Vol. 147, No. 23 — November 6, 2013

Registration

SOR/2013-191 October 25, 2013

FISHERIES ACT

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

P.C. 2013-1129 October 24, 2013

His Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to paragraphs 43(1)(i.2) (see footnote a) and (i.4) (see footnote b) of the Fisheries Act (see footnote c), makes the annexed Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations.

APPLICATIONS 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 Schedule 1.

APPLICATION

Authorization required

2. These Regulations apply to applications for authorization under paragraph 35(2)(b) of the Act that are made to the Minister of Fisheries and Oceans.

AUTHORIZATION

APPLICATION FOR AUTHORIZATION

Required information and documentation

3. (1) Subject to section 4, an application for authorization under paragraph 35(2)(b) of the Act must be submitted to the Minister in writing and must include

Exception

(2) Paragraph (1)(b) does not apply if the applicant is Her Majesty in right of Canada, Her Majesty in right of a province or the government of a territory.

APPLICATION FOR AUTHORIZATION — EMERGENCY CIRCUMSTANCES

Required information — emergency circumstances

4. (1) Only the information listed in Schedule 2 must be submitted to the Minister in support of an application in respect of a work, undertaking or activity that needs to be carried on without delay in response to

Non-application of sections 5 to 8

(2) Sections 5 to 8 do not apply to an application referred to in subsection (1).

PROCESSING OF APPLICATION

Confirmation of receipt

5. Subject to section 4, the Minister must, on receipt of an application, send to the applicant a confirmation of receipt that indicates the date of receipt.

60-day time limit

6. (1) Subject to sections 4 and 8, 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 information or documentation that is still to be provided.

Outstanding information or documentation

(2) The Minister must, on receipt of any 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

7. Subject to sections 4 and 8, 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

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

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 a circumstance set out in paragraph (1)(c), (d) or (e), inform the applicant of the circumstance 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

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 6(1) or section 7, 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

9. (1) Section 58 of the Fishery (General) Regulations (see footnote 1) 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

10. These Regulations come into force on the day on which subsection 149(2) of the Jobs, Growth and Long-term Prosperity Act, chapter 19 of the Statutes of Canada, 2012, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

SCHEDULE 1
(Section 1 and paragraph 3(1)(a))

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, building materials, explosives, machinery and other equipment that will be used.

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 on 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

6. The name of the community nearest to the location and the name of the county, district or region 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

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, and the likely effect on the habitat of those fish. The description must include the following information:

(2) A description of how the effects referred to in subsection (1) are likely to 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 description 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 to fish that is 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.

11. A description of the contingency measures that will be implemented if the measures and standards referred to in section 9 are not successful in avoiding or mitigating the serious harm to fish that is referred to in subsection 8(2).

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

12. A quantitative description of the anticipated serious harm to fish that is likely to result from the work, undertaking or activity despite the implementation of the measures and standards referred to in section 9.

OFFSETTING PLAN

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

SCHEDULE 2
(Subsection 4(1))

EMERGENCY CIRCUMSTANCES — INFORMATION 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.

NATURE OF THE MATTER OF NATIONAL SECURITY, NATIONAL EMERGENCY OR EMERGENCY

2. A description of the nature of the matter of national security, national emergency or emergency and the reasons why the proposed work, undertaking or activity needs to be carried on without delay.

PROPOSED WORK, UNDERTAKING OR ACTIVITY

3. A description of the proposed work, undertaking or activity and how it relates to the matter of national security, national emergency or emergency.

TIMELINE

4. The timeline for carrying on the proposed work, undertaking or activity.

LOCATION

5. A description of the location of the proposed work, undertaking or activity, including its geographic coordinates and the name of any water sources and water bodies that are likely to be affected.

SERIOUS HARM

6. A description of the serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that is likely to result from the proposed work, undertaking or activity.

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 Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations (the Regulations) achieve two things:

These measures will 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, along with Schedules VI and VII to those Regulations, will be repealed upon the coming into force of these Regulations. (see footnote 3) This section and schedules previously established the forms by which an application for an authorization had to be made and according to which an authorization under subsection 35(2) of the Fisheries Act was issued. The Applications for Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations will provide the process to follow when submitting an application for authorization under paragraph 35(2)(b) of the Fisheries Act.

