By Josh Wingrove
BLOOMBERG

Alberta’s incoming premier is already fighting pipeline law changes that are in the offing.

Jason Kenney’s conservative party swept to power Tuesday in Canada’s oil heartland after a campaign in which he regularly took aim at Prime Minister Justin Trudeau. In his victory speech, Kenney also criticized Trudeau for “imposing new laws that will make it impossible to get pipelines approved in the future.”

A trio of proposed laws affecting pipeline, environmental and oil shipping laws are working their way through Canada’s Senate as Trudeau’s Liberals gear up for an October election, trailing in the polls. The most controversial is known as Bill C-69 -- Kenney’s predecessor in Alberta also opposed its current wording, but his election will add pressure to Trudeau to bow to concessions sought by the oil industry.

“I expect to see the federal government make substantial changes to that piece of legislation because they’re needed or the Canadian economy will suffer,” Tim McMillan, president of the Canadian Association of Petroleum Producers, told reporters Wednesday.

Proposed Law
The sprawling Bill C-69 would create a new regime for approvals of things like crude oil pipelines and new mines. Trudeau’s government argues the law clarifies a currently opaque system that sees projects regularly struck down by courts, but the oil industry says it’s too complicated and would deter new pipelines.

The proposed law has become a lightning rod and is now under examination in Canada’s increasingly unpredictable Senate. Changes to the bill are almost certain, and this will trigger a standoff with Trudeau’s elected lawmakers in the House of Commons. Meanwhile, the clock is ticking: an election would kill any bills that haven’t yet made it into law.
“This will give certainty, it will build public trust and therefore it will result in projects being built,” Senator Grant Mitchell, the bill’s sponsor in the upper chamber, said in an interview. He expects an amended version to pass. “The risk is in not doing it, in my mind. That’s not to say it can’t be changed.”

Industry View
C-69 is so wide-ranging there’s no cohesive industry view -- the oil sector opposes its current form, but others aren’t as worried. Oil industry groups have suggested major changes that would make the bill palatable, but warn they need to be taken broadly together, and not cherry-picked.

“If this bill passes like it is, it’s going to be a jobs killer, and investment killer and you’re not going to get the major projects that we should get,” Chris Bloomer, president of the Canadian Energy Pipeline Association, said in an interview.

Christopher Carlsen, vice-president of engineering at Birchcliff Energy, said during a conference in Toronto this week there’s “significant nervousness and investor questions” about the bill.

One key uncertainty is that the government hasn’t released the “project list” to which the new rules will apply. A draft of that list is expected to be made public in the coming weeks, a Canadian government official said, speaking on condition of anonymity because they aren’t authorized to speak publicly.

The Senate has sparred over how quickly it will consider C-69, first proposed last year, and two other bills: C-68, which makes related reforms to fishery and environmental laws, and C-48, which bans crude oil tanker traffic on the northwestern coast of British Columbia. All the bills touch on energy development and environmental rules.

Canadian Natural Resources Minister Amarjeet Sohi said the government is open to changes that would “strengthen” C-69, but signaled the government planned to push ahead with the bill despite the blow-back. “I respectfully disagree with the industry’s assessment of this legislation,” he said.

Timeline UnclearThe Trudeau government expects the bill to pass in some form and receive royal assent before the election, rather than stall and die, the Canadian official said. Trudeau has a majority in the House of Commons, and the Senate historically bows to the wishes of elected lawmakers.

If the law is passed, Trudeau’s government will also need to weigh how quickly it’ll take effect. The prime minister could face criticism from the industry if he pushes for a start date before the election.
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“The fear is that in the rush, the bill itself could be mangled,” said Justyna Laurie-Lean, vice-president of environment and regulatory affairs at the Mining Association of Canada, which is calling for a year-long implementation process.

