Sunday, 3 September 2017

Fisheries Act Recommendations - West Coast Environmental Law, Updated Feb 28, 2018

West Coast Environmental Law, a long time, enviro law firm, has, among other things come up with ten recommendations for the Fisheries Act. Do note that there are other statutes that need amendment, too, The Canadian Environmental Assessment Act, for instance.

WCEL has exhaustive publication links and done lots of work on documents surrounding this subject. If you want to, you could read their material all day. And, of course, for students, this makes pretty sound research for a class environmental report:

Here are their top ten recommendations for an Amended Fisheries Act:

A new Act must:

1.      Restore the Act’s focus on fish habitat: No habitat, no fish. Bring back the prohibition on harmful alteration, disruption or destruction of fish habitat (HADD) unless authorized, and turn it into  a modern safeguard by updating and improving it:

a.      Include a prohibition on HADD.

      b. Include a more complete definition of HADD, clear threshold for HADD, and factors to be considered in its authorization.

     c. Retain “activities” along with “works and undertakings” in a revised HADD prohibition.

     d. Explicitly restrict or prohibit fishing practices that harm fish habitat.

2.      Modernize the HADD authorization process with:

a.      an explicit requirement to consider cumulative effects to fish and fish habitat when making authorization decisions;

b.      regulations exempting minor projects and works from the requirement to obtain an authorization if             the proponent complies with specified guidelines and best practices and submits all required information, such as the project or work’s location, potential effects and cumulative impacts and their significance, and proposed mitigation measures to the government for inclusion in a database1; 
c.      creation of a new publicly accessible database that requires proponents to record all projects and

works constructed pursuant the new regulations, and to further record all habitat referrals, authorizations,  charges, warnings prosecutions, convictions, fines, and other regulatory activities.

3.      Protect fish habitat from cumulative impacts by:

a.      requiring the avoidance and mitigation of cumulative impacts relative to legally established ecosystem-based habitat targets at appropriate geographic scales (e.g., stream, watershed and seabed levels) using the best available science and Indigenous law and knowledge;

b. entrenching the principle of Net Gain in the Act. We support the Canadian Wildlife Federation’s call for the Act to establish minimum requirements for offsetting ratios that reflect a net gain for every project to help reduce the cumulative effects of underperforming and abandoned offset projects;2
4) Restore the other “lost protections” for fish and fish habitat:

a. Remove references to Commercial, Recreational and Aboriginal fisheries from the Act to clarify that the Act applies to all fish, not just ‘fisheries fish.’

b. Restore the prohibition on killing fish by means other than fishing.

5) Environmental flows are regarded as the ‘master variable’ for river health, and the Act should clearly protect environmental flows through these provisions:

a. Define environmental flow, using the 2007 Brisbane Declaration definition: “Environmental flows describe the quantity, timing, and quality of water flows required to sustain freshwater and estuarine ecosystems and the human livelihoods and well-being that depend on these ecosystems.”

b. Define conditions of flow alternation that trigger section 20 of the Act on flows and fish passage, based on science advice from DFO’s Canadian Science Advisory Secretariat (CSAS).

c. List ‘environmental flow protection’ as a goal for fish habitat protection in a Purposes or Preamble section of a renewed Act.

d. Require the maintenance of environmental flows in listed transboundary rivers of national significance.

e. Establish national regulations on flow.

f. Reform provisions related to orders for the free passage of fish for example by increasing Ministerial authority to make flow orders under s. 20.

6) Provide for new entrenched requirements for reports on habitat assessment and monitoring:

a. Require a systematic assessment of key fish habitats throughout Canada to be presented to Parliament three to five years after the amended Act comes into force. Should the report indicate deficiencies, the Act should require DFO to take reasonable action to correct them, failure of which would be subject to judicial review, and also require:3

i. a government response and action plan to address the report’s recommendations, and

ii. follow-up monitoring of fish habitat for all section 35 authorizations.

7) Make rebuilding depleted fish stocks and preventing overfishing explicit purposes of the Act in a new Purposes section to guide decision-makers.

8) Require fish conservation and management decisions to be based on an expanded list of sustainability Principles as outlined in WCELA’s two briefs, including the precautionary principle, sustainable development, and adaptive management. We support the submission from Professors Olszynski, Stacey, MacLean, Kwasniak, and Gibson, which discusses the need for detailed legislative provisions governing the application of adaptive management that could be included in either the forthcoming new impact assessment legislation that would be made also applicable to DFO and proponents under the Fisheries Act, or could be replicated in the Fisheries Act.4

9)Enable delegation of monitoring and enforcement authority to First Nations, including the power to enforce Indigenous laws, backed by sufficient funding equivalent to that provided for DFO’s fisheries officers..

10) Make fisheries authorizations triggers for environmental assessments by re-establishing s. 32, 35, and 36 authorizations of the Act as environmental assessment triggers, bearing in mind WCEL’s recommendation that minor projects would be subject to regulations, not ministerial authorizations.

Linda Nowlan, Staff Counsel
Mari Galloway, Law Student
West Coast Environmental Law Association
August 28, 2017


And do go back to this post of mine about the on-going problems with Canadian environmental laws. and fisheries ones; It is a long document too: It has a litany of complaint for weak laws and poor enforcement. The point being  that it doesn't matter what laws you have if you don't enforce them, and you don't have staff that you make enforce them.


Updated Feb 28, 2018: here is Ecojustice's take on fisheries act et al changes:

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