From ‘Badly Wrong’ to Worse: An Empirical Analysis of Canada's New Approach to Fish Habitat Protection Laws

Abstract

It has been three years since Canada’s Conservative government fundamentally altered some of Canada’s most important environmental laws, including the habitat protection provisions of the federal Fisheries Act. Whereas the previous regime technically applied to all fish habitat in Canada and offered a broad level of protection against most types of impacts, the new regime purports to focus on the habitat of fish that are part of, or support, commercial, recreational or Aboriginal fisheries. The new regime also reduces the level of protection for such habitat. In order to gain some insight into the difference between the previous and new regime, this paper contains an analysis of the primary permitting vehicle in this context, the Fisheries Act section 35 authorization. One hundred and eighty-four authorizations issued by the Department of Fisheries and Oceans’ two largest regions over a six month period for the years 2012, 2013, and 2014 were analyzed. In order to help frame the analysis and provide additional baseline information, twelve statutorily-required annual reports to Parliament on the administration and enforcement of the habitat/fisheries protection provisions were also analyzed (2001/02-2013/14). With an almost sixty percent reduction in authorization activity from 2012 to 2014, the results suggest the further erosion of an already deeply flawed regulatory regime and the federal government’s near-total abdication of responsibility for the protection of fish habitat over the past decade. The results also shed light on several challenges in modern environmental law, including slippage and risk-based approaches to regulation.

Keywords: environmental law, environmental policy, habitat protection, risk-based regulation, empirical legal research, enforcement

JEL Classification: K32