Smart mechanics say, "If it ain't broke, don't fix it."
That's the case with the Fisheries Act. It worked, but wasn't being enforced. The revised Section 35, (habitat protection) which received Royal Assent, June 29, assures it never will be enforced.
"This weakened habitat protection section of the Act will come to haunt us in the next decade," wrote retired Fisheries biologist Otto Langer on July 27.
Langer, who leaked the plan to neuter the Act earlier this year, made the comment in a widely circulated e-mail addressed to Fisheries and Oceans Canada, environmental groups, First Nations, stream keepers, and "all Canadians interested in an intact habitat support system."
Section 35 used to ban "any work seen as harmful alteration, disruption, or distruction of fish habitat." Industry and government knew what it couldn't do. Now, vague terms limit work "that results in adverse affect on fish of economic, cultural or ecological value."
On March 25, another Langer e-mail described the problem in full.
It outlined the history of Section 35 and its promise for habitat protection despite early years of opposition to the legislation by industry and Crown corporations. Says Langer, the revision – slipped into Bill C-38 this spring – abandoned a positive attitude that could have reversed "decades of habitat abuse."
"Prior to 1976, many businesses, Crown corporations and departments were resistant to the protection of habitat."
Langer describes battles with the logging industry which "had declared war on the Fisheries Act and challenged every legal action that resulted from slash and debris problems." Gravel miners were heavy abusers. "About 30 streams – including the Fraser, Coquitlam, and Alouette rivers – had been heavily mined."
Before 1976, says Langer, Fisheries could do little except seize "the heavy equipment to stop this habitat destructive work." Section 35, "did a great deal to educate ... the Province as to the value of fish habitat."
Langer says the habitat clause led to a National Habitat Policy (1986) which endorsed "a no-net loss policy of habitat productive capacity."
Development could take place, but habitat loss had to be replaced – somewhere. The concept, admits Langer, "has not been overly successful," but the solution was in sight.
Still, the concept of harmful alteration, disruption or destruction of fish habitat and the National Habitat Policy, says Langer, set the path for "win-win solutions."
Following HADD legislation, says Langer, potential abusers became more receptive to enlightened development. The passage of Section 35, forced such Crown corporations and ministries as, highways and B.C. Hydro to respect the need to protect fish habitat. "Many of those existing corporations now protect habitat in a fairly proactive manner, and without a great deal of complaining."
So, why after the struggle for effective legislation, has Prime Minister Stephen Harper embraced the bad old days of habitat abuse? So farmers and cities can clean out their ditches without Fisheries harassment? That's the excuse given by Fisheries Minister Keith Ashfield, and echoed by parliamentary secretary, Randy Kamp, even though cities like Pitt Meadows say cleaning ditches isn't a concern and most farmers are silent on the issue.
Langer doesn't buy the ditch story, either. His letter of July 27 followed the meeting I mentioned earlier. West Van MP John Weston arranged it to solicit ideas for implementing the government's unilateral changes to the Fisheries Act.
But people wanted to know why changes were made in the first place, and why the process skipped public scrutiny and debate in Parliament.
Someone might have said, "if it ain't broke, don't fix it."
Says Langer, "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 it's going to be made to work."
Jack Emberly is a retired teacher, local author and environmentalist