When a government makes changes to a regulatory framework, it takes time – sometimes years – before its actual impacts can be known. Now, almost two years since the last of the amendments came into force (the last of the Bill C-38 changes to the Fisheries Act came into effect in November, 2013), results have started to come in, and a new paper by a law professor from the University of Calgary tells us that things are not looking good for fish or the environment.

Main changes to habitat protection

Last month, Professor Martin Olszynski of the University of Calgary’s Faculty of Law released a draft paper analyzing the impacts of changes to section 35(1), the Fisheries Act’s main habitat protection provision.

Section 35 is a two-part provision: 35(1) prohibits harm to fish habitat, while 35(2) says the prohibition does not apply if the activity has been authorized by the Fisheries Minister or belongs to a class of prescribed activities.

Bill C-38 altered section 35(1) in two important ways. First, it reduced protection of fish habitat from protection against any harmful alteration, disruption or destruction (a HADD) to protection against “serious harm to fish.” Section 2(1) of the Act defines as “the death of fish and the permanent alteration or destruction of fish habitat,” meaning that temporary harms are no longer prohibited. Second, it limited the protection from all fish to just fish that belong to or support a fishery.

The old section 35(1) read:

No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

Now, section 35(1) reads:

No person shall carry on any work, undertaking or activity that results inserious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.

An important change was also made to section 35(2), allowing the Minister to pass regulations giving blanket-exemption to prescribed projects and activities from the section 35(1) prohibition. While Prof. Olszynski’s paper focuses on changes to section 35(1), it is worth noting that this year, the Minister passed regulations exempting aquaculture facilities from section 3.5(1) (you can read our submissions to DFO on the Regulations).

The guesswork

Although the government claimed that Bill C-38 would create greater certainty for industry, the changes have been widely criticized for generating more questions and uncertainty than ever before. When they were introduced, what we knew was:

• The changes were requested by industry;
• they were intended to make environmental reviews“quicker and more streamlined” and prevent “unnecessary delays;” and among other things,
• they removed legal protection of non-fisheries fish and weakened protection of fish habitat.

What we did not know was exactly how those changes would impact fish. The pro and con sides could each make predictions, but absent concrete evidence, could not prove one way or another whether the changes would directly or indirectly negatively impact Canada’s wild fish.

Prof. Olszynski’s paper begins to help answer that question. As he found, we and other groups were right to be concerned that the changes would result in a reduction in government oversight of harms done to fish habitat. However, his findings did reveal a few surprises.

Proof is in the pudding

So how do you measure protection? Prof. Olszynski looked at authorizations, presumably positing that authorization equals oversight. He compared 184 DFO authorizations issued under section 35(2) in its two largest regions (Pacific and Central & Arctic) over a six-month period for the years 2012, 2013, and 2014.

As mentioned above, the paper finds a general decline in protection of fish habitat since 2012, which can be linked to the Fisheries Act amendments. However, that link may not be as strong as many groups – ourselves included – may have originally thought.

As expected, the number of authorizations has declined dramatically in the last three years, down 58% between 2012 and 2014. In other words, more than twice as much potentially harmful work is now being done in and around fish habitat without DFO’s oversight.

According to the paper, however, just over half of the reduction in authorizations can be attributable to the lessening of the protection from HADD to “serious harm.” For one, DFO is authorizing fewer projects with smaller footprints (>1,000 m2), which accounts for approximately 40% of the reduction in authorizations. This decline is likely due to an interpretation by DFO that “serious harm” generally requires a larger impact area than a HADD.

Another 16% of the reduction can be attributed to the fact that temporary disturbances are no longer prohibited. However, DFO’s oversight of temporary harms does not appear to have been high even before the changes: for example in 2012, DFO only issued three authorizations for “disruptions” to fish habitat.

Interestingly, the paper calls into question whether the decline in DFO authorizations relates to the limitation of the protection to fish that belong to or support aboriginal, recreational or commercial fisheries. Following the amendments, many (such as biologists Jeffrey Hutchings and John Post) expressed concern that the limitation of the protection to fish that belong to or support a fishery would leave much of Canada’s sparsely or uninhabited areas unprotected. But plotted on a map, authorizations in 2014 were distributed similarly as in 2012.

