No matter how much effort has gone into making the terminology clear or each regulation understandable, when new environmental legislation is announced, a
period of uncertainty follows for companies, governments and non-governmental organizations.
Such is the case with emerging changes to the federal Fisheries Act, many of which were contained within the federal government’s omnibus Bills C-38 and
C-45. The act defines how the Department of Fisheries and Oceans Canada (DFO) must protect aquatic species and their habitats for the people who depend on
them. Protection of fisheries in Canada is receiving increased attention due to its importance to commercial fishing operations, tourism sectors that
market recreational fishing excursions and those who depend on fish as a food source.
Uncertainty associated with regulatory decisions can have implications for miners. For instance, members of the Tahltan Nation in north-central B.C., had
concerns about the effects Imperial Metals’ Red Chris open pit project would have on water bodies supporting fish – a big part of the local First Nations’
diet and culture. Part of their concern was a belief that the federal government had scoped the project review incorrectly, splitting the project to allow
it to be reviewed with less oversight – through a screening study rather than a comprehensive study. The band held protests in 2006 and 2007, and the case
eventually landed in federal court, delaying the development of Red Chris for years.
Some changes to the Fisheries Act have already been passed by cabinet, others are pending, and new policy is now being considered and developed to guide
the application of the act.
Previously, “fish habitat” meant spawning grounds, nursery, rearing, food supply and migration areas on which fish depend directly or indirectly to live
and reproduce. The act now defines “fish habitat” more widely and includes “and any other areas” in the definition. This change may signal the need to
protect a wider range of watercourse and water body types, as there could be uncertainty as to what these “other areas” may encompass.
A recent DFO discussion paper, intended to stimulate feedback on policy that will be developed to implement changes to the act, focuses in part on the
sustainability and productivity of Canada’s fisheries. “Productivity,” as defined in this paper, involves the sustained yield of all component populations,
species and habitats that contribute to and support a commercial, recreational or aboriginal fishery. DFO is seeking to ensure that protection and
mitigation measures applied to business activities with fisheries implications like mining must go beyond protecting large-bodied fish that typically make
up a fishery, and also consider supporting species and their habitat.
This could mean that mining companies will need to do more baseline studies for a longer period of time before an assessment of impacts or risk from their
operations can be made. These studies may need to include the assessment of other smaller components of the ecosystem, including minnow species, to
determine how much of a role they play in supporting the big fish – or “fisheries.”
Proposed act changes are also moving from a prohibition against causing impacts to fish habitat, to a prohibition against causing harm to fish. This would
protect against the death of fish or the permanent alteration to, or destruction of, their habitat. The DFO discussion paper suggests that preventing harm
to fish would include ensuring a project does not limit or diminish a fish’s ability to carry on one or more life processes. Since it can take just one
spawning season or overwintering period to affect a fish population, “permanent” could be interpreted as “long enough to cause harm.” This means that
proposed mining projects would need to do more research on what extent habitat alteration will cause harm to a fish’s life process when assessing potential
harm to fish.
Mining companies will need to stay informed as legislation changes and supporting policy develops so they can reduce the chances that their operations will
run into problems or delays with the revised Fisheries Act.
Darcy Lightle, B.Sc., is a senior biologist in the Saskatoon office of McElhanney. He has 10 years of experience with Fisheries and Oceans Canada.