Fisheries Act Enforcement in Ontario
Ontario ministries appear to be undermining the power and viability of the Fisheries Act by squabbling about enforcement responsibilities under the legislation. As a result, Ontario residents are being deceived about the extent of their rights under the EBR, and the legislation is not being effectively used to address water pollution threats and promote sustainable aquatic ecosystems.
Background
The Fisheries Act is one of the most valuable pieces of environmental legislation in Canada. One of its provisions is particularly significant: subsection 36(3), which prohibits the discharge of a deleterious substance into water frequented by fish unless the deposits are of a type and concentration authorized by regulation. Section 36(3) can be a very effective tool for prosecuting polluters because the courts have ruled that it is sufficient to prove that a substance is of a kind that can harm fish, regardless of proof that the substance actually harmed fish.
Although the Fisheries Act is federal legislation, in a 1989 agreement with federal agencies, the Ministry of Natural Resources was established as the lead enforcer of the Act in Ontario. However, the agreement failed to clarify how s. 36(3) would be enforced in relation to discharges of chemical pollutants, given MNR’s lack of capacity to monitor and abate chemical pollution. Nevertheless, in signing the agreement, MNR took on responsibility for enforcing s. 36(3), and undertook enforcement of the Act. (See pages 301–302 of the Supplement to this report for a full discussion of the history of the Fisheries Act in Ontario.)
The Fisheries Act Proves to be a Popular Tool under the EBR
When the EBR was proclaimed in 1994, Cabinet decided that the Fisheries Act should be prescribed for the purposes of applications for investigation because MNR was the lead agency responsible for enforcing it. Initially, the Fisheries Act proved to be one of the most popular and effective tools for Ontarians filing applications for investigation regarding water pollution issues. More than 16 applications for investigation were filed between 1996 and 2000. (A summary of these investigation applications and the outcomes is provided in the Supplement to this report on pages 273–276.)
As a general rule, however, MNR investigations of alleged s. 36(3) contraventions related to chemical discharges were very disappointing. Most were not undertaken by MNR despite clear, prima facie evidence of contraventions. In other cases, the investigative work was inadequate or reached disturbing conclusions. (For example, see the Ontario Hydro investigation reviewed in the ECO’s 2000/2001 annual report in Fisheries Act Contraventions.)
The Fisheries Act and the Ontario Water Resources Commission Act: Understanding the Different Legal Regimes
The Ontario Water Resources Commission Act (OWRCA), now the OWRA, was enacted in 1956, in response to rapid post-war industrial and population growth, which had put enormous pressure on municipal sewage treatment plants, many of which were seriously inadequate. In 1955, two property owners downstream from sewage treatment plants (STPs) in Woodstock and Richmond Hill that were releasing partially untreated sewage sued on the basis that their common law riparian and nuisance rights had been violated. Lawyers for both Woodstock and Richmond Hill argued that approval by the Department of Health, which approved STPs at the time, gave them “statutory authority” to pollute. The judges in both cases disagreed and granted injunctions, but stayed them temporarily to provide the municipalities time to upgrade their facilities. The Ontario Legislature responded by passing the OWRCA, which limited the common law rights of downstream users and established the Ontario Water Resources Commission, an organization that provided the basis for the establishment of MOEE in the early 1970s.
There are some similarities in how water polluters are controlled under the two legal regimes. Section 36(3) of the Fisheries Act prohibits discharges of deleterious substances into waters, and Section 30(1) of the OWRA prohibits the discharge of any material that may impair water quality in any well, lake, river or watercourse. Contraventions of both statutes are strict liability offence, meaning that once the Crown has proven that the alleged offence took place, the defendant must show that he acted with due diligence to prevent the offence from happening. While the OWRA is Ontario’s principal law for controlling water pollution, several sections of the Environmental Protection Act (EPA) also can be invoked by MOEE prosecutors. Section 14(1) of the EPA contains a general prohibition against the discharge of contaminants that cause adverse effects into the natural environment.