Indeed, only two authorizations for habitat destruction occurring in the provinces’ northern stretches in 2012 and 2013. As Prof. Olszynski writes in his blog post on the paper:

The more striking realization, however, is that the vast majority of Canada’s freshwater lakes and rivers appear to not have had the benefit of habitat protection before the implementation of the new fisheries protection regime. It is simply untenable to suggest that there were only two instances of habitat destruction (to say nothing of harmful alteration or disruption) requiring authorization in all of northern British Columbia, Alberta, Saskatchewan, Manitoba and Ontario in 2012 and 2013 (i.e., draw a horizontal line from the Pacific coast all the way to Ontario at roughly the latitude of Smithers, B.C., and count how many authorizations you see above that line).

In other words, it does not appear as if removing protection from non-fisheries fish has affected DFO’s oversight of remote areas. Rather, the data suggests that DFO has simply been abandoning the north for some time.

If not the amendments, then what?

So if the changes to the Fisheries Act only account for just over half of the reduction in DFO authorizations, what is responsible for the rest? Prof. Olszynski argues that much of the loss of habitat protection since 2012 can be attributed to regulatory “slippage” (non-compliance) and DFO’s use of a risk-based approach to habitat protection.

The paper describes a consistent decline in how often proponents even refer their projects to DFO since 2001/02, with a sharp drop between 2012-2014. One likely reason for this decline is DFO’s pre-2012 policy of using a risk-based approach, wherein it assumed that low-risk disruptions and harmful alterations to fish habitat would not contravene section 35(1) so long as proponents followed mitigation measures set out in Letters of Advice and Operational Statements. In other words, DFO did in policy what the Minister is now allowed to do in regulation: blanket-exempt certain works and activities from the requirement to obtain authorization to harm fish habitat.

As Prof. Olszynski writes:

The deceptively simple idea behind risk-based regulation is that regulators should focus their (increasingly) limited resources on those risks that pose the greatest threat to the achievement of their objectives. As noted by Professor Julia Black, however, risk based regulation is “inherently complex,” entailing the management of not one but three ‘R’s: risk, resources and reputation: “Managing each of these elements is complex in itself. Managing them all successfully simultaneously can be impossible, as they can each pull in different directions.” Arguably, it is precisely this paradox that led to the 2012 amendments to the Fisheries Act and DFO’s near total abdication of the habitat field.

As noted above, DFO appears to have done a relatively good job of managing at least one ‘R’ –its resources: implementation of the EPMP would have resulted in a significant reduction of its regulatory obligations. The important flip side of this coin was proponents’ regulatory burden, which would have seen a commensurate reduction, such that one might assume that DFO was also successfully managing its reputation – at least with industry.

Prof. Olszynski also blames non-compliance on a belief among proponents of the small likelihood that violations will be prosecuted:

Bearing in mind that the changes to the Fisheries Act were not brought into force until a full year and a half later (November 25, 2013), the significant decline in referrals from 2012 to 2014 is consistent with the above-noted concerns regarding a fog of uncertainty: many proponents apparently took the view that their projects simply no longer required review or authorization, irrespective of the law ‘on the books.’

In addition to this “fog of uncertainties,” the paper describes “a dramatic decline in traditional enforcement activity (warnings and charges)” since the early 2000s, and “further declines in the past five years.”

Conclusion

When the changes were first introduced, West Coast, along with hundreds groups representing tens of thousands of Canadians, including scientists, artists, and even former Fisheries Ministers, decried the changes as irresponsible, undemocratic (the government buried a host of environmental law rollbacks within hundreds of pages of two omnibus budget bills, which it rammed through despite widespread opposition from the public and opposition MPs), and certain to significantly increase environmental and health risks. The government claimed that the changes would not lessen environmental protections, but rather provide clarity, certainty and consistency to regulatory requirements.

Now, three years after their introduction and a year and a half since the last of the Fisheries Act amendments were brought into force, we are finally starting to see their effect on the ground. There has been a significant reduction in DFO oversight of projects and activities that harm fish habitat since 2012, although that decline is part of a longer trend and cannot be attributed solely to the changes to the habitat protection provisions of the Fisheries Act.

The takeaway? In order to increase protection of fish habitat, Canada not only needs stronger laws, but the organizational capacity and will to effectively administer and enforce those laws. If we are successful in having our next federal government be one that prioritizes strengthening our laws protecting fish, it appears that we will have much work ahead before any changes translate to better protection on the ground.

Anna Johnston, Staff Counsel