HABITAT MANAGEMENT 27 



8. The Fisheries Act should provide both the Depart- 

 ment and the operator of a proposed or existing devel- 

 opment with the option of calling for a detailed review 

 by the Department of its effect on fish habitat. To 

 carry out such reviews, the Department should be 

 authorized to require the operator to provide at his 

 cost detailed plans, specifications and assessment 

 studies of the development and to produce the neces- 

 sary field data and other information it needs for this 

 purpose. 



9. Having reviewed a proposal, the Department should 

 be authorized to reject it or formally approve it on 

 acceptable terms and conditions. The approval should 

 be given to the operator either directly, or indirectly 

 through another involved government agency (such as 

 the provincial Pollution Control Board or Ministry of 

 Forests). 



10. Terms and conditions of approvals sliould include 

 mitigation measures to be taken by the operator. 

 Where damage to fish habitat is unavoidable, the 

 approval should also specify compeasation (as recom- 

 mended above). 



These arrangements will enable the Department to 

 more effectively meet its responsibilities in protecting fish 

 habitat by concentrating its attention on specific, critical 

 developments. I propose in Chapter 18 that cooperative 

 arrangements for dealing with referrals and approvals be 

 set out in an agreement between the federal and provin- 

 cial governments. Later in this chapter I propose 

 strengthening the approvals by making them legally bind- 

 ing on both the Department and the developers. 



Watershed studies The Canada Water Act,'^ which 

 offers a mechanism for planning watershed development, 

 has been used to a limited extent in the Pacific region for 

 federal-provincial studies of the Fraser River estuary and 

 the Thompson. Okanagan and Yukon basins. Such exer- 

 cises have not generally provided much operational gui- 

 dance for resource development, but they have produced 

 valuable information about patterns of resource use and 

 their interactions. 



Because river basin and estuary studies of the kind car- 

 ried out under the Canada Water Act and provincial 

 regional planning procedures can be useful in identifying 

 the relative values of activities in watersheds and poten- 

 tial conflicts among them, I recommend that — 



11. The Department should continue to participate in 

 watershed studies in cooperation with other federal 

 and provincial agencies. 



Such studies can also serve as focal points for detailed 

 operational planning for the future. 



HABITAT LEGISLATION AND ENFORCEMENT 



The main and most powerful legal instruments for pro- 

 tecting fish habitat are found in the Fisheries Act." Their 

 development and application over the past decade has 

 been a constant source of controversy, and their effective- 

 ness and enforcement was a recurring theme in the Com- 

 mission's public hearings. 



Habitat protection requirements have long been a fea- 

 ture of the Fisheries Act. Provisions requiring fishways 

 around dams and other obstructions and screens to be 

 installed on water diversion intakes, have been in the Act 

 for years. These requirements are relatively narrow in 

 scope and apparently present no serious problems. 



Prohibitioas on Disturbing and Contaminating Fish Habi- 

 tat 



The Fisheries Act prohibits anyone from altering fish 

 habitat (section 31) and from polluting it (section 33(2)).''' 

 These are by far the most controversial parts of the legis- 

 lation. Amendments to strengthen these provisions in 

 1970 and 1977 were vigorously opposed by other indus- 

 tries and provincial governments. The Premier of British 

 Columbia summarized his criticism as follows: 



The mutual objective of avoiding duplication 

 of government regulations, particularly in 

 relation to resource-based industries, will not 

 be furthered by the proposed legislation. The 

 close cooperation we have enjoyed in the 

 environmental field may be jeopardized. The 

 proposed legislation is oriented to a single 

 resource - albeit of considerable importance 

 to this Province - but is out-of-step with the 

 multiple resource use essential to the develop- 

 ment of a healthy economy in British Colum- 

 bia.'^ 



Section 31 broadly prohibits "any work or undertaking 

 that results in the harmful alteration, disruption or 

 destruction of fish habitat." Fish habitat is defined 

 broadly, and since nearly all industrial operations in 

 watersheds alter habitat in some manner, if only subtly, 

 this section is very comprehensive. With special author- 

 ization, activities may be exempted from this general pro- 

 hibition, but these provisions have not been invoked in 

 the Pacific region. 



The core of the pollution control provision is section 

 33(2), which prohibits the deposit of "a deleterious sub- 

 stance of any type in water frequented by fish" or any- 

 where else if it might enter such water. Since almost any 

 substance can be deleterious to fish in sufficient concen- 

 trations, and all land drains into watercourses, this provi- 

 sion is comprehensive also. 



