Stephen Harper prides himself on being an astute political manager. However, the recent amendments to the Fisheries Act, contained in Bill C-38, the 2012 Budget Implementation Act, are the work of a political amateur. They will not help him get new pipelines built and they do not help his re-election prospects, since they have mobilized significant opposition, including from within the Conservative Party, and the manner of their passage lacks all legitimacy. Why has this seasoned veteran acted like such a rookie on the fisheries file?
The Fisheries Act amendments will undermine a stable, predictable regulatory regime, one that for more than 35 years balanced economic and environmental objectives and was based on sound science. That stability has been replaced by regulatory uncertainty for two reasons – first, because the law creates defences for polluters, making implementation less predictable, and secondly, because it significantly expands the scope for discretionary decisions by the Minister and staff of the Department of Fisheries and Oceans (DFO) as they make regulatory approvals. This lessening of stability and predictability for the fisheries regulatory system is the last thing investors want – which works against the Harper government objective of attracting new energy-infrastructure investment.
This law is not based on science, because it attempts to limit protection of habitat to fisheries that are of value to humans – something our fisheries scientists tell us cannot be done. For nearly 37 years, the Fisheries Act was recognized and praised as a shining example of a law based on scientific understanding of the interconnected nature of aquatic ecosystems. Since a key decision by the British Columbia Court of Appeal in 1979, ecological interconnectedness has been upheld by successive appellate and lower courts across Canada. Regulators, industries, aboriginal communities and others all understood that in law and policy, it was impossible to differentiate between the habitats of fish species useful to humans and those not useful to humans. That has now been swept aside by the Harper government’s disdain for fact presented by experts. The recommendations of Jeffrey Hutchings, president of the Canadian Society for Ecology and Evolution, and of David Schindler, representing 625 Canadian fisheries scientists, have all been ignored.
The amendments represent bad politics because they have been passed into law with neither consultation nor compromise. In the 1970s and 1980s, DFO and Environment Canada, the two agencies responsible for enforcing the Fisheries Act, pioneered innovative stakeholder involvement to hammer out agreements on new amendments, standards and policies among industry, environmentalists and other parties. The compromises did not always please everyone, but because all stakeholders had an opportunity to express their views, most participants were willing to live with the outcome.
This time, however, the federal government decided unilaterally, consistent with the advice of its industry-dominated Major Projects Management Office, to forgo consultation that might have led to compromise and increased legitimacy. Instead, the public first learned about the proposed amendments in March, 2012, when a retired DFO scientist shared a leaked document. The lack of consultation, the lack of compromise (no changes were ever made to the proposed amendments), and the parliamentary process of bundling amendments to 69 laws into one budget bill means stakeholders will certainly not accept this outcome. The expected opposition from scientists and environmentalists has been bolstered by very public and previously unheard-of protests by former Conservative fisheries ministers. The Bill C-38 Fisheries Act amendments will remain in the public eye until Canadians next go to the polls in 2015.
Why did the Harper government make such basic political errors? Perhaps it actually believes its own rhetoric – that a “balance” between environment and economy is best achieved by tipping the scales and weakening effective environmental laws. Or perhaps the Harper government earned a reputation for shrewd political management simply because its previous minority status forced it to compromise. Perhaps we are now seeing the true Harper government – disdainful not only of the environment, but also of both science and consultative, participatory democracy.
Douglas Macdonald, School of the Environment, University of Toronto; David McRobert, environmental lawyer, Peterborough, Ont.; and Miriam Diamond, department of geography, University of Toronto