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Proceedings of the Standing Senate Committee on

Issue 7 - Evidence for May 30, 2001

OTTAWA, Wednesday, May 30, 2001

The Standing Senate Committee on Fisheries met this day at 6:30 p.m. to examine matters relating to the fishing industry.

Senator Gerald J. Comeau (Chairman) in the Chair.


The Chairman: I thank the witnesses for appearing before the committee this evening to present information in respect of the rock quarry proposal. It is not the committee's role to take sides in this project or to adjudicate conflicting positions. Similarly, it is not the role of the committee to become involved in areas of provincial or municipal jurisdiction. The committee's interest is the protection of fish habitat and whether DFO is meeting its constitutional and legislative obligations to Canadians in the most efficient manner possible.

This committee will examine marine and inland fish habitat. When we were approached by a group from Caledon, Ontario, to present their views on the rock quarry proposal to the committee we readily accepted. Their presentations will provide an educational opportunity for us to learn more about inland fish habitats.

At the same time, it will provide some insight to DFO's activities and whether we can help them in any way to do a more efficient job.

Mr. Donald C. Hindson, Q.C., Partner, Cattanach Hindson Sutton Van Veldhuizen: Honourable senators, thank you for allowing us to make these submissions to you this evening. Mr. Wayne Fairbrother, a lawyer, Mr. James Parkin, a planner, and Mr. Greg Sweetnam, a development manager for James Dick Construction Limited together with myself form the Quarry Project Management Team for James Dick Construction Limited. My role is to introduce the speakers and, when necessary, direct any questions you might have to the appropriate party.

Mr. Jonathan Kahn will be the first speaker on behalf of the Aggregate Producers' Association of Ontario. He will discuss the role of the Aggregate Producers' Association of Ontario and the association's understanding of how the Fisheries Act and the Canadian Environmental Assessment Act interrelate.

With Mr. Kahn this evening is Ms Jackie Fraser, who is the Environmental and Resource Manager of the Aggregate Producers' of Ontario. Ms Fraser has served a three-year term on the Niagara Escarpment Commission and she is currently a member of the Environmental Review Tribunal.

Accompanying Mr. Khan and Ms Fraser is Mr. William Gallaway, Vice-Chair of the Aggregate Producers' Association of Ontario.

Mr. Fairbrother will be the second speaker and will outline the concerns of James Dick Construction Limited. Mr. Fairbrother, Mr. Parkin and Mr. Greg Sweetnam will respond to any questions the honourable senators might have.

The curriculum vitaes of the aforementioned are before you, and so I will not elaborate. I call upon Mr. Jonathan Kahn.

Senator Meighen: Please, may I ask a question for clarification? Are we dealing with a project for the establishment of a quarry?

Mr. Hindson: That is correct, senator.

Senator Meighen: I know nothing about this business. Is a quarry not different from an aggregate?

Mr. Hindson: It is somewhat different, in that aggregates include stone, sand and gravel. A "pit" is usually referred to in terms of sand and gravel. A "quarry" implies stone and, therefore, blasting.

Senator Meighen: Why are the Aggregate Producers' of Ontario involved in this presentation if it is a quarry?

Mr. Hindson: The Aggregate Producers' Association is an organization of sand and gravel operators, and quarry operators.

Senator Meighen: We are not talking about a sand and gravel operation.

Mr. Hindson: No, we are not.

Mr. Jonathan Kahn, Partner, Toronto Office, Blake, Cassels & Graydon LLP: Aggregate is a global term to describe sand, gravel and stone.

Senator Meighen: We are talking about stone tonight.

Mr. Hindson: Yes.

Mr. Kahn: Honourable senators, the Aggregate Producers' Association of Ontario, APAO, is an industry association representing 230 businesses that provide aggregate - sand, gravel and stone - as well as related products and services to the Ontario market. The APAO's products and the products that they become, such as asphalt, concrete and cement, are literally the foundation of the Ontario economy, in the form of roads, sewers, bridges, buildings and other important infrastructure. The aggregate industry employs 41,000 people directly and indirectly, as a significant part of a $30-billion Ontario construction industry. More information about the APAO, and aggregate production in general, can be found at appendix A to this submission.

As an industry association, it is important to note that the APAO takes no position on any particular application. The APAO takes no position on whether James Dick Construction's Rockfort Quarry should be approved. The APAO has confidence that the comprehensive approval system in Ontario will ultimately resolve that question in a fair and appropriate manner. The APAO's interest is to ensure that applicants for pits and quarries are assured of a fair, clear and reasonable process for the approval of pits and quarries and in the way that the Fisheries Act is interpreted federally.

Sand, gravel and stone are mined in pits and quarries pursuant to stringent regulations under Ontario's Aggregate Resources Act. The ARA is considered to be among the most comprehensive laws of its type in North America. Pit and quarry operators must perform a variety of studies prior to commencing operation, including studies on potential impacts, including environmental ones, anticipated by the extraction operations. Then, they must operate according to strict conditions of licence and detailed site plans that govern all aspects of operation and progressive rehabilitation of the pits and quarries.

In addition to a licence that is issued by Ontario's Ministry of Natural Resources, under the ARA, pit and quarry operators also require municipal planning approval. They often require permits from Ontario's Ministry of the Environment, as well as other approvals. A full list of the province's environmental matters that govern pits and quarries is attached to our submission as appendix B.

All of these processes consider environmental impacts of pits and quarries through a broad and comprehensive public process. It is important to note that a plethora of studies has demonstrated a significant need for more aggregate licences in the Greater Toronto Area, because the use of aggregates has far exceeded the supply of new pits and quarries over the past 30 years.

Unlike most other land uses, pits and quarries are limited in terms of where they can be located. They can only be established where the aggregate - sand, gravel or stone - is found. Because of high transportation costs, they must be located as close to the markets, generally the urban growth areas, as possible.

