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The Rural Voice, 2005-03, Page 50Agrilaw What is disrupting fish habitat? Paul G. Vogel, a partner in the London law firm of Cohen Highley LLP. By Paul Vogel The federal Fisheries Act prohibits "harmful alteration, disruption or destruction of fish habitat". Where there has been disruption of fish habitat which results in prosecution, to secure conviction must the Crown prove actual harm to fish or is it sufficient that there have been negative even if temporary impact on fish habitat? The British Columbia Supreme Court recently considered a conviction appeal by the operators of two gasoline -powered dredges which, during the course of dredging a creek bed, had disturbed the bottom of the stream and displaced rocks. The trial judge had convicted the dredge operators on the basis that the Crown need prove only a disruption of fish habitat without the necessity of proving that the disruption caused actual harm to fish or the fish habitat. While the appellate court disagreed with the trial judge and held that, for conviction, the disruption must impair the value or usefulness of the habitat, the court upheld the conviction because the evidence established that even a temporary disruption will result in such impairment. In coming to this conclusion, the court referred to an earlier case in which the court held: "I do not think that harm to fish is an element of the offence. What is prohibited ... is the harmful alteration, disruption, or destruction of fish habitat, not the alteration, disruption, or destruction of fish habitat that results in harm to fish. In my view ... the offence is established if the Crown proves beyond a reasonable doubt that the accused interfered with the fish habitat in a way that has impaired the value or the usefulness of the habitat ... thus, neither proof of actual harm to fish nor the assumption of such harm is necessary, as that fact is Enjoy the Country Lifestyle THE RURAL VOICE MAGAZINE Don't Delay — Subscribe Today Produced by people with farming in their blood. Serving more than 13,500 readers in the region. One year for $17.12; two years for $28.35 (GST included in prices above) The Rural Voice Box 429, Blyth, ON NOM 1H0 519-523-4311 HELP FOR ONTARIO FARMERS IN CRISIS Queen's Bush Rural Ministries Provides - a free confidential service to listen and offer a network of helpful contacts. Call Collect 1-519-369-6774 46 THE RURAL VOICE not material". However, in upholding the conviction, the court accepted the conclusion of the trial judge that for conviction, there need be evidence only of some impact on fish habitat while the activity is ongoing and that the impact need not be long term or be shown to have a negative effect on fish or fish production. The appellate court considered the following expert evidence sufficient for conviction: "I take this testimony to be definitive statement of opinion by (the Crown expert) that if one moves boulders around in a stream bed that will have a negative impact on the fish habitat because it will negatively impact the fish's opportunity to lie -up in areas of reduced water velocity. (The expert) clearly says that these cover areas are vital to the fish's survival and condition. Depriving the fish of these cover areas by disturbing larger objects in the stream bed will clearly negatively impact the fish's habitat". The appellants' admission of turning rocks over in the streambed in preparation for the dredging operation and entering into the stream to organize the dredging operation was sufficient basis for their conviction on the offence of disrupting fish habitat. Contravention of this statutory prohibition occurs even where the impact is only temporary and no actual harm to fish is established.0 Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP. Paul G. Vogel, a partner in the firm, practices in the area of commercial litigation and environmental law. Agrilaw is intended to provide information to farm operators on topics of interest and importance. The opinions expressed are not intended as legal advice. Before acting on any information contained in this column, readers should obtain legal advice with respect to their own particular circumstances and geographical area.