Ertic Hellsten

  Principal

  Office of Auditor General of Canada

  Vancouver BC

  RE: FISH  HABITAT AUDIT -- DFO,Environment Ministry

Our organisation has been involved with efforts to rehabilitate the Tsolum River and its degraded ecology for 10 years.We have been and are involved with habitat issues on several fronts;

  1. Remediation of severe damage to fish stocks and habitat due to  acid

mine drainage from a copper mine on Mt. Washington abandoned in 1962.

  2. Habitat restoration including;  wetland restoration, water retention ponding, bank erosion remediation and control, riparian planting, habitat complexing, and replanting.

  3. Involvement with Regional and Provincial initiatives to improve public awareness, entrench better protection of aquatic habitats and bring a conservation ethic to land use planning

  4. We operate a fish hatchery for pink salmon in our efforts to increase the nutrient and invertebrate value of our river with moderate success. We must note that this hatchery had been abandoned by DFO.

  5. Water storage and control to combat low summer flows and high temperatures resulting from destructive logging practices, urban and agricultural development. We have recently commissioned a professional hydrologist to produce a report to increase water storage in our watershed for release during extreme low flows. The partnership which includes, TimberWest Forest Corp., several branches of DFO, the BC Conservation Foundation, other interested stewardship groups and citizens is meeting again in February 2008 to move this project forward by determining next steps.

6. Stock assessments are carried out annually by volunteers. We operate

 a rotary Screw trap from March to June counting juvenile outmigration and we count inmigrating adults from August to March with formal assessment methodology, casual salmon spotters program and swims for steelhead.

7. We maintain an elaborate array of community information display and printed materials, attend all major events in the Valley with display tents and we lobby and interface regularly with a myriad of public ministries at all levels of government, industry including large private landowners engaged in logging,  other commercial concerns, private landowners, public interest groups and the public itself.

Our group has a history of activities on the Tsolum River that spans over thirty years. From involvement with the Comox Valley Branch of the Steelhead Society of BC one of our directors, Father Charles Brandt has spent since 1977 assisting with enhancement projects and mobilizing the first efforts to eliminate the toxic copper leachate from an old copper mine abandoned by the Mt. Washington Copper Mining Company in 1967. Since that time there has been a group of concerned citizens continually trying to motivate those government bodies responsible for controlling such serious pollution. It is only since 2001 when Environment Canada issued an “Inspector’s Direction” to the current landowners that concerted effort has been forthcoming.

Public Outcry Essential

A partial cap installed in 1988 was due only to years of public outcry. When it apparently did no good government washed their hands of the site and declared the project a failure and the river dead. With renewed public outcry several other attempts were authorized by governments of the day but, carried out with private money and little oversite.

A robust Task Force was developed by the community and for three years from 1997 to 2000  many meetings were held but no remediation was forthcoming. By 1993 the stocks in the river had become nearly extinct with only remnant populations remaining.

In 2001 Environment Canada used a legal tool to force the current la ndowner (who did not do the mining or create in any way the devasation experienced) An an "Inspector’s Direction" finally resulted in a slow but steady progress.

A river considered one of the most degraded in the province and declared dead now has a viable biology. Now that this overwhelming source point pollution is being dealt with at last, we can turn our energies to dealing with the myriad of other ills in the watershed.But to be clear, it is now much easier to forge alliances and find money for other projects. Our question, with some bitterness, is why did it take so long? Is it not DFO and EC’s roles to not only prevent this type of damage to a highly productive river system but if damage is done to use the full extent of the law to protect stocks and not wait for mounting public outcry before something is done?

Our requests for information about the process were met with delays and refusals. We had to spend our own scant resources on Access to Information programs with our requests for information taking over a year. At no point did we feel that industry and government were trying to be helpful or supportive or show any regard for the fact that our group and the community we represent would be a critical part for follow through for years after the source point intervention.

Protection and Enforcement Inadequacies

All along the Tsolum River there is evidence of practices that are damaging fish and fish habitat. As two thirds of the 250 sq. kilometre watershed is in Private Forest Management we observe a different standard of habitat protection and enforcement.

