New law eliminates habitat protection for most fish species in Canada

New study claims changes based on political, not scientific motivation Photo: USDA

WASHINGTON, November 9, 2013—Amendments to the Canadian federal Fisheries Act (FA) eliminate the government’s ability to protect most fish habitats, according to a new study by Jeffrey A. Hutchings and John R. Post, the country’s leading fish and fishery experts.

With 20 percent of the world’s fresh water as well as the world’s longest coastline, Canada’s new regulatory scheme could have serious effects outside the country’s borders.

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Published in Fisheries, the journal of the American Fisheries Society, the peer-reviewed study maintains that the new changes in legislation were made without consulting habitat biologists, fisheries experts or scientists form Fisheries and Oceans Canada (Canada’s department of fisheries).

In place since 1976, the old provision in the FA acted as a blanket protection for all of Canada’s fish habitats, stating “No person shall carry on any work or undertaking that results in the harmful alteration, disruption, or destruction of fish habitat.”

This section was amended in 2012 to read “No person shall carry on any work, undertaking or action that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.”

While the authors of the study acknowledge there are a few positive elements in the change (recognition of Aboriginal fisheries, regulations to control invasive species and increased fines and penalties), they are greatly outweighed by negative consequences.

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For example, according to the authors and several legal opinions cited in the study, since the new law only prohibits “serious harm” to certain fish habitats, it will no longer be illegal to harmfully alter or temporarily disrupt these habitats.

Additionally, the new legislation will severely weaken government protection of species in danger of extinction. According to Hutchings and Post, 80 percent of Canada’s 71 species of freshwater fish at risk of extinction will not be considered “fish that are part of a commercial, recreational or Aboriginal fishery,” and therefore no longer protected by the FA.

Fisheries and Oceans Canada responded to this allegation by stating that fish habitats in Canada are still protected under other federal legislation like the Oceans Act, Species At Risk Act (SARA), and the Canadian Environmental Assessment Act, the Calgary Herald reports. In an email to the same local news outlet, the department also stated that it “will still conduct reviews of projects that pose risk of serious harm to fisheries and the habitat that supports them.”

However, Hutchings and Post argue that there are several limitations to relying on SARA and other legislation to protect species that are no longer covered by the FA, as SARA and others do not apply to all species at risk, including “special concern” species (those that may become endangered or threatened in the future). According to several sources cited by the authors, listing a species on SARA is complicated and can take over five years.

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Hutchings and Post further argue that eliminating protection of habitats unrelated to human fisheries will also eliminate indirect protection of habitat for other threatened and endangered aquatic life including reptiles, amphibians, aquatic plants, and insects.

 When implementing the change in the FA, Fisheries and Oceans Canada claimed that the new law would streamline and expedite environmental reviews for development projects and other activities. However, according to sources cited by the authors, this was a solution in search of a problem. Only one proposal (out of several thousand) was rejected between 2006 and 2011, and “only 1.6 percent of 1,283 convictions under the FA between 2007 and 2011 pertained to the destruction of fish habitat.” Additionally, review times were already in line with new standards.

Moreover, according to Hutchings and Post, the new regulations strip scientists and biologists at Fisheries and Oceans Canada of the primary responsibility for supplying accurate data and rely almost exclusively on the individual or company applying to undertake an activity requiring authorization by the Canadian Minister of Fisheries and Oceans under the FA. 

The applicant, and not scientists and biologists at Fisheries and Oceans Canada—which recently cut 33 percent of its staff—will have the responsibility of identifying whether a certain species is a “fish that are part of a commercial, recreational or Aboriginal fishery” under the FA.

“This reduction in staff can only diminish the scientific integrity and scientific credibility of DFO’s assessments of applications for the authorization of activities under …FA that will result in the destruction of fish and fish habitat,” write the authors in the study.

Hutchings and Post continue to discuss how the new legislation will protect fish that are nonnative and even artificial by virtue of supporting recreational fisheries in certain parts of the country.

Additionally, the FA will no longer protect fish living in pristine environments with little or no human intervention.

“Humans are necessary to render a fish part of a fishery,” write Hutchings and Post. “No humans, no fishery, and no fish habitat protection.”

Given Canada’s large area and sparse population outside major cities, the majority of the country’s freshwater fish will no longer be protected, even if they are protected in another location where they are part of a fishery. 

“Politically motivated dismantling of habitat protection provisions in the Fisheries Act erases 40 years of enlightened and responsible legislation and diminishes Canada’s ability to fulfill its national and international obligations to protect, conserve, and sustainably use aquatic biodiversity,” write Hutchings and Post.  


READ MORE: A World in Our Backyard by Laura Sesana

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Laura Sesana

Laura Sesana is a writer and DC, Maryland attorney, joining the Communities in 2012.  She is the author of Colombia: Natural Parks, and has also written several articles on literary criticism.  She writes about food, health, nutrition, women’s legal issues, and the environment.  

In addition to writing for the Communities, Laura also works as an attorney and legal content writer.


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