Fish and fish habitats should be protected from the potential harmful effects of offshore wind energy (OWE) activities. The Fisheries Act applies to the effects of OWE projects at least from two aspects: the impact on fish and the impact on fish habitats.
Fish and fish habitats are defined under the Fisheries Act. The Act has taken a broad approach to define them. The definition of fish under this Act includes different types of fish such as “shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals”. The definition covers “the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals”. The term “fish habitat” also has a broad definition. It encompasses the water that fish inhabit and any areas that are vital to their life processes. These wide-ranging definitions demonstrate the comprehensive scope of this Act about fish, including various stages of their lives and their habitats.
For effective protection, the Fisheries Act does not impose federal and provincial boundaries on its application. This Act applies to Canadian waters and any part of the continental shelf of Canada that extends beyond the Canadian fisheries waters. According to this Act, “Canadian fisheries waters” means “all waters in the fishing zones of Canada, all waters in the territorial sea of Canada and all internal waters of Canada”. Recognizing water as an ecosystem component that is crucial for fish life provides a comprehensive ecological perspective that supports the marine environment.
In addition, the Fisheries Act prohibits the deposit of deleterious substances into water used by fish. One of the examples of depositing deleterious substances is the addition of any substance that would degrade or adversely affect the quality of water and fish or fish habitat. This example includes some of the activities during OWE construction such as cutting, waste of materials, and deposit of sediments. According to the judicial decisions, the substance does not need to be toxic, but it is sufficient that the substance be harmful to fish (e.g. substances clog fish’s gills or hinder them from feeding). The Fisheries Act also prohibits activities that may be harmful to fish habitats. Due to the likely harmful impacts of OWE on fish and fish habitats, under this Act, a permit must be obtained for the construction and operation of OWE projects.
Areas for Improvement of the Fisheries Act and Related Regulations and Policy
– The Fisheries Act only covers cases where a deleterious substance is added or released into water. This Act should be amended to include cases where activities cause suspension of seabed sediment contaminants, which may be harmful to fish.
– The Marine Mammal Regulations, which prohibits the disturbance of marine mammals by human activities, should be amended to include a harmful incident that may occur due to the activities of OWE projects.
– Precaution necessitates the adoption of regulations, standards, and codes of practices to avoid death to fish, harmful alteration, disruption, or destruction of fish habitats, the conservation and protection of fish or fish habitats, and the prevention of pollution.
– The Fish and Fish Habitat Protection Policy Statement should consider the extension of its provision to regulate the impacts of OWE projects on fish and fish habitats. The scale and type of impacts of an OWE project on the productivity of fish should be examined under this Policy Statement to find out whether OWE activities affect the lifecycle of fish, fish population, and the connection of fish and fish habitats with the components of productivity. Such examination informs the types of measures that should be taken to avoid or mitigate the impacts.
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