About two weeks ago I was leaked a secret Harper Government document and released it to the public (March 12, 2012). I commented on the significance of that government's attempted move to eliminate the habitat protection provisions in the Fisheries Act [i.e. section 35(1) - also called the HADD section of the Act - "harmful alteration , disruption or destruction of fish habitat]. The government was to sneak those amendments through Parliament in the Budget Omnibus Bill and few Canadians would have been aware of what had happened.

Since MP Fin Donnelly ambushed the DFO Minister in the House of Commons, Mr. Ashfield had to admit what he was up to and is now trying to rationalize his actions. Based on new information and brief Ministerial statements we can now see what has motivated Ashfield and his government and it is less than convincing and actually a bizarre logic. It is obvious that his plans to neuter the habitat law in the Fisheries Act is definitely not in the public interest and will ensure the continued erosion of Canada's wild fishery resources that have been in decline for many years.

During the past many days I have been contacted by hundreds of reporters and concerned citizens and those closely associated with the fishery and its essential habitat base. I have been forwarded information on the flooding of the Craven County (Saskatchewan) Jamboree campground (see below).  It is indeed that issue that Minister Ashfield seems to depend on most to rationalize the need to eliminate habitat protection from the Fisheries Act. Apparently his actions are based on a flood event that some river experts say, based on probability, will happen once every 300 years.

A Saskatchewan fish and game organization noted that thousands of northern pike and walleye (valuable sports, First Nations and in some areas commercial fish and ecologically significant species in any prairie river) were stranded behind the dyke after river flooding. The obvious way of addressing such a major fish stranding  problem would be by the breaching of the apparently poorly designed dyke 'protecting' a poorly located campground. The water and entrained fish would then naturally drain out of the Jamboree dyked campground and re- enter the Q'Appelle River and be safe and the campground would be drained.

This is a common sense solution and appears to have been suggested at the time. It is too bad that fish have to die because the Jamboree campground was located in a flood plain which would be an important and uncommon habitat type in an area that is dry and not rich in rivers. Also the building of such a dyke can be counter productive as has been learned in many river systems such as in this very Saskatchewan-Manitoba flood event in 2011 and in the Mississippi River system floods. The river needs to spread out during flood events and dykes block the natural functioning and value of a flood- plain and its floodplain habitat values.

If you do build such dykes you have to  construct them in a way to get water out from out behind the dyke once the flood is over. If pumps had to be used, a fish salvage program could and should have been undertaken.  This is not rocket science and is standard procedure! Once the dyke is breached to drain flood water, it would have been very logical to put in a drainage culvert and flap valve prior to filling in the  breach and in future years the site would drain naturally in the event of another flood. Why would this not be treated as a learning opportunity for all involved versus a knee jerk response by Mr. Ashfield? 

This fish stranding example as raised by Mr. Ashfield to rationalize why the habitat provisions of the Fisheries Act go too far in protecting fish habitat.  He accused his own staff of declaring the campground fish habitat and obstructed the drainage of the campground. Why has Minister Ashfield declared war on his own staff? Instead should he not budget for their training, better select competent managers and audit their activities before he cuts them off at the knees?

This example makes no sense whatsoever and provides no basis for the Harper government to go off on a tangent and say the present habitat legislation is too powerful to do the necessary job of protecting fish habitat across Canada. Despite the bizarre assertions of Mr. Ashfield, I am certain no court in Canada would accept a campground as fish habitat.

What Mr. Ashfield does not seem to realize is that the example he waves about is not really a habitat problem! If his DFO staff were not muzzled by the Harper Government they could state what actually took place at this incident. The entrainment of fish behind the dyke that would be killed by conventional pumping is really covered by another section of the Act - i.e. Section 32 - No person shall destroy fish by any means other than fishing except as authorized by the Minister or by a regulation passed by the Governor in Council. Therefore why use this incident as an excuse to eliminate the habitat provision of the Fisheries Act?

Even if the Harper Government did get away with the elimination of the habitat provisions in the Act, the very amendment that Mr. Ashfield has proposed and was leaked to Canadians still would have prevented the pumping out of the water from behind the dyke. If his amendment was passed by Parliament, it would still be illegal to do any work or activity that would adversely affect fish of economic, cultural or ecological value. Also in this circumstance the Section 35(1) would not to be used to stop the pumping - it was a fish kill incident that DFO staff were preventing - not a destruction of habitat.

