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Fish Versus Farmer

by Mary MacGregor

(written 1992, published Beef in B.C. July/Aug 92)

In 1991, Maurice Tuck of Bella Coola was found guilty under the Fisheries Act (Canada) of harmful alteration and disruption of fish habitat. He was sentenced to pay a $1,000 fine.

Maurice Tuck was a part-time farmer. It was his land-clearing activities that led to the charge being laid.

The judge found that, whether Mr. Tuck was aware of it or not, the streams in the area in question were frequented by fish, especially coho salmon fry. He said:

These small streams may seem insignificant to those who do not know or appreciate the needs of fish, but they most certainly are not. And it must be obvious to anyone who considers the matter that such small streams are extremely vulnerable as mankind moves upon and develops the surrounding land for agricultural, industrial, or residential purposes.

The judge identified the problem activities as:

the removal of streamside trees which provide cover for the streams and habitat for the insects on which the fish feed;

limbs from the felled trees were left behind and choked the streams in a number of locations; and

heavy equipment was operated across streambeds in a couple of instances and logs were dragged across streams in other locations, which damages the streambeds and banks.

The defence of this case cost Mr. and Mrs. Tuck over $60,000. Mrs. Tuck said “the expense of a $60,000 plus interest, court case is nothing compared to the havoc and turmoil that is created in your life by such an experience.”

If the Tucks are charged again under the Fisheries Act, they have been told that the penalty sought will be $10,000 plus some time in jail.

They understand that they cannot use their land in any way that could jeopardize the fish habitat unless they have their plans approved by the Department of Fisheries and Oceans. They understand that any DFO approval is contingent on the results of a two to three year study by a professional biologist, at a cost of $20,000 to $30,000 per year.

FISHERIES ACT (Canada)

Alleged offenders are usually charged under one of three acts: the federal Fisheries Act and the provincial Waste Management Act (B.C.) or the Water Act (B.C.). In this article we will deal with the federal Fisheries Act only, and hope to deal with the other two acts in another article.

The Fisheries Act says that no person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat (s. 35(1)). “Fish habitat” means the spawning grounds and nursery, rearing food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes. Case law confirms that fish habitat can include a stream which is dry for part of the year.

As the judge mentioned in the Tuck case, small creeks are important to the provincial fishery and overall contribute heavily to fish production. One of the activities thought to be most damaging is the removal of streamside vegetation. Fisheries biologists consider the agricultural and forest sectors to be the prime offenders here. Farmers and loggers are now receiving special attention from the regulatory agencies, for fishery and related water quality concerns.

The Fisheries Act also says that no one shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish (s. 36(3)). “Water frequented by fish” includes Canadian internal waters. “Deposit” means any discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing. A “deleterious substance” is one which, in water, alone or as part of a process, will degrade or alter the quality of water so that it is rendered or likely to be rendered deleterious to fish or fish habitat or to use by man of fish that frequent that water.

There is a duty to report yourself. If there is a deposit of a deleterious substance in water frequented by fish, or a serious and imminent danger of such deposit, and where damage or damage to fish habitat or fish results or may reasonably be expected to result, any one who owns or controls the deleterious substance or contributes to the depositing, must report the incident to a Fisheries inspector. In addition, that person must take all reasonable measures consistent with safety and with conservation of fish and fish habitat to prevent such an occurrence (s. 38).

You must also provide information to a fishery officer or fishery guardian on request (s. 61). You must not obstruct or hinder a fishery officer, guardian or inspector carrying out duties or functions under the Act (s. 62).

If you are the owner or occupier of any obstruction across or in a stream you may be required to provide and maintain a fish-way or canal (s. 20), fish stops or diverters (s. 21) and to provide for a sufficient flow of water and the free passage of fish (s. 22). You can also be required to provide and maintain a fish guard, screen, covering or netting (s. 30).

If you think that these requirements are an unjust or unwarranted interference with private property rights, the Supreme Court of Canada does not. In 1976 Supreme Court of Canada does not. In 1976 Supreme Court of Canada Chief Justice Bora Laskin observed in a case called Interprovincial Co-ops vs. The Queen:

“Federal power in relation to fisheries…is concerned what the protection and preservation of fisheries as a public resource…regardless of who the owner may be, and even in suppression of an owner’s right of utilization.”

Penalties are heavy. A contravention of section 35(1) or 36(3) can result in a fine of up to $300,000 for a first offence and a fine of $300,000 and/or 6 months in jail for a subsequent offence. If the circumstances are really serious, the fine for a first offence can go up to $1,000,000 and for a subsequent offence, $1,000,000 and /or three years in jail.

For failing to report yourself or failing to maintain protection for fish, the maximum fine for a first offence is $200,000, and a subsequent offence can warrant $200,000 and/or six months in jail.

Note also that where you contravene the Act and the contravention continues for more than one day, there is a separate offence for each day—so if the offence continues for a second day, that is a “subsequent offence”, not a continuation of the first offence.

Officers, directors or agents of a company are liable for the assessed penalties where they directed, authorized, assented to, acquiesced in or participated in the commission of the offence (s. 78.2). The employer is liable for the acts of the employee unless the employer establishes that the offence was committed without the knowledge or consent of the employer (s.78.3).

This is not to suggest that the maximum penalty is usually assessed, only that the legislators view interference with the fishery as an extremely serious matter.

On top of these penalties, where there is a deposit of a deleterious substance the persons in position of ownership or control are liable to the federal government for all costs and expenses incurred by the federal or provincial government to prevent, counteract, mitigate, or remedy any adverse effects that result or may reasonable be expected to result (s. 42).

And finally, if one were successfully prosecuted for a fisheries offence, the judge can not only assess penalties and damages, but can issue orders to prohibit activities which might lead to a continuation or repetition of the offence, or to take actions to remedy or avoid any harm to fish or fish habitat, or to require the convicted person to publish “in any manner the court considers appropriate”, the facts relating to the commission of the offence. Publication is usually reserved for large companies who have offended the provisions of the Act.

PREVENTION

Prevention must be the key. If you need to do instream work, you must consult with the Department of Fisheries and Oceans and the Ministry of Environment, to have a site survey done. The government departments will identify a “window of opportunity”, a time when you can work in the stream with minimum damage to the fishery.

If you check with all due diligence and learn that the stream does not support fish, there is still a separate requirement for a Ministry of Environment clearance.

Consider talking with a private consultant or with your local Ministry of Environment or Fisheries staff as to where fish habitat exists in your area. If there is fish habitat on your place, learn what conditions fish need and do what you can to work with, not against, government staff to meet these requirements.

Remember, you can be convicted of an offence whether or not you know you are committing one. There is a limitation period—the Department of Fisheries cannot take action against you after two years from the commission of the offence.

Offences under the Fisheries Act are called “strict liability offences”. This puts them between “absolute liability offences” like a traffic ticket, where the accused has to prove innocence, and criminal offences, where the prosecution has to show that the accused had the necessary mental intention to commit the crime. In a strict liability offence, the prosecution has to show that the act complained of was committed. In practice, the prosecution also tries to show a lack of due diligence by the accused. The accused can only secure an acquittal if he or she proves that he or she took all due care to avoid commission of the offence.