The Federalization of Prairie Freshwaters

Research Paper, Environment, Robert Sopuck

Executive Summary

The federal and provincial governments share jurisdiction for the management of some natural resources and the environment. This overlapping authority has created confusion and spawned jurisdictional conflicts which have substantially raised compliance costs for the communities affected.

The protection of fish habitat is a policy goal over which the federal government has now assumed full responsibility after negotiations to transfer jurisdiction to the provinces failed. The legislative vehicle is section 35. (1) of the Fisheries Act which gives the Fisheries and Oceans Canada (FOC) sweeping regulatory powers over all inland waters, including those on the Prairies. It states: “No person shall carry on any work or undertaking that results in the harmful alteration, disruption, or destruction of fish habitat.”

The sweeping language in this sentence probably makes it the most powerful piece of legislation directed at environmental protection in Canada. While well-intended, its broad scope gives it the potential to hinder opportunities for rural development and slow a positive process of diversification and economic adjustment now underway on the Canadian Prairies. The damage it may cause will add to the regional resentment already aroused by recent federal policies like the proposed Species at Risk Act (SARA) and the firearms registry, initiatives that rural communities view as particularly intrusive.


  • Uncertainty – This program introduces more uncertainty into the development process in Prairie Canada, especially for rural communities. It is now unclear whether the Provinces or local communities have jurisdiction over natural resource development.
  • Wide Scope – The definition of fish habitat now includes entire watersheds and extends the reach of the federal government into policy areas such as watershed and land-use planning in which FOC has little expertise.
  • Lack of Discretion – The program removes any regulatory discretion, since all fish habitat is considered “important.”
  • Lack of Knowledge – Since fish populations are poorly studied, all waterbodies will probably be assumed to be fish habitat until proven otherwise. This will place a cloud over any development that might impinge on fish habitat, which is to say virtually all development.
  • High Compliance Costs – Costs of compliance are not considered. For poorer communities this is a major burden.
  • Adds to Regulatory Burden – The new FOC program is layered on top of other regulations like the proposed Species at Risk Act. Thus the regulatory burden, focused especially on rural communities, is increasing exponentially.

  • Threatens Existing Conservation Programs – The FOC program may well place current agricultural conservation programs at risk by its single-minded focus on fish which could inhibit active and successful environmental management programs.


If we continue with the current approach and staffing infrastructure:

  • Remove drainage ditches and flood control infrastructure from FOC jurisdiction;
  • Require FOC to conduct a “Regulatory Impact Assessment” of the new fish habitat initiative on a project-by-project basis;
  • Assess the “importance” of a given fish population and community and determine a level of regulatory effort proportionate to that “importance”;
  • Improve the efficiency of the regulatory process and ensure that water management projects important to rural communities be allowed to proceed expeditiously; and
  • Create an Advisory Board, appointed by the Minister, comprised of citizens, experts and elected officials to advise FOC on methods and procedures of implementing this program.

FOC becomes a partner in existing stewardship programs:

  • FOC largely abandons the regulatory approach, leaving those efforts to existing environmental processes;
  • Since all stewardship programs have “water” components, FOC takes a partnership role in such programs as the North American Waterfowl Management Plan, riparian conservation efforts and Conservation Districts;
  • FOC funds the fish conservation components of these various programs;
  • FOC improves the knowledge of fish communities and use that knowledge to improve existing stewardship programs; and
  • FOC develops a strong extension component to transfer knowledge to rural communities and, especially, farmers.

Provinces be given the responsibility for fish habitat:

  • The Provinces are the closest level to the affected citizens and communities, and their Fisheries Departments have depth of knowledge of local conditions;
  • FOC focuses its efforts on providing scientific and technical advice to the relevant provincial agencies and departments.

An intelligent and flexible approach to regulation is required to assist the economic adjustments now underway on the rural Prairies. The federal government has an opportunity to retrieve much lost goodwill in Western Canada by implementing a more balanced and sensitive fish habitat conservation policy on the Prairies.

Full Text of Policy Series No. 10 – (PDF, 13 pgs, 306 Kb)