Mr. Ashfield, his advisers and senior staff must get their minds straight on what they are really trying to do and obtain a basic understanding of Canada's habitat law and the need to protect fish and fish habitat as intended by Parliament in 1976. Mr. Ashfield again speculates that this is not the intent of that section of the Act. Again he is totally wrong. I was hired by DFO in 1969 to protect fish habitat and worked to get this section of legislation into Parliament in 1975. Mr. Ashfield was no where on the radar screen in 1975 so I do not understand how he is now an expert on what DFO staff and a public resource needed or what Parliament intended some 37years ago. Instead of criticizing his staff and attempting to raze the Fisheries Act for no good reason, should a Minister of Fisheries and Oceans not better support his staff and the true intent of the Fisheries Act?

Mr. Ashfield says there has to be balance between development and habitat protection. Where has be he been in the past 50 years? In the Fraser River Estuary (the ecosystem where habitat losses forced the creation of the Fisheries Act habitat protection section [Section 35] and the DFO National Habitat Policy in 1976 and 1986 respectively) about 90% of our Fraser Estuary marshes (essential habitat for fish) have been eliminated by agricultural and other land development. In Ontario 60% of all wetlands have been lost - 75% by agriculture.  In BC's Lower Fraser Valley 20% of all streams have been lost, 63% are endangered, 13% threatened and only 5% remain in a wild state! This is an ongoing pattern across Canada! Is retaining the last remnant key habitat as found in these steams and marshes asking too much - especially from a Fisheries Minister and his colleague the Environment Minister?

If Mr. Ashfield was going to neuter the Fisheries Act habitat law, should he not have made that known to the Cohen Commission which just completed hearings three months ago? Cohen was directed by Prime Minister Harper to do an in depth and lengthy judicial review of what is wrong with sockeye salmon runs in the Fraser River. He and Environment Canada did have several habitat and enforcement experts at the hearing but many were not credible and at no time did any of them indicate that the habitat law would be tampered with or eliminated. Should the government not now recall the Cohen Inquiry so they can tell the truth? Why would Mr. Ashfield make any knee jerk changes to the Fisheries Act before the Cohen Commission final report is released this summer? 

One must question what drives the mentality of the Harper government as related to environment issues and especially the tactics and logic used by  Minister Ashfield in this instance. What DFO staff did at that campground site seemed proper and should maybe be done again if the Jamboree Grounds owners do not install works to prevent this flood-caused fish stranding from occurring again. Certainly the amendment proposed by Ashfield would accomplish nothing other than to eliminate the use of the habitat law that is needed in thousands of other applications across Canada if future generations are to have healthy populations of fish for economic, cultural or for healthy ecosystem functioning.

I cannot believe that it is the Jamboree Campground or drainage ditches/streams on a few farms that is the issue that has motivated the attempted elimination of habitat from the Fisheries Act. It just a cover, smokescreen or just an excuse to deliver on an anti-environment ideology. Over the years I have heard many complaints from industrial lobby groups like the the BC Business Council and many other such lobby efforts related to the pipeline, oil and gas, electrical  and other industries. Their primary goal is to get DFO and habitat protection and environment assessment processes off their backs. Harper and his Natural Resources Minster Oliver have often repeated that very mantra and are willing to undermine whatever legislation is necessary to keep industry and investors happy. It appears that our government and many industries have an agenda for a much faster exploitation of Canadian resources to export as much as possible in as little time as possible without any significant environmental hurdles to cross?  Is that the type of sustainability that Mr. Ashfield says he adheres to?

If the habitat law is lost, a key environmental assessment trigger is probably eliminated in Canada and the public and First Nations will be cheated out of a more transparent and consultative approach to human activities that can harm fish and fish habitat. In addition this law trigger allows comprehensive environmental assessment studies related to much more than fish habitat. That is probably the real goal of the Harper government and their industrial lobby friends. One would be a fool to believe that it is just about some fish stranded in a country jamboree campground or in a farmer's field by a natural flood event - i.e.  it's a red herring!

Many years ago I noted a passage by some author that said: "Business and government do not have an ethic for the environment or future generations." Over the past few years this has become more and more apparent.

To date the Harper government has shown little regard for the protection of the environment and over the past few years has supervised the almost total elimination of enforcement of the habitat  protection and the pollution provisions of the Canada Fisheries Act (Sections 35 and 36 respectively). During the Cohen Inquiry in 2011 data was presented to show that pollution and habitat violation investigations have been greatly reduced and convictions of violations in BC and indeed throughout Canada is now almost non-existent (see attachment).

