Laura Bowman
In July 2026, the federal government published amendments to the Authorizations Concerning Fish and Fish Habitat Protection Regulations (Regulations) in the Canada Gazette, taking effect October 15, 2026. These updates revise how the Department of Fisheries and Oceans Canada (DFO) evaluates authorizations for works causing the death of fish or the harmful alteration, disruption, or destruction of fish habitat (HADD).
The current informal process involves a proponent submitting a request for review, after which DFO determines if an authorization is required. The vast majority of projects and minor works receive letters of advice instead of authorizations. These letters of advice are a non-statutory response, that indicate that proponents do not need to apply for authorizations. They recommend practices intended to avoid fish death or HADD and often implement standard conditions. If a proponent causes the death of fish or HADD despite the letter of advice, DFO can take enforcement steps.
Because DFO’s position when issuing a letter of advice is that no authorization is needed and no harm is occurring, it typically refuses to consult First Nations when issuing these letters. In my practice, I have regularly observed such letters issued under inappropriate circumstances where there is unequivocal evidence that damage to fish and fish habitat cannot be avoided.
Since 2019, when DFO determined an authorization was required, the Regulations required proponents to submit a detailed, application, including baseline assessments, impacts on fish and fish habitat, and an offsetting/contingency plan. This process was opaque but with some effort, if an authorization was required, First Nations could have some input into the process and robust federal requirements were triggered and in some cases consultation could occur.
What Changed in the Amendments?
The amendments take features of the letter of advice process and incorporate them into authorizations, where required. In general, they reduce the amount of information a proponent needs to provide and reduce key incentives for proponents to avoid harm to fish and fish habitat.
A lack of information on impacts in the initial application
The existing Regulations in Schedule 1 require detailed information on the proposed work and the full project (s.2); fish species affected and fish habitat (ss.8-9); monitoring, mitigation and avoidance (ss.10-11); contingency measures (s.12) and quantitative information on death of fish and HADD (ss.13-14).
The amendments remove reference to “detailed” information in the existing Schedule 1. Similar changes are applied to proponent-initiated amendments (new ss.8(2) to 8(4)).
Key information on fish and fish habitat impacts (Schedule 1 part 2) will also be eliminated where a proponent indicates that they will rely on generic technical standards (the new s.2.1(3)). The introduction of reliance on standard conditions reflects existing DFO practices on letters of advice, which will now be incorporated into the permitting process even where impacts cannot be avoided.
These generic standards may not adequately mitigate site-specific or design-specific issues or address mitigation for First Nations-specific uses and site access and fundamentally, cannot replace key information on impacts to First Nations rights. Reliance on generic standards is also likely to reduce opportunities for First Nations to engage using traditional knowledge.
Offsetting becomes discretionary, without clear criteria
The existing regulations require offsetting (Schedule 1, ss.15-16) which was a key component of the longstanding no-net-loss policy for Canadian fish and fish habitat (c.1990). Offsetting is an often risky and flawed procedure to replace fish habitat that is damaged, however costly offsetting requirements increased the incentive for proponents to avoid and mitigate impacts.
The amendments will make offsetting discretionary. They will require the Minister to conduct a risk assessment to determine whether offsetting is required but do not set out clear criteria for the risk assessment (the new ss.4 (2.1) and 4(3)). Where generic standards are applied, the Minister may not have information about the impacts to fish and fish habitat to use in the risk assessment. The lack of clear risk-assessment criteria is extremely problematic, since it allows elimination of offsetting where there are potential adverse impacts on Indigenous peoples and reduces the incentives for proponents to avoid impacts to First Nations.
These changes will create significant risks that impacts to fish and fish habitat will not be identified and site-specific dynamics will be poorly understood. First Nations will only have 90 days from the time the application is submitted to persuade DFO that more information, consultation, mitigation or offsetting should be required. Once the Minister notifies the proponent that the application is satisfactory, the Minister will issue the permit within 60 days.
The regime is not truly risk-based
While framed as an efficiency update, some of the highest-risk major projects will be pre-approved under the Building Canada Act, potentially bypassing the information requirements in the regulation as well as the Minister’s risk assessment. Even for non-major projects, reduced information requirements, the use of generic standards even for the few projects that actually require an authorization, raises serious concerns about DFO’s regulatory capacity to identify and manage risks of harm to First Nations rights.
Accelerated review windows also compress timelines, making thorough scientific and traditional knowledge evaluations by First Nations technical advisors much harder.
The process does not apply to all harmful projects
The Building Canada Act and the regulatory sandboxing provisions in recent budget bills, create the potential for inconsistent application of these new standards through unpredictable non-risk based exemptions which appear to be targeted at the highest risk projects.
Amendments that could be helpful for First Nations
The Minister will acquire new authority to revoke or amend existing permits (the new s.9.1). This applies where “they become aware of new information that demonstrates that further action is necessary to avoid, mitigate or offset the death of fish or the harmful alteration, disruption or destruction of fish habitat.” This sets a quite high threshold for amendments, and does not explicitly refer to new information based on traditional knowledge or on impacts to First Nations. This new power may, in limited cases, provide an opportunity for First Nations to engage on adaptive management. However, experience with letters of advice demonstrates that DFO lacks the enforcement capacity to utilize these powers effectively, and these changes do not adequately remedy the lack of informed consultation at the outset.
The changes also exempt First Nations and municipalities from requirements to provide financial security. Financial security exemptions for First Nations and municipalities may assist Nations struggling with up-front funding for financial security and offsetting. However, this is a double-edged sword: as it could result in inadequate offsetting or mitigation at the municipal level without the financial security needed to address it.
Key Takeaways
Overall, these amendments are likely to make it much harder for the Crown and First Nations to identify potential adverse impacts to Aboriginal rights early on when they could be prevented. It is disappointing that the amendments did not address key policy issues such as co-jurisdiction, traditional knowledge and that the lack of transparency in the system was not remedied. The uncertainty created by these changes will shift the onus onto First Nations to identify impacts without adequate information and on unreasonable timelines. Such a process may ultimately prove to be fundamentally inconsistent with the concept of free, prior and informed consent under the United Nations Declaration on the Rights of Indigenous Peoples and Crown duties to adequately assess impacts on First Nations with detailed information as articulated in current Crown consultation policies.
Effective consultation under the Supreme Court of Canada’s framework in Haida requires the engagement of the Crown through regulatory decisions combined with a reasonable amount of information on potential impacts to be provided proactively to First Nations. The Supreme Court in Haida assumed the existence of effective regulatory review processes. With the elimination of the regulatory regimes upon which Haida consultation relies, it is likely that First Nations will increasingly need to employ systematic legislative and regulatory challenges and to prove unjustified infringements to defend their constitutionally protected rights to fish.
Environmental deregulation will require significant developments in the law on aboriginal rights, and novel litigation strategies, to ensure that Indigenous rights are meaningfully protected. Crowns must not be permitted to dishonourably deregulate themselves out of the constitutional minimum duties articulated in Haida.
