ARCHIVED — Vol. 147, No. 15 — April 13, 2013

Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations

Statutory authority

Fisheries Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

The responsible resource development plan, an initiative under Canada’s Economic Action Plan, was launched in 2012 and aims to unleash Canada’s natural resource potential by streamlining reviews of major projects through more predictable and timely reviews, by reducing duplication, by strengthening environmental protection, and by enhancing consultations with Aboriginal peoples. A central feature of this plan is the elimination of duplication and delays in the current regulatory system to enable investments in the natural resources sector and capitalize on Canada’s resource development potential.

In keeping with this goal, the proposed Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations (the proposed Regulations) would achieve two things:

  • set out the requirements regarding the information and documentation for all applications for authorizations under paragraph 35(2)(b) (see footnote 1)
    of the Act; and
  • establish procedural requirements and time limits for the processing of these applications.

These measures would result in more predictable and timely reviews to enable resource development as envisioned in the responsible resource development plan by consolidating information requirements and clearly establishing time limits for the processing of applications.

Section 58 of the Fishery (General) Regulations, made under the Fisheries Act, will be repealed, along with Schedules VI and VII to those Regulations. That section and those schedules set out the current way to proceed to obtain an authorization under the Fisheries Act and would be repeated unnecessarily and inconsistent with the proposed regulatory scheme.

Description

Where a work, an undertaking or an activity requires an authorization from the Minister of Fisheries and Oceans under paragraph 35(2)(b) of the Fisheries Act, and an applicant has submitted an application for authorization to the Minister of Fisheries and Oceans, the following general process described in the proposed Regulations would apply:

  1. The Minister must send a confirmation of receipt to the applicant indicating the date of receipt of the application.

  2. Subject to certain circumstances set out in the proposed Regulations, within 60 days beginning on the date of receipt of the application, the Minister notifies the applicant if the information received in support of the application is complete or incomplete. Where the information is incomplete, the notification will indicate the required information or documentation that has not yet been provided.

  3. Steps 1 and 2 are repeated with each subsequent submission of outstanding information until such time as the application is complete.

  4. Once the application is complete, and subject to certain circumstances set out in the proposed Regulations, the Minister must, within 90 days beginning on the date of the notification that the application is complete, either issue the authorization or notify the applicant of the refusal to do so.

  5. The 60- and 90-day time limits, as the case may be, will cease to apply in certain circumstances set out in the proposed Regulations, including

    • (a) where the applicant proposes changes to the work, undertaking or activity or to the offsetting plan;

    • (b) where the applicant requests in writing that the processing of the application be suspended;

    • (c) where circumstances require that information or documentation other than that referred to in subsection 3(1) of the proposed Regulations be obtained or that the information or documentation submitted by the applicant be amended; (see footnote 2)
    • (d) where consultation is required before an authorization can be issued or a notification of refusal can be given; or

    • (e) where an Act of Parliament, regulations made under an Act of Parliament or a land claims agreement provides that a decision be made or that conditions be met before an authorization can be issued or a notification of refusal can be given. (see footnote 3). For example, decisions or conditions under the Canadian Environmental Assessment Act, 2012; Nunavut Land Claims Agreement; Yukon Environmental and Socio-Economic Assessment Act; and Species at Risk Act.

    When a time limit ceases to apply, the Minister will notify the applicant accordingly.

  6. When the applicable conditions for the resumption of an application have been met, the Minister will notify the applicant of the date on which the processing of the application is resumed.

The Minister of Fisheries and Oceans will be required to consider the factors set out under section 6 of the Fisheries Act (see footnote 4) when considering issuing a paragraph 35(2)(b) authorization. These factors provide direction to inform the Minister of Fisheries and Oceans in the course of decision making under the applicable provisions for the purpose of providing for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.

The Minister of Fisheries and Oceans must also consider the factors set out under section 6 of the Fisheries Act when recommending that a regulation be made in respect of section 35 of the Act. These factors have been and will continue to be considered throughout the course of the development of the proposed Regulations.

