September 20, 2007
Thank you for sharing your concerns in your May 3, 2007 Environmental Petition No. 202, submitted under the provisions of the Auditor General Act to the Commissioner of the Environment and Sustainable Development. This correspondence has been forwarded to Fisheries and Oceans Canada (DFO) for response to the concerns related to the mandate of this Department.
The following is a response to questions asked for which the Minister of Fisheries and Oceans Canada has jurisdiction. More specifically, the response addresses your questions relative to effects on fish and fish habitat.
Mandate of the Minister of Fisheries and Oceans
Before answering your specific questions, I would like to take this opportunity to explain DFO’s mandate with respect to the conservation and protection of fish and fish habitat.
The federal government has constitutional authority for “seacoast and inland fisheries.” Legislatively, it has exercised this authority through the Fisheries Act in particular. The Minister of Fisheries and Oceans is responsible to Parliament for the Fisheries Act.
The Fisheries Act contains provisions to regulate the impacts on fish and fish habitat (defined in subsection 34(1) of the Fisheries Act as “spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes”) and contribute to their conservation and protection. A key habitat protection provision is subsection 35(1). This section prohibits the harmful alteration, disruption or destruction (HADD) of fish habitat without an authorization from the Minister or by regulation. Other provisions include those dealing with obstructions impeding the free passage of fish, the minimum flow of water for fish and the destruction of fish by means other than fishing. The provision that prohibits the discharge of deleterious substances into fish-bearing waters is administered by the Minister of Environment Canada.
Staff from DFO’s Habitat Management Program in the Maritimes Region conduct referral reviews of development proposals situated in and around water. These referrals come to DFO's attention in a number of ways. Proponents, other federal, provincial or municipal resource management agencies, non-government organizations and interested parties can refer development proposals to DFO's Habitat Management Program.
In all cases, DFO's review of those development proposals with the potential to cause impacts on fish and fish habitat, including a HADD of fish habitat is guided by the Fisheries Act, and DFO's Policy for the Management of Fish Habitat (1986) and related operational policies. The guiding principle of the 1986 Habitat Policy is “no net loss of productive capacity of fish habitat”. Authorizations pursuant to subsection 35(2) of the Fisheries Act are not issued unless DFO is satisfied that this principle has been met through compensation measures applied to off-set the loss of fish habitat. Furthermore, no such authorizations are issued until an environmental assessment under the Canadian Environmental Assessment Act has been completed. Environmental assessments conducted under the Canadian Environmental Assessment Act include the requirement to coordinate with other federal departments. The Authorization must also conform to the requirements of the Species at Risk Act (SARA).
It is important to note that any proponent of a given work or undertaking is under no obligation to submit a proposal for review by DFO. However, should the work or undertaking result in unacceptable impacts to fish and fish habitat, including the HADD of fish habitat, the proponent of the given work or undertaking may be subject to prosecution under the Fisheries Act. For the Prince Mine, DFO did review information submitted as part of the provincial environmental assessment process. Further information is provided below in our detailed responses.
Response to specific questions:
The following are responses to the specific questions addressed to the Minister of Fisheries and Oceans Canada in your letter of May 3, 2007. These responses are limited to the Department’s mandate with respect to fish and fish habitat conservation and protection:
Question 2: Why wasn’t a federal environmental assessment triggered?
Response: As described above, DFO’s mandate is limited to the conservation and protection of fish and fish habitat as defined in the Fisheries Act. As part of a referral process, DFO requests that proponents of given works or undertakings provide a comprehensive description of the fish and fish habitat that may be impacted, directly or indirectly, by the work or undertaking.
The information provided by the proponent is verified by site visits, by conducting literature reviews and by exchanges with partners such as regulatory agencies at the federal, provincial and municipal levels, stewardship groups, and First Nations and Aboriginal groups.
In the present case, based on information provided to the Department for review, DFO determined that the project was not likely to result in a HADD and therefore no authorization under subsection 35(2) of the Fisheries Act was required, and furthermore, the proponent has not requested one. Without a subsection 35(2) Authorization, DFO did not require a federal environmental assessment pursuant to the Canadian Environmental Assessment Act.
Question 8: What is the difference between what the NS DEL says is “orange precipitate” and what everyone else says is typical “acid mine drainage”? What are Environment Canada and DFO doing about the “orange precipitate” being discharged into a brook that flows into ocean fishing grounds at the mouth of the Bras D’Or Lakes?
Response: Environment Canada and the provincial NS DEL are responsible for regulating discharges into the aquatic environment. My honourable colleague at Environment Canada will be responding to this question.
Thank you for providing DFO with the opportunity to address your questions.
Original signed by
Loyola Hearn, P.C., M.P.
c.c.: Mr. Ronald C. Thompson
A/Commissioner of the Environment and Sustainable Development
The Honourable John Baird, P.C., M.P., Minister, Environment
The Honourable Gary Lunn, P.C., M.P., Minister, Natural Resources
The Honourable Michael M. Fortier, P.C., M.P., Minister, Public Works and Government Services