Hours Left to Tell Liberals to Reverse Harper Attack on Fish Habitat Protection

Oil still randomly rises to the surface and fish are still being found dead a year and a half after a massive CN derailment in northern Ontario saw 30 out of 100 cars dump 1.4 million litres of crude oil into the Makami River.

Volunteer fire chief Mike Benson rushed out of his house around 3 a.m. on March 7, 2015, and spotted the crash site, just one kilometre from the town of Gogama.

He faced billowing clouds of black smoke and the noisiest, smelliest wall of flames encountered in his firefighting career. “Terrifying and beautiful at the same time,” he recalls.

As incident commander for local disasters Benson was the first to arrive on scene, and by 7:30 a.m. a team had assembled. Benson told The Tyee that along with his firefighters, 13 CN officials and one provincial environment ministry staffer arrived. While he worried about the fire and the toxic smoke, the others devised a plan to cut through four feet of ice on the river and place containment booms on the surface.

Thirteen booms were laid and CN began vacuuming the oily water off the surface (all told they pulled 4.1 million litres out of the river).

Eleven days later, Benson says, CN officials wanted to cut more ice so they could stack bales of hay in the running water to filter out the oil.

“Now why would you want to do that?” he remembers asking. They had told him the oil was contained, and that it floated — as CN maintains today.

But Benson said the officials told him then that not all the components of the crude float. And cleanup efforts have included months of vacuuming contaminated sediment from the bottom of the river. 

Benson is an avid fisherman. The community’s economy is fuelled by enthusiasts who flock each summer to this once pristine Lake Minisinakwa fed by the river.

But when the next summer came, he and his neighbours and the tourists they serve began finding dead fish in oily patches on the lake, at sites as far as four kilometres from the crash site, he says.

By mid-July, 400 fish had been found dead. CN told the community the summer heat had killed them. Benson asked around. He talked to a 96-year-old man who’d never seen more than one or two dead fish on the lake before.

Despite assurances that CN Rail has done what it can, Benson doesn’t believe the corporation anymore.

“There hasn’t been one order or compliance plan,” he told The Tyee. “No fines, no warnings. Nothing.”

He can’t believe that CN Rail has been left to police the cleanup themselves. “I know people who’ve been fined $200 for killing one fish,” he says.

The underlying causes of disasters like the train derailment at Gogama and other huge industry-caused environmental failures, like the collapse of a massive tailings pond at Mount Polley mine in British Columbia in 2014, are serious in themselves.

But critics say changes to the Fisheries Act in 2012 have left government with next to no ability to charge companies for destroying vital fish habitat.

More importantly, after years of budget cuts and ministerial interventions to block charges under the act, there is a lack of political will to ensure damaged fish habitat is cleaned up and too few trained enforcement staff to ensure orders are followed even if they are made.

In 2012, the Harper government’s omnibus bill included sweeping changes to Canada’s oldest and strongest environmental law.

The most galling for many was the deletion of the provision that had outlawed the “harmful alteration, disruption or destruction of fish habitat.”

At the same time as these sweeping changes were made, a “Strategic Organizational Review” resulted in structural changes to the Department of Fisheries and Oceans that saw hundreds of people across the country, many responsible for monitoring and enforcing habitat protection, either shuffled to other positions, centralized in urban areas or let go.

A March 2016 Vancouver Sun article revealed that DFO “has not laid a single charge of damaging fish habitat, despite almost 1,900 complaints nation-wide, since controversial changes to the Fisheries Act came into effect.”

Darlene Drayton-Skinner worked as a DFO habitat inspector in Ontario from 1999 to 2011. She says that if the Gogama disaster had happened on her watch, she would have been at the site the next day with a biologist and her orders on cleanup provisions would have been indisputable.

“DFO’s only requirement during this tragedy at Gogama was that the company notify them that there had been a spill,” she said. “I was working for the province for natural resources and forestry in that area at the time. We contacted the two Fishery officers that were left in Ontario (in Burlington) but it took two months for them to come up and look at the spill site. They finally showed up and said you guys are doing fine and left. They never did a thing.”

“Now no one is monitoring these large projects,” she says. “It doesn’t even matter what the Fisheries Act says because no one is enforcing it.”

Former DFO habitat protection biologist Otto Langer says it is not just big projects Canadians have to worry about. No one is monitoring the hundreds of small projects taking place in watersheds and waterways across the country either — things like culverts, driveways over streams, infill projects and more. “These projects go unnoticed and a stream dies by a thousand cuts,” he says.

The move to “self-regulation” by industry started taking hold during Paul Martin’s Liberal government, says Langer. By 2003, the Pacific Region’s habitat division saw huge funding cuts and more frequent ministerial intervention when habitat was damaged — especially when the infractions or habitat destruction was committed or approved by provincial government bodies.

Not only is there a lack of political will to lay charges in many cases, but the department is losing the institutional memory on proceeding with successful prosecutions.

Langer, who’s been an expert witness in dozens of environmental cases, says that collecting evidence that can be used by Crown prosecutors and testifying in court proceedings are not intuitive skills.

“They’ve dug themselves into a giant hole. You can’t go to university and learn how to prosecute. Historically you probably had 20 officers [in the Pacific Region] that could take the lead. Now they have totally disappeared.”

More boots on the ground are needed, he says. Closures of local field offices across the country have made it harder for staff who are left to investigate non-compliance or to work with project managers to protect fish habitat before work starts in vulnerable areas.

There is a reason that 625 scientists opposed the changes to the legislation in 2012, as reported by The Tyee.

Langer and Drayton-Skinner, along with organizations like West Coast Environmental Law and Oceana Canada are hoping that Fisheries Minister Dominic LeBlanc and the Trudeau government will put some teeth back in the Fisheries Act. LeBlanc is the son of former fisheries minister Roméo LeBlanc who first introduced the habitat protection provisions into the Fisheries Act in 1977.

The elder LeBlanc was passionate about what he called the “useless looking places that ruins your shoes.”

He spoke to the House of Commons clearly about why habitat protection was critical. “The chain of life extending to the whole open ocean depends on bogs, marshes, mudflats, and other ‘useless-looking’ places that ruin your shoes,” he said. “Biologists have likened these areas to the corn fields and wheat fields on the ocean. These rich shore areas support salmon, lobster, herring and other local populations; their influence extends for hundreds of miles, even to the rockiest shorelines. They are the irreplaceable nurseries of fisheries well-being.”

Canadians still have until Friday to tell the government about the need to reform the Fisheries Act and the changes required. To add your voice to the public consultation, go to Let’s Talk Fish Habitat.