Given the significant need for the resource, this invariably means that pits and quarries must be located where the resource is found close to markets, which usually means a location where some ex-urban or rural residential development is already in place. Unfortunately, pits and quarries are not always locally popular land uses. Despite the commitment of the APO to high environmental standards of good management, pits and quarries can still be seen, heard or felt to some extent. They can also result in increased truck traffic. Local unpopularity, sometimes, of pits and quarries can lead to the creation of groups such as the Coalition of Concerned Citizens of Caledon. Fortunately, in Ontario, there is a comprehensive and open process that encourages the involvement of groups such as the CCC.

These groups have the opportunity to become involved in the process in a variety of ways. If they seek it, they can request a public hearing to test the pit or quarry proposal before an independent tribunal - the Ontario Municipal Board.

Honourable senators, you should know that the OMB often imposes onerous and comprehensive conditions of licence over environmental matters in respect of pits and quarries, including conditions that specifically deal with the protection of fish habitat and fisheries.

The role of the Fisheries Act, however, and in particular the Canadian Environmental Assessment Act, is, by design, extreme ly limited in this context. Under CEAA, the federal government has only sought to require environmental assessments in certain limited circumstances: a federal project, a project on federal land, a federally funded project, or if there is the exercise of specified federal approvals. Those occurrences are subject to CEAA.

Not all federal approvals are subject to CEAA. In the realm of fisheries, relevant to what we are discussing tonight, only an authorization under section 35 of the Fisheries Act or an order by DFO under section 37(2) can trigger an environmental assessment. In terms of the matters before us tonight, no other activity under the Fisheries Act triggers CEAA, by operation of law. Therefore, if a proponent applies for an authorization to obtain a HADD under section 35 - HADD is what we call a harmful alteration or destruction of fish habitat - CEAA will kick in. If DFO decides to impose an order - but as you will see at appendix C of our submission those orders can only be imposed in certain specific limited circumstances and after consultation with the proponent - CEAA will then kick in.

If there is no application, how does DFO decide whether to make an order? That is where section 37(1), which is the information gathering section, kicks in. By specifically excluding section 37(1) of the Fisheries Act from the Law List Regulations, triggering CEAA, the drafters of the CEAA legislation clearly determined that the information-gathering process and determination of whether there might be a HADD should not trigger the CEAA regime.

This is consistent, of course, with the constitutional limitation on the application of CEAA to matters within federal jurisdiction and the policy goal to discourage duplication between various levels of government. As I mentioned, there is a full legal memo on the interaction of the Fisheries Act and CEAA at appendix C of our submission.

If the CCC were correct in its submissions that it has urged upon you, each time a project came up with any proximity to a fishery, whether or not there would be an impact, the project would require a federal environmental assessment. Any time an opponent to a proposal - which could include such things the building of retaining walls in subdivisions, road construction near a creek or grading for a golf course - wrote to DFO alleging an impact on a fishery, there would automatically be a federal environmental assessment, which would result in a lengthy and expensive process for both the proponents and federal government. Clearly, in our submission, that is not the intent of the legislation nor is it good policy.

As discussed above, the APAO does not have a direct interest in the Rockfort Quarry application operation. However, the APAO does have an interest in a clear, reasonable process for approvals and in an assurance that the legislation affecting our members is interpreted fairly and consistently.

The CCC has asked for Senate hearings into this matter and the APAO asks whether the hearings are, in fact, necessary. Private applications for pits and quarries that are not on federal land can take anywhere from three to ten years for approval, under the current provincial process.

For example, a licence for a gravel pit in Caledon was issued earlier this year and that approval process took 12 years and included two public hearings. Such hearings fully explore all potential and environmental impacts, including potential impacts on fisheries.

The applicability of CEAA through the Fisheries Act process where there is no federal land, money or authorization involved is, by law, and in our submission ought to be, limited. We urge the Senate and we urge the federal government not to add layers of regulations to an already heavily regulated area, unless there is a perceived problem.

In our submission, there is no problem in the protection of environments in respect of the establishment of pits and quarries.

Mr. David Wayne Fairbrother, Partner, Belleville Office, James Dick Construction Limited: Honourable senators, I have divided our presentation into four overview topics this evening: (1) who is James Dick Construction Limited; (2) what is the Rockfort Quarry; (3) overview response to submissions made a month ago to this committee by the CCC, and (4) conclusions that I would like to leave with this committee.

First, who is James Dick Construction Limited? James Dick Construction Limited, represented today by Mr. Hindson and me, is a privately owned Canadian company that is based in Caledon, Ontario. Its business is to supply aggregate products to all sectors of the construction industry in Southern Ontario.

The company currently employs approximately 500 people, about one half of whom reside in the town of Caledon. The company has demonstrated its commitment to environmental responsibility and is heavily involved in the local community.

We provided the committee clerk with a copy of our written submission, which sets out the information in more detail. I will refer to the submission by tab number only, but in the interests of time I will not take you to the specific tabs. Honoruable senators will find at tab 11 a collection of photographs, letters and articles that illustrate the commitment that the James Dick companies have demonstrated and exhibited to fisheries projects in their community.

Second, what is the Rockfort Quarry? As Senator Meighen has already clarified, a quarry involves the extraction of a form of bedrock. In this particular case, dolostone is the type of bedrock. It is a very high quality form of bedrock and it is extremely desirable within the industry because it meets the high specifications that are now demanded in the construction industry.

The market is essentially the western Greater Toronto Area, or the GTA, as I will refer to it.

In the materials provided, you will find, at tab 6, an overview of the key features of the quarry. We have included a site plan that shows the operational plan for development, and we have shown the rehabilitation concept, that is, what the land will look like when extraction has been completed.

Again, generally, the Rockfort site consists of approximately 220 acres, of which approximately 75 acres are set aside for screening, buffers and environmental mitigation.