READ MORE: https://www.bloomberg.com/news/articles/2019-04-18/kenney-win-puts-maligned-trudeau-pipeline-law-under-new-pressure

​SHANNON LOUGH
Coast Mountain News

As the federal government reviews the Fisheries Act, two North Coast B.C. residents flew to Ottawa to present how they think the act should be improved.

There are eight key areas to Bill C-68 and reconciliation with Indigenous peoples is listed as number two.

John Helin, mayor of the Lax Kw’alaams Band near Prince Rupert, painted a grim picture of his Indigenous community as he spoke to the Standing Senate Committee on Fisheries and Oceans – how members are struggling to make a living, and his experience with fisheries enforcement officers “racially profiling” members.

“We have a fleet of 70-80 gillnetters that can’t make a living anymore fishing for salmon. We have a fish plant in my community that at its peak, employs up 100 members in the village and we’re having a lot of challenges keeping that operation going,” Helin said.

To keep the fish plant going, they’ve diversified by processing groundfish, but he said with all the other fisheries coming into the area, they’ve lost an opportunity.

“There was a herring fishery in our day in the 70s and 80s, a seine herring fishery, and it wiped out that fish. To this day, that stock doesn’t come back. So herring is a staple, not just for people, but for other fish in the sea that feed off herring. So it’s alarming to us when DFO allows one guy to go out fishing and everyone else agrees to tie up,” Helin said.

Helin said the band wants to sign a comprehensive fisheries agreement with the Department of Fisheries and Oceans, but had never done so since losing a fisheries case. He said it’s resulted in members being targeted on the water.

“It got so bad where one of the fisheries enforcement guys boarded my son’s boat, he was fishing my boat, and he had his 10-year-old kid on the boat, and this guy pulls his gun on the deck of my son’s boat without provocation. That went to court and it was tossed out. That shows how we’re treated in our own traditionally territory,” he said.

“When you talk about reconciliation, consultation, they’re just empty words for us. So hopefully coming before committees like this, we can make the improvements that we want.”

Earlier in the day, third-generation fisherwoman, fisheries biologist and Prince Rupert resident Chelsey Ellis presented her suggested amendments to Bill C-68, saying more and more licenses and quota are being transferred from fishermen and away from coastal communities.

“For the few young fish harvesters trying to persevere, it’s getting harder to earn a living and find a safe, reliable and professional crew to work with,” Ellis said, adding young people are not joining the industry because they don’t see a future in it.
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She called for measures to prioritize and incentivize licenses and quota for “those taking the risks and working long hard hours” to harvest Canadian seafood, and the promotion of independence of owner-operator enterprises within all commercial fisheries.

Jesse Snyder
National Post

OTTAWA — Senators have agreed to discard a hard deadline on the passage of Bill C-69, according to a document obtained by the National Post, easing the pressure to complete the sweeping energy reforms before spring.

After a flurry of closed-door meetings Thursday, Conservative and Independent senators came to an agreement to reverse parts of a motion tabled one day earlier by Sen. Peter Harder, the Liberal government’s Senate representative, which would have fast-tracked 11 bills that are currently in the upper house. The deal between Conservative and Independent senators will eliminate proposed deadlines on three controversial pieces of legislation, including Bill C-69 and Bill C-48, the moratorium on oil tanker traffic in northern B.C. waters.

The agreement comes as the Senate energy committee prepares to tour the country to hear from witnesses on Bill C-69, which proposes to overhaul the review process for major energy projects like pipelines and hydro dams. The legislation has become a focal point for many in the Western provinces concerned it could deter future investment in the oil and gas sector.

Some senators have said they are open to amending the bill, which industry groups argue is lacking in detail and therefore leaves the project review process open to interpretation. Last August, Ottawa purchased the Trans Mountain pipeline for $4.5 billion as a way to ensure construction of the project, which had languished in part because of Canada’s complicated regulatory review process.