The proposed information and documentation that will be required to be submitted in an application for an authorization under paragraph 35(2)(b) of the Act are identified in section 3 and in the Schedule of the proposed Regulations and include the following categories of information:

  • contact information of the applicant or authorized representative;
  • a description of the proposed work, undertaking or activity;
  • a description of the anticipated phases of the proposed work, undertaking or activity and, if applicable, of the greater project of which it may be a part;
  • a description of the location of the proposed work, undertaking or activity and, if applicable, of the greater project of which it may be a part;
  • a description of the fish and fish habitat found at the location of the proposed work, undertaking or activity and within the area likely to be affected by the proposed work, undertaking or activity;
  • a description of the likely effects of the proposed work, undertaking or activity on fish that are part of a commercial, recreational or Aboriginal fishery or on fish that support such a fishery, and the likely effect on the habitat of those fish;
  • a description of the measures and standards that will be implemented to avoid or mitigate serious harm to fish;
  • a description of the monitoring measures that will be put in place;
  • a description of the contingency measures that will be implemented;
  • a quantitative description of the serious harm to fish that is likely to remain after the implementation of the measures and standards to avoid or mitigate serious harm to fish; and
  • an offsetting plan in respect of the serious harm to fish that is likely to remain after the implementation of the measures and standards to avoid or mitigate serious harm to fish.

Rationale

Canada is the steward of a significant amount of the world’s fresh and marine waters. Thriving aquatic ecosystems sustain

  • the integrity and biological diversity of Canada’s freshwater and marine ecosystems;
  • the way of life and culture for Aboriginal, rural, and coastal communities from coast to coast to coast;
  • the goods and services that many aquatic species provide to Canadians; and
  • the Aboriginal, recreational and commercial fisheries that provide jobs for more than 80 000 Canadians and contribute billions of dollars annually to the economy, including substantial exports of fish and seafood products.

However, Canadians also live and work in and around water, which means that there is a need to be mindful of the impacts of activities on the aquatic environment. This is accomplished, in part, through the effective management and regulation of works, undertakings and activities.

While the proposed Regulations are new regulations under the Fisheries Act, they do not pose any additional procedural or substantive requirements over and above those currently in place for persons seeking an authorization under the Act.

No feasible alternatives were identified that would provide the same degree of predictability for those seeking an authorization under the Act.

The socio-economic analysis conducted in support of this regulatory proposal did not identify any incremental impacts on stakeholders nor any impacts on competitiveness in the regional, national or international markets. (see footnote 5)

“One-for-One” Rule

The proposed Regulations do not impose any additional administrative burden on applicants seeking an authorization under paragraph 35(2)(b) of the Fisheries Act; therefore, the “One-for-One” Rule does not apply. Current information requirements identified in policy, guidance documents and the Fishery (General) Regulations that apply to applicants currently seeking an authorization under subsection 35(2)(b) of the Act are not different from the information requirements identified in the proposed Regulations.

Small business lens

The small business lens does not apply to the proposed Regulations as there are no costs to small business and small business would not be disproportionately affected by the proposed Regulations. (see footnote 6)

Consultation

Amendments to the Fisheries Act in 2012, made pursuant to the Jobs, Growth and Long-term Prosperity Act, were communicated to stakeholders at the time that Bill C-38 was considered by Parliament. It was articulated at that time that the legislative changes responded to the need to align regulations under the Fisheries Act to enable more predictable and timely reviews of major projects, reducing duplication, strengthening environmental protection, and enhancing consultations with Aboriginal peoples.

Fisheries and Oceans Canada has since communicated with stakeholders (through correspondence, the Fisheries and Oceans Canada Web site, and targeted presentations to stakeholders) regarding the legislative changes made to the Fisheries Act and of the need to create a regulatory regime that is consistent with those legislative changes. Fisheries and Oceans Canada is communicating with stakeholders to raise awareness of this regulatory proposal and to inform stakeholders of the comment period afforded through prepublication of the proposed Regulations in Part Ⅰ of the Canada Gazette. Potential revisions to the proposed Regulations will be made based on comments received during the 30-day comment period.

Implementation, enforcement and service standards

Fisheries and Oceans Canada reports to Parliament (see footnote 7) annually, notably through its report on the Administration and Enforcement of the Fish Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. This report includes reporting on authorizations issued under subsection 35(2) of the Act and on related enforcement activities. Future annual reports to Parliament could be used to report on Fisheries and Oceans Canada’s compliance with the time limits provided under the proposed Regulations.

