The current Fisheries Act received royal assent one hundred and forty-four years ago in 1868, and replaced statutes regulating fisheries in the former Province of Canada and in New Brunswick that were even older. Despite its age and claims by some politicians that the FA is static and ripe for change, it is a living document that has been amended 17 times.
The Fisheries Act as it Used to Be
The purpose of the FA is not encapsulated in a succinct preamble to the act, but can only be appreciated by reading the entire document. Suffice it to say that the FA was intended to regulate and thus help protect fish, the habitats that sustain them, and the fisheries that depend on fishes and their habitats. The general goals of the FA were broad enough that they could even have implications for protection of human health.
One of the amendments to the original FA was included in the Constitution Act of 1982 where the key role of the federal government in regulating inland fisheries was established. The key, but not only, regulatory tool of the federal government to protect fish habitat was in section 35 of the FA, itself added in 1976. In particular, the original FA’s subsection 35(1) stated that “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat” (known as HADD). There are two key aspects to this wording:
- The prohibitions are general enough to provide a broad-based protection of habitat because to demonstrate “harm”, ‘disruption”, or “destruction” is reasonably straightforward.
- “Fish” are defined earlier in the FA as “parts of fish, or shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals, and the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals.” Again, the definition of fish is broad-based and clearly implies that all “fish” are of value and that this value includes aesthetic, cultural, commercial, recreational (including non-extractive use), and ecological aspects.
These two key features of 35(1) were its strengths from a biological and biodiversity conservation perspective – it recognized the key role of habitat in the persistence of fishes and the broad-based values of biodiversity that Canadians recognize 4,5 . Since 1976, section 35(1) has played a critical role in protecting fish habitat (and all the ecosystem services that it provides) and the fish and fisheries resources that depend on habitat. Fisheries and Oceans Canada is the primary ministry that develops policies (e.g., the “no net loss” of habitat policy 3 ) and investigates alleged violations and generates charges under the FA.
An indirect, but surely key benefit of the FA was that it acted to motivate individuals and corporations involved in work in and around fish habitat to think about how their activities might negatively impact habitat before such work took place and to make them pay (in time, money, effort, and public relations) if during, or after, such work fish habitat was damaged. It made people broadly accountable for the costs to fish and their habitat. Such specific protection of habitat (as opposed to protection of “lands” or “areas”, terms that are much more general) is vital for all organisms, yet is exceptionally rare in Canadian legislation.
Despite these positive aspects of the FA in habitat protection, right after 35(1) came 35(2) which gave the Minister considerable discretionary power to “authorize” any potential violations of 35(1) although the reasons for any such authorization are not stated. Consequently, despite the provisions in 35(1), subsection 35(2), plus limitations on enforcement and prosecutions, meant that there could be considerable doubt as to whether a violation of 35(1) would ever see a charge or a prosecution. In addition to 35(1), other subsections (e.g., 20 – obstructions, 22 – minimum water flow levels, 30 – screens on water intake pipes, 32 – killing fish other than by fishing, 36 – release of deleterious substances) also acted to protect fish and their habitats and some of these also had discretionary “wiggle room” provided by subsections of each (e.g., under certain conditions deleterious substances can be “authorized”).
Therefore, despite the rationalizations by some government ministers of the onerous nature of the FA, it helps to protect fish habitat, the actual number of convictions for fish habitat destruction are typically low 6 , and the FA was certainly not “watertight” to violations.
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What the New Fisheries Act States
The new FA (passed in June 2012) has at its core a new subsection 35 (1) that now reads: “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 fisher, or to fish that support such a fishery” (underlining added). The key changes made by the Conservative government of Stephen Harper are that:
- All explicit references to fish habitat have been removed.
- “Harmful alteration, disruption, or destruction of fish habitat” has been replaced by “serious harm to fish”.
- General prohibitions against harm to fish habitat have been replaced by those that apply now only to fish that are important to a ”commercial, recreational, or Aboriginal fishery” – in other words, only to fish that are of some economic or recreation value (which has its own considerable economic value) and/or of cultural value to a component of the Canadian population.
In the terrrestrial world, this would be like making the federal Wildlife Protection Act (1973) applicable only to birds or other animals that are hunted or of some commercial value. Essentialy the new 35(1) is much narrower in terms of defining harm (HADD has been limited to “serious harm” which is defined as “death of fish or any permanent alteration or destruction of fish habitat” thus rejecting any sublethal or temporary effects on fishes), abandones the inherent value of biodiversity (it protects only fishes that are of importance to a “fishery”), and is biologically (and thus in terms of conservation of biodiversity) indefensible (it rejects the biological connection between the persistence of fish and the persistence of their habitats, as well as the interconnectedness of many waterbodies, i.e., a stream above a barrier with no fish of fishery value in it and which may be the focus of threats to its habitat from development could flow into a stream that does contain fish of fishery value).
Why the New Fisheries Act is Harmful
In addition to the vague and narrow aspects of the new 35(1), the newly-amended act will now leave most freshwater fishes with a much lower level of habitat protection and has eliminated a demonstrably effective way to “make the polluter pay”. To emphasize the implications of this, the reader is reminded that loss or degradation of habitat is the most important factor leading to at risk status for freshwater biodiversity, especially fishes, worldwide and in Canada2,3. Further, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) has, since its inception in 1977, assessed 84 wildlife freshwater fish species at some level of risk in Canada (i.e., endangered, threatened, or special concern) using internationally recognized assessment criteria7,8.
