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Widening (even further) the hole in federal fish protection: Canada’s proposed Fisheries Act Regulations

March 18, 2014

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British Columbians are no strangers to environmental deregulation. The early aughts, which for decades prior were heralded as likely to usher in electric cars and other signs of eco-enlightenment, instead saw a thorough dismantling of the province’s environmental regime, with the BC government repealing or weakening a range of environmental laws, regulations and programs.

Since then, the federal government has taken the mantle of shedding environmental protections, most notably in 2012 when omnibus bills C-38 and C-45 introduced a host of repeals and amendments to environmental laws. Those bills left holes in our environmental safety net that even, well, a pipeline could pass through. For starters, our Canadian Environmental Assessment Act was replaced by a much weaker version that resulted in thousands of environmental assessments being scrapped. Changes were also introduced to the Navigable Waters Protection Act which, if brought into force, would eliminate protection of 99% of Canada’s navigable waters. Our Fisheries Act was also amended to water down, and in some cases eliminate, protection of fish and fish habitat. The list goes on.

But the buck didn’t stop there. Some of the most potentially harmful amendments to the Fisheries Act have given the Fisheries and Environment Ministers (who share responsibility for regulating pollution in fish-bearing waters) authority to make regulations giving blanket-approval to pollution or causing harm to fish. For example, the Ministers could exempt entire water bodies or species of fish from the protection of the Fisheries Act, or allow certain pollutants to be discharged, or certain polluters to pollute, without impediment by those pesky permitting processes or federal oversight.

As we feared, DFO is flexing those new Fisheries Act muscles. It has proposed regulations that, if enacted, would allow the Ministers to make future regulations giving blanket-authorization to pollute in fish-bearing waters. Currently, BC aquaculture facilities need a license to operate, as section 36(3) of the Fisheries Act prohibits dumping pollutants (such as drugs, aquatic pesticides and biochemical oxygen-demanding matter) into waters where fish occur, except with a permit. The proposed Regulations would allow the Ministers to exempt a broad range of pollution from that prohibition, meaning that a permit would not be required to pollute in the following circumstances:

  1. Where the pollution is related to aquaculture, aquatic invasive species or species that are considered pests to a fishery;
  2. Where the pollution is related to research; and
  3. Where the pollution either falls under, or is emitted by something that falls under, other federal or provincial regulations or guidelines.

 

We have serious concerns with the Regulations, both because of the broad range of pollution that could be exempted from the prohibition against pollution under the Fisheries Act, but also because it demonstrates the federal government’s intention to abdicate care of fish and their habitat.

We have written previously on the problems with offloading federal responsibility for fisheries. In this blog, I’d like to focus on the blanket-authorizations that could be granted under these Regulations. As we discuss in our submissions during the public comment period, allowing fish farms to dump drugs, aquatic pesticides and biochemical oxygen-demanding matter into wild fish habitat without any need to obtain a permit or license puts the quality of that habitat (and therefore the health of those fish) at serious risk.

“Permitting” is not a four-letter word

Why do we want polluters to go through a permitting process rather than just require them to comply with generic conditions? For one, it ensures that the regulatory body is aware of the pollution being deposited. With a reported 115 licensed salmon farms along BC’s coast and the moratorium on additional farms recently lifted, the merits of knowing which of those operations is dumping what drugs and sea-lice pesticides into wild salmon habitat is fairly obvious.

Secondly, permitting allows site and situation-specific factors to be taken into account when authorizing pollution. DFO itself has reported that a number of variables affect the dispersal and concentration of aquatic pesticides, including the proximity and nature of nearby fish farms, local water depth, weather, waves, currents and water quality. Aquaculture licenses, for example, contain both generic and site-specific conditions, which vary depending on where the farm is located, the species cultivated and the facility type.

Permits are usually time-limited, allowing for adjustments based on changes in the receiving environment, unforeseen harms being caused, or societal shifts. They also help ensure that deposits are being monitored for any impacts they are causing to fish, fish habitat or the use of fish. A general condition of finfish aquaculture licenses is to annually report to DFO all materials released into water, including pesticides, drugs and chemical treatments. Whether these conditions would remain if DFO passes a regulation allowing fish farms to dump drugs and sea lice pesticides without a permit is anyone’s guess.

Broad powers, less assurance

Of course, DFO could always write conditions into regulations made under these Regulations that would address some of the above concerns. For example, it could prescribe that aquaculture drugs and pesticides can only be deposited up to certain amounts, if environmental impact analyses show that there would be no direct or cumulative harms to the receiving environment, and so long as the dumper periodically reports to DFO on the pollution.

Including such conditions would be possible under, but not required by, the proposed Regulations. As currently worded, they only stipulate that the Minister believe that any regulations she makes authorizing aquaculture-related pollution be “required for the proper management and control of fisheries or the conservation and protection of fish” [emphasis mine].

“Proper management” is not defined, nor are the factors that the Minister should consider when determining what constitutes “proper management” described. While we believe it should involve ensuring the health of fish species and habitat, the Minister may take a different view.  Andrew Green, a law and public policy professor at the University of Toronto, describes the risks of such broad delegations of power in Chapter 13 of the textbook Administrative Law in Context:

...[T]he agent may not even be attempting to further the public interest; it may, instead, be seeking to further its own interest. For example, if regulated parties (such as a particular industry group) offer some form of inducement to the agents (such as future job opportunities or, in the case of elected officials, funds for future election campaigns), the agents may be influenced in how they make rules or soft law. These agents may in some cases simply not want to expend the effort to regulate in a particular area.

Similarly, legislators may delegate in order to further their own interests, such as where broad legislation with delegated rule-making powers is used as a form of blame avoidance or credit attraction by legislators or Cabinet members. The legislature could, for example, enact very broad, tough-sounding pollution control legislation and then delegate the details to Cabinet to work out. Cabinet could then exempt or “grandfather” certain parties, such as particularly powerful industry groups. The legislators seek credit for enacting strong legislation but are also able to satisfy politically powerful parties.

In other words, rather than ensuring the proper management of Canada’s fish and waters in the interest of its citizens, the broad discretion given to the Minister in these Regulations seriously undermines any assurance we can have that the Fisheries Act will protect them from industrial activities and safeguard their long-term health and sustainability.

So what do the Regulations mean for fish?

Right now? Not much. The proposed Regulations do not themselves permit pollution, but they do pave the way for it.

When it amended the Fisheries Act in 2012, the federal government described the changes as strengthening the rules regarding fisheries and habitat protection (despite the general consensus of environmental and fishing groups, scientists and even former fisheries ministers that the changes gutted the Act’s legal protections). Documents obtained through Access to Information Act requests revealed that those changes were requested by industry. Just as in Green’s example above, Cabinet is now opening the door for industry groups, such as the ones that lobbied for weaker environmental laws, to bypass one of the Act’s key protection provisions.

More than a decade after its own systemic environmental deregulation, British Columbians are feeling the effects, with the impacts of the mining, forestry and oil and gas industries increasing throughout the province. Call me skittish, but couple this experience with the federal government’s well-documented desire to expand resource extraction in Canada, and the “trust us to do the right thing” approach embodied in these Regulations provides little assurance that it will do just that.

By Anna Johnston, Staff Lawyer