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[shuswapsteve]

I agree with both Nog and Sandman.....The truth of the matter is these proposed changes (if that's what you call it) are not popular with the people that are entrusted to monitor and enforce habitat laws.  It is kind of dishearting when your employer is attempting to undermind your ability to do the job that the public expects.  In this day, optics are everything and it will be much harder for those front line workers to have any credibility with the public.  I have disagreed with Sandman in the past, but his post about ditches hits the nail on the head several times over.  AF, how do you think some agricultural land gets created?  I can tell you for a fact that some of that was likely fish habitat until it was altered.  A balance needs to be met, but for the most part I believe habitat people at DFO do their best to work with landowners.

But let's be honest about this.....As Nog says, this is not about farmers in Saskatchewan or farmers in the Fraser Valley.  Even the habitat people are not fooled.  It's about much bigger development and the need to streamline (i.e. pipelines).  Yes, the Fisheries Act can seem a little beaurocratic, confusing to follow, and a bit of a road block at times; however, many times landowners bring about the problems on themselves by doing unauthorized works - leaving habitat people and Fisheries Officers very little room to be the nice guy.  On one hand, habitat people want to be friendly and cooperative, but they also have a responsibility to uphold.  Many times developers/landowners will plead ignorance of the rules after the fact.  One of the reasons why the referral process takes so long is that there are too few people to look at all the new proposals.  This won't be getting any better if you know what is about to come down the pipe in regards to budgets.   Although I am not opposed to legislation being reviewed from time to time, it is not the Fisheries Act that's needs the overhaul - it is the expectations and thought process of some landowners (including Joe Public) and industry in regards to fish and fish habitat.

[chris gadsden]

Why has the Harper Government and Fisheries Minister Ashfield Failed to Provide a Credible Rationale for Their Planned Elimination of Habitat Protection from the Canada Fisheries Act?

A Discussion Paper From Otto Langer
March 25, 2012

About two weeks ago I was leaked a secret Harper Government document and released it to the public (March 12, 2012). I commented on the significance of that government's attempted move to eliminate the habitat protection provisions in the Fisheries Act [i.e. section 35(1) - also called the HADD section of the Act - "harmful alteration , disruption or destruction of fish habitat]. The government was to sneak those amendments through Parliament in the Budget Omnibus Bill and few Canadians would have been aware of what had happened.

Since MP Fin Donnelly ambushed the DFO Minister in the House of Commons, Mr. Ashfield had to admit what he was up to and is now trying to rationalize his actions. Based on new information and brief Ministerial statements we can now see what has motivated Ashfield and his government and it is less than convincing and actually a bizarre logic. It is obvious that his plans to neuter the habitat law in the Fisheries Act is definitely not in the public interest and will ensure the continued erosion of Canada's wild fishery resources that have been in decline for many years.

During the past many days I have been contacted by hundreds of reporters and concerned citizens and those closely associated with the fishery and its essential habitat base. I have been forwarded information on the flooding of the Craven County (Saskatchewan) Jamboree campground (see below).  It is indeed that issue that Minister Ashfield seems to depend on most to rationalize the need to eliminate habitat protection from the Fisheries Act. Apparently his actions are based on a flood event that some river experts say, based on probability, will happen once every  300 years.

 A Saskatchewan fish and game organization noted that thousands of northern pike and walleye (valuable sports, First Nations  and in some areas commercial fish and ecologically significant species in any prairie river) were stranded behind the dyke after river flooding. The obvious way of addressing such a major fish stranding  problem would be by the breaching of the apparently poorly designed dyke 'protecting' a poorly located campground. The water and entrained fish would then naturally drain out of the Jamboree dyked campground and re- enter the Q'Appelle River and be safe and the campground would be drained.

This is a common sense solution and appears to have been suggested at the time.  It is too bad that fish have to die because the Jamboree campground was located in a flood plain which would be an important and uncommon habitat type in an area that is dry and not rich in rivers. Also the building of such a dyke can be counter productive as has been learned in many river systems such as in this very Saskatchewan-Manitoba flood event in 2011 and in the Mississippi River system floods. The river needs to spread out during flood events and dykes block the natural functioning and value of a flood- plain and its floodplain habitat values.

If you do build such dykes you have to  construct them in a way to get water out from out behind the dyke once the flood is over. If pumps had to be used, a fish salvage program could and should have been undertaken.  This is not rocket science and is standard procedure! Once the dyke is breached to drain flood water, it would have been very logical to put in a drainage culvert and flap valve prior to filling in the  breach and in future years the site would drain naturally in the event of another flood. Why would this not be treated as a learning opportunity for all involved versus a knee jerk response by Mr. Ashfield?

This fish stranding example as raised by Mr. Ashfield to rationalize why the habitat provisions of the Fisheries Act go too far in protecting fish habitat.  He accused his own staff of declaring the campground fish habitat and obstructed the drainage of the campground. Why has Minister Ashfield declared war on his own staff  Instead should he not budget for their training, better select competent managers and audit their activities before he cuts them off at the knees?

