Sludge Watch ==> Canada is Failing the Environment - Weakening the Fisheries Act

[Maureen Reilly]

Waterkeeper.ca Weekly:
Monday, December 17, 2007
www.waterkeeper.ca


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 res ulted 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.



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