These assessments are forwarded to the relevant minister who then makes the decision (or not) to legally list endangered and threatened species as such under Canada’s Species-at-Risk Act (SARA) of 2004. Of these 84 species, only 33 (or 39%) could even potentially qualify as being the focus of a fishery and receive protection under the new 35(1) – the clear majority of Canadian freshwater fishes will now receive no habitat protection under the FA. I say potentially because the new act is also vague in terms of what how the definition of term “fishery” will be eventually interpreted. For instance, the rainbow trout is the most widely sought after recreational fish in British Columbia and it would seem obvious that this species (but not necessarily its habitat) would be protected under the new 35(1). Would, however, a remote lake that receives only 5-10 visits by anglers over a year and whose habitat is threatened by destruction from a proposal for mine tailings disposal automatically qualify as a “recreational” fishery and be protected?
If the government feels that all fishes and waterways should not be treated the same (as motivation for making changes to the FA), it is entirely possible that they will not treat all “fisheries” the same and that some will be considered of expendable while others will receive protection. Add to this vagueness, the still-existing and now enhanced discretionary powers of the Minister to allow the destruction of fish habitat inspires even less confidence that Canada’s freshwater biodiversity will be adequately protected.
While freshwater fishes and their habitats can be the focus of protective measures under SARA, it is important to recognize that habitat protection under SARA applies only to the watercourse/body itself and to federally-owned land – it does not apply to privately-owned lands, activity on which can influence the physical and chemical characteristics of aquatic fish habitats. In addition, SARA prohibitions protecting fish and their habitat only come into affect after a species is in trouble (i.e., if they are already deemed Endangered or Threatened). Species that are assessed as “Special Concern” (i.e., vulnerable to becoming Endangered or Threatened in the near future) receive no legal protection under SARA.
Consequently, changes to the FA almost surely remove a primary motivation (i.e., through costs incurred from violations in terms of time, money, and public relations) to prevent species from becoming at risk. It is also bizarre that while SARA recognizes all species as an “integral part if our national identity and history” and that “wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons.”9 (emphasis added), another piece of federal legislation, the new FA, seeks to limit such value to commercial, recreational, and/or Aboriginal values.
Why We Should Care About These Harmful Changes to the Fisheries Act
Finally, why should we care about changes to the FA and its implications for freshwater fishes and biodiversity in general? I can think of three basic reasons.
- Changes to the FA are at variance with our obligations agreed to under the Rio Convention on Biological Diversity of 1992 (Canada was the first country to ratify this agreement), i.e., the so-called “Agenda 21” (see http://publications.gc.ca/collections/Collection-R/LoPBdP/BP/bp317-e.htm ). The Harper Government has just changed the FA in a manner that directly counteracts several of Canada’s commitments within this international obligation .
- The new FA is an explicit rejection of the inherent value of biodiversity and replaces it with a purely utilitarian value. This rejection of the inherent value of biodiversity, despite the claims by Conservative ministers of what “Canadians want”, conflicts with surveys that demonstrate the value that Canadians place on all biodiversity – not just species we can make money from.
- Finally, and perhaps most crucially, the passage of bill C-38 and, more specifically, changes to the FA violate, if not the letter, then the spirit of democracy in Canada at least as far as I understand it.
Yes, there was “debate” on the changes, limited to a brief period in the House of Commons, and many good comments were made by politicians of all stripes, but the outcome of these debates was never in doubt. What is truly disturbing was the complete lack of consultation by the Harper government with independent scientists (i.e., those not employed by government or by industries that would benefit from changes to 35(1)) in assessing the previous FA and in proposing any changes. No input or expertise was sought from the more than 2,500 Canadian academics who signed various letters to the Minister of Fisheries Keith Ashfield protesting the changes after they were leaked by a former Fisheries and Oceans biologist. None of the independent biologists with experience and expertise in assessing Canadian fish species at risk were consulted, and all indications are that the Harper government did not seek even advice from its own scientists in instituting changes to the FA.
No one would deny that legislation can be improved (as stated before, the FA has been amended 17 times already). At the same time, a truly responsible and inclusive government should have engaged in a broader-based consultation process with independent scientists when the changes impact such fundamental principles like the dependence of biodiversity on habitat. The changes to the FA are certainly bad for freshwater biodiversity and for the direct and indirect benefits that accrue to Canadians from this biodiversity, but they also signal a sad chapter authored by the Harper government in the development of policy of broad societal relevance.
Footnotes
1 Brohua, P. 1993. Emulating Canada: Recognizing existing aquatic and fish habitat areas as invaluable. Fisheries 18: 4.
2 Dextrase, A.J, and N.E. Mandrak. 2006. Impacts of alien invasive species on freshwater fauna at risk in Canada . Biol. Invasions 8: 13-24.
3 Quigley, J.T. and D.J. Harper. 2006. Environmental Management 37: 351-366.
4 Haluza-Delay, R., N. Kowalsky, and J. Parkins. 2009. How Canadians Value Nature. A Strategic and Conceptual Review of Literature and Research. CSOP Research and Consulting, Edmonton, Alberta
5 Rudd, M. 2009. National values for aquatic species at risk in Canada. Endangered Species Research. 6: 239–249 .
6 Favaro, B., J.D. Reynolds, and I. Cote. 2012. Science 1223269Published online 21 June 2012 [DOI:10.1126/science.1225523]
7 http://www.cosewic.gc.ca/eng/sct0/index_e.cfm
8 http://www.sararegistry.gc.ca/sar/index/default_e.cfm
9 Species at Risk Act. S.C. 2002, c 29. Sept. 2010. Minister of Justice. http://laws-lois.justice.gc.ca (page 1). |
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