Harder tabled a motion Wednesday which would have imposed a tight deadline of May 30 for the Senate to pass Bill C-69, a full month before the upper house’s final scheduled sitting day before summer break, June 28. It also proposed a June 6 deadline for the oil tanker moratorium bill and a May 30 deadline for Bill C-68, the counterpart to Bill C-69 that focuses on ocean protections.

Conservative senators delayed a vote on the motion Wednesday, then in private meetings Thursday pushed for an agreement to remove some of the deadlines.

Still, the agreement maintains a firm timeline on when various committees need to report back to the Senate, imposing short timeframes in which senators can propose amendments.

The energy committee studying Bill C-69 will need to report back to the Senate by May 9, just weeks after senators complete their cross-Canada tour, according to the updated schedule seen by the Post. Senators on the transport committee, who are studying Bill C-48, will need to report back by May 16.

The tighter deadlines come as the end of the spring session nears, a fall election looms and a swath of legislation is lagging in the Senate. Thirteen bills are currently under review int he upper house, as well as roughly 10 more bills yet to be passed to the Senate from the House of Commons.

Some senators have accused the Conservatives of delaying bills for political purposes, causing some legislation to stall for as much as a year. Bill C-55, which updates various marine protections, has languished in the Senate since April 2018. The updated schedule now proposes to bass the bill by May 2.

Conservative senators, for their part, voiced loud objections to the motion on Wednesday, saying the government was looking to stifle debate on critical pieces of legislation.

“It’s not about the dates that are being proposed, it’s about the restriction,” Conservative Sen. Judith Seidman said Thursday morning, before the agreement was signed. “It’s constricting debate on the issues through this mass, widespread motion.”

In a statement Wednesday Conservative Sen. Larry Smith called Harder’s motion to assign deadlines to a bundle of 11 bills “unprecedented,” and said it “shuts down the abilities of senators to review and question government legislation.”

Independent Sen. Doug Black told the Post Wednesday that senators might have to work long hours in order to review and potentially amend the legislation before the May 9 deadline. Black, who represents Alberta, is not on the energy committee but has been an outspoken critic of the bill in its current form and plans to travel with other senators to hear from witnesses.
​
“It’s really tight, there’s no doubt about that,” he said. “But I believe that if we continue to work as hard as we’re working, we’re likely to achieve that timeline.”

John Paul Tasker
CBC News 

The federal Liberal government's controversial overhaul of environmental assessment legislation has united virtually every major natural resources industry association in opposition — and they're asking the Senate committee studying Bill C-69 to make some fixes to avoid threatening the viability of key sectors of the economy.

Amid the barrage of criticism, the government itself has recognized it may have to agree to some tweaks to get the legislation — expected to be one of the last major pieces of the Liberal agenda to pass before the fall election — through the Red Chamber.

Speaking last week at an event for Canada's mining companies — one of the few sectors that has offered support for the elimination of some federal and provincial regulatory duplication in Bill C-69 — Trudeau thanked miners for their "measured" approach to the legislation.

"Quite frankly, [a] number of thoughtful submissions and amendments to that, to improve it, [came] from this industry," Trudeau said.

Since the Senate began its study of Bill C-69 last month, however, industry representatives from the oil and gas, hydro, nuclear and uranium sectors have appeared before the energy committee with a long list of suggested amendments. Rather than a few tweaks, these industries are proposing major rewrites.

While the government has presented the legislation as a way to streamline and improve what many consider to be a poor approvals process introduced by the former Harper government, critics maintain that replacing a bad system with another problematic one will not solve persistent problems. To that end, a number of Conservative and Independent senators have said they will push for amendments.

The Canadian Association of Petroleum Producers (CAPP) said the federal Liberal government's impact assessment changes could inadvertently cripple sectors already grappling with low commodity prices and constrained pipeline capacity.

The lack of a "project list" in the legislation — a definitive account of the types of projects that would be subjected to federal impact assessments — has industry associations anxious about the risk of regulatory creep. They fear Ottawa might apply its process to projects that, to date, have operated largely under provincial jurisdiction, such as the "in situ" projects in Alberta's oilsands.