Contacts

  • Ray O’Flaherty
    Legislation and Regulatory Affairs
    Fisheries and Oceans Canada
    200 Kent Street
    Ottawa, Ontario
    K1A 0E6
    Telephone: 613-993-0982
    Fax: 613-993-5204
    Email: FPR-RPP@dfo-mpo.gc.ca

  • Cathy Gee
    Habitat Program Policy Branch
    Fisheries and Oceans Canada
    200 Kent Street
    Ottawa, Ontario
    K1A 0E6
    Telephone: 613-990-8850
    Fax: 613-990-4810
    Email: FPR-RPP@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to paragraphs 43(1)(i.2) (see footnote a) and (i.4) (see footnote b) of the Fisheries Act (see footnote c), proposes to make the annexed Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Ray O’Flaherty, Legislation and Regulatory Affairs, Fisheries and Oceans Canada, 200 Kent Street, Ottawa, Ontario K1A 0E6 (tel.: 613-993-0982; fax: 613-993-5204; email: FPR-RPP@dfo-mpo.gc.ca).

Ottawa, March 28, 2013

JURICA ČAPKUN
Assistant Clerk of the Privy Council

APPLICATION FOR AUTHORIZATION UNDER PARAGRAPH 35(2)(B) OF THE FISHERIES ACT REGULATIONS

INTERPRETATION

Definitions

1. The following definitions apply in these Regulations.

“Act”
« Loi »

“Act” means the Fisheries Act.

“offsetting plan” « plan compensatoire »

“offsetting plan” means the plan that provides for the implementation of measures to offset the serious harm to fish referred to in section 12 of the schedule.

APPLICATION

Authorization required

2. These Regulations apply to a work, undertaking or activity the carrying on of which requires an authorization from the Minister of Fisheries and Oceans under paragraph 35(2)(b) of the Act.

AUTHORIZATION

APPLICATION FOR AUTHORIZATION

Required information and documentation

3. (1) An application for an authorization under paragraph 35(2)(b) of the Act must be submitted to the Minister in writing and must include

  • (a) the information and documentation referred to in the schedule;

  • (b) an irrevocable letter of credit issued by a recognized Canadian financial institution to cover the costs of implementing the offsetting plan submitted in support of the application; and

  • (c) written evidence that the applicant has obtained the required authorizations for accessing the lands or waters that they need to access to implement the offsetting plan. Those authorizations must extend to the Department of Fisheries and Oceans and anyone authorized to act on the Department’s behalf.

Exception

(2) The documentation referred to in paragraphs (1)(b) and (c) is not required if the applicant is Her Majesty in right of Canada, Her Majesty in right of a province or the government of a territory.

PROCESSING OF APPLICATION

Confirmation of receipt

4. The Minister must, on receipt of the application, send to the applicant a confirmation of receipt that indicates the date of receipt.

60-day time limit

5. (1) Subject to section 7, the Minister must, within a period of 60 days beginning on the date of receipt of the application, notify the applicant in writing as to whether the application is complete or incomplete. If the application is incomplete, the Minister must include in the notification a list of the required information or documentation that has not yet been provided.

Outstanding information or documentation

(2) The Minister must, on receipt of information or documentation listed in the notification, send to the applicant a confirmation of receipt that indicates the date of receipt. Subsection (1) applies again to the application, except that the period begins on the date indicated in the confirmation of receipt.

Application complete

6. Subject to section 7, the Minister must, within a period of 90 days beginning on the date of the notification that the application is complete, either issue an authorization or notify the applicant in writing of the refusal to do so.

Time limit ceases to apply

7. (1) The time limit referred to in subsection 5(1) or section 6 ceases to apply in the following circumstances:

  • (a) the applicant proposes changes to the proposed work, undertaking or activity or to the offsetting plan that require the submission of additional or amended information or documentation before an authorization can be issued or a notification of refusal can be given;

  • (b) the applicant requests in writing that the processing of the application be suspended;

  • (c) circumstances require that information or documentation other than those referred to in subsection 3(1) be obtained or that the information or documentation submitted by the applicant be amended before an authorization can be issued or a notification of refusal can be given;

  • (d) consultation is required before an authorization can be issued or a notification of refusal can be given; or

  • (e) an Act of Parliament, a regulation made under an Act of Parliament or a land claims agreement provides that a decision be made or that conditions be met before an authorization can be issued or a notification of refusal can be given.

Notification

(2) If a time limit ceases to apply under subsection (1), the Minister must notify the applicant in writing and, if the cessation is due to the circumstances set out in paragraph (1)(c), (d) or (e), inform the applicant of the circumstances and, if applicable, the information or documentation that must be submitted.