The Fisheries Act of Canada was put in place in 1868 and is one of the oldest and most tested pieces of environmental legislation in the world. In 1975 many people worked hard to get a proper section added to the Act to protect fish habitat in Canada. Section 35 (habitat protection) was passed by Parliament in 1976 and has been extensively used across Canada over the past 36 years. In B.C., the Federal and BC governments largely quit enforcing  the pollution and habitat sections of the Act in favor of allowing industry to self govern their own environmental project’s ‘needs’ and monitor their own self compliance. This has proven to be a disaster wherever it has been attempted elsewhere in the World.
 
I have just been leaked a confidential copy of proposed changes to the habitat provisions of the Fisheries Act as directed by the political levels within the Harper Government. The government is totally re-writing the habitat protection provisions of Section 35(1) so as to remove habitat protection out of the Fisheries Act. This is a serious situation and will put Canada back to where we were in the pre 1976 period where Canada had no laws to protect fish habitat and no way to monitor the great industrial expansion that occurred in Canada with the consequential loss of major fish habitat all across Canada.

Fish habitat includes the lakes, rivers and oceans and their water flows, life processes, the banks and the riparian vegetation along a water way, marshes, gravel beds and the diversity of habitat that allow a rich and diverse population of life to live in our waterways that supports a large economic, cultural and recreational fishery. Also this habitat produces healthy and robust populations of fish that are essential to the feeding and maintaining the health of the aquatic and terrestrial ecosystems e.g. the bears, eagles, otters, grebes, herons, etc.

Section 35(1) of the Fisheries Act now states:

35(1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by an means or under any conditions authorized by the Minister or under the regulations made by the Governor in Counsel under this Act

The proposed new subsection 35(1) of the Fisheries Act is as follows:

35(1) No person shall carry on any work, undertaking or activity, other than fishing, that results in an adverse effect on a fish of economic, cultural or ecological value.

(2) No person contravenes subsection (1) if

(a) the adverse effect is authorized by the Minister and is produced in accordance with the conditions established by the Minister;

(b) the adverse effect is authorized by a person prescribed by the regulations and is produced in accordance with the conditions prescribed by the regulations;

(c) the work, undertaking or activity is carried on in accordance with the conditions set out in the regulations or with any other authorization issued under this Act;

(d) the work, undertaking or activity is carried on in, on, over, under, through or across any Canadian fisheries waters, and

(i) the work, undertaking or activity falls within a class of works, undertakings or activities, or the Canadian fisheries waters fall within a class of Canadian fisheries waters, established by regulation, and

(ii) the work, undertaking or activity is carried on in accordance with the conditions prescribed by the regulations.

The existing effective and essential piece of legislation is to be changed to apparently just protect fish - something that the Act already does.  The lack of mention of ‘habitat’ in the proposed draft law and the number of subjective and ambiguous words inserted into this major amendment will make any enforcement of this new law very difficult. For instance what is a fish of economic, cultural or ecological value? If is has no economic value, can it now be needlessly destroyed? This newly drafted provision is not intended to protect fish habitat in any manner whatsoever. To support the habitat provisions in the Act, in 1986 DFO developed the National Habitat Policy with it’s central theme of ‘no net loss’ and it was once heralded as one of Canada’s first policies promoting sustainable development. Will that now also be withdrawn?

Also the above drafted section is enabling the making of regulations and, as with CEAA, the government may pass many regulations that restrict the intent of that section of the Act. That is double jeopardy. First the Canadian government amends the legislation to eliminate the protection of fish habitat and then it may undermine that new questionable fish protection legislation by allowing the passing of regulations that will create loopholes in what is left in the Act.

DFO used to hand out pencils and pens with the slogan embossed on their sides: No Habitat – No Fish. The Prime Minster and the Minister of Fisheries and Oceans must realize that the Government has not replaced nature and has not changed the ecological and natural laws that create habitat and maintain ecological functioning in our essential life supporting aquatic ecosystems. They cannot replace living forms of life and their habitats and when it’s gone, it’s gone. Why at this key time in our history of ongoing industrial development pressures on our rivers, lakes and oceans, do we turn away from responsible aquatic habitat protection responsibilities? Where is the ethic and moral responsibility for our children and future generations and those that cannot be heard or cannot vote   – our fish and wildlife resources?

