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No Habitat - No Fish / No Protection - No Habitat

An internal government memo leaked to fisheries biologist Otto Langer suggests that the Federal government plans on removing a crucial provision of the Fisheries Act – one of Canada’s most important environmental laws.

Section 35(1) of the current Act says that “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat”. This section has led the Department of Fisheries and Oceans (DFO) to develop a core policy called “No Net Loss” that directs them to maintain or increase the total amount of productive fish habitat in the country. Though not always successful it’s the right orientation for the conservation of fish and of the aquatic ecosystems where fish live.

In his press release, Langer points out that DFO used to emblazon pencils with the truism “No Habiat – No Fish” and as Ecojustice’s Lara Tessaro commented “it's Biology 101 that fish need habitat to survive.”

Instead of protection for habitat – the leaked version of the amended section 35  reads “No person shall carry on any work, undertaking or activity, other than fishing, that results in an adverse effect on a fish of economic, cultural or ecological value.”

There’s little doubt that the push for changes to the Fisheries Act is coming from industry lobbyists – who have long targeted the protective provisions of the Act, complaining that  they are in the way of the fast-track approach to development they want to see. But the industry lobby is also demanding “clarity” and “certainty” in regulatory processes.

This revision would only muddy the waters. Rather than an objective concern for “fish habitat” companies, conservationists and First Nations could find themselves embroiled in battles over what “a fish of economic, cultural or ecological value” actually is.

Even more worrisome is that if activities impact the habitat but not the fish directly they could escape scrutiny of the Act. Of course there’s little point in protecting the fish if they don’t have the full range of habitats (spawning, feeding, shelter, over-wintering etc) they need to survive.

The importance of habitat protection and the “No Net Loss” policy played out in the environmental review of one of Canada’s most controversial mining projects – Taseko Mines’ proposed Prosperity Gold-Copper Project. It’s a massive open pit mining project to exploit a low-grade gold and copper deposit in a sensitive and culturally important watershed within the territory of the Tsilhqot’in Nation (central BC). The initial proposal was to drain Fish Lake (Teztan Biny) and construct a tailings dump in the upper part of the same watershed, filling in a creek and another smaller lake with the wastes.

The whole watershed is highly productive trout habitat and while the proponent argued they’d “save” the fish by removing a portion of the population and transplanting them into a constructed reservoir, DFO, MiningWatch and retired biologist and specialist in trout populations Gordon Hartman all agreed that the reservoir would not compensate for the loss of habitat, even if the population of fish could be saved for a time. An independent review panel and ultimately the federal government agreed. The protection of the original habitat would be crucial to maintaining the fish and the use of those fish in the long run. In a very rare result the project was rejected due, in part, to the significant irreversible impacts it would have had on fish habitat. (Taseko has since resubmitted the project with a previously discredited alternative mine plan.)

Section 35 is also closely related to the Canadian Environmental Assessment Act (CEAA) and one of the most frequent triggers of the federal review process for mining and other resource projects. The subsections of the leaked amendment would provide ample opportunity for major projects to avoid a federal environmental assessment (EA) as the government could add classes of activities or prescribed conditions to avoid issuing a permit and triggering an EA.

This week we also learned where things might be heading for CEAA. Environment Minister Peter Kent publicly endorsed a problematic report on reforming the act that was released from the parliamentary Standing Committee on Environment and Sustainable Development on Monday. The report heavily favoured input from industry representatives, which represented the largest number of witnesses and had the highest number of attributions in the Committee’s report.

Kent has  also confirmed they’ll be looking into the Species at Risk Act in the future.

YIKES!

For more on the CEAA review