Law Times

Law Times • November 19, 2012 BY MARG. BRUINEMAN For Law Times T Critics assail changes to fish protection he Conservative government's ronment, particularly as it applies to fish habitat protection. The budget legislation under Bill C-38 omnibus legislation is making something of a splash among those concerned about the envi- covered a lot of ground and much of it involved amendments to environmental laws. They included changes to an impor- tant piece of legislation, the Fisheries Act, that dates back to Confederation. Some critics argue the bill shiſts the focus away from fish habitat protection to fisheries management and leaves some areas totally vulnerable. A change in the wording of the legislation is a reflection of the argument. Where it had talked about "harmful altera- tion, disruption or destruction of fish hab- itat," the rewritten legislation removes the reference to habitat and instead targets ac- tivity that "results in serious harm to fish." Former Toronto mayor David Miller serves as a director of the David Suzuki Foundation, an organization that main- tains that Bill C-38 significantly weakens the habitat protection provisions in the Fisheries Act. "The Fisheries Act changes are too nar- row," says Miller, now a lawyer with Aird & Berlis LLP who works in international business and sustainability issues. "The Fisheries Act protects only com- mercial, recreational, and aboriginal fish- eries." And, he adds, destruction of fish habi- tat resulting in very serious environmental consequences may not come under the Fisheries Act. Miller believes the bill' lowing several pieces of legislation to work together leaves another aspect of the envi- ronment vulnerable. He points to the Na- tional Energy Board' pipelines as an example. He worries that a fish habitat lying along the route of a pipe- line installation may not be protected. "Unless you can show they're commer- s responsibility over cial, recreational or aboriginal fisheries, there' Miller. Anyone seeking intervener status at s going to be no repercussions," says a pipeline hearing would then have to prove destruction based on those stan- dards, which Miller says would be an onerous task. The federal government has come un- der criticism for including the changes as part of a bigger package in the omnibus bill. That puts the changes in the hands of the federal cabinet with little public par- ticipation or chance for review. "This was all rushed through," says Mill- er. "There might be some very serious un- intended consequences." The Fisheries Act, says Bill McNaugh- ton of Borden Ladner Gervais LLP, has historically been a key legislative tool for protecting the environment. But he believes the changes don't mean the elimination of protections for fish habitat. He reads that "serious harm to fish" covers the permanent alteration to or destruction of fish habitat. "My point is it' Naughton, national leader of the environ- mental focus group at BLG. "I don't think they are as dramatic as s approach to al- FOCUS PAGE 13 'The Fisheries Act protects only commercial, recreational, and aboriginal fisheries,' says David Miller. gument in certain cases that an altera- tion might be a temporary one that, with time, can be naturally repaired and therefore causes no serious harm to fish. But he agrees with Miller that in sparsely populated areas where there are plenty of lakes and fish but no commercial, recre- ational or aboriginal fisheries, there' for an ar- longer much fish habitat protection. As a result, general protection for all fish habitat is gone, but there's still some s no protection in certain circumstances. As a result, McNaughton believes it will be more difficult for the Crown to get convic- tions because it must prove there' nent alteration to fish and that the habitat is for species that are part of the three pro- tected fisheries. Those changes, he says, are balanced s perma- with another aspect: a dramatic increase in the penalties. "We're in a period of flux and we have to have some clarification on serious harm," says McNaugton. "It is the oldest and by far the most im- you're causing serious harm to fish if one of the three protected fisheries applies. However, there has to be that permanent element." But he sees the potential SEAMLESS, EFFICIENT ESTATE PLANNING STARTS HERE MILLER THOMSON ON ESTATE PLANNING EDITOR-IN-CHIEF: MARTIN ROCHWERG NEW PUBLICATION How can you be certain that the will or non-testamentary documents you are drafting today are sturdy enough to withstand scrutiny and challenge? 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