There are considerable differences, however, in how the OWRA and the Fisheries Act are interpreted, administered and enforced. As noted above, under s. 36(3) of the Fisheries Act, it is sufficient to show that a deleterious substance has been discharged into waters inhabited by fish. In contrast, a prosecutor wishing to obtain a conviction under the general prohibition in s. 30(1) of the OWRA must show some likelihood of impairment or toxicity. This higher standard was confirmed in a June 2001 decision of the Ontario Court of Appeal, R. v. Inco Limited. In its decision, the Court of Appeal ruled that s. 30(1) of the OWRA requires that MOEE show a capacity to impair as a result either of the inherent toxicity of the substance, or the conditions of its discharge – that is, the quantity and concentration of the discharge as well as the time frame over which it took place. This increases significantly the evidentiary burden on the Crown with respect to prosecuting alleged contraventions of s. 30(1) of the OWRA.
Many experts believe that this difference makes s. 36(3) of the Fisheries Act a far superior tool when compared with s. 30(1) of the OWRA.
Moreover, MOEE has developed policies, guidelines and objectives under the OWRA to regulate surface and groundwater pollution. In issuing certificates of approval to municipalities and industries, MOEE employs the “mixing zone” concept to determine acceptable effluent levels. A mixing zone is defined as “an area of water contiguous to a point source . . . where the water quality does not comply with one or more of the Provincial Water Quality Objectives [PWQOs].” The use of mixing zones is limited to conventional pollutants, and conditions within a mixing zone are not permitted to be lethal to aquatic organisms. Thus, so long as a discharging sewage treatment plant is constructed and operated in keeping with the terms and conditions set out in its certificate of approval, MOEE generally does not prosecute its operators (or owners) for impairing water quality under the OWRA.
Confusion about Enforcement Obligations
In October 2000, the ECO received an application for investigation alleging contra- ventions of s. 14(1) of the EPA and s. 36(3) of the Fisheries Act. The ECO forwarded the application to the MOEE, which is responsible for enforcing the EPA, and to MNR, responsible for the Fisheries Act. MNR responded in November 2000, advising the ECO that it was no longer responsible for the enforcement of the Fisheries Act when alleged pollutants were chemical in nature. MNR attached a document entitled Fish Habitat in Ontario: Compliance Protocol – Federal and Provincial Roles and Responsibilities. According to this new Protocol, which had been ratified by the various agencies in February 2000, “Environment Canada is the lead enforcement agency for s. 36(3) on federal lands or federally regulated industries… For all other cases Environment Canada defers to MOEE as the lead agency responding to potential violations, unless the deleterious substance is silt, in which case MNR is the lead agency.”
To learn more about the Compliance Protocol, ECO staff contacted MNR and MOEE staff. We were advised that the Protocol was developed in part because MNR did not have the staff, equipment or expertise to investigate chemical discharges and determine whether they constituted violations of the Fisheries Act. We also were assured that MOEE Operations staff were part of the Fish Habitat Advisory Group’s (FHAG) Compliance working group, the multi-agency committee that developed the Protocol in 1999, and that MOEE supported the Protocol.
Since the October 2000 application for investigation alleged a chemical discharge, the ECO followed the Protocol and forwarded it to MOEE. MOEE denied the application, citing the applicants’ failure to provide information about any adverse effect.
Although s. 14 of the EPA does require that adverse effects be demonstrated beyond a reasonable doubt, the same standard of proof does not apply to the Fisheries Act. It is the ECO’s opinion that, in respect to this alleged Fisheries Act contravention, MOEE misinterpreted s. 36(3).
In April 2001, the ECO received another application for investigation alleging the ongoing discharge of deleterious substances that were likely to be causing damage to fish habitat. The applicants submitted that these discharges were in contravention of ss. 35(1) and 36(3) of the Fisheries Act, s. 14(1) of the EPA, and s. 30(1) of the OWRA. In July 2001, MOEE denied the application for investigation. In considering the alleged contraventions of the EPA and the OWRA, MOEE stated that the applicants had failed to provide evidence of actual impairment of water quality, or of adverse effects on aquatic organisms. (A summary of this investigation is provided in the Supplement to this report on pages 273–276.) MOEE did not consider the alleged contraventions of s. 36(3), claiming that the Fisheries Act was administered by the federal Department of Fisheries and Oceans (DFO).
