Vol. 20 No. 4
DFO Sets New Policy Course for Fisheries Act Enforcement
By Jason Unger
Staff Counsel
Environmental Law Centre
Section 35(1) of the federal Fisheries Act (the Act) provides that “no person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.” Referred to as the “HADD” section of the Act, section 35 is monitored and enforced by the Department of Fisheries and Oceans (DFO).
The HADD provision has broad and almost innumerable applications to activities in fisheries waters, from building a dock or driving an off-road vehicle through a stream to damming a river. Under section 35(2) of the Act, the Minister of Fisheries and Oceans may authorize activities that constitute a HADD. Generally, authorization triggers a formal environmental assessment under the Canadian Environmental Assessment Act (CEAA).
Policy changes regarding HADD enforcement and compliance are currently underway, arising from DFO’s 2005-2010 Strategic Plan: Our Waters, Our Future. The Plan foresees, in part:
· a risk management framework wherein risk levels associated with particular habitat and particular activities are to be assigned; and
· the use of non-legal instruments to protect fisheries habitat, such as class screenings, operation statements and guidelines. These instruments would first focus on “low risk activities” but, in “future years, the focus will turn to addressing medium- and higher-risk activities”.
These policy changes will have direct impacts on those conducting activities in or near fisheries habitat and on the enforcement and protection of the nation’s fisheries. In particular, the policy shift will mean decreased staffing in the enforcement division and the use of Operational Position Statements to guide activities with the potential to cause a HADD.
HADD no stranger to controversy
Long before the current round of policy changes, DFO enforcement of the HADD provision was a contentious issue, particularly from the perspective of the environmental community. In particular, the use of “letters of advice”, issued by the DFO in instances where an activity had the potential to cause a HADD, attracted criticism.
Under the legislation, those who wish to undertake an activity that may cause a HADD must apply to DFO for an authorization. However, most projects with the potential to cause a HADD proceed without either section 35 authorization or environmental impact assessment (EIA). Instead, the Department has relied on “letters of advice” which it sends to project proponents, outlining steps to be taken that should enable the proponent to avoid causing HADD.
The use of letters of advice has undermined section 35 in at least two respects. First, it has allowed activities to go forward that might otherwise have required environmental assessment under CEAA. A CEAA assessment requires a certain level of public participation and transparency, and would provide a fuller assessment of the actual and potential impacts on local fish habitat. Second, the use of letters of advice has made prosecution, even where a HADD occurs, difficult or impossible, as the offender may successfully raise the defences of officially induced error and due diligence. The new shift in policy does little to deal with these criticisms and may further undermine enforcement of the Act.
Shifting policy gears
The shift in enforcement and regulation under the Department’s Habitat Management Program, cited as being in line with the federal government’s “Smart Regulation” agenda, focuses more on collaboration and soft law approaches and less on strict enforcement of the Fisheries Act.
The new policy direction will see significant reductions in fisheries enforcement officers across the country. In Alberta, for instance, it is expected that the number of enforcement officers will be reduced by over 65% from 2004 levels. The other prairie provinces are also slated for significant reductions in officers. These officer positions may be replaced with inspectors; however, without significant amendments to the Fisheries Act, it is unclear what legislative powers these inspectors would have.
Considering the number of activities with the potential to trigger section 35, this will certainly mean decreased inspections, investigations and prosecutions of Fisheries Act violations. This in turn may have significant implications for other public and private enforcement mechanisms. In particular, there may be greater scope for private prosecution in instances where government enforcement is lacking.
Implications of Operational Position Statements
While the effect of the reduction in enforcement staff is predictable, the implications of using legally unenforceable compliance tools are less apparent and worthy of further discussion. The current trend in compliance tools appears to be toward guidelines or policy statements, however the final legal status and enforceability of these tools has yet to be determined. One of these tools in particular, “Operational Position Statements” (OPS), is currently being developed and will soon be relied upon by DFO for compliance.
These position statements appear to be standardized replacements for letters of advice in that they outline steps to be taken to avoid a HADD for a particular type or class of activity. Undoubtedly, the objectives of Operational Position Statements include addressing capacity limitations, minimizing costs and avoiding the adversarial prosecution approach. The question remains, however, whether adherence to the Operational Position Statements can or will be enforced.
The uncertainty surrounding enforcement of OPS is evident within the wording of the statements themselves. The interim OPS for pipeline crossings reads, “if the Designated Works meet the criteria outlined in [the OPS] and are carried out as specified in the HADD avoidance measures provided throughout [the OPS], the proposed Designated Works are not likely to contravene section 35(1) of the Fisheries Act. (Emphasis added).
It therefore appears that even strict adherence with an OPS may nevertheless result in a violation of section 35. This is in large part due to the fact that standardized statements cannot foresee every situation. Whether a HADD occurs is a question of fact that depends upon the circumstances in each case. As such, standardized guidelines are likely to miss relevant features of the fisheries population or habitat in particular regions or with particular sensitivities.
While the OPS give reasonable guidance to proponents of activities that may violate section 35, the use of the OPS perpetuates the difficulties inherent in letters of advice. As with the letters of advice, environmental assessment triggers are side-stepped and the likelihood of prosecutions moving forward, even in instances where HADD occurs, are minimized due to the availability of legitimate defences.
DFO’s view is that these tools (letters of advice and OPS) are valid enforcement and compliance tools, notwithstanding the apparent undermining of the legislative scheme. The fact remains, however, that even with letters of advice and OPS in place, HADD will likely continue to occur.
Enforcement of OPS
Currently, failure to comply with the provisions of an Operational Position Statement does not constitute an offence under the Act. If OPS are used it appears there may be a need to amend the Act, both to clarify their legal status and to effectively enforce their provisions. By making it an offence to derogate from an OPS in the absence of written approval from the department, the criticism regarding legal enforceability and prosecution would be partially addressed.
Similarly, some, if not all, of the OPS will require notification of DFO by the proponent. This notification requirement needs to be legislated to be effective. While notification itself does little to address the fundamental issue of habitat protection, it allows DFO to track and inspect activities and to intervene if specific criteria require it. Without legislative backing for the notification requirements, however, there is little to ensure monitoring of activities or compliance with the OPS and the Act itself.
Remaining legal questions
The question of whether a HADD is or is not likely to occur is one guided by the factual situation in each case. The existence of a HADD is not a question of government policy. While enforcement of s. 35 violations is affected by the new DFO policy, the question remains whether OPS (and for that matter letters of advice) constitute valid exercises of government discretion under the Act. It would appear at first instance that, by creating these alternative mechanisms to deal with habitat protection, the intent and purpose of the Act is actively being undermined.
Conclusion
The combined effect of reduced enforcement capacity and a move towards soft, more collaborative approaches to section 35 compliance is difficult to ascertain. The steps being taken towards reduced enforcement of the HADD provision are, however, likely to have significant negative impacts on fisheries habitat. Indeed, the OPS approach can be characterized as an experiment with enforcement tools, leaving doubt as to whether the OPS methods will be effective at HADD avoidance.
The reduced number of prosecutions and investigations under the new policy will likely allow for financial savings by DFO, but at a potentially significant cost to fish habitat. The intent of the Act would be better served through a case-by-case authorization process and the EIA mechanism currently available under federal legislation. Given the planned reductions in enforcement capacity, the future of Fisheries Act enforcement will likely bring new opportunities for private prosecutors and their lawyers.
Comments on this article may be sent to the editor at elc.ab.ca.
Back