How low can we go? Canada's environmental descent

Recently, a new version of Canada's most powerful environmental law appeared in the House of Commons. Bill C-32, the Fisheries Act, dramatically weakens environmental protection rules in Canada. First introduced in 2006, this "modernized" Act attracted sharp criticisms from environmentalists including Waterkeepers, Alberta Wilderness Association, Conservation Council of New Brunswick, David Suzuki Foundation, Ecology Action Centre, Fisheries Recovery Action Committee, Friends of the Oldman River, Georgia Strait Alliance, Great Lakes United, Les Intendants du Madawaska, Living Oceans Society, Newfoundland and Labrador Healthy Oceans Coalition, Ottawa Riverkeeper, Sierra Club of Canada, Southpeace Environment Association, and Yukon Conservation Society.

The existing Fisheries Act protects every waterway, every community, and every Canadian. The proposed Fisheries Act protects only some waterways and some communities, some of the time. Under the current Act, clean water is a right for person in the country who lives on a fish-bearing waterway. Under Bill C-32 (once known as C-45), clean water will become a privilege, reserved for a limited number of communities with the political allies and economic clout to preserve still-pristine lakes and rivers.

The Fisheries Act has been a powerful tool for protecting Canada's water. When coal-fired power plants in the United States contaminated Canadian water with mercury, it was the Fisheries Act that gave Waterkeepers the right to take action. Scott Edwards launched a private prosecution in 2007 in an effort to halt the release of mercury from DTE Energy facilities in Michigan. His case is still making its way through the courts. Under the "modernized" Fisheries Act, mercury would no longer be considered a "deleterious substance". We may never again be able to hold a polluter accountable for contaminating Canadian waters and fish with mercury.

In 1968, with support from the Federal government, the Province of New Brunswick built the causeway across the Petitcodiac River and one of the world's most astounding rivers was virtually destroyed. The causeway was built in direct contradiction to the current Fisheries Act, which requires that at least 1/3 of every waterway be always left open for free-flow. Petitcodiac Riverkeeper is using this Act to restore free-flow to the river, sparking one of the greatest river restorations in Canadian history. With one exception, every species of fish is expected to return to the Petitcodiac River. Under the "modernized" Fisheries Act, the freeflow rule is eliminated. Politics, rather than science, will dictate which rivers are protected and which rivers are not.

The existing Fisheries Act encouraged lawyers like Mark Mattson and Doug Chapman to go out in the field; it taught them the importance of addressing pollution from the grassroots. Their private prosecutions resulted in some of the largest environmental penalties in Canadian history and helped to pay for Lake Ontario Waterkeeper's first patrol boat, the Angus Bruce. In a private prosecution, a citizen lays a charge (rather than the police) and his or her lawyer prosecutes the offender. Canadians' right to initiate a private prosecution is one of the oldest protections against government inaction and corruption that we have. The "modernized" Fisheries Act eliminates the explicit encouragement of private prosecutions.

The new, "modern" Fisheries Act is not the only threat to Canada's oldest, and most effective environmental law. Policy changes in recent years quietly undermined some of the Act's key protections:

• In 2002, the federal government changed the Criminal Code to make it more difficult for citizens to bring prosecutions.
• In 2003, a number of groups including Waterkeeper appealed to the Commission for Environmental Cooperation when Canada failed to enforce the Fisheries Act in Montreal. PCBs were leaking continuously from the Technoparc site into the St. Lawrence River, but no charges were ever laid and no cleanup ever occurred. In its written defense, Environment Canada defended the pollution. Four years later, there is evidence that the government is pressuring the Commission to sit on the report or make findings more in tune with the government's views.
• In Hamilton in 2007, the Board of Hamilton Harbour Commissioners (now the Hamilton Port Authority) filled in fish habitat in Sherman Inlet without an environmental assessment or authorization from the Department of Fisheries and Oceans. The Department of Fisheries and Oceans (DFO) has opted not to press charges. Port Authority president Keith Robson recently told the Hamilton Spectator that, "You can safely say it didn't hurt fish habitat because it was so contaminated, so polluted, that no fish could have lived in there."
• Also this year, Fraser Riverkeeper Doug Chapman brought two private prosecutions against the City of Vancouver for its sewage pollution earlier this year. Supported by Ecojustice, the T. Buck Suzuki Environmental Foundation, Georgia Strait Alliance and the United Fishermen and Allied Workers Union, Chapman's charges were stayed by the federal Crown. The sewage pollution continues.

Many of these actions stem from DFO's belief that industry stakeholders - and not the general public - are its "clients". When DFO considers whether charges are appropriate, it asks a variety of questions to determine whether a particular file is "significant enough to consider prosecution." These questions include:

• Is this a high profile project on a high profile watercourse?
• What will be the public reaction if we take no action?
• What will be the public reaction if we prosecute?
• Is the client a good candidate for voluntary restoration?

This policy represents a consideration for offenders that is unprecedented in Canadian law enforcement. The "modernized" Fisheries Act seeks to enshrine this philosophy in law. It changes the very purpose of the Act - to protect all fish and fish habitat - and sacrifices each Canadian's right to clean water.

If the new Fisheries Act shows up in the House of Commons again in the new year, Lake Ontario Waterkeeper hopes to present our concerns during the clause by clause committee review. In the meantime, we keep doing what we are doing; because Canadian law states that this is what is in the public interest.

This week on Living at the Barricades: threats to Canada's strongest piece of environmental legislation - the Fisheries Act. Hosts Mark Mattson and Krystyn Tully are joined by Waterkeeper Alliance President Steve Fleischli to discuss environmental rollbacks and the consequences for every waterway.

• Listen to this week's show online (right-click to download).
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