30 HABITAT MANA(ihMfNI 



OiJf dilifU'iHX' I cxpl.iincd earlier that a person 

 chari;cd with a liabitat otVciicc may he acquitted it he 

 exereiseil due diligence over his employees or agents in 

 trying ti> prevent it. Cmirts have applied a similar rule 

 even in the absence ol such explicit reliet in environmen- 

 tal legislation.'" Some participants at the Commission's 

 hearings suggested that relief o\' this nature should be 

 eliminated, and that offenders should be held absolutely 

 liable tor damage to fish habitat regardless ol' the circum- 

 stances or the efl'orts of an accused to prevent it. Wliilc 

 such a change might have a salutory deterrent eflect tor 

 some operators. 1 am concerned that it would impose an 

 unreasonable hardship on others whose employees or 

 contractors, due to unforeseeable circumstances and 

 despite their honest efibrts to avoid it, damage hsh habi- 

 tat. Furthermore, I understand that courts typically have 

 hesitated to grant acquittals on these grounds. So there 

 appears to be no immediate danger that these provisions 

 will be abased and I suggest that they be retained. 



Charging priKiHiurcs Charges for violating the habitat 

 protectmn proMsunis oi' the Fishenes Act are normally 

 laid after a fishery officer or citizen has observed an 

 offence. Under current administrative arrangements, 

 fishery officers are left with relatively wide latitude to 

 decide whether or not to formally lay a charge. 



Because of their strength and broad scope, the habitat 

 protection provisions are difficult to apply consistently 

 without creating serious disruptions in industrial activi- 

 ties in the region. This gives rise to the following para- 

 dox: because they are so strong and uncompromising, 

 their breach becomes common and their effect is incon- 

 sistent and often weak; yet they leave anyone who oper- 

 ates in a watershed or discharges waste potentially liable 

 to a charge, usually at the discretion of a fishery officer, 

 who sometimes reacts to local pressures and attitudes. 



Earlier in this chapter I proposed that the habitat pro- 

 tection prohibitions in the Fisheries Act be retained to 

 enable the federal government to vigorously assert its 

 interest in fish habitat. But with this broad power goes a 

 responsibility to enforce the law objectively and consist- 

 ently. This calls for a careful review before charges are 

 laid. 



18. Before charges are laid under the habitat protection 

 provision.s of the Fisheries Act, the circumstances 

 should be reviewed by senior regional officers of the 

 Department, including the Director General, the 

 Director of the Habitat Management Branch and the 

 Chief of Enforcement to ensure consistency in apply- 

 ing the law. 



The Department also has a responsibility to provide gui- 

 dance to those who must comply with the law about how 

 they must conduct their operations to avoid prosecution. 



!•>. Mk' IV>p:irtnK-nt sIkmiUI pnKJiKT ojKTalinn ^lii(lolinl's 

 to assist iiHJiislrial o|MTat<)P< in axoidiii^ (laiiui^e lo 

 llsli liiibitiit, and tik' exleiil lo \>liich such guidelines 

 lui\e Iki-u adlKTiHl lit slioiild Ik' considerwl iK-lore 

 charges ;u'e laid. 



Ihc Department has already produced an excellent 

 handbook for use by forest operations;''' similar ones 



shoiikl be prothiccil for other activities as well. 



ORGANIZATION AND ADMINISITtAIION OF 

 HABITAT MANAGKIVIENT 



The Canadian cc^nstitution does not assign exclusive 

 responsibility for environmental matters to either the fed- 

 eral or the provincial government; legislation has been 

 enacted and programs are administered by both. While 

 many of these are not aimed explicitly at protecting fish 

 habitat, they have the incidental effect of doing so. And 

 within the federal government, legislation and adminis- 

 trative arrangements that bear on habitat protection are a 

 patchwork. 



Division of Federal Responsibilities 



Among federal agencies, the Department of Fisheries 

 and Oceans is the most heavily involved in protecting fish 

 habitat. It actively enforces the habitat provisions of the 

 Fisheries Act (those prohibiting activities that are harm- 

 ful to fish habitat and the deposit of deleterious sub- 

 stances into water) as well as those that require fishways 

 around stream obstructions and screens to be installed on 

 water-diversion intakes. 



The Department is not the only federal agency 

 involved in habitat protection, however. It shares admin- 

 istrative responsibility over some important federal con- 

 trols, and others lie beyond its authority altogether. The 

 Environmental Protection Service of the federal Depart- 

 ment of the Environment is the most centrally involved 

 of these other agencies. Even though the Department of 

 Fisheries and Oceans was formed in 1979 with primary 

 authority over fisheries, the Environmental Protection 

 Service has continued to administer the deleterious sub- 

 stance section of the Fisheries Act alongside the Depart- 

 ment. In addition, it administers the federal Ocean 

 Dumping Control Act,-" aimed at marine dredging and 

 other activities at sea that are hannful to fish or human 

 health. 



This division of responsibility impedes effective and 

 systematic habitat management. TTie involvement of both 

 agencies in administering the deleterious substance provi- 

 .sions of the Fisheries Act has led to unnecessary duplica- 

 tion of efl^ort and facilities within the federal government 

 and raises the disquieting prospect of conflict between 

 them. And since the application of the Ocean Dumping 

 Control Act is confined largely to protecting fisheries, it 