Two examples:

1) During the 2005/2006 logging season the largest landowner in Western Canada, TimberWest clear cut logged an area surrounded by rural residences. While TimberWest logged trees from immediately adjacent to several small tributaries, damaged the remaining vegetation through the use of feller/bunchers, left little to no canopy for these tributaries and again, changed the hydrology of the surrounding land through the sheer volume of impact another landowner on one of the same tributaries was clearing land for agriculture. In our opinion the damage to the creek done by the small landowner had far less impact than the forest company yet the small landowner is under charges while TimberWest continues to harvest unabated. We were even told verbally from DFO enforcement personnel that the damage done by the forest company was in contravention of the Private Forest Regulation that it was “too small to worry about and that they wouldn’t lay charges against TimberWest anyway because the case would cost too much to pursue and the likelihood of success was nil”. At the same time the adjacent landowner was fined and made to do rehabilitation under the Fisheries Act.

2) In the spring of 2007 there was a blowdown adjacent to the Headquarters creek hatchery which we operate. The area had been logged during the same season as above and the riparian leave strip was a single tree wide. Approximately 30 trees blew down during the same storm that affected Stanley Park and Headquarters Creek was impacted immediately by large amounts of tree tops, broken logs and dry standing deadfall. The domestic water supply for the hatchery was severed and the hatchery operation took days to clean up.

As remediation, a DFO official requested that the landowner remove the trees from the river, secure some of the larger woody debris to the bank for habitat improvement and spiral prune the remaining trees deemed to be at future blowdown risk. The landowner agreed to take these actions. To date, some 10 months, later all that has been done is the spiral pruning of the trees.

In October 2007 once we had realized water levels were too high to work in the river for the year we again contacted the DFO Habitat Officer and the forest company.

DFO informed us that their directive is not enforceable and have told us verbally again that its not worth their while to go after these relatively minor infractions as they don’t have the in-house expertise to investigate and its expensive to bring in outside experts.

In November of this year another 10 trees have blown down and some logs left instream had moved downstream contributing to a debris jam that no doubt eventually will bang its way down the river, causing some scouring and possibly bank damage. At the site of the uprootings, there is some minor erosion and siltation is being produced.

We have a number of concerns with this scenario. We think these kinds of minor infractions are common and major logging companies get away with it regularly adding to cumulative negative impacts from their activities. With cutting permits being issued in BC every year the cumulative habitat degradation and loss is surely significant. We think relying on corporate due diligence and self-regulation to police themselves is not effectively protecting the immense amounts of habitat under, particularly Private Managed Forest Lands. We believe that the policy of only prosecuting major offenses is analagous to not going after a drunk driver until they kill someone in a crosswalk.

We would recommend and support the issuance of enforceable tickets so that there is a real cost to doing business in this environmentally irresponsible way and damage is mitigated in the shortest possible timeframe.

Habitat Continues to Be Lost

Two relatively new ways of protecting habitat have been implemented over the past several years.

1) The Environmental Process Modernization Plan

Based on a risk-management frame work this shift away from regulatory, prescriptive habitat management is plagued by problems. The most glaring of these is the fact that if the activity around fish bearing waters falls into the low-risk category no approval, no baseline or pre-activity site visit and no follow up is required. It is assumed that the proponent will go to the DFO website, find the appropriate Operational Statement, study it, understand it in terms of what constitutes damage to fish habitat and follow it. Once directed to the Operational Statements page you find references to the Provincial Water Act where it states “  Fisheries and Oceans Canada (DFO) has ultimate authority over fish habitat through the Fisheries Act, which is the main federal legislation affecting all fish, fish habitat and water quality. Any time your proposed activity has the potential to deposit a deleterious substance or if you are seeking a permit to destroy or alter fish habitat, this act is invoked.” However for a number of low-risk activities you need not go any further. The scrupulous among us will indeed follow the “guidelines” suggested but those who are less than scrupulous or who have economic considerations and find that by following the “guidelines” there will be negative impact to their bottom line will always attempt to take the easiest and less expensive way out. As there has been no pre-activity baseline required there is no way to know for sure if the activity was done, done within guidelines or even when it is obvious that it was not there is no recourse as no baseline information is available. It is inevitable that these occurrences can add to cumulative impacts in a watershed.

Section 35(1) “no person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat”; and

Section 36(3) “... no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish...”.

Section 35 of the Act protects fish habitat. Subsection 35(2) also contains provisions for DFO to authorize works where the harmful alteration, disruption or destruction (HADD) of fish habitat is expected. Proposed works that would result in a HADD may only proceed after an authorization under Subsection 35(2) of the Fisheries Act has been issued, in addition to a Water Act notification or approval.

