Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 5 - Evidence - May 7, 2009
OTTAWA, Thursday, May 7, 2009
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:04 a.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.
The Chair: Good morning to all of you here in the room, as well as those watching our proceedings on the CPAC network and on the World Wide Web. I call to order this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Senator Angus, and I am from the Province of Quebec.
Unfortunately, the deputy chair, Senator Mitchell, could not be with us today, but he sends his best regards. To my right, we have Senators Neufeld, Banks, Lang, and St. Germain; and over to my left are Senators Peterson, Milne, Adams and Sibbeston.
We are continuing our study today on the provisions of Bill C-10, which I think everyone knows has already been passed by both Houses of Parliament. However, section 7, respecting the Navigable Waters Protection Act and amendments thereto, have been referred to this committee for study and review. We are to report back to Parliament not later than June 11.
We have had a number of witnesses to date. This is our fourth hearing on the subject. My colleagues and I think it is our sense that we are becoming conversant with the matters at issue, but we are very interested to hear the witnesses' evidence.
Therefore, I particularly want to welcome our five witnesses this is morning: We have Mr. Phil Green, Director, Canadian Rivers Network; Mr. Richard Alexander, President, Paddle Canada; Mr. Mark Mattson, President, and Ms. Krystyn Tully, Vice-President, Lake Ontario Waterkeeper; and Mr. Jim Wood, Vice-President, Corporate Development, Ontario Recreational Canoeing and Kayaking Association.
I guess it is appropriate that on such a beautiful spring day that we would be in the "outdoors" mode. It will probably put us all in a good mood as the weekend approaches. We are delighted you are here. I understand you will speak in the order listed on the agenda. Therefore, Mr. Green, Director of Canadian Rivers Network is first.
Phil Green, Director, Canadian Rivers Network: Thank you very much. I thank you for the opportunity to speak to you today.
I am speaking today on behalf of the Canadian Rivers Network, which I became involved in last year when I published a piece in the Financial Post entitled "Giving us the oar" about the upcoming changes to the Navigable Waters Protection Act.
I would like to draw your attention to six principles that the Canadian Rivers Network drew together. I do not know if you have my submission in front of you, but those are on page 5.
These principles are something that came through a discussion with a wide number of people on the network. The first principle is that the public right of navigation is an ancient right and a basic Canadian freedom. The second one is that the government is the guardian of that right. The third one is that the right of navigation is also a pillar of environmental protection. The fourth principle is that our waterways are public places.
This is on page 5. Do they not have the English version, either? I guess you do not have pages 1 through 5.
The Chair: It was not translated in time, and we are able to table it.
Mr Green: I will give you these verbally.
The Chair: That will be great.
Mr Green: The fifth principle is that the right of navigation should not be qualified by the government. Finally, the sixth one is that the public was not sufficiently consulted on these changes.
The Chair: What were the first two?
Mr Green: The first two, the public right of navigation is an ancient right and freedom. The second one is that the government is the guardian of that right. The third one is that the public right of navigation is one of the pillars of environmental protection.
The Chair: Are these principles that you are enunciating those of your organization?
Mr Green: That is right. These are principles we would like you to consider.
The Chair: They are the basis of your argument.
Mr Green: Yes. I would like to speak today primarily toward the first principle from a personal perspective as a paddler, and hopefully that will be representative of many other paddlers across the country. I am speaking as someone who has paddled across most provinces of the country, including in the Arctic. I want to try to shed some light for you on why these amendments have provoked the reaction from the public that they have.
For many Canadians, one of the greatest freedoms we enjoy is the freedom to look at a map, pick out a thin blue line on it and then pull a kayak or canoe from the garage, put it on the roof of the car and head out and enjoy our vast and wonderful Canadian wilderness. It is a birthright passed on to us by the Fathers of Confederation, by generations of Canadians before, by First Nations and by centuries of common-law decisions. We can cross the country by canoe, or mom and dad can throw a canoe on the vehicle roof, with the kids in the back seat, a tent in the trunk and take off for a week's vacation, which is how my kids grew up.
The heart of the matter, honourable senators, is that many Canadians believe the government has diminished one of their most basic and most cherished freedoms.
The government argued that these changes were necessary to eliminate red tape. Anyone can sympathize with the frustration caused by red tape, particularly red tape that impinges upon personal freedoms. However, we should also remember that government actions can also protect freedoms, which is why we have courts, police and so on. The government called their duty to protect this free freedom "red tape," and I think that provoked the ire of many Canadians.
Until these amendments, a river was navigable if you could, in fact, paddle a canoe, kayak or any other craft on it. That is a pretty simple definition that the courts have used for generations; yet before this committee, Mr. Osbaldeston, from Transport Canada, said that there is no navigable definition you can find anywhere to apply so we are trying to create it. That is the crux of the issue.
Until now, throughout our history, before Europeans arrived in Canada and inherited from the First Peoples, we were free to paddle on a river if the river was navigable. Now the government is trying to create a definition of what rivers we can paddle on.
The government has argued that the changes will not affect our ability to paddle on our rivers. Mr. Osbaldeston has made this point many times. We are not comforted by that claim. He implied, before this committee, that a creek with a foot of water in it was not navigable. I would like to illustrate why that is not so.
Two years ago, I was on a canoe trip in the Northwest Territories. We flew in a float plane to a small lake on the Yukon border. From there, we portaged about a kilometre to a tiny creek known unofficially as "Push-Me-Pull-Me Creek." We spent many hours pushing and pulling our canoes down that creek, which sometimes was less than three feet wide and very often was less than a foot deep, but we got down it. We continued for two weeks and two weeks later, we were paddling on the Mackenzie River near the Arctic Circle. My point is that small creeks flow into mighty rivers, and when you cut off the small creek, you cut off the mighty river.
The Credit River is near my hometown in the Region of Peel, Ontario. It is only navigable part of the year. A good part of the year, it is dried up and full of rocks — not entirely dry, but quite dry. In court cases over the years, the courts have declared that it is a navigable waterway despite that.
There are about 1 million people in the watershed. In 1825, a farmer built a dam across the Credit River. At that time, it would have been a very remote area. The current owners own the land on either side of the dam and, quite understandably, they do not want people to trespass on their land, so there is no portaging around the dam.
When the Navigable Waters Protection Act was passed, many dams were grandfathered, including this one. The result is that the river is cut in two. You cannot navigate it. You can paddle in the upper reaches and in the lower reaches, but you cannot connect the whole thing. I would ask whether in 1825, they knew that 184 years later that dam would prevent navigation for so many people.
Mr. Osbaldeston spoke before this committee about not needing to apply to him for permission to build a structure, if there were 200-metre segments of river that were not navigable, and that had obstructions or if the slope is so steep, or if it is this narrow at three measurable points or if it is that shallow at three measurable points.
However, it is for canoeists and kayakers and other people that use the rivers to decide whether a river is navigable by navigating on it. That is our common-law right and our freedom. By all means, build a bridge or culvert over it, but do not wreck navigation if you do. If 200-metre segments of river become non-navigable because they are so steep or this narrow or that shallow, and then you build bridges or structures over those segments that render them non- navigable, the whole river is non-navigable.
For comparison, I would ask you to try driving down a highway where there were no bridges over minor waterways. The highway would become useless. A river is a public highway, and if you segment it, the river as a whole becomes non-navigable.
In fact, in some court cases — the Coleman decision in particular — the court ruled that natural obstructions in themselves do not render a river non-navigable.
We asked whether the government knows who will be living near these so-called non-navigable or minor waterways in 184 years, or who will want to navigate on them, or what types of rivers we will be able to navigate on in 184 years. I taught my sons how to paddle, and I already find that they can paddle down rivers I never even dreamed could be paddled on. They paddle their canoes and kayaks over waterfalls, which I find amazing.
The common-law definition of "navigable" was so simple. If you can navigate on it, it is navigable. If it looks like a duck and it quacks like a duck, it is a duck. Now the government is trying to define "duck." I think the government will find itself wrapped in red tape with their definition of a duck.
Honourable senators, I think the government may be right, that these changes will not affect our navigation rights, at least in the short term — not this summer, perhaps not next summer. However, over the long term, I think the government is wrong. When the weather warms up this spring and more people are out — anglers, hunters, paddlers and other boaters — they will still be able to travel our rivers; but as the country's infrastructure grows over the years, we will slowly find our way blocked by dams, weirs, culverts, booms and other structures on the minister's list of non- navigable rivers. Then, that cherished freedom to paddle wherever we want will just be water under the bridge.
The Chair: Thank you for a colourful and interesting presentation. The next speaker will be Mr. Alexander, President of Paddle Canada. He has provided us with a submission, but we do not have it. We just got it this morning, and it is not translated yet. However, you can be sure that all of us will eventually have it in both languages. In the meantime, keep that in mind so you do not assume that we have it in front of us.
Richard Alexander, President, Paddle Canada: Thank you for your interest in the Navigable Waters Protection Act and for the invitation to appear here this morning. I flew in from St. John's, Newfoundland, yesterday, so I appreciate you making the weather exactly like I left yesterday. Thank you for making me feel at home.
I want to take a moment to try to help you understand why this issue is so important to the constituency we represent. Paddling a canoe for millions of Canadians is not like playing volleyball. It is viewed by my constituency as something that is distinctly Canadian, something that is the right of Canadians and a distinct Canadian value that we export to the world.
I have often said that the canoe, canoeing and wilderness canoeing is Canada's gift to the world. It would be hard to imagine Canada without canoeing as part of Scout and Guide programs, summer camps and those types of things. It would be hard for me to imagine my children growing up without ever learning how to do a J-stroke or exploring a river, exploring every turn in a shoreline. It is what makes us Canadian.
