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Although the changes are minimal on the surface, experts say it is the wording of the new act that is of concern.
The proposed changes would see more power placed in the hands of the Minister of Fisheries and Oceans and would limit environmental groups from taking action against waterway polluters.
Environmental lawyer Mark Mattson said the protection of waterways is in jeopardy because of the “seismic shift” in enforcement from the department.
Certain sections of the act are weaker than its predecessor and definitions of key terms have changed.
The definitions of terms like ‘fish habitats’ and ‘deleterious substance’ have been altered and the entire section of the act that says waterways cannot be blocked has been removed.
Mattson said the alterations give DFO too many opportunities to exempt environmental polluters.
“Now we can’t rely on certain minimum standards to protect rivers and lakes,” he said.
“The new act talks about more discretion—they call it respecting, but it’s a more discretionary standard.” The precedent set by two Metro Moncton legal cases may be out the window if the new act passes.
The Moncton landfill leachate case and the Humphreys Brook textile mill discharge case gave environmental groups the power to step in and stop polluters.
But under the new act, environmental and community groups will have less authority to take legal action.
It remains unclear what right citizens would have for private prosecution.
The cases also clearly defined what constitutes pollution and violation of the act and experts fear those definitions will no longer exist.
Officials with DFO said last week that the proposed changes will give the department more power to enforce regulations and standards.
Gilles Belize, director general of policy at DFO, said the old act didn’t give fisheries officers enough power and that will be strengthened in the new act.
He said the new act won’t be a reduction of fish habitat protection.
“It will give us more authority to be able to enforce,” he said. “It will put in place regulations that will deal directly with habitat issues. Once in place, it’s going to make it easier to enforce.”
The new act also contains an “alternative measures agreement” that would allow for more discretionary ways for the department to handle violations of the act.
Before, if someone was found to be violating the act, they were slapped with a fine and charged by a fisheries officer.
The new act would allow for the department to decide the severity of situation and decide if legal action is warranted.
Belize said taking people to court can be a lengthy and costly process, and if the person found in violation acknowledges they are guilty, the department could avoid going to court and decide on alternative arrangements.
“You may face a situation were someone maybe didn’t know that they couldn’t do that type of work along a certain waterway,” he said.
Janice Harvey, marine conservation director for the Fundy Baykeeper, said it will take decades to build a new body of law based on the act’s new definitions, severely limiting the act’s legal scope.
She said the changes to the act still leave many questions unanswered.
“It’s dangerous because the more discretion there is, the less absolute protection you have,” she said. “It starts to smudge the lines.” The bill is currently awaiting second reading.