A new Fisheries Act could see lost protections restored, promising full protection for all fish and fish habitat. But did you know that if fish and their habitats are protected to the pre-2012 standard, the swimmability, drinkability, and fishability of Canadian waters is protected as well?
On April 16, 2018, the new Fisheries Act was sent to committee. As the Act makes its way through Parliament, Swim Drink Fish’s Gabrielle Parent-Doliner and Mark Mattson weigh in on what the law could mean for people in Canada.
All fish and fish habitats
There is some promising news for all fish and their habitats in Canada.
The federal government recently introduced changes to the Fisheries Act, Canada’s oldest environmental law. The amended Act restores powerful environmental protections, and anti-pollution and habitat destruction legislation that were gutted during the 2012 rollbacks. In addition, modern safeguards such as provisions for Indigenous traditional knowledge to inform habitat decisions, and the ability to create marine refuges, are proposed.
The changes also indicate a move towards greater transparency, as the amendments notably require the establishment of a public registry. The Fisheries Act's public registry would post regulatory instruments, guidelines and policies, as well as authorizations or permits issued under the Act.
Until 2012, the Fisheries Act was the strongest anti-pollution legislation in Canada, and set an environmental health standard that promised a swimmable, drinkable, fishable water. You may be asking yourself, what does a 150 year-old piece of legislation, influenced by Magna Carta, and implemented during the time of the fur trade, and the Dominion, and called the FISHERIES Act, have to do with anything but fish?
The protection afforded to fish and fish habitat in the pre-2012 Act, and the criminal laws that prevented pollution and destruction of habitat benefit everything and everyone swimming, drinking, and fishing in Canada.
Essentially, if an ecosystem is protected, and healthy enough to support all fish and their habitats, the waters are clean enough for swimming, drinking, and fishing. As a result, cemented into the Fisheries Act was the protection of our most precious resource: water.
What’s more, the broad ecosystem protections weren’t by accident. Rather, they were deliberate additions during the 1979 amendments to the Act to address the environmental crisis and safeguard against future pollution and destruction.
Fish out of Water: 2012 rollbacks and what we HADD
If our laws can protect the water, if we give the fish a place to live, we can have a better place for man to live. People should be able to see clean water, swim in it, maybe catch a fish. - Right Honourable Romeo Leblanc, 1977
Until 2012, the Fisheries Act was the only piece of federal legislation that protected swimmable, drinkable, fishable water. These broad protections were proposed by Romeo Leblanc in 1977 to ensure the Act had the power to do its job in the face of the spiralling ecological crisis threatening fish stocks and their habitats in Canada, the US, and around the world.
The changes we are suggesting will increase the government’s power to protect the fish and their waters. These changes reflect a stronger public attitude that anyone whose actions affect these resources must take full responsibility. In particular, those who wilfully despoil should face strong penalties.
The original Fisheries Act is as old as Canada. It addressed three main things: the control of fishing activity, the protection and conservation of fish, and the protection of fish habitat, which included prevention of pollution and destruction of fish habitat. Also of note, government agents from the Department of Crown Lands took on the role of enforcers of the Fisheries Act laws. Local or private agents were no longer the authority of sea-coast or inland fisheries.
By the 1970s, Canadian waters were increasingly polluted. The survival of once-teeming fish stocks was in question.
Added to the Act in 1977 were legislative powers to protect all fish and fish habitat by making it criminal to destroy fish and fish habitat, and deposit deleterious substances into waters frequented by fish (commonly referred to as HADD).
The Fisheries Act provided a regulatory backstop for the Department of Fisheries and Oceans (DFO), as well as for Canadians, to do something to stop pollution and destruction when harmful alteration, disruption or destruction of fish and fish habitat occurred. Consequently, in addition to being the oldest and the strongest environmental law in the country, the Fisheries Act became the most used.
The Fisheries Act protected fish and their habitats to such a high standard that Canadians and their beaches, rivers, lakes, and swimming holes were, naturally, also protected. Water quality standards that sustain life are the same ones that protect us from getting sick when we touch the water.
In 2012, under omnibus Bill C-38, the Act’s legislative power to protect all fish and fish habitat by making it criminal to destroy fish and fish habitat, and deposit deleterious substances into waters frequented by fish (commonly referred to as HADD), was erased. The two separate prohibitions, death to fish and the harmful alteration, disruption and destruction of fish habitat, were reduced to one: causing permanent harm to fish. The Act also restricted its focus to managing threats to the productivity of the country’s commercial, recreational and Aboriginal fisheries. By raising the tolerance of harm on fish and limiting the geographical scope of habitat protection to commercial, recreational and Aboriginal fisheries, the Act enabled pollution and destruction.