This example makes no sense what so ever and provide no basis for the Harper government to go off on a tangent and say the present habitat legislation is too powerful to do the necessary job of protecting fish habitat across Canada. Despite the bizarre assertions of Mr. Ashfield, I am certain no court in Canada would accept a campground as fish habitat.

What Mr Ashfield does not seem to realize that the example he waves about is not really a habitat problem! If his DFO staff were not muzzled by the Harper Government they could state what actually took place at this incident. The entrainment of fish behind the dyke that would be killed by conventional pumping is really covered by another section of the Act - i.e. Section 32 - No person shall destroy fish by any means other than fishing except as authorized by the Minister or by a regulation passed by the Governor in Council. Therefore why use this incident as an excuse to eliminate the habitat provision of the Fisheries Act?

Even if the Harper Government did get away with the elimination of the habitat provisions in the Act, the very amendment that Mr. Ashfield has proposed and was leaked to Canadians still would have prevented the pumping out of the water from behind the dyke. If his amendment was passed by Parliament, it would still be illegal to do any work or activity that would adversely affect fish of economic, cultural or ecological value. Also in this circumstance the Section 35(1) would not to be used to stop the pumping - it was s fish kill incident that DFO staff were preventing - not a destruction of habitat.

Continued

[chris gadsden]

Mr. Ashfield, his advisers and senior staff must get their minds straight on what  they are really trying to do and obtain a basic understanding of Canada's habitat law and the need to protect fish and fish habitat as intended by Parliament in 1976. Mr. Ashfield again speculates that this is not the intent of that section of the Act. Again he is totally wrong. I was hired by DFO in 1969 to protect fish habitat and worked to get this section of legislation into Parliament in 1975. Mr. Ashfield was no where on the radar screen in 1975 so I do not understand how he is now an expert on what DFO staff and a public resource needed or what Parliament intended some 37years ago.  Instead of criticizing his staff and attempting to raze the Fisheries Act for no good reason, should a Minister of Fisheries and Oceans not better support his staff and the true intent of the Fisheries Act?

Mr. Ashfield says there has to be balance between development and habitat protection. Where has be  he been in the past 50 years? In the Fraser River Estuary (the ecosystem where habitat losses forced the creation of the Fisheries Act habitat protection section (Section 35) and the DFO National Habitat Policy in 1976 and 1986 respectively)  about 90% of our Fraser Estuary marshes (essential habitat for fish) have been eliminated by agricultural and other land development. In Ontario 60% of all wetlands have been lost - 75% by agriculture.  In BC's Lower Fraser Valley 20% of all streams have been lost, 63% are endangered, 13% threatened and only 5% remain in a wild state! This is an ongoing pattern across Canada! Is retaining the last remnant key habitat as found in these steams and marshes asking too much - especially from a Fisheries Minister and his colleague the Environment Minister?

If Mr. Ashfield was going to neuter the Fisheries Act habitat law, should he not have made that known to the Cohen Commission which just completed hearings three months ago? Cohen was directed by Prime Minister Harper to do an in depth and lengthy judicial review of what is wrong with sockeye salmon runs in the Fraser River. He and Environment Canada did have several habitat and enforcement experts at the hearing but many were not credible and at no time did any of them indicate that the habitat law would be tampered with or eliminated. Should the government not now recall the Cohen Inquiry so they can tell the truth? Why would Mr. Ashfield make any knee jerk changes to the Fisheries Act before the Cohen Commission final report is released this summer?

One must question what drives the mentality of the Harper government as related to environment  issues and especially the tactics and logic used by  Minister Ashfield in this instance. What DFO staff did at that g campgound site seemed proper and should maybe be done again if the Jamboree Grounds owners do not install works to prevent this flood - fish stranding from occurring again. Certainly the amendment proposed by Ashfield would accomplish nothing other than to eliminate the use of the habitat law that is needed in thousands of other applications across Canada if future generations are to have healthy populations of fish for economic, cultural or for healthy ecosystem functioning.

I cannot believe that it is  the Jamboree Campground or drainage ditches / streams on a few farms that is the issue that has motivated the attempted elimination of habitat from the Fisheries Act. It just a cover, smokescreen  or just an excuse to deliver on an anti-environment ideology. Over the years I have heard many complaints from industrial lobby groups like the the BC Business Council and many other such lobby efforts related to the pipeline, oil and gas, electrical  and other industries. Their primary goal is to get DFO and habitat protection and environment assessment processes off their backs. Harper and his Energy - Resources Minster Oliver have often repeated that very mantra and are willing to undermine whatever legislation is necessary to keep industry and investors happy. It appears that our government and many industries have an agenda for a much faster exploitation of Canadian resources to export as much as possible in as little time as possible without any significant environmental hurtles to cross?  Is that the type of sustainability that Mr. Ashfield says he adheres to?

