The Fisheries Act is failing in Hamilton Harbour. Not, it seems, because the law is weak or unclear. Not, it seems, because the cause of the Harbour's problems is unknown. But, it seems, because no one enforces the Fisheries Act in Hamilton Harbour anymore.
There are two key ways that the Fisheries Act protects Canadian waterways from acts of pollution. First, the Act makes it illegal to deposit harmful substances into waters where fish live. Second, the Act makes it illegal to destroy fish habitat. So why are these two activities “ dumping contaminants and destroying fish habitat “ happening in Hamilton Harbour?
It is no secret that industry has contaminated Hamilton Harbour. One of the most notorious hot spots on the Great Lakes is there, known affectionately as Randle Reef. The Reef is actually a mass of coal tar and heavy metals roughly three metres deep and eight hectares across, deposited into Lake Ontario by the steel industry over decades. Despite the Reef's impact on fish in the Harbour, no person or corporation has ever been charged.
More recently, the Hamilton Harbour Commissioners (now the Hamilton Port Authority) filled in part of the mouth of Sherman Inlet in order to create more land. The Inlet was one of the few remaining natural areas in the Harbour. It appears as though the federal Department of Fisheries and Oceans warned the Harbour Commissioners that filling in Sherman Inlet would violate the Fisheries Act, but the Harbour Commissioners proceeded anyway. When the Hamilton Spectator released this news on July 17, 2007, citizens responded with outrage. Federal and Provincial spokespeople offered platitudes and cash. Unless citizens act, no one will be charged.
Then last week, the Premier of Ontario gave a press conference on a boat in the Harbour and announced $30-million in funding for remediation of Randle Reef. By remediation, he means capping and filling, leaving the heavy metals and PAHs where they are, covering them with contaminated sediments from other parts of the harbour, and then paving over the whole lot to create up to 10-hectares of new land. Which is also up to 10-hectares less harbour.
The irony is thick. First, the head of Fisheries and Oceans' enforcement arm in Ontario said he doesn't believe in enforcement, so he has no intention of charging the Port Authority for violating the Fisheries Act: "We work with individuals, companies and government entities. Our goal at the end of the day is to have a net gain in fish habitat. We sit down and do our best to keep from going to litigation, in the best interests of the Canadian public," he told the Hamilton Spectator.
Second, the federal fisheries biologist said that Sherman Inlet could be restored when Randle Reef is covered over. The new habitat created by undoing the mess in the Inlet will help compensate for the existing habitat that is being destroyed by the cap and fill project on the Reef.
Only that's not how the Fisheries Act is supposed to work. There is nothing in the Act that says a company can deposit a deleterious substance into waters frequented by fish if government is willing to spend taxpayer dollars to clean it up a generation later. There is nothing in the Act that says a federal agency can destroy fish habitat without authorization as long as there is worse habitat destruction nearby. Those are decisions that government has made without scrutiny and without public consultation.
Under the Act, the community would not be asked to choose between habitat in the harbour and habitat in the inlet. Under the Act, the community would get both.
People are aching for real success in Hamilton Harbour. After years of contamination and development, it's almost hard to believe that remediation is a possibility. Hamiltonians want to see fish habitat restored, to see great swaths of healthy, diverse shoreline habitat. Most importantly, they want to know that their harbour, for the first time in a century, is receiving the best protection Canada can offer.