Restore habitat protection provisions of the Fisheries Act
Preamble
WHEREAS habitat protection is fundamental to any rational, scientifically defensible scheme for species conservation and management,
WHEREAS the federal government has severely weakened the habitat protection provisions of the Fisheries Act, which is one of the oldest federal statutes, and the major legal framework for the protection of freshwater and salt water habitats; and
WHEREAS the Fisheries Act is being weakened at a time when Canadian aquatic environments are suffering unprecedented and cumulative impacts from many types of industrial development and resource exploitation; and
WHEREAS both non-commercial and commercial fish species are important components of aquatic ecosystems, and therefore worthy of protection; and
WHEREAS one of the key (perceived) reasons given for revising the Fisheries Act – streamlining of environmental project reviews – has been shown to be without foundation, since research has shown that the previous Act did not appreciably delay project approval; and
WHEREAS the revised Fisheries Act gives the Minister of Fisheries and Oceans excessive latitude in permitting degradation of fish habitat and the release of deleterious substances
Operative
BE IT RESOLVED that Green Party of Canada will work to restore the habitat protection provisions of the Fisheries Act, incorporating language that unambiguously protects fish habitat against destruction and contamination, regardless of whether said habitat is part of a commercial fishery, and regardless of whether the fish species protected are commercially valuable.
BE IT FURTHER RESOLVED that the Green Party of Canada will work to limit ministerial discretion in overriding the habitat protection provisions of the Fisheries Act, restricting such discretion to cases where vital economic and social interests are involved, and habitat restoration to pre-disturbance conditions is a possibility.
BE IT FURTHER RESOLVED that language that explicitly protects vulnerable seafloor habitats from the effects of bottom trawling and other activities that may adversely impact the seafloor be incorporated into the revitalized Section 35 of the Fisheries Act.
Background
Of all the changes to environmental legislation wrought by Bill C38 and other omnibus bills, changes to the Fisheries Act are potentially the most damaging.
Changes to Section 35 of the Fisheries Act have gravely weakened its ability to protect fish habitat. The amendments change the focus (and the title) of section 35 from “Fish Habitat Protection and Pollution Prevention” to “Fisheries Protection and Pollution Prevention”. Prior to Bill C38, subsection 35(1) prohibited harmful alteration disruption or destruction of fish habitat (“HADD”). However, subsection 35(2) legalized HADD at ministerial discretion .
The original text of section 35(1) stated “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat”. In 2012, this text was replaced with “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”.
According to Hutchings and Post (2013), this wording has the consequence that a large majority of aquatic habitats in Canada will be unprotected, since they support no commercial or Aboriginal fisheries.
Furthermore, 80% or more of “at risk” 71 freshwater fish species would be unprotected, since they are not part of any commercial fishery.
Additional far-reaching changes to the section 36 of the Fisheries Act are being contemplated by Fisheries and Oceans Canada (FOC). Currently, this section prohibits deposition “of a deleterious substance of any type in water frequented by fish….”. Future changes would permit excessive ministerial discretion in depositing pollutants of all types into aquatic environments.
FOOTNOTES
1. Ecojustice 2012. legal backgrounder: The Fisheries Act https://www.ecojustice.ca/files/fisheries-act
2. Jeffrey A. Hutchings & John R. Post (2013) Gutting Canada's Fisheries Act: No Fishery, No Fish Habitat Protection, Fisheries, 38:11, 497-501. http://dx.doi.org/10.1080/03632415.2013.848345
3. Ibid.
4. Canadian Environmental Law Association (CELA) (2014). E-mail communication to Peter Ferguson, Manager, Legislation and Regulatory Affairs, Fisheries and Oceans Canada. To quote: “In essence, the FOC’s current regulatory proposal attempts to create the general framework for the passage of future (and as yet unknown) federal regulations to exempt various activities from the broad prohibition contained within subsection 36(3) of the Fisheries Act. This prohibition currently provides that subject to regulations, “no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.” “There is an extensive body of Canadian jurisprudence that has helped define or clarify the meaning of the key words and phrases used within section 36(3) (e.g. “deposit”, “deleterious substance”, “water frequented by fish”, etc.). Persons convicted under this prohibition potentially face large fines, imprisonment, restoration orders, and other court-imposed penalties pursuant to subsections 40(2) and 79.2 of the Fisheries Act. For these reasons, subsection 36(3) of the Fisheries Act has long been regarded by CELA and other stakeholders as one of the most important anti-pollution prohibitions in federal law (my emphasis added). If enforced in a timely and effective manner, the deleterious substance prohibition can not only be used to catch, convict and punish polluters, but it can also serve general deterrence purposes in relation to other persons, corporations and industrial sectors that handle or store deleterious substances in close proximity to Canada’s water bodies.”
5. To quote Hutchings and Post (2013): “Between 2006 and 2011, only one proposal among thousands was denied by the DFO, and only 1.6% of 1,283 convictions under the FA between 2007 and 2011 pertained to the destruction of fish habitat (Favaro et al. 2012). As detailed by de Kerckhove et al. (2013), review times for projects under the previous FA actually conform with the new mandated review times articulated by the 2012 revisions to Canadian environmental legislation. These scientific analyses run counter to the political discourse, which argues that environmental reviews are unduly lengthy and are bad for economic growth. In fact, review times in Canada were found to be faster, under the previous FA, than they were in the United
States (de Kerckhove et al. 2013). The absence of a scientific basis for statutory change in this case is a telling example of how scientific advice can constructively assist decision makers before they revise legislation.
Code
Proposal Type
Submitter Name
Party Commentary
This motion is consistent with current Green Party environmental policy.