 If the habitat law is lost, a key environmental assessment trigger is probably eliminated in Canada and the public and First Nations will be cheated out of a more transparent and consultative approach to human activities that can harm fish and fish habitat.  In addition this law trigger allows comprehensive environmental assessment studies related to much more than fish habitat.  That is probably the real goal of the Harper government and their industrial lobby friends. One would be a fool to believe that it is just about some fish stranded in a country jamboree campground or in a farmer's field by a natural flood event  i.e.  it's a red herring!

Many years ago I noted a passage by some author that said --"Business and government do not have an ethic for the environment or future generations." Over the past few years this has become more and more apparent.

Otto E. Langer MSc
Fishery Biologist and Aquatic Ecologist

[chris gadsden]

 

ATTENTION ALL MEDIA PEOPLE, ADVOCATES, AND ELECTED REPRESENTATIVES ON THIS THREAD:

 

In April 2010, during the run-up to the federal election, as part of a province-wide omnibus poll, Angus Reid Public Opinion asked British Columbians questions on behalf of Watershed Watch Salmon Society and SkeenaWild Conservation Trust regarding the importance of salmon and salmon habitat.

 

These poll results are highly relevant to current discussions about the potential removal of protections for fish and fish habitat from the Fisheries Act and the Canadian Environmental Assessment Act. Responses are broken down by demographic categories including income, region, and provincial and federal voting preference.

 

The poll results can be found here, and are available in an excel spreadsheet upon request.

http://www.watershed-watch.org/resources/wild-salmon-poll-results/

 

Feel free to contact me with any questions regarding these data.

 

sincerely,

 

- - - -

Aaron Hill, M.Sc.

Ecologist

Watershed Watch Salmon Society

250-380-1176 (office)

250-818-0054 (cell)

hillfish@telus.net

twitter: @aaronhill_

www.watershed-watch.org

[chris gadsden]

More from Otto, lots of reading.


From Otto Langer
Fishery Biologist and Aquatic Ecologist

March 25, 2012

Re: Positive Applications of the Sect 35(1) (HADD Provisions) of the Fisheries Act.

A. Background:

I was hired by DFO in 1969 to be a habitat protection biologist. It did not take long to realize that I had no real legislation to protect fish habitat from the hundreds of human activities in BC that often needlessly harmed fish habitat.  At the time DFO could only protect habitat by means of the dam, and water intake screening and the logging (no slash or stumps could be deposited into streams) provisions in the Fisheries Act. Also, on rare occasions habitat was protected by the pollution provisions in the Act i.e. for the discharge of deleterious substances into water where that deleterious substance (e.g. fresh concrete, sediment etc.) could also harm physical habitat

Prior to 1976 many businesses and especially government crown corporations and government departments were very resistant to the protection of habitat in Canada. Any concept of stewardship and doing the right thing was a constant conflict and usually fish habitat lost. A constant battle to protect habitat from such sectors or  legal institutions such as the BC Development Corporation, gravel mining in nearly every stream near any road building or development project, BC Highways, Canadian National Railways, BC Rail, etc was extreme at time and gave rise to heated and often near violent confrontations.

For instance in the building of the BC Rail Dease Lake extension in the early 1970s, BC Rail refused to consider any considerations of fish habit (or sediment deposition ) and recklessly bulldozed soil and trees directly into fish habitat as they prepared the rail bed for the railway extension. This matter came to a head when this material was being bulldozed directly into the Bear River (an upper Babine River system), a river of great fishery values.

In about the same time the BC Development Corporation was filling in estuary marshes at Tilbury Island for a business park. At the time DFO could do little but in both cases related to the existing provisions of the Act and seized the heavy construction equipment to stop this highly fish habitat destructive work.  Such conflicts also occurred in logging shows on an ongoing basis with the culmination of conflicts in the later 1970s when DFO arrested loggers for destroying fish habitat in the Queen Charlotte Islands. It also about 1976 that the BC logging industry had declared war on the Fisheries Act and challenged every DFO attempted legal action and that resulted in the logging /slash and debris section of the Act being declared null and void i.e. it was in violation of provincial land use legal responsibilities (ultra varies). Any pollution /habitat provision in the Fisheries Act had to prove damage to fish before it was valid!

Also to prevent the whole sale mining of gravel form the salmonid spawning grounds of BC rivers, the BC grave Removal Order was passed by Order in Council as a general regulation under the Fisheries Act (usually used to pass fish management regulations). That occurred in 1967 and it mandated DFO to issue a permit for any gravel mining in any BC stream that was put on the Grave Removal Schedule – a list of about 30 streams that had been heavily mined over the previous years e.g. Fraser, Coquitlam, Alloutte etc Rivers. This did work to some degree and was at times enforced and the maximum fine for violations was $5000 (as was the fine for violation of the pollution provisions of the Act back then).

In 1975 we pushed for a form of habitat protection legislation. What we wanted is exactly what was passed by Parliament although the provinces of BC, Manitoba and New Brunswick did challenge the right of the Federal government to pass such legislation. They lost their less than convincing court challenges.

