When government officials charged with protecting the environment talk about their ability to walk softly and carry a big stick, they are usually referring to the powers invested in them by the Fisheries Act.
The bill, first passed in 1867, has been strengthened several times over the years, most notably in 1986 when the Conservative government of Brian Mulroney brought in key measures to protect fish habitat.
It came as a surprise then, both to environmental organizations and apparently even staff within the Department of Fisheries and Oceans, when an internal document was leaked this week indicating the government may water down the bill.
Responding to questions in the House from NDP MP Fin Donnelly, Fisheries Minister Keith Ashfield confirmed he is looking at significant changes.
Mr. Ashfield's office declined a request for an interview Friday, but earlier in the week he did answer when Mr. Donnelly asked about proposed amendments to Section 35, which gives the Fisheries Act much of its power.
“Eliminating habitat protection will set us back decades, making it easier to ram through big industrial projects, like the Enbridge pipeline, which we know will have a devastating impact on the environment. I ask the minister again, is the Conservative government planning to gut the habitat [section of the Act]… yes or no?” Mr. Donnelly asked.
Mr. Ashfield not only confirmed that changes are being considered, but he also suggested the Fisheries Act is a blunt instrument that is unfairly impeding activities that pose no risk to fish.
“Mr. Speaker, current fisheries policies go well beyond what is required to protect fish and fish habitat. I can give some examples of that,” he said. “Last year in Saskatchewan, a long-running country jamboree was nearly cancelled after newly flooded fields were deemed fish habitat by fisheries officials. In Richelieu, the application of rules blocked a farmer from draining his flooded field.”
The incident in Saskatchewan took place last June, when DFO officials used the Fisheries Act to stop the Craven Country Jamboree from pumping water off flooded flats along Last Mountain Creek and the Qu’Appelle River.
A similar situation occurred in southwest Quebec, where farmers were warned they could be fined if they killed fish while pumping out fields flooded when the Richelieu River spilled its banks.
It may seem absurd to apply the Fisheries Act to farmers fields and festival grounds, but Adam Matichuk, fisheries project co-ordinator for the Saskatchewan Wildlife Federation, said that, during high-water events, many fish species move into flooded areas to feed and reproduce.
“The Craven area is basically a flood plain,” he said. “It doesn’t flood every year, but, when it does, fish take advantage of it. There were hundreds of thousands of young fish, mostly pike and walleye, in there when they turned on those pumps,” he said.
Mr. Matichuk said DFO responded appropriately by ordering the pumping stopped, and he was surprised when Mr. Ashfield stepped in and issued a ministerial order that allowed pumping to resume.
“This government is convinced that the Fisheries Act is an impediment to economic activity, and that is just BS.,” said Otto Langer, former head of habitat protection for DFO on the West Coast.
Mr. Langer, who left DFO several years ago, was leaked the proposed changes to the Fisheries Act, which he then passed on to Mr. Donnelly, whose questions in the House triggered wide debate.
The proposed changes, Mr. Langer said, strip reference to “habitat” from the act, and make the legislation difficult to enforce by introducing vague and obscure wording.
Currently the act makes it illegal to damage fish habitat. The new version refers instead to harming “fish of economic, cultural or ecological value.”
“If you can’t prove any of those values exist, you can’t take anyone to court,” said Mr. Langer, who added his former colleagues in DFO were surprised when he brought the changes to their attention.
“This is top down from Ottawa, with no public consultation and no consultation within DFO,” he said.
Lara Tessaro, a staff lawyer at Ecojustice, said the proposed changes would drastically weaken the legislation.
“You can’t find an environmental lawyer anywhere who would disagree that the changes proposed would take us back to the 1960s,” she said.