From Badly Wrongg to Worse: An Empirical Analysis of Canada's New Approach to Fish Habitat Protection Laws

Authorized net losses of fish habitat demonstrate need for improved habitat protection in Canada

“…Favaro et al (2012) showed that between 2007 and 2011, there were only 21 habitat-related convictions, or 1.6% of all Fisheries and Oceans Canada (abbreviated as DFO) convictions during that period. Olszynski (2015) demonstrated that well before 2012 DFO had already gone to great lengths to reduce the regulatory burden associated with the section 35 regime through the adoption of a risk-based approach that diverted over 95% of project referrals away from the authorization process (see also de Kerckhove et al 2013). Instead, proponents of projects that were considered as posing a "low risk" to habitat were either issued a Letter of Advice advising them on best practices to avoid impacts to fish habitat or were referred to an applicable Operational Statement -essentially generic Letters of Advice for certain kinds of projects available on DFO's various regional websites.…”

“…The scale of human activity in and around fish habitat in Canada is sizable, and so our findings are cause for concern. DFO received 94,434 project referrals between and 2011 and issued 4,409 HADD authorizations (Olszynski 2015). If these projects resulted in habitat losses (i.e.…”

“…In addition to increased monitoring, enforcement, and policy compliance, this will require some mechanism for tracking those thousands of projects that DFO currently exempts as "low risk"; a general permit scheme with a notification requirement would facilitate this. Fourth, to safeguard against the kind of implementation gap that occurred under the previous habitat protection regime (Olszynski, 2015), there should be a recommitment to public education on the importance of fish habitat, how individuals can protect habitat when conducting projects in and around fish-bearing waters, and extensive support for community groups and non-governmental organizations that conduct habitat stewardship at the local level. This was identified as a priority by DFO in the past (Fisheries and Oceans Canada 1986), and is widely understood as critical to the success of fish and fisheries conservation (Cooke et al 2013).…”

“…At the time of their introduction, these changes were extremely controversial because they introduced ambiguity and unscientific terminology into what was then widely regarded as one of Canada's most important, if also imperfect, environmental laws (Olszynski, 2015). In particular, there was concern about the lack of clarity in how the term "permanent" would be interpreted by managers, incoherence around the concept of differentiating between fish that do and do not support a fishery (Hutchings 2014), and the perception that the new wording seemed to exclude protection for any fish habitat not under immediate use by humans (Hutchings and Post 2013).…”

Project Review Under Canada’s 2012 FisheriesAct: Risky Business for Fisheries Protection

“…Authorizations to alter or destroy habitat include legal requirements for proponents (people or entities, such as municipalities, agricultural producers, and forestry companies carrying out projects) to offset harm remaining after avoidance and mitigation efforts. Implementation of the fish habitat protection provisions has faced many challenges; however, the review and authorization of small, “low‐risk” projects has been a dominant ongoing problem (Minns 2001; Olszynski 2015; Rice et al 2015). Such projects number in the thousands annually, are not typically appropriate for application of habitat offsetting tools available under the Act, and become a regulatory burden to DFO and project proponents.…”