This proposed move by the Harper government is a travesty for our fishery resources and the health of the entire ecosystem and it ignores the needs of our future generations. It is little less than another attack on the biological systems that allow life to exist on this planet. To make matters worse, the political level has decided to not consult with DFO staff or the public on these proposed changes. The Harper government will attempt to sneak this neutering of the Fisheries Act through Parliament within the next two weeks by tacking it on to the end of the up coming Budget Omnibus Bill.

This is disgraceful and the movers of this legislative change are urged  to reconsider their planned reckless and irresponsible actions. All sport fish groups, fishermen, First Nations, ENGOs and the public must say enough is enough and oppose what Mr. Harper is planning to do.

Biography of Otto E. Langer (BSc(Zool) MSc):

Worked for DFO and DOE for 32 years in habitat and water quality protection issues. Helped organize BC Assoc. of Prof. Biologists and was President of the group. Qualified as an expert witness on over 100 pollution and habitat destruction cases in Canada from Newfoundland to Vancouver Island. Published and directed many studies relating to the protection status of BC habitats. Author of the red, yellow and green habitat color zoning system that is used to protect the Fraser River Estuary.  Promoted the inclusion of habitat protection provisions into the Fisheries Act in 1975.

Awarded the BC Government Silver Metal for urban stream riparian protection in 2000; BCWF BC Conservationist of the Year 2009; Co-recipient of BC Best Regional Book Prize 2005 - Stain Upon the Sea - a book dedicated to exposing the salmon farm industry in BC. Awarded the CWF Roland Michener Canadian Conservationist of the Year Award for 2010. Left government in 2001 and joined the David Suzuki Foundation (2001 to 2005) and formed their Marine Conservation Program. Has been retired for past 7 years and does volunteer work for many conservation causes including VAPOR (no jet fuel tankers in the Fraser River) , Fraser River Gravel Stewardship Committee (Chilliwack), oil and oil sands issues, London UK based MSC (2001-2010), BC Marine Conservation Caucus and had legal standing at the Cohen Inquiry on declining Fraser River sockeye stocks.   

The following is a letter from retired senior Department of Fisheries and Oceans biologist and manager Otto Langer to Port Metro Vancouver's Sustainability Director:

Dear Mr. Desjardin - Sustainability Director - Port Metro Vancouver:

As someone that has spent 42 years of my life protecting the Fraser River Estuary I find the Port Metro Vancouver's latest phase of its upgrading of the Roberts Bank Port facilities including the transportation infrastructure to be of great concern and is again another setback in protecting this globally significant estuary. Continued development in the Roberts Bank area and on the bank itself will reduce options for future generations to benefit from our natural environment and will again degrade the habitats of vast populations of fish, wildlife and harm public recreation and livability. Further much of the new development is dependent on encroachment on some of the best farmland in Canada and that is yet another nail in the coffin in our ability to protect our base to grow food near this large metropolitan area.

The original development of the Roberts Bank Facility in the late 1960's was one of the greatest impacts that the Fraser River Estuary has ever suffered since the construction of the many dykes around the estuary in earlier times and after the 1948 flood. That dyke building destroyed vast habitat areas and cut off much of the estuary from what was a large and extremely productive ecosystem.

We are only now protecting a small part of the original estuary and any new development will have an incrementally larger toll on estuary health and survival. Expansion of the port facility a few years to increase coal exports and then container facilities has allowed this port facility to extend across this unique and highly productive mudflat and marsh estuarine complex like a cancer. This present proposal is not a major development but it helps set the stage for major new expansion just over the horizon.

For the concerned public to now have to face and comment on yet another round of industrial expansion is truly unfortunate especially when one considers the a state of world economic uncertainties and a present myopic drive to increase an overly exploitative phase of resource development and the export of as many raw resources as possible and then import most of our manufactured goods. The port planning seems to see no limits to future development and that should be of concern to anyone concerned about our future and quality of life.

It appears the port authority has not learned much from our history and is ignoring all signs that indicate that we must pay more attention to the issues of sustainability and respond to global warming and generally our over exploitation of the earth's resources. I see none of that thinking in this new phase of development at Roberts Bank. The PMV seems to show little insight as related to the global picture of over development as it relates to our sustainable future as dependent on a clean and healthy environment and the protection of the limited but extremely valuable farmlands we find in this area.  The Port again seems to be driven by a development at any cost agenda and again the overall development by PMV in the estuary has to be put into its proper temporal and estuarine ecosystem context. This project is just one small impact as supported or promoted by PMV.

