Fisheries Act: Weaker or Tougher?

With Bill C-38, the omnibus Budget Implementation Act, Bill C-38, the Conservative government will bring sweeping changes to Canada’s environmental landscape. To make approvals easier for oil sands projects and related pipelines, the Fisheries Act will be particularly affected. Major changes will dramatically narrow what a reduced corps of fisheries officers will attempt to protect. However, while there will likely be even fewer prosecutions, penalties for those that convicted will soar. According to the federal government, the purpose of these changes in is “to focus …on the protection of fish that support commercial, recreational or Aboriginal fisheries and to more effectively manage those activities that pose the greatest threats to these fisheries.” As a result, the protection for fish habitat generally, found in subsection 35(1), will be replaced by a narrower prohibition on “any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.” Even then, not all harm is prohibited: the habitat must be permanently altered or destroyed. (Is damage for five years “permanent”? 30 years? 100 years? Is it “permanent” if someone could someday repair it?) There is nothing wrong with “focusing” scarce government resources on the greatest threats to the natural resources that are most important to people. Unfortunately, the amendments seem designed to do more than “focus” resources; they seem designed to entirely exclude large parts of many aquatic ecosystems from protection. Given how interdependent different species and ecosystems are, and how little we understand, attempts to save only the species we like, and discard the rest, seem doomed to fail. The loss of protection for such species and their habitat has been widely criticized. (See, for example, the Canadian Society for Ecology and Evolution, and former Conservative Fisheries Minister Tom Siddon.) And even then, not all harm is prohibited: the habitat must be permanently altered or destroyed. (Is damage for five years “permanent”? 30 years? 100 years? Is it “permanent” if someone could someday repair it?) In addition, the federal government may exclude entire provinces or territories from all or part of the Fisheries Act, if they decide that there is a provincial or territorial law with an equivalent effect. As a small offset to these major losses in environmental protection, the Act brings in stinging minimum fines. Under the current Fisheries Act, the maximum fine is $300,000 and/or six months in jail for summary conviction and $1,000,000 and/or three years in jail for an indictable conviction. As highlighted by Ecojustice in their recent report, Getting Tough on Environmental Crime? Holding the Government of Canada to Account on Environmental Enforcement, few cases have been taken to court, and the penalties actually imposed have typically been low: Based on the six convictions reported in Environment Canada’s Enforcement Notifications[1] in 2008-09, the average fine was $16,000. More recently, in 2010-11, there were nine convictions reported in the Enforcement Notifications. The average was skewed by one fine of $200,000 against Suncor Energy Inc. for a release of effluent from sedimentation ponds during a road construction in northern Alberta. Remove this one large fine from consideration and the average fine climbs to $39,219. Based on Fisheries and Oceans Canada’s Charges and Convictions bulletins[2], in 2008-09, there were six reported convictions with an average fine of $74,000. (Thus, a total for the year of 12 Fisheries Act convictions for the entire country, related to environmental protection.) The highest fine in this period was against a land developer who excavated a marsh and was ordered to pay $235,000. In 2010-11, there were three reported convictions with an average fine of $130,000. The highest fine in this period was against a developer who cleared seven hectares of a rare landform that was of particular importance to juvenile salmonids, and which supported commercial, recreational and First Nations fisheries. It was ordered to pay $375,000 in reparation costs and fines. The revised Act will make prosecutions harder, not easier, and many federal environmental staff are being laid off. However, if charges are laid and a conviction achieved, the courts will be obliged to impose a minimum sentence. These minimum fines will likely push actual fines up substantially, as they have done in provincial environmental cases. Bottom line: Slashing the scope of the Fisheries Act, and the people who enforce it, is bad news for waterways, fish and wildlife. High potential fines are not likely to make up the difference, because few will expect to get caught. People are much more responsive to a high risk of discovery, with likely consequences, than to a small risk of large consequences. It’s a sad day for the fish.

This article was first written for SLAW Dianne Saxe and Meredith James