The Fisheries Act and pipelines: 3 things you should know

The federal government is currently undertaking a review of Canada’s environmental and regulatory processes. In earlier posts on this blog we have explored the reviews of the Canadian Environmental Assessment Act and the Navigation Protection Act. This week we are taking a look at the review of the Fisheries Act.

Here are three things you should know about the Act and why it is being reviewed:

What is the Fisheries Act?

The purpose of the Fisheries Act is to ensure the proper management and control of Canada’s fisheries, the conservation and protection of fish and fish habitat, and the prevention of pollution.

Gaining royal assent in 1868, the Fisheries Act is one of Canada’s oldest pieces of federal legislation.

How does the Fisheries Act relate to pipelines?

When a pipeline crosses a waterway, typically streams or rivers, the pipeline operator’s environmental assessment must include a complete analysis of whether there is a fishery in the waterway, and if so how these fish habitats  could be impacted by the construction or operation of the pipeline.

In 2013, the Department of Fisheries and Oceans Canada (DFO) gave the National Energy Board (NEB) responsibility for reviewing  federally regulated pipeline applications under the Fisheries Protection Provisions of the Fisheries Act.

Provincial regulators, such as the British Columbia Oil and Gas Commission and the Alberta Energy Regulator, have similar project review processes in place for pipelines that are contained within provincial boundaries. These provincially regulated pipelines continue to be subject to the requirements of DFO. 

The NEB assesses the potential impacts of pipeline projects to fish and fish habitat. If they determine that a project will not result in any serious harm to fish, the applicant will not be subject to a DFO review. If, on the other hand, the NEB decides that mitigation strategies are necessary to reduce or prevent possible impacts, an authorization for the project must be obtained from the DFO.

The NEB will also monitor a project to ensure that it complies with the conditions of a Fisheries Act permit after it has been issued.

Why is the Act being reviewed?

Some groups have expressed concern that the 2012 changes to the Act have resulted in fewer authorizations being required and are concerned this may have resulted in a loss of protection for fisheries. While it’s true that fewer DFO authorizations are required, this is because of the huge amount of pre-planning required to determine whether DFO authorization is necessary. The Act still requires the same level of protection for commercial, recreational and Indigenous fisheries.

As an example of the level of groundwork done, the changes allow pipeline companies to engage a qualified environmental professional to prepare a self-assessment for a project and identify appropriate mitigation methods to address any potential impacts. This helps ensure that the company is able to apply best practices to meet regulatory requirements, and reduce duplications in the process.

If you would like to know more about pipelines and fisheries, check out ‘How do pipeline companies protect fisheries?’ and ‘Pipelines and rivers: 5 ways to keep them both safe’.

Stay tuned for a future post in which we will explore the upcoming modernization of the National Energy Board.