Fisheries Act on the brink?
This week is one of the most historic weeks in the history of Canada's environmental movement. Two different initiatives in two different political arenas are focusing on the most powerful environmental law in the country - the Fisheries Act. When the dust settles, Canadians may be left with one of the most effective, protective water laws in the world. Or - and this seems more likely - short-sighted, rushed decision-making may rob Canadians of the best tool we ever had to safeguard clean water and healthy fisheries.
The current Fisheries Act is nearly 140 years old. It shapes the Canadian fishery, influencing who gets to take fish from what areas, how much, and under what conditions. It also prohibits the destruction of fish habitat and the pollution of waterways. The pollution prevention rules, added a little more than thirty years ago, are the rules that Waterkeepers live by. And they are under siege.
Today's Fisheries Act says that no one can put toxic substances into waters where there are fish and no one can destroy fish habitat without government authorization. Offenders can be tried in a criminal court and face fines of up to one million dollars a day or jail time if they are convicted. The rules that clarify what "deposit", "deleterious substance", or "harmful alteration" have been established through years of independent deliberation. The standards are clear, they apply equally to every polluter, and they equally protect every waterway in the country.
Today's Fisheries Act encourages citizens to protect their local waterways. Anyone who has evidence that an offence is being committed can prosecute polluters in court. This right is an important protection against government inertia. It is one of the hallmarks of the Canadian justice system.
Today's Fisheries Act is not perfect. The federal government has used it to write regulations exempting mining and paper facilities from the national standard. It takes time, money, and good lawyers to win a case in court.
Historically though, the Fisheries Act has been the best - and possibly only - national tool that Canadians can use to hold polluters accountable, win back lost fisheries, and ward against new threats to our waterways. Investigations and occasional prosecutions of Fisheries Act offences have led to clean ups of contaminated sites across the country. One conviction often leads to the clean up of an entire sector, because the national law sets a bar that protects every community. Desire to comply with the Fisheries Act motivates industry and developers to protect fish habitat and clean water.
A new version of the Fisheries Act, now being rushed through Parliament, threatens to take away Canadians' right to clean waters and healthy fish. Most of the debate about the Act focuses on the licencing rules and talks about a new regime for deciding who gets to take fish from what areas, how much, when ... and what will happen when the rules are broken.
The truth is, the proposed Fisheries Act is a complete overhaul of the old Act. Much more than the licencing system has been changed: Gone is the rule that says a community will participate in an environmental assessment if fish habitat is to be destroyed. Gone is the rule that ensures at least one-third of every river is always unobstructed. Gone is the rule that says ships can't sweep coal ashes into our waterways. Gone are the key definitions that prohibited the deposit of deleterious substances into Canadian waters.
The proposed Fisheries Act takes environmental protection away from citizens and independent courts and concentrates power in the Minister's office. It abandons rule of law in favour of Ministerial discretion, politicking, and lobbying. The Act that once pledged to protect fish now protects corporate interests through grants, loans, and insurance programs. It also offers up a new, softer response to serious environmental crimes by allowing "alternative measures agreements" to replace guilty pleas and criminal records - an approach that is radically different from this government's other crime policies.
The proposed Fisheries Act (known as Bill C-45) is going through second reading right now. It may be referred to committee. It may be delayed by an opposition motion requesting more time and public consultation. It may even be withdrawn. So far, the proposed Fisheries Act has received little coverage in the national media.
Meanwhile, the Canadian Council of Ministers of the Environment is working on a new regulation under the current Fisheries Act that would exempt sewage treatment systems from the prohibition against depositing a deleterious substance into waters frequented by fish. An early version of the proposal contains a number of flaws that make the regulation a step-backward for Canada's waterways. Sewage discharges could be deleterious to fish and still be legal. Improved sewage treatment systems will be required, but it could be a generation before most communities see any upgrades - in the meantime, sewage pollution would be legal. Communities already impacted by water pollution could be last in line for infrastructure upgrades, meaning that some waterways and some people will have more environmental rights than others.
Fortunately, the regulation is easy to improve. Done right, this new regulation would be stronger than the current system. It would modernize Canada's antiquated sewage treatment systems and restore rivers and harbours impacted by sewage pollution. Done right, this new regulation could be one of the most protective sewage regulations in the world.
Lake Ontario Waterkeeper, Ottawa Riverkeeper, and other Canadian Waterkeepers will be submitting our official recommendations to the CCME by Thursday, March 1 - the official deadline for public comment on the proposed municipal wastewater effluent regulation.
It is a nerve-racking time for Canada's waterways. For the first time in years, the federal government is focused on one of the country's most pressing issues. It has an opportunity to protect our waters, our traditions, and our communities. At the same time, the government stands poised to push through a new Act and a new regulation that are less protective than today's Fisheries Act. It leaves us asking ... why?