Thank you for that question.
To clarify my earlier statements, we were very clear that we don't propose reverting to the HADD prohibition. We would propose reverting to “harmful alteration, disruption, and destruction of fish habitat” as the primary definition for what constitutes the HADD, or what constitutes the habitat protection prohibition, but we would add into that... I think some some of the examples you raised were really interesting ones. I would agree with you that there are huge problems with inconsistencies under the previous HADD regime, in part because of the very broad discretion under that section 35(2) authorization power. It wasn't guided by any regulatory provisions.
Also, there was nothing written down in the act to explain how the minister.... When it says “minister”, of course, what it means is the dozens of delegates that the minister relies on to implement the authorization provision. They had no consistent regulatory guidance to follow, which is why we are recommending the inclusion of clear regulatory guidance within the actual provision itself—or within a regulation, if that ends up being structurally simpler—but I think some of that needs to be right in the section 35 provision, in what is now, I suppose, the subsection 35(2) exceptions category, to make clear how decisions are supposed to be made to address that challenge of inconsistency.