When the site has been excavated, should approvals be granted, the rehabilitated site will consist of two lakes with cliffs, rocky shorelines and forest that will provide habitat for a variety of fish, water fowl and amphibian life. This quarry proposal has been designed with substantial input from many qualified individuals in various fields, including individuals who have expertise in the field of fisheries.

The Rockfort Quarry has been designed to be constructed and operated in conformity with all federal, provincial and municipal legislation.

Third, I will touch on some of our responses to the submissions that were made by the CCC to this committee. A more detailed response is found in the materials.

In the interests of accuracy and balance, we felt compelled to respond to three areas in particular of the CCC's submissions. The first submission of the CCC pertained to their allegations surrounding DFO's involvement in this particular matter - the Rockfort Quarry. Their allegations were essentially twofold. First, they alleged that DFO did not become involved in this matter until 16 months after the process had commenced. Second, they alleged that James Dick Construction Limited had stonewalled DFO in providing information.

With great respect to the representatives of the CCC, many of whom are here tonight, those statements made to this committee simply cannot be substantiated by the facts. As demonstrated by the chronology found at tab 7 of our materials, extensive documentation was provided to DFO by James Dick Construction Limited within two months of filing the applications - not 16 months as was alleged in the previous submission.

Contrary to the allegation that JDCL has stonewalled DFO in providing information, it is our submission that the company has cooperated fully with DFO. There have been numerous meetings, as detailed at tab 7 in the chronology, with DFO's conservation authority and other persons interested in the fisheries issue. At the request of DFO, additional field inventory and detailed design work was carried out to respond to the very issues and questions that staff at DFO had raised.

The second area of the submissions that were made to you by the CCC, to which I would like to respond, involve the alleged impacts that this quarry would have on fisheries. This committee was told that the quarry would drop the groundwater table by at least 100 feet and that it would destroy fish habitat, as well as well water for residents within two kilometres.

The quarry will not drop the groundwater table by 100 feet in the area of the site. There is, in your materials at tab 9, a summary of how this proposal is designed to ensure that that will not happen. There are diagrams that are relatively easy to follow at tab 9 as well, which will demonstrate that there will be no drawdown of the groundwater table to the west, to the north or to the south. To the east, as the diagrams illustrate, there will be a small amount of drawdown, but this is in an area where there is an overlying, less permeable form of bedrock, not the dolostone that we talked about earlier. This less permeable bedrock will protect the fisheries and wetlands in that area.

Also, you can see our characterization of the fisheries in the area. It indicates that largely to the east, where there is limited drawdown, there will be protection by this overlying bedrock. The predominant fisheries habitat is warm water habitat that consists mostly of minnows and sunfish. That is what we are talking about in that area.

The cold water trout fisheries that you heard about from the CCC are, in our view, not adjacent to the site. They are 400 metres and 1,000 metres respectively away from the site - and that is at their closest points.

In respect of the submissions from CCC, you were told by representatives of the CCC that there is no shortage of this dolostone mineral aggregate. We recognize that this is not a fisheries issue. We also recognize, as the chairman admonished at the outset, that you are not to be drawn into the suit, and we do not invite you to do so, but in the interests of providing a response to that, that several independent studies carried out by the Province of Ontario would not support the conclusion put forward by the CCC. Those studies document that, in fact, there is a "critical," and that is the province's word not ours, situation in the supply of aggregate in the GTA.

In conclusion, and I have also included this information in a more detailed form at tab 1 of my materials, these are the key points that I would like to leave with the committee:

First, DFO has acted to date in a legally correct manner in reviewing the proposed undertaking. I adopt Mr. Kahn's submissions to you in that respect and his interpretation of the legislation.

Second, James Dick Construction Limited has cooperated fully, as our submissions document states, with DFO.

Third, no action has been taken by DFO or by James Dick Construction Limited that would trigger the legal requirement for an environmental assessment under the CEAA. Mr. Kahn has taken you through that.

Fourth, James Dick Construction Limited is confident that the Rockfort Quarry proposal can be developed without causing a HADD. Accordingly, we are confident that there will be no requirement for a federal environmental assessment.

Fifth, provincial legislation provides for detailed scrutiny of this proposal by the public and adjudication by an independent tribunal, which is known as the Ontario Municipal Board. This board is mandated by law to have regard for a wide scope of matters, including the potential for adverse impacts on fisheries. That is a legal requirement of the planning legislation at the provincial level.

Sixth, the Rockfort Quarry proposal has been designed to conform to all federal, provincial and municipal statutes and regulations, and it utilizes proven and straightforward civil engineering approaches.

In conclusion, it is the firmly held belief of James Dick Construction Limited, based on extensive investigation and review, that the Rockfort Quarry proposal represents an opportunity to extract high quality aggregate resource that is much needed to sustain economic growth in the GTA, without creating unacceptable adverse impacts.

The Chairman: Thank you. Does that concludes the first part of the presentations?

Mr. Hindson: Yes, it does.

Senator Meighen: I will return to the chairman's comment at the outset. We are here to listen to both sides and to determine to our satisfaction that any federal involvement, such as there may or may not be, has been properly carried out. Is it fair to ask you, Mr. Chairman, whether we will have the opportunity to speak to, at another time, DFO officials and to hear their views?

The Chairman: Yes. I would indicate to our witnesses and to you, Senator Meighen, that we have, in fact, written to the minister to request information on the ministry's position in respect of the status of the quarry. We expect a response soon. Depending on the response, and how this meeting progresses this evening, we may wish to discuss the matter with DFO officials. We will pursue that.

Senator Meighen: As I said, not to be flippant about this, I am not in this business, and I do not know the first thing about it, other than what my eyes see and my ears hear. I can only imagine that businesses such as yours are not always the most popular.

