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Fish, Pollution, and The Rule of Law

In Canada, all persons are duty-bound to comply with the laws of the land. No one is above the law, and the “mistake of law” defence has long been rejected by Canadian courts when people are charged with contravening legal prohibitions.

In general terms, laws are intended to safeguard the public interest and reflect societal values, such as protecting public health and safety or ensuring ecological sustainability. For example, the federal Fisheries Act appropriately prohibits the deposit of “deleterious substances” into water frequented by fish (subsection 36(3)).

This common sense anti-pollution provision was enacted by Parliament to protect water quality in order to sustain fisheries from coast to coast to coast in Canada. Persons convicted under the “deleterious substance” prohibition potentially face large fines, imprisonment, restoration orders and other penalties available under the Fisheries Act.

This key prohibition has long existed in the Fisheries Act, but its effectiveness and wide application is now being systematically whittled away by the current federal government. In 2012, for example, the legislation was controversially amended to give Cabinet and the Minister of Fisheries and Oceans the express power to make regulations which exempt certain discharges, waters, works or activities from the “deleterious substance” prohibition.

In 2014, the federal government has purported to exercise this new power by proposing regulations that generally establish the groundwork for exempting broad categories of activities (i.e. aquatic application of pesticides for fish farming purposes) from subsection 36(3) of the Fisheries Act. The regulatory impact statement that accompanies this proposal concedes that the rationale for the exempting regulations is to provide greater certainty to proponents, encourage investment decisions, and facilitate business development.

Scientists, environmental groups and other stakeholders across the country have strongly opposed this regressive exemption proposal under the Fisheries Act. CELA’s recent brief to the federal government especially criticizes the open-ended proposal that would allow the Minister to wholly exempt “deleterious substance” deposits from activities which, in the Minister’s opinion, are being managed by other federal or provincial authorities.

In CELA’s view, the practical problem with this delegation approach is that other federal agencies, boards and commissions do not possess the specialized expertise and experience of Fisheries and Oceans Canada (and Environment Canada) in interpreting, administering and enforcing subsection 36(3) of the Fisheries Act.

Moreover, while some industrial activities involving “deleterious substance” deposits may be coincidentally subject to provincial licencing regimes, the provinces are not constitutionally competent to enact fisheries legislation. Under the Constitution Act, 1982, the federal government has been assigned exclusive jurisdiction in relation to sea coast and inland fisheries.

Accordingly, CELA regards the exemption proposal as an ambiguous, ill-conceived and highly objectionable attempt to fundamentally change the long-standing legislative framework intended to protect fish and their aquatic habitats across Canada.

CELA concludes that there is far more business certainty – and public interest protection – if the national prohibition in subsection 36(3) remains fully intact and firmly enforced against all sectors in a timely, consistent and effective manner. In short, the rule of law should not be undermined by a dubious patchwork of discretionary exempting regulations that may only benefit certain private companies (or their shareholders) to the detriment of the overall public interest in ensuring clean water and sustainable fisheries.