Nova Scotia Power also wants to see the project list restricted to "major, large-scale projects of national significance." As written, the bill gives the environment minister almost total discretion to put a project on the list for what could be more rigorous scrutiny by federal regulators.

"Canada has lost and will continue to lose investment and jobs if we do not have a system with clear rules, clear timelines and decisions that stick. Our livelihoods of Canadian families and communities are at stake," said Tim McMillan, president of CAPP.

The government has said project list details will be published in the regulations, which will be released publicly only after the legislation passes through Parliament. It also has signalled "in situ" projects could be left off the list, despite pressure from environmentalists.

In fact, West Coast Environmental Law, a leading green advocacy group, has said the bill is "not a gift to environmentalists" since it does not offer many of the safeguards they sought. It argues the bill simply "follows the footprints of its predecessor laws, with the exception of some changes to add clarity and accountability."

The Canadian Nuclear Association has said that while the legislation may be an attempt to streamline the rules, it's creating uncertainty. "Capital is fluid and investors do not like uncertainty. This uncertainty is magnified by the legislative regime being proposed because it is missing a key element, and that is the project list," John Barrett, president and CEO of the Canadian Nuclear Association, said at a recent Senate meeting.

Petroleum producers are particularly concerned about just how much leeway the legislation gives the environment minister to perpetually stall or cancel a project — even after it has successfully gone through the assessment process.

The bill's supporters say ministerial authority must be preserved and C-69, if it's passed, would at least compel the minister to say publicly why the government is making a change to a project's timeline.

"We welcome the Senate taking a serious look at this legislation, and we have consistently said that we are open to amendments put forward by the Senate, should they strengthen and improve the bill," Sabrina Kim, a spokesperson for Environment Minister Catherine McKenna, said in a statement to CBC News.

Kim said the Liberal government has been working on the legislation since the last election, calling it a product of extensive consultation with both industry groups and environmentalists.

"Canadians deserve the strongest bill possible to protect our environment, honour Indigenous rights and partnerships, and ensure good projects go ahead in a timely fashion. This will create the certainty that investors need and well-paying jobs for Canadians. It is critical to rebuild trust in how we review major projects, and this legislation is an opportunity to get this right," Kim said.

But CAPP, which represents most of the big companies in Alberta's oilpatch, is also concerned about the addition of a new pre-assessment process. The government has said this will help companies avoid the sort of legal pitfalls that have undermined the Trans Mountain expansion, while CAPP maintains it simply formalizes a process that most companies already follow as a matter of good business practice.

By tacking up to 180 days onto the process, project proponents fear C-69 will lead to longer, not shorter, timelines for project approval. The Canadian Hydropower Association has said it already takes 8 to 12 years to build a hydro project in this country and the new regime will make it "more challenging to manage and more complex."

Industry associations have reserved their harshest criticism for changes to the "public participation" component of the approvals process.

Ottawa has eliminated the "standing test" that applies to deciding who can appear before the regulator weighing project approval. The federal Liberal government has said it believes this will make the process more democratic and participatory.

Right now, only people who are directly affected — local communities or nearby Indigenous groups, for example — or those with expert information are allowed to have their say. The new law would open the process up to virtually anyone who wants to appear.

The industry associations worry the relatively lax rules will subject project hearings to unreasonable interference by activists and protracted legal actions over who can speak. They say the regulator should have the discretion to decide who participates.

"What we have seen is activists, groups, many of the American-funded activists have taken a very deliberate approach at targeting Canada, first and foremost, and our institutions," McMillan said.

"Tim Hortons talk is rarely about the National Energy Board, but certainly those groups have used social media very effectively and have lobbied governments voraciously to get changes that make it more difficult for Canada to attract investment."

Frank Saunders, the vice-president of regulatory affairs at Ontario's Bruce Power, said C-69 needs at least some basic criteria for deciding who can appear.