I got off the plane yesterday and one of the first things I saw was a birchbark canoe in the airport. It gives you some idea of how important this activity and this issue is for my constituency. It is no surprise that when these changes to the Navigable Waters Protection Act were passed that my constituency expressed a big concern with that, particularly the process and the lack of opportunity we had for consultation.
The organization that I represent is a national recreational paddling association. We are non-profit and membership based. I like to think we represent the hardcore canoeists and kayakers in the country, people who live and breathe this; it is a part of their lifestyle and a part of who they are.
We have 1,200 members across every province and territory in Canada. Our mandate is for paddling education, safety, heritage and environmental awareness in the areas of non-competitive canoeing and kayaking. In addition to our direct membership, we also have eight provincial and territorial recreational paddling associations that pay membership to Paddle Canada on an annual basis and fall under our national umbrella. These regional paddling affiliates, in turn, represent numerous clubs that, together, speak for nearly 12,000 active paddlers in this country.
In addition, we run national certification programs for more than 3500 individuals on an annual basis. We communicate with an additional 1,700 paddlers through our publications.
In preparation to be here and present to you this morning, we asked those 18,000 individuals for some feedback on these changes to the act. I can safely say that the feedback we received was overwhelming. We have received more calls, emails, letters and feedback on this issue than any other issue that this association has faced in its 38-year history. It is obvious that the changes that have been made have struck a nerve with our community, and I think you are well aware of that.
The Chair: We are all very interested. We have heard this line of criticism repeatedly, not just in these submissions and in emails.
When you say that you consulted all 18,000 members about these changes, in what forum was that done? Did they all read the bill? To the layperson, it sounds as though these amendments would simply take away our birthright and paddling, which I do not think you are saying to us. How did you consult them to get these emails and everything flowing?
Mr. Alexander: We consult in a number of ways. It is quite easy for us to consult with our constituency and get feedback from them because 2009 is the electronic age. We have taken it upon ourselves to try to educate our membership on the changes that have happened, and we have used some of the other associations that are appearing as witnesses here today and some of the things they have done to try to educate all 18,000 individuals.
I would not say that all of them have sat down and gone through the changes in the act, and I would not be so presumptuous as to imagine that. It is striking a chord with them, and as such they are very deeply interested in what is happening right now.
The Chair: I appreciate that clarification, and I also apologize if I interrupted your train of thought, but this is a bit unique in that the bill has passed, so we are not here to recommend any amendments at this stage. We need to make some recommendations to our colleagues in the Senate and in the House of Commons. We are looking to you for suggestions for those recommendations that we could put in our report.
The bill has passed, and we see paddlers and many cars out there with canoes on top. Clearly there has not been this terrible thing yet, and we do not know what the government will be in 184 years any more than you do. I am sure that the law will be changed if terrible things are happening, but please carry on.
Mr. Alexander: Thank you very much. I want to touch on the whole process of consultation around this. From my own personal perspective, how consultation is carried out can either alleviate or generate fears. From my constituency, it is safe to say that it generated fear.
We received an email and a telephone call from Mr. Ricard, the committee clerk for the House of Commons Standing Committee on Transport, Infrastructure and Communities, inviting us to a consultation to be held in two days. You can imagine that, while we were greatly appreciative of the opportunity to present at the hearings, the timelines were unrealistic for us to do so. We had a two-day opportunity to first educate our constituency, ask for feedback from them and develop a responsible position to present, which is unrealistic for a volunteer, non-profit organization.
As a result of the short notice, the most we were able to do was send a letter expressing our concern with the consultation process. We asked our members to do the same; I think they did that in full force.
I said a few moments ago that the unencumbered navigation on our waterways and paddling a canoe through the Canadian wilderness makes us distinctly Canadian. It is an inherent, historic right of Canadians and a Canadian value. To me that value is, in and of itself, reason to strengthen the Navigable Waters Protection Act or do something to alleviate the fears of our constituency.
Like most recreational activities, paddling also has an economic impact on the country. It contributes to our national economy, just as any other recreational activity does. It represents a very large market for travel in this country. I will give you an idea of how big the market is for this. A report was prepared by the Canadian Tourism Commission in June 2003, entitled A Snapshot of the Canoeing & Kayaking Travel Market in North America. The research looked at the number of tourists who say that they have included canoeing and kayaking as an activity while on an overnight trip in the past couple of years; they have taken an overnight trip that has involved canoeing or kayaking in some form.
The report indicates that 4.4 million Americans and 2.6 million Canadians fit this description. That is a fairly large number, in my books. This represents 17 per cent of the total number of adults, 18 years of age or older, who have taken overnight leisure trips in Canada for the two years previous to the study.
Statistics Canada's Survey on the Importance of Nature to Canadians, special tabulations states that a significant portion of the $12 billion that nature-based tourism and recreation contributes to the Canadian GDP results from activities that depend on clean and abundant water.
Senators, I submit to you here today that Canada's product for canoeing and kayaking is clean, unobstructed navigable waters. This act helps the livelihood of thousands of tourism operators in communities dependent on canoeing and kayaking as a revenue base.
Our constituency recognizes that this legislation needs to change with the times and that economic progress is important. We are not suggesting that there should have been no changes to the act, and we understand there have been some challenges around red tape with the Navigable Waters Protection Act. However, we do believe that in an attempt to make the act less bureaucratic, together with the lack of adequate consultation with our constituency, these amendments have served to weaken the very purpose of the act. That is, protection of a Canadian's right to navigate and freely access clean, unobstructed waterways.
Specifically, our membership has expressed concern with the following: The amendments place broad authority in the minister or cabinet to exclude certain classes of works and certain classes of navigable waterways from the approval process, without subjecting such exclusion decisions to any objective criteria or public notification and consultation.
It is the lack of any criteria on this exemption power that has our members most concerned. We submit that, at a minimum, criteria should exist for classes of navigable waterways.
I like the definition Mr. Green just proposed, namely, if you can get a canoe down it, it is a navigable waterway. I will submit again that what might seem like a small drainage ditch to a bureaucrat may be a tributary that provides access to an entire watershed of historic and economic significance to our constituency.
In addition, the ability for such development to proceed without public notice is deeply worrying. At a minimum, those most impacted by development on a waterway should have the opportunity to say how that development will impact their lives. I am not suggesting that a public notification in a newspaper will inform everyone who needs to know about it. However, it is a minimum step, in my opinion.
Senators, thank you very much for the opportunity. I would be happy to answer any questions.
The Chair: Thank you, sir. That was excellent. Our clerk is pleased you are all here, which must mean you received fair and adequate notice to enable you to come. We are delighted to see you.
I cannot resist wondering if the two gentlemen in the centre are sitting there because their names are Green and Wood. In any event, we will be hearing from you. Our next witness is Mr. Mattson from Lake Ontario Waterkeeper, which is a very interesting name.
Mark Mattson, President, Lake Ontario Waterkeeper: Good morning. My name is Mark Mattson; I am the president and water keeper for Lake Ontario Waterkeeper, LOW. I am joined by my vice-president, Krystyn Tully.
LOW is an environmental justice organization. I am an environmental lawyer and a board member for all Canadian water-keeper organizations. Robert Kennedy Jr. is our president, and I have been on that board for a number of years. We are here to speak for all water keepers — river keepers, bay keepers — across Canada.
We came to this issue very early on. We were working on port and shipping issues and some of the changes to that legislation over a year ago when we had an invitation to the Transport Committee last May. Ms. Tully attended and made submissions on the actual changes to the Navigable Waters Protection Act. We were one of the only non-profit groups there; others present were stakeholders, those with vested interests, et cetera. We did not see the paddling or hunting and fishing community because they really did not know what was happening. In some ways, it was rather startling to us as well that what was being discussed was taking away the right to navigate our waters.
To be clear, the right can always be taken away by government or politicians, under certain circumstances; that was the case with the old Navigable Waters Protection Act. However, the new act makes it so that it is no longer a right or obligation on the part of the politician — the minister — to take responsibility for those exemptions. It can be done at lower levels of government. Other people who are nameless to us — whom we do not even know — can make decisions that our river is not that important; our use of it is not that important.
Therefore, I do not think the law will be changed in the future if problems exist because the people who will be affected are too small, and they will not have the power, the influence or the money to be heard. Those people will be the ones to get the short end of the environmental stick if we take away the right to navigate. That is why it is a right.
This act creates it as a privilege, and it will be a privilege, and that will be a terrible thing. I think it is very un- Canadian to turn the right to navigate from a right into a privilege.
Therefore, we would agree with the Sierra Club of Canada on that. They talked about section 5(1) of the act, and, since the beginning, we have talked about why that is a concern.
I want to ask Ms. Tully to speak. She has been working on this for the last year and has been a leader on many of these issues. She has come up with some recommendations that she would like to put before you today. She would like this commission and your inquiry to take real notice of these recommendations and perhaps get to some answers that we could not find.
Krystyn Tully, Vice-President, Lake Ontario Waterkeeper: We are here today because there is a problem. I know many other presenters have touched on those issues, so I will not go into great detail. To summarize, the main concerns are that the new Navigable Waters Protection Act undermines accountability because it eliminates or reduces transparency in the decision-making process. It politicizes decisions that should be based on science. Therefore, as Mr. Mattson said, depending who you are, what your connections are, how much money you have and what access to decision makers you have, your waterway might be more protected than another waterway in a community that lacks such resources.
It institutionalizes two-tier environmental protection, where we are essentially saying that these are rivers in Canada that are worth protect, and these are rivers not worth protecting. As Lake Ontario Waterkeeper, that is a big issue for us because many of our rivers on Lake Ontario are in big trouble. We do not have big, glorious rivers we are fighting to protect; we have rivers that are now called "creeks" or "working rivers" that we are trying to win back. If a river such as the Don River is deemed non-navigable because you can only float a canoe down it one day a year, that river is essentially lost to the people of Toronto forever. That is a huge concern for us.
We are trying to be as helpful as possible. We understand that the committee and the Senate have to prepare a report by mid-June. Therefore, we have come up with some of the issues that we think if you ask these questions and look at these issues, you will be led down a very important path; you will look at the issues that are of great concern to the general public and probably come up with the most successful and helpful recommendations and report that will set out what needs to be done next.
The first question is where the pressure to change the Navigable Waters Protection Act originated and who shepherded them through the unusual legislative process.
This is important for two reasons: We need to understand if this is an administrative issue that we are trying to resolve and if changing the legislation was really the best way to resolve that administrative issue, or if there is actually a policy agenda. If there is a policy agenda, that is fine, but the solutions or tools will be different than if it is an administrative problem. It has not been clear if this is an issue identified by the bureaucracy or an issue that came from political leaders. That is important to the communities. The information and recommendations we provide are geared to helping solve the problem once the problem is actually articulated.
A great deal of talk has been about how important it was to make these changes in order to deal with economic stimulus issues. I was at a committee talking about the same issues a year ago, before people were talking about economic stimulus and before they were talking about the types of policies that came through with the Budget Implementation Act.
That is why that is an important issue.
Who are Transport Canada's clients? If you can understand this second issue, you will understand why there is so much confusion and why there are differing positions from the environmental and the non-profit community than from the bureaucracy and from the industry stakeholders. From the public's perspective, Transport Canada works for the people, and the purpose of the Navigable Waters Protection Act is to protect the individual's right to navigate on Canadian rivers. However, through its day-to-day operations, Transport Canada has more interaction with the people who are actually encroaching on our right to navigate and are applying for permits and licenses than it has with the people who use the rivers for navigation purposes.
Therefore, for whom does Transport Canada work? If you look at the list of stakeholders and people who were consulted prior to the Senate hearings, you will see that most of the people that Transport Canada was talking to are people who have a vested interest in relaxing the rules as opposed to protecting the public's right to navigate.
The third important point is that independent, rigorous environmental assessments, EAs, are becoming increasingly rare; and how do the changes to the Navigable Waters Protection Act fit into that trend? The Sierra Club and other presenters have gone into that in great detail, but you should understand that many changes are happening to the environmental assessment process and to the decision-making process when it comes to environmental issues, in general. This is part of a bigger trend.
Therefore, understanding the public's concern can only be done if you understand the bigger trend and what is happening all over the place.
While Fisheries Act authorizations do trigger the environmental assessment process, Fisheries and Oceans Canada is in the business of not doing EAs whenever possible. They have a "no-net-loss" policy. If you are to destroy one acre of fish habitat, as long as you can build one acre of fish habitat somewhere else, no EA is required. Therefore, even though some overlap exists between what affects fish habitat and what effects navigation, you cannot be sure that every time fish habitat is impacted, navigation issues will also be considered by Fisheries and Oceans Canada.
Fourth, the question of whether Canadians still have a right to navigate freely on the nation's waterways is the big issue. It was a common-law right, and creating a statute that allowed the government to give licences and permits to encroach upon that right was already a reduction in some ways. Now, allowing processes where lists are created and, as long as you promise compliance, you can go ahead and build your work on a navigable waterway reduces the right to the point where it is not clear if it is actually a right anymore or if it is just a goal that we have; we would like to have navigable waters in Canada wherever possible.
Fifth, who was consulted about the changes to the act; and when and how where they consulted? There has been some debate about this and some different submissions made, and it should be a matter of public record. It should be a straight-up, matter of fact in terms of who Transport Canada reached out to when they were looking at these changes a year ago. Who did they meet with, when did they meet, who appeared at committee hearings and what did they say? It should be fairly easy to establish whose voices were heard up to this point.
Sixth, who should be consulted about future changes to the act? If we are looking at reopening the Navigable Waters Protection Act and making improvements and changes to it, who should be consulted, when, where and how? It is not possible for everyone to come to Ottawa on very short notice. Many of the people who stand to lose the most from these changes are people who live in remote areas, as well as people who need more active consultation to reach out to them about what is happening. Opportunities would need to be made available to have consultations outside of Ottawa in their communities, via teleconference and so on.
Finally, what processes will ensure transparency and accountability when decisions are made under the new act? Everything else aside, the new legislation is passed. It is what it is. We will have policies, regulations and decisions made. How can that happen in a way that is the most fair, in a way that facilitates transparency and accountability and informed wise decision making if no other legislative changes are made now or in the future?
I have messages from a couple of our other water keeper friends. Meredith Brown, who is your Ottawa river keeper, wants you to know that small-scale projects can kill a river just as surely as one multi-million-dollar megaproject. That is very important when looking at issues of minor waters or minor works.
Doug Chapman is the Fraser river keeper and one of Canada's most experienced prosecutors. He wants you to know that, without assessment and full public notification, accidents can happen. That was the case last year when a vessel sank near Chilliwack, British Columbia.
Tim Van Hinte is the Petitcodiac river keeper. He wants to share with you the loss his community has experienced since the Moncton, New Brunswick causeway was built. For 40 years, citizens have lived with the loss of access to their river for fishing, recreation and tourism, all because a navigation right was sacrificed.
Those are messages we bring to you from other areas of the country.
The Chair: Thank you both for very articulate and excellent presentations. We are listening carefully on that. As the Ontario water keepers, you mentioned all the other things you have been doing apart from the Navigable Waters Protection Act. I understand the big issue is the invasive alien species that have found their way into the water that you are keeping. Is that relevant in any way to this matter?
Mr. Mattson: I would say that the ballast water issue is indirectly tied to navigation. I think it is something that with good study and proper due diligence, it would come up early, and maybe some alternatives or solutions would have been on the table — and need to be on the table in the future.
If the Navigable Waters Protection Act, NWPA, triggers that due diligence and that science, which it did in the past, then, yes, it is tied in that way. In Canada, the NWPA is the one trigger that allows people who are interested in these navigable waters to get to the science and get that right to notice and discussion. In as much as by taking away that right, we will lose out on that discussion in the future, it is important.
The Chair: Some of us have heard about these big Asian carp that are coming up the Mississippi and up the Chicago River. They are putting blockades up, so it occurred to me that those blockades, designed to keep away these species, could also be inhibiting navigable waters.
Mr. Mattson: Interestingly, they did study it and found a way to do those blockades electronically. The boats can go through but not the fish. Whether that will work or it needs to be studied more are the types of things that the NWPA, in its process, allowed you to think about and consider alternatives.
Without it, someone could make the decision that it is not worth spending the money or looking at the electronic solution and allowing navigation. They could say, "Let us just build a causeway and be done with it; it is not that important a river." It is that value judgment. Those judgments, when done in the public light, give us the best decisions in Canada.
Jim Wood, Vice-President, Corporate Development, Ontario Recreational Canoeing and Kayaking Association: Thank you for having me, senators. Unlike the lawyers and the scientists, I am a paddler. I come here from only one background. If you look at my hands, you will see the evidence. This is 55 years of paddling — 50 for money in one form or another. I enjoy old age, the CPP and all the other things we have, but I still paddle. I am still on those rivers all the time.
I also bring you greetings from two of my ex-paddlers who I have been with over the years and taught over the years. One called me last night on her cellphone from the Nahanni River. She is guiding on the Nahanni this morning, probably cooking breakfast for her clients right now. I also had a call from my son, who is a professor of history at the University of British Columbia, and he is paddling on the Okanagan River this morning.
I represent paddlers. I make no pretence to represent anyone else; I am a paddler, and the people I represent are paddlers. We have concerns, obviously, and many of the concerns are the same ones you have already heard. Where they have been better phrased than I can do, I will pass them by because it is in the record, and that is satisfactory to us.
I want to identify the whys of the concerns on behalf of my members. When I say "my members," I am talking about the Ontario Recreational Canoeing and Kayaking Association, ORCKA, which used to be in a close alliance with Paddle Canada — maybe we will be again.
Nevertheless, as the founder of that organization — the first chair in 1973 and still with them all the way through — we have grown from six people in a hotel room in Toronto to thousands of members. I think that speaks for what is happening in paddling in Canada. It has gone from an ordinary recreation form into, in many cases, a commercial enterprise — an ecotourism enterprise; 170 of my members in ORCKA now do this as a full-time living.
Many are small mom-and-pop operations. As a matter of fact, the gentleman who was supposed to be here today in place of me — because I came out of retirement to do this particular session — is sitting up on Lake Temagami right now because he had an unusual load of clients and one of his guides was sick. He had to cover and could not make this hearing. We help each other, and, as you all know, where we can we do.
Important to note is that although we have 170 commercial members, they range from the mom-and-pop operations right through to organizations as big as the Barrie Canoe and Kayak Club, with 700 members alone. They are huge, and they paddle all over the place. I think we can say with some assurance that they paddle every creek — and I am using that term, creek, about the width of a canoe — everywhere in Ontario.
I have paddled every river in Ontario, from the Arctic watershed ones down to Toronto, and they are all valuable. I am worried, along with all of our members, that some degradation will occur under the legislation as it exists right now. If we put things as "minor," you all know what minor means; it means less. If we put less supervision on a river, that means we will also have a bunch of minor things, such as docks and so on, that will come on to that river without proper supervision.
It is similar to minor hockey. You get a little notice in the local newspaper, but how many local teams do you know that get in The Toronto Star? If it is not up front and seen, it will not happen. That is a fact of life, whether you apply it to hockey or anything else, so our members are worried. They conveyed that worry to us and said, "Jim, you better come out of retirement and go have a chat."
I do stay in touch. This pile of letters is the last two weeks of notifications from the Ontario Ministry of Natural Resources of alterations to their plans. I get each and every one of them because we have a working relationship. It is important to build working relationships so things get done. We build these working relationships, and we get these letters. ORCKA looks at each and every one of these and determines which ones are important. Then we will make presentations, consult and negotiate, which is the way to do things. We do not confront. That is not an option. We would rather work with people and get things done. The end result is we have some really good legislation in Ontario.
We had a definition changed — what a navigable waterway is, as far as management goes — from an interpretation of a narrow stream out to, first of all, crest of slope. That was our first success — crest of slope — in other words, from the top of the slopes that that stream is contained within. We went from there to asking them to consider line of sight. All our commercial operators, when they take a person down a river way, they see the river way around them. If you have something down close to the water's edge, even if it is 200 feet back on a level plain, you can see for miles across those plains. Therefore, the ministry was very good. They changed their definition and went to visual. Our members came back and said that it was fantastic, it keeps their businesses running.
That is why we want to have a definition for you folks, if you would consider it, of that much water — I do not want to deal with canoes and floating and all that; I deal with that much water because that is what I paddle canoes through.
The Chair: Let the record show that the witness is showing about two inches.
Mr. Wood: Two inches; I will not grumble.
That is what we do. That is an actual fact. Other definitions are all well and good, but that is what we do, and I hope you will take that as being good evidence as to what should be in the act in the future.
The quality of the water scares us. Virtually, I can see my friend up there on the Nahanni, scooping the water out of the river and letting it settle so that the water clears. All of us drink the water out of those rivers. We have had to treat them more and more as time has gone by. The rivers are being degraded. That is a fact. I can back that up — how many people and in how many locations. We have to look after the quality of water, not necessarily only for canoeists, for life, for everyone. You have to look at that water and see what is happening to that river if you want to make any judgments. I can tell you right now that it is being degraded. Even in Algonquin, we cannot drink many of the waterways anymore.
The Chair: We have other legislation, many initiatives in terms of cleaner water. I see you have one of the Walkerton ladies there. Some of it is not caused by things such as this legislation; it is coming from the environment.
Mr. Wood: I worked in the acid rain research station.
I do not know if we will ever recreate a pristine environment. I think those days are long gone. We must care for the waterways we have right now. We do what we can do.
I was there the other day. Did anyone get a look at that? That is where we paddle. How much water do you think is in there?
The Chair: The witness is holding up a page. Is it page 1, sir?
Mr. Wood: It is the Don River in Toronto, and this is from May 4.
The Chair: Is it page 1 of The Toronto Star, May 4?
Mr. Wood: It is in the Greater Toronto section, section GT.
The Chair: When we read the transcript, we will know it is not Allô Police or something.
Mr. Wood: I put together three or four sheets of paper that might be of value to the committee. You can recognize it by the imprint at the top. Being an ex-teacher, I have this habit of handing things out.
If you have that, I would like you to look at the top picture. As my friend to my right said, you will see that waterfall with someone going over it. That is where we paddle.
The Chair: Colleagues, we have not distributed it because it is not translated, but we will get it to you afterwards.
Mr. Wood: That sets me up. I can get into all sorts of definitions there.
Senator Milne: These gentlemen are not government witnesses. They are entitled to appear before us and give us material in whichever of our two official languages they prefer. I would like to see this piece of paper that Mr. Wood has.
Mr. Wood: I have copies of them over there. I printed them up myself so everyone could have one.
The Chair: I am like you, I am anxious to see it. I am credibly advised that the rules are that, yes, any documents can be given to us, but we should receive them in advance and translate them. Is that not what the rule is? Those are the rules.
Please carry on, Mr. Wood.
Mr. Wood: You came close, because last summer I also instructed a trilingual course; French, English and Ojibwa. That is how we trained our instructors last year in Ontario in trilingual courses for the first time. That shows you the extent of our involvement. That is why I wanted to put that out for your attention.
To give you the numbers, we have 810 people conducting our program. There are 750 instructors within our organization who operate every summer in Ontario alone. They put through 5,500 paddlers, not counting the ones in the public. We are not serving anyone but dealing with 5,500 people, face to face. Those are all things that are important.
I will go to my conclusion because I have made my points already, except for the definition of a navigable waterway. Having a son who is a professor of history at the University of British Columbia and a wife who is a professor of history at Laurentian, I got an earful on what navigation is in the last few days in no uncertain terms. They said that it was an expression of the time that was used because everyone understood the expression. Think back to 1882. Our waterways were how we moved around in Canada. That is what they used for a definition. Why would they not? If you float a canoe, there it is. As my son and wife pointed out to me, perhaps there was also intent there, an intent to place those navigable waterways — because they were so valuable — into the public domain to be governed by the public rather than any other criteria.
I would say to you, floating a canoe is a little archaic at this point. There is a problem with it. Were they talking about the little 9-foot trapper canoe or the big 26-foot fur-trade canoe? What canoe are we talking about in that area? I am trying to show that there are problems with that.
Probably, in this day and age, we will have to go to some form of measurement. I think you already indicated how much would suit your purposes. If that could be included in your presentation and report, that would be much appreciated by canoeists, because that is what we do.
That is the historical perspective they insisted I give you. I always obey my wife, like all of you.
In conclusion, if we diminish a waterway by calling it minor, or we diminish it by saying that it is not important, it will affect the next river way down, which will be bigger and bigger down the stream. You cannot affect a little one without affecting a big one. Water flows downhill. We all know that. That is what is real to us.
I was concerned that we did not get the chance to present at the Transport Committee hearing. When you ask canoeists such as me to present in May, June, July, August, September or October, it is nearly impossible. We are all volunteers. We cannot get off the water at that time. In a period of 15 years, I got home for five days between May 1 and October 31. I would come in over night and sleep, and pick up a different pack. I had five sets of packs of gear. I would pick it up and was back out with my clients the next day, flying to the Arctic or wherever they wanted to go — Germans, Japanese, clients from all over the world.
We cannot participate in hearings during that time period unless you get an old retiree out of retirement, so I could be here today. We are not faulting anyone; we are just saying that it was impossible on our part. We could not do it and operate our businesses. I do not know whether that makes sense to you folks, but that is our reality. That is why we did not get a chance to go.
I put in my report about someone determining who is a reasonable paddler and who is not. It is not worth discussing. It is not worth bringing up. Reasonable paddlers are the ones who paddle, who present themselves and operate their businesses. That must be taken as reasonable. I hope we have been reasonable in our presentation today.
I know you can all read very well, so I will leave the report for you. I do not want to hold up your time, but I would like to hear any questions that you might have, so thank you, senators.
The Chair: Thank you, Mr. Wood. All the witnesses are most interesting. Judging by the list I have here, you have stimulated the interest of all my colleagues.
Senator Banks: I want to place on the record again, so that we do not forget it, the request that I made — and with which you and the committee agreed — to the government to give us a circumscription list of the type of incorporation of materials by reference that might be made under section 13 of this act. Government officials undertook specifically to send us some kind of description as to what that would be because, as you will recall, we all agreed that this is just too broad and it includes anything from anywhere. It is also ambulatory in that if material incorporated by reference from another source is changed by that other source, subsequently it becomes part of Canadian law.
I want to remind the government that they have undertaken to do that, and I am looking forward to getting it.
We have been assured by the government — if my understanding of what they have said is correct — that the changes here will not change the right of navigation. We have been assured that the changes here say that the rules dealing with what you can build in or over or near a waterway will not change.
My understanding is what will change is the circumstances in which one, who wants to build such a work, would have to pre-apply.
The phrase I used yesterday and with which the government agreed was, "Are you saying that I do not need to apply, but I need to comply with the existing constraints in terms of building works in, around, over or near a waterway?" The government said that that was right, if my recollection is correct.
Mr. Mattson, you used the phrase, "taking away the right to navigate." How does this act take away the right to navigate?
Mr. Mattson: It is a good question, and it is one that Mr. Osbaldeston, Ms. Tully and I have been arguing at these committees every time we appear.
As a civil rights lawyer and someone who has worked for a long time, I have an idea of what constitutes a right. Any citizen in Canada has the right to navigate and the only way that can be taken away is if the government steps in and, through notice, through an act of ministerial discretion or an act of government, takes that away. All those ideas about being elected and doing it in the public eye, et cetera, apply.
The changes to the act can make that decision no longer need to happen at the ministerial level; it can happen in the senior management of the public service and there need not be notice.
Senator Banks: Am I and the government correct — and do I understand the government correctly — that the decision is whether I need to apply in advance to build a work or whether I need not apply in advance, but I still must comply. Is that the decision that you are talking about?
Mr. Mattson: They still need to comply with what the senior servants will have as a list of what you need to do, so they can go to the developer and tell them that they need to comply with this. They can then say that they have complied with it all, and then they can get the approval.
However, the problem is that the people do not get notice. Let us use the example of my friend, William Tozer, who is a Cree hunter and fisher on the Moose River. Twenty dams will go in up there and causeways and all sorts of works on those rivers in Ontario in the next 20 years; it is in the plan. He may never get notice that this was happening. He will not have an opportunity to look at that compliance and say that he does not buy that fact and has some pictures to show they are not doing that. His opportunity to be involved in that decision is extinguished by the changes in the act. He now has an onus to maybe get on the phone on a daily basis and ensure he is out there. Maybe he has to start a group and actually exercise some influence via lobbying and be involved in these decisions at the senior level of government.
In the past that was not the case. He would have been given legal notice and given an opportunity to look over the material. Whether the minister accepted his issues as legitimate, valid or changed the decision, he or she had that right.
That will not always take place as a result of the new Navigable Waters Protection Act amendments. In fact, that can grow to the point where we can have thousands of these decisions where there would be no effort at all to find those people who might make a living out there as an outfitter; they are people of whom no notice is taken.
That is the difference from a right to a privilege. It will be a privilege. The onus falls on the Canadian citizens to stay informed and to stay on top of the issue, as opposed to the past where we left it to our government and let them protect our right and ensure that if it was to be taken away, they would notify us and ensure they got us to the committee, if we wanted to be invited.
That is the difference.
Senator Banks: If I build a work that is an impediment to navigation without having applied in advance to do so, this legislation does not change the fact that, if it is found to have been an impediment to navigation after I built it, I can be made to tear it down. Is not that correct?
Mr. Mattson: That is true.
Senator Banks: Ms. Tully, I want to ensure I understood what you said because this is very important to me. You said that the proposed changes in the Navigable Waters Protection Act were in the minds of people before the economic crisis became evident.
Ms. Tully: Yes.
Senator Banks: Would I infer that the insistence of some folks that the urgent necessity of these changes are due to economic stimulus is sophistry?
Ms. Tully: I would say that it certainly is confusing, and there is conflicting information. We have an access-to- information request to try to get the background materials, but we are having a difficult time getting those. We do have some slideshow presentation and some materials from Transport Canada dating back to 2007, at least. When I appeared before the Transport Committee a year ago, it was at the invitation of the committee, and they had a memo that had — I cannot remember —may be seven different issues that they were looking at.
Therefore, what the Navigable Waters Protection Act looks like now is virtually identical to what they were proposing to do a year ago.
Senator Banks: No one knew there was an economic crisis coming a year ago, right?
Ms. Tully: Not to my knowledge.
Senator Neufeld: Senator Banks actually brought out some of the points I wanted to talk about, so I will leave that alone a bit. However, I will go to Mr. Green. On the bottom of the first page, you state, "Until now a river was navigable if you could paddle a canoe or any other craft on it." When we had witnesses who happened to be ministry staff and I think the parliamentary secretary, I wrote down the words that they said when we asked them that question because others have said the same thing.
The response was, "If you can paddle a waterway, it will still be subject to the Navigable Waters Protection Act." I find a bit of a contradiction here, Mr. Green, in what you are saying and what both the ministry staff and the government say, so I think Senator Banks brought that out fairly well.
As I understand, it will not change; they will still be under the same rules, but you will have to comply, as Senator Banks said. Would you agree with me?
Mr Green: Thank you for the opportunity to clarify that because I did want to make a comment based on what Senator Banks had said, as well.
I am not a lawyer, but when I started to become interested in this, I was just a paddler and never imagined I would find myself in front of a Senate committee on this issue. However, I spent time looking through a variety of common- law decisions in Canada and Britain. It is a consistent that, even when someone did get permission to erect some type of a structure, the courts would use the definition that if you could navigate it, in fact, you had the right to navigate and some remedial measures would have to be taken to fully restore that right.
The point we are trying to make here is that now the definition is subject to the classification of what type of river it is. Supposing someone does comply, does apply or whatever mechanism they get through to build whatever structure it is they want to build, in the past, a citizen always had recourse to that basic right. The court would look at that definition; time and time again — going back hundreds of years — that has been the definition that has evolved through common law.
Now the definition has switched to — and it has to be seen how this will all come out — is it this class, that class or that class, and what is the rule about navigability depending on the class? As I said in my presentation, we not comforted because when we listened to Mr. Osbaldeston, some of what he calls non-navigable, as Mr. Wood pointed out, are absolutely, perfectly navigable.
Before it was a right that, if we could navigate it, we had the right to. Now, it is up to some regulatory process behind the scenes that decides what is navigable. I am not trying to suggest here that starting tomorrow morning or this weekend, we will go paddling and will not be allowed to paddle. It is not a question of preventing us from paddling; it is a question of what you have a right to paddle on, and that definition is changing quite substantially, I think.
Senator Neufeld: I disagree to a degree, and I do not want to take up much of my time debating that. I do believe that the government and the ministry were very firm in what they said; if you can paddle a waterway, it will still be subject to the Navigable Waters Protection Act. I know we have different opinions. I wanted to put that on the record.
On page 8, you say, "By all means build a bridge or culvert over it, but don't wreck navigation if you do."
Are you saying that if the government, to service people, needs to cross a bridge or go under the water, that is okay with you?
Mr. Green: The key point is you do not segment the river. The example I gave on the Credit River was that it is now cut off because you cannot get over the dam and you cannot get around the dam. You can no longer navigate.
Senator Neufeld: What do you mean by "culvert over it"?
Mr. Green: You could conceivably build a culvert in such a manner; suppose you were building a four-lane highway and you put it over a so-called minor waterway and the culvert was two feet high. Now you can no longer get down that waterway because you cannot get over the highway.
Senator Neufeld: You just need a larger culvert. I did not know what you meant.
Mr. Green: If I can comment on your previous comment, in the past, the concern that I am trying to express is that the courts said that this is our right. Now we are getting an assurance from the government, from the executive branch. It appears the protection of that right to paddle has shifted to a certain extent from the judiciary to the executive. That makes me uncomfortable because I do not know what executive power will be doing it in the future.
Senator Neufeld: To Mr. Alexander, did I hear you correctly that you have 18,000 members?
Mr. Alexander: No, we have 18,000 direct financial supporters.
Senator Neufeld: How many members do you have?
Mr. Alexander: We have 1,200 direct members, with several different categories of memberships. In every province and territory across Canada, we have a total of 1,200 individual members and also eight provincial and territorial recreational paddling associations that fall under our umbrella. They, in turn, represent about 12,000 active paddlers. They would feed their information through.
Senator Neufeld: When you first heard the changes would come into effect, did you get in contact with your 1,200 members by email?
Mr. Alexander: Yes, we did.
Senator Neufeld: Would you mind sharing that email with us?
Mr. Alexander: Yes, I believe my business manager is here. I can forward that to the committee.
Senator Neufeld: Thank you. I would like to read that.
Mr. Alexander: I believe I have a copy here.
Senator Neufeld: Mr. Wood, I am familiar with the Nahanni; I come from Northern British Columbia. The lady you spoke about would actually be in Nahanni National Park, right?
Mr. Wood: She would at that point, yes.
Senator Neufeld: I wanted to clarify that because the national park is protected.
Mr. Wood: As you know, senator, you do not access directly through there. You usually come down one of the other smaller waterways to get in; and they all paddled those in the last three days to get into the park.
Senator Neufeld: Could I ask — this may be a little personal — where do all of you live?
Mr. Wood: Bracebridge, Ontario; I am from Timmins originally.
Mr. Green: Port Credit in Mississauga, Ontario.
Mr. Alexander: St. John's, Newfoundland and Labrador.
Mr. Mattson: I live in Toronto, Ontario and was previously in Ottawa, Moncton and Vancouver.
Senator Neufeld: You mostly live in the city and go out to the wilderness to enjoy it.
Mr. Wood: I live out there. I say Bracebridge because it is the nearest town.
Senator Neufeld: I live in Northern British Columbia, and it always interests me that people in the city demand a certain amount of things — electricity, they want to drive their cars, they want to fly in airplanes, they want to go back and forth to different places. They want to maintain the wilderness, where many of you would say I live, in exactly the same state. However, some things have to be done to provide cities with the lifeblood to keep them going.
In some cases, that requires a change or some work on waterways, on rivers, so that we can continue to do that. I just want to make that argument to you, so that people remember that.
I am also very familiar with our hydroelectric system in British Columbia. Many people would love to have it across North America. It is green, clean, 93 per cent by water, but we created dams to do it. I can tell you that every British Columbian thinks that is their birthright also. These are dams across major rivers that actually stop navigation to a degree, and have affected navigation. Those were built in the late-1960s and are owned by the Crown, the people. That is their birthright, and they want to keep it and keep that green, clean electricity. Some effects will occur on the land base that all of us have to take when we look at these things.
I heard from most of you that something that was drafted in 1882 needed some changes, and that you agree that some changes have to happen. I think that is part of what the government is also trying to do.
The Chair: For even-handedness on our committee, I need to point out to Senator Neufeld that I did not interrupt him when he was making that eloquent statement, but it does fly in the face of something we all agreed on the other day. There will be an opportunity for us all to make statements when we are doing clause by clause, or whatever we are doing in drafting this report, but it is on the record.
Mr. Mattson: I have two really quick points to help Senator Neufeld. First, if you go to the transcripts of May 29, you will note that the Transport Committee made it very clear that they did not like the Canadian courts' definition of "navigation" because it was too broad. There is no question these changes are intended to change that definition; and what that will be is something we are hoping you will be able to clarify.
Second, if the people of British Columbia were concerned that they were not able to get to that green, clean power through hydroelectric and that there was too much red tape in the Navigable Waters Protection Act, the much easier way to deal with that — and they probably still need to deal with it — is to deal with the Canadian Environmental Assessment Act and have the regulation there, the exemption for certain projects from what they call red tape; instead of going to the Navigable Waters Protection Act and taking away the right to navigate first, and then doing the rest of the changes to the act. This opens up a Pandora's Box that is not necessary for the green, clean B.C. hydroelectric plans. There is a better way of doing it, and that is why we are here today. You can go back to Parliament and say that if all you are worried about is the red tape in the Canadian Environmental Assessment Act, there are better ways to deal with that and still maintain the public right to navigate.
Senator Neufeld: I appreciate that. Those are two different opinions. As long as we have them out on the table, we do not always have to agree.
Mr. Green: I do not think it is helpful to characterize this as rural versus urban. The people who we deal with, and who are members of these organizations, come from right across the country.
I am speaking to you today as a Canadian citizen who is worried about one of his basic freedoms. That concern is felt by Canadians no matter where they live, whether they live in cities, in rural areas, in a shack in the woods or in a condominium on the Toronto waterfront. I do not think that matters.
I believe you suggested that somehow urban dwellers are not aware of the need for hydroelectricity, dams, forests, et cetera; I do not think that is a fair characterization. I work in those industries. No one here spoke against development; no one spoke against hydroelectricity or any other such thing. We are here to talk about protecting a basic right.
When the Navigable Waters Protection Act was passed in 1882, it was done to assure a fair balance between development and protection of that right. That is all we are asking for.
Mr. Wood: I would like to comment on the last part that deals with the urban and the rural. Most of our commercial operators are eco-tourism operators. They are in those very rural areas, and they are the ones who have asked me to come to this committee and express their fears. They are really worried out there, and they are rural.
Not everyone in British Columbia is happy with the present situation. Perhaps the senator might know a gentleman named Michael Wolfe, who happens to be my son-in-law; he is in Richmond, B.C. Are you familiar with him? I think he ran for the Green Party the last time. It could be that he is not quite as happy as the senator.
Senator Lang: I have a couple of point to begin with. First, thanks for coming and spending your morning with us. We all appreciate that. I do come from one of the more remote parts of Canada. Like my good friend from Northern British Columbia, I can say that I spent basically my whole life there. I suspect I may have even been in the Push-Me- Pull-Me Creek that you were in at one time in the Northern Yukon or Northwest Territories.
I want to make a couple of points. We are here as a committee understanding that this act goes back to the 1880s and has seen one minor amendment. We have seen changes in our world over the last 130 or 140 years where this act no longer applies when it comes down to the realities of what we face in technology, development and various other things.
The point must be made that, for example, the parliamentary secretary who appeared before us is not only a parliamentary secretary, he is a trapper, he knows what a canoe is, he lives in the outdoors in Northern Alberta, and his brother is a trapper. The government would obviously not be bringing something forward that they did not feel was in the best interests of the public, yet at the same time gave comfort to those who enjoy and work in the outdoors.
My concern is — which the chair touched on when he questioned Mr. Green or Mr. Alexander — what information has actually been sent out to your membership about the effect this act will have. I have a couple of specific questions. I would like a clear answer and have pointed out to me where in the bill it substantiates the statements that have been made here.
Mr. Mattson, earlier you said that this act takes the right to navigate away from the act that was previously in place. I would like to know what particular section actually says that it takes the right to navigate away.
Mr. Mattson: If you look to section 5.1 of the new act, it no longer requires that political, ministerial exemption from the notice requirements of the approval. That is what changes something from a right, where a citizen says that you cannot take this away from me unless it goes right to the minister — the minister then does it through an act of Parliament or the power given to him as a politician — to now being made by senior management. Senior management are not elected. They can do it behind closed doors; that is the bureaucracy. They can make those decisions, and value your community's river and decide what is in your best interests, in Ottawa.
If you are concerned about the rural-urban split, I would say that section 5.1 would be a real concern because the people here in Ottawa will make those value judgments on behalf of your community, and you will not be able to go to the minister because the minister is no longer required to be involved in that decision. That is what the new act does in section 5.1.
Senator Banks: Are you talking about section 5(1) of the present bill?
Ms. Tully: We are talking about section 5.1 of the new act.
Senator Banks: Of the bill before us, section 5(1) says:
No work shall be built or placed in, on, over, under, through or across any navigable water without the Minister's prior approval of the work, its site and the plans for it.
How does that impede navigation?
Ms. Tully: Sorry, not section 5(1) but section 5.1(1):
Despite section 5, a work may be built or placed in, on, over, under, through...
Senator Banks: You mean section 5.1(1), thank you.
Ms. Tully: That section allows them to pass regulations creating the list of works that would no longer require ministerial approval, or the list of waterways that would no longer require ministerial approval.
Senator Lang: Basically, nothing says that it takes away the right to navigate; it says who will make that decision if that right can be taken away. That is an important clarification.
Mr. Mattson: Coming from the point of view of a civil rights lawyer, a right is something that the citizens know they have and the government must meet the onus of notifying them and getting them the information and telling them they can participate in the decision.
This is a privilege. That no longer needs to happen under the new act. You do not need to search out those people and give them notice. There is no obligation on the government to do that. Section 5.1(1) says that those decisions can be made here without that due process, that due-diligence type activity that a right would require. It is a process right.
Senator Lang: It is very simplistic when you say that it takes the right to navigate away because it does not do that. It gives the responsibility perhaps to someone else. I think that must be clarified for the record.
Mr. Green, could you point out in the legislation, or in policy, where the government has said that they would cut off a river? You have used that I think twice in your presentation; you talk about "cut off a river." I did not hear anyone say that they would cut off a river or a creek. I find it hard to believe that was their intention.
Mr. Green: I was referring to comments that Mr. Osbaldeston made before this committee where he was talking about 200-metre segments of river. The point I was trying to make is, if he was saying — and if it is the government's view — that 200-metre segments of river that are this steep or that narrow or this shallow or so forth are exempted, then you could potentially, seriously impede or completely obstruct navigation on those segments. If that was to happen, then you basically cut the whole river.
Senator Lang: Chair, I will leave that. My concern is what information is being put out to people about what the implications of the act are and how they have been explained.
Just listening to you people and the witnesses previously, I can see it is very complex; it is not simple.
The question of consultation must be reviewed here. The statements have been made fairly clearly that there has been very little, if any, discussion with hardly anyone, and this bill all of a sudden appeared. The information with which I have been provided — and as a new senator I am here in the ninth inning, not unlike yourselves — is that the federation of municipalities across this country, which represents millions of Canadians, have recommended that there be changes to this act in order to facilitate a more streamlined approach to getting some of these projects under way. In conjunction with that, I understand at least nine of the elected provincial-territorial jurisdictions have asked for changes as well in order to accommodate some of these things they are looking forward to in this day and age.
I can tell you, from the part of the world I come from, the present government is not there to impinge the environment nor to block people from using rivers. It is one of our industries. At the same time, some common sense must apply.
I am a decision maker, as part of this committee, trying to find a common ground because I paddle, I have a kayak, I have many friends who do this in the summer, and at the same time I have a son who is an electrician who needs to go to work.
We are looking for a balance from you people to come forward with constructive recommendations for changes and give us, in a time frame, a reasonable ability to look at a project and, at the same time, to make a decision.
Just in conclusion, over and above the consultation that has taken place, I would like to ask your opinion. Do you think these two, three, four years of environmental assessments and reviews are reasonable, or do you think it is time to start making some definitive decisions? Then we could say, in six months we have to get here, in six months we have to get here, and force some decisions, instead of creating an industry where people just push paper. Perhaps someone could comment on that.
Mr. Green: Everyone wants to comment.
Mr. Wood: Your points are well taken, senator. You phrased it in three different contexts, so I will deal with each of them.
The consultation was inadequate in this case. In our opinion, there is no doubt about that whatsoever, as I have already pointed out.
To summarize the next two, you asked how we break this logjam and how we get through this.
When I held these up, I was saying to you that we have already established a notification period in Ontario that works. If there is a project there, each and every one of us receives notification of it. If there was something similar to this in the federal navigation act — if we could at least get notification — that might solve some of the problems. We are not receiving notification now.
I know it works because I do it in Ontario. Perhaps there is a process being ignored here that works in other jurisdictions that could be imported to help the consultation phase.
Does that sound reasonable?
Senator Lang: That is a suggestion.
Mr. Wood: That is with respect to the question asked about how we get around these things. Your last question was about the EAs. Perhaps you need to look at the process within the EAs themselves, as opposed to simply condemning it. Perhaps you need to take a look at the full process.
Senator Lang: Mr. Chair, I want to correct the record. I did not condemn the environmental assessment. I want to make that very clear. My concern is how it is being implemented and how it is being done.
Mr. Wood: That was my bad choice of words. You are questioning the length of time, and that is a constraint that could perhaps be better addressed somehow or other; at least I interpret it that way.
I think they can be, but they have to be done in consultation with the other people on the other side. The folks who undertake these from a bureaucratic standpoint have one view point. To make it more acceptable to all communities, they need input from the other people — the science, the legal aspect, et cetera — to make it real and to have the support.
In any project, that is the key: Do we have the support of everyone in our communities to accomplish these things? If we can get the support through consultation and bringing in experts, then we will be successful.
Mr. Green: First, I agree that the environmental assessment process can easily get bogged down. I worked in that field during my career. I would suggest that the first approach is to look at administrative fixes to that process.
Second, Mr. Osbaldeston said that they have a backlog of 2,500 projects. To my simple calculations, if 50 people each did one a week, you would clear out the backlog and, at least during this recession where you want to get infrastructure through, that would be helpful. Maybe it is 100 people; I do not know, but it does not seem that complicated.
Third, I do not know the details, but I have spoken to people in the construction industry about this, and they said that the engineering process generally takes longer than the assessment process in any event. That needs to be borne in mind.
Mr. Alexander: Senator Lang and Senator Banks made a comment about concern about the communication that has been put out there, and rightfully so. I will ensure that our communication to our membership is made available to the Senate so that they can see what was actually said.
I will give my personal assurances as president of our organization that I am not in the business of fear-mongering about changes to legislation. It does more harm than good to do what I would consider irresponsible advocacy, which is fear-mongering, et cetera. Our main concern and communication to our membership was specifically around the consultation process from the start. Senator Lang said that there needs to be common sense around those things. I fully agree. I am not against electricity. I use it every day.
In that train of thought — namely, common sense —to amend an act that deals with the fundamental right of navigation with a two-day notice to what I consider a constituency that is most impacted by the legislation, you will expect some blow-back from that type of process.
The Chair: Mr. Mattson, did you have a comment on that issue?
Mr. Mattson: It has been covered, chair. Thank you.
Senator Milne: I will follow through on what Senator Lang was commenting on because I am quite concerned that section 5.1(1) really does give this whole process to the executive branch. Therefore, these decisions will be made, as you say, behind closed doors; they will not be made out in the public. Additionally, the regulations will now be beyond the purview of Parliament. In this act, they will not come before the Standing Joint Committee for the Scrutiny of Regulations. This is already law; this is what will happen. Therefore, I am greatly concerned that even the elected people will not be able to have a second look at these regulations.
Mr. Alexander, you said that you had a two-day notice; that included being given the whole package: You had to read it, digest it, consult your people in two days and come back with an answer.
Mr. Alexander: It was a phone call, followed up by an email inviting us to participate; that is correct.
Senator Milne: Did you never get the package?
Mr. Alexander: The email contained some information.
Senator Milne: I understand the Lake Ontario Waterkeeper had some advanced notice and some input. Mr. Green and Mr. Wood, were your organizations given the same two days?
Mr. Wood: Our problem for the original one is that we received notification by about two or three days, way back in the Transport Committee. However, it was a period of time where we simply could not respond.
Mr. Green: This organization came together when this whole thing was happening. Some people tried to get a chance to participate but could not. However, the Canadian Rivers Network is just a network of people who have heard about this and want to be able to dialogue and exchange ideas on it.
Senator Milne: Your antenna went up. Thank you. Are you at all in favour of any of the amendments in this act?
Ms. Tully: The one that has come up in previous sessions of this committee is the increase in penalties. It has been increased from $5,000, which was not seen as an effective deterrent. That is maybe the one point where there is consensus.
Other than that, there is not much to be supportive of in terms the procedural concerns and the concerns about how this act will be interpreted in the future.
Mr. Green: I think it is okay to be supportive of the intent to eliminate red tape, but I would stop there.
Mr. Alexander: I would echo that. The intent is noble and honourable and is an important one to look at. These things have to develop and move forward.
It is about what will happen on the ground in the next 20, 30 or 40 years as a result of these amendments; that scares us a great deal.
Mr. Wood: I have to think about that.
Senator Milne: I have one more question.
The Chair: I would like you to pursue the five-year review.
Senator Milne: That is the next part of my question.
At this point, we are doing a pre-five year review of this act. However, in the act itself, it says that we are mandated to do five-year review. Are you reassured by that? At this point, that will be our own effect — either that, or a change of government.
Mr. Wood: I have a concern. It is in our report. There are two aspects of that five-year review. Does that mean nothing can be reviewed for five years? In that case, there is a total demolition of everything of concern in those five years. It may be an opportunity for those who are not so "good" in terms of the environment.
The other aspect is that five years is a long period of time in the life of a river, or any other place, and I wonder about that length of review period. That is a concern of ours.
I would have rather seen some assurance that things would be happening during that period of time, so you would have something to review in five years that has not disappeared in those five years. Therefore, yes, it was a concern of ours.
Mr. Green: It is nice to know there is a review; that is better than not having a review. I agree with Mr. Wood that much can happen in five years. We will keep an eye on things in the hope that we can have a positive influence on that review.
Senator Milne: We were told by Mr. Osbaldeston, when the officials were here, that they do not have the workforce to do the job properly anyway. At this point, assessments are complaint-driven and in the future, it will have to be complaint-driven. What will be different?
Mr. Mattson: That is a good question, and it touches on the essential problem here. In our groups and the non- profits and the charities, we do not have the people power to do all this work either. Clearly, vested interests have a goal involved in getting these projects — the developers.
Therefore, it worries us when the government says that they do not have the resources to do their job. We gave the government that responsibility with the common-law right and the Navigable Water Protection Act statute 120 years ago.
It was not good for us to hear Mr. Osbaldeston, who is a great and brilliant man, tell us that he does not have the ability to give meaning and force to the Navigable Waters Protection Act. That was an admission of failure. Then to think that the solution to that is to put the burden on the public to stay notified, to come back in five years and attend these conferences and all of us stand up for whatever rivers and creeks we know about or someone complains about, is tantamount to losing that democratic right and process. It is a failure on the part of our government.
It is a telling point when Mr. Osbaldeston says that. Perhaps that might be part of the path to a solution to this problem.
Senator Milne: A final point, Mr. Green; I am your senator as I live in Peel County too. Where is this dam that was built in 1825 on the Credit River?
Mr. Green: It is in Georgetown.
Senator Milne: This is where our former colleague, a former member of Parliament, has a hydro dam across there, and he will not allow people to go around.
Mr. Green: It is his own private property. I understand that. I would not want people going through my backyard. I do not contest that.
Senator Milne: The problem is, for those of you who do not know, if you have to portage around a dam such as that, it is one concession road up, one concession road over and one concession road back to the river. It is a long portage, rather than a 15-foot lift over the dam.
Mr. Green: Senator, I would encourage you to join us on the Canoe the Credit event on May 24.
Senator Milne: My knees will not take canoeing anymore, unfortunately. I would have to send my son in his kayak.
Mr. Wood: Senator, ORCKA initiated the court case back in 1978 to deal with that particular issue. I was there at the time and one of the people who attended and witnessed this.
Senator Milne: That former MP was a strong conservationist, too — green all the way.
Mr. Wood: Yes, he was. Having been the northwest education supervisor for the Metro Toronto and Region Conservation Authority, I was in an awkward spot. The point is that it was grandfathered. It pre-existed, and we have to live with it now. All our paddlers have to go up and around. It did interrupt that waterway; it put an obstruction there that, in effect, divided it almost in two.
Picture this: You paddle downstream and come to a dam; you either walk the concession road — 1.8 miles for each one — or paddle all the way back up to get back out. That is some paddling.
The Chair: Start a little business and give them a hand.
Mr. Wood: Some people do down there.
Senator St. Germain: Most of what I wanted to ask has been asked and the comments have been made.
My father was a Metis trapper, and his economy disappeared in front of him because of drainage of swamps and sloughs and so on. I know what we are speaking about.
I am sorry that you took offence to what Senator Neufeld said, Mr. Green, because there is a difference. When you live on a ranch such as I have, you do not waste water; water is similar to gold.
In the city, my grandchildren stand in the shower for an hour. There is a big difference. If you do not recognize that difference, we are in deep trouble. If we do not change the situation in urban areas, we will not be able to live like we have been living. There will be deterioration.
I am concerned, as well. A practical aspect exists, and how do you square the circle?
My biggest concern is what Mr. Mattson brought up: the change from a right to a privilege. Lawyers are at the table. You made reference to the Kennedys; they virtually annihilated the United States with blacktop and so on, and then they want us to be their backyard.
Is this change of a right to a privilege that important? If you were to recommend changes that would change it back to a privilege, could you recommend to us how to do that and put it into the record?
The Chair: They say that it has gone from a right to a privilege.
Senator St. Germain: Okay, just the opposite.
Mr. Mattson: Yes; it would be simple. On the one hand, they could change the Canadian Environmental Assessment Act regulation that requires decisions made by the minister under the Navigable Waters Protection Act from having to undergo an environmental assessment.
I would not recommend that, but that would be the easiest way. It is still a right, and the minister has to make the decision and is responsible for exempting these projects. However, it does not need to undergo an environmental assessment because the regulation under the Canadian Environmental Assessment Act, which requires the environmental assessment, needs to be amended. Many decisions of ministers at the federal level are exempt from environmental assessments. That would be the easiest way.
Therefore, take section 5.1(1) out of the NWPA; leave it with the elected representatives who exempt the citizen's right to navigate, and you have basically the opportunity to act — because of the economic problem, because of specific programs that the politicians believe have already been well documented and are in the public interest — and to let those go forward without the time period.
However, to take away the right — that people have the right and the minister has to take it away — is a whole different thing. We are a charity. We try to give meaning and force to laws. One of the most difficult things to do is to get into the senior management of government and understand what they are doing. They have so much to do, and we just cannot keep up with that. Therefore, the idea that we would be able to be notified, or be on watch or do our due diligence on these projects that would be exempt, is not workable from the grassroots level. We do not have the workforce. We look to government to do that.
Ms. Tully: Mr. Mattson gave some specific recommendations about what could be done to rectify this. I want to address this issue of enjoying rivers and urban versus rural because I think I might come from a different perspective than the other people here.
My family are all dairy farmers, but I grew up in Oshawa. I do not speak from a place where I enjoyed Canada's rivers growing up. I did not get into a canoe until I was 22. I grew up in a place where I could not swim at the beach in Oshawa safely; I could not fish or paddle the Oshawa Creek, which used to be the Oshawa River.
I am not talking necessarily about protecting just the remote areas of Canada. I am talking about places such as the Don River, which is in the heart of Toronto, which is only navigable one day a year because of development decisions that have been made that can be fixed. Because of the changes to this legislation, I do not think I will ever see the Don River restored in the neighbourhood, in the community where I live. That is what I am talking about.
It will be considered a minor water because the right or ability to navigate has been lost. We are not just talking about protecting what we have left; we are talking about winning back what we have lost — places such as the Don River and the Humber River.
We are begging you to help us protect the urban areas where we live, not just the rural areas where other people live. I wanted to clarify that.
Senator Peterson: One of the major issues seems to be the definition of "navigable waters." The officials told us that one of the reasons they want to do this is to eliminate the backlog of applications and to stop the flow. It is not just a static thing; they have 2,500 now, but more come in each month. They also say that they have not developed a template or defined what that is. Do you think your group would be asked to be a part of that? Is there any chance of common ground here?
Mr. Green: Let me start by saying that that does not rectify the point that Mr. Mattson made so eloquently, that it changes it from a right to a privilege. Given that that has already happened, if we have a chance to define what our privilege is to be, that is something we would be interested in doing. It does not change the fact that the fundamental shift from a right to a privilege has occurred.
Senator Peterson: I understand that, but the bill has already passed. I am trying to help you along here as we move forward.
Mr. Green, you said that you understand that with navigable waters you have to build culverts and bridges where necessary. How would you define that? How big does this structure have to be? Do you sit in the canoe? Can you bend down or do you have to be standing up?
Mr. Green: You need to be able to paddle your canoe through it, and usually you sit when you paddle a canoe, although sometimes you crouch to get under a branch. That would be pretty straightforward.
Portage is a part of navigation. The portage is lost in the example I gave of the Credit River where the river is severed. If you do not look at it carefully and do not have the portage, then you start to slice up the public aqueous highways.
Senator Peterson: I asked because in Saskatchewan a mining company was required to build a structure large enough for a person to stand up in a canoe and go through. Is that reasonable?
Mr. Green: It might be, taking into consideration changing water levels.
Senator Peterson: That was a major structure, and they won an award for it because it was so elaborate.
Mr. Wood: Having been in that situation, if you are going through a culvert and you sit down, sometimes there is no flow, so how do you get your paddle over the side and push it through without standing up? I can tell you that the organization that Mr. Alexander represents has a whole discipline called poling where everyone stands in the canoe. That is a traditional style of paddling in New Brunswick and Nova Scotia.
I wanted you to understand that in many instances, even now, we teach poling as a discipline, so people are standing up.
Mr. Alexander: I have a comment on your question about common ground. On a definition, if we were to sit down and have an open, transparent discussion about such a definition, I have complete faith that we would be able to come to some common ground on the definition with my organization.
The Chair: You should keep in touch with the Standing Senate Committee on Energy, the Environment and Natural Resources. We are not elected representatives, but we are here and open-minded.
Senator Adams: We have many rivers and creeks in Nunavut. We are also concerned about navigable water. In the old days, we used the sun, the skies, the moon, the snow and the wind. That is what we used to do in the old days.
I have been involved with some of the construction. We have a short season up in the Arctic. It is the time of the year now and for another couple of months that construction will start, and they will build a road or something similar. We have to come to Ottawa to seek approval to build across a creek. Sometimes it takes two months to get the answer.
Where I live, between now and two more months, the rivers will start running and a large amount of water flows in the rivers in the spring time. Around September, there is no more flow. What can you do? If you are canoeing, sometimes rivers can go a different way. Which one will be navigable water? You want to go through a creek, but you could be end up going the wrong way because the one that you want to go on ran dry. Then you have to go down to another place or go through the lake to get into the other river again. I know you people are concerned.
My concern is for those who live in northern communities, or anywhere in Canada, especially where there are many mammals and people trapping near the creeks and so on. How will those people who trap mink, for example, be affected?
Also, people sometimes stop to fish when they are paddling on the river. If it is a place you cannot go anymore, how much are we able to reduce the number of fish if the creek is not a navigable river?
About four or five years ago here on the committee, we passed Bill C-5 related to species at risk. It came to us here in the committee. We passed that bill, and now we have polar bear hunters, big game hunters and the guiding community concerned. Now we have no more permits to bring polar bear hunters into the community. Now we have more polar bears than before, and the government has said that it is a species at risk because of climate change, and Americans are not coming anymore. The Americans have a policy on polar bear hunting, so they are not coming anymore. One polar bear for an Inuk guide hunter is worth about $30,000. One community member said that, the year before, he had 11 big game hunters with polar bear licences.
The Chair: Senator Adams, I have a dilemma: You have been going for three minutes with no question. I do not think you have a question.
Senator Adams: I am talking about water, and people are hurt too. We have Mr. Wood teaching people in the Cree language as a guide. We have a mother tongue, too. I think that is a good thing.
Mr. Wood: I will address that, if you would like.
We have a contact, Mr. Maheengun Shawanda, our Native person liaison working out of the Great Lakes Cultural Camps in Sault Ste. Marie. He has given us much input on behalf of the Native communities, Nishnawbe-Aski through to the Cree. His input is in our report here. He is quite concerned about the very people you were talking about because as we fish — and we do fish along those rivers — the fish are decreasing too. Not only that, but when you have to consult a table for mercury content before you can fish because you may be poisoning your clients, that is what I was referring to as a degradation of the water itself. I think that is also what you were referring to, senator; and, yes, we are sympathetic to that point.
Senator Sibbeston: I will take the same approach as Senator Adams: This is not so much a question as a statement. I find it good that organizations such as yours canoe the lakes and enjoy canoeing and the wilderness. It is as though you are in tune with Aboriginal people who did this as a way of life for centuries.
It is interesting in the sense that you enjoy canoeing and so forth. With the Native people who have done this for a living for so long, such as my grandfather and so forth, canoeing and using rivers as a way of life is hard work, especially going up the river. They used to track and pull canoes and scows up the rivers. I remember my uncle saying that when they got a two-horsepower outboard motor, they thought they were raising hell in the country. It was a big upgrade.
Native people now use technology to go into wilderness areas. Last summer, I had the privilege of going with my cousin, with a jet boat, up the Nahanni River. Therefore, now, maybe because we come from that pretty difficult way of life, we take on technology and use jet boats to go into areas that are really remote and difficult to get to. However, we see hundreds and maybe even thousands of people that come to the North to enjoy paddling, enjoy the rivers that we have there.
While many Native people respect and want that way of life to continue, others, particularly as kids get educated, want some development and job opportunities. Therefore, this conflict exists in the North where some people really want the North to remain the way it is, and others realize changes must occur and development is likely.
Some of us are in conflict with organizations, such as the Canadian Parks and Wilderness Society, CPAWS, who look at the North as a big park, and, if they had it their way, they would just have the whole North as a park where nothing is ever done. Then the question arises of what people do. How will Aboriginal people, particularly those who become educated, make a living? Some development is needed.
I totally respect your organizations. You are relevant for the South because the South needs people such as you. However, in the North, this is not an issue. Very little development has taken place, and all the rivers and creeks are still good. At the moment, where I live in Fort Simpson, Northwest Territories, the Mackenzie River and Liard River are on the verge of going out. Even the Nahanni is just beginning to go out. We feel fortunate that we have all of these.
Mr. Mattson: Thank you for those comments. The old Navigable Waters Protection Act had a process where the types of things you are speaking of and the types of processes to deal with those conflicts could be dealt with if it had been given meaning and force.
Let us use snowmobiling as an example. Up in the North, we have a new Moose river keeper, who is Cree. I spent three weeks up there in February. The only way to get around is on the rivers on your snowmobile. You cannot go through the woods; no roads exist. Therefore, if you build a dam, who will receive notice of when it will overflow or when they will let the water through? That has to get out to the people. Many of the trapping and hunting lines have been there for years. You have to get that information out. Is there someone out there who is at risk?
The old process let do you that. They had to notify the community — maybe in the paper — and they would perhaps say, "Hey, that is our old road. We only have water for two months of the year. We use that river as a very important link because we do not have roads." If you are thinking of building a road, for example, or a causeway or a bridge or allow someone to portage, those were the types of issues your community would have input in under the old situation.
Now, you may not even know what is happening, and when it does happen, it might be too late. The CPAWS had their chance to speak in the old process. It did not mean they got their way, but they had the opportunity to participate, as did the community and everyone. Under the new process, you may not have that chance to really bring that local flavour to the debate.
The Chair: Thank you for that. Maybe you will be soon sending BlackBerrys to all those people.
Mr. Mattson: I am trying.
The Chair: The next committee is agitating behind me. I still have one questioner left, but I would like to correct something. Earlier, I indicated that we are not elected; we are senators. However, a unique elected senator is here: Senator Brown. He has a question. Can you keep it pretty succinct?
Senator Brown: I think I can. Thanks for coming. The objections seem to be an objection by omission of what is not in the bill as opposed to what is. The bill is, after all, an act to protect navigable waters. We have 15 pages of things that a contractor or anyone else cannot do without either notice, or if they do them, they are subject to a much bigger penalty than under the old act. It was $5,000. Now, it is $50,000 per day.
I just wanted to point out that it seems, when you ask for something to be done by the minister, I do not know of a minister in the government that could handle this by himself. Senator Neufeld pointed out that British Columbia has 300,000 streams. I do not know how many this entire country has. It is incredible to think about how many there might be. I do not know how many construction projects will go on, either.
However, the system we had before was to act when a complaint was received, and I assume that is the way this one is now. I cannot imagine that every complaint will go directly to the minister. Many bureaucrats underneath the minister would be assigned to decide whether this should go to the minister.
If you do not get redress at the bureaucrat level, I would imagine there should be some way, or would be some way, to pass it up to the minister. Do you agree?
Mr. Mattson: Senator Brown, it is a good question. Does the minister or his staff have the resources to give the old act its meaning and force, or did they need this change because they were overwhelmed? However, that was never the reason given to change it because clearly they could have changed the Canadian Environmental Assessment Act to do that, to take many of those responsibilities and exempt some of these projects.
The act had worked, and every community, if their water flows would be changed — they would get more or less flow, they could not paddle up it, et cetera — each and every time, that community had the right to speak to the government that would give that right away to someone else to do something to their community. It is the responsibility of the federal government to ensure that law is given meaning and force.
As a federal government, we really need to ensure our systems have those rights and that these are worked out in the best interests of everyone and that those rights are protected.
That will not happen in the new act. It is as clear as section 5.1(1) says, that the decisions can be made without going to those people. That is new. That is not something that any other Western nation that we can find has. It is a power completely given to the executive committee, and we will stand alone in democracies who have taken away that right to navigate. That is why we are so irritated and why we are here today speaking on behalf of our constituents.
Senator Brown: Under the old act, the maximum penalty was $5,000. Now, it is $50,000 per day. Under the $5,000 penalty, anyone who wanted to obstruct or construct on the old streams could do so. I do not know how the Don River got to be non-navigable, but I imagine the penalty was $5,000.
The Chair: You have heard Senator Brown's question. Ms. Tully, could you perhaps send us the response through the clerk? I really have to thank you very much. Two of our star questioners are not even here this morning, and we have gone right to the limit. Thank you very much. You can see that we are engaged in your debate.
(The committee adjourned.)