One province even raised the absurd argument that one could be prosecuted for just walking along a stream and casting their shadow over the fish habitat. This time it seems the Minister of Fisheries and Oceans is taking the lead with some near absurd criticisms based on misunderstandings.  The legislation was never overly powerful and was always used with reasonable discretion and at time with excessive hesitation. Also it is hard to meet the double burden of proof in Canada’s courts i.e. one has to prove that it is fish habitat and it has been harmed.   

Finally under the Trudeau Liberal government Section 31 (HADD – same wording as it is today) was passed and became law on January 1, 1977.  The BC Gravel Removal Order was then re-pealed in that it was redundant in that gravel could now be protected in all streams across Canada and about that time the forest industry succeed in having Section 32 of the Fisheries Act ruled ultra varies and that section was repealed in that the job of protecting stream from logging debris could now be covered in the new Section 35(1) of the Fisheries Act. It was acceptable because what was fish habitat had to be shown and harm had to be proven.

The above legal burdens of proof still have not been grasped by many (see the Finlayson (BC Business Council) recent comments in the Vancouver Sun. He criticizes Sect 35 because it has no legal test. It indeed does have two legal tests!

When the HADD provisions were put into the Act in 1976, they did cause much confusion as to what it meant and how it was to be implemented. Accordingly a National Habitat Policy was developed to better define what HADD meant and how it was to be

[chris gadsden]

Conti
applied so as to achieve a no net loss / net gain of habitat across Canada. This policy was released in October 1986 by the then Mulroney Conservative government.

B. Win -Win Accomplishments of the HADD Provisions of the Fisheries Act and the Supporting National Habitat Policy.

1. In about 1975 the BC Development Corporation (under the then BC New Democrats of Dave Barrett) began the filling in extensive estuary marshes at Tilbury Island in the Fraser River Estuary for a business park. The Fishery Officers of the day seized the equipment to stop this non-approved destruction of fish habitat in that DFO considered sand fill as a deleterious substance. Then a special Order in Council was passed to forbid the BCDC to do any such work in that site. That was a very expensive and awkward way to protect habitat for DFO and the BC Government and its development crown corporation.

Eventually the BCDC came around and determined that they did have a responsibility to protect the estuary and they then transferred ownership of the remaining part of Tilbury Slough to DFO for protection in perpetuity and in turn they got to develop the portion that had already been destroyed. This occurred just before section 35 was added to the Act but and it was used as proof for the need to have section 35 added to the Act and it did a great deal to educate the BCDC and probably the Province as to the value of fish habitat and the need to protect the remaining marshes in the Fraser river Estuary. No other law would have allowed it prior to Section 35(1) being promulgated.

Further to the above, it is important to note that about 85% of fish habitat in Canada is destroyed by a provincial government (e.g. highways), crown corporations (e.g. hydro, development corporations), by private industry with a provincial permits or approvals (e.g. forestry) or by a provincial creation e.g. local governments. 

2. As noted earlier the BC Rail and the BC Highway’s projects caused significant destruction of habitat in many projects. The building of the first highway to Part Hardy on Vancouver Island in the early 1970s caused much conflict and the passage of Sect 35 resolved those conflicts and forced such crown corporations as Highways, Rail, BCDC and BC Hydro to respect the need to protect fish habitat. Many of those existing corporations now protect habitat in a fairly proactive manner and without a great deal of complaining.

Due to DFO only assuming jurisdiction over marine and fishes and salmon in over half of British Columbia DFO did not have jurisdiction in that habitat protection and pollution issues were improperly delegated to the Province until the late 1990s. In those areas of the province the destruction of fish habitat was much more widespread and that did not change until the Federal Court cases in Alberta and Saskatchewan which directed DFO to protect all habitats in Canada (Rafferty Alameda and Old Man River decisions). The gain of the habitat provisions being implemented properly in all area of BC and then across Canada just before 2000 was a great advancement in arresting the rapid net loss of fish habitat. Also the rest of Canada then better bought into the concepts of no net loss as specified in the 1986 National Habitat Policy and some degree of sustainable development was accomplished. However, despite those gains, no net loss was never fully achieved and as of today we are still in an era of slow net loss of fish habitat across Canada. How will the loss of Section 35 from the Fisheries Act as planned by the Harper Government in March 2012 change that unsatisfactory record?

3. In the Fraser River Estuary the airport, and the North Fraser, Fraser River and Vancouver Port Authorities were often uncaring and used to destroy habitat without thought especially by the filling in of habitat for more industrial lands. The two harbour commissions were openly hostile to DFO and even challenged their right to be on the river in their patrol boats without harbour authority permission! Hostility couldn’t have been greater.