"I don't care how far away they come from, as long as they are talking about the project versus some esoteric view on nuclear energy. There are people who believe you shouldn't be doing that, and they want to come and argue. They have a right to argue it, but that's not the forum," he said.

By MIA RABSON
The Canadian Press

OTTAWA—The federal government’s promised overhaul of environmental evaluations for energy projects is poised for a major Senate surgery, but the upper chamber must race to pass the bill before an election guillotine sends it to the shredder.

Bill C-69, the Impact Assessment Act, fulfils a Liberal campaign promise to change how major energy projects get reviewed for their environmental, social and economic effects, with the aim of speeding up reviews and making their criteria clearer.

Introduced in February 2018, the House of Commons already made 136 amendments before sending it to the Senate.

Now it’s before the Senate energy committee, many members of which are vowing further changes.

Those amendments won’t be proposed for several more weeks after the committee agreed Thursday to take its study on a nine-city tour. It has promised to finish its report to the full Senate no later than May 9.

That leaves less than two months for the Senate to finish third reading — where senators can propose substantial changes to a bill — and the government to determine how many of the expected amendments it will accept.

If the bill does not get royal assent this spring, it will fall to the cutting room floor because any bills on the order paper go back to square one after the election, no matter whether the Liberals win again.

Sen. Grant Mitchell, who sponsored the bill in the Senate, said it won’t be easy but “absolutely it will get done.”

He said it was made clear to him that while industry and some provincial governments have significant concerns with the bill, they see its failure as a worse option.

Tim McMillan, president of the Canadian Association of Petroleum Producers, told The Canadian Press he doesn’t like the bill as-is, but killing it would tear up years of work and not provide any more certainty to his industry.

Mitchell says he is open to amendments, as are the prime minister and Environment Minister Catherine McKenna.

“We welcome the Senate taking a serious look at this legislation, and we have consistently said that we are open to amendments put forward by the Senate, should they strengthen and improve the bill,” McKenna said in a written statement Friday.

The Senate is receiving intense pressure on this legislation.

This week alone, the premiers of Alberta and Newfoundland and the energy ministers of Saskatchewan and Ontario presented to the committee. Senators have also received nearly 50,000 letters urging them to either kill the bill or agree to major changes on everything from review timelines to who can be heard during a specific review.

Independent and Conservative senators are indicating a desire for some pretty significant changes.

Sen. Yuen Pau Woo, head of the Independent Senators Group, said the legislation affects other types of projects, including electricity transmission lines, hydroelectric dams and even airports.

“There’s a lot of work to be done,” he said.

The legislation lifts limits the former Conservative government placed on who can get standing to be heard during an assessment hearing, but many groups have said putting no limits on standing goes too far. Woo said he wants some changes made on that topic.

He also wants to see changes made to the level of discretion given to cabinet ministers who, as worded, can halt the review process for a time, upending the bill’s assertion of hard timelines for how long the review can take.

Conservative Sen. Dennis Patterson said provincial governments have raised legitimate concerns the bill oversteps established provincial jurisdiction and introduces new factors on which projects will be judged, such as climate change and gender. Patterson said some of those areas are so vaguely defined it just invites lawyers to challenge any decisions.
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He is also concerned there isn’t enough in the bill to require direct and indirect economic benefits to be taken into account.

READ MORE: https://www.thestar.com/news/canada/2019/03/01/new-impact-assessment-bill-for-energy-projects-to-get-major-changes-in-senate.html 

NEW YORK TIMES
By Kendra Pierre-Louis

Fish populations are declining as oceans warm, putting a key source of food and income at risk for millions of people around the world, according to new research published Thursday.

The study found that the amount of seafood that humans could sustainably harvest from a wide range of species shrank by 4.1 percent from 1930 to 2010, a casualty of human-caused climate change.

“That 4 percent decline sounds small, but it’s 1.4 million metric tons of fish from 1930 to 2010,” said Chris Free, the lead author of the study, which appears in the journal Science.

