Changes to the Fisheries Act are garbage ..... O. Langer

[Cuba Libre]

From: Otto Langer

Subject: Bill C 38 meeting with MPs Kamp and Weston - Squamish BC.

Date: 27 July, 2012 3:39:49 PM PDT



To: DFO, MPs, ENGOs, First Nations, stream keepers, the media and all other Canadians interested in a healthy ecosystem and fish populations as supported by an intact habitat support system:
From: Otto Langer July 27, 2012


Attached are my notes of a key initial meeting with Harper Government MPs and a DFO representative to try an understand why the Harper government radically altered the habitat provisions of the Fisheries Act in Bill C 38 and what they now plan to do with that altered Act. These notes are more of a brief in that it is difficult to understand why the Harper government did this without public consultation nor any believable rationale to support their actions. I feel the various aspects of this Bill C 38 discussion must be documented in some format in that this weakened habitat protection version of the Act will come to haunt us in the next decade. My meeting notes are accompanied by my comments that are necessary to put the comments of MP Kamp and RDG Farlinger into their proper context. In the below notes, I have added my comments as (OEL italics ).

A Review and Commentary on a July 24th, 2012 Public Meeting Between MPs Randy Kamp (Secretary to the Minister of Fisheries and Oceans) and John West and DFO RDG Sue Farlinger in Relationship to the Neutering of Habitat Protection Provisions in the Fisheries Act.


On July 24, 2012, 18 of us from Squamish watershed area and Vancouver area (eg. Ecojustice, Watershed Watch, Squamish First Nations, local watershed council, stream keepers, etc.) met with MPs John Weston (West Vancouver - Squamish) and Randy Kamp (Maple Ridge and Secretary to DFO Minister Ashfield) to be consulted in the matter of implementing the habitat and other changes in the Fisheries Act as driven by Bill C 38 which received Royal Assent on June 29th, 2012.

The meeting was a local constituency meeting arranged by MP Weston but others like myself were invited to attend by local groups. In that Bill C 38 has caused such an uproar, Weston invited MP Kamp to attend to better explain what the Harper government had done to the Fisheries Act and where they were going next with the new Fisheries Act. The MPs were accompanied by 4 assistants and DFO RDG Sue Farlinger. The agenda was inflexible and it was not open preliminary consultations. It more appeared to be a matter of bulldozing the Harper agenda onto those attending the meeting.

Kamp took the lead with a PPt. presentation. He appeared very insecure in what he was saying or trying to 'sell'. He could not explain why the habitat sections of the Fisheries Act had been altered and why it was done without public consultation. He could not or refused to explain why the old Fisheries Act could not do what he said had to be done. A person sitting beside me noted that this was the most disengaging presentation he had ever seen. Kamp was obviously doing the dirty work of the government and did not have the where with all or the logic to explain their neutering of Section 35 of the Fisheries Act nor provide a believable rationale of how the new Fisheries Act would work. It appears to be a case of - this is what we have done - now we will consult with you so you can tell us how its going to be made to work? The naive were expected to believe that the old Act did not work and they had to change it to make it work more effectively and efficiently.

Kamp insisted that the radical changes to the habitat section of the Fisheries Act was good for Canada in that it will ensure more jobs and prosperity and better environmental protection. Kamp insisted that DFO now had fisheries protection "focus" and did not have to protect everything and all fish as they tried to do in the past. Kamp noted that he was "proud" of what the Harper Government had accomplished. He seemed to be very critical of DFO habitat staff and noted they "had not used discretion" and were "trying to protect everything" and had not applied "common sense". He insisted that " Bill C 38 takes us in a "new strategic direction" and provides a "new platform" to "move forward to promote jobs, prosperity and let us better protect the environment in a more focused and efficient manner".

The Power Point was not made available so here is an abbreviated summary:

Bill C 38 is now law -- Royal Assent June 29th, 2012.
The new Section 35 (a combination of Sect. 32 and 35 of the old Act) builds a foundation upon which to move forward.
It is a commitment to focus on the real threats to commercial and recreational and aboriginal fisheries to protect them more effectively and efficiently.
It will allow clarity on required regulations and enables the building of enhanced partnerships.
We will move away from the review of all projects in Canada - was up to 7000 a year and only 10% of that has to be authorized so DFO will just dwell on that smaller number of projects ie the 70 in Canada that are a serious threat to fish.
. We will now just look at projects that are a threat to commercial, recreational or aboriginal fish of value and will reduce overlap with the provinces.
The implementation of Bill C 38 as related to the Fisheries Act will come in two Phases.
Phase 1-- will take place over the next 6 months..
-Enhanced compliance and greater fines.
-Development of regulations.
-Development of partnerships.
Phase 2.
-Develop prohibitions , exemptions, etc. under the new Sect. 35 of the Fisheries Act.

