Between: Her Majesty the Queen in Right of Canada as represented by the Minister of Fisheries, Oceans, and the Canadian Coast Guard (DFO)

And: Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources and Forestry (MNRF)

Whereas, the Constitution Act, 1867 assigns to the federal government exclusive jurisdiction for sea coast and inland fisheries and the Fisheries Act sets out powers and duties of the federal government with respect to the protection of fish and fish habitat;

Whereas, the Constitution Act, 1867 assigns to the provinces exclusive jurisdiction over matters dealing with property and civil rights, the management of public lands and matters of a local or private nature in the province and based on these heads of power, the provinces may regulate certain aspects relating to fisheries and fish habitat;

Whereas, the Province of Ontario has assigned the Ministry of Natural Resources and Forestry as the steward of Ontario's forests, fisheries, wildlife, mineral aggregates, petroleum resources and Crown lands. MNRF's vision is for Ontarians to benefit from the health and wealth of the province’s natural resources, today and in the future. The Ministry’s mission is to sustainably manage and promote the responsible use of Ontario’s natural resources;

Whereas, Ontario administers the management of freshwater fisheries in the province via regulations made under the Fisheries Act and the federal government is responsible for the protection of fish (including fish habitat) under the Fisheries Act;

Whereas, DFO recognizes that MNRF has established laws and policies that provide for the integration of fish and fish habitat protection and conservation considerations and measures in its decision‐making and regulatory processes;

Whereas, the federal government, provinces and territories, including Ontario have entered into an Agreement on Inter-jurisdictional Cooperation with Respect to Fisheries and Aquaculture that provides both the foundation for the Canadian Council of Fisheries and Aquaculture Ministers (CCFAM) and the principles of cooperation that CCFAM has developed to implement a Freshwater Fisheries Strategy;

Whereas, DFO and MNRF are committed to the protection and conservation of fish habitat required to sustain Ontario's fisheries resources so as to provide social, economic and environmental benefits for present and future generations of Canadians;

Whereas, DFO and MNRF are committed to collaborating and sharing responsibilities in the protection of fish and fish habitat in the province of Ontario, where it is of mutual interest;

Whereas, Canada and Ontario have signed the Canada-Ontario Fisheries Agreement (COFA 1987);

Whereas, Canada and Ontario both have responsibilities for protecting species at risk under the Species at Risk Act, 2002 (SARA) and the Endangered Species Act, 2007 (ESA);

Whereas, Canada and Ontario have established the Canada-Ontario Fisheries Advisory Board (CONFAB), to implement the COFA, 1987 by facilitating inter-agency coordination as necessary to ensure the successful achievement of fisheries programs in Ontario;

Therefore, Canada as represented by DFO and Ontario as represented by MNRF agree to the following protocol for the review and approval of forestry water crossings for protecting fish and fish habitat during the planning and implementation of forest management activities in Ontario.

A – purpose and objectives

This Protocol is intended to facilitate a collaborative approach that protects Ontario’s fish and fish habitat during the planning and implementation of forest management activities on managed Crown forests in the Province through the application of federal and provincial legislation, regulations, policies and programs identified herein.

B – general provisions

  • B-1 The parties agree that protecting fish and fish habitat during the planning and implementation of forest management activities on managed Crown forests in Ontario will be carried out in accordance with the federal Fisheries Act and the provincial Crown Forest Sustainability Act, 1994 (CFSA), as well as their associated regulatory and policy frameworks.
  • B-2 The regulatory and legal decision making authority of DFO and MNRF are not delegated or otherwise affected by this Protocol.
  • B-3 The parties agree that this Protocol will not impose any financial responsibilities. Each party will be responsible for their respective costs incurred related to the implementation of the Protocol. The parties may agree to jointly fund and support projects and initiatives that support the program activities.
  • B-4 The interpretation and meaning of terms in the Protocol are defined in the glossary and suggested reading section of the Protocol.

C – scope of application

  • C-1 This Protocol applies to the construction and removal of all proposed road water crossings in accordance with the forest management planning process on managed Crown forests in Ontario.
  • C-2 This Protocol pertains to the administration of Sections 34.3, 34.4, 35, 38(4), 38(5), 38(6) and 38(7) of the Fisheries Act.

