Submission

Summary of the matter addressed in the submission:

The Submitter alleges that «[t]he Government of Canada is failing to apply, comply with and enforce the habitat protection sections of the Fisheries Act and with CEAA (Canadian Environmental Assessment Act). In particular the Government of Canada is failing to apply, comply with and enforce Sections 35, 37 and 40 of the Fisheries Act, Section 5(1)(d) of CEAA and Schedule 1 Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of CEAA.» According to the Submitter the Department of Fisheries released a Directive (Directive on the Issuance of Subsection 35(2) Authorizations) which creates «a decision making process which frustrates the intention of Parliament and usurps the role of CEAA as a planning and decision making tool.». The Submitter further alleges that «[t]here are very few prosecutions under the habitat provisions of the Fisheries Act and the prosecutions that do occur are very unevenly distributed across the country. In fact there has been a de facto abdication of legal responsibilities by the Government of Canada to the inland provinces. And the provinces have not done a good job of ensuring compliance with or enforcing the Fisheries Act.» According to the Submitter, «228 projects were reviewed by the Department of Fisheries and Oceans in the Central and Arctic Region (the Prairie Provinces, Ontario and the Northwest Territories), as of June 21, 1996. For these projects, 78 Letters of advice were issued. The other 150 projects listed were handled by providing advise to provincial or territorial agencies or to the permitting agency.»

Summary of the response provided by the Party:

“Canada submits it is effectively enforcing its environmental laws and is therefore in full compliance with its obligations under the NAAEC. Therefore, the development of a factual record is not warranted.

Canada rejects [the Submitter’s] allegations based on [among others] the following arguments: the method by which Canada enforces Section 35 of the Fisheries Act and the implementing Directives thereof, is a legitimate exercise of its regulatory and compliance discretion as recognized in Article 45 of the Agreement; Subsection 35 (1) is not invoked if no [Harmful Alteration, Disruption of Destruction] HADD occurs; Subsection 35(2) is not required if there is no HADD; Section 37 of the Act is not required and therefore is not invoked where proponents voluntarily provide project information and agree to necessary alterations; Section 37(1) is not invoked if no HADD occurs or is imminent; Section 37(1) of the Act, due to its requirement for Order-in-Council approval in order to effect changes, was never intended to be utilized on a day-to-day basis, but was intended to provide powers to deal with extraordinary situations as is indicated by the requirement for Governor-in-Council approval of Ss. 37(2) orders; Section 40 of the Act is not invoked if Section 35 is not contravened; and, CEAA is not triggered if DFO does not exercise the decision-making authorities of Sections 35(2) or 37(1), (2) of the Fisheries Act as described in the CEAA Law List Regulation.

Canada contends that the pattern of program implementation and enforcement across the country is appropriate and that current arrangements for the delivery of habitat management are neither a real nor a de facto abdication of legal responsibilities for the protection of Canada’s fish habitat in the context of the Canadian federation. Rather cooperation with provinces increases the enforcement resources and allows more effective enforcement.”

Canada’s response provides factual information pertaining to the Sunpine log hauling road cited as an example in the Submission. However, Canada submitted that “This matter being the subject of active litigation, it is respectfully suggested that the Sunpine example should not be considered further by CEC.”

Names and citations of the environmental laws in question:

1. Fisheries Act, R.S.C. 1985, c. F-14, s. 35, 37 and 40
2. Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 5(1)(d); 59(f)(g), Schedule 1, Part 1
3. Law List Regulations, Item 6, SOR/94-636

Submitter(s):

The Friends of the Oldman River