Resumption of processing of application

(3) The processing of the application is to resume as soon as

  • (a) the information or documentation referred to in paragraph (1)(a) or (c) has been obtained;

  • (b) if paragraph (1)(b) applies, the Minister receives a written request from the applicant for the resumption of the processing of the application;

  • (c) the consultation referred to in paragraph (1)(d) has been completed; or

  • (d) if paragraph (1)(e) applies, the decision has been made or the conditions have been met.

Time limit

(4) The Minister must notify the applicant in writing of the date on which the processing of their application is resumed. The time limit set out in subsection 5(1) or section 6, as the case may be, applies to the application, except that the 60-day or 90-day period begins on the date of resumption.

CONSEQUENTIAL AMENDMENTS TO THE FISHERY (GENERAL) REGULATIONS

Repeal — section 58

8. (1) Section 58 of the Fishery (General) Regulations (see footnote 8) is repealed.

Repeal — Schedules VI and VII

(2) Schedules VI and VII to the Regulations are repealed.

COMING INTO FORCE

S.C. 2012, c. 19

9. These Regulations come into force on the day on which subsection 149(2) of the Jobs, Growth and Long-term Prosperity Act comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

SCHEDULE
(Section 1 and subsection 3(1))

INFORMATION AND DOCUMENTATION TO BE PROVIDED

CONTACT INFORMATION

1. The applicant’s name, address, telephone number and, if applicable, the name, address and telephone number of their duly authorized representative.

DESCRIPTION OF PROPOSED WORK, UNDERTAKING OR ACTIVITY

2. A description of the proposed work, undertaking or activity and, if applicable, of the project of which the proposed work, undertaking or activity is a part, including the purpose of the proposed work, undertaking or activity and, if applicable, of the project, the associated infrastructure, any permanent or temporary structure involved and the construction methodologies, including building materials, machinery, explosives and other equipment.

3. If physical works are proposed, the project engineering specifications, scale drawings and dimensional drawings.

TIMELINE

4. A description of the anticipated phases, including the sequencing of the phases, of the proposed work, undertaking or activity and, if applicable, of the project of which the proposed work, undertaking or activity is a part and the schedule for carrying out the proposed work, undertaking or activity and, if applicable, the project.

LOCATION

5. A description of the location of the proposed work, undertaking or activity and, if applicable, of the location of the project of which the proposed work, undertaking or activity is a part, including

  • (a) geographic coordinates;

  • (b) a map identifying the location and boundaries at a scale appropriate to allow the determination of the overall location;

  • (c) a site plan indicating the size and spatial relationship of the planned facilities, infrastructure and other components and of any existing structures, landmarks, water sources or water bodies and other geographic features; and

  • (d) the name of the watershed and water source or water body that are likely to be affected and the geographic coordinates of the water source or water body.

6. The name of the community nearest to the location and the name of the county, district or regional municipality and the province in which the proposed work, undertaking or activity will be carried on.

DESCRIPTION OF FISH AND FISH HABITAT (AQUATIC ENVIRONMENT)

7. A description of the fish and fish habitat found at the location of the proposed work, undertaking or activity and within the area likely to be affected by the proposed work, undertaking or activity, including

  • (a) the type of water source or water body;

  • (b) the characteristics of the water source or water body and how those characteristics support the fish habitat;

  • (c) the fish species that are present, the life stages of the individuals of those species and an estimate of the abundance of those species; and

  • (d) a description of how the information provided under paragraphs (a) to (c) was derived, including the sampling techniques and estimation methodologies used.

DESCRIPTION OF EFFECTS ON FISH AND FISH HABITAT

8. (1) A description of the likely effects of the proposed work, undertaking or activity on fish that are part of a commercial, recreational or Aboriginal fishery or on fish that support such a fishery, at the location of the proposed work, undertaking or activity and elsewhere, and the likely effect on the habitat of those fish. The description must include the following information:

  • (a) the fish species that are likely to be affected and the life stages of the individuals of those species;

  • (b) an estimate of the number of fish that are likely to be affected;

  • (c) the amount and type of fish habitat that are likely to be affected;

  • (d) the probability, magnitude and duration of the likely effects on fish and fish habitat; and

  • (e) an explanation of how the information provided under paragraphs (a) to (d) was derived, including the estimation methodologies used.

(2) A description of how the effects referred to in subsection (1) would likely result in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery or to fish that support such a fishery and a quantification of the serious harm to fish.

