By Mike Beale
RGI’s new case study, Canada’s Fisheries Act: the Evolution of a Modern Pollution Prevention Regulatory Regime tells the story of how Canada’s federal water pollution regime evolved over a 150 year period to what it is today.
For those not immersed in this issue, the Fisheries Act is the legal basis for Canada’s federal water pollution regime. The Act takes an unusual approach to pollution prevention: a general prohibition against pollution in the Act itself, while the regulations under the Act permit pollution under specified conditions. The list of activities covered by regulation continues to expand, and the regime is actively enforced.
The Act dates from 1868, and the original Act contained wording for the general prohibition that is quite similar to what is in the Act today. What is different is today’s regulatory provisions, which date from 1970, and the regulatory structure that continues to be built out pursuant to those provisions.
The case study traces the evolution of the pollution prevention provisions of the Act, and their enforcement. Drawing on Rivers of Sawdust: The Battle Over Industrial Pollution in Canada, 1865-1903 by Peter Gillis, it reviews House and Senate debates in the 1890s on how waste from saw-mills should be treated under the law. It concludes that, if anything, the original pollution provisions in the Act were too strong, too all-or-nothing; the result was exemptions and uneven enforcement.
The case study then discusses in detail the amendments made to the Act in 1970, under the leadership of Fisheries Minister Jack Davis. While Cabinet and House of Commons debates focused on other aspects of the proposed amendments, the passage of time demonstrates that their major contribution was to add a workable regulatory structure to the Act.
The case study goes on to review the development of the suite of Fisheries Act regulations over the last 50 years; key innovative features of those regulations, including adaptive management; and how the regulations as well as the general prohibition have been enforced. It concludes with some lessons learned, and questions for discussion/further research.
Lessons that emerge from the case study include:
- It can take time – in this case, 100-plus years – for a piece of legislation to realize its full potential.
- Ironically, adding a permissive regulatory regime to the Act in 1970 made it more effective – what might have appeared to be a weakening was actually a strengthening.
- Adaptive management – in this case, through environmental effects monitoring – can be built into a regulatory structure.
- Political leadership matters; reviewing the debates around the 1970 amendments – both within Cabinet and in the House of Commons – it seems evident that these amendments would not have happened if someone less able than Jack Davis was Minister of Fisheries.
- When it comes to environmental legislation, being simple and focused, and having clear constitutional authority, are key ingredients for success.
I hope you are tempted to read further.