Thank you, Mr. Chairman.
I'd like to start by wishing you all a very happy Halloween and by thanking you all for the invitation to come speak today and also for accommodating my need to appear by video conference.
I am going to focus most of my attention today on the 2012 changes made to section 35 of the Fisheries Act.
Before the law was revised, the Fisheries Act contained the following text: “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.” Before we get into details about what was changed and what we should do about it, I want to revisit why this law protected fish habitat so explicitly.
As most of you are aware, I am a scientist who works mostly with fisheries. I had the privilege of speaking to you a couple of weeks ago about my work on sustainable Atlantic cod fishing, but my work on catching fish is completely irrelevant if the ecosystems aren't there to produce fish in the first place. This is true of all fisheries. They depend on intact fish stocks, and those stocks depend on intact habitat.
When you protect fish habitat, you are making a smart investment in our country's environmental and economic future. Fish are like fertilizer to Canadian ecosystems. Salmon, in particular, act as giant conveyor belts for nutrients, sucking up energy from the ocean and injecting it into our coastal rainforests. Intact fish habitat is critical to keeping this conveyor belt moving. The best part is, all this happens free of charge.
Protecting fish habitat gives tremendous bang for your buck. By ensuring the integrity of this one type of environment, you are supporting hundreds of species. This ultimately saves us money, because as species become endangered, it costs us a lot to bring them back from the brink. In fact, this is already a huge problem. There are 91 freshwater fish species in Canada that the Committee on the Status of Endangered Wildlife in Canada has assessed as being endangered, threatened, or of special concern, and the vast majority of these were impacted by habitat loss.
Another reason to protect fish habitat has to do with the very nature of water itself. When you alter habitat on land, the damage is generally localized. By contrast, if you pollute a river, you will cause impacts all the way up and down that river system, and you will even affect the land that the river touches. This means that any damage you do to an aquatic system will not be restricted to the space that you harmed; rather, it will propagate through a giant ecosystem and affect everybody and everything that lives there.
Let's fast-forward to 2012 and Bill C-38, which included changes to the Fisheries Act. Whereas before no person could cause “harmful alteration, disruption or destruction of fish habitat”, the new wording read as follows: “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.”
This was widely panned by the scientific community: 625 scientists co-wrote a letter to the Prime Minister opposing these changes. Four former fisheries ministers co-authored an open letter opposing the changes as well. So what was the problem?
Scientifically speaking, there were three major issues with the new wording. First was this concept of “serious harm”. Serious harm is defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” To an ecologist, the word “permanent” raises many red flags. What does “permanent” mean? Does it mean a human lifespan? Could you destroy a river if you promised that you would repair it 50 years in the future, and have that be considered a temporary alteration? These questions were never satisfactorily answered, and the only reasonable conclusion was that this wording would make it easier to cause harm to fish habitat.
The second problem was this new focus on fish that were targeted by fishing. This implied that the Fisheries Act wouldn't concern itself with a large proportion of fish in Canada. If you took the passage literally, it suggested that you would be able to cause serious harm to a river if you could prove that nobody ever put a hook in those remote areas.
Now what if, despite the fact that we don't fish a river now, we want to fish it in the future? I remind everyone that sport fishing is incredibly important to our nation's economy, and a lot of that happens in very remote places and rivers that are sparsely populated. Not only that, but climate change is changing where one might find fish, so it's not crazy to think that as the world warms, people will want to fish in different places. What a shame it would be if we destroyed them all before we got to do that.
The third problem was the reference to this section applying to fish that support a fishery. Now, this statement has no basis in science. We don't have the scientific ability to divide fish into categories of fish that support a fishery and fish that do not. If you, as a committee, were to ask me whether any given fish species was essential to supporting a fishery, with very few exceptions, I would say, “I don't know.”
Ecosystems are incredibly complicated. Aquatic ecosystems have hundreds of species interacting in all sorts of ways that science has only begun to describe. When you take parts of that ecosystem out, it may not collapse right away, but what this does is destabilize the system and make it more likely to fall apart. I would also add a reminder that it's not just fish that support fisheries. For example, when I am gutting cod that we harvest at sea, I am likely to find that these fish have been eating shrimp, sea stars, and a multitude of other critters. Again, this is why we protect habitat and not just the things that we fish. It provides an insurance policy against our own lack of scientific understanding.
