Author: Andrew Masucci

The Government of Canada has released a list of proposals that it plans to implement into law and policy to make the process of getting major projects built in Canada more efficient. The thrust of the proposals is to streamline the regulatory process by making various permits less burdensome to obtain. While streamlining regulatory processes is a reasonable goal, some of the reforms proposed give rise to serious concern. Specifically, changes to the rules around offsetting for the loss of fish or fish habitat, permits for Disposal at Sea, and the loss of the jeopardy test for species at risk are truly worrying.

Changes to Offsetting for the Loss of Fish or Fish Habitat

While other proposals are still in the process of being developed and formulated, changes to offsetting have already been implemented through simple changes to the Authorizations Concerning Fish and Fish Habitat Protection Regulations, and will come into force on October 15, 2026. This demonstrates how quickly the Government of Canada is working to get the proposals implemented into law.

Offsetting rules rely on a logic that accepts the idea of “compensating” for the loss of fish or fish habitat after a project has resulted in the death of fish or the destruction of fish habitat. Offsetting rules allow project proponents to rebuild or reconstruct fish habitat or restore a fish population after it has been reduced. To carry on work that could result in the death of fish or the destruction of fish habitat under sections 34.4 and 35 of the Fisheries Act, a person or corporation needs to be authorized by the Minister of Fisheries to do so by submitting a detailed application. Previously, any application needed an offsetting plan that would detail how offsetting would be implemented, but now -- due to the new section 4(2.1) of the new regulations --the Minister will conduct a risk assessment to determine if offsetting is required at all. If the Minister determines that the project is low-risk, the project proponent will not have to develop an offsetting plan at all, and they will be allowed to continue with their project.

While avoiding the difficulty of preparing a detailed offsetting plan will ease the burden for low-risk projects, it also increases the possibility of error due to inaccurate risk assessments. Previously, if an authorized project turned out to be much more impactful on fish or fish habitat, there was already an offsetting plan in place to rely on that was developed during the application stage, as it was mandatory for all projects regardless of risk level. Now, if an authorized project is determined to be low-risk and thus no offsetting is required, there will be no offsetting plan in place if the project ultimately has a greater impact on fish or fish habitat than expected. Section 9.1 of the new regulations allows the Minister to amend any authorization if they become aware of new information that demonstrates that further action is necessary to offset the death of fish or the destruction of fish habitat, but this again gives more responsibility to the Minister and introduces the likelihood of error to offsetting where there used to be the safety net of an offsetting plan.

Increased Flexibility for Permits Relating to Disposal at Sea

Disposal at Sea refers to the process engaged when a proponent of a project wants to dispose of waste or other matter into the sea. Schedule 6 of the Canadian Environmental Protection Act  lists the steps required when applying for a permit related to Disposal at Sea which involves developing a detailed description of the waste to be disposed of, as well as methods of disposal.

The Government of Canada wants to make permits related to Disposal at Sea more flexible. Unlike the amendments to offsetting, there has not yet been any formal changes or amendments to the permit process related to Disposal at Sea, meaning there is still uncertainty as to what ‘increased flexibility’ will mean.

Exempting Certain Projects from the Jeopardy Test for Species at Risk

Image source: Raincoast Conservation Foundation, "Canada’s Species at Risk Act is, itself, at risk," 15 May 2026, online: https://www.raincoast.org/2026/05/canadas-species-at-risk-act-106146/.

One very alarming change that the Government of Canada has proposed is to exempt specific projects from the “jeopardy test” for species at risk if it is in the public interest. Section 73(3)(c) of the Species at Risk Act allows a competent minister to enter an agreement with a person authorizing them to engage in an activity that would affect a listed, protected wildlife species only if the minister is of the opinion that the activity will not jeopardize the survival or recovery of the species. By overriding this jeopardy test, the Government of Canada will have the ability to jeopardize an entire wildlife species to increase productivity and project development. While no official amendment has been enacted, it is seriously concerning that this change has been proposed.