Climate change and oil economics threaten Canadian fisheries industry

In its July 2019 report, the Expert Panel on Climate Change Risks and Adaptation Potential identified fisheries as one of the top “domains” at risk from  climate change between 2020 to 2040 in Canada.  The experts recognized the complexity of the issue, stating: “the economic, social, and cultural context varies across Canada’s fisheries, and the choice of adaptation measures should be informed by the local situation …. Adaptation can be particularly challenging for communities that rely heavily on a single fishery, and can have widespread economic and social consequences…. A combination of approaches, including catch quotas, community management, regulations on fishing gear, ocean zoning, and economic incentives, can help manage and restore marine fisheries and ecosystems.”

ocean law developmentsOcean Law Developments in Canada 2015-2019  , published at the end of August, summarizes the significant legal progress that has been made in four relevant areas of regulation: ocean governance, protection, marine protection, and marine spills . Improvements noted in the report: the G7 Ocean Plastics Charter; Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean; the Coastal First Nations Fisheries Resources Reconciliation Agreement; creation of eight new Marine Protected Areas; Bill C-55,which amended the Oceans Act and the Canada Petroleum Resources Act; the new Oil Tanker Moratorium Act, passed in June 2019; orders issued under the Species at Risk Act to protect the critical habitat of orcas, Right whales, bottlenose whales, belugas, leatherback turtles, abalone and seals; a series of measures to protect orcas on the West Coast, and rolling fisheries closures and seasonal speed restrictions in the Gulf of St. Lawrence to reduce industrial pressure on North Atlantic Right whales;  new Fisheries Act, which among other things, includes prohibitions on habitat alteration, damage and destruction (HADD). The report was published by SeaBlue Canada , an alliance of the Canadian Parks and Wilderness Society, David Suzuki Foundation, Ecology Action Centre, Oceans North, West Coast Environmental Law, and WWF-Canada, dedicated to protection of the oceans.

Will these changes be sufficient for the scale of the problems faced by Canadian fisheries industry?  While general reaction to the legislative changes has been favourable, as reviewed in this May article from the National Observer, many problems remain.

Fish or Oil for Newfoundland?

offshore oil rigOn September 5, CBC News reported on a press conference from Atlantic Canada, with the headline: “FFAW vows to stop oil and gas exploration in crab fishing area”.  The Fish, Food and Allied Workers union ( FFAW), a division of Unifor,  claims that oil interests were again put ahead of the interests of the fishery,  when the regulator, the Canada-Newfoundland and Labrador Offshore Petroleum Board , opened bids by  oil companies for offshore areas in August.  The union is demanding that the bidding process be halted, claiming that it was not consulted, even though the call threatens prime fishing areas on which their livelihoods depend.  In November 2018 FFAW also protested when the C-NLOPB approved five successful bids by the oil and gas industry which, in two cases, allowed oil and gas exploration in marine refuge areas where fishing activity was restricted.

In August, the Federation of Independent Sea Harvesters of Newfoundland and Labrador (FISH-NL), which represents independent inland fishers, supported a call for an independent authority to oversee the environment in the province’s offshore oil and gas industry.  In spite of the C-NLOPB statement   that “Offshore safety and environmental protection are paramount in all Board decisions. “, the Sea Harvesters concern  seems understandable, given the recent history of oil spills from the Hibernia offshore oil platform in August, just days after it had resumed production following a spill in mid-July, and after the largest oil spill in Newfoundland’s history in November 2018.  The Federation of Independent Sea Harvesters have also protested the damage done by the seismic testing related to oil exploration, as described by iPolitics in “Seismic testing concerns ignored in oil ‘obsessed’ NFLD and Labrador: union”   in April 2018.

