Compliance and enforcement policy for habitat and pollution provisions of Fisheries Act: chapter 4

Measures to Promote Compliance

The Department of Fisheries and Oceans and the Department of the Environment believe that promotion of compliance through information, education and other means is an effective tool in securing conformity with the law. Many of the situations that threaten fish and fish habitat can be avoided by foresight and good planning. It is the responsibility of the proponent to obtain information regarding any proposed activity he or she undertakes which could have an impact on fish or fish habitat.

Accordingly, the departments will undertake public education and communication measures. Consultation will take place with other federal departments and agencies, provinces, the territories, municipal governments, industry, environmental groups, Aboriginal groups and other interested parties, so that information and concerns can be exchanged about the habitat protection and pollution prevention provisions, their accompanying regulations, as well as compliance promotion and enforcement practices

Departmental officials will promote public awareness of this information using a combination of communication techniques, through activities such as:

• interacting formally and informally with industry;
• making presentations to various community groups and schools;
• preparing and distributing habitat protection and pollution prevention guidelines and codes of practice and policies;
• preparing and presenting educational and training materials, including audio-visual materials and films;
• encouraging community projects aimed at habitat protection and improvement;
• promoting stewardship, partnerships, and planning; and
• providing Internet and web site information.

Review of Works or Undertakings/Authorizations

The habitat protection and pollution prevention provisions of the Fisheries Act provide authority to issue "authorizations" for activities that would otherwise contravene the requirements of the legislation. In the case of the pollution prevention provision of the Act (section 36), authorizations for deposit of deleterious substances are issued only by or pursuant to regulations. Under subsection 35(2) of the Act, authorizations may be issued to allow for the harmful alteration, disruption or destruction of fish habitat.

Any person who proposes to carry out any work or undertaking that is likely to result in the harmful alteration, disruption or destruction of fish habitat and who wishes to have the work authorized by the Minister of Fisheries and Oceans under subsection 35(2) of the Fisheries Act, must first apply to the Minister. The form set out in Schedule VI of the Fishery (General) Regulations must be used for the purposes of requesting an authorization.

An authorization when given under subsection 35(2) of the Fisheries Act must be in the form set out in Schedule VII of the Fishery (General) Regulations.

Anyone who harmfully alters, disrupts or destroys fish habitat without an authorization is in contravention of the Fisheries Act. Anyone who conducts activities inconsistent with the conditions of an authorization is also in contravention of the Fisheries Act.

Education and Information

The Department of Fisheries and Oceans and the Department of the Environment will make available various materials related to enforcement and compliance, including:

• the Fisheries Act and the accompanying regulations ; the Fisheries Act, including the pollution prevention and habitat protection provisions, is located on the Internet at: Regulations and Legislation
• regulations pursuant to the Fisheries Act relevant to pollution prevention.
• the Policy for the Management of Fish Habitat, located on the Internet at: Fisheries and Oceans Canada
• the Habitat Conservation and Protection Guidelines;
• the Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat, located at the Internet address for the Fisheries Act;
• technical guidance documentation outlining methodologies on how to meet regulatory monitoring requirements, including Environmental Effects Monitoring (EEM);
• the Compliance and Enforcement Policy
• the Annual Reports to Parliament on the Administration and Enforcement of the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act, located at the Internet address for the Fisheries Act;
• information on completed court proceedings related to prosecutions and civil actions
• habitat inventory and planning documents, and
• fact sheets, handbooks, pamphlets and reports on subjects relevant to the habitat protection and pollution prevention provisions and their accompanying regulations.

Promotion of Technology Development and Evaluation

The Department of Fisheries and Oceans and the Department of the Environment will continue to co-operate with other federal departments and agencies, industry, and provincial and territorial governments to promote the development of new technology in Canada for the protection of fish habitat from physical impacts and for pollution prevention and control. The departments will also promote the evaluation of such technology used elsewhere, to facilitate its application to Canadian conditions.

