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Will Bill C-38 offload fisheries to the provinces?

15 June, 2012

Bill C-38, the Budget Implementation Bill, with its various amendments to Canada’s environmental laws, is a complicated statute, with many long-term implications that have not been fully explored.  One of the most significant, however, has to be the possibility that the Bill may have the effect of offloading responsibility for the protection of fish habitat to some or all of the provinces. 

The might sound a bit far-fetched, given that none of the provinces have been clamouring to take over the responsibility for fish and fish habitat (unlike, say, environmental assessment, which some provinces can’t wait to take over).  But although there is no apparent provincial appetite for offloading, the amendments create both:

  • a legal mechanism for the offloading of responsibility for fish habitat, and
  • a weakening of fish habitat protection provisions that will leave gaps that put pressure on provinces who wish to see responsible stewardship of fish and fish habitat.. 

In a backgrounder released today we outline how, if this offloading occurs, it is likely to result in a significant additional burden on cash-strapped provinces, and, as a result, less effective protection of fish and fish habitat, and inconsistent protection between jurisdictions.  This would mean a less efficient, and less effective, Fisheries Act for all of Canada.

Offloading Fisheries

The legal mechanism for offloading responsibility for fish habitat is found right near the start of Bill C-38’s Fisheries Act amendments, suggesting that the federal government attaches a fair level of importance to them.  Section 134 of the Bill would allow the government to:

  • enter into agreements with a province for a variety of purposes, and then
  • suspend all or part of the Fisheries Act in that province in favour of provincial laws agreed to in such an agreement.  Due to some odd language in the section, it is not clear that the provincial laws even need to be equivalent to the Fisheries Act

As we say in our backgrounder:

… [T]he provision goes beyond providing for cooperation between the two levels of government, and actually contemplates removing the federal role in respect of parts of the Fisheries Act.  This goes well beyond the cooperation required in existing federal-provincial agreements on fish habitat and other fisheries matters.  … [T]here does not appear to be any limit on which provisions of the Fisheries Act might be so suspended, or on how much of the Act could be offloaded in this way.  [However, T]here are unanswered legal questions about the extent to which the federal fisheries powers can be delegated in this way, and legal challenges  are a significant possibility if delegation does occur.

Why would a province want to accept responsibilities for fisheries?

Bill C-38 does not, of course, force the province to accept the offloading of fisheries related responsibilities.  So why would a province want to take on such a responsibility in these cash-strapped times? 

Interestingly, at least one conservative think tank – the Frontier Centre for Public Policy – has argued that the provinces should take over fish habitat laws – arguing that the federal laws protecting fish habitat are overly onerous, and an intrusion into Manitoba’s rural economy.  In 2004 Stephen Harper, then leader of the Opposition, was asked by the Centre about the possibility of “the provinces [regaining] control over their fisheries.”  Mr. Harper replied:

I am open to some of that discussion. I have said even in the case of off-shore, that I would like to see more resource jurisdiction to the provinces. I would think that with inland resources, there would be a lot of room for a lot more local and provincial control over those matters. I am very open to that ...

So one reason that a province might wish to take over fish habitat protection under an agreement under the amended Fisheries Act might relate to its belief that the federal fish habitat protection is overly onerous, and that a weaker or more flexible provincial regime was possible.  This is a concern for anyone who believes in strong, nationally-consistent protection of fish habitat. 

However, with Bill C-38 also making sweeping changes to the fish habitat provisions of the Fisheries Act, some provinces may now find themselves in the opposite position – of considering whether to take over the protection of fish habitat because the new regime includes inadequate protection for fish and their habitat.  Former federal Fisheries Ministers, scientists, and others have sound the alarm on these changes to the habitat provisions of the Act. 

What’s so awful about the habitat protection provisions?

We’ve explained previously why the Fisheries Act amendments in Bill C-38 related to fish habitat are a serious problem for anyone interested in fish.  Instead of regulating anything that harms fish or fish habitat (as the current Fisheries Act does), the amendments will only regulate activities which cause “serious harm” to fish.  As we have explained:

“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.

The government has tried to insist that the amendments only reduce legal protection for less useful fish species, or “ditches” or other less important fish habitat.  So let’s be clear: salmon and salmon fry swimming in their spawning streams will have much less, and very incomplete, legal protection if the “serious harm” amendments go through. 

In fact, if the “serious harm” provisions become law, the result may be a no-win situation in which provincial governments must either accept inadequate protection of fish habitat, or chose to step in and take on such protection themselves, with the resulting cost and responsibility.

A patchwork of habitat protection

The power to offload, combined with poor legislation, is an invitation for environmentally minded provinces to negotiate an offloading of habitat powers, even if those provinces might not wish to take over this responsibility. 

Indeed, the BC Wildlife Federation has already warned of this possible result (albeit before the precise amendments contained in Bill C-38 were clear, but their analysis remains sound):

The alteration of the provisions of Section 35 of the federal Fisheries Act would be a major step backward for [Fish] resources.

If this approach is taken, groups such as ours will press the province to address the protection of aquatic habitat in legislation such as the proposed provincial Water Act. The potential mosaic of habitat provisions will not be in the interests of the environment, industry or Canada.

Even if provincial laws could compensate for the inadequate protection of fish habitat contemplated by Bill C-38, which is uncertain, other results would include:

  • Increased costs to already cash-strapped provinces, including a need for provinces to hire staff with additional expertise;  As a result, the enforcement of fish habitat provisions may well be less well funded than it is at the federal level; 
  • Reliance on provincial governments that often have a poor track record when it comes to protecting fish habitat.  For example, Fisheries and Oceans Canada has in the past criticized BC’s forestry laws for allowing harmful alteration of fish habitat.  Provinces are often subject to political pressure from significant economic interests. 
  • The loss of a consistent national standard for fish habitat protection, resulting in an economic advantage to jurisdictions which implement weaker standards;
  • New provincial infrastructure and programs, and a new status quo, which might create political barriers to a future Federal government seeking to reassert a meaningful federal role in fish habitat protection. 

We are not suggesting that the current government intends these results, but we think that Bill C-38 and its Fisheries Act amendments will likely have these effects over time. 

By Andrew Gage, Staff Lawyer

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