I will ask you what may appear to be naive questions. First, you said that there will be no serious effects on the groundwater level. To what extent are you able to assert that fact with certainty? Have you any previous experience to demonstrate that? Can you tell us anything about the techniques that will be used to ensure that there will be no adverse effects? What rate of success in this matter has been experienced?

Mr. Fairbrother: First, in responding I should indicate that I am not an engineer, I am a lawyer, and I will have to become more and more familiar with this engineering technique as the matter is challenged at the provincial level. I can assist you in a general way.

The company retained widely acknowledged experts in the field of hydrology and engineering who examined this. It is their word, not mine, when I say that these are proven and straightforward civil engineering techniques. A relatively non- technical summary is included at tab 9.

The upshot of the mitigation is to ensure that the water table outside the site is not lowered. If the water table outside the site is not lowered, then there will be no impact; and remember, I said, "to the west, north and south." That is to say, the engineering conclusion that they have reached, is that this will be the result. Of course, the cold water fisheries that I referenced are approximately 400 metres and 1,000 metres to the south, in an area where there is to be no drawdown, even on the boundary.

Senator Meighen: Did I not read somewhere in the materials that there is a club or a cold water fishery upstream?

Mr. Fairbrother: I will just check my notes on this. It is our understanding that the club is five kilometres to the north and in a different watershed. That is my understanding of the facts in that case.

It is fair enough to say, "Well that is fine, those are your experts, and one would expect them to take that kind of position." However, I would suggest that that would be a jaded view in one respect, and that is that these people are professionals and their reputations are on the line. They know that it will be tested.

In fact, it is being tested even as we speak. It is being reviewed by experts of similar backgrounds and experience who were retained by the local municipality, by the citizens' coalition and, in fact, by DFO. They are examining those assertions and the technical documentation. Mr. Hindson brought the reports with me, but take my word for it, there are numerous reports.

I do not pretend to understand them, but I know that they will be thoroughly examined by persons other than those from James Dick Construction Limited. Our consultants are confident in their conclusions. As I say, it is their word that straightforward, proven, civil engineering techniques are being utilized.

Mr. Hindson: Could I ask Mr. Parkin to comment on this question of certainty for the senator? Perhaps he could explain how many phases the quarry is operating in and what the margin for error might be.

Mr. James Parkin, Partner, MacNaughton Hermsen Britton Clarkson Planning Limited: It is important to realize that a quarry development is a gradual process. It starts with in one location of the property as a small hole in the ground and it expands from there, across the site, over a period of several years and several phases. The effectiveness of the mitigation systems will be continuously monitored. All of those results will be available to the relevant agencies, including DFO, and be subject to public review and scrutiny.

I am certain that information will be sent to the active agency overseeing the monitoring results. If the results are not acceptable, then adjustments will be made. The rate of extraction will be reduced, the area of extraction will be reduced, or the quarry will cease production. Thus, the continued operation of the quarry is contingent upon demonstrating that these systems that will be in place are effective.

Senator Meighen: What happens if all the best goodwill and engineering in the world does not make it work?

Mr. Parkin: It is not the same as a situation that would involve a road crossing a stream or a stream diversion for a subdivision, where one day the stream exists and the next day it is gone. What has happened is irreparable; and it happens over a relatively short period of time. In this case, we are talking about a staged and gradual development with careful monitoring.

Senator Meighen: Mr. Fairbrother, you referred to something that would trigger a federal environmental assessment. It is number four on your list. Who determines whether the Rockfort Quarry proposal, as has been developed, and will be developed, will not cause a HADD?

Mr. Fairbrother: Perhaps Mr. Kahn will comment on this as well. Essentially, there are, as pertains to this proposal and the Fisheries Act, two triggers of relevance. Had JDCL come to the conclusion that we could not develop this quarry without causing a HADD, then we could not do it. There is no mitigation that would allow us to do that. We would have to go to the minister and request special permission to create a HADD, and substanti ate why that permission should be given to us.

Senator Meighen: You are taking the position that you can do this without a HADD.

Mr. Fairbrother: That is correct.

What I just described is one way that an environmental assessment could be triggered. Under section 35(2) of the Fisheries Act, that action would trigger it. It is also listed in CEAA as an action that would trigger the CEAA.

You are correct, we do not take that position. We are confident, for the reasons that I just mentioned in response to your previous question, that we will not create a HADD. We are content. If we are wrong, the risk is on us, because then we will have committed an offence under federal legislation. There is risk to us as well, in that context. It is not a decision that we take lightly, in terms of our approach.

The second trigger would occur if DFO, after completing its current review - and I will badly oversimplify the legislation - comes to the conclusion that this proposal, notwithstanding the mitigation, is likely to cause a HADD. In that case, the projects would be subject to the full scrutiny of the CEAA. That determination has not been made yet, and we are confident - cautiously confident - that our documentation will withstand scrutiny by DFO.

We do not know their decision in that respect yet. If we are correct, and our confidence is justified, no CEAA will be triggered. However, that does not mean that fisheries is not an issue. We will still be required to demonstrate to the provincial authorities, not just to DFO, that our mitigation plans work. At that point, they will use the legislative framework to which Mr. Parkin referred. They will want those reports on a regular basis. I do not know what the required time frames will be. As Mr. Parkin explained, the project does not involve simply one huge blast to create a big hole in the ground; it occurs incrementally. That is a key point: It is incremental. If the mitigation is not working, the worst consequence, in terms of economic impact on the company, is that they must stop.

Senator Meighen: Are you saying that could be so ordered by DFO, under the Fisheries Act?

Mr. Fairbrother: Yes.

Senator Meighen: If the company were ordered to stop work, would an environmental assessment then proceed?

Mr. Fairbrother: The short answer is yes, because there are a number of hypotheses, but I would assume that we would then proceed through the CEAA to determine what else could be done, and whether this project should even proceed.

