Fish Protection Act

The British Columbia government introduced the Fish Protection Act in 1997. The Act includes a number of important provisions that prohibit dams, designate sensitive streams and limit Water Act approvals and licenses on sensitive streams, allow development of legally binding recovery plans for sensitive streams, and allow the province to require local governments take actions to protect fish habitat. A number of important provisions of the Fish Protection Act have not yet been brought into force (it would require an order of the provincial cabinet to make them law).  The Act is administered by the BC Ministry of Water, Land and Air Protection.

Restrictions on Water Act licenses and approvals on designated sensitive streams

The Fish Protection Act allows cabinet (the Lieutenant Governor in Council) to pass regulations that designate streams as “sensitive streams.” Once a stream is designated as a sensitive stream, certain restrictions apply to government officials who are issuing “licenses or approvals” under the Water Act. (The Water Act requires licences for the use of water or approvals for “changes in and about a stream” not authorized by a licence or the regulations).  

Under the Fish Protection Act, new licenses or approvals or amendments to old ones must be consistent with the Sensitive Streams Designation and Licensing Regulation made under the Fish Protection Act.  Water Act officials can only issue or amend licenses or approvals if they are satisfied that either

·         there are no significant adverse impacts on the protected fish population

·         that mitigation measures included in the approval or license will avoid any significant impacts, or

·         if mitigation can not fully address the problem, compensation measures elsewhere will fully compensate for adverse impacts.

Potentially these provisions are quite powerful, because they place clear duties on government officials to protect fish habitat.  For more information, please see the Guide page about the Sensitive Streams Designation and Licensing Regulation.

Legally binding Recovery Plans for Sensitive Streams.

The Act allows enables the development of a recovery plan for any stream that has been designated as a sensitive stream.  Recovery plans can include measures to provide sufficient water flow, measures to be undertaken by the government to protect fish or fish habitat, and recommendations on cooperative agreements to protect fish and their habitat.  Public participation in development of a recovery plan is mandatory.

To become enforceable, cabinet must approve a recovery plan and pass regulations setting out how it will be implemented.  The regulations passed by cabinet can potentially restrict the exercise of powers under most provincial laws.  This is a significant power. It allows cabinet to pass regulations that restrict municipal zoning powers under the Local Government Act, government pollution permitting powers under the Waste Management Act, or mine permitting powers under the Mines Act. 

As of March 2003, only one recovery plan has been successfully negotiated, and funding for its implementation has yet been secured. No recovery plans have been approved by cabinet. 

Provincial Directives to Local Governments on Streamside Protection

The Act allows cabinet to pass streamside protection directives to protect riparian areas from residential, commercial or industrial development.  Local governments are required to either

·         Incorporate required riparian area protections into their zoning and rural land use bylaws under the Local Government Act; or

·         Ensure that zoning bylaws, rural land use bylaws, development permits, farm bylaws, run-off control bylaws, landscaping bylaws or other Local Government Act development control powers, provide a level of protection that is, in the opinion of the local government, at least comparable to that required by the streamside protection directive. 

These provisions are problematic in that the streamside protection directives must be tied to zoning or rural land use bylaws, and local governments are allowed to substitute their definition of what provides equivalent protection.  In addition, the current directives only apply to certain areas of the province.  Nevertheless, the current streamside protection directives are a significant step toward making sure that local governments protect fish habitat in their regulation of land use.

Prohibition on dams on protected rivers

The Act prohibits new dams on 15 rivers, and allows regulations to protect additional rivers.  When the Act was passed there were no proposals to build dams on any of these rivers.  The main effect of the section is to require debate in the legislature if a future government wants to allow a dam on any river designated by the Act or regulation. 

Important Sections not yet in force

As noted, the Fish Protection Act includes many important provisions that have not yet been brought into force.  These laws could be brought into force by order of cabinet, but as of March 2003, there are no plans to bring them into force.  The powers that have not been brought into force include:

·         Powers to consider fish in issuing Water Act licenses and approvals.  Section 5 includes powers for government water licensing officials to take fish and fish habitat protection into consideration when issuing water licenses and permits under the Water Act, require stream-flow monitoring by holders of Water Act licenses, and require information on stream habitat from applicants for licenses;

·         Powers to issue water licenses to community groups for the purposes of protecting in-stream flow. If it comes into force, section 8 will allow government to issue water licenses to community interest organizations for the purpose of maintaining of water in a stream for fish or fish habitat.

·         Powers to limit water license diversions during drought. Section 9, if it comes into force, will give powers for the minister to make orders that limit rights to divert water under the Water Act if a drought lowers water levels to a level where survival of a population of fish in the stream may be threatened. 

Related Guide Pages:

·         Local Government Act

·         Riparian Areas

·         Rivers, Streams and Lakes

·         Sensitive Streams Designation and Licensing Regulation

·         Streamside protection directives (the Streamside Protection Regulation)

·         Water Act

For more information about the Fish Protection Act::

·         Fish Protection Act

·         Ministry of Water, Land and Air Protection Fish Protection Act website

·         West Coast Environmental Law’s Brief on Bill 25 – Fish Protection Act, written when the Fish Protection Act was first introduced.