Description

When an application for an authorization under paragraph 35(2)(b) of the Fisheries Act is made to the Minister of Fisheries and Oceans, the following general process set out in the Regulations applies to non-emergency circumstances:

  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 Regulations, within 60 days beginning on the date of receipt of the application, the Minister notifies the applicant if the application is complete or incomplete. When the application is incomplete, the notification will indicate the information or documentation that is still to be 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 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 those circumstances set out in the Regulations, including
    • (a) where the applicant proposes changes to the 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) 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 Regulations be obtained or that the information or documentation submitted by the applicant be amended; (see footnote 4)
    • (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, 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. (see footnote 5)
    • 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 information and documentation required to be submitted in an application for an authorization under paragraph 35(2)(b) of the Act, other than an application submitted in respect of a proposed work, undertaking or activity that is to be carried on in response to emergency circumstances, are identified in section 3 and in Schedule 1 of the Regulations and include the following:

Where an application is submitted in respect of a proposed work, undertaking or activity that needs to be carried on without delay in response to the emergency circumstances set out in the Regulations (i.e. matter of national security; national emergency for which special temporary measures are taken under the Emergencies Act; and emergencies that pose a risk to public health or safety or to the environment or property), the information required to be submitted in support of such an application is identified in Schedule 2 of the Regulations and include the following:

The Minister of Fisheries and Oceans will be required to consider the factors set out under section 6 of the Fisheries Act (see footnote 6) when considering whether to issue a paragraph 35(2)(b) authorization. These factors provide direction to 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 considered the factors set out under section 6 of the Fisheries Act before recommending to the Governor in Council that these Regulations be made. These Regulations were developed to support the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.

Rationale

Canada is the steward of a significant amount of the world’s fresh and marine waters. 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 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 these Regulations did not identify any incremental impacts on stakeholders nor any impacts on competitiveness in the regional, national or international markets. (see footnote 7)

“One-for-One” Rule

The 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. Information requirements identified in policy, guidance documents and the Fishery (General) Regulations that applied previously to applicants seeking an authorization under the Act were not different from the information requirements identified in the Regulations.

Small business lens

The small business lens does not apply to the Regulations as there are no costs to small business and small business would not be disproportionately affected by the Regulations. (see footnote 8)

Consultation

Comments were received from 40 individuals and groups, including environmental consultants, natural resource and infrastructure companies and industry associations, conservation organizations, provinces and Aboriginal groups during the 30-day comment period following the prepublication of the proposed Regulations in the Canada Gazette, Part I, on April 13, 2013. The following summarizes the key comments received.

Concerns were raised by industry groups that the Regulations do not take into consideration various habitat banking schemes. The Department is exploring opportunities for habitat banking schemes and will work with stakeholders to identify an appropriate scheme.

Industry groups indicated that a letter of credit should not be required in all applications but only in cases where there is a risk of the applicant not implementing the offsetting plan. However, in order to secure payment of the cost associated with implementing the offsetting plan in lieu of the proponent, it was determined that the requirement for a letter of credit in all applications would remain in the Regulations, except applications in relation to emergency situations, and in cases where the applicant is the federal government or a provincial or territorial government.

Industry groups indicated that providing written evidence of authorization to access lands and waters for the purpose of implementing the offsetting plan at the application submission stage would likely not be possible as provinces and other land owners may not provide such authorization until the applicant has received a Fisheries Act authorization. As a result, the Regulations will not require that this be provided with the application. Instead, the Regulations have been revised to require the applicant to indicate how such authorization would be obtained. An applicant may, as a condition of an authorization received, be required to provide evidence that the land-access authorization has been obtained prior to implementing the offsetting plan.

Comments were received from a broad range of parties indicating the view that the level of detail of some of the information requirements was more than what is required to support the Minister’s decision under paragraph 35(2)(b) of the Fisheries Act and would require significant work and time to collect the information. It was determined that these items were being interpreted differently than intended. As a result, some wording changes in sections 7, 8 and 12 of Schedule 1 have been made to clarify what information is intended to be sought. In addition, many parties indicated that the information requirements should be scalable based upon the type and size of proposed work, undertaking or activity. The Department believes that the information requirements in Schedule 1 are scalable to size and type of work, undertaking or activity.

