Changes to fisheries act rolled into budget bill

When Yukon MP Ryan Leef was asked about the issue in March, he said he didn't understand the connection that was being made between changes to the federal Fisheries Act and the budget.

When Yukon MP Ryan Leef was asked about the issue in March, he said he didn’t understand the connection that was being made between changes to the federal Fisheries Act and the budget.

“I don’t know how the linkage would go from policy changes to the budget bill,” Leef told the News March 26 in response to questions about leaked Department of Fisheries and Oceans documents.

The documents said Ottawa planned to take “fish habitat” out of the act and push the change through in an omnibus budget bill.

And that’s exactly what it did on April 26 when it tabled Bill C-38.

Leef has yet to respond to the apparent contradiction.

His office said he’ll talk “when he’s ready.”

The Fisheries Act is just one of about 60 federal acts that’s proposed to change with the federal budget bill.

It is one of the biggest omnibus bills the country has ever seen, including everything from income tax to nuclear safety, environment, oil and gas, and assisted human reproduction.

The proposed changes to the Fisheries Act in it are significant.

The words “fish habitat” have not been taken out, as the leaked documents proposed.

But, most notably, Bill C-38 proposes that section 34 of the Fisheries Act get a name change. It is currently called Fish Habitat Protection and Pollution Prevention. The Conservatives want to change it to Fisheries Protection and Pollution Prevention.

The change may seem innocuous, but it could have major implications.

The Fisheries Act – if these changes are passed – will no longer protect fish, but fisheries.

As the proposed changes carry on, every mention of “fish habitat” is replaced with “fish that are part of a commercial, recreational or aboriginal fishery, or fish that support such a fishery.”

Also significant is the proposal to repeal a part of the act that assigns punishable guilt to anyone who obstructs any stream without maintaining a fishway, canal or sufficient flow of water and free passage. The section says the offence is punishable on summary conviction and liable to a fine of $200,000 and/or six months imprisonment.

If the omnibus bill is passed, as it is, that law will no longer exist.

“We’ve sort of been sideswiped by this,” said Lewis Rifkind, who works for the Yukon Conservation Society.

His group has heard the changes are being made to accommodate a few big projects down south, most notably the Enbridge Gateway pipeline, which plans to connect the tarsands to tanker traffic on the Pacific coast.

But the impacts of these legislative changes in the Yukon will be “quite substantial,” said Rifkind, listing some of the territory’s own upcoming “big” projects.

“I don’t think it was intentional. I just think somebody in Ottawa didn’t think what the implications were going to be in the Yukon,” he said. “I can’t speak for the N.W.T. or Nunavut, but I imagine they might be having similar issues there as well.”

Rifkind wonders what the implications will be for past “big” projects in the territory that have been shut down because of fish habitat protection. And whether it means decisions on the controversial Carmacks Copper project could be challenged or nullified.

But even more changes will likely come in the realm of placer mining in the territory, Rifkind predicted.

“By and large, where placer operations are we don’t have fisheries because the placer miners are busy ripping the stream up,” he said.

“But now, are they going to have even greater carte blanche to do that because they are not affecting fisheries? They’re destroying fish habitat but they’re not affecting fisheries in the way that we think it’s been laid out in this bill.”

But the crux of the issue still remains: What is “a fishery” under the proposed amendments?

“In the Yukon context, how do we interpret that?” asked Rifkind. “You could interpret that very narrowly. Any stream in the Yukon may not be accessible to recreation. There wouldn’t be a commercial fishery and it’s quite possible that there wouldn’t be an aboriginal fishery because it might not be able to compare with the stream next door.

“So suddenly, does that mean that the Fisheries Act no longer applies to that stream, even though it might have fish in it but, unfortunately, the fish aren’t being harvested by humans?”

And what about the fact that nearly all waterways in the territory are interconnected?

“In the Yukon, by and large, all streams lead into bigger streams, that lead into rivers, and you may have recreation, aboriginal or commercial fisheries on them,” said Rifkind.

“So how far upstream can we go in defending a fish habitat because it provides support to downstream fisheries? Is that the approach we’re going to have to take now?”

Because of the direct conflict between fish habitat protection and placer mining, a Yukon placer mining regime has been established to help identify what waterway can be used for which activity – fish and fish habitat protection, or placer mining.

There is even an online atlas of the territory’s waterways.

Could that be handed to Ottawa to re-establish what a fishery and a “productive” waterway are in the territory, or would it have to be scrapped and redone?

When it comes specifically to salmon and their seasonal habitats like spawning, rearing, migration and feeding grounds, Tara Christie, executive director of the Yukon Salmon Sub-Committee, doubts there will be much confusion.

“The Yukon River salmon are a really important part of the Yukon,” said Christie.

“We all know, Yukoners know, that the Yukon River salmon and the Yukon River are an important fishery for all Yukoners, culturally for First Nations, but for all Yukoners. Understanding what the implications of the proposed changes are to the Yukon, if any, is very important to us.”

First Nations have offered and continue to offer their input when it comes to identifying traditional and current fisheries and defending the fish habitats important to those fisheries, she added.

But Christie is honest about her lack of knowledge about the proposed changes.

The committee is waiting for a briefing from the Department of Fisheries and Oceans before it starts consulting with Yukoners and First Nations and then passing on its suggestions to government.

Stephen Mills, chair of the Yukon Environmental and Socio-economic Assessment Board, said he’s not sure what affect these proposed changes may have on environmental assessments in the territory and the laws that direct them.

“When we look at what are the values – both socio-economic and environmental values when we’re doing our assessments – we look at these values as important parts of ecosystems,” said Mills.

“We don’t base our assessments on whether or not a certain resource or fishery, for example, can be exploited by humans. That is not part of how we conduct our assessments. So this is definitely a different approach.

“The concept that something is only of a certain value if it can be exploited just doesn’t make sense in an environmental assessment process nor does it make sense when you’re looking at the health of ecosystems. So for us, what’s important is, will these changes result in on-the-ground changes within the Department of Fisheries and Oceans?

Does this mean that they won’t be participating in as many assessments?

“They’re a key technical resource and if they’re no longer participating in certain types of assessments, we’re going to have to be looking to fill that gap.”

The board will look at the territory and First Nations first to find replacements, he said.

But there is a capacity issue: both those levels of governments are already stretched thin with the number of projects on the go.

Mills noted how the proposed changes don’t seem in line with other changes included in the federal omnibus bill when it comes to environmental assessments.

Ottawa said a main priority is to reduce the time it takes to do assessments.

“If you’re trying to streamline processes and trying to make processes more efficient but at the same time pulling key technical resources away from these processes, something’s going to have to give, and it’s not going to be the quality of the assessments because we’re required under our legislation to meet a number of different sections. It could be timelines of assessments, it could be other factors.”

So far, Mills hasn’t received word on any changes to the Yukon Environmental and Socio-economic Assessment Act, which is federal legislation. But the Fisheries Act changes could affect which projects fall under YESAA and need to be assessed in the territory.

But most project assessments are triggered by more than just a fisheries authorization, said Mills.

“And once a project is subject to assessment, we assess the entire project,” he added.

Contact Roxanne Stasyszyn at