Update: Enforcement of the Fisheries Act
In 2001/2002, the ECO reported that enforcement of section 36 of the federal Fisheries Act (FA) by the Ministries of the Environment and Natural Resources was sporadic and inconsistent. Section 36(3) of the FA prohibits the discharge of deleterious substances into waters frequented by fish, unless the discharged substance is regulated under the Act. MNR and MOE were responsible for enforcing this prohibition on behalf of the federal Department of Fisheries and Oceans (DFO) between the mid-1970s and March 2004.
The ECO’s 2001/2002 annual report also noted serious problems with implementation of the Fish Habitat Compliance Protocol (“the 1999 protocol”) first published by the Fisheries Habitat Advisory Group (FHAG) in 1999. FHAG consists of representatives from MOE, MNR, OMAF, Environment Canada, DFO, Parks Canada, the Coast Guard and Conservation Authorities. The 1999 protocol, and a subsequent revision issued in 2004, set out rules for the various federal and provincial agencies that administer and enforce water laws, regulations and policies, and it attempted to clarify roles and responsibilities.
In 2002, FHAG established a Compliance Working Group (CWG) and tasked the CWG with revising the 1999 protocol, partly to respond to concerns raised in the ECO’s 2001/2002 annual report. In February 2004, MNR and MOE representatives on the CWG advised the ECO that, beginning in April 2004, they would be piloting a revised FHC protocol (“the 2004 protocol”). One implication of the 2004 protocol is that DFO and Environment Canada are assigned lead roles in enforcement of the FA, with MOE and MNR providing support but not directly enforcing or prosecuting alleged FA contraventions. In practical terms, this means that Ontario residents are effectively barred from applying for EBR investigations of alleged FA contraventions because the EBR applies only to prescribed Ontario ministries. Indeed, since early 2004, ECO staff have advised members of the public that it is no longer possible to file EBR investigations related to alleged FA contraventions even though the FA is still listed as a prescribed Act for investigations under the EBR.
In September 2004, the CWG provided ECO staff with a detailed briefing on the status of the implementation of the 2004 protocol. The ECO was advised that the 2004 protocol was working well and that FHAG had developed a Web site which focuses on its activities and allows for tracking of investigations (www.fish-habitat.com). For our 2004/2005 annual report, the ECO once again requested that both MOE and MNR provide updates on the implementation of the 2004 protocol and on the work of the CWG. Because MNR and MOE no longer led prosecutions of s. 36(3) of the Fisheries Act under the 2004 protocol, the ECO did not request updates on their prosecutions and related compliance activities.
Both MOE and MNR reported in their March 2005 progress updates that the CWG continued to meet to review implementation of the compliance protocol and coordinate activities. MNR stated that the CWG “is reviewing the results of the trial implementation and is updating the Protocol accordingly” and that the CWG has developed “a process to assist with local implementation and will include it in [an updated] protocol.”
Despite this reassuring statement, the ECO also was advised by MNR and MOE staff that the 2004 protocol might have to be reviewed in light of the federal government’s planned cuts to DFO, announced in the 2005 federal budget. In late February 2005, regional DFO staff were advised that up to 45 enforcement staff and biologists in Ontario would be laid off by 2007. These cuts may make it difficult for DFO to fulfill its proposed role as a lead enforcement agency under the 2004 protocol.
Registry notices and EBR compliance issues
In our 2002/2003 annual report, the ECO noted that MNR and MOE should post a notice on the Registry if they and other FHAG agencies proposed environmentally significant changes to the 1999 protocol. On its face, the CWG has introduced some crucial changes related to FA enforcement in the 2004 protocol. However, both MOE and MNR argued that the 2004 protocol was only an “interim,” and not a “final,”policy and decided not to post it on the Registry as a regular policy proposal in 2004 prior to the start of the 2004/2005 pilot project.
Since April 2004, FHAG and its respective agencies have trained thousands of staff at their respective organizations on the application of the 2004 protocol and distributed thousands of copies of it to ministry staff and the public. ECO staff urged MNR and MOE at a September 2004 briefing to begin to seek internal approval to post the revised protocol on the Registry once the pilot phase is completed. In its March 2005 update, MNR stated that “agencies currently are reviewing the process for posting the Protocol on the Registry.” As of June 2005, neither MNR nor MOE had posted a proposal notice about the 2004 protocol on the Registry.
Other developments
In May 2004, three Ontario Court of Appeal judges unanimously upheld the City of Kingston’s three FA convictions for allowing what has been described as a “toxic soup” to seep out of the city’s former landfill underneath the Belle Park golf course and into the Cataraqui River. The ECO had noted in our 2001/2002 annual report that decisions such as R. v. Inco (Ontario Court of Appeal, 2001) have effectively established a discrepancy between the high level of protection for fisheries waters available under the FA and a lower Ontario Water Resources Act (OWRA) level set out for other surface waters by the Ontario Courts. Several points on the FA and its relationship to the OWRA contained in the ECO’s 2001/2002 annual report were cited by the original prosecutor, Sierra Legal Defence Fund, in its appeal brief filed at the Ontario Court of Appeal. In early 2005, the Court of Appeal’s decision was upheld by the Supreme Court of Canada.
In October 2004, the Ontario government tabled Bill 133, the Environmental Enforcement Statute Law Amendment Act, 2004, in the legislature. Statements and press releases issued by MOE between October 2004 and April 2005 indicate that Bill 133 is intended to enhance quick enforcement action against large and medium-sized polluters and encourage businesses to take action to prevent discharges and spills. Proposed amendments to the Environmental Protection Act (EPA) and the OWRA will provide MOE with more extensive enforcement powers, require increased and improved reporting of spills and discharges, expose employees, corporations, officers and directors to greater liability and penalties, and broaden MOE’s ability to conduct inspections.
Bill 133 also proposes OWRA amendments that will lower the threshold for MOE to deem that water has been impaired and mirror the expanded enforcement provisions in the Bill 133 EPA amendments. The ECO had recommended in our 2001/2002 annual report that MOE amend the OWRA so that a level of protection equivalent to that found in section 36(3) of the FA is contained in Ontario water protection legislation.
In its March 2004 update to the ECO, MOE stated that “the OWRA is satisfactory in its present format as the OWRA allows for higher penalties, places responsibility on the regulated parties to provide notice to MOE of spills and allows for the issuance of orders” to ensure clean-up and compensation to victims. However, the first reading version of Bill 133, amended and passed in May 2005 by the Standing Committee on the Legislative Assembly, reflects a shift in thinking about the adequacy of the OWRA. The ECO will monitor progress on Bill 133 and intends to review the new law in a future ECO annual report.
In March 2005, MOE launched a prosecution of Imperial Oil in Sarnia, relying on s. 36(3) of the FA, after a ministry investigation of an alleged February 2004 spill of ketone solvents to the St. Clair River. While this use of the FA is welcomed by the ECO, it also is inconsistent with the 2004 protocol, because MOE is supposedly not a lead enforcement agency for the FA. MOE’s action in this case suggests that amendments to the 2004 protocol may be warranted to clarify exceptions.
| Recommendation 5:
The ECO recommends that MNR and MOE immediately post a proposal notice on the Environmental Registry and consult with the public on changes to the Fish Habitat Compliance Protocol drafted in 2004. |
| This is an article from the 2004/05 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2005. "Enforcement of the Fisheries Act." Planning our Landscape, ECO Annual Report, 2004-05. Toronto, ON : Environmental Commissioner of Ontario. 70-73.