Scientists have warned that global warming will put pressure on the world’s food supplies in coming decades. But the new findings — which separate the effects of warming waters from other factors, like overfishing — suggest that climate change is already having a serious impact on seafood.

Fish make up 17 percent of the global population’s intake of protein, and as much as 70 percent for people living in some coastal and island countries, according to the Food and Agriculture Organization of the United Nations.

“Fish provide a vital source of protein for over half of the global population, and some 56 million people worldwide are supported in some way by marine fisheries,” Dr. Free said.

As the oceans have warmed, some regions have been particularly hard-hit. In the northeast Atlantic Ocean and the Sea of Japan, fish populations declined by as much as 35 percent over the period of the study.

“The ecosystems in East Asia have seen some of the largest decline in fisheries productivity,” Dr. Free said. “And that region is home to some of the largest growing human populations and populations that are highly dependent on seafood.”

Now a postdoctoral researcher at the University of California, Santa Barbara, Dr. Free began the research while a Ph.D. student at Rutgers University.

Marine life has been subjected to some of the most drastic effects of climate change. The oceans have absorbed 93 percent of the heat that is trapped by the greenhouse gases that humans pump into the atmosphere.

A study published in January, also in Science, found that ocean temperatures were increasing far faster than previous estimates.

Amid these changing conditions, fish are shifting where they live, in search of their preferred temperatures. High ocean temperatures can kill off both the fish themselves and the sources of food they depend on.

“Fish are like Goldilocks: They don’t like their water too hot or too cold,” said Malin L. Pinsky, an associate professor in the School of Environmental and Biological Sciences at Rutgers University and a co-author of the new study.

In about a quarter of the regions studied, fish had expanded their range. Off the Atlantic coast of the United States, sustainable catches of black sea bass increased by 6 percent over the study period.

Another quarter of the regions saw no significant changes in fish populations, like the northwest Atlantic Ocean, where Atlantic herring are abundant.

But half the regions did not fare as well. The northeast Atlantic Ocean — home to the Atlantic cod, the mainstay of fish and chips — saw a 34 percent decline in sustainable catches.

Over all, more populations of fish declined than increased over the eight decades in the study.

The researchers focused on sustainable catches, using a measure developed by the United Nations that quantifies the amount of food that can be repeatedly harvested from a base population of fish. “Fisheries are like a bank account, and we’re trying to live off the interest,” Dr. Pinsky said.

Several previous studies have predicted that climate change would lead to fewer ocean fish in the future, but the new research looked at historical data to determine that the declines had already begun.
​
“This is going to be one of those groundbreaking studies that gets cited over and over again,” said Trevor Branch, an associate professor at the University of Washington’s School of Aquatic and Fishery Sciences, who was not involved in the study. “Most of what I’ve seen before in terms of climate-change impacts have been speculative, in terms of, ‘We think this is what’s going to happen in the future.’ This one’s different.”

The researchers used a data set of 235 fish populations located in 38 ecological regions around the globe. The detailed data told them not only where the fish were but also how they reacted to environmental effects like changing water temperatures.

The team compared that data to records that showed how ocean temperatures had changed over time, broken down by the various regions. These regional analyses were important, because some parts of the ocean have warmed faster than others.

“We then connected those to which populations responded positively, negatively, and which didn’t respond at all,” Dr. Pinsky said.
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The data revealed some other trends. Fish populations in the colder parts of their ranges tended to fare better than those located in warmer areas — for those fish, the extra heat was too much. This was especially troubling to the researchers, because the data they used was less detailed in the tropics. Fish losses in those regions may have been higher than in the regions the study focused on, Dr. Pinsky said.

Warm areas fared even worse when they were overfished. The researchers suggested that overfishing made fish even more vulnerable to temperature changes by hurting their ability to reproduce and damaging the ecosystem.

