The Rural Voice, 2004-12, Page 55Agrilaw
Fisheries Act Liabilitg - Ang Water, Ang Substance
Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highley LLP.
By Paul Vogel
The Federal Fisheries Act
prohibits the deposit in "water
frequented by fish" of any substance
which "if added to water, would
degrade or alter ... that water so that
it is rendered or is likely to be
rendered deleterious to fish or fish
habitat or to the use by man of fish
that frequent that water". In a
prosecution under the Act for alleged
contravention of this prohibition.
must the Crown prove that the
substance introduced into the water is
actually deleterious to the receiving
water and poisonous or harmful to
fish in that location or is it sufficient
for conviction that the substance be
proven to be likely to render any
water deleterious to fish or fish
habitat or to the use by man of fish
that frequent the water?
In considering the case of a
municipality which had permitted
leachate from a municipal dump site
to flow into an adjacent river, the
Ontario Court of Appeal has recently
determined that, for conviction of an
offence under the Fisheries Act, the
Crown is not required to prove site-
specific impairment. Although the
same court has earlier determined
that conviction under provincial
legislation for "impairing water
quality" requires consideration (at
least in the case of substances not
inherently toxic) of the specific
circumstances of the discharge
including quantity, concentration and
time frame, conviction under the
Fisheries Act requires only proof that
the substance may render water
deleterious to fish. In coming to this
conclusion, the court stated:
... the Fisheries Act ... prohibits
persons from (1) depositing or
permitting the deposit of (2) a
deleterious substance of any type
(3) in water frequented by fish or
in any place where the deleterious
substance may enter such water
IV
"A substance is deleterious if,
when added to any water, it would
alter the quality of the water such
that it is likely to render the water
deleterious to fish, fish habitat or
to the use by man of fish that
frequent the water. There is no
stipulation ... that the substance
must be proven to be deleterious
to the receiving water ... On the
contrary, the language makes it
clear that the substance is
deleterious if, when added to any
water, it degrades or alters the
quality of the water to which it has
been added. The "any water"
referred to ... is not the receiving
water. Rather, it is any water to
which the impugned substance is
added. after which it can be
determined whether the quality of
that water is rendered deleterious
to fish. fish habitat or the use by
man of fish that frequent that
water ..."
"The focus ... is on the substance
being added to water frequented
by fish. It prohibits the deposit of
a deleterious substance in such
water. It does not prohibit the
deposit of a substance that causes
the receiving water to become
deleterious. It is the substance that
is added to water frequented by
fish that is defined, not the water
after the addition of the substance.
A deleterious substance does not
have to render the water into
which it is introduced poisonous
or harmful to fish: it need only be
likely to render the water
deleterious to fish."
The Court further held that. in a
prosecution under the Fisheries Act,
the Crown is also not required to
prove the nature of the allegedly
deleterious substance. The Court
held:
"The prohibition ... is against the
deposit of a deleterious substance
"of any type". What must be
proven is that the substance,
whatever it might be, is of
deleterious substance ... in this
case, it meant that the prosecution
had to prove that the leachate,
when added to any water, was
likely to render the water
deleterious to fish or fish habitat
or to the use by man of fish that
frequent the water. It did not have
to prove which component of the
leachate was responsible for the
degradation or alteration of the
quality of the water such that the
water was likely to be rendered
deleterious to fish. Nor was it
obliged to show that fish living in
the vicinity of the seep were
harmed. It was required only to
prove the elements of the offence
as set out above."
Accordingly. liability to
prosecution and conviction under the
Fisheries Act may result from the
discharge of any substance even if
naturally occurring and not inherently
toxic if the substance, when added to
any water, may render the water
deleterious to fish. Subject to the
possible defence of "due diligence".
if the discharge may be deleterious to
fish when added to any water. the
quantity, concentration and period of
discharge and adverse site specific
'impacts need not be proved to
support conviction.0
Agrilaw is a syndicated column
produced by the fill! service London
law firni of Cohen Highlev 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 fann 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.
DECEMBER 2004 51