D – management provisions

  • D-1 DFO and MNRF executive will oversee implementation of this Protocol and will establish an "MNRF/DFO forestry protocol implementation team” to ensure effectiveness of the Protocol by recommending changes to the Protocol as required; and providing an issues resolution mechanism.
  • D-2 The MNRF shall prepare and submit to DFO an annual report on the implementation of this Protocol. The annual report will include information outlined in the annual reporting template in appendix 5.

E – roles and responsibilities / operating principles

  • E-1 The parties agree to undertake the roles and responsibilities to protect fish and fish habitat during forest management activities on managed Crown forests in Ontario, as outlined in the Protocol.
  • E-2 The parties agree to participate in the periodic review of the Protocol to ensure that it remains consistent with the agency roles and responsibilities described therein. The parties further agree to collaborate on the creation of harmonized policies, water crossing standards guidelines, and mitigation measures to guide decisions designed to protect fish and fish habitat.
  • E-3 The parties agree to carry out compliance and effectiveness monitoring activities as outlined in section 7 in order to ensure that the Protocol implementation and protection of the sustainability and ongoing productivity of fish and fish habitat are carried out in a consistent and effective manner.
  • E-4 The parties agree to develop and deliver joint training programs for staff and forest industry representatives, as required.

F – issue resolution

  • F-1 When issues regarding implementation of the Protocol cannot be resolved at the staff level, the following mechanism shall be applied:
    • Timely resolution shall be sought through consultation at the appropriate Regional/District management level of DFO and MNRF;
    • For issues remaining unresolved at the Regional/District management level, resolution shall be sought through the Forestry Protocol Implementation Team;
    • For issues remaining unresolved by the Forestry Protocol Implementation Team, resolution will be sought through CONFAB.

G – term

  • G-1 This Protocol comes into effect on the date signed by DFO and MNRF and shall remain in effect until terminated in accordance with subsection G-4.
  • G-2 This Protocol revokes and replaces the 2017 version of the “MNRF-DFO protocol for the review and approval of forestry water crossings” and will apply to the planning, review, approval, and monitoring of road water crossing construction and/or removal activities, as per the effective date set out in section G-1, and direction in the most recent version of the forest management planning manual (FMPM).
  • G-3 This Protocol may be amended at any time in accordance with the following requirements:
    • G-3.1 Any amendments to the protocol agreement or sections 1 through 6 of the Protocol shall require the signature of both a DFO and MNRF representative who is authorized to amend the Protocol;
    • G-3.2 Changes to the sections 7, 8 and 9 of the Protocol (forestry protocol implementation team, approved water crossing standards, glossary and suggested reading, and appendices) may be approved by the “MNRF/DFO fisheries protocol implementation team” and reported to the DFO and MNRF executive through CONFAB.
  • G-4 This Protocol is an expression of the mutual intentions of the parties and is not legally binding or enforceable against them. Either of the parties may terminate this Protocol on twelve months written notice to the other party.

H – signatures

For Her Majesty the Queen in Right of Canada as represented by the Minister of Fisheries Oceans, and the Canadian Coast Guard

Original signed by:

David Nanang

Regional Director General, Ontario and Prairie Region

Fisheries and Oceans Canada

For Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources and Forestry

Original signed by:

Christie Curley

Director, Fish and Wildlife Policy Branch

Ministry of Natural Resources and Forestry

Protocol for the review and approval of forestry water crossings

Disclaimer

It is the responsibility of the proponent to comply with all federal and provincial laws and regulations, all municipal by-laws, and any other orders, rules and by-laws. Compliance with this Protocol does not relieve proponents from possible prosecution under either Canada’s Fisheries Act or Ontario’s CFSA. The approval framework provided in this Protocol, including the implementation of the water crossing standards and the review and approval by MNRF staff, is premised on a risk management approach to facilitate compliance with both pieces of legislation. The Province of Ontario and the Government of Canada expressly disclaim any liability for damages or contraventions of any kind arising from the use of this Protocol.

The Province of Ontario is bound by the Freedom of Information and Protection of Privacy Act, 1990 (Ontario) and any information provided to the Province in connection with this Protocol or otherwise in connection with the Protocol may be subject to disclosure in accordance with that Act.