The above statement is not made without any foundation. The recent comments by the PMV CEO ( Mr. Silvester) in BC Business hi-lites the indifference and insensitivity and the total lack of understanding of the value of the natural environment and our agricultural land in the Lower Fraser Valley. My response to Mr. Silvester's recent comments are attached. It is unfortunate that his comments seem to symbolize what PMV stands for and that is definitely not for future sustainability. It is indeed rather odd that Port Metro Vancouver would even have a position on staff that they call Director of 'Sustainable Development'. Maybe that has to be defined because the Port concept of sustainability seems to leave out many aspects of the social and environmental legs of the sustainability stool. Maybe it is sustained industrial development that PMV is dedicated to.

What is most disturbing about any development at Roberts Bank is the disjointed approach PMV is taking in this new development phase at that site and indeed in the entire estuary. To make matters worse, why in earth would the Federal Government have delegated any environmental review / screening delegation under the Canadian Environmental Assessment Act (CEAA) to a port agency that is the developer that will gain financially from this development i.e. why and how can we get a proper unbiased environmental assessment when it is abundantly clear that PMV's pro-development stance and mandate puts the Port in a total conflict of interest?

As part of the above and key to this review is the PMV ambush style of public consultation. I am informed that a few months ago Nature Vancouver invited PMV to appear at their October meeting to outline PMV expansion plans at Roberts Bank. PMV spokesperson agreed to appear some three months ago but two weeks before the event PMV backed out of the event saying their plans were not ready for public discussion. However, at about the same time the Port then listed this project for public comments and have given the public only two weeks time to respond to the planned development.

This approach should be embarrassing to any Port staff that have environmental, social sustainability or public consultation responsibilities.  This is totally unacceptable and it appears that PMV have not learned from the less than stellar environmental review PMV is conducting in harmony with the BC Environmental Assessment Office in the VAFFC Jet Fuel Delivery Proposal to ship jet fuel into the Fraser River Estuary.  In that review the PMV joint review only allowed the public 2 minutes of speaker time at the 'public hearing' last spring and limited written public input to a very short time period.

After protests by the public and local government, the comment period was expanded another two weeks. Despite an expedited process that was to be done about now, the public is left in the dark as to what has happened and above all doubt the sincerity and adequacy of that partnership review. Also in that project the Port is conducting the review with a more junior level of government. This is not proper when the issues related to the port, airport, fishery, navigation, wildlife, shipping, etc are all federal responsibilities. How can we trust a PMV environment assessment of any sort?

I do not know how PMV can with any degree of conscience believe they can conduct an impartial environmental review / screening process. The public and certain local governments including the City of Richmond have strongly stated that PMV cannot do environmental assessments when they benefit from the approval of the project.  Accordingly a group that is examining the joint BC EAO and PMV review of the VAFFC Jet Fuel Delivery Project has launched a petition to the Environmental Commissioner of the OAG of Canada to raise the issue of PMV's obvious conflict of interest (attachment). This jet fuel project is very relevant in that that the conflict of interest noted in that project also is relevant here. The PMV is the wolf in charge of the sheep and that can mean the continued environmental degradation and eventual destruction of the Roberts Bank and other parts of the Fraser River Estuary.

The container and transport project now being screened is just the tip of the ice berg as related to Roberts Band port expansion. To review this part of the project in isolation of any work on the bank proper (Terminal 2) is akin to getting your foot in the door - again. This is not an acceptable review procedure in that it is obviously piecemeal and does not address the cumulative impacts of all development planned at this port facility, including the Gateway Highway Project,  as is required by the intent and spirit of the cumulative impacts provisions of CEAA. Further an environmental 'screening' is the lowest level of CEAA review and considering that the future of what is left of Roberts Bank natural environment and considering the impacts on the adjacent communities a higher level review (i.e.  a full Public Panel Review) is necessary.

I strongly recommend that PMV go back to square one and develop a complete proposal and an objective business case for significant expansion at this time in the face of port tonnage handled in the recent past, a realistic projection of increased port needs and relate that to the significant port development at Prince Rupert that will compete with this port. Also an objective review of the conservation future of this part of the estuary is long overdue.  Once these issues have been addressed, only then can the Federal Government, through a higher level FEARO Public Panel Review, do an objective environmental assessment that we can trust.