West Coast salmon fishery and First Nations communities face “the worst commercial fishery in 50 years”

On the West Coast, the State of Canadian Pacific Salmon 2019: Responses to changing climate was published by Fisheries and Oceans Canada, summarizing a 2018 workshop of scientists which discussed the impacts of marine heatwaves, changes to marine food webs, warmer freshwater conditions, more extreme rain and drought, and various human activities. It concludes that “No single factor can explain all of the recent observed patterns in salmon abundances. Along with ecosystem changes, fisheries, hatcheries, disease, and contaminants can also affect salmon.”  On September 6, the Minister of Fisheries and Oceans announced $15 million in additional annual funding to support wild Pacific salmon research and management, but meanwhile, 2019 has been reported as the worst commercial fishing season in 50 years, in  “Advocates sound alarm on unfolding disaster in B.C. salmon fishing industry” (CBC, Sept. 9)  and  the Globe and Mail published  “Labour and First Nations groups call for federal disaster relief for West Coast Fishery” (Sept. 9)  which states:  “As well as wanting immediate relief for struggling workers, the groups called on the federal government to develop a long-term strategy to conserve wild salmon in the face of climate change, which they described as a dire and growing threat to the species.”

Some of the “other factors” at play in the salmon crisis in 2019:  a massive obstruction of the Fraser River, caused by a rockslide ; sea lice infestation from farmed salmon (see “Sea Lice Plagues Return and Threat to Wild Salmon Increases” in The Tyee (June 11);  and shipping dangers, described in “Fraser River Chinook jeopardized by shipping terminal’s expansion” (July 29  ) in the National Observer.

Nova Scotia announces consultation for coastal protection legislation

lighthouse in nova scotia

Lighthouse at Brier Island, Nova Scotia, from Government of Canada website

Just after the Nova Scotia Minister of Energy  announced   funding for geoscience research on June 20 to support the $11.8 million Offshore Growth Project to encourage oil and gas development, the Minister of the Environment made good on an election promise from 2017 with the  launch   of a consultation process to consider coastline protection, allowing  the period from June 26 to August 17  for the public to respond to an online survey.   Discussion will focus on The  Coastal Protection Legislation: Consultation Document , which addresses the complexity of the legislative situation – both federal and provincial legislation – and  addresses three questions: 1. How to define a “Coastal Protection Zone” ?  2. How to restrict certain activities within the Coastal Protection Zone? and 3. What provisions are required for monitoring and compliance?   The document states:   “Fishing and aquaculture will be exempt, but how do we define this exemption? What other economic activities must we keep out of the way of?”

The Ecology Action Centre in Halifax announced the consultation with this neutral press release  ;  CBC News summarized it with “Nova Scotia seeks public input on legislation to protect coastlines” CBC News, and the Halifax Chronicle published an Editorial on July 3,  “Coastal construction rules needed to curtail climate calamities” , calling for the government to allow more time for public input.

National Energy Board is a casualty of Canada’s new legislation for environmental assessment

On February 8, following 14 months of consultation and review, the Minister of Environment and Climate Change introduced the mammoth Bill C-69 An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts  . The government press release from Environment and Climate Change Canada highlights these talking points about the proposed legislation-  It will:  Restore public trust through increased public participation; Included transparent, science-based decisions; Achieve more comprehensive impact assessments by expanding the types of impacts studied to include health, social and economic impacts, as well as impacts on Indigenous Peoples, over the long-term. Also, it promises  “One project, one review” – through a new Impact Assessment Agency, (replacing the Canadian Environmental Assessment Agency) which will be the lead agency, working with a new Canadian Energy Regulator (replacing the National Energy Board), as well as the Canadian Nuclear Safety Commission and Offshore Boards.  Further, it will make decisions timely; Revise the project list; Protect water, fish and navigation ; and Increase funding.  The detailed government  explanation of the changes  is here ; other summaries appeared in the National Observer in “ McKenna unveils massive plan to overhaul Harper environmental regime”  ; “Ottawa to scrap National Energy Board, overhaul environmental assessment process for major projects”   in CBC News; and in the reaction by The Council of Canadians, which expresses reservations about the protection of navigable waters, and these “Quick Observations”:
“1- the current industry-friendly Calgary-based National Energy Board would be replaced by a proposed Calgary-based (and likely industry-friendly) Canadian Energy Regulator
2- it includes the ‘one project, one review’ principle as demanded by industry
3- assessments of major projects must be completed within two years, a ‘predictable timeline’ also demanded by industry
4- the bill notes the ‘traditional knowledge of the Indigenous Peoples of Canada’ but does not include the words ‘free, prior and informed consent’, a key principle of the United Nations Declaration on the Rights of Indigenous Peoples
5- McKenna said that no current projects (including the Kinder Morgan pipeline which crosses more than 1,300 water courses) would be sent back to ‘the starting line’
6- the government is seeking to implement the law by mid-2019.”

