20160827_BC_BabineRiverSalmonSpawning_DHerasimtschuk-DSC00594.jpg

Can Canada Save Its Fish Habitat Before It’s Too Late?

Thirteen years ago, Canada’s Department of Fisheries and Oceans (DFO) issued almost 700 authorizations to projects that would negatively impact fish habitat, mostly in the resource extraction sector: forestry, mining, oil and gas.

By last fiscal year, that number had dropped to 74.

One would think that’s a positive sign. Perhaps the DFO approved far fewer projects, echoing its ambitious 1986 commitment to “no net loss” of fish habitat?

That wasn’t the case.

Thanks to a number of changes — mostly via the “Environmental Process Modernization Plan” of the mid-2000s and the Conservative Party’s industry-led gutting of the Fisheries Act in 2012 — most projects are now “self-assessed” by proponents.

Over the same span, the DFO’s budget was repeatedly slashed, increasingly undermining the department’s ability to monitor and enforce contraventions with “boots on the ground.”

“Harm is happening at the same levels that it always has been,” says Martin Olszynski, assistant professor in law at University of Calgary who specializes in environmental, water and natural resources law. “It’s just that fewer and fewer proponents are coming to DFO and asking for authorization. That’s the reality on the ground.”

In other words, over the past decade the government abdicated responsibility for ensuring the protection of fish habitat to the private sector while simultaneously reducing the ability for the responsible department to actually ensure compliance.

The federal government is currently reviewing Canada’s fish habitat protection regime via a standing committee and public consultations, with recommendations expected in early 2017.

Its verdict could determine the fate of millions of trout, salmon, pike, bass and halibut, which could in turn impact the future of projects like the Mount Polley mine, the Kinder Morgan Trans Mountain pipeline and the Pacific Northwest LNG export terminal.

Fish Habitat No Longer Explicitly Protected

The specifics of fish habitat protection are very complex, involving lengthy acronyms, highly precise wording and subsections of subsections.

Such details also matter a great deal.

Maude Barlow of the Council of Canadians and Mark Mattson of the Lake Ontario Waterkeeper argued in the 2014 that “the Fisheries Act was arguably the most important piece of anti-pollution legislation in Canada,” while Linda Nowlan of the WWF described it as “Canada’s strongest environmental law.”

There’s a reason that Barlow and Mattson phrased it in the past tense. As part of the Conservative government’s overhaul of environmental assessment processes via its infamous 2012 omnibus bill, Section 35 of the Fisheries Act was completely rephrased.

No longer did it refer to the “harmful alteration, disruption or destruction of fish habitat,” known as HADD. Instead, the act prohibited “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery,” with “serious harm” defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat,” known as as DPAD.

The difference between HADD and DPAD may seem small. But there’s a good reason that 625 scientists signed a letter to Stephen Harper in 2012 opposing the change.

The act no longer explicitly prohibits damage to fish habitat. Instead, it focuses on protecting “fisheries” and muddies the waters with the idea of a “permanent alteration.” This meant that project proponents don’t have to be overly concerned about the DFO cracking down as the concept of “permanent harm” is so ambiguous.

“It’s a lot easier to look at a stream or river or marine area and decide the habitat has been ‘altered, disturbed or destroyed’ rather than, you know, finding the dead fish and tying that back to a particular activity like somebody bulldozing the side of the stream or something,” says Nowlan, who now works as staff counsel at West Coast Environmental Law.

DFO Gave Self-Assessment Powers to Companies

It’s not like all was well pre-2012.

Olszynski says the number of referrals (which he describes as “inquiries or authorization requests from proponents”) gradually dropped from 13,000 to fewer than 3,500 between 2003 and 2014, accompanying the fall in actual authorizations. At that time, any authorization by the DFO triggered a mandatory environmental assessment (EA).

However, the DFO didn’t have the capacity to conduct basic screening for every project, let alone a full EA as mandated by the Canadian Environment Assessment Agency.

As a result, Olszynski says the department started to divert projects from the “authorization stream” by sending letters of advice and operational statements to proponents building “low-risk” projects, with the info describing mitigation measures and requests that proponents notify the DFO when they were proceeding.

That meant that companies were largely responsible for ensuring that fish habitat was protected with very little oversight, especially in the North.

Cumulative Effects of Thousands of ‘Minor’ Projects Unchartered

Even that meagre voluntary requirement disappeared in 2012. Today, proponents can’t notify the DFO of proposed projects even if they want to: the system has since been replaced with a “self-review” website that provides information about what projects do and don’t require authorization.

Although the new Fisheries Act wasn’t actually implemented until November 2013, the number of referrals to the DFO dropped dramatically after it was announced in 2012, which Nowlan says “sent a message out to the world that habitat wasn’t as important.”

