First Nation and BCWF call for Fisheries Act investigation and penalties
The B.C. Wildlife Federation and the Yaqan Nukiy Lower Kootenay Band are calling on the federal government to immediately investigate alleged violations of the Fisheries Act by BC Hydro and Fortis caused by their hydroelectric operations in the Kootenay watershed.
Changes in lake levels and the hydrology of the West Arm of Kootenay Lake caused by the operation of dams run by BC Hydro (Corra Linn and Duncan dam) and Fortis (Kootenay Canal Dam) have severely depressed genetically distinct populations of Kokanee salmon.
A 32-page brief prepared by the Environmental Law Centre (ELC) at the University of Victoria and submitted to Fisheries Minister Dianne Lebouthillier details how decades of lax oversight and the companies’ failure to consistently employ optimal mitigation measures have contributed to the destruction of a once world-famous kokanee salmon population by damaging their spawning grounds and food sources.
“The Columbia Basin has been a disaster for fish and wildlife populations ever since the Province of B.C. approved all of these dams,” said BCWF Executive Director Jesse Zeman. “Neither the province of British Columbia, nor the Government of Canada have met their legislative, regulatory or moral obligations in the area. The tail has been wagging the dog for decades.”
The West Arm was once home to hundreds of thousands of prized Kokanees, but the spawning population today is currently fewer than 7,000 fish. By causing water levels to rise in the fall, spawning takes place higher up the shore, this area is then dewatered when the companies cause water levels to recede in the spring.
“I’m always on the land and I’m sick of seeing Kokanee eggs on the shore all dried out,” said Robin Louie, a land user for the Lower Kootenay Band. “Kokanee is the nasukin (Chief) of the water, the eagle is the nasukin of the sky, and the grizzly is the nasukin of the land; they are all interrelated and they need each other.”
The Band is engaged in several long-term wetland and fish habitat restoration projects, but the Kokanee are unlikely to recover if the hydroelectric companies don’t change their ways.
The hydroelectric companies manage water flows jointly and cooperatively under the Canal Plant Agreement (1972). The ELC brief argues that they are therefore jointly responsible for the harms they cause.
Further, there is evidence that, for at least 15 years, the companies in question have known that their operations are damaging fish and fish habitat in the West Arm. For years they have been aware of the optimal lake levels to mitigate this harm, but they have failed to consistently abide by these levels.
Section 35 of the Fisheries Act imposes a duty on Fisheries and Oceans Canada (DFO) to ensure that hydroelectric operations do not cause the harmful alteration, disruption, or destruction (HADD) of fish habitat, unless authorized. A review of available documents by the ELC could find no evidence that the DFO has authorized the harms occurring to West Arm kokanee salmon habitat by hydroelectric operations.
“We asked the companies directly if they had received section 35 permissions for HADD of fish habitat on the West Arm and they said they have not,” said Dr. Charis Kamphuis, an ELC lawyer.
Habitat protection is a key feature of the Act and is governed in part by s. 35. A section 35(1) offence has three elements: (1) a work or undertaking or activity, (2) resulting in the harmful alteration, disruption, or destruction of (3) fish habitat. This is a strict liability offence, so it is not necessary to establish intent.
“The law prohibits harm to fish habitat, it’s as simple as that,” said Kamphuis. “Hydroelectric companies have been causing harm to Kokanee salmon habitat for decades. And governments are failing to regulate it or mandate that they take all reasonable steps to effectively mitigate this harm.”
Click the link below to read the full brief.