In 1979 charges were laid against the Fraser River Harbour Commission for pollution and then destruction of fish habitat in that they ran the dirtiest landfill operation in Canada and wantonly polluted the river and destroyed habitat. After they were charged they greatly changed their attitudes and began to cooperate with DFO and the harbour master said; that they had to change their ways because section35 of the act was binding on all parties including the Federal Crown Corporations and the they noted that the new Fraser river Estuary Management Plan (FREMP) cooperative agreement and the DFO decentralizing of habitat staff made it possible to work with DFO in a positive manner. However, it was the court case that provided the shock therapy that forced the harbour commissions to accept a reasonable degree of environmental responsibilities.

4. As part of a new relationship with the harbour commissions, Otto Langer (Head of Habitat Management for Fraser River, Northern BC and the Yukon) applied the no net loss concept to his area of responsibility in 1983 – three years before the policy was implemented. As part of a new approach to the then FREMP initiative, Langer directed the development of a simple but effective color coding to habitats along the North Arm of the Fraser River and then for the main arm of the river up to Pitt Lake. This habitat zoning was to better define how Sect 35 and the habitat policy was to be implemented.

In this new habitat zoning approach, Red mean that that habitat was valuable and sensitive and had to be protected in perpetuity. Yellow meant that it was of some value but development could occur in that habitat area but it was subject to no net loss (NNL) and any compensation habitat has to be then coded Red. Finally habitat that had been ruined over the years was color coded Green i.e. development should go into those areas and only good environmental practices were required for any construction or works in that habitat type. To the developer Red meant 'stop': Yellow meant proceed with caution and Green meant – go for development in those poor habat areas. If you were to destroy habitat compensation formulas were develop i.e. replace mudflat at a 1:1 ratio. Marsh was to be replaced at a 2:1 ratio and riparian habitat at a1:1 linear ratio.

This plan gave all developers and habitat practitioners in business and government full certainty of what was expected of the habitat section of the Fisheries Act and from the new National Habitat Policy.

[chris gadsden]

This system was very successful and it also incorporated a harbour clean up plan and a novel habitat banking scheme that was the first in Canada. The system worked so well it was then extended into the Fraser River Harbour Commission area and then into Vancouver harbour and then into many estuaries in BC and even in river habitats in Prince George and Kamloops. It was also presented nationally and some jurisdiction in Ontario followed that example. This was all made possible by a basic habitat protection law and a policy that allowed flexibility for DFO and industry to interpret and apply that simple concept of habitat protection. It was one of the first plans to implement sustainable development and it gave the certainty to industry that they always wanted and resolved most DFO - harbour – city development conflicts. The many cities along the Fraser River then voluntarily altered their land zoning to support this habitat protection system.

None of this would have been possible without the HADD provisions being in the Act and the application of that law was assisted by the National Habitat policy. The Minster of DFO (Tom Siddon) and the DM was impressed by this new approach of cooperative resource management that they insisted that a slide how had to be developed for education of other authorities across Canada – it was called Habitat Forever!  It pioneered the model of NNL in Canada.

5. In the mid 1970 the City of Delta wanted to develop a new fisherman’s marina. It was to be built in a habitat area of the Fraser Estuary. It was approved subject to compensation. Prior to that, the city built a 16 acre sewage lagoon in a high value fish habitat area – no need to abide by the Fisheries Act in the mid 1960s as related to habitat protection. As part of Sect 35 and NNL requirements, when Delta directed their sewage to a sewage treatment plant in about 1987 it returned the sewage lagoon back into fish habitat in 1990 and DFO did the various studies an d breaching of the lagoon dykes to return it to fish habitat – a true win-win application of Section 35 and the NNL habitat policy.

6. In 1985 the large international developer Grovesnor International wanted to develop the last part of its Annacis Island property. Much of the undeveloped part of this island in the Fraser River Estuary had fish channel through it and the company’s initial works were seen as a destruction of fish habitat. However, instead of taking the matter to court DFO and the company began discussions and it was determined that the wetlands at the tip of the island would be given to the City of Delta as passive parkland and maintained as fish habitat in perpetuity. Also Grovesnor would clean up the logs on the marsh around that new conservation park and put up a log barrier to keep logs off of the marsh. In addition to compensate for internal channel loss, the company agreed to dredge a new liner canal along he north side of the island and have a setback for industry to protect the riparian vegetation. This channel has now operated as excellent habitat for over 25 years and they were able to develop their property as more or less planned.

7. The BC Highways Department came a long ways with the development of the HADD law. They were considered with some of the railway companies to be especially backwards in caring about fish habitat However with the development of the Coquihalla Highway, the Vancouver Island Highway and the Annacis Bridge many conflicts that could not have been resolvable prior to 1976 were addressed and few real conflicts occurred.

In the Coquihalla  and Vancouver Island Highways, many storm detention ponds were developed to keep sediment out of salmon streams and the loss of significant amounts of stream in many locations was avoided by the building of bridges or giant bottomless culverts that allowed the stream to flow across the highway unhindered and the habitat value were retained. These new passes under the freeways also became key wildlife passage crossings for bear, deer, etc. In the Alex Fraser Bridge in metro Vancouver, habitat lost was compensated by the building of two salmon rearing lagoons on the north and south footings of the bridge and where the bride footings impinged on the river, groins were build along the footing walls to break-up laminar flow that could obstruct upstream fish passage of salmon in the world's largest salmon stream.

