We applaud the Standing Committee's review of the Fisheries Act for recognizing and supporting habitat protection for all fish, yet the report falls short on other critical issues.
Since coming to power, the federal government has talked about restoring federal environmental laws gutted by the Harper administration in 2012.
On February 24, the House of Commons Standing Committee on Fisheries and Oceans (FOPO) released its report on the Fisheries Act review, which began half a year ago. In the report, the Committee recommends restoring protections of fish habitat lost when the Harper-era Jobs, Growth and Long-Term Prosperity Act (Bill C-38) was passed in 2012.
Enacted in 1868, the Fisheries Act is Canada's oldest environmental law, and the principal federal statute that manages Canadian fisheries resources. Before the 2012 environmental law rollbacks, Section 35 of the Fisheries Act prohibited any work or undertaking that resulted in the "harmful alteration or disruption, or the destruction" (commonly referred to as HADD) of fish habitat. Bill C-38, however, expanded the ways government could authorize harm or destruction of fish habitat and raised the bar on what constitutes a "serious harm" to fish.
In effect, it meant that only certain fish -- those part of a commercial, recreational or aboriginal fisheries - would be protected by the law from serious harm, now defined as "the death of fish or any permanent alteration to, or destruction of, fish habitat". In other words, Bill C-38 resulted in the near elimination of fish habitat protection, which is the single most important factor responsible for the decline and loss of species.
In 2016, Ecojustice lawyers Margot Venton and Randy Christenson were among 50 witnesses who presented to the Standing Committee, which also received 189 written submissions. Our written brief outlined five key recommendations for reversing Harper's harmful legislative changes, and for further improvements.
These recommendations included the need for habitat protection to be broad, precautionary and address cumulative harm to and loss of fish habitat. We also recommended that habitat protection and discretion to authorize harm needed to be both enforceable and well-enforced. Several of our recommendations, and those proposed by stakeholders, were included in the Committee's report, which contains 32 recommendations in total.
Without fish habitat there are no fish
Overall, we are pleased the Committee recognized and supported the need for an ecosystem approach to fisheries protection. This approach requires protection of all fish habitat for healthy fish populations. As emphasized in our submission, without fish habitat there are no fish -- together they are interconnected parts of an ecosystem. We are encouraged by the following important recommendations made by the Committee, which Ecojustice endorsed in our submissions:
- Restore direct protection of fish habitat by returning to the previous habitat provision prohibiting works, undertakings or activities that cause harmful alteration, disruption or destruction of fish habitat;
- Ensure that the habitat protection provisions apply to protect fish habitat from certain destructive fishing practices. This is a significant change, which if implemented, would address the hole in habitat protection that was the motivation behind our case from 2004, on behalf of the Ecology Action Centre, about the damage to fish habitat caused by bottom dragging on Georges Bank (Ecology Action Centre Society v. Canada (A.G.) 2004 FC 1087); and
- Address the cumulative risk to fish habitat of multiple activities, which has never been addressed in law before.
- Protect at-risk or struggling fish stocks;
- Increase transparency of decision-making including a public registry;
- Reduce reliance on project proponent self-assessment; and
- Introduce a reporting structure that requires the Department of Fisheries and Oceans Canada to report to the Committee within two years of the Fisheries Act revision detailing authorization requests and decision timelines.
These are all issues raised by many groups during the review and inclusion of these recommendations are important steps forward.
Room for improvement
While we support the majority of the recommendations, there are areas in need of further attention. For example, effective enforcement of the Fisheries Act has been a chronic weakness, and while there are recommendations for improved enforcement, there is no mention of enabling citizen enforcement, which we had proposed and would have liked to have seen considered. There is mention of an advisory committee on enforcement, but it is unclear if the committee will include conservation organizations. As well, recommendations ensuring Ministerial discretion be subject to transparency principles and public disclosure are strong, but vague. Details about how this will occur will be important.
There are no recommendations addressing concerns over Aquaculture Activities Regulations exempting fish farms from fish habitat protection and pollution prevention provisions, nor any about the need to enhance protection for environmental flows, which are both important considerations. Finally, there are no recommendations concerning outdated fishing provisions or a broader overhaul to modernize the Fisheries Act. We feel this still needs to be addressed.
The report is expected to influence the drafting of a revised Fisheries Act, and the test will be how these recommendations get translated into an improved Act. We will continue to monitor the process and ensure that Canadians get a strong Fisheries Act that will effectively protect these important resources for generations to come.
This piece was written by Ecojustice lawyers Margot Venton and Randy Christensen and Ecojustice scientist Liat Podolsky. As Canada's only national environmental law charity, Ecojustice is building the case for a better earth. Learn more at ecojustice.ca, or subscribe to receive updates from us via email.
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