A recent report finds that the mandate of the Fisheries Act is not being met. The federal Commissioner of the Environment and Sustainable Development, Scott Vaughan, audited programs that implement and enforce the Fisheries Act. The report was released in mid-May to the House of Commons pointing to issues that have remained unresolved over many years.

The Report of the Commissioner of the Environment and Sustainable Development to the House of Commons, Spring 2009, found that there has been a failure to enforce and implement the Fisheries Act, the primary federal law to protect fish habitat. The finding came from an audit of the Fisheries Act (in conjunction with a review of the Kyoto Protocol Implementation Act) that details how the Act is not properly supported and used to protect fish habitat in Canada.

One of the most important pieces of federal legislation to protect fish habitat in Canada, the Fisheries Act, is only effective if implemented and enforced.

Although provincial governments have most responsibility over water resource issues and have been delegated responsibility for fish, the federal government retains responsibility for fish habitat. The Act is meant to prohibit the harmful alteration, disruption, or destruction of fish habitat and to prevent pollution by prohibiting the deposit of harmful substances into our waters. The Department of Fisheries and Oceans (DFO) is responsible for administering and enforcing the Act while Environment Canada is responsible for prevention of pollution by harmful substances (Vaughan 2009).

This report finds that the Act’s objectives are not being met. In a May 12th press release, the Commissioner states, “Fisheries and Oceans Canada and Environment Canada cannot demonstrate that they are adequately protecting fish habitat as the Fisheries Act requires them to do.” Meanwhile, approximately one quarter of all petitions received by the Commissioner’s Office relate to fish habitat issues, according to the report.

Overall, the report concluded:

• DFO does not consistently review project proposals
• DFO does not monitor compliance by proponents of approved projects or evaluate effectiveness of habitat mitigation or compensation
• DFO does not document habitat loss or gain
• DFO does not formally communicate with Environment Canada who is responsible for assuring pollution does not compromise water quality
• Environment Canada has not identified what it must do under the Fisheries Act to prevent pollution of fish-bearing waters

Fisheries and Oceans Canada does not adequately protect fish habitat

The report found that the Department of Fisheries and Oceans Canada (DFO) does not consistently follow required steps to review project proposals for risk to fish habitat. Based on a random selection of 30 project reviews and 16 authorizations, the Commissioner found that required documentation – including identified potential impact on fish habitat, risk assessment of impact significance, reasons for additional mitigation measures, and monitoring plans of mitigation measures and compensation – was not always found. Nor were habitat compensation plans available or sufficiently detailed in the 16 authorizations reviewed (Vaughan 2009).

The report found that DFO often does not monitor how approved projects affect fish habitat. With weak systems to monitor conditions (such as habitat compensation or mitigation) set out for project approvals, DFO is unable to determine whether there has been a net increase or a net loss in fish habitat. However, the 1986 Habitat Policy’s long-term goal is a net gain of fish habitat.

The audit also found little documentation to demonstrate DFO assesses habitat loss, mitigation, or habitat compensation in approved projects.

The report also noted that DFO had shifted its focus from enforcing noncompliance to promoting compliance such as through public education, stakeholder consultation, and technical assistance. As a result, the report noted that DFO Conservation and Protection fishery officers spend less time on habitat-related enforcement matters — from 78,057 hours in 2003 to 38,249 hours in 2007.

For another critique of Fisheries Act enforcement, read DFO sets new policy course for Fisheries Act enforcement

The report also found that formal communications between DFO and Environment Canada have not been established despite their shared mandate of fish habitat protection. The 1986 Habitat Policy stipulates that the two federal departments work together to set federal priorities, develop common criteria for fish protection, establish expectations relating to pollution prevention provisions of the Fisheries Act, or maintain formal contact about these issues. The report noted the 1986 Policy has not been fully implemented in its 23 years of existence.

The report indicated that DFO responded to the Commissioner’s recommendations, saying that it will work to implement its Habitat Compliance Decision Framework to work toward nationally consistent monitoring of projects, develop scientific methodologies to examine effectiveness of compensation, and ensure consistent documentation of enforcement actions.

Environment Canada has not assessed whether or not it is fulfilling its Fisheries Act obligations

While DFO has made slow progress or has not fulfilled all of its responsibilities, according to the audit, Environment Canada (EC) has yet to identify what it must do to fulfill its obligations under the Fisheries Act. It has not set out clear objectives and expectations to meet its obligations under the Fisheries Act. Nor does EC have a Fisheries Act compliance strategy for regulating deposits of harmful substances by industries and their activities into fish-bearing waters. Instead, EC relies on its activities under the Canadian Environmental Protection Act (CEPA), which allows EC to regulate industrial and commercial chemicals. EC also administers and enforces two regulations under the Fisheries Act: the Pulp and Paper Effluent Regulations and the Metal Mining Effluent Regulations (Vaughan 2009).

Aside from CEPA and these regulations, EC largely relies on legislation and enforcement in provinces and other jurisdictions to protect water from pollution (Vaughan 2009).

Overall, the report indicates EC has not formally assessed to what extent its activities under CEPA, the above regulations, or water quality-related activities of the provinces and territories fulfill EC’s obligations under the Fisheries Act. For example, EC has a formal agreement with Alberta – the Canada-Alberta Administrative Agreement for the Control of Deposits of Deleterious Substances under the Fisheries Act (the Agreement) – to cooperate on water pollution prevention. The Management Committee who is meant to govern this Agreement has not met in over two years. Instead communications have been informal among Alberta and EC staff (Vaughan 2009).

Fish habitat is a fundamental component of Canada’s wealth from economic, recreational, and ecological perspectives. Destruction of fish habitat compromises the health of river and lake systems and impinges on the livelihoods of many in the country as well as Canadian heritage. Challenges such as water withdrawals for oil sands operations, water quality issues from tailings ponds, and resolving long-standing fish habitat issues like the water withdrawal for irrigation at Bassano Dam require that the systemic short-comings detailed in this report be addressed. Ideally, over the long term, DFO will find the resources to improve its approval and monitoring systems. Additionally DFO and Environment Canada will need to align resources to address their specific and complementary roles in maintaining to maintain fish habitat.

Sources

Unger, Jason. 2005. DFO sets new policy course for Fisheries Act enforcement. Environmental Law Centre. Vol 20, No 4.

Vaughan, Scott. 2009. Report of the Commissioner of the Environment and Sustainable Development to the House of Commons. Office of the Auditor General of Canada.