Kamp then reviewed the new legal wording of Sect 35 and noted that some changes were also made to the Act related to stream passage, stream flow, ecologically significant areas and invasive species.
He then outlined:

Regulatory Tools
- regulations will streamline activities (approvals) and gain efficiencies
-will prescribe permitted works
-prescribe waters to be protected
-prescribe standards.
-exemptions and exclusions of types of works
-equivalency regulations (The new Act allows DFO to legally adopt standards developed by outside parties).
-develop invasive species regulations with the Provinces.
-will allocate fisheries to fund science in DFO.


The session then was opened to a few questions including:
Can we have a copy of the PPt presentation?
Will there be more meaningful consultations? Response - this is just preliminary. Formal ones to begin in the fall.
People were very riled up and wanted a better explanation of why this happened ie neutering of the fisheries habitat law etc.
Many of us noted that they had totally destroyed public confidence and trust in DFO and they had dug a deep hole for DFO and now they want to consult with us when we are totally different pages. The new Act is anti-ecosystem approach based even though DFO preaches their new ecosystem approach in the Cohen Inquiry.

RDG Farlinger then tried to answer questions generally directed at Kamp. She noted that:

DFO needs "enforcement elements" in authorizations in that DFO could not enforce conditions in past habitat harm authorizations. (OEL - this is simply not true. Many developers that did more damage than approved have been prosecuted prior to 2000. In addition DFO forced contracts on developers and obtained letter of credit or performance bonds. This was done after the BC government agency related to BC Place reneged on habitat cleanup in False Creek after Expo 86(1987) i.e. over over 25 years ago! Performance bonding began in about 2000).
DFO could not monitor what was happening so cannot protect habitat if it cannot be monitored. (OEL - this is very confusing and misleading in that the need for monitoring was well know decades ago. It was a key strategy in implementing the National Habitat Policy (No Net Loss) in 1986 - 26 years ago!. Fisheries Officers did much monitoring until DFO deliberately allowed them to pull out of habitat work in the 1990s and monitoring was drastically reduced. Much of this happened when when Ms. Farlinger was a senior manager in DFO. Fishery Officer habitat inspections decreased from 1800 inspections in 1998 to 300 in 2008. During that approximate time period habitat - pollution convictions went from 48 to 1 (one)! Also staff cuts were made a few years ago as part of EPMP 2006 - a program to cut referral reviews and allow more monitoring in that some of those jobs were converted into habitat monitors.
Had to develop bigger penalties in that courts would only apply minor penalties. Repeat offenders will be subject to bigger fines.(OEL - This is not true. The Act was amended 20 years ago so second offenders would get higher fines and even prison sentences. Also over a decade ago creative sentencing was added ie education and clean-up requirements etc. Why do you need higher fines for repeat offenders when you do not enforcement the legislation? Two years ago DFO cut the habitat expert witness training program. They said they did not need it because they were no longer doing enforcement work! Fines are often low but that is the result of guilty pleas and creative sentencing. However, overall fines to offenders have often been over $100,000. Simply doubling maximum fines does little to increase overall fine levels. Rarely if ever did I ever see DFO push for any maximum fine at any time in the past 43 years and I have been an expert witness in over 100 habitat and pollution trials across Canada.

 

[Cuba Libre]

Page 2..........