According to meeting evidence from the Standing Committee on Fisheries and Oceans, not a single charge of violation of fish habitat has been laid anywhere in Canada since the amendments to the Fisheries Act came into force late in 2013. The Vancouver Sun and National Observer came to the same conclusion.
Moreover, the 2012 rollbacks to the Fisheries Act happened without public consultation. Therefore, Canadians' concerns and priorities were not represented.
Meaningful protections of water: Consulting Canadians on priorities and concerns
In 2016 the Department of Fisheries and Oceans invited Canadians to weigh in on the review of the Fisheries Act in the “Let’s Talk Fish Habitat” as part of the Government of Canada’s Review of Environmental and Regulatory Processes.
Canadians who participated in the consultation shared their priorities related to the restoration of the Fisheries Act. And their priorities overwhelmingly reflected concern for and strong support of broad protection of the aquatic environment.
The proposed amendments to the Fisheries Act, published February 2018, reflect the strong and meaningful protection of water that Canadians are looking for. Access the summary report of Fisheries and Oceans Canada's public engagement here.
Fisheries Act and the question of sewage
According to RBC’s water attitude survey, most Canadians consider water to be our most important natural resources. In Canada, swimming is the most-mentioned activity that Canadians like to do that involves water, followed by spending time on the beach and fishing. Nearly two-thirds of Canadians swim in lakes or rivers at least once per year (RBC Canadian Water Attitudes Study).
At the same time, over 150 billion litres of raw sewage and untreated wastewater are discharged into Canadian waters every year. The impact of sewage on fresh, marine, and estuarine recreational waters across the country is significant. At the same time, the discharge of untreated wastewater into Canadian waters is largely tolerated across the country.
We know that water contaminated with waste makes people sick. While the scope of the health impacts of contaminated recreational water is not fully understood in Canada, a new study in the U.S. shed some light on the scale of the health impacts of poor water quality. It estimates that 90 million illnesses are contracted from recreational water annually.
The impact of untreated sewage on aquatic habitats is well researched. Sewage contains a slew of harmful elements, including pathogens, nutrients, heavy metals, chemicals, and plastics. Aquatic habitat impairment and fish kills are just a few of the observed consequences of combined sewer overflows, and other regulated and unregulated discharges of untreated or partially treated sewage.
Cleaning up the nation’s largest source of water pollution is a priority. In Canada over 150 billion litres of untreated and undertreated wastewater (sewage) is dumped into our waterways every year. This is an environmental, human health and economic issue.
Under the Fisheries Act there are special wastewater regulations that exempt sewage treatment plants from some rules, notably putting a “deleterious” substance into a body of water. Canada’s Wastewater Systems Effluent Regulations (WSER) were established under the Fisheries Act, pursuant to sections 36(5) and 43(g.1),(g.2). WSER were introduced as part of the 2012 changes, and took legal effect in 2015.
The Regulations include mandatory minimum effluent quality standards that can be achieved through secondary wastewater treatment. However, the discharge of untreated sewage, regulated or not, into Canadian waters has been a legal grey area. The murkiness is compounded by the fact that certain provinces, such as Quebec and BC, have agreements with Canada which exempt them from certain provisions in the Act.
Will the proposed amendments to the Fisheries Act clarify the scope and application of the WSER and the Fisheries Act with regard to the discharge of the billions of litres of untreated sewage discharged in Canadian waters every year?
Read more about the proposed changes to the Fisheries Act
As part of the Government of Canada’s Review of Environmental and Regulatory Processes, the 2012 changes to the Act were reviewed to look at how to:
- restore lost protections and incorporate modern safeguards
- provide better certainty for industry
- ensure the long-term sustainability of marine resources
- make sure the Fisheries Act provides strong and meaningful protection for our fish and waters
What is being proposed in 2018:
- protection for all fish and fish habitats
- restoring the previous prohibition against ‘harmful alteration, disruption or destruction of fish habitat'
- restoring a prohibition against causing ‘the death of fish by means other than fishing'
- a new requirement to make information on project decisions public through an online registry
Links for your reference: