Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 5 - Evidence - April 28, 2009
OTTAWA, Tuesday, April 28, 2009
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 5:32 p.m. to examine the following elements contained in Bill C-10, the Budget Implementation Act, 2009: those elements dealing with the Navigable Waters Protection Act (Part 7).
Senator W. David Angus (Chair) in the chair.
[English]
The Chair: Bonjour. Good afternoon, ladies and gentlemen, people here in the room as well as those on the CPAC network and on the World Wide Web who are sharing these hearings with us.
This is a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources and I am David Angus, a senator from the province of Quebec. I am the chair of the committee.
Our committee's mandate is to examine legislation in matters relating to energy, the environment and natural resources generally. I would like to take this opportunity to introduce my colleague senators who are members of this committee and who are around the table today, beginning with our deputy chair to my right, Senator Grant Mitchell. Normally, I give their provinces. However, if I make a mistake, it is immediately pointed out, so I will just go by their names. Today, they are all very great Canadians in every respect.
Over here, the distinguished gentleman with the white hair is Senator Tommy Banks, my predecessor as chair; Senator Bert Brown; Senator Richard Neufeld; Senator Dan Lang; Senator Elaine McCoy; Senator Robert Peterson; Senator Lorna Milne; Senator Willie Adams; and Senator Mira Spivak.
On March 12, 2009, this committee was mandated by the Senate to examine into and report on those elements dealing with the Navigable Waters Protection Act (Part 7) of Bill C-10, the budget implementation bill that sas passed through Parliament. We were mandated to report by no later than June 11. Last Thursday, April 23, we started our hearings on this subject of the Navigable Waters Protection Act. We had fairly full hearings with representatives from Transport Canada, Mr. David Osbaldeston and Mr. Donald Roussel.
Today, we are continuing our series of meetings on this subject. We have determined there is a substantial public interest in the matter. With a view to arming ourselves to report back to Parliament, we want to hear all interests in an equal, fair and balanced way.
We are pleased to introduce our witnesses: Mr. Stephen Hazell, Executive Director, Sierra Club of Canada; and Jay Morrison, Chair of the Right to Paddle Campaign, Canadian Parks and Wilderness Society.
Jay Morrison, Chair, Right to Paddle Campaign, Canadian Parks and Wilderness Society: As you might suspect, that is a recently created campaign.
The Chair: Terri-Lee Reid, Conservation Researcher, Canadian Wildlife Federation, and Leigh Edgar, Conservation Researcher Canadian Wildlife Federation. Welcome to you all.
I understand that Mr. Morrison will speak first, followed by Ms. Reid and then Mr. Hazell, after which we will have a question and answer period with the senators.
Honourable senators, you should all have copies of the statements as they have been circulated in advance.
We will now proceed with Mr. Morrison.
Mr. Morrison: Thank you very much, Mr. Chair. I will abbreviate my statement just a bit in the interests of time. Thank you again, on behalf of the Canadian Parks and Wilderness Society, for your interest in the Navigable Waters Protection Act and for your invitation.
I hope to give the committee some perspective on some key problems with the amended NWPA. These include a lack of consultation with stakeholders, the lack of a realistic definition of navigable waters, the arbitrary powers granted to the Minister of Transport, and the increased risk of failure to conduct critical environmental assessments.
The Canadian Parks and Wilderness Society is Canada's foremost community-based voice for wilderness protection. With 25,000 supporters and 13 chapters from Newfoundland to the Yukon, CPAWS has taken a lead role since 1963 in establishing two thirds of Canada's protected wild spaces. CPAWS has a proven history of working constructively with local, provincial and federal governments of all political stripes, and especially with First Nations.
The Canadian Parks and Wilderness Society's primary interest on this issue is to ensure that environmental integrity is maintained, and to preserve Canadians' right to paddle through our world-renowned wilderness.
It was suggested to me by Senator McCoy's office that I might give some examples of what might or might not be deemed to be navigable waters as a result of changes to the act. I have a couple of photographs from my canoe trip across Canada here that I would like to pass around, if that is acceptable to the chair.
The Chair: That would be fine, sir. I suggest you give them to the clerk and they will become part of the record of this hearing. We will circulate them around the table so that all senators can have a look at them and then understand them in the context of your evidence.
Mr. Morrison: Excellent. I will leave them here for the time being, then.
The Chair: Thank you, Senator McCoy. A picture is worth a thousand words.
Senator McCoy: Such an Irish response, thank you.
Mr. Morrison: Until the Navigable Waters Protection Act was amended, the NWPA had served as a key piece of legislation supporting effective protection of environmental integrity and sustainable development, as well as its formal objective, which I think you senators heard about last week, that is, protecting the common-law right of public navigation.
CPAWS monitored the proceedings of the House of Commons committee that considered changes to the act last year. The committee's June 2008 report listed numerous witnesses from regional government authorities seeking changes to the act to facilitate their construction projects.
However, the committee heard witnesses from just one environmental group, from no paddling, hunting and fishing groups; from no outfitters; from no tourism operators or outdoor retail businesses; and, shockingly these days, from not a single Aboriginal peoples' organization. The report promised further consultation but that did not happen.
The Chair: I do not want you to lose your train of thought, but you do have a statement that you are reading in part from. I have seen eyebrows go up around the table, including my own, when you say these things about no consultation, because we have had witnesses from the department who said there were hearings before the House of Commons committee chaired by Mr. Tweed, which issued a report. They also told us that, over a 15-year period, there had been work done and the development of what they termed to be much-needed amendments, upgrading and updating of the act and that all stakeholders had been consulted. I am surprised to hear you say that you were never consulted.
Senator Spivak: Mr. Chair, on a point of order, when I questioned the officials, I asked them to tell us what members of the public they consulted, because they stated that they had been, in their presentation. Let the record show that no answer to that question was given regarding members of the public.
The Chair: The record shows what it shows, but thank you very much for that and your point of order is noted.
Sorry for these interruptions. We are just trying to get the facts straight here.
Mr. Morrison: That is a very germane point, Mr. Chair. In my further remarks, I will elaborate a bit on that. I would certainly answer any questions. However, I am specifically referring to the House of Commons committee that met about this time last year. They held hearings through the spring and then reported in June.
During that process, according to the list of witnesses published as part of the report, virtually all the witnesses were regional or municipal authorities of one kind or another, who, presumably, were interested in doing construction projects and had problems with the act in that it, obviously, imposes more delays and costs on their projects.
There was one environmental group heard as a witness. Several organizations made submissions, but they were not heard as witnesses. I think we all know that there is a pretty big difference between sending a letter that says, "We do not think you are doing a good thing here — please stop it" and having a real consultation with those organizations. Paddling organizations, hunting and fishing and environmental groups — aside from that one — were not heard as witnesses by that committee.
I can address it right now without reading my statement. However, in terms of what happened in the previous number of years, Senator Spivak, of course, is quite correct: When asked, Mr. David Osbaldeston said —
The Chair: We know that and have the record. If you have something factual to report on regarding happened during those years, we would be interested. We would also be interested in knowing what submissions were made, if any, quite apart from being called as a witness.
Mr. Morrison: I am not aware of other witnesses that were called. I am just looking at the last year.
Senator Milne: Mr. Chair, may I suggest we allow the witness to finish his statement?
The Chair: Excellent suggestion.
Mr. Morrison: In February 2009, stakeholders were surprised or blindsided when amendments to the NWPA were bundled into Bill C-10, the Budget Implementation Act. Since then, many groups have gone on record as opposing the amendments.
However, this flawed legislation might not have resulted had the Department of Transport conducted its own consultation with stakeholders before proposing changes to the act. Instead, as you heard last week, the government did not consult at all except to "review the files" of past complaints.
Justification of the rushed passage of the amendments to the NWPA has been framed as a need to streamline the process for speedy approval of infrastructure works, comprising economic stimulus measures. It would certainly do that. The amended act gives authority, without appeal, to the Minister of Transport to exempt from the full provisions of the act certain classes of waters and works that are as yet undefined.
When asked by the Standing Senate Committee on National Finance, which I know Senator Mitchell sits on, the Minister of Finance asserted that there was an immediate need to eliminate delays and duplication caused by federal environmental assessments that would automatically be triggered by the old NWPA to be followed possibly by an environmental assessment required by a province.
I suggest that this committee may want to explore the reality of environmental assessment practice today, both with expert witnesses from environmental organizations, such as my colleague Mr. Hazell here, and possibly with officials from the Canadian Environmental Assessment Agency. Why do I suggest this? While I am an admitted neophyte when it comes to environmental assessment — that is not my area of expertise — my understanding is that there have not been any federal-provincial duplications of environmental assessment on a large project since the Oldman Dam in Alberta 20 years ago.
I also understand that the Canadian Environmental Assessment Agency operates provincial offices, ensuring that EA duplication is expressly avoided. I would be surprised to learn that there were any recent projects where federal and provincial authorities are conducting independent EAs. In fact, the exemption of certain classes of water or works from the NWPA could have the opposite effect: no environmental assessment being done at all.
Provincial legislation is highly variable in its application. In British Columbia, for example, I understand that hydro projects of less than 50 megawatts do not automatically trigger an EA. I hope you will be able to hear from organizations from B.C. who are very concerned that about 700 rivers have been identified for potential private hydro development. If no EA is done, then who knows what the environmental impact will be.
Another issue is that there is no clear definition of navigable waters in the new act. That is why I distributed those photos. Depending on how navigable waters are defined, those photos, which were taken from my canoe trip across Canada, could either be navigable or non-navigable. I think we could probably all agree that they are beautiful places and that we probably should not disturb them without some due assessment.
Senators last week heard an official attempting to narrow the application of the NWPA by defining unnavigable waters as those "too shallow, narrow, steep or obstructed for reasonable paddling."
In answer to a comment from Senator Milne, I believe, it was suggested that a foot of water was insufficient to prevent a loaded canoe from being scraped. I am a certified white-water canoeing instructor and, as I said, I paddling 8,000 kilometres across Canada, finishing that trip last year. You may trust that I have paddled many, many shallow, winding and obstructed bodies of water, including some that have Canadian Heritage River status. I will state to you unequivocally today that to float a canoe requires approximately 4 inches or 10 centimetres of water, and that is a loaded canoe with two adults in it.
Paddling and its associated activities are a multi-million dollar — or possibly even a billion-dollar — industry, to say nothing of its recreational and cultural value. CPAWS, has developed a partnership with Mountain Equipment Co-op, MEC, to create a wilderness protection movement called The Big Wild to create awareness and fund conservation initiatives.
MEC estimates that one million of its three million members are paddlers. Thousands of white-water paddlers deliberately seek out rivers that are steep and obstructed. Their canoes are meant to be scraped; they are built for it. First Nations run canoes and motorboats up and down rapids on rivers that constitute the only feasible travel routes in some parts of the far north.
Is there a material difference between a foot of water and four inches? I think so. The less optimistic definition of navigable water would allow the Minister of Transport to deem most of thousands of smaller rivers and parts of larger ones as unnavigable and subject to obstruction by human works without due assessment of their impact on the right of public navigation and the environment.
Frankly, it is unacceptable that the NWPA contains no clear definition of navigability that recognizes the true nature of the use of our waterways.
Our time today and for these hearings is very limited. Over the past months, I have worked with many credible organizations that will not likely have the chance to be heard. However, I do expect that you will hear much from other witnesses about the flawed policy process, the lack of consultation, the discretionary authorities granted to the minister, and the increased risk that environmental assessments will not be done.
This information should allow your committee to recommend that the government should not wait five years to evaluate the NWPA. Rather, the government should immediately begin an open and comprehensive process of consultation with all stakeholders to develop orders and regulations under the NWPA that will protect the public right of navigation, including Aboriginal treaty rights, and the environmental integrity of our waterways.
The Chair: Thank you, Mr. Morrison. That is a very interesting statement.
Terri-Lee Reid, Conservation Researcher, Canadian Wildlife Federation: It is a great pleasure for us to be here this evening. I would like to start just by giving a brief introduction about the Canadian Wildlife Federation.
It is one of Canada's oldest and largest wildlife conservation organizations. We represent approximately 300,000 supporters across the country. For more than 45 years, we have been encouraging the sustainable use of Canada's natural resources and the conservation of wildlife populations and their habitats.
We have a few concerns regarding the Navigable Water Protection Act amendments as they were seen in the Budget Implementation Act of 2009, Bill C-10. One of our concerns lies with the government being granted the authority to classify a class of works and a class of navigable waters that would be exempt from the approval process found in the Navigable Waters Protection Act. Previously, the act called for all works impacting navigable waters to undergo an approval process and, consequently, a federal environmental assessment.
This amendment as proposed significantly reduces the waterways that will be protected under the act's approval process under the sole discretion of the Minister of Transport and the cabinet. The amendments as proposed provide no indication of alternative measures to protect Canada's water from these works, either individually or cumulatively, and this is unacceptable.
One of the purposes stated on Transport Canada's own website regarding the Navigable Waters Protection Program is protection of the environment. As such, any amendment should serve to strengthen or at least maintain environmental standards. By no means should they weaken them.
All streams, the large and the very small, combine to provide Canadians with the most essential element for life, and that is water. In coming years, Canada's water supplies and water quality will be facing negative impacts from climate change, pollutants and works of various kinds. To help protect Canada's water supplies, the Canadian Wildlife Federation would like to see the following changes to the amendments:
First, we would like to see clear, transparent and consistent criteria for what would make a class of works and a class of navigable waters exempt from the approval process.
Second, we would also like to see alternative measures of protection for any waterways exempted from the approval process.
Third, as a group, the many small waterways that may be exempt, are vital to Canada's water supplies, and while individually a single "work" exempt from the approval process may have minimal impact on the aquatic environment, the cumulative impact from many exempted waterways and/or works in a single watershed could have a profound negative impact. It is vital that tools to minimize the potential cumulative impact from works be incorporated on individual waterways and watersheds as a whole.
Fourth, we would also like to see the existing degree of public consultation on proposed works maintained. Right now, all proposed works impacting navigable waters must be published in the Canada Gazette and at least two local newspapers, providing ample opportunity for public notification and consultation. Under the proposed amendments, it would only be those proposed works that substantially interfere with navigation as determined by the Transport Minister that go in the Canada Gazette and one local newspaper. This change would result in many works proceeding with little to no public awareness and therefore little to no consultation.
Stephen Hazell, Executive Director, Sierra Club of Canada: Thank you for the opportunity to appear before the committee this evening. I represent the Sierra Club, and I thought it might be useful to point out that, some years ago, I was the director of regulatory affairs for the Canadian Environmental Assessment Agency at the time that many of the regulations under CEAA were developed.
The focus of my presentation is on the impact of the amendments to the Navigable Waters Protection Act on the federal role with respect to environmental assessment. Sierra Club contends that these amendments appear to be part of a much larger agenda that is likely to have three outcomes: the first is to eliminate legal obligations to carry out federal environmental assessments; the second is to concentrate more discretionary authority in the hands of the Environment and Transport Ministers; and the third is to reduce public participation in environmental assessment.
What is environmental assessment? Why should we care about it? Environmental assessment is really just a tool to inform decision makers on the environmental impacts of projects. Why do we do this? We do this to achieve sustainable development. Without environmental assessment going on, it is likely that you will get bad projects or that you will not identify mitigation measures that might reduce the impacts of projects that you do want to proceed. In my view, sustainable development simply is not possible in the absence of information that environmental assessments provide. I want to emphasize that environmental assessment is just a tool to provide information. It is not a decision- making process. It is an information-gathering and dissemination process designed to assist decision makers.
Our argument is that when you do not do an environmental assessment, you are, as a decision maker, blinding yourself to the possible environmental effects. You are assuming that you know what is right, and sometimes you do.
Most of the environmental assessments under CEAA, roughly 99 per cent of them, are called screenings, and these typically take a very short period of time to carry out. The ones that attract most public attention are the big ones, the joint pound reviews and some comprehensive studies.
These amendments to the Navigable Waters Protection Act authorize the Governor-in-Council authority to regulate and the Minister of Transport the authority to order that certain bridges, dams and other obstructions to navigation do not require a permit and, thus, do not require a federal environmental assessment.
The extraordinary powers provided to the Minister of Transport to order the exemption of projects from NWPA permit requirements is not limited to minor projects or works. The particular clause that provides the Minister of Transport with these powers under section 13, I believe, is really one of the most egregious features of the act. I want to underline that.
For example, the Minister of Transport could order the exemption of major projects such as the proposed highway bridge across the Ottawa River connecting Ottawa to Gatineau. Some of you with a little local knowledge have heard of the proposed Kettle Island Bridge which goes across a protected area, a unique ecosystem in the middle of the Ottawa River. It is the largest ecosystem in the Ottawa River, and a bridge is being proposed to be built over that. If Transport Minister John Baird wanted to, at the appropriate time, he himself, without consulting his colleagues or anybody else, could say, "We do not need an NWPA permit for that; therefore we do not need an environmental assessment. Bob's your uncle; let 'er go, boys." This is obviously a major concern for us.
Transport Minister Baird has justified the amendments on two grounds. One is they will facilitate economic stimulus projects, but the fact is that most delays in funding projects out of the 2008 budget were completely unrelated to environmental assessment issues. Second, he has justified the amendments on the basis that they will eliminate red tape such as overlap and duplication with provincial environmental assessment processes. This is not true, as my colleague has suggested.
The NWPA is the most important trigger for federal environmental assessment and in some cases is the only trigger for any environmental assessment, federal or provincial. Sierra Club has done something I do not think anybody else has done, including the Transport officials. We actually looked at the environmental assessment registry. We looked at all those assessments that are triggered by the Navigable Waters Protection Act. We selected those for which the NWPA trigger is the only trigger, that is, not triggered by the Fisheries Act and not triggered by the fact that it is occurring on Aboriginal lands. There were no other federal triggers, and no other provincial assessment occurring, and that information is provided in quite a convenient way in the registry which is online for anybody to see.
What did we find? We found that nine out of sixty-five hydro-electronic projects and dams were only triggered by the NWPA. We found that 107 out of 173 bridge and culvert projects were only triggered by the Navigable Waters Protection Act. That means roughly 115 or 120 projects that are currently being assessed under CEAA would not be assessed under the amendments to NWPA. I have had a chance to look at these and, in my opinion, as a former regulator, very few of these projects deserve to be exempted from environmental assessment.
Why is this happening? How can it be that we can just approve these projects without the provinces getting involved? Many times we say, "Let the provinces look after it." The problem is that provincial laws vary. They are a dog's breakfast. They differ from province to province and have limited coverage of even major development projects. For example, the Ontario environmental assessment law does not even apply to private sector projects. It only applies to the public sector. Public sector projects, such as recent nuclear power plants, are so frequently exempted from the environmental assessment rules that Ontario's law has long been referred to as the environmental exemption act. The process in British Columbia exempts new highways less than 20 kilometres in length and power projects less than 50 megawatts in electricity produced. You can imagine the amount of environmental harm that you can cause with a 19- kilometre highway through a wetland.
In some cases, federal and provincial EAs are required for the same project. I want to concur with my colleague, Mr. Morrison, that since the late 1980s there have been prodigious efforts by Conservative and Liberal federal governments to ensure that these processes are harmonized so you do not have independent federal and EA reviews as we did for the Oldman Dam and as we did for the Rafferty-Alameda projects in the mid-1980s. That problem has been looked after, in my view completely looked after, and it is just a convenient device to help deliver on the government's agenda, in my opinion.
What has been happening most recently to ensure harmonization? The current government established the Major Projects Management Office, under Natural Resources Canada. Minister Lunn, when he was Minister of Natural Resources, established that. That office is designed to facilitate major projects through the federal system. A lot of money is being spent on this and you have not heard much about that from Minister Baird recently I do not believe.
The NWPA amendments are one attack on the federal environmental assessment system. The other set of attacks — if I can use that term, it is a bit aggressive I know — was exclusion lists and adaptation regulations that were gazetted in March of this year. These were regulations issued under the authority of Minister Prentice as Minister of the Environment. One set of regulations removes the requirement for federal environmental assessment on an anticipated 2,000 projects under the Building Canada Plan.
The other set of regulations, the adaptation regulations, authorize substitution of provincial environmental assessment processes for federal ones for those Building Canada projects that are not excluded under the exclusion list regulations.
Last week Sierra Club, represented by Ecojustice, launched an application under the Federal Court Act arguing that both these regulations are illegal. The one point I wanted to make is with respect to the adaptation regulations. These are the most egregious regulations in that they purport to amend the Canadian Environmental Assessment Act itself and this is the so-called "Henry VIII clause." We think this is something that this group should be particularly concerned about. They are called the adaptation regulations but, in effect, they amend the act. I thought that was Parliament's job.
The third piece of evidence with respect to the elimination of federal environmental assessment requirements, is a proposal that the government has been circulating internally for a replacement statute to the Canadian Environmental Assessment Act. My information is based on a presentation deck that was given to the Canadian Environmental Assessment Agency in late January. The point I want to make is there is a huge change proposed. However, the main point I want you to understand is that the bill would, in effect, give the Minister of the Environment virtually unfettered discretion to decide whether any environmental assessment is required. That is the minister could basically say, "We are not going to have any environmental assessments federally any more. The provinces own the resources; we are going to basically let them do the job."
The Chair: You are doing a great job and we are all listening carefully. You seem to be hurrying a bit. Take your time; we are here to listen.
Mr. Hazell: I am close to being finished.
The Chair: Do not feel you have to beat the clock.
Mr. Hazell: Thank you for that.
This document — I have it with me but it is not included with my package — is enjoying wide circulation.
On March 19, when Minister Prentice brought forward this package of regulations to which I just alluded, he stated that the proposed bill replacing CEAA would be brought forward to Parliament in the next two years. It seems there has been some backing off from that legislative proposal. Who knows where it is at, but certainly it had reached the stage where they were briefing officials in the Canadian Environmental Assessment Agency itself as to what was coming. That briefing was done, as I say, in late January of this year.
There are three pieces of evidence that really point towards the government's desire to eliminate environmental assessment requirements federally. Why would the government want to do that? I will speculate just briefly. I believe the government's view is that provincial governments should have exclusive authority for assessing the environmental effects of development projects, and what is the federal government's business in this anyway?
That is a rational position to take based on one's understanding of how the federation should work. It does, unfortunately, ignore the fact that under the Constitution there are certain authorities given to the federal government. There is the exclusive legislative authority with respect to navigable waters, the exclusive legislative authority with respect to fisheries, the authority with respect to migratory birds, which is not exclusive, but there is a number of other heads of power. These are federal responsibilities. They cannot be delegated short of a constitutional amendment.
To the extent that the federal government has any residual authority with respect to assessing the environmental effects of development projects, it seems to be the view of the government that federal ministers, and by extension the Prime Minister's office, must have complete discretion as to whether or not any environmental assessment is to be conducted. This takes us back to the early 1980s. We have had environmental rules in place. The environmental assessment review process guidelines order-in-council was brought in when Mr. Caccia was Minister of Environment in the Trudeau government, so it goes back some ways. That was succeeded by the Canadian Environmental Assessment Act in 1992.
It takes us back a long way and at Sierra Club of Canada we profoundly disagree with this approach. The human destruction of the life-supporting capacity of the biosphere and the increasing risk of global climate chaos caused by greenhouse gas emissions is the most important issue of the 21st century in my opinion. That any national government would deliberately throw away key tools to address these critical issues is, in my view and the view of Sierra Club of Canada, irresponsible.
I want to say that I have had discussions with Nature Canada about my brief and they wish to endorse the Sierra Club's view. They are alarmed by this attack on federal environmental assessment law.
I wanted to mention that I have a few thoughts for the committee in terms of where you go from here. In an ideal world we would like the government itself to introduce legislation into the House of Commons, repealing sections 5 and 13 of the Navigable Waters Protection Act. I appreciate that is probably unlikely, but nonetheless it would be great if this Senate committee could recommend that. The other approach would be to bring forward a bill in the Senate — perhaps a private member's bill — that could seek to repeal these egregious sections of the NWPA.
This is perhaps one you have not heard before: there is a so-called five-year parliamentary review of the Canadian Environmental Assessment Act coming up in the fall I think. This review is written into the act, it is required to be done. One thing this committee could recommend is that the implications of these Navigable Waters Protection Act amendments for federal environmental assessment be included in that five-year review. You could express your concern about what is going on with this bill by saying to Minister Prentice — I think it is the House of Commons committee that will probably get it — the parliamentary committee that gets to review the Environmental Assessment Act should have a good look at what is happening with the NWPA. That will be one way to continue the work on this.
Those are all my comments.
The Chair: Thank you, sir. Your comments are very helpful indeed.
That is it from the witnesses directly. Now we will go to the question period and we have the deputy chair, Senator Mitchell.
Senator Mitchell: I have just one point of clarification. I think each of you addressed this in one way or another. It is true, therefore, that, in a large proportion of the cases, the only way that you get to an environmental assessment is by the trigger of a NWPA assessment; is that right?
Mr. Hazell: That is correct.
Senator Mitchell: A Minister of the Environment could not, in those cases, simply use his or her discretion to start an environmental assessment even if the Minister of Transport decided not to trigger it with an assessment of his or her own?
Mr. Hazell: Under the current act, there is discretionary authority on the part of the Minister of the Environment to order an environmental assessment, under certain circumstances. There are a number of sections that deal with this, so you have to deal with the language of each particular section of the act. The Minister of the Environment has a fair amount of authority to order an environmental assessment even in situations where the Navigable Waters Protection Act is not a trigger or there is no other federal trigger. There are certain circumstances where the minister could say, "Look, the national interest demands that the federal government do an environmental assessment." There are sections in the act that deal with that.
Senator Mitchell: There is still a big portion.
Mr. Hazell: This is under the current act. I am talking about the Canadian Environmental Assessment Act, not about the Navigable Waters Protection Act. I am talking about the Minister of the Environment's authorities under the Canadian Environmental Assessment Act.
Senator Mitchell: Thank you.
Senator Banks: Thank you all. It is nice to see you again, Mr. Hazell.
You have all referred to environmental assessments and the Canadian Environmental Assessment Act, but we are dealing with a specific piece of law here. It is an act that amended the Navigable Waters Protection Act, not the Canadian Environmental Assessment Act. Have I got that correct?
Mr. Hazell: Yes.
Senator Banks: Dealing with the matter of law before us, while I understand that "environmental assessment," as opposed to "Environmental Assessment", is related to this, what we are talking about here is the question of amendments which have been made under Bill C-10 to the Navigable Waters Protection Act, period. Have I got that right?
Mr. Hazell: Yes.
Senator Banks: Mr. Hazell, when you talked about a way forward perhaps being repealing sections 5 and 13, did you mean of Bill C-10 as opposed to of the Navigable Waters Protection Act? I am assuming that you did. That is, the bill of amendment.
Mr. Hazell: I am referring to the amendments to the Navigable Waters Protection Act, yes.
Senator Banks: Thank you.
Mr. Morrison: Since the bill has passed, I understand that it is now the new, amended Navigable Waters Protection Act.
Senator Banks: As amended, yes; correct. I wanted to ensure that I understood that.
I will ask Mr. Hazell, Mr. Morrison and Ms. Reid, each of you; whether you think it is appropriate that there should be classes of navigable waters. Be as descriptive as you can. You have shown us pictures, Mr. Morrison, of waters which I presume are navigable since you navigated them. However, I have seen streams that are pretty steep going down the sides of hills that I would be hard pressed as a completely ignorant neophyte to say, "That is navigable." I have never tried it in a canoe, but do you agree there ought to be classes of flowing water — putting aside ditches, farm irrigation ditches, and so on? Do you agree there should be classes of navigability or should there be flowing water that is not deemed to be navigable water?
Mr. Morrison: That is a very interesting question. The answer off the top of my head is that flowing waters are more critical. Rivers go somewhere. They take toxic waste products to places, for example, that we do not want them to go. I think Mr. Osbaldeston gave the example of filling this room half full of water and closing that door and that would be considered navigable waters. That is a small pond or lake and does not go anywhere. I will not be as concerned about that as I would be with a small river.
Your question gets at two things: one is moving water, and the other is whether there should be a definition of "non- navigable waters" in the act. I feel strongly that the act itself should contain a definition of "navigable waters." In fairness to Mr. Osbaldeston, my sense from listening to him in both your committee and in the Standing Senate Committee on National Finance was that they are trying or have tried to define "navigable waters." If they spoke to the people that used those waters, they might get further along in their discussions, but it is not an easy task. I think this committee also alluded to the fact that they may be under resourced to do that. To do the kind of consultations that we are recommending would require a lot of time and resources, but we think it should be done.
The answer to your question is this: I think there should be a clear definition of "navigable waters" in the act. The other question — I think it was really two — is whether there should be then classes of water as well as works. We have not seen any definition or suggestion from the Department of Transport about what those classes might be. I think I have an open mind and I would be open to hearing what the rationale for different classes is, but at this point we have not heard anything that would justify having different classes of water. It appears — and Mr. Hazell alluded to this, too — that the government may be looking at different classes of water as a means of exempting certain works from the provisions of the NWPA and we are skeptical about the need for that.
Senator Banks: Do you have any general ideas of definitions to put forward?
Mr. Morrison: As I mentioned in my statement, the traditional definition of "navigable waters" — and Mr. Osbaldeston mentioned it as well — is "able to float a canoe," which has a lot of historical, cultural and practical trade significance in Canada. That is still a pretty good definition and, as I said, that only takes four inches of water. With the canoe that I paddled across Canada, loaded with camping gear and food, I was drawing about three inches of water and I was able to navigate 99 per cent of the way from the Atlantic Ocean to the Arctic Ocean with that criterion.
Ms. Reid: If there are classes of navigable waters and classes of works, it is important to ensure that they are determined in a clear, transparent way that would be open for public input.
Senator Banks: By way of determining what the definitions of them are; is that what you mean?
Ms. Reid: Yes, if there are criteria for what would make a class of works or a class of waters exempt from that approval process, to ensure that those are consistent and clear, transparent and open for public input.
Mr. Hazell: I would endorse the comments of both my colleagues. The other aspect that I am very concerned about is that it is one thing for the Governor-in-Council to have power to regulate classes of works and classes of waters. That is one thing, and we do not like that. However, it is another thing to give one minister the authority on a one- time-off basis to say, "I am creating a little class for the Kettle Island bridge so that it does not need a NWPA permit and I can have a bridge across the Ottawa River in the east end rather than in the west end, which is my constituency. The east end folks can enjoy all that nice additional traffic from Gatineau but in the west end of the city we will be happy." In the local Ottawa context, this is a very real issue.
Senator McCoy: I would just like to follow on Senator Banks' questions. First, thank you, witnesses, for your excellent presentations. Key sections mentioned by the witnesses have been sections 5, 13 and I think there is one other section that comes into play, and that is under obstacles and obstructions. I am just looking for it. It is in section 14.1. That also excludes any minor work or minor water.
I would suggest — if you would care to confirm — that the effect of declaring a minor work or a minor water also removes it from the safety provisions of the act under Part 2: Obstacles and Obstructions.
Mr. Hazell: That is my understanding, senator. Yes.
Senator McCoy: My understanding is that you are also saying there are no criteria in the act to act as guidance. Parliament has not given the minister any constraints; the minister can be totally whimsical. It is whatever the minister states by order or the Governor-in-Council states by regulation.
Mr. Morrison: There does not appear to be anything in the amended act that would constrain him.
Senator McCoy: Furthermore, there is no appeal, correct?
Mr. Morrison: That is my understanding.
Senator McCoy: Therefore we have set up a czar to determine what is, for example, a minor water.
Mr. Morrison: I think it is a statement that we should trust the minister implicitly and completely. I am not sure that is the way we normally operate in this kind of a parliamentary democracy.
Senator McCoy: It is my further understanding that Mr. Osbaldeston, who is the senior civil servant of the Navigable Waters Protection Program, who was here last Thursday, said he was looking to define "reasonably navigable water" and told us that a canoe could not float in one foot of water. Therefore, he presumably does not have the expertise; he would not have known what you are telling us tonight.
Mr. Morrison: I must confess that, when I heard him say that, I made the assumption that he was not a paddler.
Senator McCoy: Or that he had ever stepped into a canoe.
Senator Milne: He said paddlers would not want their canoes to get scraped on the bottom.
Mr. Morrison: When the voyageurs were paddling birch-bark canoes, they got out of their canoes into the water and unloaded them so they would never touch rocks if they could avoid it. However, today's canoe is made out of kevlar and ABS plastic. People go out looking forward to scraping their canoes!
Senator McCoy: You would have certain other opinions on serpentine water and how wide waters must be. You do not need it very wide either, I should think. I am not a paddler, which is why I asked for pictures.
Mr. Morrison: I would be happy to take you out some time.
Senator McCoy: Are you sure? Be careful what you ask for.
I have a question for our chair. On Thursday, Mr. Osbaldeston testified that the minister had signed the orders under section 13 the night before. That would be the April 22, 2009. Therefore, those orders are now in existence, they are a matter of public information and they are required within three weeks to be made part of the public domain.
We asked for them to be supplied to the committee with alacrity, I think I said, and they were promised to us. Let me ask you, Mr. Chair, if our clerk has advised you whether we have received those.
The Chair: As a matter of fact, as agreed at the time — which was Thursday, April 23 — we put together a letter, incorporating all of the matters that were undertaken by those two gentlemen and we have not received the materials yet. When we heard from you today, we asked them to hurry up and get the materials here and we are assured we will have them soon.
Senator McCoy: Soon.
The Chair: I normally do not come as a witness to answer questions, but I am trying to be very transparent as you know I always am.
Senator McCoy: You always are.
The Chair: Let us get on with the next question. Do you have other questions for the witness?
Senator McCoy: Yes, I do. I find it may be necessary for us to recall the witnesses and to ask their opinion, as Senator Banks was beginning to do, in terms of whatever those orders say. We are speculating without the benefit of their evidence, at least. Therefore, the very point you are making about transparency is almost impossible to have without that information.
I do have another question, though.
The Chair: Please ask it and we will go on to the next questioner.
Mr. Morrison: In fairness to Mr. Osbaldeston, he did say last week that he was trying to come up with objective criteria but that he had had some difficulty. In fact, he made a reference to having commissioned studies into it. Senators might want to ask for those studies to see what kind of information was in there.
As a former manager at the Treasury Board, mostly responsible for program management and accountability issues rather than policy issues, I can say that having objective criteria is very important to the success of a program. I would encourage them to do that.
The Chair: Thank you for that observation.
Senator McCoy: My next question is about consultation and public participation. We have established there is no appeal from a ministerial decision. The question that has come up is whether there is any advance notice, and that is another question.
However, I want to specifically ask each of these witnesses whether the Navigable Waters Protection Program, the Department of Transportation or the current Department of Transportation and Infrastructure ever invited you or your organization, specifically, for your opinion on any proposed or previously-implemented policy? Let us start with Mr. Hazell.
Mr. Hazell: I have been with Sierra Club three years or so. In that time, I do not believe we have been asked for an opinion on the matters before this committee today; on Navigable Waters Protection Act issues. I do not believe we have.
Mr. Morrison: I have been with the Canadian Parks and Wilderness Society on the board of the Ottawa chapter, and I am a former national trustee, and I am not aware of any attempt by the Department of Transport to consult CPAWS on this.
Ms. Reid: There have been no attempts to solicit the Canadian Wildlife Federation, either, that I am aware of.
Senator Spivak: I am not even sure the public is aware of the import of this. One thing we were told in last week's presentation by Mr. Osbaldeston is that, unfortunately, because of various things like prorogation and election, they had to rush through these things without proper consultation. I believe that is what he said.
I think that is an important point, but my question really has to do with what I think is the most egregious thing about this legislation: the discretion of the minister. This is a question for Mr. Hazell and you could also comment.
I note that the legal process you are looking at has to do with the fact that varying regulations is not the same thing as an amendment to a bill. What is the legal status of the limits of a minister's discretion? How, simply by doing this quickly, can you hand such awesome authority to a minister? Can you comment on whether this is absolutely and entirely legal?
Mr. Hazell: I will attempt to answer. With respect to the discretionary authority of the Minister of Transport under the Navigable Waters Protection Act, there are other examples where ministers are given authority to make orders such as are included in the Navigable Waters Protection Act. I think of the Fisheries Act, for example. The Minister of Fisheries has large powers to issue orders with respect to stopping fishing seasons on this or that population of sockeye salmon. It is not that ministers should not have authority to issue orders. However, in this particular case, I do not think it is right. I just do not think that we should do that. There is no constitutional bar to it, and certainly you can write the Navigable Waters Protection Act in the way that it is written, and it is probably not unconstitutional to do that. I just think it is bad policy, and it is undemocratic.
Senator Spivak: My point is that by doing this, you are not amending but negating previous legislation. Never mind right, it does not even seem to me to be legal. I am sure that in many other countries you can just automatically do that, but here we have a body of law. I am probably one of the few people here who was present when the Canadian Environmental Assessment Act came into being under different governments, but mostly under Progressive Conservative governments.
The Chair: Do you have a question, senator?
Senator Spivak: Yes.
The Chair: Let us hear it, please.
Senator Spivak: Here is my next question.
Mr. Hazell: Could I respond?
Senator Spivak: You mentioned what the total amount might be in terms of the economic impact of recreational groups and so on and so forth. Do you know, once you count in Ducks Unlimited and the anglers and the fishers and all of those people, how many people would be impacted by this piece of legislation?
Mr. Morrison: The economic impact is a little harder to get at. Some of the associations that I asked for figures did not have them. As I think was alluded to, awareness of this issue is still relatively low in the Canadian public. The media really have not picked up on too much of it. In terms of the number of people that would be directly impacted, whether they know it or not today, if you look at paddlers, you are looking at easily over a million. That is just canoe and kayak. If you are looking at hunting and fishing, the Ontario Federation of Anglers and Hunters is 100,000 alone, and those are members. Look at Aboriginal people. The Assembly of First Nations has 1 million people. The Assembly of First Nations is on the record with the House of Commons committee that met in February, the joint committee, as saying, "We are affected, we have not been consulted and this is unacceptable." Look at environmental groups. I think rural landowners should be very concerned, and there are many associations there. People are still getting up to speed. It was a bit of a shock that this legislation came bundled together with the Budget Implementation Act in February.
Going back to the House of Commons committee that reported in June of 2008, they did promise further consultations. I think that committee was admitting that they had more work to do. It is possible that they had only heard from the industry side and they intended to hear from the other side, but that never happened. People were expecting to have a chance to be heard, and they have not had that. The level of awareness is pretty low.
I would be very comfortable in saying there are at least three to four million people, by my informal count, who could be directly affected by this legislation, if you include Aboriginals, environmentalists, paddlers, hunters and fishers, rural landowners, and so on. There is an organization called the Canadian Rivers Network. If you go to a website called Ispeakforcanadianrivers.ca, you will see a listing of dozens of organizations down the right-hand margin who are supporters of this network and its opposition to the NWPA amendments. It is a pretty considerable list, and it is still growing.
The Chair: Just for your information, we have witnesses coming from those various groups, so we will be hearing their position.
Senator Neufeld: Thank you for presenting. I appreciate that. I have spent enough time in government to know that we always talk about the big bridges and the little creeks and do not get down to what we should be as talking about, which is what do we need to do to actually make it available so you can canoe in a way that is not completely unfettered but also have some development for the services that people need. It is hard to get the sweet balance, and I appreciate that.
I need to make a couple of statements first. I thought Mr. Destin was pretty reasonable in what he said when he came to both the Finance Committee, because I participate in that, and this one. He told us that the act had been written in 1882 and was amended once with a small amendment in the 1960s. In 1882, some of the provinces were not even part of Canada yet. Do you think they had it right that long ago for what we are living with today? Is there room for a rational way to look at some of these things, not just because of the years, but to really think about it? We need to actually do some of this. Mr. Destin is on record saying that they actually worked on this for 20 years within the ministries. That encompassed a number of governments, so you can hardly say that is politically driven, but they were having difficulty. Would you agree with me that there needs to be some changes to the Navigable Waters Protection Act to recognize the world that we live in today?
Mr. Hazell: Yes. Definitely, the act needs amendment.
Mr. Morrison: I would also agree that it needs updating. It is a question of how that is done in an open, transparent and consultative way. We would be happy to meet with Department of Transport officials to discuss that.
Ms. Reid: I would have to agree with what the other witnesses here have said. It needs to be done openly and transparently, and there needs to be a balance between economy and the environment, to ensure that the environment is not on the losing end.
Leigh Edgar, Conservation Researcher, Canadian Wildlife Federation: I agree with that as well. The situation today is much different than it was in the 1800s when this was originally written. One thing that has certainly changed is the traffic and the number of projects. These little tiny projects taken together cannot be forgotten. Balance is absolutely needed, but now is not the time to throw away the environmental safeguards that we have and that all Canadians benefit from.
Senator Neufeld: Exactly. I appreciate that. Somehow, we have to come to that. You and your various organizations, and I appreciate what you do, and the ministries and governments, whoever the government happens to be, have to come to some reasonable decision about how we move some of these things forward.
A remark was made that provincial environmental assessments are a dog's breakfast. I take a bit of umbrage at that, Mr. Hazell. I do not really think B.C.'s is a dog's breakfast. It is pretty bloody good. I live in B.C., I have lived in B.C. pretty well all my life, and I think British Columbians can make some pretty good decisions around their environment and actually do a pretty good job. I am not going to speak for any of the other provinces or territories because I am sure they can speak for themselves.
In fact, that was made a little bit more evident to me when you were asked whether anybody consulted with you folks over this from a federal level and the answer was no from all of you. I know in British Columbia we consult, we meet. As the previous Minister of Energy, I started the process of meeting with your groups on a yearly basis. Not everything 100 per cent, but we actually met with you and talked to you about issues in British Columbia.
I would say it is not a dog's breakfast. I would say it is probably a better system because I think it is important to get that input. To be honest, that is why I did it.
Mr. Morrison: If I may, senator, I think the CPAWS term was, we said that the act is variable in its application.
Mr. Hazell: That was kind of what I meant too.
Senator Neufeld: You would withdraw dog's breakfast, would you?
Mr. Hazell: No, I think I was within the strict confines of the phrase "dog's breakfast." The provincial environmental system processes vary enormously across the country so you never know what you will get from province to province. They are all different. There are many concerns with the British Columbia process and certainly colleagues at the West Coast Environmental Law Association or Ecojustice have noted them. I can share a briefing note that they provided to me that focused on B.C.'s system. There are some concerns with it. There are some good things too as well.
Senator Neufeld: We can sit here and argue for days about that.
Mr. Hazell: We could.
Senator Neufeld: I can get you all kinds of letters that say it works well. That is not what I am trying to do. I am trying to say in your response to your questions what I think are legitimate things. I actually do think British Columbia is pretty good. I am not a centralist. I do not think you have to come from Ottawa to actually develop things in British Columbia, or maybe for any other province. Maybe other provinces think differently, but I think there are some things that British Columbians are smart enough to do. You and I can agree to disagree on that, but so be it.
You used the example that hydro projects in British Columbia under 50 megawatts are exempt from environmental assessment, and I know that. I know that for a fact. However, they go through an extensive screening. They go through almost the same process. You know that as well as I do. There is a consultation process with Aboriginals and, if there are communities involved, with communities. That is the process we go through.
The Chair: Senator, I have to be even-handed around this table. I do not mind preambles to the questions — in Senator Milne's language, statements. There is a limit. You are not here as a witness. Every dog has its breakfast.
Senator Neufeld: I would love to be a witness right now.
The Chair: Try to keep the questions crisp and do your duty to your region.
Senator Neufeld: Okay. We have heard the other example of creeks that actually dry up for a good part of the year that can actually be classed as navigable water under the present act. Do you think it is fair that a minister should be able to exempt those from actually going through that process?
Mr. Morrison: To exempt what, dry creeks?
Senator Neufeld: To exempt them from being under the Navigable Water Protection Act, because there are examples on both ends of the spectrum.
Mr. Morrison: That is true.
Senator Neufeld: I know of examples like that myself. Would you agree with that?
Mr. Morrison: There is room for discussion. What I have not heard from the departmental officials, because they have not come and sat down and had discussions, is what their specific ideas would be, their specific criteria for defining these classes of water, and what constitutes navigable water and what is not a navigable water. Probably most people around this table now would agree that some kind of discussion on that issue should take place.
Senator Neufeld: I think that is envisioned in the next five years, as I remember.
Mr. Morrison: I would suggest that it should take place now, rather than waiting five years to see what happens with the minister's sole discretion to define.
Senator Neufeld: Through that time frame, some of that discussion will take place.
Mr. Morrison: That could be.
Senator Neufeld: It is not a magic five years from now. That discussion will move forward, as I understand Mr. Osbaldeston.
Senator Lang: To just follow up on the previous questioner, I similarly come from an area that is quite far from Ottawa. We do actually believe that we can handle most of our affairs quite capably ourselves in many instances. With all due respect to the federal government and recognizing they do have some authority. I should also put on the record we do have a federal-provincial environmental process that has been put into place in the last number of years. To all intents and purposes, it is working quite well. Therefore you do not get this duplication that we have seen over the last number of years; probably over the last 20 years.
Where I come from is trying to find that balance between our environmental responsibilities and common sense, because I think everybody around this table has heard the various stories where it has gone so far the other way that you can almost not get anything done, or if you do it is very costly and expensive to the point that possibly you could not go ahead and make those changes, whatever they might be.
I want to put that on the record from my perspective. I do have one question. You are very critical of the act and probably with some legitimacy. At the same time, you have not mentioned anything about the act that might be better than what it was before, as far as I can make out. The one area that has been changed dramatically is the area of fines.
The only area in the past act that could be utilized is the question for a penalty with a fine of $5,000. If I recall correctly, we were given a circumstance where a guy asked what the penalty was, wrote the cheque for $5,000 and then carried on with the project. The way the old law stood was really not valid if one took it section by section.
My question is: are you satisfied with the new penalty section of the act which, to my understanding, has increased it to $50,000 per incident per day?
Mr. Morrison: I am not in the dam construction business, senator, but $50,000 a day would get my attention. I have no expertise in this area, but I think that is likely an improvement.
The Chair: I believe you are talking in terms of deterrence, right?
Senator Lang: That is correct, yes.
Are you satisfied with that as a move in the right direction as far as the deterrence?
Mr. Morrison: There has been much to criticize in this legislation but I have not heard anyone criticize that aspect of it.
Senator Lang: The other area that I would like to fall upon is the question of consultation. We talked about apparently a year ago there was a parliamentary committee and various organizations appeared before it and other organizations made submissions. Were you aware that those hearings were taking place? If you were, why did you not make a submission if you felt that it was important that you do so?
Mr. Morrison: We were aware that the hearings were going on. We expected or hoped to be called. As I said previously, we took it to be a first round of hearings and consultations. The June 2008 report of the committee specifically stated that there would be further consultations. I have been told that some organizations did apply to be witnesses but they were not heard.
There were organizations that made written submissions but they were not heard as witnesses. As I said previously, I think there is a big difference between sending in a piece of paper that may or may not be read and having the opportunity, such as we are having here today, to talk with you or to talk with departmental officials over a period of weeks and months. That is what we would be looking for.
I cannot specifically tell you whether the Canadian Parks and Wilderness Society asked to be heard at that point. I just know that we were not.
Ms. Reid: I was not involved in this issue until after that fact.
Ms. Edgar: I was on maternity leave.
Senator Lang: You were obviously busy.
Mr. Morrison: I was finishing my paddling trip across Canada at the time.
Senator Lang: In deep water, I trust?
Mr. Morrison: You would be surprised at how many shallow, narrow, twisting and obstructed waterways there are that join the major waterways. I was following the main line fur trade route not only from Montreal but also from the Gulf of St. Lawrence, all the way to Inuvik. I have paddled in Yukon, as well.
The Chair: You can drown in four inches of water.
Senator Milne: May I start with a statement?
The Chair: Well, a preamble. You are pretty good at it. You do not abuse it as much as some do.
Senator Milne: The problem is, of course, that this bill is now law. We are faced with the situation that you have all outlined here today. I want to thank you for some of these positive suggestions that you have made that we can look at and discuss putting into our report. I want to ask you something because I do not know if it is funny or if it is sad that we are talking about the Navigable Waters Protection Act and there is no definition of "navigable waters" contained in it. If you cannot define it, then why is it in the title? That is the first question. Second, perhaps I can ask all of you to try to define "navigable waters" for us. If you cannot do it off the top of your head tonight, then write it down and send it to us.
The Chair: I would rule that to be a fair question and an interesting one, if the witnesses feel they can deal with it. You do not have to go home and do homework if you do not want to, but it might be helpful to us, given, Mr. Morrison, your practical experience, to say nothing of your general expertise.
Mr. Morrison: I certainly would be happy to make an attempt to do that. I am one of those people that says something and think about what they should have said five minutes later. I would be happy to take it away and work on it and come back to you.
The Chair: What about Mr. Hazell?
Mr. Hazell: I would not attempt a definition. This is a vexing issue. It is not for lack of trying, I think, that the officials did not come up with one. I am not saying that this is an easy issue. We are unhappy with the approach that they have taken in defining classes of works and classes of waters.
We could definitely take a look at it and see if we could come up with something that works. It is a very practical issue. Mr. Morrison hit on one important thing: if we cannot get a good definition, we need a set of criteria to guide the discretion of the minister and of the Governor-in-Council, although the latter bit is harder.
If you had some solid criteria in the legislation, then there would be some benchmark at which a judge in the future could say: "How could you say that bridge was a minor work when all of these criteria in the legislation point in exactly the opposite direction? Tell me that, Mr. Attorney General." That would be another way of coming at it rather than just giving the Governor-in-Council the authority to decide what works are minor works and which are not.
The Chair: Senator Lang, did you have a supplementary on the same subject? Senator Milne has the floor, but if you have something arising from this, I am sure she will allow it.
Senator Lang: No; go ahead.
Senator Milne: I have a short follow-up, Mr. Hazell. If you cannot define "navigable," can you define "non- navigable?" Is that easier?
Mr. Hazell: I would not want to try that, either. In some cases it is easier to define the negative, though. That is a drafter's device that is often used.
Senator Milne: Ms. Reid?
Ms. Reid: Again, that is something that I do not think I am able to comment on right now. I mirror Mr. Hazell's comments very much in that it does need to be looked at more in depth.
The Chair: You have a supplementary, Senator Lang?
Senator Lang: Thank you, Mr. Chair. When we talk about classification of waters, either we are not in a position or you feel we are not in a position to classify waters. However, we classify waters, from the point of view of a canoeist, from class 1 to class 5 from the point of view of danger.
Mr. Morrison: That is correct.
Senator Lang: Why would not we be able to classify waterways from the point of view of what one could do with a small bridge versus a major construction?
Mr. Morrison: It is a bit of a leap. It is going from A to C to talk about bridges and construction. If you wanted to talk about a definition of navigability, which, I understand, is the first step in the process, I am sure we are all aware that conditions change radically over the course of seasons and with respect to rainfall, and so on. What could be easily navigable today, in September or in October would not be navigable. I do appreciate the difficulties that the civil servants have in coming to terms with issues like that, but come to terms with it they should in some way.
This is a difficult question, but I do not think I can comment any further on your question.
Mr. Hazell: I had a quick comment. I think there is a difference between classifying rivers in terms of difficulty in terms of paddling, like class 1, class 2, class 3, class 4, and so on, and classifying in terms of whether or not they are minor or major. The latter set have legal consequences attached to them. A permit is or is not required; an environmental assessment is or is not required. If we are talking about a paddler going down a river, is it a class 3 or a class 4 river? I thought the point Mr. Morrison was going to make is that a river can be a class 4 in the spring, a class 3 in the midsummer and a class 2 in the fall. Within a season, it is highly variable. As a paddler, you have to understand that maybe they are calling it class 3, but if it is the middle of May, it might be a bit tougher.
Mr. Morrison: I would certainly agree with that. The onus is always on the paddler to assess the situation when they arrive at that rapid because it is variable. I would argue that the onus is on the government to assess rivers in different conditions because navigability changes with those conditions.
Senator Lang: I want to follow up on that. At least in our part of the world — and I believe it is probably throughout Canada —
The Chair: Your part of the world being?
Senator Lang: The Yukon.
I refer to the area of the federal government's responsibility and water resources. We now have a very good bank of information that allows us to know, over a period of time, what kind of water goes down a waterway on average. In my judgment — and, I would like to hear from the witnesses — that would help us to classify certain waterways, if that is the route we were going to go. I do not see any other route that we can go. I have not heard an alternative.
Mr. Morrison: That is an excellent point. You could look at the volume of water. Normally these days that is expressed in cubic metres per second. I will give you an example in your home territory, the Snake River, which I have paddled. It is a considerable volume river. It attracts tourists from all over the world, not just cheap Canadian tourists from Ottawa but people from Germany. I am quite serious. I was astounded that a full plane, a direct flight from Frankfurt, Germany, arrives in Whitehorse every week — at least it did when I went up there — with tourists that do pay a lot of money. Eco tourism is very important in the far North. These tourists are looking for pristine environments. That is what attracts them. The Snake River is such a pristine, wilderness river. It has fairly large volume and it is fairly tricky to paddle, but that river does braid. It splits into many, many small, bouldery channels. In those small, bouldery channels, sometimes you are down to two, three, four, five, six inches of water. If you have a fully loaded boat, you might have to step out of that canoe for 15 seconds or 30 seconds to lift it over a little gravel bar. That happens a lot. Therefore, would you want to see the Snake River — or that part of the Snake River — classified as non-navigable and to put a bridge through there as a result? I do not think so.
Again, that just illustrates the difficulty of coming to a definition of "navigable" and "non-navigable." I do not think this is an "angels dancing on the head of a pin" issue. It is not rocket science; it can be addressed, but I think it will take environmentalists, paddling groups, user groups, Aboriginal people and the Department of Transport sitting down together to come up with a definition.
Thank you for the question. The Snake River is a perfect example of the dilemma.
Senator Lang: I, too, have been on the Snake River. I have never paddled it but I have been to the bottom end of it a number of times.
I am simply pointing out to the committee and to the witnesses that a balance must be found because, the way it is now, there are obviously significant problems. My colleague pointed out the legislation dates back to the 1880s, with one amendment. That does not meet what we are facing today.
Senator McCoy: For the record —
The Chair: Is this a point of order?
Senator McCoy: It is. The legislation has not been amended since whenever you say with one amendment. If one reads the act and looks at the annotations, it was last amended in 2004. Prior to that, it was amended in 1998. Prior to that, it was reprinted I do not know how many times. I just want to stop these few repetitions of what is inaccurate information from a legal standpoint. That is my point of order, Mr. Chair.
The Chair: Thank you very much Senator McCoy. We will have to determine that because we have been told it was legislation from 1882 and only once amended. Whatever it is, is. Senator Spivak, do you have a point of order, as well?
Senator Spivak: It is not a point of order but a supplementary. It seems to me that the issue of navigable and non- navigable is not important here because it is what the minister says it is.
Do you get any idea that there will be criteria? It is for the purpose of not impeding economic development; that is the whole rationale, as stated. Do you have any thoughts as to whether you think that there will be other criteria?
Mr. Morrison: I have an impression from Mr. Osbaldeston's statements that he has been attempting to come up with a definition of navigability. In the department at least, there is a desire to come up with a definition of navigability.
I am assuming that they are in close contact with the minister's office and are in the know regarding what the minister's intentions are on this. Therefore, I am assuming and hoping they will come up with some criteria.
However, the key question, as I think you are pointing out, is whether having a definition of navigability will materially affect whether environmental assessments are done here.
Senator Spivak: Exactly. It seems to me that, even if something is navigable, if they feel that because of stimulus or economic ability something has to go there, it will go there, because the minister will decide that.
Senator Brown: Environmentally, how far do we go?
I want to explain the reasons why I am asking that question. First, I believe in environmentalists. I do not think we would have national parks in Canada or the United States without someone who could have been labelled an environmentalist. I do not think we did right by the Canadian fishery by not having strong enough environmentalists to keep us from literally destroying one of the bounties of the Canadian shores in many provinces, including British Columbia and all of Atlantic Canada.
We have had some really bad results due to environmentalism, also. We now have very close to a plague of Canada geese taking over parks and golf courses. They are becoming a menace to air flights in a lot of cities. That is an example of going too far.
In the United States, for a period of almost a generation, they prevented any new power plants being built, things like Hoover Dam or Grand Coulee Dam, and some of the excuses were laughable. They did not want to dam up some of the valleys because they were the habitat of spotted owls. It was not until a few years ago they discovered that spotted owls are very "friendly" with other owls and, when they breed with different owl species, they lose their spots.
Then we have had problems with seal hunting and attempts to close those and the impacts they had on the Native peoples in the North. Then, in Alberta, we had a real strong desire to preserve the wolves and we got so many now that we decided we would give some to Montana because they did not have any. That created quite a lot of flak from Montana because ranchers were losing a lot of calves.
We have examples on both sides of the issue. Where do we go with this? I know a number of years ago, the Alberta government declared all moving water navigable — not only navigable but they declared it the property of the Alberta government.
I know that because I was a consultant on land zoning and subdivision and I had a client who had put in a bunch of culverts and some things. Suddenly, they told him the culverts they put in 40 years ago were not good any more, even though this was just a drainage ditch that only drained when the irrigation season was over. It drained a small dam. Also, they did so when there was a high degree of rainfall.
The Chair: You are getting to your question, are you not?
Senator Brown: I have already asked the question. How far do we go, environmentally? I think it is very dangerous to go too far. We need to trust the governments in the provinces and the people in the provinces.
I fear and worry about a national agency. I worry about national agencies because they become huge, they cost huge amounts of money and I am not so sure that they do the job, as Senators Neufeld and Lang have already said.
Mr. Hazell: I could not disagree more. There is a very broad — I would not say a universal — opinion from all credible scientists dealing with climate issues and greenhouse gas emissions and all credible scientists dealing with biodiversity issues that, as a human species, we are destroying the life-giving properties of the planet much faster than she can replace them. We are eating into the natural capital of the planet at an incredible rate.
Therefore, when you say "environmentalism goes too far," it is not the environmentalists who are saying these things. It is the scientists working on these issues who are saying, "We have a huge problem as a species. We cannot go on doing what we are doing — burning more greenhouse gas emissions." The concentration of CO2 in the atmosphere was increasing by one part per million a few years ago; now it is triple that. It is escalating.
We could not be in a more serious situation. In terms of your example, there are more Canada geese in the Toronto area because of human destruction of habitat. You have all these open lands and the geese have decided it is copacetic to hang around Toronto rather than go south in the winter. The increase in the Canada geese population is directly a result of too much human interference with wildlife habitat. If the original forest were there, those geese would not be there. Very much of the blame falls at our door for many the problems you have outlined.
The wolf introduction into the Yellowstone area has been a huge success and has had a number of very important environmental benefits in terms of keeping the ungulate populations down. It also has allowed the re-establishment of aspen, for different ecological reasons that we can talk about. There are still some issues with the ranchers, as I understand, but the wolf introduction program has been a huge success in Montana. Thank goodness for those Alberta and Yukon wolves, that there was a residual population there that could be re-introduced into the United States.
The Chair: We are changing the name of Toronto from Hogtown to Goosetown; is that it?
Senator Brown: The answer to geese is to remove Toronto and Regina and Stanley Park in Vancouver. If that is what environmentalism means, then that is what I say has gone too far, because there always has to be a balance in here. We lost tremendous amounts of electrical energy that could have been generated in the United States. It cost all of North America huge amounts of money because no power plants were built. Now we will probably go to nuclear energy, and I am not sure environmentalists are happy with that either, but it may be the only thing we are left with because we cannot build hydroelectric dams any more. Environmentalism does do damage when you carry it too far. It is like anything else. You carry something to an extreme and cause unintended consequences.
Mr. Hazell: The overall objective is not to do away with Toronto or Vancouver. The overall objective is to achieve sustainability and to try to reach a state at which the human population can survive and prosper in some sort of harmony with their natural surroundings. We are far past that now.
As I say, I could not disagree more with the idea that we are doing too much for the environment. We are doing far, far too little. Read the most recent report of the intergovernmental panel on climate change. Read any of the stuff that is coming out of the biodiversity convention. We are in grave danger. Our species will survive, but will hundreds of millions of people die? It is very likely, if we do not get a handle on the greenhouse gas emissions. Allowing bridges that are designed to carry more cars that will produce more greenhouse gas emissions will cause further climate change and further shrink the polar icecaps and cause more and more crazy weather would be crazy.
Senator Brown: You and I agree on one thing absolutely, and that is sustainability.
The Chair: We are just about at our time. I would like Senator Peterson to have his time, and then the deputy chair will have the last word.
Senator Peterson: The government official here last week said that they are motivated now to find a definition for navigable waters because of the plethora of applications that are piling up. On straightforward cases, he claims they are in the process of finalizing a template formula that would draw it down from six months to maybe weeks. Do you think that is doable?
Mr. Morrison: Frankly, senator, I could not possibly answer that question without having discussions with the officials in the Department of Transport, because we have no indication as to what the specifics of their proposals are.
Senator Peterson: Do you think it would be a reasonable thing to try to achieve?
Mr. Morrison: In my old profession, when I was in the public service as a management consultant, I was always trying to find a better way of doing things. That is the way I live my life, I hope. Yes, in principle, that is an excellent thing to be doing.
Senator Peterson: As well, the Department of Transport is not the final authority. They can say, "You can go ahead and do this," but another jurisdiction can step up and say, "No, just a minute, we are not so sure." Do you accept that? Would this be the checks and balances that could help over the long run?
Mr. Hazell: Not necessarily, because for 107 of the 175 bridges currently being assessed, the only environmental assessment is through this NWPA trigger. Without that trigger which is not there any more, and that means that there is no provincial environmental assessment either, you fall back on zoning decisions by local municipalities, possibly. Frankly, there is rarely any requirement to assess the environmental impacts associated with a municipal decision of that sort, so you have nothing much of the time. Sometimes a provincial process will kick in and take care of it, but as I said, it really varies a lot across the country.
Senator Peterson: Those 107 are all related to the stimulus package?
Mr. Hazell: That is right.
Senator Mitchell: Thank you to each of you. This has been very informative. I will make a couple of quick comments and then ask one or two questions.
As you were talking, Mr. Hazell, I was quite compelled by what you were saying, because I happen to agree profoundly with you. There is this relationship between the progressive destruction of a species' habitat and ultimately them being put on the endangered species list, and it gets worse and worse. If we are doing what we are to our habitat, at what point do we get on the endangered species list.
Also, on the 1882 issue, I know it has been changed, but even if it has not been changed since 1882 and it needs to change, perhaps we should be considering making it more rigorous and more vigilant, not less, because we were not building many bridges or power plants or major projects back in 1882. This goes against that particular logic.
If the NWPA is required to trigger many environmental assessment projects, the flip side of that would be that it might trigger an environmental assessment project, but the environmental minister's new powers to exempt a project under $10 million would then de-trigger that trigger? Is that true?
Mr. Hazell: I am glad you mentioned the $10-million limit, senator, because that is another way in which projects get exempted. When I was the director of regulatory affairs with the agency, we fought against that particular provision because the amount of money that a project is worth has very little relationship to the amount of environmental harm that might be done. You could have a little tiny project built in a very sensitive wetland where it will cause huge ecological harm, but you could have a $1-billion project that has no environmental impact. The $10- million limit is not good. It is administratively convenient, but it does not really, in my opinion, meet the objectives of the act.
Senator Mitchell: Thank you. Finally, just to clarify this, under the Building Canada program, where you have Public Works, government works, say federal government works, is there a special exemption for those, or do the same criteria apply?
Mr. Hazell: The regulations that I was speaking of, the so-called changes to the exclusion list regulations and the adaptation regulations, at the present time are focused on Build Canada projects and they do not apply to other non Build Canada projects. My worry is that the government will expand the scope of those, but right now those two sets of regulations really are limited to the Build Canada stuff.
Senator Mitchell: Thank you very much.
The Chair: Thank you, senators. It is now 20 after 7. We have used up our allotted time. We will not hold a meeting this Thursday at our usual time for reasons of which we are all aware. We will reconvene next Tuesday when the Senate rises or five o'clock or soon thereafter. The witness will be the parliamentary secretary to the Minister of Transport, and we will probably have the same officials from the department back again. It looks like we may have further questions for those individuals from Transport Canada, so be forewarned that they will be here. I am quite sure they will be here. I am not promising but I cannot imagine that the Parliamentary Secretary would come without the officials.
Senator Banks: Can I ask, with your indulgence, one small question of the witnesses, which I think will help us come to a conclusion at the end of the road you have described?
The Chair: Is everyone comfortable with that? We always like to hear from Senator Banks.
Senator Banks: Not always, chair.
The Chair: You are always very constructive, except when we are talking about migratory birds.
Senator Banks: Thank you, chair.
We hear everyone use the word "balance," but what is meant by balance in one person's mind is not necessarily what is meant by balance in another person's mind. What I think I understand the government's position to be is that a balance is sometimes going to be struck as between the developmental or economic use that needs to be built, made, taken advantage of in this particular stream, on the one hand, and the environmental impact, including the impediments to navigation on the other. Sometimes the developmental imperative is going to outweigh, in terms of balance, the ecological one.
Is it your view that balance means defining navigable waters and that if waters are moveable and navigable they are therefore sacrosanct and that the banana principle takes over — Build Absolutely Nothing Anywhere, Near Anything — or do you agree that some navigable waters can sometimes — notwithstanding that they are navigable — be compromised, in your view, in the interests of development of some kind? Do you accept that that kind of balance exists?
Mr. Morrison: I will go out on a limb here and say yes. Certainly look at the Ottawa River. Look at the Winnipeg River, the hydro dams on it. If we did not have those hydro dams, look at the carbon emissions that would be going into the air. Sometimes, though, I think that the question of putting it that way, of balancing between the economy and the environment, is a false argument. There is a right way and a wrong way of doing things.
For example, I spoke with the former chief of the Pic River First Nation on Lake Superior. His band was unique in the ability to develop a partnership with a private hydro developer in which the First Nations band retained 51 per cent ownership of this hydro project. It was a run of the river project; it did not involve a headwaters pond flooding out, so it was minimal environmental impact. Yet this First Nations band now has an income stream in perpetuity.
Senator Banks: Can you canoe down that river now?
Mr. Morrison: As a paddler — and maybe my fellow paddlers would not be happy to hear me say this — that is the kind of sacrifice or compromise that I think can reasonably be made. However, I think in this particular case, that project was done in the right way. I do not have studies and papers on it; I had a conversation with the chief. That is my impression. That is just one example of how things can be done correctly. Of course, we have seen many things that have not been done correctly.
Mr. Hazell: The issue is not whether development should happen; it must. What we are trying to do with the permitting process we used to have under the Navigable Waters Protection Act and the environmental assessments, is to ensure that the decision makers understand they have some idea about what they are doing when they build a dam across a river and they do not make decisions in complete ignorance. That is what we are throwing away. We are throwing away this information-gathering tool. We are not saying there should not be development.
On the question of balance between environment and economy, that is an idea that I thought we got rid of with the Brundtland commission in 1986 because it is a false dichotomy. What the Brundtland commission tried to do and successive governments have also agreed with, up until Minister Prentice, who does not use the word "sustainability" any more, was introduce the idea of sustainable development. That is to say we want development but we want it to be ecologically sustainable, socially sustainable and economically sustainable as well.
For some reason, the current government has thrown out the idea of sustainability and that is a very grievous concern of the Sierra Club of Canada.
The Chair: I would like to thank you, witnesses, very much for your contributions to this matter. Colleagues, thank you all for your interesting input. I will call the meeting adjourned until next Tuesday at about five o'clock.
(The committee adjourned.)