"APPLYING CANADIAN ENVIRONMENTAL ASSESSMENT ACT TO FISHERIES" Fisherman Life Oct. 2004
For many years now, logging and mining companies operating on both coasts of Canada have been familiar with the requirements of the federal Environmental Assessment Act. This Act requires the federal government to require an environmental assessment to be carried out if the government issues a permit, grants an approval, or takes any other action for the purpose of enabling a “project” to be carried out. The type of “projects” for which environmental assessments are required in the marine environment are defined in the regulations to include alteration, disruption, or destruction of fish habitat as authorized by the Minister of Fisheries under S. 32 of the Fisheries Act, as well as the destruction of fish as authorized under to s. 35 of the Act.
Recently creative environmental and interest groups have been attempting to expand the scope of the application of the Environmental Assessment Act beyond its traditional use against miners and loggers. For example, in the case of Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada 2003 FCT 30, the Chief of the Kwicksutaineuk/Ah-kwa-mish Tribes attempted to use this legislation to stop the Department of Fisheries and Oceans (D.F.O.) from issuing a licence authorizing a fish farmer to kill problem seals and sea lions. During a judicial review proceeding before the Federal Court, the Chief argued that since the seals that were killed were not used for food or any other purpose, a licence to kill them had to be issued under s. 32 of the Fisheries Act rather than the more general licensing sections that deal with licences to fish. Consequently, it was argued that since environmental assessments are required for all destruction permits issued under s. 32, a permit or licence to kill seals could not be issued without an environmental assessment. However, after rejecting the narrow definition of fishing being advocated by the Chief, the court refused to apply the Environmental Assessment Act on the grounds that this Act was only intended to apply to “the construction of projects and their operation which could result in the destruction of fish or damage to fish habitat” (para. 26).
On the east coast, in the case of Ecology Action Centre Society v. Canada (A.G.) 2004 FC 1087, an environmental group recently attempted to used this legislation to prevent the Minister of Fisheries from opening a purported environmentally sensitive area of the Georges Bank to dragging (it was alleged that the area in question was a nursery area for various plant and animal species that would be put at risk by dragging). As in the case of Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada, the Federal Court similarly refused to apply the Environmental Assessment Act on the grounds that its application was limited to construction type projects.
Most recently on the west coast, the Canadian Sablefish Association commenced a judicial review proceeding in the Federal Court in an attempt to set aside a decision of the Minister of Fisheries approving the transportation of approximately 30,000 hatchery raised sablefish to two fish farms. According to the allegations of the Association, it has been consistently advised by the Minister of Fisheries that as part of the process required for a fish farm to get approval under the federal Navigable Waters Protection Act, D.F.O. is required to do an assessment under the Environmental Assessment Act. Apparently pursuant to this policy, an environmental assessment of one sablefish fish farm was commenced in May 2004, but presumably had not been completed at the time D.F.O. issued a permit to allow the transportation of hatchery sablefish. Based upon these facts, the Association is seeking an order requiring the Minister of Fisheries to fully comply with the requirements of the Environmental Assessment Act. It will be argued that since an environmental assessment has been commenced, the federal Government cannot issue any licences or permits until the assessment is complete?
In July of this year an application for an interlocutory (pre-hearing) injunction was heard by the court and rejected on the grounds that the Association had failed to show that irreparable harm would result if the injunction were not granted. Since it was not necessary for the court to adjudicate the Environmental Assessment Act issue during the injunction application, the question of the applicability of the Act to the transportation of hatchery fish was not determined. However, the court will have to rule on this issue when and if this matter proceeds to a full hearing.
Whether or not the environmental assessment process ought to be extended above and beyond its traditional applications depends upon one’s perspective. Since there is no love lost between wild stock fishermen and fish farmers, most wild stock fishermen would probably be quite happy to see fish farms subject to the Act. However, since there is also no love lost between most fishermen and seals and sea lions, they may not be as keen to see the Act being used for their protection. Similarly, it is not likely that the Georges Bank draggers are too keen on seeing the Act utilized to prevent them from fishing on their traditional fishing grounds. In any event, based upon the first two cases discussed above, it would appear that the Sablefish Association is going to have an uphill battle in its attempt to apply the Environmental Assessment Act to the transportation of hatchery fish at sea. It remains to be seen, however, whether or not the existence of an ongoing environmental assessment will be sufficient to distinguish the Sablefish Association’s case from the previous two cases.
Brad Caldwell is lawyer with the firm of Caldwell & Co. in Vancouver, B.C. His practice is primarily devoted to fisheries, maritime and insurance matters. He can be contacted at 604 689 8894. Previous articles written by Mr. Caldwell can be viewed on his webpage at http//admiraltylaw.com/fisheries/bradcv.htm