Preamble
WHEREAS habitat protection is fundamental to any rational, scientifically defensible scheme for species conservation and management,
WHEREAS the federal government has severely weakened the habitat protection provisions of the Fisheries Act, which is one of the oldest federal statutes, and the major legal framework for the protection of freshwater and salt water habitats; and
WHEREAS the Fisheries Act is being weakened at a time when Canadian aquatic environments are suffering unprecedented and cumulative impacts from many types of industrial development and resource exploitation; and
WHEREAS both non-commercial and commercial fish species are important components of aquatic ecosystems, and therefore worthy of protection; and
WHEREAS one of the key (perceived) reasons given for revising the Fisheries Act – streamlining of environmental project reviews – has been shown to be without foundation, since research has shown that the previous Act did not appreciably delay project approval; and
WHEREAS the revised Fisheries Act gives the Minister of Fisheries and Oceans excessive latitude in permitting degradation of fish habitat and the release of deleterious substances
Operative
BE IT RESOLVED that Green Party of Canada will work to restore the habitat protection provisions of the Fisheries Act, incorporating language that unambiguously protects fish habitat against destruction and contamination, regardless of whether said habitat is part of a commercial fishery, and regardless of whether the fish species protected are commercially valuable.
BE IT FURTHER RESOLVED that the Green Party of Canada will work to limit ministerial discretion in overriding the habitat protection provisions of the Fisheries Act, restricting such discretion to cases where vital economic and social interests are involved, and habitat restoration to pre-disturbance conditions is a possibility.
BE IT FURTHER RESOLVED that language that explicitly protects vulnerable seafloor habitats from the effects of bottom trawling and other activities that may adversely impact the seafloor be incorporated into the revitalized Section 35 of the Fisheries Act.
Sponsors
Background
Of all the changes to environmental legislation wrought by Bill C38 and other omnibus bills, changes to the Fisheries Act are potentially the most damaging.
Changes to Section 35 of the Fisheries Act have gravely weakened its ability to protect fish habitat. The amendments change the focus (and the title) of section 35 from “Fish Habitat Protection and Pollution Prevention” to “Fisheries Protection and Pollution Prevention”. Prior to Bill C38, subsection 35(1) prohibited harmful alteration disruption or destruction of fish habitat (“HADD”). However, subsection 35(2) legalized HADD at ministerial discretion .
The original text of section 35(1) stated “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat”. In 2012, this text was replaced with “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”.
According to Hutchings and Post (2013), this wording has the consequence that a large majority of aquatic habitats in Canada will be unprotected, since they support no commercial or Aboriginal fisheries.
Furthermore, 80% or more of “at risk” 71 freshwater fish species would be unprotected, since they are not part of any commercial fishery.
Additional far-reaching changes to the section 36 of the Fisheries Act are being contemplated by Fisheries and Oceans Canada (FOC). Currently, this section prohibits deposition “of a deleterious substance of any type in water frequented by fish….”. Future changes would permit excessive ministerial discretion in depositing pollutants of all types into aquatic environments.
FOOTNOTES
1. Ecojustice 2012. legal backgrounder: The Fisheries Act https://www.ecojustice.ca/files/fisheries-act
2. Jeffrey A. Hutchings & John R. Post (2013) Gutting Canada's Fisheries Act: No Fishery, No Fish Habitat Protection, Fisheries, 38:11, 497-501. http://dx.doi.org/10.1080/03632415.2013.848345
3. Ibid.
4. Canadian Environmental Law Association (CELA) (2014). E-mail communication to Peter Ferguson, Manager, Legislation and Regulatory Affairs, Fisheries and Oceans Canada. To quote: “In essence, the FOC’s current regulatory proposal attempts to create the general framework for the passage of future (and as yet unknown) federal regulations to exempt various activities from the broad prohibition contained within subsection 36(3) of the Fisheries Act. This prohibition currently provides that subject to regulations, “no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.” “There is an extensive body of Canadian jurisprudence that has helped define or clarify the meaning of the key words and phrases used within section 36(3) (e.g. “deposit”, “deleterious substance”, “water frequented by fish”, etc.). Persons convicted under this prohibition potentially face large fines, imprisonment, restoration orders, and other court-imposed penalties pursuant to subsections 40(2) and 79.2 of the Fisheries Act. For these reasons, subsection 36(3) of the Fisheries Act has long been regarded by CELA and other stakeholders as one of the most important anti-pollution prohibitions in federal law (my emphasis added). If enforced in a timely and effective manner, the deleterious substance prohibition can not only be used to catch, convict and punish polluters, but it can also serve general deterrence purposes in relation to other persons, corporations and industrial sectors that handle or store deleterious substances in close proximity to Canada’s water bodies.”
5. To quote Hutchings and Post (2013): “Between 2006 and 2011, only one proposal among thousands was denied by the DFO, and only 1.6% of 1,283 convictions under the FA between 2007 and 2011 pertained to the destruction of fish habitat (Favaro et al. 2012). As detailed by de Kerckhove et al. (2013), review times for projects under the previous FA actually conform with the new mandated review times articulated by the 2012 revisions to Canadian environmental legislation. These scientific analyses run counter to the political discourse, which argues that environmental reviews are unduly lengthy and are bad for economic growth. In fact, review times in Canada were found to be faster, under the previous FA, than they were in the United
States (de Kerckhove et al. 2013). The absence of a scientific basis for statutory change in this case is a telling example of how scientific advice can constructively assist decision makers before they revise legislation.
Party Commentary
This motion is consistent with current Green Party environmental policy.