Guarding against overfishing and improving the overall management of fisheries can help, the researchers said. But ultimately, they said, the solution lies in slowing or halting climate change.
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A separate study, published Wednesday in the journal Science Advances, found that limiting warming to 2.7 degrees Fahrenheit, or 1.5 degrees Celsius, above preindustrial levels — a goal of the Paris climate agreement — could result in billions of dollars in extra revenue for fisheries globally. Much of that would be in the developing world, where many people rely on fish for protein.

“We hope that this highlights the importance of accounting for the fact that climate change is driving shifts in productivity,” Dr. Free said of his research. “Fishery managers need to come up with new innovative ways of accounting for those shifts. That includes reducing catch limits in warm negative years, but it can also include increasing catch limits in cooler positive years. Having regulations that are adaptive to climate change is going to be really important for maximizing food potential.”

Article by Michael Finley
Gowling WLG

A new definition in Bill C-68, the new Fisheries Act (the "Act"), has the potential to significantly broaden the Act's concept of "fish habitat".  As mentioned in a previous article, the Standing Committee on Fisheries and Oceans recommended adding the concept of water flow to the definition of "fish habitat" by inserting the following provision prior to the third reading of the Bill:

Deeming — habitat

(2) For the purposes of this Act, the quantity, timing and quality of the water flow that are necessary to sustain the freshwater or estuarine ecosystems of a fish habitat are deemed to be a fish habitat.

Bill C-68 is currently before the Senate Standing Committee on Fisheries and Oceans, and includes this provision.  This article addresses why the above provision was inserted into Bill C-68 and what the implications of this change might be if it remains in Bill C-68 following Senate committee review.

First, the "why".  The above provision, which, for the purposes of this article, will be called the "deeming provision", has its genesis in a broader concept known as "environmental flow".  The Canadian Science Advisory Secretariat has adopted the below definition, endorsed at the 2007 International River Symposium held in Brisbane Australia:

Environmental flow describes the quantity, quality and timing of water flows required to sustain freshwater ecosystems and the human livelihoods and well-being that depend on these ecosystems.1

A number of witnesses at the committee stage of Bill C-68, advocated for the inclusion of environmental flows somewhere in the Act, including West Coast Environmental Law, Ecojustice, Oceana Canada, and the Tsleil-Waututh.

Notably, though the deeming provision might suggest otherwise, environmental flow does not necessarily require or imply a pristine aquatic ecosystem, devoid of human use.  Rather, the concept of environmental flow presumes a variety of uses.  As the International Union for the Conservation of Nature notes:

Intuitively, it might seem that all of the natural flow, in its natural pattern of high and low flows, would be needed to maintain a near-pristine ecosystem. Many ecologists believe, however, that some small portion of flow could be removed without measurable degradation of the ecosystem. How much could be removed in this way is more difficult to assess, with estimates ranging between about 65% and 95% of natural flow having to remain, with the natural patter of flow also retained. Once flow manipulations move past this, then river ecologists can advise on patterns and volumes of flows that will result in a range of different river conditions. This information can then be used to choose a condition that allows an acceptable balance between a desired ecosystem condition and other social and economic needs for water. The flows allocated to achieve the chosen condition are the environmental flow.2

Concern about maintaining environmental flows reflects the reality that many of Canada's aquatic systems are under increasing pressure from human activity, and that water is not an unlimited resource.  From an environmental-protection perspective, the benefit of an environmental flow approach is that it is inherently holistic.  Considering environmental flows involves thinking about the total health of a water body and attempts to account for the total effect of individual water uses on the system as a whole. 

However, while it is easy to understand that a certain level of water flow (or indeed, a seasonal variability of flow) is environmentally necessary, it is not as easy to "operationalize" the concept.  What, for example, is a dam operator or industrial user of water to do in order to maintain the environmental flow of the waterway they benefit from? Many water users alter flows daily, simply by nature of their operations.