Senator Meighen: In the midst of conducting a fascinating review of the aquaculture industry in Canada, one consideration that was raised involved an area with which I am familiar - the Bay of Fundy. The question was whether there is a limit to the aquaculture operations in a given area. There seems to be some debate about it, but many people do say that there is, of course, a limit. I may not be able to tell you what it is right now, but my instinct tells me that we are approaching it.

Do you believe that there should be is a finite number of aggregate operations - quarries, sand and gravel - in a given area? If so, has that argument been made in this particular case? Who would be the judge of that?

Mr. Kahn: It is an issue that the aggregate industry confronts frequently on a regular basis. When an application for a new pit or quarry is brought forward, some of the people in the proposed area believe that there are already enough pits and quarries in the area and that the people's tolerance level has been reached. While there are many pits in Caledon, and Mr. Parkin may know the numbers better than I, but I believe that Caledon is not the municipality in the GTA with the highest production. There are one or two municipalities with higher production of aggregate in the GTA.

Senator Meighen: That could be a couple of big pits, as opposed to a whole lot of little ones.

Mr. Kahn: It could well be. I do not know if that is the case. The way that it is addressed through the municipal board process, is that agencies that review the application will not just look at the pit or the quarry in a vacuum. They will routinely consider cumulative impacts. If you have two, three or four pits, for example, in proximity to one another, and the latest one is developed, with whatever noise levels it creates, they will be required to look at those noise levels in the context of the noise levels from the other pits to ensure that the cumulative impact is not unacceptable.

It is the same process for trucks, for dust levels, for environmental impact, for hydrogeology, for fisheries and for ecology; name the discipline. That is the way it tends to be addressed.

Mr. Parkin: The sand and gravel pits in Caledon are in a different subwatershed from the Rockfort Quarry proposal. They are in a different geological setting in a different area of the town.

With respect to this particular proposal, the cumulative factor is not a big issue. There is a shale quarry that is in another geological formation a few kilometres to the south. This is not in the part of Caledon that has all of the sand and gravel pits.

Mr. Fairbrother: I would answer your question in the affirmative. There is a finite amount of aggregate resource because, first, you start with the geological formation. Then you have to deduct from that, the resource that cannot be accessed because of existing urban development, environmentally sensitive features, economic viability, et cetera. It is really an inverted pyramid. It is a resource that is much needed for economic growth, but it is limited and its accessibility is also limited.

Senator Meighen: Is it similar to discovering oil? Do you know where all the reserves are now? We know that proven reserves of oil and gas always shrink. Then exploration is conducted and, low and behold, the reserves are back up to 40 years. Do you know what the reserves are in the case of a quarry?

Mr. Parkin: The province maps aggregate resources across Ontario. It comes down to a question of economics. The economics of sand, gravel and quarry stone extraction are much different from the economics of oil extraction. If oil is found in the Arctic, is it economical to transport it to where it is needed? Proximity to market is a key factor. There is a great deal of aggregate in Ontario; there is no doubt about it. However, unless it is located close to market, and unless it is located in an area where the overburden is shallow, then there is no sense in looking at it. The environmental consequences of going further afield to aggregate deposits that are removed from the market area are severe because of the number of truck trips that would be required. The trucks would travel back and forth millions of times to transport the material the extra distance to the markets. There is a social consideration; there is a greenhouse gas consideration; and there is a road infrastructure and traffic problem consideration.

Yes, there is a tremendous amount of aggregate, but we have to use the deposits that are close to market.

Senator Watt: I do not pretend to be knowledgeable in this area. However, I will try my best to understand the issues.

Has this project already been approved?

Mr. Fairbrother: No, it has not been approved.

Senator Watt: Is it only at the planning stage?

Mr. Fairbrother: It is at the stage where applications have been made to the appropriate provincial and municipal authorities. Those have been appealed to the independent tribunal, the Ontario Municipal Board, the OMB. A hearing process has commenced, but the actual hearing of the merits of this proposal has not yet commenced.

Except for some events of recent weeks, it seemed as though we would begin in November. That is less certain now. We have commenced a process, but a hearing on the merits of the application has not commenced. There is no decision to approve or to not approve at this time.

Senator Watt: The location of this quarry has already been selected. How many years have you spent on studies of the area in respect of the potential impact the project could have adjacent to the site that you have selected?

Mr. Parkin: The properties were acquired in late 1996 and early 1997, and the studies commenced immediately after the purchase. A study has been underway since 1997.

Senator Watt: Did I understand correctly that there is still the possibility that the environmental assessment might have to take place, or has that already been done?

Mr. Parkin: There are provincial environmental reviews underway. That involves provincial ministries as well as conservation authorities who also have an interest in fisheries habitat. There is an environmental review under provincial statutes and under municipal Planning Act requirements as well. Those reviews are underway, and the agencies are reviewing materials that have been submitted. They will develop positions on whether they agree or disagree, and what conditions they would like to be met. All of that information is then tested at the Ontario Municipal Board tribunal.

Senator Watt: Where does the federal government come into the picture in terms of the environmental assessment?

Mr. Parkin: The federal government is involved through the Department of Fisheries and Oceans. That is one of the levels of government that is reviewing the proposal.

Senator Watt: They will determine whether they need to step in regarding the environmental assessment.

Mr. Parkin: That is correct. They will determine whether they agree with the reports that have been submitted. If their independent hydrogeologist concurs, they will probably only be involved in terms of formulating the conditions of approval. If they determine that a harmful alteration, damage or destruction is likely, then a federal process kicks in.

Senator Watt: In your presentation, I believe you said that the project would have to be economically feasible. Do you mean that the raw materials that are transported to the site to develop that quarry would have to be adjacent to the site? Did you say that, in order to make it economically feasible, transportation of the raw materials to the site is a factor?

