Proposed Changes to Fish Habitat Provisions of the Fisheries Act

April 18th, 2012 by Laura Bowman and Paula Boutis

In mid‑March 2012, a number of news outlets reported that the Harper government is looking at significant changes to the wording of the Fisheries Act after they were leaked to Otto Langer.

Section 35(1) of the Fisheries Act currently states, “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.”

This section of the Fisheries Act currently protects all fish (and by extension all aquatic) habitat in Canada equally, without the need for the public or regulators to prove that the habitat has a subjective value.  Those wishing to harm fish habitat must apply for a permit, a requirement that triggers a federal environmental assessment and allows permit conditions to be imposed to reduce the harm done.

The Proposed Amendments

No official proposals have been tabled in the House of Commons or released for public consultation.  The leaked amendments reported in news media would see the term “habitat” replaced with the phrase “fish of economic, cultural or ecological value” and the phrase harmful alteration, disruption or destruction with “adverse effect”.  See the full list of proposed amendments here.

These changes would mean that a prosecutor or regulator would need to prove or provide evidence that the fish population threatened by destruction of its habitat is of “economic, cultural or ecological value.”  Consequently, it could be easier to destroy fish habitat.

Moreover, the changes would make the process of determining whether to issue a permit to destroy fish habitat a question of opinion rather than fact.  The “value” of the fish, arguably something which is entirely subjective and ever changing, could be assessed in a way which allows destruction of fish habitat without a permit.

For example, under the amendments, a proponent could provide a consultant’s opinion to DFO that states that the aquatic habitat in question is marginal or of low quality, resulting in no permit or conditions being required if DFO agrees.  These methods (providing arguments regarding fish habitat quality to justify harm) are already used by proponents, however they cannot successfully circumvent the requirements of the Fisheries Act as it is worded right now.  If the proposed amendments are brought in, they will.

Effect on the Environmental Assessment Process

Currently, to trigger an environmental assessment, fish advocates need only show that the project will disrupt fish habitat.  For example you need only determine that the project alters a watercourse, and there are fish in the watercourse.  Fish are easily found in watercourses making the process transparent and easy to determine for non‑experts.  The threshold in the current section is low, essentially if the project will interfere with fish habitat, the requirement is triggered.

With the proposed amendments, there would be considerable latitude for proponents to argue that no environmental assessment is required based on whether the fish are of value, and whether the activity would cause an “adverse effect”.  In a dispute about whether a federal environmental assessment is required, the fish advocates would have to get expert opinions on the type of fish, their value, and the extent of the harm.

This will almost certainly mean that very few projects are subject to either federal permits or environmental assessments.  The upshot is that conditions that could mitigate harm would not be imposed.  It would also leave a large number of projects that are currently assessed federally un‑assessed from an overall environmental perspective.

While the Harper Cabinet argues it is simply speeding up bureaucratic processes related to pipeline projects, the legacy of the section 35 amendments could be significant and the new provisions could very well lead to immeasurable Fisheries Act enforcement difficulties in the future.

For more, be sure to read Otto Langer’s response to the Minister’s defense of the changes.

Filed in: Environment

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