An overview of other reaction appears in   “New Federal Environmental Assessment Law Earns Praise from Climate Hawks, Cautious Acceptance from Fossils” from the Energy Mix.  Reaction from West Coast Environmental Law (WCEL) is here ; and from  Environmental Defence here .  The Canadian Environmental Law Association sees some forward progress but warns that “the Impact Assessment Act is marred by a number of serious flaws that must be fixed in the coming months.”    Reaction from the Pembina Institute says “Today’s legislation improves the federal assessment process by centralizing authority for impact assessment under a single agency; providing a broader set of criteria for assessing projects including impacts to social and health outcomes; and removing the limitations on public participation that were put in place in 2012…. Building on today’s legislation, we would like to see progress towards the establishment of an independent Canadian Energy Information Agency to ensure that project reviews include Paris Agreement-compliant supply and demand scenarios for coal, oil and gas.”

Companion legislation, also the product of the lengthy Environmental Regulation Review, was introduced on February 6, Bill C-68 An Act to amend the Fisheries Act and other Acts in consequence  (Press release is here ; there is also a Backgrounder comparing the old and new legislation). Most importantly, Bill C-68 restores a stronger protection of fish and fish habitat – the HADD provision – to the definition used before the 2012 amendments by the Harper government. (HADD = the harmful alteration, disruption or destruction of fish habitat).  Reaction is generally very favourable:   The David Suzuki Foundation says : “The most important changes we were looking for are part of these amendments” and West Coast Environmental Law says that the proposed legislation   “meets the mark”.  Reaction is also favourable from the Ecology Action Centre in Halifax . And from the Alberta Environmental Law Centre, some background in “Back to what we once HADD: Fisheries Act Amendments are Introduced” .

no consentAnd finally, where does the new environmental assessment process leave Canada’s Indigenous people?  The new legislation includes the creation of an Indigenous Advisory Committee and requires that an expert on Indigenous rights be included on the board of  the new Canadian Energy Regulator body, according to a CBC report, “Indigenous rights question remains in Ottawa’s planned environmental assessment overhaul” . Minister McKenna is also quoted as saying the government will “try really hard” to conform to the principles of the UN Declaration on the Rights of Indigenous Peoples   – a statement that is not satisfactory to some Indigenous leaders.    See “Indigenous consultation and environmental assessments” (Feb. 7)  in Policy Options for a discussion of the issue of “free, prior and informed consent”.  On February 7, Private member’s Bill C-262, an Act to Harmonize Canada’s Laws with the United Nations Declaration on the Rights of Indigenous Peoples passed 2nd reading in the House of Commons.

Reports re environmental regulation arrive to positive response – next up in May: the Expert Panel on modernizing the National Energy Board

The Government of Canada launched four reviews of government environmental and regulatory processes in June 2016, and recently, the appointed Expert Panels have begun to deliver their reports.  The Report of the Parliamentary Standing Committee on Fisheries and Oceans  was released on February 24   – to a welcoming review by West Coast Environmental Law:  “We are pleased that the Committee has listened – to First Nations, to conservation and community groups, to scientists and concerned citizens across the country – and has recommended reinstating the Fisheries Act’s key prohibition on habitat alteration, disruption and disturbance .

Canada 2017 expert panel report building-common-ground-pdfThe Report of the Expert Panel on Environmental Assessment was released on April 5, and is open for public comment – only until May 5 at www.letstalkea.ca/.  The report, Building Common Ground: A New Vision for Impact Assessment in Canada   incorporates a fundamental idea in its title:   what is now “environmental assessment” should become “impact assessment”.  The Panel recommends that:  an Impact Assessment Commission should be established as an independent, arm’s length government agency, “with a broad leadership mandate to conduct project, region-based and strategic-level assessments.  …. The Commission would also be mandated to generate its own independent science so that assessments are evidence-based and agency-led… and the Panel should commit to  ensuring that the projects are not developed without the early involvement of potentially affected Indigenous peoples and the public. ”