Mr. Kahn: Senator, you are possibly referring to the fact that quarries and pits must be located close to market so that the material is economical. Placing pits and quarries a long distance from Toronto would not be of any assistance to feed the Toronto construction industry because of the high transportation costs. The situation would require you to find a site, first, where the resource is, and, second, close to the market for that product. Because of the urban sprawl around Toronto, those sites tend to be where people are located.

Senator Watt: How do you determine that you have located the right kind of rock? You probably have specialists in the field who make those determinations.

Mr. Parkin: It is a combination of physical and chemical characteristics of the rock. Around the GTA, the crushed stone comes from limestone that has both physical and chemical parameters that make it suitable. Some limestones react in a negative way when you try to make cement with them. The material does not stand up over time. This particular limestone is renowned for its high strengths and suitability for high specification concrete.

Mr. Fairbrother: A concrete example might be of assistance. Tall superstructures require a certain type of concrete of a certain strength. A lesser standard of rock might be required for a rural road where a non-concrete product is required. There are many specifications in between for such uses as airport runway requirements. Some of the newer highways, such as the 407 in the Toronto area, require very high specifications. They want those roads to last for a very long time. These are some of examples.

Mr. Greg Sweetnam, Resources Manager, James Dick Construction Limited: These materials require qualities which are specified in many cases by the provincial government. We simply cannot make the same products that we can make from a dolomite site from a sand and gravel pit. It is a different set of products with different requirements.

Senator Watt: When the project is approved, where are you planning to get the water? Are you planning to drain the natural lake and river systems to fill up this quarry? What will you do?

Mr. Parkin: No. The streams and ponds around the site will not be drained in order to find the water which will gradually accumulate in the quarry as it is developed. The engineers have done the water balance calculations to make those determinations, taking into account precipitation, evaporation, and the rate at which the water will come into the quarry from the aquifer. They have calculated what water will be required, and we believe that requirement can be met on-site.

Senator Watt: Are you confident that the lakes and river systems adjacent to the site will maintain their levels of fluctuation? I am familiar with hydro development dam sites where there is a great deal of fluctuation. I see little difference between a quarry and a dam that diverts water from lakes and river systems which may require to be filled when there is a particularly dry season. Has that been looked at?

Mr. Sweetnam: Yes, it has been looked at in great detail. To describe the site simply, traditional quarries, or quarries that were developed 50 years ago, used a technique of dewatering where a large pump was put into the lowest part of the quarry and it was pumped dry. There may or may not have been environmental impacts as a result of that. We are considering something very simple for this project. We will not let the water leave our site. In the old days they drained all the water from the site. We will reinstate that water back into the groundwater table in close proximity to the quarry. Thus, that water will not disappear.

In a carefully controlled manner over the life of the project, the peaks will be taken off the spring runoff. That water is slowly accumulated over the years and allowed to fill up the site. You may ask, "Where does the water come from?" It is runoff that is generated from the site. We are now reducing the amount of runoff in the springtime. We are creating a bowl into which the water runs. By carefully controlling the amount of water that we are saving year upon year, taking into account dry seasons and wet years, that is where the water to fill up that site comes from.

Senator Watt: What about drainage and the bacteria that is coming out of the quarry? Certain amounts of bacteria would have to be captured somewhere. What do you do with that?

Mr. Sweetnam: The site is internally drained.

Senator Watt: If you are talking about recycling the water - not letting it escape - that means water will not be drained into the river system.

Mr. Sweetnam: Runoff from the site is limited to spring flows. It is basically the snow that melts in the springtime which runs off the site. A base flow to the creeks is not dependent upon runoff from the site, rather, it is the groundwater component.

Senator Watt: How will you filter the water that comes in, and how will you filter the water that goes out?

Mr. Parkin: Before the water that is collected in the quarry goes into the injection wells around the outside, it will be held in a large reservoir. The biggest concern is fine sediments in the material, and that will settle out in the reservoir. There has been provincial monitoring of water quality in several pits and quarries across Ontario. That monitoring has demonstrated that the runoff from these sites is very clean and meets drinking water standards.

In a pit or a quarry there are no chemical processes or tailings, and the sort of thing that you find in mine sites. It is a clean process. As I said, the water will be accumulated in a reservoir, and there will be testing of that water quality before it is disbursed into the system around the outside of the site.

Senator Watt: Does that mean you will use chemicals to make it drinkable?

Mr. Parkin: No.

Senator Watt: At this point do you anticipate using chlorine to clean and filter the water?

Mr. Parkin: We do not think it will be necessary.

Senator Watt: New technology exists that does not require the use of any chemicals at all.

Mr. Sweetnam: Currently, on the site, we are dealing with a bedrock deposit with a very thin overburden. In many instances that bedrock is exposed at the surface. Today, rainwater runoff infiltrates the site, but no testing of that water has taken place. With the monitoring program we are proposing, there will be a new regime whereby that water will be tested. Should concerns arise, as you describe, contingency measures and plans can be implemented as required

Mr. Fairbrother: If we had brought all of the technical team that have been involved in preparing these mountains of reports, we would have circled the room to be sure.

Senator Watt: I have received your message.

Mr. Fairbrother: You have been given a non-technical explanation.Those very issues that you raise must be addressed and they have been addressed in the technical submissions that are presently being reviewed by DFO. The local conservation authority is very concerned about the issues you have raised. They are being considered by their own people.

The Chairman: You mentioned in your reports the great amount of time you will spend with municipal, provincial and local agencies in order to go through this extremely long process. I imagine it is extremely expensive as well.

Individuals have expressed the concern that there could be some impact on the fisheries.

You have been going through this whole process at the provincial level where there is concern that the fisheries might be impacted by your project. However, you also want to avoid duplication. That is the area that concerns me. Why would the federal government not be involved in that process if there is so much money being spent to examine and evaluate the project? Why is the federal government not sitting at the table with the provincial and municipal authorities monitoring this as it proceeds? Is there an arrangement between the feds and the province on this?