8. CN Rail was always very difficult to deal with and refused to work with DFO to protect streams in that they felt railways were a national security issue and nothing else mattered. However with ‘Section 35 and their double tracking work in the 1980s, they did extensive studies related to where the fish are and how their projects would harm fish and they developed many fish compensation works from Surrey Bend to Petty Creek on the North Thompson. As with BC Highways, they also hired biological consultants to design the works and monitor their success.

9. Within the City of Richmond (Child of the Fraser) there are several applications of the NNL policy as allowed by Sect 35(!) of the Fisheries Act. When the city wanted to develop its Gary Point Park they develop three rock lookout locations over looking the Fraser River and the ocean. In that his work destroyed fish habitat, charges were almost forthcoming. However it was agreed that they could replace that lost habitat by building pocket marshes at the downstream end of the park and all legal action was averted.

The City has applied this principle on several other projects so as to replace or hedge against any loss of fish habitat including the No. 2 Road Bridge at theVancouver International Airport. Here the City dredged out a sand fill that destroyed habitat over 40 years ago and built a salmon rearing lagoon that is also well used by waterfowl. Such works have become the norm and few industries question the need for planning to avoid loss to fish habitat and if necessary are prepared to build compensation fish habitat.

C. Conclusions and some lose –lose examples:

Having the Habitat section (35(1) put into the Fisheries Act in 1976 was a giant step forward and it allowed for the development of a sustainable method of protecting habitat as noted above and the eventual National Habitat Policy that gave good flexibility  for DFO and developers when working in and around fish habitat. This approach reduced the conflicts that always occurred in the past, allowed the development of much better

[chris gadsden]

working relationship and facilitated solutions an expedited project reviews and construction projects.

Despite the above example of how things can and should work, the policy of Net Gain / No Net Loss has not been overly successful and as of 2012 the habitat base across Canada is still losing habitat on a Slow Net Loss basis. This is confirmed by testimony by witnesses at the 20111 Cohen Inquiry and by numerous studies I and my staff have done over the years in and outside of DFO. HADD and the Policy did create a framework that has allowed industry and government to have certainty and it was key step towards defining a better approach that had to be adopted so as all parties could find win-win solutions.

Many habitat projects built by industry as compensation habitat have failed over the years and inadequate assurances were built into the success of such projects. Generally habitat is better built where the forces of the landscape and the hydrology of the local waterway make it possible. Building habitat in unnatural conditions is often high risk. Key to preventing damage to habitat is to locate a project away from key and sensitive habitat sites.

Setbacks to the above approach began to haunt the DFO and the process after about 2000 when enforcement fell into political disfavor and large staff cuts were to be made and they would not have the staff to promote education, awareness and above all review the many project applications (referrals) that needed early and prompt review to insure the plans of industry and the needs of the Fisheries Act, DFO and public expectations could be met.

Further another setback ironically was the development of CEAA and project tracking systems for the benefit of Ottawa to track what was happening across Canada. DFO staff had to spend much time behind computers and spend many resources to develop modern data keeping systems and the biologists became separated from dialogue with industry and did less and less field work an became more divorced from fish and fish habitat.

 CEAA, despite its intent and strengths, became a system that forced a great deal of paper work that added little to habitat projection. It did create a gain for public transparency and project tracking. However, the process seemed to become more important than the fish and the fish habitat and at time it was abused by consultants and even DFO staff as to save effort in following the intent of the CEAA scoping, process and tracking requirements.

When DFO is to issue a Ministerial authorization to harmfully alter, disrupt or destroy habitat, that is a law trigger under CEAA and that seems to be the thorny issue that most complaints are mainly about. This is the real issue in the Harper government in 2012. CEAA is an overly paper producing assessment and tracking system and that causes a great deal of work in terms of the basic level Project Screenings of minor impacts to the Comprehensive Study Reviews to the Public Panel Reviews. What isn’t appreciated by the government and industry is that DFO often has gone out their way to insist that a HADD project is not a significant habitat impact so as to not trigger a time consuming CEAA review.

The above are some of weakness in the habitat protection and CEAA review system in Canada. Many projects that harm habitat deserve public consultation and intensive reviews are sold short just to reduce workload and address the complaints of industry and the politicians. Also it is key to emphasize that Government has undermined CEAA by delegating it to various Crown Corporations like the national harbours (putting the wolf in charge of the sheep) and has a counter productive and outrageous system of exclusions as to what needs to be reviewed and what is exempted from proper reviews.

 Reviews are most often based on the size of a project and not on its potential impacts. This is a bureaucratic and very absurd approach to determine environmental assessment and protection priorities!  I will conclude by giving two examples where habitat protection has or is being greatly short changed so as to avoid a proper application of HADD and CEAA and that is to the detriment of fish, fish habitat and the public interest.