Technology Transfer

The departments will continue to provide to other federal departments, other governments, other bodies and the private sector, technical information on:

• methodologies for fish habitat assessment, analysis, and effectiveness monitoring;
• fish habitat mitigation and compensation techniques;
• fish habitat restoration and development techniques;
• pollution control and abatement; and
• measures to prevent creation of pollution, and releases of deleterious substances into the environment.

The transfer of technology will be carried out through a number of means, including:

• publications, such as scientific and technical reports, and newsletters intended to promote exchange of information between governments and industry nationwide;
• seminars and conferences;
• training materials;
• joint government/private sector research projects;
• sale or licence, to the private sector, of technology developed by the federal government; and
• Internet sites.

Consultation on Regulation Development and Amendment

The federal government believes that more effective regulations are achieved through public consultation on regulatory proposals, particularly with individuals, companies and government agencies who will be subject to the legal requirements. The government also recognizes that compliance with regulations is significantly improved when there has been involvement by those parties in their development or amendment. Accordingly, the Department of Fisheries and Oceans and the Department of the Environment will consult with affected parties during regulation development and amendment.

Guidelines and Codes of Practice

The Department of Fisheries and Oceans will develop guidelines and codes of practice for the habitat protection provisions of the Fisheries Act using, where appropriate, a process of consultation with interested parties. Guidelines and codes of practice are designed to:

• provide general information respecting project design, including the construction, operation and abandonment phases of proposed activities or projects. Proponents will be advised in the guidelines and codes to seek specific advice with respect to specific projects; and
• assist the departments in reviewing specific plans for activities or projects with the potential to adversely affect fish or fish habitat.

Current guidelines and codes of practice are available at the DFO and DOE regional offices.

Promotion of Environmental Audits

Environmental audits are internal evaluations by companies and government agencies, to verify their compliance with legal requirements as well as their own internal policies and standards. They are conducted by companies, government agencies and others on a voluntary basis, and are carried out by either outside consultants or employees of the company or facility from outside the work unit being audited. Audits can identify compliance problems, weaknesses in management systems, or areas of risk. The findings are documented in a written report.

The Department of Fisheries and Oceans and the Department of the Environment recognize the power and effectiveness of environmental audits as a management tool for companies and government agencies, and promote their use by industry and others.

To encourage the practice of environmental auditing, inspections and investigations under the habitat protection and pollution prevention provisions of the Fisheries Act will be conducted in a manner which will not inhibit the practice or quality of auditing. Enforcement personnel will not request environmental audit reports during routine inspections to verify compliance with the Act.

Access to environmental audit reports may be required when enforcement personnel have reasonable grounds to believe that:

• an offence has been committed;
• the audit's findings will be relevant to the particular violation, necessary to its investigation and required as evidence; and
• the information being sought through the audit cannot be obtained from other sources through the exercise of the powers of enforcement personnel.

In particular reference to the latter criterion, environmental audit reports must not be used to shelter monitoring, compliance or other information that would otherwise be accessible to enforcement personnel under the habitat protection and pollution prevention provisions of the Act.

Any demand for access to environmental audit reports during investigations will be made under the authority of a search warrant. The only exception to the use of a search warrant is exigent circumstances.

Compliance Monitoring

Compliance monitoring is conducted to verify that activities governed by the Fisheries Act are carried out in accordance with its provisions, regulations, directions by Fishery Inspectors, Ministerial orders and authorization requirements. Enforcement personnel will also verify compliance with injunctions and court orders issued under the Act. Compliance monitoring may also measure potentially harmful impacts on the environment associated with suspected violations of the Act.

Means to accomplish compliance monitoring include:

• inspections;
• mandatory reporting of information by regulatees in accordance with requirements under the Act, and its regulations, or in response to injunctions and court orders;
• sampling by enforcement officials of deleterious substances being deposited and products containing those substances; and
• monitoring of requirements of the Act and/or its regulations.