Author Archives: Martin Olszynski

About Martin Olszynski

B.Sc. in Biology (Saskatchewan), LL.B. (Saskatchewan), LL.M. Specialization in Environmental Law (University of California at Berkeley). Assistant Professor. Please click here for more information.

5 Things I learned about Mike Duffy Canada’s New Fish Habitat Protection Laws

By: Martin Olszynski

PDF Version: 5 Things I learned about Canada’s New Fish Habitat Protection Laws

Case Commented On: Section 35 of the Fisheries Act, RSC 1985 c F-14, as amended by the Jobs, Growth and Long-term Prosperity Act, SC 2012, c 19

This is a follow-up post to an earlier blog from May in which Alex Grigg and I described a research project looking into the new “fisheries protection” regime under the amended Fisheries Act. Interested readers are referred to that post for background. Briefly, in order to gain insight into the difference between the previous habitat protection regime and the new fisheries protection regime, we analyzed the primary permitting vehicle in this context, the Fisheries Act section 35 authorization (previously authorizing harmful alteration, disruption or destruction of fish habitat, now authorizing the death of fish and the permanent alteration or destruction of fish habitat). One hundred and eighty four authorizations (just over 1600 pages worth) issued by the Department of Fisheries and Oceans’ two largest regions (Pacific and Central & Arctic) over a six-month period for the years 2012, 2013, and 2014 were analyzed, with 2014 being the first year under the new regime. In order to help frame the analysis and provide additional baseline information, twelve statutorily required annual reports to Parliament on the administration and enforcement of the habitat/fisheries protection provisions were also analyzed (2001/02 – 2013/14). In this post, I discuss five of the most significant findings from this analysis. The full paper (from which this post borrows liberally) is available here.

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Assessing Canada’s Habitat/Fisheries Protection Regime: A Near Total Abdication of Responsibility?

By: Martin Olszynski and Alex Grigg

PDF Version: Assessing Canada’s Habitat/Fisheries Protection Regime: A Near Total Abdication of Responsibility?

Legislation Commented On: Section 35 of the Fisheries Act, RSC 1985 c F-14, as amended by the Jobs, Growth and Long-term Prosperity Act SC 2012, c 19

Roughly three years ago (on June 29, 2012), Bill C-38, the omnibus budget bill also known as the Jobs, Growth and Long-term Prosperity Act, received royal assent. As most ABlawg readers will surely know, Bill C-38 fundamentally changed some of Canada’s most important environmental laws. Among these were changes to the Fisheries Act and a new regime for the protection of fish habitat in particular. Section 35 of the Act, which used to prohibit any work or undertaking that resulted in the “harmful alteration or disruption, or the destruction” (HADD) of fish habitat, was amended to prohibit works, undertakings and activities that result in “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery,” serious harm being defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat” (DPAD). At the time of Bill C-38’s passage, this wording was widely panned as vague, confusing and bound to reduce the scope of protection for fish habitat (see here, here, here, here and our own professor emeritus Arlene Kwasniak here). This summer – and with a view towards a Fisheries Act panel at the Journal of Environmental Law and Practice’s 5th conference in Kananaskis in June – we are conducting research to assess the merits of this new regime. This blog sets out our approach and some preliminary findings. Long story short, it appears that the federal government has all but abdicated its role in protecting fish habitat in Canada.

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Is the Federal Government Intent on Hurrying Along the ‘Sixth Extinction’?

By: Martin Olszynski

PDF Version: Is the Federal Government Intent on Hurrying Along the ‘Sixth Extinction’?

Legislation Commented On: Species At Risk Act, SC 2002 c 29

Sitting on a shelf in my office – unread since roughly this time last year – is Elizabeth Kolbert’s book The Sixth Extinction: An Unnatural History. Ms Kolbert’s book recently won the Pulitzer Prize for non-fiction, having been described by its judges as “an exploration of nature that forces readers to consider the threat posed by human behaviour to a world of astonishing diversity.” Also sitting on my computer’s desktop – unfinished since this past December – has been a blog post about the federal government’s failure to list species under the Species At Risk Act (SARA) since 2011, notwithstanding the fact the scientific body responsible for recommending listing, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), has made 67 such recommendations since that time (all of which was reported in the Globe and Mail here; after this story broke three bat species were listed, but to my knowledge the government hasn’t changed its basic position, as further discussed below). My plan was to read Ms. Kolbert’s book and use it to frame a post describing yet another example of the federal government’s total disregard for the rule of law when it comes to species at risk (see e.g. here). But I am already late to the party and, having just blogged about environmental-law-as-process and its implications for the environment, it seems to me that such a post makes for a reasonable Exhibit A. The fact that I have a huge pile of marking sitting in front of me right now is also not irrelevant.

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Environmental Laws as Decision-Making Processes (or, Why I am Grateful for Environmental Groups this Earth Day)

By: Martin Olszynski    

PDF Version: Environmental Laws as Decision-Making Processes (or, Why I am Grateful for Environmental Groups this Earth Day)             

Event commented on: Earth Day

This past weekend, as part of the Canadian Institute for Resource Law’s “Saturday Morning at the Law School” series, I gave a free public lecture on the basic nature and features of Canadian environmental law. April 22 being Earth Day, I thought I would try to capture some of that discussion in a blog post. My starting point was that while Canadians may assume that their environmental laws consist of standards and limits designed to protect the natural environment, the reality is that many of our most important environmental laws simply set out a process for decision-making, where environmental considerations have varying degrees of importance. As further set out in this post, this reality has important implications for the state of the environment and the mechanics of government accountability, which in turn suggest a fundamental and indispensable, if also imperfect, role for environmental groups in this context.

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May Provinces (or States) Limit Imports on the Basis of Greenhouse Gas Emissions Elsewhere?

By: James Coleman & Martin Olszynski

PDF Version: May Provinces (or States) Limit Imports on the Basis of Greenhouse Gas Emissions Elsewhere?

Report Commented On: Canada’s Ecofiscal Commission, The Way Forward

Last week, a group of economists known as “Canada’s Ecofiscal Commission” issued a much-discussed report that urged Canada’s individual provinces to drive Canadian climate policy by adopting their own carbon pricing schemes. But the report barely touched on one of the key challenges for provincial or state regulation without the support of the national government: what may places that price carbon do to avoid losing industry to places that don’t?

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