1. Jet Fuel in the Fraser River. In 1988 the Vancouver Airport Fuel Facilities Corporation (VAFFC) applied to have barges of cheaper US jet fuel enters the Fraser River so as to supply airlines at YVR. Although this was before CEAA, the federal governments FEARO process insisted that the project had to undergo a Public Panel Review. This panel concluded that this project created too great a risk to the Fraser River Estuary and its fish and wildlife resources and it was rejected.

In 2010 this same VAFFC applied to now ship Panamax tankers of foreign jet fuel to YVR by means of the Fraser River where they would have to build an offload facility and a large tank farm on the banks of the river. Despite the precedent of 1989, the federal new process was so watered own that Comprehensive Study or Public Panel Review was not required although the project is now probably 100 times larger and of much greater risk.

Further CEAA for this area has been delegated to Port Metro Vancouver by the government and PMV will financially benefit from the project approval. Since a proper CEAA was not triggered the VAFFC voluntarily applied to the Province for a voluntary review of what is a project that affects several federal mandates. Considering the clear federal roles related to habitat and pollution and the common sense application of CEAA the environmental and public safety considerations are now being greatly compromised. The level of review and protection evident in 2012 is no where near as comprehensive as some 23 years ago. Why is that and why would anyone want to further water down an ineffective application of Sections 35 and 36 of the Fisheries Act or CEAA?

2. Fraser River Gravel Mining. Prior to 1967 the Fraser River and tributary streams such as the Coquitlam River was treated as gravel pits. In the 1960s a large run of pink salmon in the Coquitlam River was eliminated by gravel mining of its spawning beds. Building contractors even complained about the concrete coming from the Coquitlam River in that it smelled of rotten salmon eggs! To stop this uncontrolled destruction of

[chris gadsden]

spawning habitat, DFO brought in the BC Gravel Removal Order and that was later replaced by Section 35(1) (HADD) in the Fisheries Act in 1976.

However the politics of gravel mining changed greatly in about 2006 and DFO were encouraged for political reason to allow gravel mining in the key spawning areas of the Lower Fraser River by First Nations to allow them a source of money to better improve their relations with DFO. Then the BC Government joined the fray and took the lead in gravel mining in the name of flood control works DFO seemed politically determined that they could not elevate the project to a proper CEAA review despite the fact that BC wanted to mine millions of cubic meters of gravel out of the river that were then made available for commercial gravel sales.

DFO authorized HADDS but exempted the Province form any habitat compensation works or any comprehensive studies or cumulative impact studies as would be the intent of CEAA. To rationalize their actions DFO had a consultant put together hundreds of pages of CEAA directed rationale of why there would be impacts but why they would be ignored and why compensation habitat did not have to be created and why public consultation was not necessary.

This project showed how the habitat section of the Fisheries Act and CEAA could be and was being abused by political considerations and how the intent of CEAA could be largely ignored. The public simply did not accept that and this project caused many nasty and needless confects and a dismal working relationship between the various parties. If the true intent of the legislation was delivered upon, this could have been avoided! This is an example of how political tampering with the processes developed over the past 35 years in respect to Sect 35, the Habitat Policy and CEAA could be subverted and the setback to fish habitat protection, cooperation and fairly timely project review and approvals can be set back greatly.

In this project, no gravel has been mined in the past two years due to the price of gravel sales and a plan to develop a proper environmental management plan for this section of the river has again been delayed by another decade and has caused great stress between parties that must work together in a cooperative manner to find solutions not political gain.


D. Conclusions:

•   The Habitat provisions in the Fisheries Act were sadly lacking before 1976 and habitat loss across Canada was great.
•   The passage of Section 35 to the Fisheries act (HADD habitat protection provision) allowed the orderly protection and management of fish habitat across Canada with a lead taken in BC.
•   The habitat law was supported by the National Habitat policy of 1986 with one of its underlying principles of a no net loss of habitat productive capacity.
•   Section 35 and the Habitat Policy have worked well when applied in an organized and diligent manner by well trained and experienced practitioners.
•   Despite the above conclusion, Section 35 and its habitat policy has not been applied in a diligent and disciplined manner so as to stem the continuous loss of fish habitats across Canada.
•   The greatest confusion caused to Canada’s fish habitat law is the implementation of CEAA with its very time consuming tasks of project tracking etc and it irrational regulations that allow many projects to be excluded from a proper environmental review.
•   The triggering of CEAA by the harmful alternation of fish habitat is an essential environmental protection tool in Canada that can, if diligently applied, protect fish for future generations and protect the public interest.
•   Any modernization of Canada’s fish habitat protection approaches must more look at process and regulations rather than attacking the basis of the law i.e. Section 35 of the Fisheries Act as a problem that hampers development in Canada.
•   Better fish habitat protection is essential and it can be achieved with a more efficient approval process.
•   The expectations the public have cannot be met with the present processes, staff skill levels, government will and the resources allocated to do the job.   
•   As DFO used to say "No Habitat – No Fish!"