Aboriginal groups suggested that information should be required from the applicant about how the impacts of the serious harm to fish resulting from proposed work, undertakings or activities may affect future fisheries activities of Aboriginal groups. The Regulations do not explicitly require this analysis from the applicant. However, information on fish, fish habitat and the likely effects on fish and fish habitat, including a description of serious harm to fish, from the proposed work, undertaking or activity are required to be submitted with an application for an authorization. This information, along with other relevant information, will be used to assist the Minister in considering the factors identified in section 6 of the Fisheries Act (which include the contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries and fisheries management objectives). These factors will be taken into account in relation to the purpose identified under section 6.1, i.e. to provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries. In doing so, potential impacts of proposed work, undertakings or activities on fisheries activities of Aboriginal groups will be considered and subject to consultation, if appropriate.

Suggestions were also made to include the requirement to provide an analysis of the contribution of relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries, impacts on fisheries and their productivity and how the serious harm to fish may affect meeting fisheries management objectives. However, it was determined that this may not be possible for applicants to provide this in all cases. The Department will consider impacts on fisheries management objectives when considering the section 6 factors.

Aboriginal groups also suggested that the Regulations should include a notification process which would require the Minister to notify Aboriginal groups potentially affected by the proposed work, undertaking or activity of the application proposal received and to provide adequate time for Aboriginal groups to respond to such notifications. It was determined that it was not necessary to include such a notification process in the Regulations as such notifications can be given to Aboriginal groups independently from the process established under the Regulations. Moreover, where consultation is required, the Regulations provide the ability for the time limits to cease to apply in order to carry out consultation activities, thereby providing the time required to address this responsibility.

Industry groups suggested the time limits established in the Regulations were too long. However, the time limits are based upon an estimation of timeframes required to undertake these steps in light of expected workload and process requirements.

The issue of managing applications for authorizations under emergency situations was also raised by stakeholders. The process and information requirements that were initially set out in the proposed Regulations will not apply to applications for authorizations for work, undertakings or activities that are likely to result in serious harm to fish that need to be carried on in the emergency circumstances identified in the Regulations. Responding to stakeholders’ comments, a separate process was established under the Regulations to review applications for proposed work, undertakings, or activities that need to be carried on in response to specific emergency situations, as set out in the Regulations, in order to provide for timelier reviews of such applications in light of these emergency circumstances. A second Schedule of information requirements has been included in the Regulations that would provide sufficient information for the Minister to determine whether to issue an authorization for the carrying on of work, undertakings or activities in these emergency circumstances. This approach is the same as that applied in emergency situations under the previous application scheme.

It was suggested that paragraph 8(1)(a) of the Regulations, which states that the time limits cease to apply when the applicant proposes changes to the work, undertaking or activity or to the offsetting plan, be revised such that the paragraph would only apply when there are significant changes to proposed work, undertakings or activities. This is the intent. However, the determination of what is a significant change may vary in different situations. Further clarification will be provided in guidance.

There was concern expressed with respect to the cessation of the time limits provided under paragraph 8(1)(c) of the Regulations. Suggestions were made that this paragraph be removed or that clarity be provided as to when this provision may apply. No changes were made to this paragraph, as paragraph 8(1)(c) is meant to allow for the time limits to cease to apply under a range of circumstances in order to ensure that the Minister receives the information necessary before making a decision that is in the best interest of Canadians. Further clarification will be provided in guidance.

Comments were received regarding an appeal process where an application for an authorization has been refused. A review process relating to authorizations for the harmful alteration, disruption or destruction of fish habitat is currently identified in the Policy for the Management of Fish Habitat. This policy is currently under review. Consideration will be given to this item as the Department moves forward with the implementation of the new general prohibition against serious harm to fish under subsection 35(1) of the Fisheries Act.

In summary, the following revisions have been made to the Regulations:

Implementation, enforcement and service standards

Fisheries and Oceans Canada reports to Parliament (see footnote 9) 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 will be used to report on Fisheries and Oceans Canada’s compliance with the time limits provided under the 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