Fishy Fishing with the Fisheries Act

You know, I have been railing against the Harper Government for so long that it is even boring for me. I was one of those people after the last election thinking: well, how bad could their majority really be? Sure, he will continue to harm the economy by throwing more eggs in the Oil basket, and cutting taxes on the wealthy to create false crises as an excuse for future gutting of social programs, but he is a cagey politician and pretty shrewd, so he won’t go too far, lest Canadians get itchy and dispatch him next election. Maybe in the meantime, he will actually bring on some promised Senate or electoral reform or cut those MP Pensions. Remember Steve, your Reform Party mantra? that could be helpful in the long-term. I mean, it is only 4 years. How much harm can he do?

Then this story comes along.

To the uninformed, this seems rather innocuous to remove “habitat language” from the Federal Fisheries Act. To people who work in the Environment field, this is a huge thing.

Simply put, the Fisheries Act is the strongest piece of environmental legislation we have in Canada. It overrides all Provincial and Municipal legislation, it is so powerful that even the railways have to follow it – yes, even the Railways! It serves as the primary protection of fresh and marine water quality and aquatic habitat in the Country. From filling ditches in Queensborough to building the Site C Dam, the Fisheries Act is involved. The potential replacement of the Pattullo Bridge, and even the spill response measures for maintaining the bridge, invokes the Fisheries Act. Don’t take me word for it, ask any Envrionmental Professional you know – P.Geo., P.Eng., R.P.Bio, ask then what Canadas most important Environmental Legislation is, 80% will say “Fisheries Act”. (Most of the other 20% will say Species at Risk Act, until you suggest the Fisheries Act, then they will correct themselves. Go shead, try it. If I’m lying, I’ll buy you a pint.)

Because of the Fisheries Act, there are two terms that are ubiquitous in environmental protection in Canada: “deleterious substance” and “HADD”.

The first is what I deal with primarily. According to Section 36(3) of the Fisheries Act, no-one can deposit or allow to be deposited any “deleterious substance” into waters frequented by fish or in any place where the substance may enter water frequented by fish. As for what constitutes a “deleterious substance”, that relies on a pile of guidelines, standards, and reports backed by a huge pile or scientific research on different materials. I deal with this section of the Fisheries Act every day of my working life.

The second part is clearly an acronym: Harmful Alteration, Disruption, or Destruction. Section 35(1) of the Fisheries Act says:

No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

Basically, everything you do in or near an open watercourse that has fish in it, you need to be mindful that there may be fish present, and not harm the environment in a way that harms fish. This provided defacto protection to aquatic birds, invertebrates, amphibians and countless important plant species, while providing an extra level of protection to the quality of the water in our lakes, rivers, and oceans.

You know, that foundations of the ecosystem stuff.

Section 35(2) says that the Minister (or a Governor in Council under any other Act) may grant approval for a HADD. So even this hard and fast rule is really nothing more than an “irritant” for most. It doesn’t stop oil and gas or pipeline development (at least it never has up to now). In essence, every bridge is a HADD, but you don’t see us not building bridges. However, if your works create a HADD you must compensate for that lost habitat, and that almost always means by improving the quality of some nearby adjacent habitat so there is “no net loss” of habitat.

You want to build a ferry slip on this 20m of pristine foreshore? Then spend some money restoring that 20m of hardscape shore over there, and we’ll call it even. Want to put a span bridge across this ditch? Then do a little invasive species management in the riparian area beside the bridge and there will be no net loss. All very reasonable: do your business while protecting habitat. Win-win. These terms are negotiable, and are negotiated every day across the country by fish protection officers. Fish habitat compensation is rarely a significant portion of the capitol cost of a development. If it is, then there is usually a problem with development that needs to be fixed (see Prosperity Mine example).

Of all legislation to protect the environment in Canada, this one is the most straight-forward, the most protective, the most firmly established, and the easiest to understand. Like few things in Government (especially around the environment file), it works! Every Environmental Scientist working in Canada, and most Professional Geoscientists and Engineers who work in or near water, know the words “deleterious substance” and “HADD” and know how to apply them, they have been the law of the land for something like 30 years. Why change it? Is no net loss too much to ask for the Billions of dollars that oil sands development are exporting every year? And why fillet the most important peice of Envrionmental Legislation in the country as part of an Omnibus Budget Bill? How cynical do you have to be to catch these guys?

This laws is so fundamental that most Provincial and Municipal regulation protecting the local environment are designed to specifically dovetail with it, as are Acts regulating farming, forestry, marine navigation, Environmental Assessment… Changing the Fisheries Act language on Habitat may throw all of this other legislation into chaos.

And it may spell the end to our already threatened natural salmon stocks.

…would distract from those “fishy” phonecalls, though.

Elizabeth May tweeted from the House of Commons (at 2:43PDT this afternoon) that rumours have this coming from the PMO, not DFO. That seems obvious, because no-one with a passing knowledge of Fisheries legislation or fisheries science would suggest such a ridiculous change. This is dumb, irresponsible, thick-headed, a really, really bad thing. I have to admit, I never imagined they would do this much harm. I still don’t.

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