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Water Today Title December 11, 2017

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Updated 12/19/13


By Kelsey Keohane

The Harper government showed no mercy to the environment when they washed the feet of industry with Canadian waters. Using omnibus legislation in sections C-45 and C-38 of the budget bill, the interests of oil industry lobbyists was put above the fundamental protection of our land and waters with reforms to the Environmental Assessment Act, the Fisheries Act, and the Navigable Waters Act, among other things.

Most of these changes came out of a process initiated by the Major Projects Management Office, created in 2007 by the Harper government. This collaboration between high level cabinet and industry sought ways to cut “red tape,” things that they perceived to be without value getting in the way of their projects. These recommended cuts were discussed behind closed doors without any regard for public consultation. They were then proposed as part of two omnibus budget bills.

The Navigable Waters Protections Act, for example, ensured the protection of any waterway that carried vessels, large and small, by requiring ministerial approval for any construction project- an obvious “red tape” for any industry wishing to build above, under, or through any waterway. Under the new act, it is now reinterpreted so that it only applies to areas where big ships are moving goods and services.

“The changes take away the obligation of the burden of proof of the proponent to prove that they’re not having a negative impact on navigation,” explained Mark Mattson, President of Lake Ontario Waterkeepers and an Environmental Lawyer.

The repeal of the prohibition against the harmful alteration or destruction (“HADD”) of fish habitat is arguably one of the most concerning of these amendments. The new legislation calls for a the prohibition against “serious harm” to fish and fish habitat, but only for those fish that are part of a commercial, recreational or Aboriginal fisheries.

These changes put a large number of species at risk, including endangered species, species of special concern, and threatened species. While many fish are no longer protected under the new legislation, there is a second law that includes fish that support those fisheries.

“You can’t protect a sportfish without protecting the fish it feeds on,” explained one Fisheries Sciences specialist. “So those are also protected, but there is a lot of ambiguity about the degree to which a sport fish relies on another species of fish in the system and where the burden of proof of that is going to lie.”

Prior to these changes, if anyone wanted to perform any sort of modification on their water way, there was a no-net-loss policy. The proponent had to submit a proposal to the Department of Fisheries and Oceans (DFO). If damages or harmful alterations to a waterway or habitat occurred during this process, the person responsible had to mitigate for this loss or destruction of habitat elsewhere.

While this process wasn’t without its flaws - the amount of follow-up on these projects fell short of requirement and there was much ambiguity surrounding the creation of habitat - it at least ensured a permit would be granted subject to terms and conditions that would come out of public process. Now the burden of proof has been shifted.

According to Mattson, “There is no notice, there is no comment, there is no public process. It is too vague to determine what the law is any longer.”

These new changes give industry the power to push forward with their projects without consultation. Furthermore, DFO no longer offers consultation to those who want it because they lack the capacity. Industry is left to self-regulate.

These changes also mean that small projects, such as putting in a cottage dock or modifying waterfront property, will be made easier without the need to consult a conservation authority and use legal framework to regulate these projects. “Death by a thousand cuts,” a term which describes the process of how small changes can accumulate to have greater, unforeseen negative impacts, is certainly a concern. For example, one dock will hardly have a impact, but add more and you risk fundamentally altering the ecology of that lake or river. However, it is the bigger industry projects - the mines, dams, pipelines, nuclear power plants- that required permits and environmental assessments that may not have been approved under the old legislation. Hence, red tape.

While the new legislation theoretically removes these barriers for industry projects, making it easier to move forward, that doesn’t seem to be the case.

“I don’t think it’s working for them,” argued Mattson. “I think the government has created a huge problem for itself and industry because under the old act there was a public, democratic process that looked at the facts and the science and ultimately came up with an approval that was in the public interest.”

Under the old public processes, people were able to come forward, voice their concerns, and have them heard in a way in which everyone was dealt with fairly, according to law. Scientists, environmentalists, and activist groups argue that the new law lacks transparency because it disregards the importance of the social licence that comes with public consultation.

“I think what they’ve really done is create opposition and encourage protest. There is no consensus or understanding around these projects anymore, and all that creates uncertainty - and uncertainty is the greatest threat to businesses and corporate projects.”

Additionally, the Harper government has also dismantled the fisheries libraries as a means of limiting the role of environmental science in policy-decision making. These libraries contained one of the worlds largest collections on freshwater science and held important studies, some of which date back to the 1800s.

“You shift the burden [of proof] to the public and then you get rid of the libraries,” Mattson continued. “I hate to say it, but I think this is part of cutting the red tape.”

- Kelsey Keohane

Glossary of Terms

Fishery/Fisheries: A fishery is a place where fish and other aquatic animals are bred and caught. Also, a place of legal right to fish within specified waters or areas.

Commercial Fishery: A commercial fishery refers to an area or body of water where commercial fishing takes place. This includes the harvesting of fish, either in whole or in part, for sale, barter or trade.

Recreational Fishery: A recreational fishery refers to an area or body of water where-by fish are harvested under the authority of a licence for personal use for sport or pleasure.

Aboriginal Fishery: An aboriginal fishery refers to an area or a body of water where an Aboriginal group has a right to fish for food, subsistence, or social and ceremonial purposes.

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