Must have standards to apply and its no use having standards if DFO cannot monitor what is going on. (OEL - a nonsense statement. DFO did monitor a great deal in the past and now have dedicated technical monitoring staff. Also Pacific Region DFO started to develop many standards in the early 1970s for roads, stream crossings, sediment discharges, logging, urban development, pipeline crossings, etc. In as early as 1970 DFO forced pipeline companies etc to hire monitors for DFO to direct! In the 1990s DFO put many Green Plan resources into a complete series of stewardship guides on foreshore development and facility construction, riparian protection etc. In about 2000 Ottawa insisted that standards had to be national in that the pipeline industry was complaining that the DFO requirements in Alberta were different than the BC DFO standard - its as though Alberta had rich populations of salmon! As part of 2006 EPMP (yet another new habitat initiative) DFO did develop national standards for all conventional industrial projects. The RDG seems to be unaware what was in place to allow industry to protect habitat and now feels the new Act will allow DFO to do what has been in place for up to 20 - 30 years. This is proof that there is no good rationale for the Bill C38 butchering of the habitat provisions of the Fisheries Act. Its too bad DFO cannot assess and be honest about what has been done and what is now going on. Starting in the mid 1990s I directed about a dozen habitat monitoring and audit reports for DFO. I am advised by Cohen Commission evidence that none have been done on any field projects after 2002.
Habitat and C&P have been working on an enforcement protocol for several years so that will help DFO do the job.(OEL Habitat and fishery officers used to function as a team and habitat staff were put into field offices alongside FOs in 1983 to work together under one boss. However, DFO management then let FOs back away from habitat work and FOs could now put more time into poaching, aboriginal etc issues. In the early 1990s Ottawa divided all fishery officers int into aboriginal officers, general officers and habitat officers. The habitat officers then lost their uniforms and became habitat technicians and were removed from habitat enforcement work. The uniformed officers then refused to do habitat work and this was a major set-back and for over 15 years DFO have been light heartedly trying to get the habitat and enforcement officers to work together. The enforcement protocol mentioned by Ms. Farlinger as described to the Cohen Commission is a paper exercise and after many years is still not in place and it has accomplished little. The statistics showing a near total lack of enforcement proves that. DFO alone has engineered the split between FOs and habitat staff and their joint habitat responsibilities.
Habitat cuts will not harm enforcement in that DFO did not cut FOs -- still have 170.(This is a misleading claim.. Note the above comments. The habitat enforcement program started falling apart about 15 years ago and the biggest habitat project in DFO is for managers to have hundreds of meetings, develop frameworks, develop assessments of frameworks, develop yet more internal MOUs while real field habitat enforcement has become a minor issue as shown by the statistics over the past 12 years. If their was a real Fishery Minister that cared about fish and fish habitat there would be a giant shakeup in DFO so as to make extremely simply programs work as they did in the 1970s and the 1980s.

 

[Cuba Libre]

Habitat staff will have habitat regulations and standards and that will cut out the guess work that has affected their ability to do the job. (OEL - life and life process (ie fish and habitat) cannot be condensed and confined into cook books for clerks to administer from computer terminals! This system actually evolved when DFO wanted a national habitat referral tracking system (1995). Soon staff were spending more time behind computers than in the field and they became somewhat estranged from habitat and fish. Research staff to help the field staff was dramatically cut. The DFO habitat protection guidelines guided staff for 30 years. Despite that a lack of standards was stated as a weakness in 2005 and national standards were developed. Now Ms. Farlinger says the new Act will allow this to happen. What is she talking about? If DFO hires good staff, any biologist with some basic training (lacking in DFO) should be expected to apply their education, experience and discretion how to protect habitat in most often very different circumstances. Such cannot be done by overly general standards that are largely left for industry to now follow and assure self compliance. The CEAA regulations were totally arbitrary bureaucratic rules and that destroyed discretion and undermined real habitat protection in many sensitive habitats. CEAA threshold triggers were set based on road or airplane runway length or on the amount of tonnage of gravel or rock taken out of quarry or mine. That often has next to nothing to do with impacts. Impacts occur when industry does the wrong thing in the wrong location ie in sensitive habitat areas. DFO, EC and the Harper government totally missed the boat in not identifying that problem or they applied selective ignorance to avoid that issue because industry insisted that DFO had to simply get off their backs so they could make more money more quickly. Industry also wanted the same simple solution to any habitat issue whether it was in Newfoundland or Vancouver Island ie ignore most fish species and what local fish need and ignore the fact that many habitats are unique and require unique solutions to protect them)

Kamp noted that DFO and EC can now use staff more effectively in that in the past they had to do everything for the CEAA process and now they can just focus on valuable fish. He said he Act was indiscriminate, staff tried to protect everything in an indiscriminate way and did not apply common sense. Unfortunately Ms. Farlinger said nothing to defend her staff. That was embarrassing in that DFO still has many good field staff that need support and do not deserve to be cut off at their knees for doubtful political gain. However as the well respected ex-DFO scientist Dr. Hartman says - ".. to be a director in DFO you have to learn to suck up and step down"! Although Mr. Kamp was unclear in his presentation he did seem to say the 'serious harm to fish' would now be a standard that would apply to the application of the pollution section of the Act i.e. Sect 36. This supports what DFO Minister Ashfield has stated in the press and in that none of us are aware of those changes to the pollution section of the Act this comment is most disturbing and needs clarification.