Mr. Parkin: The federal department is sitting at the table with us reviewing this project.

The Chairman: With the OMB?

Mr. Parkin: The OMB is not engaged at this point. However, they are consulting with the other levels of government we talked about. When we started this project, DFO had an agreement with the provincial Ministry of Natural Resources.

The Chairman: Is there an agreement?

Mr. Parkin: When we started, they had an agreement with the Ministry of Natural Resources, MNR. We went to MNR at the outset and we talked about fishery concerns. Those agreements ceased to exist at the end of 1997. By July, 1998 there were agreements in place between the federal department and the conservation authority.

We had been dealing with the conservation authority, again with consideration to fisheries issues, from the beginning - before the applications were submitted. We knew what their concerns were; we were aware of their fisheries data; and we discussed the target objective. Since July, 1998, when we deal with the conservation authority, they then consult with DFO, because they have this agreement.

The Chairman: Is DFO depending on this agency's evaluation of the project in order to make its own decision?

Mr. Parkin: No. However, they are interrelated. DFO is undertaking its own independent review. They have hired their own hydrogeological expertise and they have in-house expertise, both hydrogeological and fisheries biologists. They are undertaking their own review, but it is in consultation with the conservation authority.

The Chairman: I will present a hypothetical situation for my next question. Supposing you have gone through this rather long, drawn-out, expensive and heart-breaking process and, at the end of the day, DFO comes along and says, "Some fish will be impacted by this project." DFO is involved because there may be potential damage to fish, and if it finds that there may be such damage, DFO has to trigger an environmental assessment. After having gone through all of municipal, provincial and other agencies, would that not just throw a stink bomb on the whole situation?

Mr. Parkin: We wish that the bureaucracy and the review process were quicker.

The Chairman: We sometimes use the word "bureaucracy" in a negative fashion. Bureaucrats can be pretty annoying some times. However, they have a job that we, as Canadian citizens, depend upon them to undertake to protect our environment and our resources. The bureaucratic process, if there is coordination of the levels of government, can be extremely helpful to companies such as JDCL.

As it is set up now, if DFO suspects that impacts are not being mitigated in a proper way, they must trigger an environmental assessment.

Mr. Kahn: Perhaps I could respond to that, because some of the references you made in your initial question with respect to duplication, et cetera, came from my submission.

I hasten to add that I am not being paid today by JDCL. I am acting for the industry association, and that is an important distinction.

My answer, or perhaps the industry association's answer to James Dick, in respect of your last question might well be: Well, that is at your peril and you better be sure you are addressing the fisheries issues up front, or you may very well get to the end of the process, and then be faced with a federal environmental assessment. That is why any proponent that is dealing with things in a cost-effective manner will be sure that they have satisfied themselves; that they have satisfied anyone else that is involved; and that there will not be fisheries impacts.

Having said that, I hasten to add that, in the broad context of an application for a quarry, it is probably at my peril for me to sit in a federal chamber and say that federal jurisdiction is relatively limited, but in my submission, it is. It is a matter involving provincial land; it is a provincial proponent; and it goes through municipal approvals and a variety of provincial approvals which will review every aspect of the application.

The Chairman: With all due respect, I will stop you there. I read through the brief, which makes reference to "private land." It refers to lands that are owned by a private individual. If the individual who owns the private land on which he or she wants to build a quarry and damage fish habitat, it is our business. I will not back away from that.

Mr. Kahn: I was just going to get to that. That is why I said, "limited" not "non-existent." In your typical pit or quarry, federal jurisdiction enters into the picture in the event of any unique situation. For example, for the James Bay proposal it was fisheries. Then you get to the question of the extent of the jurisdiction and how is it dealt with. In this situation, the federal environmental assessment regime and its applicability is even more limited, which is access to certain specific triggers.

As a result, on a practical level, now that there is an agreement with the conservation authorities, it will come to DFO's attention if there is any potential impact on fisheries. Then you are into a section 37(1) process. I believe that Senator Meighen asked earlier, in another context, about the list of things discussed by the board, and who decides if there is a HADD, and how do you know that. Typically, on the ground, it is the conservation authority that makes that decision. There is an information gathering process which determines whether there is a HADD.

However, that does not, under the law list regulations, trigger CEAA. I presume that is the part of the process they are in now. DFO is clearly involved and is presumably analyzing the information. If you read the Fisheries Act, that is what is contemplated under section 37(1)

If there were to be a HADD, either DFO would come to the conclusion there is a HADD, and they would contemplate 37(2) action, or they would convince the proponent to apply for an authorization under section 35. That will trigger CEAA.

I did not mean, in any way, to suggest that there is no room for federal involvement. My submission, on the contrary, is that the place for federal involvement is very clearly constrained as set out by the Fisheries Act and by CEAA.

Mr. Fairbrother: On behalf of the proponent, James Dick, I would add that, although this is a private undertaking on private lands, early in the process, in fact, within two months of the filing of materials at the municipal and provincial level, we contacted DFO in recognition of the fact that this was an avenue that we best not leave until the very end of the process and then be surprised. We have been consulting with DFO since 1998 when access to adjoining properties was limited. It took some time to gain that access. That led to additional monitoring information - gathering of investigative material - to make submissions to respond to the questions that DFO officials were asking.

DFO has been proactive in this. Our message is that DFO is following the process legally correctly in our view, and they have not yet made a determination on it. They ought to be allowed to make that independent determination. They have our submissions, but they also have submissions from the CCC, from the town and from the regional municipality. Everyone is having input, and DFO will ultimately make a decision, to which we will respond.

It will not come at the end of the day. It is anticipated that at least some indication from DFO will be reasonably imminent, whatever that means.

The Chairman: I should not worry because there has been due process. It has been a long drawn-out process. The direct involvement of DFO in a kind of joint jurisdictional process may not be necessary, but would it be helpful?

