Fish and Fish Habitat
While the provincial government is assigned control of water management more generally, fish and their habitat fall under the federal government’s Fisheries Act. Specifically, this power comes from Section 91(12) of the Constitution Act which assigns ‘Sea coast and Inland Fisheries’ to the federal government.
Protection and preservation of fish and fish habitats under the Fisheries Act comes in part from section 35(1) which specifies that “no person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.” This provision has been referred to as the HADD provision. For the purposes of protecting fish habitat, the Act defines habitat as “water frequented by fish and any other areas on which fish depend directly or indirectly to carry out their life processes, including spawning grounds and nursery, rearing, food supply and migration areas”. Relevant elements of a section 35 offence will require the Crown to prove:
- That the water is frequented by fish,
- That fish depend on the area for its life processes (directly or indirectly),
- There is harmful alteration, disruption or destruction of fish habitat, and
- A party alleged to have violated the act undertook the activity, work or undertaking.
While dead fish may be evidence of the fish habitat, proof of harm to fish not required.[1] For example, harm to fish habitat may be enough. Additionally, the activities that are covered by the section are extensive and can include activities on lands adjacent to waters frequented by fish.
Westslope Cutthroat Trout and the Species at Risk Act
The westslope cutthroat trout (“WSCT”) are fish native to “the mountain and foothill streams of southern Alberta within the Oldman and Bow Watersheds.” Considering ongoing population decline, the Alberta population of WSCT were identified as ‘threatened’ in 2006 at the provincial level and at the federal level in 2013. In fact, as of 2017, the current populations of WSCT were assessed at low or very low abundance in the province and as “no longer exist[ing] within an entire watershed.”
Today, recovery strategies exist at both levels of government.
Provincial: The Alberta Westslope Cutthroat Trout Recovery Plan 2012-2017 released in March 2013; and
Federal: The first federal recovery strategy, the Recovery Strategy for the Alberta populations of Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) was released in March 2014.
In 2019, the federal government released a second Recovery Strategy and Action Plan for the Westslope Cutthroat Trout (Onchrhynchus clarkia lewisi) Alberta Population (also known as the Saskatchewan-Nelson River Populations) in Canada. However, there were limited differences between the first and second recovery plans.
The initial federal plan identified both a ‘residence’ and a ‘critical habitat’ for the WSCT. However, the definition of ‘residence’ was limited to the ‘redd’ which is “a depression in the stream gravel excavated by the female where her eggs are then laid and covered with gravel.” This is a limited definition because, for these fish to thrive, and based on the definition of a ‘residence’ in the federal Species at Risk Act, the residence of the WSCT should consist of the lake or entire length of stream used by the fish for all of their life history functions.[2] This means that the protected habitat is less than what is actually needed for the survival of the fish.
This is important because the SARA prohibits any person from destroying any part of the critical habitat of any listed endangered species or of any listed threatened species…if (b) the listed species is an aquatic species.” If habitat is not identified as critical, it will not be protected by the SARA.
Constitutional issues also arise. For example, while the federal government could develop a recovery strategy under the SARA, it is to be “implemented on land and water owned by Alberta.” This is an issue because the provincial government has different protection standards than the federal one. If the province chooses not to use their provincial laws to protect the WSCT, there are options for the federal government to step in and do so.
For example, section 58 of the SARA can be used to prohibit any person from destroying the critical habitat of any listed species. In the case of the WSCT, the federal Minister decided to issue a critical habitat protection order on December 2, 2015. The order identified critical habitat for the WSCT on provincial lands and had the authority to halt activities that would interfere with the critical habitat of the fish.
[1] R v French, 2018 ABPC 296.
[2] Shaun C. Fluker & David W. Mayhood, “Environmental Stewardship of Public Lands? The Decline of Westslope Cutthroat Trout along the Eastern Slopes of the Rocky Mountains in Alberta” (2020) 42 Pub Land & Resources L Rev 39 at 65.