Weston then cut discussions and insisted we are not here to discuss the past but to look forward and help the government determine how the new Act will work. He then presented the group with a sheet of 10 questions that they were there to work on (attached).
The debate got nowhere on question #1 in that all argued that we had to first understand why we are here!

John Fraser (ex Mulroney DFO Minister and Speaker of the House) then demanded to know "Who demanded these changes to the Act -- name them! Was it Krause, oil and gas, foresters, who did it - did this start in DFO?. Give me the names". Fraser noted that he represented COFI for several years and every year COFI made a presentation opposing the habitat etc provisions of the Fisheries Act. Fraser also wanted to know what was wrong with the old Fisheries Act in that it had not stopped oil companies to develop to the point where they are now at in Canada i.e. they are thriving and rich!

Kamp etc refused to answer these direct questions but noted that over the years many have made complaints and presentations for changes to the habitat sections of the Act and DFO has held many consultation on this matter over the past many years. He denied that Enbridge had anything to do with Bill C 38 but said farmers come to us about DFO staff's indiscriminate use of the Act and their lack of common sense in the habitat program. A local stream keeper then noted that half of salmon production in the lower Squamish River area is in ditches in that land developers had made salmon streams into ditches. There was significant anger in the crowd and two individuals said they had heard enough and walked out.

(OEL -Mr.Kamp was again misleading with his comments. There has never been cross Canada open consultations with the public on habitat changes needed in the Fisheries Act. Indeed in 2006 and 2007 Canadians were ambushed by the same Harper Government approach in Bills C32 and C45. However at that time the DFO PPt. presentation (then made public) clearly stated "Modernizing the Fisheries Act - Bill C-32 There is a consensus that the Fisheries Act needs to be updated to reflect the evolving fisheries and the habitat management system such as: ......... Point 4 - Maintaining the habitat protection and pollution prevention provisions.".

Further when I released Bill C38 habitat changes to the public in March, a DFO manager called me to say this was impossible in that a DFO Ottawa senior executive was in Vancouver a month earlier and emphasized that the habitat provisions of the Fisheries Act would not be altered. How can any DFO consultations be trusted when they are meant to be misleading and they are willing to lie to their own staff. Another key senior DFO staff member said he/she was not aware of the habitat changes and they had never been consulted in any way. Further DFO staff recently advised me that they were getting no guidance from DFO on how they were to proceed with the new Act and the best guide they had on what this means indeed came from Ecojustice - an ENGO group!)

Kamp then said changes were made to the Act in accordance with the Aduitor General's recommendations and to address the issues identified by the Cohen Commission. (OEL This caused the crowd to shake their heads in disbelief in that the two year old OAG report on habitat did NOT suggest any such changes to the habitat section of the Fisheries Act and the Cohen Commission report is not due till September 2012. Unless Kamp has seen the Cohen final report, what he was saying was not believable.)

Farlinger than gave a statement about bringing the Wild Salmon Policy into line with the new Fisheries Act and talked about the great deal of public consultation that had gone into that policy and the long time it has taken her scientists to define what is a Conservation Unit. (OEL . What she said seemed out of context and reminding us that the WSP did do proper consultations in no way compensates for the complete lack of consultations on the new Section 35).

Weston then jumped to Question #3 (attached). Again the crowd protested this lack of proper consultation and the meeting was soon terminated . Weston asked a number to stay for a half hour more of open discussion At that session we told Weston that the Conservatives had to be honest and admit they made a mistake and they had to look at the new Act and make the necessary changes to make it work to protect habitat. Weston felt we should just assume that this new fisheries law will work and now move forward by helping government define what it means and provide input into the next phase of implementation - regulation development etc.

 

[Cuba Libre]

Conclusions:
If one is to give any credit to the speakers at the session, credit can only go to Weston. Despite the pathetic efforts of the Harper government to neuter the habitat provisions of the Fisheries Act and now try and put a sugar coating on vinegar, Weston is at least consulting with his constituents on this hopeless situation. In other constituencies like Richmond I have certainly not seen any of the Conservative MPs attempt to meet with the public on this issue at any time.

