The responsibility to protect fish and fish habitat during forest management activities in Ontario is shared between the federal and provincial governments through the federal Fisheries Act and Ontario Crown Forest Sustainability Act (CFSA). Certain aquatic species at risk may also be protected under the federal Species at Risk Act, 2002 (SARA) or the provincial Endangered Species Act, 2007 (ESA). Proponents are responsible for ensuring compliance with all provincial or federal legislation and regulations. Additional measures may need to be taken before engaging in activities related to the construction and/or removal of a water crossing.

Fisheries Act

The Fisheries Act became one of Canada’s first laws in 1868. In recognition that healthy and productive fisheries require healthy fish habitat, the habitat protection and pollution prevention provisions were incorporated into the Fisheries Act in the 1970s. In 2012, changes made to the Fisheries Act shifted its focus to managing threats to the sustainability and productivity of Canada’s commercial, recreational and Aboriginal (CRA) fisheries or fish that support such a fishery. In 2019, the Fisheries Act was amended again to restore certain lost protections and incorporate modern safeguards. Included in these amendments, purposes have been added to the Act, which are to provide a framework for the proper management and control of fisheries and the conservation and protection of fish and fish habitat, including preventing pollution. The most relevant changes to the Fisheries Act relative to this Protocol include a prohibition against causing the death of fish (Section 34.4), the harmful alteration, disruption or destruction (HADD) of fish habitat (Section 35), as well as provisions for flow and passage (Sections 34.3).

Additional changes to the Fisheries Act that support the goals and objectives of this Protocol include:

  • expanding the prohibitions to include all fish and fish habitat, and
  • providing clarity, certainty and consistency of requirements by enabling the use of standards and codes of practice.

Crown Forest Sustainability Act, 1994 (CFSA)

The CFSA provides for the sustainability of Crown forests and the management of Crown forests to meet the social, economic and environmental needs of present and future generations. The CFSA requires a Forest Management Plan (FMP) to be prepared for every management unit. Each FMP must provide for the sustainability of the Crown forest, having regard to a diverse suite of values such as plant and animal life; quality of water, soil, air; and social and economic values, including recreational values and heritage values.

Through its regulations, the CFSA requires adherence to a set of four forest management manuals: the Forest Management Planning Manual, the Forest Information Manual, the Forest Operations and Silviculture Manual and the Scaling Manual. The following three manuals are relevant to water crossing approvals on managed Crown forests:

  • Forest Management Planning Manual (FMPM): FMPM prescribes the forest management planning process, including the content and process requirements for the development of FMPs and annual work schedules (AWS). The planning and documentation requirements include those related to the planning, review, approval and monitoring of water crossings construction and/or removal.
  • Forest Information Manual (FIM): the FIM describes the mandatory requirements, timelines, and conditions for providing information for managed Crown forests. The requirements for information prescribed in the FIM complement the FMPM planning and operational requirements. The FIM prescribes a series of supplemental technical specifications which outline the detailed, technical conditions of information requirements.
  • Forest Operations and Silviculture Manual (FOSM): FOSM sets out the over-arching principles and accepted approaches for forest management, the standards for forest operations and silvicultural practices, the minimum qualifications for forestry workers, and the procedures for the evaluation of forest management in Ontario. FOSM sets out guidance and direction to be referenced in the preparation of an FMP and in the implementation of forest management activities.
  • Forest Management Guides: Forest Management guides are described in FOSM. FOSM sets out the list of guidance and direction to be referenced in the planning and implementation of forest management activities. The FMPM give directions on the use of the guidance and direction listed in the FOSM.

Other relevant legislation

Canadian Navigable Waters Act, 1985

The Canadian Navigable Waters Act, 1985 is a federal statute that authorizes and regulates activities that may interfere with the public right of navigation; it is the result of 2019 amendments to strengthen environmental protections.

Proponents should consider any applicable requirements under the Canadian Navigable Waters Act prior to commencing any water crossing projects.

Ontario Endangered Species Act, 2007 and Canadian Species at Risk Act, 2002

The Ontario Endangered Species Act, 2007 (ESA) and Canadian Species at Risk Act, 2002 (SARA) provide for the legal protection of species at risk in Ontario and Canada. These statutes may impact decisions related to the construction, and/or removal of water crossings. The ESA is administered by the Ontario Ministry of the Environment, Conservation and Parks (MECP). The SARA is administered by DFO for aquatic species at risk in Ontario. The review of referrals that are submitted to DFO under the Fisheries Act are also reviewed under the SARA. These reviews are coordinated. Proponents are responsible for ensuring they comply with provincial and federal species at risk laws and regulations.