The Environmental Commissioner immediately wrote to MOEE’s Deputy Minister seeking clarification and pointing out that MNR had advised the ECO that under the Compliance Protocol, MOEE was now responsible for investigations involving chemical discharges. In July 2001, the Deputy Minister advised the ECO that the Compliance Protocol was incorrect in suggesting that MOEE was the lead enforcement agency for s. 36(3). According to MOEE, the Protocol was based on the “First on the Scene” Decision Matrix, which identifies MOEE as the agency responsible for investigating chemical pollutants in water originating from land-based sources but not for enforcing s. 36(3). MOEE’s Deputy Minister also stated that staff had advised DFO of the need for clarification, and had requested that DFO either amend the Protocol or issue an erratum.
After receiving MOEE’s response to this application, the ECO also began to contact various government agencies seeking clarification of MOEE’s roles and responsibilities with regard to s. 36(3) of the Fisheries Act. Environment Canada agreed with MOEE, stating that the ministry was not responsible for enforcing s. 36(3) of the Fisheries Act, and that when its staff becomes aware of a potential violation involving a substance of a chemical nature, it discusses the enforcement approach with MOEE. If MOEE decides to address the issue through the EPA or the OWRA, then Environment Canada takes no action other than monitoring how the case proceeds. If MOEE decides not to pursue the matter, then Environment Canada undertakes enforcement action.
Although MOEE is not responsible for enforcing s. 36(3) of the Fisheries Act, it may use its authority in prosecutions.
ECO Research Project
In September 2001, the ECO undertook a research project to examine Fisheries Act compliance issues and to try and sort out how the public’s rights under the EBR are being affected by disagreements about Fisheries Act enforcement responsibilities. Federal and provincial agency staff and other experts familiar with the work of the Fish Habitat Advisory Group’s Compliance working group were contacted and interviewed.
When the ECO’s research project was launched, there was a great deal of confusion surrounding the status of the Compliance Protocol and MOEE’s obligations under it. Many federal and provincial officials, as well as many other stakeholders, believe that the OWRA and the Fisheries Act contain similar, if not identical, provisions with respect to water pollution, and do not realize that many activities that are permitted under the OWRA allow discharges that could be prosecuted as contraventions of the Fisheries Act. In fact, several experts, including some federal officials, advised the ECO that dozens of sewage treatment plants in Ontario are probably not in compliance with s. 36(3) of the Fisheries Act, even though these operations are statutorily authorized under the OWRA.
The ECO also found that many federal and provincial officials and other stakeholders were unaware of the June 2001 decision of the Ontario Court of Appeal on s. 30(1) of the OWRA, R. v. Inco. This lack of awareness is troubling because many experts believe that while this decision limits the scope of the OWRA with respect to prosecuting water pollution offences, it elevates the importance of s. 36(3) of the Fisheries Act.
Some experts told the ECO that enforcement of the Fisheries Act in Ontario is lagging behind other provinces. Ontario is a large province, with a substantial portion of Canada’s water polluters and a large population base. Between April 1996 and March 2001, MNR conservation officers laid 87 charges for alleged contraventions of s. 36(3), and almost all of these related to discharges of silt and sediment. While 47 of these charges were later withdrawn for a range of different reasons, as of July 2002 MNR had successfully prosecuted 26 of them, with the courts levying fines totalling more than $50,000.
MOEE has also not enforced the OWRA with vigour in the past six years. Indeed, one 2001 report indicated that MOEE launched only 11 prosecutions for alleged contraventions of the OWRA between 1995 and 1999, despite evidence – contained in more than 10,000 MOEE exceedance reports issued during this four-year period – of thousands of potential contraventions of the Act, its regulations and facility approvals. (In the wake of the Walkerton tragedy, MOEE did significantly increase its rate of OWRA prosecutions for contraventions described in MOEE exceedance reports.)
It would also appear that MOEE discourages the use of the Fisheries Act by federal agencies. Several experts and staff working for federal agencies and conservation authorities in eastern Ontario and southwestern Ontario told the ECO that MOEE management and staff actively discourage federal staff from prosecuting dischargers normally regulated under OWRA, even when evidence of s.36(3) contraventions was substantial, because federal enforcement makes MOEE “look bad” and “MOEE staff prefer to use the OWRA.” Lawyers for MOEE, for example, prefer to use the OWRA because they are more familiar with conducting prosecutions using the Provincial Offences Act, under which OWRA violations fall. Contraventions of the Fisheries Act must be prosecuted under the Criminal Code.