MEASURES AND STANDARDS TO AVOID OR MITIGATE SERIOUS HARM TO FISH

9. A description of the measures and standards that will be implemented to avoid or mitigate the serious harm referred to in subsection 8(2), including an analysis of the expected effectiveness of those measures and standards.

10. A description of the monitoring measures that will be put in place to assess the effectiveness of the measures and standards referred to in section 9 in meeting their objectives.

11. A description of the contingency measures that will be implemented if the measures and standards referred to in section 9 do not meet their objectives.

RESIDUAL SERIOUS HARM TO FISH AFTER IMPLEMENTATION OF AVOIDANCE AND MITIGATION MEASURES AND STANDARDS

12. A quantitative description of the serious harm to fish that is likely to remain after the measures and standards referred to in section 9 have been implemented.

OFFSETTING PLAN

13. An offsetting plan in respect of the serious harm to fish referred to in section 12, including

  • (a) a description of the measures that will be implemented to offset the serious harm to fish;

  • (b) an analysis of how those measures will offset the serious harm to fish;

  • (c) a description of the measures and standards that will be put in place during the implementation of the offsetting plan to avoid or mitigate any adverse effects on fish and fish habitat that could result from the offsetting plan’s implementation and an analysis of how those measures will avoid or mitigate those adverse effects;

  • (d) a description of the monitoring measures that will be put in place to assess the effectiveness of the offsetting measures referred to in paragraph (a);

  • (e) a description of the timeline for the implementation of the offsetting plan;

  • (f) a description of the contingency measures and associated monitoring that will be put into place if the measures referred to in paragraph (a) do not achieve their objectives; and

  • (g) an estimate of the cost of implementing each element of the offsetting plan.

[15-1-o]

  • Footnote 1
    Subsection 142(2) of the Jobs, Growth and Long-term Prosperity Act amended the Fisheries Act to introduce a new subsection 35(1) Fisheries Act prohibition. This prohibition is not yet in force. When brought into force, the amended subsection 35(1) of the Fisheries Act will state that “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 proposed Regulations will apply once this provision is brought into force. Authorizations issued under paragraph 35(2)(b) of the Fisheries Act will be issued in relation to this new subsection 35(1) Fisheries Act prohibition.

  • Footnote 2
    For example, where information resulting from a provincial regulatory approval process has been received by the Department of Fisheries and Oceans that requires other information or documents to be obtained, or amendments to information or documents already submitted as part of the application for authorization under paragraph 35(2)(b) of the Act.

  • Footnote 3
    For example, decisions or conditions under the Canadian Environmental Assessment Act, 2012; Nunavut Land Claims Agreement; Yukon Environmental and Socio-Economic Assessment Act; and Species at Risk Act.

  • Footnote 4
    Section 135 of the Jobs, Growth and Long-term Prosperity Act amended the Fisheries Act to introduce a new section 6 to the Fisheries Act. Section 6 will be brought into force at the same time that the new subsection 35(1) of the Fisheries Act will be brought into force. When brought into force, section 6 of the Fisheries Act will provide the following:

    6. Before recommending to the Governor in Council that a regulation be made in respect of section 35 or under paragraph 37(3)(c) or 43(1)(i.01) or subsection 43(5), and before exercising any power under subsection 20(2) or (3) or 21(1), paragraph 35(2)(b) or (c) or subsection 35(3), or under subsection 37(2) with regard to an offence under subsection 40(1) or with regard to harm to fish, the Minister shall consider the following factors:

    • (a) the contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries;
    • (b) fisheries management objectives;
    • (c) whether there are measures and standards to avoid, mitigate or offset serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or that support such a fishery; and
    • (d) the public interest. 6.1 The purpose of section 6, and of the provisions set out in that section, is to provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.

    6.1 The purpose of section 6, and of the provisions set out in that section, is to provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.

  • Footnote 5
    Fisheries and Oceans Canada, Economic Analysis and Statistics Directorate (February 2013). Socio-Economic Analysis: Proposed Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations.

  • Footnote 6
    Ibid.

  • Footnote 7
    www.dfo-mpo.gc.ca/habitat/role/141/reports-rapports/index-eng.htm

  • Footnote a
    S.C. 2012, c. 19, s. 149(2)

  • Footnote b
    S.C. 2012, c. 19, s. 149(2)

  • Footnote c
    R.S., c. F-14

  • Footnote 8
    SOR/93-53