Thanks.
We've heard so far under Bill C-68 that large projects will be managed either by permits as designated projects or by authorizations, and we support this. We've also heard that low-risk projects will be regulated by codes of practice, and we support this as long as they fully avoid harm, which DFO has clearly stated is the intent.
For example, CEPA is speaking next, and if a pipeline is placed under a stream using a horizontal directional drill without disturbing the stream bed, this should fully avoid harm and seems like a suitable candidate for a code of practice. But this still leaves out a third class of projects: the countless small projects that do cause harm, and it's really unclear how they'll be managed. We're deeply concerned that DFO intends to include projects under codes of practice that actually do cause harm, and this harm won't be compensated for.
Take stream crossings, for example. It's been suggested that properly designed stream crossings don't cause harm as long as they pass fish, but any biologist will tell you that blocking fish passage isn't the only harm caused by stream crossings. If we take the example of a culvert, there's infilling on each side of the culvert. If the culvert has a closed bottom, then it eliminates habitat in the middle of the stream. Then, of course, there's riparian habitat loss on both sides, which occurs basically for any stream crossing.
A culvert example is on the small end of the scale in terms of small projects that cause harm. Other examples of bigger projects that aren't currently addressed under the Fisheries Act include the expansion of wharves, piers or jetties, extending shorelines, and channelizing streams. Definitely anything that infills aquatic habitat leaves residual harm and needs to be compensated for because right now, when you put all of these projects together, the cumulative effect is a significant problem.
How are small projects that harm fish currently managed by DFO? Flat out, some aren't. Proponents self-assess and might not choose to even notify DFO even though there is residual harm. If they do submit a request for review, DFO's now established formal triage thresholds are based on perceived habitat importance. For example, proponents can destroy up to 100 square metres of “important” habitat or up to 1,000 square metres of low-quality habitat without triggering an authorization. What counts as important or unimportant is entirely subjective. It's definitely not based on science at this stage.
If the project is small enough, the proponent is given a letter of advice on how to proceed. The problem is that this letter is an extra-legislative mechanism. The projects aren't tracked, the conditions of the letter are not enforceable, and no compensation is provided for the residual harm of the project.
What do DFO scientists think about this? A group of them, led by DFO's chief scientist, published a peer-reviewed paper and concluded that to achieve no net loss, all projects that are not authorized need to result in zero death of fish or zero residual harm to habitat or an improvement to habitat, and this is not currently the case.
Ken Minns, a retired DFO research scientist, concluded that under DFO's current approach to managing small projects, the continued net loss of productive capacity appears inevitable. Under this framework no net loss is really slow net loss.
Again, currently under the proposed framework projects that avoid harm will be regulated by codes of practice and those that cause HADD will still require authorizations or permits. What's going to happen to the small projects that cause residual harm? Either letters of advice will still be issued and residual harm will still accumulate, something that's flat out unacceptable to anyone who cares about fish habitat, or thousands of small projects are going to require authorizations. I assume when I say that some of you, and certainly our industry partners, are thinking, “God, these guys want DFO to authorize everything”. Trust me, that's not the case. Authorizing all these small projects would create a massive bureaucracy. It would create delays, uncertainties, costs, and liabilities for proponents, and it would really only produce questionable environmental benefits. A whole bunch of tiny one-off offsets are unlikely to address the real restoration priorities that we have in Canada. There are definitely better ways to solve this problem.
One solution is to set up an alternate permitting process for small projects, where proponents can register online and receive a permit automatically—no delays, no uncertainty. The permit conditions would have to be enforceable. They would have to require that proponents first avoid, then mitigate harm, following best management practices, and this process would have to be accompanied by random audits to ensure that proponents are accountable and evaluate the effectiveness of the system. Overall, this would definitely be more efficient and it would allow DFO to assess cumulative effects, but we still need to address the residual harm from these projects.
There are several ways to do this that would be better for fish habitat than individual offsets. Big proponents might simply be able to use credits from their own existing habitat banks under the new habitat banking framework, but that leaves small proponents and private landowners out in the cold.
These proponents need to be able to purchase credits from existing habitat banks. For that, we need an amendment to enable third-party habitat banking, or DFO could collect a fee in lieu of an offset and pool these fees in a dedicated fund similar to the environmental damages fund. This could later pay for meaningful, high-priority restoration projects in the same service area, but again, an amendment is needed to enable this tool.
Finally, it might be even be possible to include specific requirements for compensation activities for some project types in the permit conditions, or possibly under codes of practice, as long as these conditions were enforceable. These recommendations are outlined in our brief. We also support recommendations made by Ecojustice on this issue.
Generally, though, we’re open-minded to any alternative solution that solves this problem, and need to emphasize that this is the primary modern safeguard that needs to be established under Bill C-68.