Regardless of all attempts made to avoid consultation on the Bill C 38 process, we must keep pressure on this highly industrial partisan move by the Harper government. They have to be held accountable so people will remember what they have done for the next election. I feel the planned DFO consultations that are to make sense of the new Section 35 of the Act will be more of what he saw at Squamish - more misinformation, wishful thinking and bulldozing of the Harper agenda. They have neutered the Fisheries Act that could do everything that they say the new Act is designed to do. However they have needlessly added new concepts and terms that will take years to define and they appear to not have been designed to proactively protect the aquatic ecosystem and now they ask the public to help define the terms they have used (ie what is 'permanent damage'?) and want to get advice on how to make it work. Should this not have been done before Bill C 38 entered Parliament? They will now ineptly try an manufacture a silk purse out of the adipose fin of a small mountain trout - a fish of no value to society!

Life is indeed odd. Back in the mid 1990s we developed the Green Plan for the Fraser River and the Habitat Plan for Pacific Region. In it we emphasized the need and obtained resources from the Conservative Mulroney government to do things differently ie reduce the number of DFO project reviews and put more effort into proactive eduction, stewardship and research and develop legal partnerships to do the job via industrial stewardship programs. DFO had to make better decisions and then monitor and audit what was being accomplished and to make it all work, the program had to be supported by an enhanced enforcement program.

DFO managers instead stole the resources of this and sister special programs and hired more staff to do more project reviews - most of those staff have been or are now being laid off. Management of the day simply did not do their job and the leadership in the system failed the fish and the public trust. When Judge Williams did his Inquiry on yet more missing sockeye, the RDG testified that the old ways did not work and DFO was going in a new direction - the 2006 EPMP initiative. Despite that was 6 years ago, now DFO says they again failed and are yet going in another new direction.

One has to remember that this happened several times in the past ie in 1976 we pushed for the passing of a habitat law to go in a new direction. Then in 1986 we had to have a no net loss policy to provide guidance on the application of that law 1986.. These were very good initiatives but DFO and the political leaders gave up on this approach in about the 2000 time period and in the 2004-2006 period were signing agreements to mine the gravel in the fish habitat of the Fraser River, sign a habitat partnership agreement with the biggest industrial lobby organizations in Canada so as to keep industry happy and address the political imperatives of the new Harper era - develop industry at any cost.

It appears that quality of life and being part of a healthy ecosystem is not now a key part of our new Canadian prosperity. Any consultations on making a seriously flawed Fisheries Act work when it is designed to not protect many species of fish and many habitats is a questionable exercise if you value your time and really want to help fish communities survive until we can reverse some of these terrible legislative and political setbacks. One's time can better be spent documenting what is not being done by DFO and making that an issue for the next election! It is a cruel hoax for the Harper Government representatives to ask us to pretend to make a Conservative silk purse out of a salmonid's adipose fin!

Otto E. Langer
Fisheries Biologist and Aquatic Ecologist.
July 27, 2012

-as DFO used to say "No Habitat - No Fish!"


Now I know some of you will groan and say "I am not reading that crap--- its too long." Well- I would suggest that if you love our sport, its a worthwhile use of your time. Remember this at the next election as we have been played for fools.... CA

 

[Labman2]

Yup, played me for a fool for sure, sweet talked me with the long gun registry being killed off, where is that at by the way, and after the last Liberal money/buddies debacles I willingly fell for the B.S. being spouted out of Harpers a..hole!
NEVER AGAIN Stevie!!!

 

[Englishman]

Thx for posting this Cuba L. I read it all......!! LOL
Otto Langer has done a great job of analysing and exposing the fact that "Emperor Harper has no cliothes". The conservatives simply neutered and abrogated on habitat protection for the great god Enbrridge. They (and DFO apparently) have no idea how the new legislation is going to work or what some of the details actually mean!
As Otto says, there is no point in particpating in any window dressing "consultations" now as the damage cannot be contained that way.

Three action steps now:-
Short term - STOP the EnbridgG Northern gateway pipeline. I heard an item on CBC radio today saying that former fisheries Minister David Anderson said "there is no amount of money that can make this project safe". He at least is willing to stand up and say BC culture, heritage, environment and legacy is Not For Sale at any price. (Christy Clark please note). The same news article also said that the Chief of the Union of BC First Nations said his people would stage blockades and stand in front of bulldozers if necessary. In this fight, the First Nations are our major friends and allies, despite our differences over fisheries allocation and policies. If the pipeline goes through, there won't BE any salmon fisheries in BC to argue about!!
Medium Term- Get Harper OUT!!
Longer term: Repeal the dreadfull BILL C-38

 

[Little Hawk]

Otto is a 'Saint' and well qualified to comment on these issues.

It appears the Indians are now doing the War-dance in preparation for outright confrontation with Harper to try to help stop this Enbridge assualt on BC.

This fight is far from over...