 

Otto E. Langer MSc
Fishery Biologist and Aquatic Ecologist

[chris gadsden]

Thank you for writing to share your concerns about the Conservative government's plan to remove fish habitat protection from Section 35 of the Fisheries Act.

At a time when the government should be strengthening habitat protection, the Conservatives aim to gut one of the strongest environmental laws in the country.

These changes will set Canada back decades.

By eliminating provisions to protect fish habitat, the Conservatives will be better positioned to fast track their agenda of pipelines, oil super tankers, mega mines and other major industrial projects.

With the stroke of a pen, this government would wipe out decades of progress and condemn future generations to a less diverse environment. The Conservative plan to ram this key change through the budget omnibus bill is reprehensible.

Canada’s New Democrats are strongly opposed to these changes.

As the Official Opposition Critic for Fisheries & Oceans, I have raised this issue with the Minister both in Question Period and in Committee (read more here). It’s clear the Minister is considering these changes to the Fisheries Act and regards fish habitat regulations as an ‘irritant’.

Canada’s New Democrats will continue to advocate for protection of our fisheries and oceans, and will oppose any move to gut DFO’s responsibility to protect fish and fish habitat.

Many people are asking what more they can do to stop the Conservative government’s destructive plan.

Please consider printing off the attached petition and collecting as many signatures as possible, which I can table in the House of Commons. I have also launched an online petition, which you may wish to circulate to your friends and family.

Thank you again for raising your voice on this important issue.

Sincerely,

Fin Donnelly
Member of Parliament
New Westminster–Coquitlam & Port Moody
Official Opposition Critic for Fisheries & Oceans
www.FinDonnelly.ca

[chris gadsden]

For Immediate Release - March 29, 2012
Federal Budget Greases the Skids for Oil Spills and Fish Kills

VANCOUVER - Corporations and polluters could reap the rewards of today's federal Budget and the follow-up legislation, which will weaken the environmental assessment process. The Budget includes major cuts to Fisheries and Oceans Canada, and eliminates the National Round Table on the Environment and the Economy.

The changes to the environmental assessment process explicitly aim to help speed up approval of tar sands pipelines like the Enbridge Northern Gateway Pipeline and Kinder Morgan's Trans Mountain pipeline expansion. This will put the Canadian people at increased risk of oil spills, polluted rivers and fish kills, as well as lost wildlife.

“Energy giant Kinder Morgan had said they would formally submit their application to the National Energy Board to twin their tar sands pipeline by the end of this month, but now they’ve delayed,” said Ben West, the Wilderness Committee's Healthy Communities Campaigner. “It seems to me that Kinder Morgan could be waiting to take advantage of a weakened review process,” said West.  

Prime Minister Harper has made it clear that his government wants to ease the approval process for oil pipelines, in the midst of unprecedented levels of opposition against the Enbridge project and other plans to expand tar sands exports. “The federal government has complained for many months about the length of the review process in the case of the proposed Enbridge Northern Gateway Pipeline, and so now it appears set to try and cut back environmental review to make it easier for future projects, like Kinder Morgan’s planned pipeline expansion,” said West.  

“We're incredibly concerned that the federal government is gutting environmental protection for the wilderness and wildlife that Canadians cherish,” said Gwen Barlee, Policy Director for the Wilderness Committee, responding to the Budget presented today by Finance Minister Jim Flaherty.

“Private power projects, which do great damage to BC’s wild rivers and fish, could also exploit these changes, as could the proposed New Prosperity Mine project near Fish Lake,” said Barlee. "British Columbians value and will stand up for wild salmon, old-growth forests and clean air and fresh water and it is obvious Ottawa doesn't understand that."

 

[chris gadsden]

From Maple Ridge News.
Absent from the budget are policy documents spelling out changes to the Fisheries Act, removing habitat protection from the act. Word of a leaked document indicating that stirred up controversy, including local environmental groups opposed to any such change.



“That’s why you shouldn’t believe everything you see in a leaked document,” Kamp said.



However, the government could still make changes to the act later, though he had no timeline.



“But they’re not in this budget.”



According to the Wilderness Committee however,  follow-up legislation to budget will weaken the environmental assessment process.



“The budget includes major cuts to Fisheries and Oceans Canada, and eliminates the National Round Table on the Environment and the Economy,” says a release.



It says the changes are aimed to speed up approval of the Enbridge pipeline

[skaha]

--the way to speed up approval of projects is to have more trained staff available to do the proper review.... I am sure I can guess which departments will be targeted for staff cuts. 
 

[Sandy]

Skaha, that is my arguement as well. The slowing of the wheel is simply due to there are not being enough folks to do the job.
Dilution of enviromental standards is not the solution!
 The Tories are trying to ram this through and it is out in the open that the BC kinda not liberals are going to help them. Problem is that no one is paying attention to the majority of BC's population . The Liberals have long since lost their mandate of the people.

[silver ghost]

so is it safe to say... as it stands now, there have been no amendments made to the fisheries act?