Many individuals and organizations routinely do work in areas that a layperson might not think of as fish habitat. They include municipalities doing ditch maintenance and roadwork, forestry companies engaged in logging operations, and conservation organizations undertaking habitat improvement. Can cutting a tree or depositing fill on dry land constitute harmful alteration, disruption or destruction of fish habitat ("HADD") under s. 35(1) of the new Fisheries Act? The possible answer could be "yes". Consider the following examples:
In R v. Larsen, land developers owned property that became overgrown. The developers brought in an excavator as part of the site cleanup. The excavator operator was not provided with a clear work plan. He was vaguely warned to stay away from the stream on the property. He used the excavator to cut and push over trees and remove brush near the stream.
The operator and developers were charged and convicted of HADD under s. 35(1) of the pre-2012 Act (the same as s. 35(1) of the new Act). The developers appealed. On appeal, the Court upheld the trial judge's finding that:
for the purposes of section 35(1) of the Fisheries Act, "fish habitat" includes not only the waterway in which fish travel, but also the adjacent land and vegetation that contributes to the ability of the fish to hatch, eat, grow, migrate, and ultimately reproduce.
The appellants' conviction was also upheld. The Court upheld the trial judge's conclusions that the appellants contravened s. 35(1) by:
- removing vegetation that shaded the stream (thus preventing overheating);
- removing trees and vegetation that provided woody debris that furnished food and habitat;
- decreasing nutrient and food sources; and
- decreasing soil and bank stability. .
In British Columbia v. Posselt, the accused were a logging company and its president. The accused owned land intended for logging. A brook on that land that was used by brook trout in wet years, but the brook dried up completely in other years. The logging involved the removal streamside vegetation and trees when the brook was dry.
The accused was charged for HADD pursuant to s. 35(1). The accused was acquitted because there was insufficient evidence that fish habitat was impaired. In particular, the court found that the amount of woody debris deposited on the streambed was not sufficient to suggest impairment of habitat, noted that substantial foliage remained to shelter the brook, and took into account the return of brook trout to that waterway in later years. Importantly, however, there was no question that the dry streambed could constitute habitat. Instead, the Court proceeded on the basis that the dry creek bed still constituted fish habitat and that felling trees near the creek could constitute HADD (it just did not, in these circumstances).
In R v. Bowcott, the accused dumped fill on the seaward side of a dyke, on the foreshore of a large salt marsh. The fill was not in the marsh itself. It was clear that the marsh was fish habitat. The accused successfully argued that there was insufficient evidence that the fill site constituted habitat. In particular, there was no evidence that, under normal conditions, the area was wetted or washed by water, other than on one unusual occasion of flooding. There was also no evidence to conclude that fish used the area for spawning, rearing young, or food.
In upholding the acquittal, the appeal judge found that fish habitat did not include everything that might be connected to a watercourse:
I note the definition of fish habitat includes the words "on which fish depend directly or indirectly in order to carry out their life processes". I interpret that phrase to mean something other than "could possibly be used for" the listed purposes. For example, if there were never any fish in the area, the dependence of fish could not be proven. I agree with the comment of Van Der Hoop C.C.J. that some limitation is necessary in using the definition. The legislature could not have intended that all lands, however distant from water, connected to fisheries that could be proven to have some influence on the water quality in relation to fisheries be subject to section 35(1) of the Act; that would include entire watersheds.
The Court took care to note, however, that the decision did not establish that the site was not fish habitat, merely "that the evidence led in this prosecution did not prove the case alleged beyond a reasonable doubt."
- The disturbance of streamside or lakeside vegetation, including large trees, may constitute interference with fish habitat for the purposes of the Fisheries Act. Care should be exercised before these features are removed.
- Areas do not have to be consistently wet in order to constitute fish habitat, though areas that are rarely flooded are less likely to be considered as fish habitat.
- Operations to remove vegetation or alter a landscape in proximity to a watercourse should not be conducted without a clear plan prepared in consultation with an expert.
- The determination of what constitutes "fish habitat" has reasonable limits. However, the greater the proximity and connection to a water body, the more likely an area may be considered fish habitat.