Fisheries Act – Deleterious Substances

 

The two most often used sections of the Fisheries Act are section 35, which prohibits the harmful alteration of fish habitat, and section 36, which makes it illegal for any one to introduce a “deleterious substance” into fish-bearing waters.  A deleterious substance is one that will harm fish or fish habitat.  Unlike other sections of the Fisheries Act, section 36 is administered by Environment Canada.

Section 36 states:

“No person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place … [where it] … may enter such water…”

 

Regulations

However, this is not an absolute rule.  The federal Cabinet can pass regulations allowing the introduction of particular harmful substances into fish habitat, and has done so. 

·         The Pulp and Paper Effluent Regulation (PPER) defines as deleterious substances and authorizes maximum levels of deposit for these substances in pulp and paper mill effluent.  The Regulation also requires monitoring of the effluent.  (Note: Port Alberni Pulp Mill has a regulation of its own.)

·         The Metal Mine Liquid Effluent Regulation (MMLER) applies to new, expanded and reopened mines, other than gold mines.  This regulation defines as deleterious substances certain metals; total suspended matter and radium, and established the maximum levels for these parameters in effluents.  The regulation allows (with ministerial approval and an environmental assessment under CEAA) mining operations to designate tailings impoundment areas (artificial pond or natural lake) to dispose of untreated tailings.  The regulation has been effect since 1977, and generally does not reflect current treatment technology, although it may soon be revised. 

·         The Petroleum Refinery Liquid Effluent Regulation applies to facilities for the processing of crude oil.  It sets average authorized levels for the deposit of various deleterious substances, including oils and grease, phenols, sulfide, ammonia nitrate and other substances harmful to fish.  The operator of the refinery is required to report to the Minister on how much of these substances were actually deposited on a regular basis.

·         Other Regulations governing the deposit of particular types of deleterious substances include the Chlor-Alkali Mercury Liquid Effluent Regulation, the Meat and Poultry Plants Liquid Effluent Regulation, and the Potato Processing Plant Liquid Effluent Regulation.

Detecting Pollution

Fisheries Inspectors or Fisheries Guardians appointed under the Fisheries Act visit fish habitat and will attempt to detect violations of the Fisheries Act.  However, spills and dumping of liquid waste can sometimes be hard to detect.  Complaints by members of the public often alerts Environment Canada to violations of these sections of the Fisheries Act. 

Under section 38 of the Fisheries Act anyone who is responsible for a deleterious substance that is spilled is required to report the spill and take all reasonable measures to prevent or mitigate any negative impact on fish or fish habitat. 

Planning and Prevention

The Fisheries Act does not have a lot of preventative powers.  The Minister can require a person engaged in an activity, or proposing an activity, likely to result in the deposit of a deleterious substance into fish habitat to carry out planning to reduce or eliminate that risk.  With that one exception, however, Environment Canada can only take action after damage has occurred. 

Once a spill has occurred, rehabilitation costs may be high, and it may be difficult or impossible to fully restore fish productivity, particularly in the short term. 

 

Related Guide Pages:

·         Fisheries Act

·         Fisheries Act – Harmful Alteration of Fish Habitat

·         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’s publication “Complying with the Fisheries Act”.

·         Environment Canada’s Fisheries Act Compliance and Enforcement Policy.