To date PMV has caused catastrophic damage to Roberts Bank habitats and fish and wildlife populations. Many of these populations are global in nature and truly unique and are under great pressure from past development. Further PMV has not shown that it has significantly mitigated the impacts from past development on Roberts Bank including the massive loss of habitat due to massive filling, fuel and coal dust spills, killing of wildlife by inappropriate power lines over the water directly in the paths of migratory bird populations and in the blocking of natural ocean currents, sediment transport and fish movements by the causeway.

To propose more development when past impacts have not been addressed is a way of saying that we will continue to develop regardless of environmental or agricultural or resident concerns and as we do more damage to new areas we will promise to mitigate the damage of the past. This is wishful thinking and a line must be drawn on the map because what has taken place in past development is well beyond the concept of what is sustainable development at that key estuarine habitat area.

In summary:

• The Roberts Bank Port development as started in the late 1960s has caused catastrophic impacts on Roberts Bank natural processes, habitat and fish and wildlife populations. To date, these impacts have not been properly mitigated.

• This environmental screening review of improved transport infrastructure at Roberts Bank Port Terminal is out of context with what is next planned and a proper review of what is planned for this area must be addressed as a comprehensive review of a complete package.

• A proper review that can best address the intent of CEAA must be much more comprehensive and done at a higher level (i.e. Public Panel Review) and include all planned development at Roberts Bank Port to address perceived needs up to 2030. Anything less than this is a piecemeal short term review and undermines the cumulative impacts intent of CEAA and the public trust.

• The stated opinions of the Port CEO in the press are bound to affect the thinking of all working staff at PMV including those on any environmental assessments conducted by PMV. Allowing an agency with a gross insensitivity to farmland and natural world values is bound to be not trusted by an informed public and that is not in the interest of the estuary, its life and federal responsibilities.

• PMV is in an obvious conflict of interest due to their gain if the project is approved and this undermines an objective and unbiased review and greatly lowers public trust and the possibility of maintaining natural values on the remaining  and undeveloped portions of Roberts Bank and its backup lands.

• The Federal and BC environmental agencies must draw a line on the map as to what government is willing and must protect in this valuable and essential part of the Fraser River Estuary. Continued piecemeal losses associated with an improvement of infrastructure such as this project must be put into context of what PMV has planned for this port site.

• The environmental screening as applied to this project by PMV as per CEAA is inadequate especially as related to how the public was informed and the extremely short time given to evaluate and comment on what is indeed taking place and about what is to next take place considering known PMV expansion plans and attitudes stated for natural values in the Roberts Bank area.

• PMV does not seem to appreciate that the Fraser River Estuary, including the Roberts Bank area, is an estuary of international significance and is one of handful of estuaries of global significance on the West Coast of the Americas. This alone requires an attitude of greater insight into how that legacy must be protected.

• The PMV should withdraw from a leading any environmental review when they are the primary developer and beneficiary of the approved project. The Federal Government must re-evaluate why and how this terrible arrangement was ever allowed under CEAA. This bad precedent is now taking place in several projects in the Fraser River Estuary and it now appears that the estuary is simply treated as a port that is unfortunately entering a new era of industrialization. This will incrementally harm a very rare and unique Pacific Coast natural environment and promote the continued loss of some of our best farmlands.

 Sincerely yours,

Otto E. Langer MSc

Fishery Biologist and Aquatic Ecologist

Richmond, BC.

[Editor's Note: This time last year, we brought you in-depth coverage on the ongoing Fraser River gravel mining program and its resulting ecological impacts on salmon and sturgeon spawning grounds - featuring a report by retired DFO senior biologist and manager Otto Langer. One year later, on the eve of another season of mining operations, comes the surprise revelation from DFO that this year's planned mining of 184,000 cubic metres of gravel from Tranmer Bar, near Agassiz, has been cancelled! The rationale cited was logistical delays and low market prices for gravel - only confirming critics' position that this program isn't safety-driven (for flood risk management, as the public has been told), but rather market-driven. Hopefully this year's hiatus will provide time for the public to convince the Province and DFO to permanently scrap this unnecessary, environmentally destructive program.]

