By: Martin Olszynski and Brett Favaro

PDF Version: Recent Analysis Shows Canada was Losing Fish Habitat Before 2012 Budget Bills

Matter commented on: Standing Committee on Fisheries and Oceans’ Review of the Fisheries Act RSC 1985, c F-14

Back in October of last year, we appeared before the Standing Committee on Fisheries and Oceans (FOPO) in the context of its review of the 2012 changes to the habitat protection provisions of the Fisheries Act. Shortly after our appearance it occurred to us that it would be useful, using the best evidence available in the short time that was left, to provide FOPO – indeed all Canadians – with some quantifiable estimate of the state of fish habitat protection in Canada (the deadline for public submissions was November 30^th, 2016).

Consequently, we returned to Professor Olszynski’s original access to information request from 2015 that provided the evidentiary basis for his article “From ‘Badly Wrong’ to Worse: An Empirical Analysis of Canada’s New Approach to Fish Habitat Protection Laws” (2015) 28(1) J Env L & Prac 1). Briefly, Professor Olszynski obtained all of the subsection 35(2) authorizations issued by DFO’s two largest regions (Pacific, Central and Arctic) over a six-month period (May 1 to October 1) for the years 2012, 2013, 2014. Generally speaking, each authorization contains information about the project proponent, project type (e.g. a bridge, a mine, a dam), project location, the size and kind of impacts to habitat, and the amount of compensation or offsetting habitat required – if any. We recorded the total area that each project was authorized to impact (in m²), as well as the total amount of compensation habitat required. Of the 86 authorizations in 2012, eight authorized impacts that were not described in terms of area (e.g. the proponent was authorized to destroy 1,500 eelgrass plants, or to dewater a stream killing all its fish); these were excluded from our analysis, leaving us with 78 authorizations. Continue reading →

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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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 5^th 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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By: Martin Olszynski

Decision commented on: Notification to the Submitters and to Council regarding a proceeding notified by Canada (SEM-10-002) (Alberta Tailings Ponds)

PDF version: North American Environmental Commission Investigating Tailings Ponds Leakage Not Deterred by Private Prosecution

Much has been written recently about the Fisheries Act, RSC 1985 c F-14, that often (and perhaps excessively) venerated piece of federal environmental legislation so maligned by industry and other private interests that the Conservative government, in its 2012 omnibus budget legislation, decided to tamper with its provisions in what has been described as a “gutting” (see here, here, here, here, and here) but that upon closer examination appears more like cosmetic surgery (which is to say, still unnecessary and unhelpful but mostly superficial; see e.g. the new policy from Fisheries and Oceans Canada).  Still more ink has been spilled in the wake of the recently enacted Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act, which the Department of Fisheries and Oceans (DFO) initially stated would have no impact on regulatees or the public at large while the private bar and environmental groups described them as marking a “significant shift in the regulatory regime for managing water quality in Canada” and as “another tangible and integral step in the overall de-regulation agenda.” Following the April 14 release of a decision of the Secretariat of the Commission for Environmental Cooperation (CEC) in relation to the alleged non-enforcement of section 36 of the Fisheries Act to Alberta’s oil sands (CEC Decision), I decided that it was time to spill some ink of my own.

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