That was compounded by the aforementioned decline in enforcement, as well as a failure to increase penalties to a level that actually deters bad behaviour.

“In 2012, a big shift was instead of having habitat biologists and protection officers on the ground, out there, able to give fines and all the rest of it, you have people either fired or shifted to different positions,” says Nikki Skuce, project director of Northern Confluence. “There was a whole bunch of offloads.”

Nowlan says there haven’t been any prosecutions for fish habitat damage in Canada since, which is “quite astonishing.”

This has also resulted in even less information available to the DFO. One of the major impacts of this is the inability to assess cumulative effects of projects, such as how a series of small individual withdrawals of water from a river or stream changes flow rate. Together, thousands of minor projects could have massive combined impacts on fish habitat.

If actually tracked, such cumulative effects could be input into databases analyzed via maps and GIS software. Olszynski says that, eventually, the government could begin to tailor regulatory regimes and offsetting requirements to what’s happening on the ground.

“Over a couple of years, hopefully, DFO would start to develop a better sense of the activity on the watershed,” he says. “That’s part of that ability then to finally answer the question that DFO has never been able to answer, which is ‘what’s happening with fish habitat in Canada?’ ”

‘You Have to Have Habitat to Protect Fish’

There are many things the Standing Committee on Fisheries and Oceans could recommend to the Minister of Fisheries and Oceans Dominic LeBlanc to correct some of these issues.

Rephrase Section 35 to refer to explicitly refer to habitat destruction. Alter the act to account for cumulative effects. Commit far more funding to the DFO for monitoring and enforcement to help create a sense that someone’s paying attention; Skuce notes it’s also important to retrain staff to know what to look for and ask the right questions.

Establish a means for proponents of “low-risk” projects to report progress to the DFO. Create a public registry of authorizations, with the long-term goal of crafting appropriate regulations that respond to real-world events. Work with Indigenous nations under the terms of the the United Nations Declaration on the Rights of Indigenous Peoples.

Many seem optimistic the government will make the most of the opportunity to restore protections to pre-2012 levels and exceed them with “modern safeguards.”

Olszynski says the DFO’s consultation website for the review process is “pretty first rate” in terms of online engagement and suggests the department is thinking seriously about some of the issues.

Skuce also notes the minister’s father, Roméo LeBlanc, was responsible for implementing habitat protection in the first place in 1977 and that she hopes his son can “do the same thing but even better.”

Tweet: ‘It’s such a no-brainer. You have to protect habitat to protect fish.’ http://bit.ly/2fTtNIL #bcpoli #cdnpoli @Min_LeBlanc @JustinTrudeau“It’s such a no-brainer,” Skuce says. “You have to protect habitat to protect fish. The sooner they can do it the better as we’re seeing declining salmon stock and projects being permitted. We’d really like to see this happen sooner rather than later.”

Image: Freshwaters Limited

New title

You’ve read all the way to the bottom of this article. That makes you some serious Narwhal material.

And since you’re here, we have a favour to ask. Our independent, ad-free journalism is made possible because the people who value our work also support it (did we mention our stories are free for all to read, not just those who can afford to pay?).

As a non-profit, reader-funded news organization, our goal isn’t to sell advertising or to please corporate bigwigs — it’s to bring evidence-based news and analysis to the surface for all Canadians. And at a time when most news organizations have been laying off reporters, we’ve hired eight journalists over the past year.

Not only are we filling a void in environment coverage, but we’re also telling stories differently — by centring Indigenous voices, by building community and by doing it all as a people-powered, non-profit outlet supported by more than 2,500 members

The truth is we wouldn’t be here without you. Every single one of you who reads and shares our articles is a crucial part of building a new model for Canadian journalism that puts people before profit.

We know that these days the world’s problems can feel a *touch* overwhelming. It’s easy to feel like what we do doesn’t make any difference, but becoming a member of The Narwhal is one small way you truly can make a difference.

We’ve drafted a plan to make 2021 our biggest year yet, but we need your support to make it all happen.

If you believe news organizations should report to their readers, not advertisers or shareholders, please become a monthly member of The Narwhal today for any amount you can afford.

James Wilt is a freelance journalist based in Winnipeg, Manitoba. He holds a journalism degree from Mount Royal University in…

‘Localized harassment’: RCMP patrol Wet’suwet’en territory despite UN calls for withdrawal

On Valentine’s Day, a small group of Wet’suwet’en people gathered outside a Coastal GasLink pipeline work camp in northwest B.C. to hold a ceremony to...

Continue reading

Recent Posts

Help power our ad-free, non‑profit journalism
Get The Narwhal in your inbox!

People always tell us they love our newsletter. Find out yourself with a weekly dose of our ad‑free, independent journalism