Ecojustice gears up for legal battle over possible changes to Fisheries Act

The sweeping changes to the legislation are embedded in Bill C-38, a measure that does more than its purported intention of implementing the national budget. It also rewrites a host of other laws that cover everything from at-risk wildlife species to old-age pensions.

“I can tell you without hesitation that there’s significant constitutional questions that can be raised in a court concerning the legality of the changes, specifically to the fisheries,” Ecojustice staff lawyer Tim Leadem told the Georgia Straight in a phone interview.

According to Leadem, the budget bill goes against the grain of the Constitution concerning federal jurisdiction over fisheries.

“The authority to pass laws with respect to fisheries has always been with Canada ever since Confederation,” the lawyer for the Vancouver-based organization said. “And this act seems to indicate that there’s devolution of lawmaking authority to the province, and we’re not sure if that is constitutionally legal.”

An Ecojustice legal briefing paper states that Bill C-38 not only expands the discretion of the minister of Fisheries and Oceans Canada to authorize the killing of fish and destruction of fish habitat to make way for industrial projects. Through ministerial regulation, the federal government can also “delegate to industry, developers or provinces the right to authorize adverse effects on fish and fish habitat”.

“Such an amendment is not only environmentally unwise in that it would let the ‘fox guard the chicken coop’, but moreover it could raise constitutional concerns,” according to the document.

The paper also states that the bill contains provisions that specifically deal with devolution of fisheries management and regulation to the provinces. It notes that these are consistent with the “overall trend” in the budget bill to “limit or suspend the operation” of the Fisheries Act.

“Theoretically, the Government could remove any projects—from pipelines to oil sands projects—from the requirement to protect fish habitat, and could deprive any Canadian lake, river or streams of protection,” the document points out.

The budget measure passed the second of the three required readings on the floor of the House of Commons on May 14. With a Conservative majority, it will likely get approved. Fisheries and Oceans Canada did not make a spokesperson available for interview before deadline.

Fin Donnelly is the Opposition fisheries critic. The New Democrat MP for New Westminster–Coquitlam said that amendments to the Fisheries Act are designed to weaken habitat protection in order to facilitate major projects like a pipeline from Alberta to the B.C. coast.

“The Northern Gateway pipeline, the Enbridge pipeline, is two huge pipes from the oil sands to Kitimat,” Donnelly told the Straight in a phone interview. “It’s 1,100 kilometres, and they’re going to cross 800-plus streams in Northern British Columbia.”

The pending changes to the Fisheries Act shift focus from protecting habitat to fish of value. The proposed amendment reads: “No person shall carry 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.”

That demonstrates ignorance about ecology, according to marine biologist Otto Langer. A retired habitat protection officer with Fisheries and Oceans Canada, Langer raised the alarm in March that the Conservative government would gut legislation pertaining to habitat protection.

“When you get out into the Fraser River at Hope, there are probably 30 species of fish in the river, and 20 of them have no Aboriginal, commercial, or recreational value,” Langer told the Straight in a phone interview. “So you can’t protect their habitat anymore. So what we’re saying is we’re just going to protect salmon and maybe one or two other fish species.”

Mike Pearson, an independent fish biologist, does a lot of work on two noncommercial but at-risk species: the Nooksack dace and the Salish sucker. According to the Agassiz-based expert, the Conservative government is playing a “fool’s game” regarding fish and habitat.

“You can’t pick and choose what you protect,” Pearson told the Straight by phone. “If you’re not going to protect the habitat that all of the fish require, the fish that you want aren’t going to do well either.”