One  of the first responses to the Expert Panel comes from Chris Toellofson at the Pacific Centre for Environmental Law and Litigation (CELL) , who states: “the Panel deserves kudos for both for its ambitious commitment to process, and the innovative and balanced way it has charted the law reform road ahead.” The article continues with a thorough summary and analysis of the report, including: “Our biggest concern with the Report is that it has mainly focused on procedures, values and governance – and has therefore not engaged with some of the substantive legal tests that must be embedded in a federal assessment law to give it real traction. For example, the Report does not address the need for assessments to include “worst case scenario” modeling, and only briefly touches on the need for “alternatives” assessment. These legal requirements, as our experience in the Northern Gateway, Kinder Morgan, and Pacific NorthWest LNG reviews underscore, can be of critical importance, both scientifically and legally.”

WCEL env assessment summit coverWest Coast Environmental Law (WCEL) also responded positively though briefly, calling the report “not perfect but a step in the right direction”, and calling on the government to translate the recommendations into law quickly.  WCEL had convened a Federal Environmental Assessment Reform Summit meeting in Ottawa in May 2016, attended by approximately 30 of Canada’s leading environmental assessment experts, academics, lawyers and practitioners.  The summary of those discussions  was published in August 2016, and offers a context for any review of the recommendations of the government`s Expert Panel report.

Next up in May:  the Report of the Expert Panel regarding the Modernization of the National Energy Board , scheduled to be delivered to the Minister of Natural Resources on or around May 15, 2017.   Anticipating that release,  Ecojustice published a blog,  Modernizing the National Energy Board : Let’s get it right  on April 4, which states : “Today, the NEB is riddled with systemic failures. Some of the most glaring problems include, no flexible timelines for reviews, lack of inclusive public participation, and limitations on public hearings such as no cross-examination and no meaningful consideration of climate change impacts…The NEB, as we’ve come to know it, is dominated by industry insiders and conventional industry perspectives. As a result, it fails to objectively evaluate the need for, and the consequences of, new oil and gas projects. As we transition to a decarbonized energy system in which we are less likely to build new oil and gas infrastructure, the NEB’s role — chiefly concerned with regulating oil and gas and in particular interprovincial and international pipelines — should diminish. In other words, the NEB should get out of the business of environmental assessment….  The NEB’s function should be limited to technical matters traditionally within its regulatory expertise (related to pipeline safety, for instance). It could also turn its attention to technical plans for decommissioning and remediating energy infrastructure, such as pipelines, that are redundant in a decarbonizing economy.”

Brexit is seen as a turning point for UK Climate Change Policy

On February 22, the new  Greener UK coalition released  a manifesto, calling on the UK government to use the Brexit process as an opportunity to restore and enhance environmental protections in the UK. The Manifesto for a Greener UK follows the release on February 14 of a  House of Lords report, Brexit: Environment and climate change.  For a discussion of the basic issues of concern, read “Brexit will be a pivotal moment for the UK’s environment” (December 2016), and read also Greener UK’s Pledge for the Environment, which has been signed by over 145 Members of Parliament  from all parties. Greener UK has also prepared a Briefing Note for Members of Parliament: The repeal bill and a greener UK: Maintaining a greener UK as the UK exits the EU.  Follow developments on the Inside Track blog, published by Green Alliance.

One of the key proposals of the February  Manifesto is that Britain should continue to show climate leadership, to co-operate with the EU on energy and climate change, and to affirm ongoing investment and deployment of clean energy infrastructure. It also calls for a new  Environment Act for England, “building on the upcoming 25 year plan with measurable milestones for environmental restoration and high standards for pollution and resource efficiency”.  Greener UK  has published policy documents supporting  each of the four  priorities of the Manifesto: Food and Farming Fisheries and Marine   ; Climate and Energy  ; and Environment and Wildlife Laws  .

Greener UK  was launched in December 2016, coordinated by Green Alliance . Greener UK consists of 13 major environmental organizations with a  combined membership of 7.9 million, and includes:  Campaign for Better Transport, ClientEarth, Campaign to Protect Rural England, E3G, Friends of the Earth, Green Alliance, Greenpeace, National Trust, RSPB, Wildfowl and Wetlands Trust, The Wildlife Trusts, Woodland Trust and WWF.