Water case law in Québec 4: defining fish habitat

(BY HUGO)

In Québec (Procureur général) v. Lauzon (in French), the defendant requests ministerial authorisation to excavate the bed of a natural stream running through his property to create an artificial lake on his land. Permission is refused on a preliminary basis and the defendant does not push the matter further.

Some years later, the defendant decides, without applying for an authorisation, to excavate another location on his property in order to create an artificial lake that is filled with water flowing from a nearby wetland. The artificial lake also has hydrological links to the natural stream mentioned earlier.

Within a year of the excavation, an inspector from the Ministry catches fishes in the artificial lake. The defendant is charged with an infraction in strict liability for a contravention to section 35(1) of the federal Fisheries Act. Article 35 reads as follows:

35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.

The defendant principally argues that the artificial lake and its hydrological connections are not a fish habitat. A fish habitat is defined by the Fisheries Act as follows:

34. (1) (...)“fish habitat” means spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes

The Court finds that the defendant contravened to the Fisheries Act. The permanent presence of fishes does not have to be demonstrated by the prosecution. The water environment needs only be susceptible to use as a habitat by fish. An intermittent stream can be a fish habitat.

This decision takes a more hydrologically and biologically sound position than other recent case law that does not considers surface waters where fishes are present as «fish habitat» under the Fisheries Act.