Status of Compliance Protocol as of March 31, 2002
While the ECO research project was under way, officials from various agencies involved with the FHAG Compliance Protocol working group held several meetings and conference calls about the Protocol, trying to resolve outstanding concerns about how to apply it and the role of MOEE.
In February 2002, MNR updated the ECO on various developments in Fisheries Act enforcement. We were advised that MOEE’s concerns were discussed at a meeting of the FHAG Compliance Protocol working group in November 2001, and the group agreed to revise the Protocol to clarify roles and responsibilities. The revised Protocol will affirm that while MOEE does not have lead enforcement responsibility for the Fisheries Act, it does have a lead role in responding to chemical discharges affecting water. MOEE will be the “first on the scene” to investigate alleged discharges and collect evidence. If more than one statute has been contravened, MOEE and Environment Canada will identify the “most appropriate legislation” under which to proceed based on the Protocol. Moreover, Environment Canada has agreed its staff will not take action if MOEE chooses to address potential violations of s. 36(3) using the OWRA. MNR also suggested that since MOEE will continue to have a significant investigative role, the ECO should continue to forward applications for investigation that allege chemical pollution in water to MOEE. Presumably, these applications would be forwarded on an “information only” basis since MOEE denies any legal responsibility to conduct investigations under s. 36(3).
ECO Comment
Enforcement of the Fisheries Act has been inconsistent in Ontario for more than three decades, and this has compromised the sustainability of Ontario’s fisheries and undermined the viability of many aquatic ecosystems. This problem has been exacerbated by the lack of monitoring of surface water quality, as described on pages 42-48 of this report and weak enforcement of the OWRA by MOEE.
According to MNR, MOEE’s “first on the scene” lead role in responding to incidents of chemical pollution of water will be emphasized in the revised Compliance Protocol. But even under a revised Protocol, MOEE would still be responsible for investigating alleged Fisheries Act offences. Since MNR remains the lead enforcement agency for s. 36(3) contraventions, the ECO believes that the Ontario government should also clarify its obligations for enforcement regarding discharges of chemicals to waters frequented by fish. It would be logical and appropriate for MOEE to ensure that s. 36(3), a powerful tool for promoting pollution prevention, be made available through a formal agreement for use by MOEE’s Investigations and Enforcement Branch and the SWAT Team the ministry created in 2000.
Whether or not MOEE was responsible for enforcing s. 36(3) of the Fisheries Act when the ECO forwarded the EBR applications for investigations to the ministry in 2000 and 2001, alleging water pollution offences, is debatable. However, MOEE was responsible for responding to and investigating chemical discharges to water. Accordingly, the ECO believes that MOEE should have considered the alleged Fisheries Act violations and contraventions of MOEE laws in reviewing these applications for investigation. If MOEE is unwilling to prosecute contraventions of s. 36(3) of the Fisheries Act, and MNR is unable to conduct investigations of alleged chemical spills because of a lack of technical expertise, then it is essential that MOEE amend the OWRA (or create a new provision in water legislation developed in response to the Walkerton Inquiry recommendations) so that a level of protection equivalent to that found in s. 36(6) of the Fisheries Act is contained in Ontario water protection legislation. In addition, MOEE should amend the EBR’s O. Reg. 73/94 to reflect the fact that Ontario residents are unable to submit these types of applications for investigation. Otherwise, residents are being deceived about the extent of their rights under the Environmental Bill of Rights and misled about which agencies are responsible for protecting public resources from pollution threats.
| Recommendation 7:
The ECO recommends that the Ministry of Environment and Energy amend the Ontario Water Resources Act so that a level of protection equivalent to that found in Section 36(3) of the Fisheries Act is contained in Ontario water protection legislation. |
| This is an article from the 2001/02 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2002. "Fisheries Act Enforcement in Ontario." Developing Sustainability, ECO Annual Report, 2001-02. Toronto, ON : Environmental Commissioner of Ontario. 57-63.
