Deleterious By Definition

Our Fisheries Act is quite old – in fact one of the oldest acts in Canada – protecting native fish and their habitat since 1868 and evolving over decades to suit the government of the day.

The Harper administration, for example, took their opportunity to weaken its safeguards while Trudeau’s is attempting just the opposite, restoring or surpassing lost efficacy by way of Bill C-68, working its way toward law as of press time. One of this Act’s firmest provision, however, has remained unchanged by either administration – those governing deleterious substances.

A deleterious substance is anything which might bring a watershed or its resident fish harm, such as sewage or industrial effluent. It’s this provision in particular which has complicated matters at Alton Gas, the underground natural gas storage project north of Stewiacke, Nova Scotia, which intends on dumping brine into the Shubenacadie River.

Brine (highly concentrated salt water) is considered a deleterious substance under the Fisheries Act if its salinity exceeds 40 parts per thousand (PPT), whereas documents released by Alton Gas, following a Freedom of Information Act request, said their brine could be as high as 260 PPT, or roughly six times the legal limit.

The project might have ended there, but for a quirk written into the Fisheries Act which empowers the minister of Environment and Climate Change Canada (ECCC) to write up special regulations for particular industries, exempting them from restrictions on deleterious substances. Such exemptions have already been applied to the pulp and paper industry, the metal and diamond mining industry, and municipal waste water, permitting the pollution of Canadian waters wherever the minister deems appropriate.

Lisa Mitchell is senior lawyer and executive director of the East Coast Environmental Law Association (ECELA), and as she describes it, the exemption presently being drafted for Alton Gas could make history, and not in a good way.

“If my understanding is correct, this would be the first time that a project specific regulation has been issued under the Fisheries Act,” she said.

The exemptions outlined earlier, for pulp, paper and mining, each apply to entire industries, she said, to every mill and mine across the country, but so far, those being prepared for Alton Gas sound like they’ll only apply to Alton Gas, the first time special regulations have been written under the Fisheries Act to enable a single project. Mitchell stresses that this has always been within the minister’s power, but so far as her research has revealed, this power has never before been exercised, a troubling precedent for such a controversial project. How this exemption will be structured, however, has not been made public.

In partnership with the Ecology Action Centre, ECELA has formally requested of our federal government that the special regulations written for Alton Gas be thoroughly consulted upon even before they’re printed in the Canada Gazette Part 1 (the proving ground for new federal regulations), giving individuals and organizations more time to voice their concerns than would otherwise be possible. Their request was issued May 21 of this year and, as of press time, received no reply. These regulations have no expressed due date.

“This project is concerning for many people, and from many perspectives,” said Mitchell. “I think we need to see what their plan is, and that’s why we’ve asked for [a higher level of consultation]. What’s the intent here? What are they trying to achieve? What information is being brought to the minister in order to ensure she’s well informed before making this decision?”

Zack Metcalfe is a freelance journalist, columnist and author active across the Maritimes. This article was originally published with The Weekly Press.

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