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We are in the midst of the Cohen Inquiry on the collapse of the 2009 sockeye runs into the Fraser River. Despite that, in the past two years the Department of Fisheries and Oceans (DFO) continued to approve some of the largest mining programs on Lower Fraser River gravel bars that are essential habitat for salmon, sturgeon and eulachon populations. This is despite the fact white sturgeon and the eulachon are endangered species in the Fraser River and that the Federal government has initiated a 25 million dollar inquiry to determine why its sockeye runs have declined prior to 2010.

DFO and the BC Government signed a five year agreement to mine excessively large quantities of gravel from essential gravel bar habitats in the Chilliwack to Wahleach Creek section of the Fraser beginning in 2004. Considering that the gravel removal agreement ended in 2008, why would gravel mining be an issue in 2011? The agreement ended in 2008 but was extended without any public consultation into 2009, 2010, and now 2011. This lack of public consultation should not be a surprise to anyone in that the original agreement was developed and signed without any attempt to obtain public input.

One can only be critical of government’s way of doing business at the expense of a public resource under the alleged claim of "flood risk reduction". The Province’s and DFO’s own engineering consultants have concluded in their studies that the large-scale continued long term mining of many essential gravel bar habitat areas will cause long-term hydrological and ecological damage to the river and provide negligible public safety benefits.

A recent inspection of the mining of Gill, Little Big Bar and Hamilton Bars in December 2010 by the Fraser River Gravel Stewardship Committee (FRGSC) showed that the gravel bars had recovered little after the spring freshet of 2010 and two of the bars were mined so as to create ponds that trapped fish and exposed them to dehydration and predation. DFO was specifically warned that the mining practices seen in 2010 would cause that impact, but, again, this public input was not acted on.

Also, the inspection showed that the largest single mining project to date on Spring Bar in 2008 (i.e. 400,000 cubic metres), had recovered little after three freshets and the mining at that site has resulted in a small lake isolated from Fraser River flows. DFO had previously claimed that such sites would rehabilitate in two to three years and therefore habitat compensation works were not required.  In addition, temporary bridge structures were left in the river and have posed a great risk to navigation, almost killing two fishermen in one boating mishap.

In the fall of 2010 the FRGSC learned that Emergency Measures BC (EMBC), the promoter of gravel bar mining for alleged flood control purposes, was planning to again mine Powerline and Tranmer Bars in 2011. Despite the costly consultant surveys and impact reviews, the FRGSC was advised that gravel sales were slow and of the two applications submitted, EMBC would probably only proceed on one. This thought process threw doubt on the necessity of gravel mining for flood control purposes. Was this a real flood risk reduction project or a commercial gravel mining venture rationalized as a public safety project? This approach also shows utter contempt for the costs involved and the wild goose chases the public and the reviewing agencies would be led on. Why do costly studies at two sites when one would only be selected at the eleventh hour based on the wrong rationale?

By late December it was obvious that EMBC would only proceed on the mining of Tranmer Bar. Tranmer Bar has been mined repeatedly in the past few years and in 2010 it was dropped from mining plans due to various concerns related to the impacts of mining that site.

To date, the mining of certain bars was allowed by Ministry of the Environment (MOE) and DFO, even though inadequate data existed on the value of those high bar spawning sites to the endangered Fraser River white sturgeon. This despite the fact a DFO habitat engineer previously determined that this bar habitat was in short supply and the value of them has high and the mining activity on them would cause a significant impact.

Sturgeon studies were begun in 2010 but were poorly funded by the Province and initiated in a near-historic low-flow year and were bound to supply very inconclusive results. Despite this, MOE and DFO did not object to allowing more mining in probable sturgeon spawning habitats and the Canadian Wildlife Service of Environment Canada seemed not to care about the use of these habitats by thousands of birds - including swans, blue herons, eagles and many species of ducks.

Studies by the FRGSC in December 2010 showed that the habitat on Tranmer Bar was characterized by many spring-fed streams/backwaters that supported large populations of rearing fish including mountain whitefish and juvenile sockeye salmon and was a resting site for swans. Despite the concerns over the past many years, DFO again determined that public consultation was not necessary in their Fisheries Act and Canadian Environmental Assessment Act reviews. This determination was despite the fact that the public have continuously voiced objections to what was proposed. The proponent (EMBC) has also refused to meet with the public to discuss the program.

Despite this lack of consultation, the DFO CEAA screening report notes that DFO received 18 submissions on the project – most opposed. It was obvious that MOE and DFO largely dismissed public concerns and expedited the approvals in mid-January so the mining could be initiated in order to be done by March 15, 2010. The Province and DFO have an agreement in place to allow an early seasonal review of these projects but in 2011, as in all previous years, they were again some three months behind schedule on their own review and issuing of permits.

