Something Fishy This Way Comes

Commentary, Environment, Frontier Centre

A new regime of direct federal control over inland waterways, imposed by fiat from Ottawa, is about to descend on the Prairies. Folks in rural areas are less than thrilled by the prospect of strangers from Fisheries and Oceans Canada (FOC) snooping through their drainage ditches and issuing peremptory orders.

“Farmers aren’t looking forward to the arrival of FOC inspectors in Manitoba,” comments the Manitoba Co-operator, a Manitoba farm newspaper. “Producers worry the FOC will inalterably change the way they do business, demand costly improvements to farms and generally be unfriendly to agriculture.”

The new federal policy is particularly galling to Prairie dwellers for two reasons. First, they see it as totally unnecessary. The Natural Resources Transfer Act of 1939 gave all natural resource jurisdiction and ownership to the provinces. Rightly assuming they owned and had the right to manage freshwater resources and inland fisheries, the provinces performed the function competently – probably because they had better local knowledge than distant Ottawa bureaucrats. The new system will exacerbate the regional resentment that stems from federal intrusions like the firearm registry and the proposed Species at Risk Act.

Second, and more important, the new order threatens to impose a form of “rubber law” that could have drastic effects on the rural economy.

Not one word of the law itself has changed. The provinces had de facto authority to administer Section 35 (1) of the Fisheries Act, which states: “No person shall carry on any work or undertaking that results in the harmful alteration, disruption, or destruction of fish habitat.” Two years ago, after the failure of lengthy negotiations to transfer de jure responsibility for enforcement to the provinces, Fisheries and Oceans Canada decided to act unilaterally. This arbitrary change, implemented by bureaucrats without any input from Parliament, was backed by environmental activist groups very aware of the “development stopping” power of the Fisheries Act.

Section 35(1) is very powerful. The definition of fish habitat includes entire watersheds and extends the reach of the federal government into as yet undefined areas of land-use planning. Since FOC officials say they consider all fish habitat “important”, the program does not allow for any flexibility (i.e. common sense) on their part. So it looks as if man-made drainage ditches will be magically transformed into vital habitat to be regulated by FOC. Since fish populations are poorly studied, all water bodies will probably be assumed to be fish habitat until proven otherwise.

Even though the change was decided in 1999, it’s taken considerable time and money for FOC to assemble its new regulatory staff. In the case of the Prairie provinces, personnel and implementation costs are estimated at $11 million annually. Of that, $ 4 million will be spent in Manitoba just to enforce Section 35 (1). By way of comparison, this is larger than the entire Fisheries Branch budget within the Manitoba Department of Conservation.

There is, however, no cash available for affected communities to pay for compliance costs. According to senior FOC staff, they will not be considered at all. This represents a major burden to poorer municipalities already wary of the regulatory costs mandated by the Species at Risk Act. The combination will affect them exponentially. “I believe there will be some problems and I think it could hold up a lot of infrastructure projects,” says Wayne Motherall, president of the Association of Manitoba Municipalities.

The biggest crop killers on the Prairies are lack or surplus of water. A late spring combined with early rains can turn otherwise productive land into a sea of muck. For years, rural municipalities have worked with farmers to build extensive drainage systems that contain the damage. Now any change may have to await the imprimatur of the fish saviours.

At first, FOC maintained the new program would be neutral. A spokesperson said it “won’t have much effect on the average farm.” But Kathy Fisher, a Manitoba FOC spokesperson, has admitted the opposite to the Co-operator: “Fisher conceded many farm-related improvements can be expensive and could harm individual farm operations. She said that FOC still plans to lobby the federal government to provide funds for such transition efforts. But she said there is no money available directly from the FOC or federal government.”

The threat seems real enough to municipal councils, barely able to keep up with current demands and now faced with additional regulation. It is now unclear as to what, if any, jurisdiction the provinces or local communities will have over natural resource development. The anxious, negative reaction from most rural groups reflects their belief that the new program will hinder opportunities for development.

People on the Prairies love fish, they’re a staple of most diets. Legions of anglers inject millions into rural economies every year. Paradoxically, the FOC program’s single-minded focus on fish may place current conservation programs at risk. John Whitaker, a fisheries biologist appointed by the Manitoba NDP to the Livestock Stewardship Initiative, says, “I just hope the FOC activities don’t undo the good work being done out there by producer groups and conservation groups.”

After years of work, fish conservationists on the Prairies have formed environmental partnerships with farm groups. Their stewardship has paid off because it aligns the incentives of groups that, on the surface, appear to have competing interests. For example, new grazing-management systems, devised by conservationists and cattle producers working together, have improved wildlife habitat, protected water quality and increased cattle weight gains. All stakeholders have come out winners- without the intervention of costly third-party bureaucracy. If FOC wants to succeed in protecting fish habitat, it should drop its “enforcement culture” and adopt an incentive-based approach.

Fisheries and Oceans has traditionally exercised authority over both ocean- and anadromous fish (the latter being those that migrate between freshwater and marine environments, like salmon and eels). As any student of the cod and salmon fisheries can testify, Ottawa has botched the job in both aspects of its mission – improving habitat and ensuring adequate stocks.

A new Frontier Centre paper, The Federalization of Prairie Freshwaters (see, explores whats needs to be done in order to mitigate the effects of FOC’s new powers:

  • Remove drainage ditches and flood-control infrastructure from the jurisdiction of FOC;
  • Require FOC to conduct a “Regulatory Impact Assessment” of the new fish-habitat initiative on a project-by-project basis;
  • Require FOC to determine the “importance” of a given fish population and the level of regulatory effort proportionate to that “importance”;
  • Improve the efficiency of the FOC’s regulatory process to ensure that important water-management projects, like flood control, proceed expeditiously;
  • Create an advisory board, appointed by the minister, comprised of citizens, experts and elected representatives to advise FOC on methods and procedures of implementing this program.

Ideally, of course, FOC should immediately return inland fish-habitat management to the provinces. Given the nature of Canadian politics, however, there is little chance this quiet federal coup d’état can be reversed.