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Limiting fish protection to “serious harm” is a serious problem

1 May, 2012

The federal government’s Budget Implementation Bill, Bill C-38, recently introduced in Parliament, is self-servingly called the Jobs, Growth and Long-term Prosperity Act 2012, which is ironic because most Canadians recognize that you can’t have long-term prosperity by destroying wild stocks of fish. Polls show that 86% of British Columbians agree that “Economic growth and development should not come at the expense of wild salmon habitat,” and I suspect that that poll reflects how most Canadians feel.  If you agree, you’re going to be upset by proposed changes to Canada’s Fisheries Act written into the Budget Bill that remove protection for fish habitat in many cases.

Are Canadians only concerned about “serious harm” to fish?

Section 35 of the Fisheries Act currently says that it is illegal to “harmfully alter, disturb or destroy” fish habitat.  This is important because fish cannot survive unless their habitat is protected. 

As Linda Nowlan at the World Wildlife Fund explains:

The prohibition on destruction of fish habitat is a key tool for regulators responsible for protecting the environment. When a mining company wants to turn a sacred lake into a tailings pond in BC, what law prevents that from occurring? The Fisheries Act. When the effects of a new dam will harm fish, what law is invoked? The Fisheries Act. When a developer fills in a stream, what law can be used to lay charges? Again, the Fisheries Act.

The Budget Implementation Bill would change this legal protection so that it is only illegal to cause “serious harm” to fish. The proposed new wording reads:

35. (1) No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.

“Serious harm” is defined in the new Bill as: “death of fish or any permanent alteration to, or destruction of, fish habitat.” [Emphasis added]

So, to summarize:

  • Maiming, deforming or stunting the growth of fish does not amount to “serious harm”;
  • Only fish that the government considers useful enough or which incidentally support those “useful” fish species get legal protection; and
  • Temporary alteration or destruction of fish habitat* is not prohibited unless it can be shown to have resulted in the death of useful fish.

The “serious harm” test also does not recognize that fish and their habitat can suffer a “death by a thousand cuts.”  So while a series of small and temporary changes to fish habitat might individually not kill fish, taken together they might permanently jeopardize the survival of a run or destroy their habitat. 

[Update 2 May 2012 - The amendments also allow the federal Cabinet to exempt "Canadian Fisheries Waters" from section 35 and certain other sections of the Fisheries Act.  Depending on the regulations drafted, this could significantly narrow what fish habitat is protected under the Fisheries Act.] 

A gift to the oil and gas industry’s lawyers

In addition to weakening protection for fish habitat, the ban on “serious harm to fish” would introduce a large number of legal complexities. Watch for high priced lawyers hired by oil and gas and mining companies to have a field day with the resulting ambiguities and questions of proof. 

Consider a mining company that dredges a stream, causing silt to flow downstream into fish habitat. Instead of just having to prove that the dredging altered waters that provide habitat for fish, Fisheries and Oceans Canada will face a range of legal hurdles. For example, legal ambiguities or issues of proof that the mining company’s lawyers might seek to exploit include:

  • What is “permanent”? – “Just about anything will recover given enough time”;
  • “You can’t prove that there were fish downstream at the time that my client’s activities introduced the silt and, even if there were, you can’t prove that they were killed.”;
  • “Those fish aren’t commercially useful, and you haven’t proved that they are an important enough food source for salmon that they can be said to ‘support’ a commercial fishery”;
  • “Other factors might have contributed to the death of those fish eggs – you can’t prove it was because of the silt caused by my client.”

If “serious harm” is the test, it’s going to require a lot more field work, a lot more evidence, and a lot more argument by lawyers, before anyone can be charged or convicted.  

A tale of two Fisheries Acts

We’ve reported on these changes before – a very similar set of amendments were leaked to fisheries biologist Otto Langer some weeks before the Budget Bill was introduced, although at the time we hoped that the leak was wrong. 

However, there are reasons to hope that the federal government will recognize that it is moving down a politically (not to mention scientifically and ethically) indefensible path with these amendments. 

First, the amendments we’ve told you about above only become law when Cabinet says that they do, and the government has taken the very unusual step of enacting another, less offensive, version of the Fisheries Act amendments in the meantime through the Budget Implementation Bill. This means that Cabinet will have a choice about whether, and when, the “serious harm” version of the Fisheries Act is enacted into law. 

Bizarre as it seems, the Bill contains two contradictory amendments to section 35 of the Fisheries Act, and to associated amendments.  The first, which will automatically become law when the rest of the Bill is signed into law, does not repeal the protection for fish habitat (although it does arguably increase the government’s ability to provide exemptions to that protection through regulations). The second, which is the “serious harm” version, will only become law if Cabinet says it does. 

We’ve never seen this type of drafting done before, and it seems likely that it’s being done to give Cabinet a choice of whether to proceed down this road, perhaps after seeing what type of public reaction the proposed “serious harm” provisions get.  This suggests that on this change to environmental laws, at least, the government is worried – and needs to hear from everyone who thinks that the amendments are a bad idea. 

We are concerned that by focusing on the “serious harm” provisions we are failing to direct your attention to the concerns about other Fisheries Act amendments.  The version that would come into force with the Budget Bill includes provisions that would allow the federal government to declare that parts of the Fisheries Act will not apply to a province that, in the view of Cabinet, has equivalent legal provisions for the protection of fish and that has entered into an agreement the federal government regarding fisheries. It also provides increased detail to Cabinet’s powers to authorize destruction of fish habitat through regulations. We have concerns about these changes.  However, we have to assume that the government does intend to bring the extremely harmful, “serious harm” amendments into law at some point, and therefore we are directing our analysis there. 

A second, equally important reason to hope is the response that the leaked amendments received in March and early April.  Two former Conservative Fisheries ministers, the BC Wildlife Federation, 625 fisheries scientists and others weighed in, urging the federal government not to proceed with the amendments.  These are groups and individuals that may be more credible to some Canadians who would not listen directly to environmental lawyers or environmental organizations.  Indeed, it is possible that this outpouring of public opposition is the reason for not proceeding right to the “serious harm” version of the Fisheries Act amendments.

So let the government know that Canadians want real legal protection for fish and fish habitat – not round-about protection that only protects against “serious harm” to stocks that the government considers to be “useful” enough to warrant protection.  Join us in sending a message to the federal government by signing the envirolawsmatter.ca petition.

By Andrew Gage, Staff Lawyer

Salmon photo courtesy of Andrew S. Wright / www.cold-coast.com

[Update 2 May 2012: In a call this morning, Fisheries and Oceans Canada staff informed us that the intent is to bring in the "special harm" version of the Fisheries Act into force as soon as new regulations could be prepared.  The goal is to have these regulations ready, and enact the "special harm" provisions, roughly 6 months after the Budget Implementation Bill becomes law, although it is possible that it will take longer.]

* - We do not intend to pre-judge how a court will interpret the definition of “serious harm.”  The interpretation we suggest here is a likely one, but it is possible that a court would find that the word “permanent” was intended to apply only to the word “alteration”, and not to “destruction”.  If this is Parliament’s intent, the preferable way to express this would be to reverse the two terms: “destruction, or permanent alteration.”  This drafting would not address many of the concerns raised in this post, but would be preferable to the drafting currently proposed.