Hecate Straight Fish Stocks & Offshore Oil and Gas Development
You may have heard there is oil off British Columbia’s coast. 9.8 billion barrels of it, yes, billion. This is three times the size of the reserves that predicated the development of Hibernian and Terra Nova, Atlantic Canada’s offshore oil mega-projects which are helping to raise the East Coast out of the grave of the once great cod fishery.
You may also have heard that there is talk of lifting the current moratorium on offshore exploration and development off British Columbia’s coast. The new provincial government has recently cut taxes and increased spending, forecasting multiple deficit budgets and highlighting the Province’s need for new sources of revenue. The economic motive for developing the offshore is strong, as is the political will.
However, there are many obvious concerns with drilling for oil on the West Coast. In light of its awesome beauty and fragility, there is arguably, no good place to drill for oil off the BC coast. However, some places are worse than others. Take for example, Hecate Straight and western Queen Charlotte Sound. Subject to strong winter storms, Hecate Straight is a huge breeding and fishing ground for crab, halibut, sole, brill, rock fish and more. Western Queen Charlotte Sound is rich in perch, yellow tail rockfish, reed eye, and borealis, some of the oldest fish in the world.
These locations have been and continue to be some of the best fishing grounds on the coast, surpassing all other fishing grounds for value. The government has been monitoring these grounds scrupulously for several years now. The trawl industry that works this area has been said to be the most highly (successfully) monitored fishery in the world. Every trawl net that is set and hauled is done so under the watchful eye of a fisheries Observer, who records the data. Later this data becomes a tool to manage the stock by allowing more accurate modeling of the stock, and therefore more accurate total allowable catch levels.
What does this have to do with offshore oil and gas? The largest of all oil reserves on the coast lies directly under Hecate Staright and western Queen Charlotte Sound. 9.8 billion barrels of oil under the fishing area, big deal. Well, the difficulty arises even before there is any sign of oil spill. The seismic testing necessary to map subsea reserves is quite damaging to organisms in the water, including fish. The seismic testing is done with highly charged explosions of air, set off approximately every twelve seconds along a beam that is being towed under water on a grid pattern covering hundreds of square kilometers. The shock waves bounce through the water and rock, and possible oil, and come back to be analyzed by computers and used to make maps that developers will later use to determine where to drill. Marine drilling is astronomically expensive, so the seismic tests are crucial in order to save time and money when it comes time to sink a well.
Seismic testing in fishing grounds has been done all over the world, including the Grand Banks. The Living Ocean Society reports that some stocks in the North Sea had declined by 50% after seismic mapping. The Grand Banks seems to have had a depressed fishery for a decade or more now, but ask the government and they will tell you that this has nothing to do with the mapping necessary for their offshore drilling.
Will fish stocks in Hecate Staight and Queen Charlotte Sound be effected by seismic mapping? We may find out sooner than we think. The provincial government is currently reviewing bids submitted by companies to do seismic testing in order to update the seismic maps necessary for drilling.
Meanwhile, catch rates and landings of marketable fish caught in Hecate Straight and Queen Charlotte Sound are healthy. But what will happen when testing begins? Obviously, fishing stops in the area where the testing takes place, but what of the longer term effects, the effects on the stocks? Will they be damaged? License holders, vessel owners, crews and families who rely on these areas are likely not going to be very happy if their livelihoods are damaged. Vessels may be tied up. Crews may be on the dock. Mortgages foreclosed.
In the past, the law has looked at allowing a license holder to sue for economic damage that result from factors effecting his ability to earn money with the license. The law has typically found that a fishing license is simply a grant, or permission, of the Minister of Fisheries to catch fish, and does not form the basis of any right, the infringement of which can be sued over. Generally, this has meant that fishermen are without recourse for failure of their license to produce economically.
However, the situation may be different if the government does something that it knows will cause harm to the stock. The government may have created a fiduciary obligation to license holders. A fiduciary obligation is a significant relationship in which the Afiduciary@, here the government, has a particularly high duty to ensure it acts with the other person=s (the license holders) best interests in mind. By granting fishermen licenses yet charging as much as $10,000 yearly for them, enforcing a quota system that is market responsive and uses transferable quotas, and placing a large part of the cost of enforcement on fishermen, the government may have created a fiduciary obligation to the license holders. This obligation may be breached when the government, in an attempt to exploit another resource, such as offshore oil and gas, knowingly acts in a way that damages the fish stocks.
If indeed the courts are willing to recognize the special nature of the regulatory scheme of the West Coast trawl fishery, and the enormous financial commitment made by industry participants, the stage may be set for a change in the law. A change that would see license holders able to recoup economic damages suffered as a result of the willful acts of the government, such as the potential damage to stocks caused by seismic mapping in Hecate Straight.
Stating the law may change to recognize economic damage to license holders is a risky venture. However, British Columbia is a unique place. We give people money when their culture is damaged, we pay fishermen not to fish. The question is, when the governments knowingly damage fish stocks in order to make increase their revenue, will the law recognize the economic damage suffered by license holders and fishermen? I suggest this is an issue that the governments, federal and provincial, will likely have to address in the not so distant future.
G. Darren Williams is a marine and admiralty lawyer working with law firm of Giaschi & Margolis in Vancouver. He has worked as a trawl deckhand for some 12 seasons, acted as a fisheries Observer. For more information on offshore oil and gas, as well as fisheries and other marine law topics, visit AdmiraltyLaw.com, or email Darren Williams at williams@AdmiraltyLaw.com.
