Fisheries and Oceans Canada Was Ignoring Its Own Habitat Protection Guidelines

In 2012, the federal government relaxed rules limiting the degradation of fishing habitat, claiming the requirements were overly burdensome. But research shows they weren’t enforcing the rules in the first place.

Published April 5, 2017

Where development and fish habitat come into conflict in Canada, fish lose, says Brett Favaro, a conservation biologist at Newfoundland and Labrador’s Memorial University. That’s because Fisheries and Oceans Canada, the federal department in charge of fisheries and waterways, was not enforcing its own policies to protect fish habitat, he says.

In 2012, Canada’s governing Conservative Party made a number of controversial changes to the federal Fisheries Act, including weakening protections for fish habitat. One focus of the party’s ire was a principle dating to the 1980s: a prohibition against “the harmful alteration, disruption, or destruction of fish habitat,” known as the HADD provision. Its policy objective was to ensure that, with any development proposal, there is a “net gain of habitat for Canada’s fisheries resources.”

To get approval to build a mine, dam, bridge, or other project that would destroy fish habitat, “you would have to replace that habitat somewhere else,” says Martin Olszynski, an assistant professor of law at the University of Calgary.

Conservatives complained that the policy was overly broad and burdensome and passed amendments that effectively relaxed the rules protecting fisheries habitat from development. Under the new version, rather than prohibiting “the harmful alteration, disruption, or destruction of fish habitat,” the relevant amendment only specified that the development could not cause “serious harm,” defined as fish deaths or “permanent destruction” of fish habitat.

But was the original law actually a burden to industry? According to new research by Favaro and Olszynski, the answer seems to be no: even with the principle for net gain spelled out, Fisheries and Oceans Canada was scarcely enforcing the rule.

Under the Access to Information Act, Olszynski requested to see authorizations by Fisheries and Oceans Canada—formerly the Department of Fisheries and Oceans (DFO)—for the destruction of fish habitat for a six-month period in 2012 prior to the amendments coming into effect in 2013.

Olszynski and Favaro compared the square area of fish habitat that DFO authorized to be harmed by a development project to the square area the agency required those developers to restore, says Olszynski.

Although the “no net loss” principle doesn’t put a number on how much habitat should be created or restored in compensation for damage, biologists have a general rule of thumb that, for one unit of damaged habitat, two units should be restored, says Favaro. That’s because studies show that human-made habitat is often not as good as natural habitat, and target fish species may not be able to reproduce as effectively in restored habitat. “But what we found was that DFO was authorizing impacts greater than the amount of compensation they were requiring,” Favaro says.

Combined, the 78 projects Olszynski and Favaro reviewed from just that six-month period resulted in a net loss of almost three million square meters of fish habitat.

The finding is similar to that of earlier work done by Favaro and colleagues shortly after the 2012 amendments passed. They catalogued all of the publicly disclosed convictions made under the Fisheries Act from 2007 to 2011. Of the 1,283 convictions, only 21 were for destroying or harmfully altering fish habitat.

Those aren’t the numbers of an overly broad application of the law, says Favaro. Nor were the few convictions under HADD frivolous, he says. Convictions were for egregious activities, describing people filling up rivers with dirt, for instance. “It was just crazy,” he says.

Those findings, coupled with Favaro and Olszynski’s new paper on restoration requirements, is “just more evidence that there was not this widespread inappropriate use of the previous Fisheries Act,” says Olszynski. “And, if anything, things weren’t strong enough to secure no net loss of habitat.”

Favaro and Olszynski’s findings are particularly relevant, as the federal Standing Committee on Fisheries and Oceans is currently reviewing the changes made to the Fisheries Act in 2012. That committee, before which Favaro and Olszynski have both testified, is responsible for coming up with potential changes to the act.

Industry groups have also testified before the standing committee, generally arguing that making any changes to the 2012 amendments is premature, as there hasn’t been enough time to see the consequences of those changes.

In its initial report published in February 2017, the committee recommended that DFO “renew its commitment to the ‘no net loss’ and ‘net gain’ policies.”

Committee vice-chair Robert Sopuck, a Conservative Party member of parliament, says he expects the Liberal Party will ultimately make changes to the 2012 amendments based on the committee’s review.

“There were some things in the 2012 act that we didn’t define as well as we should. I think the review we did goes a way to define it,” he says. A small word change that he considers important is adding the goal of enhancing fish productivity as well as habitat. That goal, he argues, is focused on ensuring there is enough fish for humans. He says developers should be allowed flexibility to ensure that human-centric goal. Others, including Favaro, Olszynski, and other standing committee members advocate for a more ecosystem-focused approach to restoration.

When the committee’s work is completed, “I’m hoping that we have an improved Fisheries Act with the proper resources behind it,” Sopuck says.

But even if the “no net loss” language is restored, how can Canadians be sure that the principle is being enforced?

To help with that, Favaro and Olszynski are calling for a public database detailing development project authorizations, their impacts on habitat, and what the government has required in terms of compensation—a suggestion echoed by the committee.

With authorizations made public, says Olszynski, “Canadians could judge for themselves whether it goes the way they want.”