AWA Comments on Fisheries Act Review

November 25, 2016

The Honourable Dominic LeBlanc
Minister of Fisheries, Oceans and the Canadian Coast Guard
Min@dfo-mpo.gc.ca

Fisheries Act Review

Dear Minister LeBlanc:

Alberta Wilderness Association (AWA) appreciates the opportunity to contribute to the review of changes to the Fisheries Act and on ways to incorporate modern safeguards to the Fisheries Act.

Alberta Wilderness Association works throughout Alberta towards more representative and connected protection of the unique and vital landscapes that are the source of our clean water, clean air, and wildlife habitat. We have been working in Alberta for more than fifty years to raise the profile of Alberta’s spectacular wilderness. With over 7,000 members and supporters in Alberta and across Canada, AWA remains committed to ensuring protection of wildlife and wild places in Alberta for all Canadians.

Broad Concerns with 2012 Changes

As you are aware, in 2012 two omnibus budget bills (C-38 and C-45) made a number of substantive changes to the Fisheries Act. The impacts of these changes have been widespread and well documented[1], but the full extent of the damage to our native fish has yet to be fully determined. We note with concern that, as of March 2016, the Department of Fisheries and Oceans Canada has not laid a single charge of damaging fish habitat since changes to the Fisheries Act have come into effect, despite almost 1900 complaints[2].

Current Review

We are wholly supportive of your mandate to review these changes to the Fisheries Act in order to restore lost protections, incorporate modern safeguards, and to ensure that decisions are evidence-based, use the best available scientific information, and serve the public interest.

We believe that a modern Fisheries Act should be revised with enough clarity to safeguard all native fish and their habitat from ongoing changes to the atmosphere, land, water, and climate. This may include a requirement for fisheries managers to adapt to changing fish habitat and migratory needs. Now, more than ever, there must be an emphasis on not only protecting but also restoring native fish populations and fish habitat. It is important for a revised Act to promote safeguarding fish habitat that is not exclusively aquatic: critical areas of fish habitat extend beyond the banks of rivers and include wetlands, riparian vegetation zones, permanent and ephemeral tributaries, areas of the watershed responsible for groundwater storage, and the active floodplain.

In order to appropriately manage and protect these important areas for fish and their habitat, a revised Act must address indirect and cumulative impacts on fish and fish habitat. Ecosystem-based targets should be set at various watershed scales and approvals of activities must consider current and future impacts in a watershed; this will require inter-jurisdictional cooperation at both the provincial and federal level.

Changes to the Fisheries Act must limit Ministerial discretion, have checks and balances in place, encourage proactive measures, and require the precautionary principle to be applied in decision making. All decisions must be open and available to public scrutiny. For any changes to be effective, they must be coupled with adequate capacity for the Department of Fisheries and Oceans (DFO) to implement monitoring and enforcement work. The Department of Fisheries and Oceans has had its budget reduced by $80 million in 2012 and another $100 million in 2015[3], severely reducing its ability to monitor and enforce.

Section 35 Authorisations

The system for providing authorisations to mitigate and replace fish habitat under Section 35 of the Fisheries Act has significant room for improvement. The Policy for the Management of Fish Habitat (1986), which implemented offsets (compensating for disrupted or destroyed habitat) under the Fisheries Act, was marred with serious problems in compliance and effectiveness of offsetting measures. If Section 35 is restored to include a prohibition on harmful alteration, disruption, or destruction of fish habitat, the system for issuing authorizations should be improved as well.

The use of a mitigation hierarchy, that only considers offsets after all possible harm avoidance, is good on paper but has very little substance to support its effectiveness in practice. The use of offsets is likely to impair the development of innovative ways to avoid and minimize harm to habitat.