The project as approved by DFO allows for the disturbance of 275,000 m2 (68 acres) of Tranmer gravel bar habitat and the mining of up to 184,000 m3 of gravel and the processing of gravel on site for market-ready sales. Considering the very late review and approval of works by the regulatory agencies, by early February the construction of the roads and bridges to allow the mining had yet to begin. The reason given to the public is that EMBC did not have equipment lined up to do the work and the price of gravel is not economic to mine. This is despite the fact that the government in the past has waived the need to collect royalties on such mined gravel.

The above development is rather amazing but not surprising. Several times in the past the BC Government has led the public to fear the next flood and has rationalized the mining of the river's gravel bars to address the upcoming spring’s flood threats. DFO staff have even convinced their Minister that the mining had to occur or flooding could take place, causing the loss of life and property. DFO then would document in internal correspondence how they were not convinced of the value of the mining as related to flood control benefits and that alternatives such as better dykes could be more effective.

Despite DFO staff reservations, their Vancouver Director General advised them not to discuss alternatives and to not question any EMBC rationale for mining gravel bar habitats. For instance, in 2007 great urgency was put on mining Spring Bar to address  floods that could occur that spring due to high snow pack. Despite the Provincial and DFO-created panic, the mining did not take place. When it did take place a year later, DFO consultants and the BC dyke safety engineer noted that the mining would not address any reduction in flood risks and the latter expert said the mining was largely promoted by DFO to allow a local aboriginal band to profit from the sales of gravel so DFO could improve relationships with that band.

To some degree it is obvious that the mining program is being done under a near-fraudulent rationale and the public have been geared up to support the program due to a fear campaign run by certain politicians. The EMBC managers even have admitted that when they took the lead in promoting gravel mining, they said they could best sell it as a flood control program. The MLA for Chilliwack - who has always promoted gravel mining - happened to be the Minister in charge of EMBC at the time and ran his own media campaign to promote gravel mining in the river.

Once again the politics of gravel removal seem not to need a solid and valid scientific rationale. Those who are most entrusted to protect the river and its fish and wildlife habitats have been ordered to not question the need or value of the mining and to learn to deal with the impacts caused by that program. Furthermore, they have not required habitat compensation works so as to assure an ongoing no net loss of habitat as required by the Fisheries Act habitat policy.

One can argue that some gravel removal will always be necessary. Certain bottlenecks to flow will occur. However, such a program must be embedded into an overall long-term environmental management plan for the gravel reach of the Fraser River, similar to the downstream Fraser Estuary Management Plan which was put into place some 30 years ago to address development and environmental protection concerns in that part of the river. Despite the EMBC commitment to annual gravel mining and the ill-advised MOE and DFO support for that program, absolutely nothing has been done by the environmental agencies to require a long-term environmental management plan to protect river values, examine the cumulative long-term impacts of annual gravel mining, develop a convincing flood risk plan, and allow full and open public consultation on this entire issue. Considering that it is now 2011, the absence of this long-overdue basic work and planning is an absolute condemnation of the conservation mandates of the BC Government, DFO and Environment Canada.

One can only draw the conclusion that in the Lower Fraser we can only afford to allow gravel mining for the alleged purposes of flood control when the economy needs and is ready to buy the gravel at an acceptable price.  Fortunately, we do not run other public safety programs in the same manner. Imagine if a slide was to occur in the Fraser Valley and the removal of the debris was not addressed until partnerships were in place to mine and sell it!

Our Federal government is committed to a proactive strategy to protect our living legacies for the benefit of all Canadians and, above all, to take a precautionary approach in doing this. Does the use of the Fisheries Act, its supporting no not loss policy, the Canadian Environmental Assessment Act, cumulative impacts and proactive management mean nothing to government over the past decade, especially after years of good progress to better protect the environment in the decades prior to the year 2000? Why should we now step backwards?

Note: On February 16, 2011, I received notice from DFO that EMBC has abandoned the Tranmer Bar gravel mining project for 2011. As previously advised, the cancellation is believed to be due to the very late scheduling of the project by the government agencies, the inability of the Province to line up the equipment to do the job at this late date, and the present low values in the commercial value of the gravel.

Otto E. Langer BSc(Zool) MSc