Canada’s fishery laws are back — well, on the first step to being back, at least. On Tuesday morning, Minister of Fisheries and Oceans Dominic LeBlanc officially announced the introduction of an heavily amended Fisheries Act, the key piece of legislation that was gutted in 2012 by the federal Conservatives. And fishery law experts are thrilled.

“The government’s made good on its promises,” said Linda Nowlan, staff lawyer and head of the West Coast Environmental Law’s marine program. “They’ve not only restored lost protections, especially for fish habitat, but they’ve also introduced a number of modernizations that were long overdue.”

It’s also being hailed on the East Coast.

“This is like Christmas Day for fishery policy nerds,” said Brett Favaro, research scientist at the Fisheries and Marine Institute of Memorial University.

‘You can’t protect fish without protecting fish habitat’

The most significant change is restoring the “HADD prohibition” — which stands for the “harmful alteration, disruption or destruction” of fish habitat. That meant the minister had to specifically authorize any activities that would result in impacts of fish habitats.

That key provision was removed in 2012 and replaced by a prohibition against “the carrying on of a work, undertaking or activity that results in serious harm to fish that are part of or support a commercial recreational or Aboriginal fishery.”

In other words, it seriously limited the scope of the legislation.

In March 2012, a letter signed by over 600 scientists was submitted to then-prime minister Stephen Harper that argued the change would be a “most unwise action, which would jeopardize many important fish stocks and the lakes, estuaries and rivers that support them.”

The new approach was considered impossible to enforce. Nowlan said there were zero prosecutions for fish habitat damage between 2012 and 2016.

“You can’t protect fish without protecting fish habitat,” said Nikki Skuce, director of Northern Confluence, which works to protect wild salmon watersheds in northwestern B.C. “It’s really great to see habitat protections restored in the new Fisheries Act and measures in place to address cumulative effects to rivers such as the Fraser and Skeena.”

The return to the “HADD” provision removes any ambiguity in what constitutes protected fish habitat.

“If there’s fish there and they live there, it’s fish habitat,” Favaro said. “And you’re not supposed to destroy it unless you get permission to do so by the minister.”

New provisions include public registry, management agreements with Indigenous bodies

But the amended Fisheries Act doesn’t just revert the legislation back to how it was before the changes in 2012 — after all, that version hadn’t been updated since 1977 when it was introduced by Minister LeBlanc’s father.

Tuesday’s announcement included a series of significant modernizations.

Those include granting the ability to implement short-term restrictions on fisheries in the case of emergencies, like the recent right whale die-off; prohibiting the capturing of whales for keeping in captivity; requiring the minister to consider the rebuilding of fish stocks; making explicit acknowledgments and requirements to include Indigenous peoples and knowledge systems; allowing for Canada to enter into management agreements with Indigenous governing bodies; and granting the use of alternative compliance mechanisms.

There’s also a new online public registry meant to increase transparency. Nowlan explained that this will help prevent cumulative impacts to fish habitat, as it’s often small projects that build up to damage ecosystems (as opposed to one larger, more visible project). Favaro said such a registry will help keep track of the small cumulative impacts and allow people to decide if we’re achieving the goal of no net loss of fish habitat.

“Right now, we don’t even know all the activities that are happening and impacting fish habitat,” Skuce said. “That’s a strength of the new Act.”

The government also pledged $284 million over five years to improve enforcement of the new laws.

Minister still has a considerable amount of discretionary power

It’s not all perfect though.

Martin Olszynski, assistant professor in law at University of Calgary and expert in fishery law, said there’s an unfortunate use of “discretionary language,” meaning that many components of the proposed legislation are basically up to the opinion of the minister — and requiring no specific evidence.

While he noted that some issues are very complex and that flexibility can be required, the “old-school language” of ministerial discretion does leave a lot of doors open.

“There are some mandatory provisions, but definitely there is still a lot of that discretionary language,” he said. “The question is just whether or not in after spending some time on those issues, are there some objective criteria or benchmarks that could be included that would help frame that discretion?”

For example, there’s a section about implementing measures to manage the decline of fish stocks. The newly amended legislation includes the phrase “if the Minister is of the opinion that a fish stock that has declined to its limit reference point or that is below that point would be impacted.” That’s not satisfactory for some.

“I was hoping for a line that was not ‘if the minister is of the opinion that a fish stock has declined,’ but ‘if the fish stock has declined as determined by the best available evidence then there should be measures in place aimed at rebuilding the stock,’” Favaro said.

As he noted, the current wording could feasibly mean that a minister can simply “not believe” that fish stocks have declined, or take it into account and decide not to act.

Missing provisions

Observers have also found a number of omissions from the new Act.

Olszynski noted there’s no reference to an annual or biannual report on fish habitat in Canada. He says there is also a lack of clarity about how the new Fisheries Act will relate to the upcoming impact assessment legislation that will replace the current Canadian Environmental Assessment Act).

Skuce, the World Wildlife Fund Canada and Green Party leader Elizabeth May all criticized a lack of provisions on harvesting fish via fish farms.

Kris Statnyk, a Gwich’in lawyer with Mandell Pinder, tweeted: “Among the mandatory considerations BC First Nations sought that do not appear in the discretionary list in the Bill: compliance with UNDRIP, consistency with international standards and commitments, climate change, First Nation fishing and management plans.”

Bill expected to become law in 2019

It will take some time for Bill C-68 to wind its way through parliamentary committee, and it’s not expected to become law until mid-2019.

Olszynski said he’s looking forward to seeing how the committee studies the bill and which witnesses they bring in. Along the way, he said that the Department of Fisheries and Oceans could  be clearer on some of the more ambiguous provisions in the new legislation.

But on the whole, Tuesday was a huge win for advocates of stronger environmental laws.

“I hope we’ve learned from our mistakes,” Nowlan concluded. “More than 25 years ago, we had the Atlantic cod collapse. Now, we’re seeing more and more salmon populations being proposed as species at risk. Canada’s fisheries law really needs to do a better job of protecting fish and their habitat, and these amendments look like they’re going to take a big step in that direction.”

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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.”

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.

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

Can Canada Save Its Fish Habitat Before It’s Too Late? https://t.co/HqMiE7wbdc #cdnpoli #FisheriesAct @WCELaw @molszyns @nikkiskuce pic.twitter.com/bHqYTgLHJD

— DeSmog Canada (@DeSmogCanada) November 14, 2016

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.”

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.”

“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

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