Slow on the Trigger: The Department of Fisheries and Oceans, the Fisheries Act and the Canadian Environmental Assessment Act

The federal Department of Fisheries and Oceans plays an Important role in protecting fish and fish habitat in Canada, primarily under the Fisheries Act. Section 5 of the Canadian Environmental Assessment Act requires an environmental assessment when the Department takes certain actions under the Fisheries Act. In the past few years environmental interests have taken the Department to task claiming that it has circumvented assessment. The alleged circumvention occurs when proponents of projects that will harm fish habitat, in consultation with the Department, revamp the project to avoid harm, and the Department issues a letter of advice to the proponent The Department contends that in these circumstances no assessment is triggered. The author argues that, notwithstanding the Department's position, this course of action triggers an environmental assessment The article concludes with suggestions on how to facilitate the Department's compliance