Fisheries Act – Harmful Alteration of Fish Habitat

Section 35 of Canada’s Fisheries Act is one of the key legal tools for protecting fish habitat in Canada.  Fisheries and Oceans Canada administers this section of the Fisheries Act. 

Under the Act:

·         no person shall do any work that results in the Harmful Alteration, Disruption or Destruction of fisheries habitat (known as HADD for short); unless

·         that person has authorization from the federal Minister of Fisheries and Oceans to do such work.

Section 35 is designed to prevent physical damage to fish habitat including spawning, rearing, food supply and migration area.  Fish habitat is defined as including streamside vegetation, giving Fisheries and Oceans Canada some powers to affect what goes on around a fish bearing stream or waterbody. 

The definition of what should or should not be considered a “HADD” is still imprecise, and this makes it difficult to clearly define what Fisheries and Oceans Canada’s role will be in projects that may affect fish habitat.  However, watershed protection advocates should feel free to push for a reasonably broad definition of the federal powers. 

How Fisheries and Oceans Canada Issues Authorization

When a development may have an impact on fish habitat, the developer should speak to Fisheries and Oceans officials.  Fisheries and Oceans will attempt to address the potential impact on fisheries through a series of steps:

·         Examine with the developer whether the project can be relocated or redesigned to eliminate a negative impact on fish habitat;

·         Examine with the developer whether mitigation measures or other conditions could eliminate the impact on the fish habitat, in which case a “letter of advice” will be issued outlining what steps should be taken to avoid a HADD.  It is rare that Fisheries and Oceans checks to see whether such conditions are actually complied with;

·         If neither of the above options eliminates the HADD, authorization under s. 35 will be required. 

If s. 35 authorization is required, Fisheries and Oceans Canada generally strives to ensure "no net loss" of habitat.  This allows Fisheries and Oceans Canada to fulfill the dual intents of the legislation: prohibiting destruction of habitat while allowing the Minister to authorize habitat destruction.  The Department’s Policy for the Management of Fish Habitat (1986) states:

Under this principle, the Department will strive to balance unavoidable habitat losses with habitat replacement on a project-by-project basis so that further reductions to Canada’s fisheries resources due to habitat loss or damage may be prevented.

Fisheries and Oceans Canada can – and often does – require a person who wishes to cause a HADD to develop plans on how HADD can be reduced and/or how fish habitat can be created or enhanced to “replace” the negatively affected fish habitat.  

The authorization, if granted, can include conditions designed to minimize the impact of the HADD. 

A few other notes

In many cases British Columbia’s Ministries of Sustainable Resource Management and/or Water, Land and Air Protection will work with Fisheries and Oceans Canada to evaluate the impact of a proposed development on fish habitat, often referring decisions regarding fish habitat to one another.  This avoids duplication between the different government agencies (as provincial environmental legislation also places restrictions on changes to aquatic habitat).  The Canada-BC Agreement on the Management of Pacific Salmon Fisheries Issues provides some basis for understanding how this cooperation occurs. 

Any activity with the potential to cause significant environmental harm that involves a decision by the federal government can give rise to an environmental assessment under the Canadian Environmental Assessment Act.  As a result, an environmental assessment will sometimes be required before Fisheries and Oceans Canada can issue an authorization under the HADD provisions of the Fisheries Act. 

Shortcomings of the Fisheries Act

While a powerful Act, the Fisheries Act does have a number of limitations:

·         Fish habitat that is not part of a fishery is not protected by law.  In order to be protected the fish that live in the habitat must have a commercial or sporting value.

·         As a general rule, the Fisheries Act does not require proactive land use planning.  The Minister may require planning specifically related to avoiding the introduction of harmful substances into, or the HADD of, fish habitat, but only after the threat is identified and the planning is limited to those issues. 

·         There is little DFO staff time to examine triggers of the Canadian Environmental Assessment Act that occur under the Fisheries Act.

·         The Fisheries Act assumes that people are law-abiding.  If a person is uncooperative, DFO is obliged to wait until habitat damage occurs before taking action to stop the offending activity and lay charges. 

Related Guide Pages:

·         Fisheries Act

·         Fisheries Act – Deleterious Substances

·         Canada – BC Agreement on the Management of Pacific Salmon Issues

·         Fish and Fish Habitat

 

For more information about the Fisheries Act

·         Electronic version of the Fisheries Act.

·         Fisheries and Oceans Canada Pacific Region web-site and their publication “Complying with the Fisheries Act”.

·         What you Should Know about Obtaining a Section 35 Fisheries Act Authorization – A Fact Sheet put out by the Central and Arctic Region of Fisheries and Oceans Canada.