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Defenders of Alberta’s Bull Trout Say This Bridge Is Illegal

The span’s construction has triggered a DFO probe and accusations that federal species protection laws are poorly enforced.

Clayton Keim 17 Oct 2023The Tyee

Clayton Keim is a Calgary-based freelance journalist with an interest in the economy, social issues and Alberta politics.

Alberta conservationists say a recently built, potentially illegal logging bridge over the Highwood River in Kananaskis illustrates how the federal government is failing to adequately enforce legislation designed to protect at-risk species.

On Aug. 16, Michael Sawyer, an environmental consultant, visited the river after seeing a photo of an access bridge on Facebook. He discovered heavy equipment had built a bridge over the river, a potential offence under the provincial Fisheries Act and the federal Species at Risk Act.

“Arguably, they built that bridge illegally because they're impacting the habitat of at-risk species, which they can't do without a Section 73 permit,” Sawyer said.

The Highwood River is one of the few remaining habitats for the bull trout, Alberta’s official fish. The species is listed as threatened under the federal act.

Fisheries and Oceans Canada, commonly referred to as DFO, announced it had opened an investigation on Aug. 30. Sawyer said a DFO official told him Spray Lake Sawmills has since applied for a Section 73 permit.

It is unclear if the access bridge was built by Spray Lake or a contractor.

If a similar permit is issued retroactively, Sawyer is willing to fight the decision in court, he said.

“We're hoping that they will issue a permit,” Sawyer said. “We can challenge that decision in the Federal Court of Appeal as being an incorrect interpretation of the law.”

Spray Lake Sawmills declined interview requests. In an email, the DFO confirmed the investigation was ongoing and it was "unable to provide further details at this time."

Before a Section 73 permit is issued for a resource development project, a DFO minister must be satisfied on two main elements: the harm to an at-risk species must be incidental, and a permit recipient must do everything they can to mitigate harm.

University of Calgary associate professor Shaun Fluker specializes in environmental law. He said the DFO typically issued Section 73 permits to conservation scientists or biologists working with at-risk species. That changed over the last five years, as resource development and industrial projects began frequently acquiring permits.

“The DFO has stated several times that it considers industrial activities, or the impact of a resource development project, to be incidental,” Fluker said. “I don't necessarily think that is an interpretation of the word that fits the purpose of the act, but that is clearly the direction they have taken.”

Fluker said a second pillar of permit approval is met through “offsetting.” If the damage to at-risk species is determined to be “unavoidable,” a company can promise to restore or enhance the habitat elsewhere.

“It is widely understood that offsets are only as effective as their implementation,” he said. “There is often a substantial time lag between the harm that is caused by the project and the results of the offset, especially in rivers or streams.”

David Mayhood, who has worked as a freshwater ecologist since 1967, accompanied Sawyer to inspect the access bridge. He said the chances of Spray Lake being prosecuted are slim.

“I don’t expect it to go anywhere,” Mayhood said. “Effectively, if they wanted to prosecute, they would have to have been there before the bridge was put in.”

Mayhood and Sawyer previously spoke out against a similar issue in June. The DFO granted a Section 73 permit that allowed the construction of a pipeline through species-at-risk-protected habitats of bull trout and westslope cutthroat trout. Sawyer is currently working to challenge the decision in federal court.

“They can issue a permit to an industrial activity which essentially grants the company a get-out-of-jail-free card without considering if it has a serious impact on a particular endangered species population,” Sawyer said.

A close up of a hand holding a small, spotted trout slightly out of water, with rounded river rocks visible below the surface.
Bull trout in Highwood River, one of the last habitats for Alberta’s official fish. Experts say the DFO is too quick to grant Section 73 permits for construction in habitat endangered species depend upon for survival. Photo by Amber Toner.

The uptick in Section 73 permit approvals coincides with a “dedicated, focused effort on lobbying DFO bureaucrats by the Alberta forest industry,” Sawyer said.

“The DFO has repeatedly demonstrated that they are a captive regulator and are working vigorously to support industrial development at all costs.”

Fluker doesn’t believe the DFO is captured but said it is hesitant to use its powers as a federal department.

“Records show that the DFO is often collaborating with Alberta officials. While there might be some need for collaboration, these are matters the DFO should be asserting its authority over rather than deferring to other departments.”

Enforcement is also undermined by a lack of federal staff.

A 2022 report by Canada’s auditor general found the DFO assigned only 30 full-time officers, or six per cent of the department, to Alberta, Saskatchewan, Manitoba, Ontario, the Northwest Territories and Nunavut. Those combined provinces and territories contained 45 per cent of protected aquatic species.

“I do think the field biologists are trying to do a good job, but they just don’t have the resources or manpower to do it,” Mayhood said.

“I’ve reported many issues of habitat destruction for listed at-risk species that they simply haven’t been able to adequately address.”

Spray Lake’s big logging plans and new BC owner

Spray Lake plans to log 1,100 hectares of forest around the upper Highwood River between December 2023 and 2025. Vancouver-based logging giant West Fraser Timber purchased the company on Sept. 6 and is expected to take control of Spray Lake later this year.

Mayhood said West Fraser’s environmental practices make him “cautiously hopeful,” but he said environmentalists should “be cautious about how this new company will treat lands that are, in my opinion, severely over-logged.”

“Further south from the Highwoods, the amount of clearcut logging is absolutely egregious. It is decimating the forest.”

Logging operations near Kananaskis pose several risks to the environment. Vegetation surrounding the Highwood River and Loomis Creek — both targeted for clear cutting — are critical for flood prevention.

Sedimentation can impact communities, such as High River, that depend on the Highwood River for their water supply. There are also plans to clear cut along the border of the Highwood Pass, a hot spot for tourism and recreation.

Fluker said the DFO often comes into conflict with Alberta’s Ministry of Forestry and Parks, which regulates logging projects.

“You have the federal legislation which calls for absolute protection, and you have the provincial regime which relies heavily, if not exclusively, on operating ground rules which have a lot of discretion embedded in them.”

Critics point to a lack of transparency within the DFO’s authorization of Section 73 permits. Fluker said democratic accountability could be fostered by requiring officials to publish their rationale for authorizing permits or delisting protected species.

“We have gotten to the point where we as a society have to decide if we are going to protect at-risk species, or if we are going to allow forestry, coal mining, and oil and gas operations to proceed,” he said. “We are not having that conversation.”  [Tyee]

Read more: Alberta, Environment

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