provided under subsection (3) or (4), that avoidance and mitigation measures may be implemented to achieve the prescribed objectives for the conservation and protection of fish and fish habitat, he or she may authorize, subject to the regulations made under subsection (10), the carrying on of the work, undertaking or activity referred to in subsection (1) in an ecologically significant area, on any conditions that he or she considers appropriate.

• Marginal note:Amendment, suspension or cancellation — authorization

  (8) The Minister may amend, suspend or cancel an authorization issued under subsection (7).

• Marginal note:Fish habitat restoration plan

  (9) The Minister shall, as soon as feasible, prepare a fish habitat restoration plan for an ecologically significant area, if he or she is of the opinion that fish habitat restoration in that ecologically significant area is required in order to meet any prescribed objectives for the conservation and protection of fish and fish habitat.

• Marginal note:Regulations

  (10) The Governor in Council may, on the Minister’s recommendation, make regulations

  • (a) prescribing works, undertakings or activities or classes of works, undertakings or activities, for the purposes of this section;

  • (b) respecting any document or other information that is required to be provided under subsection (3), including the manner in which and the time within which it is to be provided;

  • (c) respecting the objectives for the conservation and protection of fish and fish habitat in an ecologically significant area;

  • (d) prescribing works, undertakings or activities or classes of works, undertakings or activities that the Minister shall not authorize under paragraphs 34.4(2)(b) and 35(2)(b) to be carried on in an ecologically significant area;

  • (e) prescribing conditions under which and requirements subject to which the Minister may issue an authorization under subsection (7);

  • (f) respecting the manner and circumstances relating to the amendment, suspension or cancellation of an authorization referred to in subsection (7); and

  • (g) respecting the process by which a person may request an amendment, suspension or cancellation of an authorization under subsection (7).