:!t M AHIl M \l AN \(.I AUNT 



r.tlUn.-nl v.lisi.h.iii;i.-s ih.il I. ill uilliiii [vrmissibic LDiiccn- 

 trationx s|x\itic(.l m icgiiLitioiis .irc c\om|ilt\l. Such regu- 

 lations have been adopted for six industries, the tour 

 major i>nes beiuu pulp and paper, metal mining, chlor- 

 alkali and petroleum refining. The standards apply 

 nationwide. The Environmental Protection Service of the 

 federal Department of the F".nvironment, which has chief 

 responsihilit\ (or admimsiermg section 33 (discussed 

 below), in practice applies these standards rigorously 

 only for new pri>jects in consultatii>n with the provincial 

 Ministrv of Environment. f\)r plants that predated the 

 regulations, they negotiate with the operators to establish 

 a schedule for complying with regulatii>ns over a period 

 of time. In the meantime, such projects are technically in 

 default continuously. Site-specific regulations may also 

 be adi^pted for individual projects, as was done for the 

 controversial Amax .Vline operatn)n at Alice Arm. 



Other provisions of the Act make polluters liable for 

 costs incurred by the Crown in cleaning up unauthorized 

 discharges of deleterious substances and for any resultant 

 losses incurred by licensed commercial fishermen, in 

 addition, the Minister is authorized to demand certain 

 technical information from those whose activities contra- 

 vene sections 31 or 33 or threaten to do so. With federal 

 cabinet approval he may also require operations to be 

 restricted. mcxJified, or even shut down. 



Operators are legally obliged to report any unexpected 

 contraventions of these .sections and to take any action 

 required to prevent or remedy such occurrences. Anyone 

 whose employees or agents contravene either section is 

 liable unless the offence was committed without his 

 knowledge or consent and he exercised "all due diligence' 

 to prevent it. 



Penalties for violating these sections are the highest in 

 the Fisheries Act (see Chapter 16, Table 16-5), with pro- 

 visions for fines of up to $1(X) thou.sand for convictions 

 under .section 33 and for unlimited fines under section 31. 



Because the federal government owns very little of the 

 land and none of the fresh water that comprises the most 

 critical fish habitat in British Columbia, it cannot protect 

 the habitat by such means as licensing, leasing or similar 

 arrangements. It therefore requires strong punitive legis- 

 lation to protect fish habitat. And this legislation must 

 also be comprehensive and exacting. Sections 3 1 and 33 

 of the Fisheries Act have these essential features, so 

 despite criticism of them and in view of the attention that 

 has been directed towards this question, I specifically rec- 

 ommend — 



12. Sections 31 and 33(2) of the Fisheries Act should be 

 maintained substantively intact. 



I hasten to add that not all of the habitat protection 

 provisions of the Act are satisfactory. They have been 



critici/ed for their narrowness and for failing to recognize 

 other resource users or to provide lor integrated resource 

 planning and development. 



I he lisheries Act remains silent on the exis- 

 tence of other resource uses or users, and this 

 places the (Fishery) Oflicers, in our opinion, 

 in a very diflicull pt)sition. The current refer- 

 ral process is working in spite of, not because 

 of, the tunnel-visioned Fisheries Act. These 

 Officers do a very commendable job, consid- 

 ering their legislated terms of reference. "' 



My proposals eariier in this chapter will alleviate some 

 of the.se difficulties by providing better information for 

 planning other activities in watersheds; by involving the 

 fisheries authorities more deeply in integrated resource 

 management planning; and, where damaging activities 

 take place, by concentrating attention on the most 

 serious threats and by providing for compensation where 

 damage to fish habitat cannot be avoided. And in Chap- 

 ter 21, I recommend that new fisheries legislation for- 

 mally and explicitly authorize the Department to become 

 involved in such planning. 



But once the Department has received a proposal for a 

 development and reached conclusions about the accept- 

 able conditions under which it should proceed, any 

 approval it issues should formally bind both the propo- 

 nent and the Department. This is now lacking and is a 

 serious deficiency in the referral system. The Minister has 

 the authority to call for detailed project plans and to 

 review them. But even when the developer makes 

 modifications proposed by the Minister, he can remain 

 liable to prosecution under the broad habitat protection 

 provisions of the Fisheries Act. So do all those whose 

 proposals have been referred to the Department, whether 

 or not they have adopted the suggestion of fisheries 

 officials to protect habitat. These arrangements leave 

 operators in a constant state of uncertainty; even though 

 their activities may have been endorsed by habitat pro- 

 tection officials, they remain potentially voilnerable under 

 the Fisheries Act. And from the point of view of public 

 administration, it leaves the review process too vague. 



My recommendations on this matter are aimed at 

 removing these deficiencies in the approval system. 



13. All approvals of development proposals issued by the 

 Department should enable their holders to proceed 

 without being liable to prosecution as long as they 

 comply with their temis and conditions. A general pro- 

 vision should empower the Department to curtail or 

 suspend operations if fish habitat is significantly dam- 

 aged or threatened by events that were unforeseeable 

 at the time the approval was granted. 