Actual success rates of compensating habitat in a manner which was biologically relevant under the previous system was also poor. A review by the DFO in 2006 found that only 37% of compensation projects under the Fisheries Act achieved the conservation policy of no net loss of habitat productivity. They found that time lags in implementing offsets created significant impacts; “temporal losses are exacerbated due to the time lag until compensatory habitats function ecologically in a manner comparable to pre-impact conditions. In many cases, the time lag may be considerable because some projects will likely never achieve equivalent functionality”[4], further reducing the efficacy of offsets. There are also significant problems with compliance of offsetting measures as DFO found that “noncompliance with HADD [harmful alteration, disruption, or destruction of fish habitat] and compensation areas contributed to substantial losses of habitat. The prevalence and magnitude of larger HADD areas and smaller compensatory works far exceeded the gains in fish habitat due to authorizations with smaller HADD areas or larger compensation. Habitat loss as a result of improperly installed or designed compensatory structures (e.g., perched culverts, impassable weirs, dry channels) was also considerable. In many cases, these habitat losses exceeded the original HADD that necessitated the compensation habitat”[5]. The same review found that from 2000-2005, more than 2529 authorizations were issued, yet DFO had only ever issued 3 charges for noncompliance to date. A net gain model – as opposed to the current no net loss model – is suggested by AWA so as to overcome the demonstrated failure rate of offsets and compensate for past habitat losses, outlined in the 2006 DFO review, due to inadequate offsetting measures.

We maintain that a thorough, science based review of authorizing offsets is required for any suggested improvements. Although not comprehensive, the following are some important points for consideration to improve the pre-2012 system of section 35 authorizations under the Fisheries Act:

Some fish habitat is simply too valuable to allow any activity or offsetting measures. There must be a systematic manner in which valuable habitat is identified and protected.
Consideration of cumulative effects on fish habitat must be a mandatory component of authorizing any activity in fish habitat. Cumulative effects considerations must include: (1) Program level reviews to analyze, avoid and minimize impacts before more individual projects are considered; (2) An incorporation of baseline of pre-industrial conditions in both the project area and the relevant range; and (3) All historic anthropogenic impacts should be considered (including climate change), and all future permitted activities and reasonably foreseeable changes and activities (including climate change), should be included in both the project area and the relevant range.
The mitigation hierarchy (avoidance first, offsets as a last resort) must minimize room for discretion. A clear set of rules which determine under which circumstances offsets would be appropriate to utilize must be developed.
Adoption of a net gain policy when approving offsetting measures.
If offsets are authorized, they must be implemented before any habitat loss or degradation takes place, be biologically relevant to the sub-population in question, and ensure connectivity between populations.
Post-construction monitoring of offsets would have to go beyond superficial reports which document whether compensation actions were completed. They would also require measurable indications of whether a compensation project achieved a net gain. A body independent from the proponent must be responsible for this monitoring work and the results should be publicly available.
Additional funding measures would have to be put in place for enforcement and as insurance against default. Projects and activities would have to be enforced and monitored in perpetuity. Charges must be laid against those found to be noncompliant with offsetting measures.

In conclusion, AWA believes that reform to ensure robust habitat protection of Canada’s Fisheries Act is urgently needed in conjunction with increased capacity to the Department of Fisheries and Oceans. Any changes must be transparent and open to scientific and public review. Follow-up studies which determine the effectiveness of mitigation measures and the success rate of achieving policy goals must be a routine part of DFO’s work and be reported to the public.

Thank you for considering these comments.

With regards,

ALBERTA WILDERNESS ASSOCIATION

Joanna Skrajny
Conservation Specialist

[1] Olszynski, M. 2015. From ‘Badly Wrong’ to Worse: An Empirical Analysis of Canada’s New Approach to Fish Habitat Protection Laws. Journal of Environmental Law and Practice. Available at: http://dx.doi.org/10.2139/ssrn.2652539

[2] Pynn, L. March 24 2016. Fish habitat damage goes unprosecuted since Conservative changes to Fisheries Act. Vancouver Sun.

[3] Olszynski, M. and A. Grigg. 2015. Assessing Canada’s Habitat/Fisheries Protection Regime: A Near Total Abdication of Responsibility? Available at: http://ablawg.ca/2015/05/15/assessing-canadas-habitatfisheries-protection-regime-a-near-total-abdication-of-responsibility/

[4] Quigley, J. and D. J. Harper. 2006. Effectiveness of Fish Habitat Compensation in Canada in Achieving No Net Loss. Environmental Management 37 (3): 351-356

[5] Quigley, J.T., and D.J. Harper. 2005. Compliance with Canada’s Fisheries Act: A field audit of habitat compensation projects. Environmental Management 37: 336–350.