Equally there are issues in determining the appropriate environmental flow.  As it stands, there is no single, federally-mandated methodology to determine what the appropriate or required environmental flow is in a given waterway.  Various methodologies to assess the appropriate flow exist.  The World Wildlife Fund suggests that there are over 200 methodologies to determine environmental flow globally, reflecting in part the variety of water resources being assessed.3 The Department of Fisheries and Oceans, through the Canadian Science Advisory Secretariat, has assessed a number of these methodologies.4 

Bill C-68, as it stands, does not mandate how the appropriate or required environmental flow is to be established for the purpose of the deeming provision.  For dams and fishways, this might be done by regulation, given the Ministerial power at s. 34.3(7) to "make regulations respecting the flow of water that is to be maintained to ensure the free passage of fish or the protection of fish or fish habitat."  However, it is not yet clear what guidance will apply to restrict or limit other types of water use for the purposes of their operations.  Consumptive use, for example, has a different effect on environmental flow than obstruction or temporary diversion of water.5 

Nevertheless, the variability of environmental flows means that regulations will likely be unable to clearly mandate what must be done by individual users.  Instead, it is likely that a case-by case approach will be required. This is because optimal environmental flows vary depending on the water in question.  For example, perennial rivers (those that flow all year) do not have the same characteristics as seasonal rivers that flow only at certain times of year (such as during the spring freshet).6 Given that the environmental flow for a given river system is individual to that system, and given that different uses may affect flow differently, it is unlikely that appropriate environmental flows will be easily established by general regulation.  Instead, it will be necessary to establish the flow for the specific system in question. 

Without guidance, it is not yet clear what types of alteration of flow are permissible and what might require authorization by the Ministry as an alteration of fish habitat for the purposes of the new Act.  Further, it is likely that what one user does on a waterway with respect to flow will impact another potential user's ability to use water.  This means existing uses of a waterway and their impact on environmental flow will have to be assessed when determining whether a future use of that waterway is appropriate or approvable.  Guidance is required from the DFO on these points, either through regulation or policy-making. 

Guidance is also required to understand how users' obligations to maintain environmental flows relate to their obligations under provincial water regimes, such as the Ontario Water Resources Act.  Permits to take water under the Ontario Water Resources Act, for example, often take into consideration appropriate water flow and the health of upstream and downstream environments.  Water uses will require coordination between provincial and federal authorities to ensure that the regulatory burden is not duplicated between regimes.

While including flows in the definition of fish habitat represents a significant change to the Act, considering flow as part of habitat is not new. The previous Act's prohibition of killing fish (former s. 32) and prohibition of harmful alteration or destruction of fish habitat (former s. 35) already indirectly contemplated the concept of maintaining ecological flow. 

Case law bears this out.  For example, Rio Tinto Alcan Inc. was successfully prosecuted under both of these sections of the former Act when, acting on what it perceived to be DFO authorization, Rio Tinto initiated an emergency ramp-down of water flow past its dam in the Kemano river.  It did so in order to allow B.C. Hydro to conduct urgent infrastructure repairs.7 The court found that this rapid decrease in river flow had deleterious impact on salmon fry (juvenile salmon) in the river. 
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Given that Bill C-68, in its current form, returns the s.35 prohibition on harmful alteration damage or destruction of fish habitat to the Act. If Bill C-68 is approved in its current form, then interference with flow that impairs habitat will, once again, constitute an offence.  It remains to be determined whether any guidance will be provided through regulation or DFO policy.  If Bill C-68 in its current form comes into effect, then in the event of a prosecution, water users who may be charged under the new s. 35. Those who are charged and who seek to make out a due diligence defence will be well-served to understand the hydrological conditions of the watercourse within which they operate. Water users in general would benefit from clear DFO guidance on what must be done to maintain environmental flows. 

READ MORE: http://bit.ly/newfisheriesact

By PETER MAZEREEUW      
Bill C-69, a bugaboo for conservative politicians and a target for environmentalists, is in for a long, rough ride in the Senate.