There's no conservation value to these changes; was there some other motivation for doing so? One of the reasons that the minister at the time, Keith Ashfield, stated was that the existing Fisheries Act was overly burdensome. As a scientist I treated that statement as a hypothesis. Was there evidence that it was overly burdensome? One way you might detect this is if DFO were convicting lots of people under the Fisheries Act for frivolous offences. In other words, if you're handing out convictions like parking tickets then sure, maybe you've got a strong argument that the Fisheries Act was too broad.
At the time DFO published convictions on their websites spanning several years. You could go online and see every person who was convicted and what they were convicted for over a several-year period. In 2012 I went through every press release issued by DFO between 2007 and 2011. Across 285 press releases they described 1,283 convictions under the Fisheries Act. A total of 21, or about four per year, were due to destroying fish habitat. Four per year in the second biggest country on earth by land area. Four per year in a country covered from coast to coast to coast by rivers, lakes, and streams, most of which contain at least some fish.
If four convictions a year are too many then that seems to me we set the bar very low. My colleagues and I published this finding as a letter in the journal Science. You wouldn't be able to go back and verify what we found. That's because about a year after we published the article the DFO website was restructured so you could only see six months' worth of convictions. It got less transparent and that much harder to assess the real-world impacts these laws were having.
This brings me to the closing part of my remarks where we talk about moving forward. The scientific case for habitat protection is simple, straightforward, and unambiguous. Perhaps the best articulated case was made on May 17, 1977, by the fisheries minister at the time, Roméo LeBlanc. To quote a few passages from his speech in the House of Commons:
...the regulation of fishing itself is only part of what we need. Protecting fish means protection [of ] their habitats. Protecting the aquatic habitat involves controlling the use of wetlands. The banks of streams, the foreshores of estuaries, provide nutrients to the larger eco-system of lakes and oceans in amounts far out of proportion to their size. The chain of life extending to the whole open ocean depends on bogs, marshes, mudflats, and other “useless-looking” places that ruin your shoes.
As a scientist I can find no argument in favour of making it easy to destroy or damage fish habitat. In fact the need for strong protection is only going to increase as we face a world increasingly stressed by climate change. All the fish in our country are at risk. Increased temperatures mean that rivers and streams will warm up potentially beyond the safe limits that many species can tolerate. Melting snowpack means that water levels will sharply drop, which will make life much more precarious for aquatic species, and while fish are tough they can only take so much. They may be able to survive polluted water, but polluted heated water could spell disaster. Let's give them a helping hand by at least making sure they have intact habitat to feed, grow, and spawn in.
I understand there are trade-offs in any decision so I close my remarks with three key recommendations. First, I think the original wording of section 35 should be restored. It needs to be clear to Canadians that it's just not okay to harmfully alter, disrupt, or destroy fish habitat without compensation. Not temporarily, not permanently, not at all. There's no advantage to allowing it without the legal obligation to build a compensatory habitat. This prohibition was a rule between 1977 and 2012, a time period over which our GDP grew by a factor of about 2.5. Over that time period the science only became clear that fish habitat is critical to the maintenance of fisheries and the ecosystems that support them.
Second, this review should be seen as an opportunity to go beyond what was there before, and strive to secure fish habitat for generations to come. It is noteworthy that despite the strength and clarity of the original wording we were still losing fish habitat. A peer review 2006 study demonstrated this clearly. So simply restoring the old act is not enough, particularly in a world where on top of everything else climate change now threatens our waterways and the fish that live in them.
Third and finally, whatever recommendations the committee makes should be done with transparency and a view to open data. One of my biggest scientific problems with the 2012 changes was that they were made based on an untested premise, that the previous law was being applied inappropriately and was overly burdensome. To this day I have still not seen clear evidence to support that, and indeed every piece of evidence seems to counter it. I understand that as a scientist I may not always agree with decisions made on conservation, but I think it is uncontroversial that these decisions should be made transparently.
Thank you very much.