These sections clearly undermine the Federal Government’s ability to proactively prevent damage to habitat as they can only be invoked if the damage is already done. We do not have the ability to prevent them from occurring in the first place and in the end very few of these habitat violations are taken to the courts, very few convictions are awarded by the courts and DFO’s resource base has become so eroded over the last 20 years that there is absolutely no ability to provide services or personnel to gather legally required baseline information upon which to build a case. Violations, large and small are occurring daily right across Canada adding further to a growing accumulating impact.

2) Riparian Area Regulation

Due to dwindling resources within DFO actual proactive habitat protection has been downloaded to the Province. The Province due to their own allocation of resources and in the same “business friendly” approach to protection as DFO has taken have in turn, downloaded the responsibility for habitat protection to Municipalities and Regional Districts under the Riparian Area Regulation and in the case of some local governments the Streamside Protection Regulations.

In theory it would seem a positive, cost effective method for saving money by this type of downloading. The RAR however, is a system that requires the proponent to find, hire and pay a Qualified Environmental Professional to provide the “prescription” for the works being proposed. Herein lay the inherent conflicts 1) By requiring a QEP to provide a “prescription” for the works everyone involved is fully cognizant that a prescriptive approach is in fact necessary to protect habitat, and 2) it is in the best interest of the proponent to find the QEP best suited to ensuring a reasonable profit on investment.

It is therefore obvious that the prescriptive approach is necessary but we are allowing special interests to define habitat loss in many cases instead of the authorities set up and financed by public money to do this job. Again, in most cases the RAR and proponent/QEP relationship is working well to not only protect habitat but in the case of a growing number of proponents truly caring about the environment to actually affect a net gain in habitat by the time the project is completed. But again, the number of cases where damage is done, no compliance is forthcoming, no charges are laid and no mitigation takes place we add to the ever-growing accumulation of impacts to our watersheds.

Flawed Research and Science Produced to Support Political Mandates and Not the Mandate of the Fisheries Act

One needs only to look at the collapse of the cod fishery on the East Coast of Canada to see that DFO’s scientists are challenged to support status quo decisions. Of the 65 DFO employees who spoke up about the flawed science years before the cod stocks disappeared and were making scientifically based claims predicting the indications of collapse none are still working with DFO. Many were fired outright, some were laterally shuffled and others were given completely different jobs in different arts of Canada and were eventually “squeezed” out.

On the West Coast we have seen the stock assessment effort that informed harvest management slowly disappear. The Guardian Program has been decimated, poorly chosen “indicator” streams and harvesting decisions based on a paucity of information add another cumulative impact.

Stock assessment has been identified as a serious conservation concern in BC’s Central and North Coast (PFRCC 02/2004) In fact for many of our northern streams the lack of indicator streams, reduction in assessment dollars and lack consistent assessment effort has led to a lack of reliable data for Regional and Area fisheries managers.

The ongoing salmon aquaculture debacle and sea lice interactions continue to fly in the face of adequate protection of the salmon resources in BC. There is enough published, peer reviewed science over the past 30 years since the birth of open net cage aquaculture in Norway to indicate a threat to wild stocks. Yet, the Department’s commitment to promoting aquaculture dismisses this evidence as unsubstantiated. Why then did a delegation from Norway visit with Federal Canadian officials to inform them of their concerns and urge the Canadian Government to not allow open net cage aquaculture to take place in Canadian waters? Why is the precautionary principle not being evoked? Why are salmon farms allowed to operate in the very waters our precious few remaining stocks must pass through as tiny juveniles.

The science on this topic produced by the Department obsfucates and disrupts serious research and desperately needed changes in the industry are not insisted upon.

We have heard DFO scientists claim that the biggest threat currently to salmon stocks world-wide is global warming. Why then is DFO not leading the struggle to reduce or mitigate the effects of these climate changes?

The Wild Salmon Policy must be based on the collection of a wide array of scientific information to inform the formation of Conservation Units yet no new resources are being made available to assist this effort?

It is a common perception among those who have or have had any kind of relationship with DFO that the science produced is NOT objective and is NOT  independent of political influences.

Conclusion

If DFO had being paying attention to their mandate and were continuing to pay attention to their mandate fish and fish habitat would be of no concern here on the West Coast or anywhere else in Canada. In the west where seven species of anadramous fish move in an ancient dance to and from the ocean bringing life giving nutrients to the landscape, birds, animals, insects and plants and the  people would have continued to be plentiful.

DFO has NOT done its job and in many cases has become the worst violator.