Thank you.
Good afternoon. I would like to thank the committee for this opportunity to present on the important issue of fish habitat protection.
My name is Margot Venton. I am a Staff Lawyer with Ecojustice Canada and also the Director of our Marine Program.
Ecojustice is a national charity dedicated to protecting the environment through the use of Canadian law. My perspective on the Fisheries Act is informed by almost 20 years of experience in advising clients and representing clients on marine species, fisheries, and aquaculture issues. I have also been counsel in a number of legal cases interpreting or seeking the enforcement of the Fisheries Act.
My presentation today will focus on the changes we hope to see through this modernization process, and specifically our recommendations for achieving a broad, precautionary, and enforceable legal protection for fish habitat in the act, through an express habitat protection provision that guides ministerial discretion to authorize harm to habitat through legislated criteria and that also addresses cumulative harm and cumulative loss of fish habitat. A more detailed discussion about why these changes are necessary will be included in our brief, which we will file with the committee later.
Fish habitat is obviously essential to healthy fish populations and, by extension, to healthy fisheries. The habitat protection provisions were added to the Fisheries Act in 1977, as you all know, in response to the devastating loss of wild salmon populations on the Atlantic Coast. The 1977 provisions were organized around the central prohibition against the “harmful alteration, disruption, or destruction” of fish habitat, the HADD provision, which cast a wide net intended to catch the myriad ways in which fish habitat can be harmed by human activities. Judicial interpretation of the HADD provision was clear that the offence was harming fish habitat, even temporarily, and did not require proof of either permanent damage or harm to fish directly.
Now, as we all know, in 2012 the provision was amended to change the focus from harm to fish habitat to “serious harm to fish”. This serious harm to fish provision is not expressly about habitat protection. The scope of protected habitat is actually limited by the requirement that it be habitat of a commercial, recreational, or aboriginal fishery, and enforcing the provision requires proof of permanent harm to habitat or death of fish.
Unfortunately, the changes to the act were also accompanied by significant budget cuts, in particular to the former habitat branch of DFO, as well as a significant policy shift toward self-assessment and streamlining of approvals.
The combined effect of all of these changes has, in our opinion, diminished the protection of fish habitat in Canada. The amendments created confusion about whether and how the law operated to protect fish habitat. As just one example, we recently received a call in our office from a community member in the Lower Mainland concerned about silt pouring into a fish-bearing creek from a construction operation. It was obviously bad, but the questions she had were, did it constitute serious harm to fish, did there need to be dead fish floating on the water, and did they have to be commercially fished fish? We didn't really know the answers to all her questions, and she could get no clear answer from DFO.
We say that the protection of fish habitat under Canadian law must be effectively restored to ensure future functioning of aquatic ecosystems and healthy fish populations for future generations, but I'd like to make the point that the previous HADD provision was far from perfect, and simply returning that provision to law is perhaps not the best option. Ecojustice would like this review and modernization process to result in five key changes to habitat protection under the Fisheries Act.
First, we would like to see a habitat protection provision that is broad and expressly aimed at the protection of habitat.
Second, we would like to see a protection provision that is precautionary: “serious harm to fish” sets an excessively high bar, in our opinion.
Third, the discretion to authorize harm to fish habitat must be guided by scientific considerations and key environmental law principles and must require some positive action on the part of DFO, such as permits or other authorization.
Fourth, habitat protection provisions should address, and must address, the cumulative harm to fish habitat.
Finally, the provisions must be enforceable and, of course, must be enforced.
Habitat protection needs to be broad. Protecting fish habitat by protecting commercially fished species ignores the scientific reality of viable ecosystems. All parts of an ecosystem need to be protected in order to function as a whole and support healthy fish populations, including populations of commercially fished species.
Thus, Ecojustice recommends reverting to the breadth of the previous prohibition against harmful alteration, disruption, and destruction of fish habitat. We further recommend ensuring that potential harm to fish habitat caused by fishing not be ignored under the provisions. We recommend guiding with enforceable science-based criteria the current exception in paragraph 35(2)(d) to automatically authorize any harm to fish habitat that results from doing anything authorized under the act. That includes fishing and aquaculture.
As an alternative to this recommendation, at least with respect to addressing harm to habitat caused by fishing, it would also be possible to include mandatory consideration of the impact of various fishing methods as part of the fisheries authorization process as well. At the moment, the habitat provision is the only place in the act where habitat protection is addressed in any way.
Our second recommendation is that habitat protection needs to be precautionary, because it is not always clear at what point harm to habitat translates into harm to fish. We recommend including the precautionary principle as an express principle that guides decision-making with respect to habitat protection.
Discretion to authorize harm to habitat needs enforceable limits. A broad prohibition against harming fish habitat will, of necessity, require provisions authorizing harm to fish habitat. The power to authorize harm to fish habitat, however, must be guided by clear principles based on science. Discretion under the Fisheries Act is generally a problem. Many different independent reviews of the act have flagged that issue again and again. Discretion to authorize harm to habitat under HADD, the old provision, was near absolute. The 2012 introduction of some limited criteria to guide decision-making under the act was a good thing, but it needs to go further to expressly reflect habitat concerns.
Thus, we recommend adding science-based considerations to guide any authorization of fish habitat, including consideration of cumulative effects on fish habitat of individual authorizations; consideration of the long-term stability of ecosystems; consideration of the habitat needs for struggling or recovering fish stocks and aquatic species at risk; and consideration of the predicted effect that climate change is expected to have on the habitat in question. These considerations should be set out in the habitat provision or in regulations under the act, but should not be relegated to policy documents.
As I mentioned previously, habitat protection must address cumulative harm and loss of fish habitat. The current habitat protection provisions do not require, or even really allow for, the consideration of cumulative effects of multiple activities on fish habitat. Up until 2012, cumulative effects of individual proposed works and undertakings were considered as part of the environmental assessment process that preceded the issuance of a HADD authorization. Since the amendments in 2012, authorizations of serious harm to fish no longer trigger any environmental assessment.
Thus, we recommend first some form of assessment for all of these authorizations, but as a precondition to individual authorizations and individual assessments, we recommend DFO establish science-based thresholds and objectives for fish habitat at the watershed and ecosystem level before issuing individual authorizations for those watersheds and ecosystems.
Our fifth and final point is that habitat protection provisions must be enforceable and enforced. Monitoring and enforcement is a critical part of any effective regulatory regime. It is extremely disheartening, from our perspective, that there have been no charges laid since the serious harm to fish provision came into force. Various witnesses throughout these hearings have mentioned that problem and have proposed different solutions, and obviously we echo the recommendation that DFO be properly fiscally supported.
In addition, we would recommend adding clear provisions that allow concerned citizens to request that DFO investigate an alleged fish habitat violation and to also add a provision that allows concerned citizens acting in good faith to take action in the courts to enforce the act where DFO is unable or unwilling to do so. Canada is a big country, protecting fish habitat is a huge job, and citizen enforcement provisions have worked effectively in other jurisdictions to improve compliance, enforcement, and environmental protection.
Those are—