Mr. Fairbrother: That is the duplication argument that we are talking about. If it is simply going to duplicate the process, then it would not be helpful. If DFO is not satisfied that there will not be an impact on fisheries, then they may exercise their federal jurisdictional authority. I expect that they will pursue it.

The Chairman: They may come down with a blunt instrument at the end.

Mr. Fairbrother: I am sure they will want more study or make some recommendation.

As I say, at this stage, the process has taken a long time. It is a complex matter. A great deal of technical information has been submitted. We stand by the conclusions that we have reached, and the matter is now before DFO for review.

That is part of the message. We do not know what decision DFO will come to, but the information is there, and the process is being respected and adhered to.

The Chairman: You are very confident that the project, as it stands now, will not cause any harm to habitat.

Mr. Fairbrother: Based on the technical information that our experts have put forward, that is our position.

Senator Moore: I am not familiar with the term "recharging." I see it on the maps at tab 10. What do you mean when you say that you recharge the water?

Mr. Parkin: I am not the engineer who designed this, nor am I intimately familiar with all of the details. The basic idea is that, instead of getting rid of water by surface channels as quickly as we can, which is the way most quarries operate and have been approved in the past, we would take the water that accumulates in the quarry and reinject it into a series of wells around the perimeter of the quarry.

DFO has recommended this as a general idea - that it is better to put the water back into the groundwater aquifer, rather than dispense with it by a surface water course.

Senator Moore: Do you drill a well?

Mr. Parkin: Yes, there will be a series of wells, initially 100 metres apart.

Senator Moore: You take the water out of the quarry and pipe it into the drilled well. What is the casing of the well? How does the water get back into the groundwater table?

Mr. Parkin: The well would be open, somehow, at the bottom or throughout the installation of the well, and the water would be pumped under pressure into the well. It would then flow from the well casing into the bedrock aquifer.

Mr. Sweetnam: This system has been tested using a full scale - a one-to-one scale - model on site in the exact conditions that we will experience on site. We have done a pilot project where we have drilled reinjection wells, and we have simulated the quarry using wells. We have built the mitigation system and we have tested it as it functions on site in actual conditions.

Senator Moore: Have you done this kind of installation of recharging water in any of our other facilities, or is this new technology?

Mr. Sweetnam: Other operations use recharge.

Senator Moore: Have you used it?

Mr. Sweetnam: We have used the barrier technique at Caledon Sand and Gravel operation using a hydraulic barrier to retard water moving through an aquifer. We do not have a specific site that utilizes this exact technology. However, I might add that every component of our system is of a tried and true civil engineering technique, which is used in many projects.

Mr. Fairbrother: On the first page of tab 9, there is a summary that was prepared by the engineers who are not with us this evening, but who are very much involved in this project. They indicate that mitigation measures are standard, straightfor ward, civil engineering approaches. Governments have recom mended the use of the groundwater recharge system to mitigate aggregate extraction dewatering, and this includes DFO, MNR, and the Credit Valley Conservation Authority - the local municipality's authorities. I am not in a position to elaborate on that this evening, but I know that that is the engineer's statement.

The Chairman: I believe Senator Meighen has a final question.

Senator Meighen: I would like clarification on DFO's involvement. If DFO were to conclude internally that there is no HADD, are they required to, or do you expect them to, render a decision in that vein? I assume that, if they think there is a HADD, they will render a decision, and then you will have to go through more hoops. Is it just a case of "no news is good news" for you?

Mr. Fairbrother: I expect that we will be notified in writing of their conclusions and findings on the reports that have been submitted. I suppose it could be anything. For example, under section 37(2) they could say that they are not satisfied and will have to forward the submission to CEAA. The report could ask for more information because they are still not satisfied that they can make a conclusion on the information they have. They may say that they are satisfied on the basis of what we presented to date, that it is acceptable, and that they would like to continue to receive input. In that way, when the quarry is approved at the local level, they would like to have specific conditions met to ensure respect for their interests in the project. The report might state that they will stay involved in the process in that fashion.

It would probably have the caveat: Nothing in this letter exempts you from the penalties, notwithstanding your diagrams, should a HADD be created. You will be subject to the full force of the law. That is a risk we understand. It is not particular to us. It is a risk that every person, corporation and municipal entity in this country faces.

Senator Meighen: On a scale of one to ten, with respect to the depth of this quarry below groundwater, is this an unusually deep quarry? Are there many that are as deep as this one will be?

Mr. Parkin: This is a good, deep deposit, and that allows a good recovery of material from less land area. We think that is a positive.

Senator Meighen: The life of the quarry, including remedial work, would be about 80 years, is that correct?

Mr. Parkin: It is in that ballpark, yes. That is not atypical.

Senator Meighen: We will find out from DFO if they are required to give an answer, or if that is their practice.

Mr. Kahn: Since DFO is only invoked in certain circum stances, I would suspect that they are probably not required to give an answer. They may well be able to stay silent. Having said that, a proponent would probably want an answer, because a proponent would likely be prodding. No one wants to take the risk of a "blunt instrument" at end of the day. I would have thought that most proponents would push to get some kind of answers.

Senator Meighen: It seems that the principal concern is the precise area of federal jurisdiction.

The Chairman: It sounds rather like an investigation where the RCMP did not find enough evidence to lay a charge.

Senator Meighen: I was concerned that they may say nothing. They have also done that.

We heard from the citizens' group. Was it your understanding that their principal concern relates to the groundwater table?

Mr. Fairbrother: My take is that no, it is not. I believe that their principal concern pertains to impacts on their community and themselves.

The Chairman: I thank all of you for your contributions to this committee. The information has been extremely helpful to us.

Is it agreed that the materials from the Aggregate Producers' of Ontario and James Dick Construction Limited be filed as exhibits?

Hon. Senators: Agreed.

The committee adjourned.

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