Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 30 - Evidence - November 1, 2012
OTTAWA, Thursday, November 1, 2012
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:03 a.m. to examine the subject-matter of those elements contained in Divisions 4, 18 and 21 of Part 4 of Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.
Senator Richard Neufeld (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Richard Neufeld. I represent the province of British Columbia in the Senate and I am the new chair of this committee.
I would like to welcome honourable senators, members of the public with us in the room, and viewers all across the country who are watching on television. I will now introduce the senators who are members of the committee around the table today, beginning with the deputy chair, Senator Grant Mitchell, from Alberta. We have Senator Bert Brown with us from Alberta, Senator Judith Seidman from Quebec, Senator Wallace from New Brunswick, Senator Patterson from Nunavut and Senator Baker from Newfoundland.
I would like to welcome Senator Ringuette, from New Brunswick. She is a new member of the committee.
As well, we have Senator Dan Lang from the far away Yukon, and Senator Paul Massicotte from Quebec.
Our very able clerk, Lynn Gordon, is here, as are Sam Banks and Marc LeBlanc from the Library of Parliament.
On October 30, various committees of the Senate were authorized to examine the subject matter, in other words conduct a pre-study, of Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, introduced in the House of Commons on October 18, 2012, in advance of the said bill coming before the Senate.
The Standing Senate Committee on Energy, the Environment and Natural Resources was authorized to conduct this pre-study on those elements contained in Divisions 4, 18 and 21 of Part 4 of Bill C-45.
To be clear to those present and to our listeners through the World Wide Web and on CPAC, the divisions under study by our committee are, first, Division 4 of Part 4, which would amend the Fisheries Act and some clauses of Bill C-38 — which was an act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures — which received Royal Assent on June 29, 2012. Relevant to that act but not yet in force, in four areas, are the following: obstruction of fish passage, allotment of fines, the definition of Aboriginal fisheries, and transitional provisions for existing permits for killing or harmful alteration of habitat.
Second, Division 18 of Part 4 deals with the Navigable Waters Protection Act, an act that is under the authority of Transport Canada. Among other things, the proposed amendments would rename the Navigable Waters Protection Act to the Navigation Protection Act and limit its application to those navigable waters listed in Schedule 2 of the act.
Third, Division 21 of Part 4 deals with amendments to the Canadian Environmental Assessment Act. The various committees, including our own that are authorized to examine the subject matter of particular elements of Bill C-45 must submit their final reports to the Senate no later than November 30, 2012.
Honourable senators, yesterday your office should have received a package, which you hopefully have with you today, containing the briefing notes that were distributed. I will not read them all, but today I am pleased to welcome officials from the three primary departments affected by the proposed amendments in these divisions to Bill C-45.
I would like to remind witnesses that for the interpreters, remember not to read too fast. I am sure you are all aware of that.
The other thing that you will notice is that we are trying to go as paperless as we can in this committee. We are the environment Committee, so you will see a number of senators, especially Senator Mitchell, on his iPad. It is not because he is not paying attention. It is because he is writing things on there that I can see from here, and I will make sure that he has the right notes written down.
We will start with Fisheries and Oceans. We have Kevin Stringer, Assistant Deputy Minister, Ecosystems and Oceans Science Sector; and Jeff MacDonald, Director General, Legislative and Intergovernmental Affairs. Then we will go to Transport Canada, and we will have Nathan Gorall and Ekaterina Ohandjanian. Third, we will go to CEAA, with John McCauley, Director, Legislative and Regulatory Affairs Division; and Steve Mongrain. We are going by order as they are in the act. It is a little different than on the schedule, but that is why we chose that order.
Kevin Stringer, Assistant Deputy Minister, Ecosystems and Oceans Science Sector, Fisheries and Oceans Canada: Thank you very much. I have a few minutes of opening remarks and then I am happy to answer questions with respect to the proposed changes to the Fisheries Act that are in this bill.
It is my pleasure to speak to you and answer questions about the proposed further amendments to the Fisheries Act contained in Bill C-45. These proposed amendments are pursuant to the Fisheries Act amendments that were made in the former Bill C-38, the Jobs, Growth and Long-term Prosperity Act that was passed in June.
Specifically, the proposed amendments in Bill C-45 are very targeted and focused. There are very few of them, and for the most part they are to provide legal clarity and more legal certainty regarding some of the Fisheries Act amendments that were approved in June.
The former Bill C-38 is the context for this act. You will recall that the original amendments to the Fisheries Act provided for a regime that focused on protecting Canada's commercial, recreational and Aboriginal fisheries; provided protection from serious harm to those fisheries; addressed managing threats to those fisheries from challenges to habitat to aquatic invasive species and from other threats; provided enhanced tools for compliance and protection of those fisheries; and enabled partnerships with provinces, territories, conservation groups and others so that our work can be better aligned with their work and we can get better results in terms of fisheries protection.
The amendments in this bill for the most part seek to provide greater legal clarity and greater legal certainty with respect to a few of those elements. I should note that most of the significant changes that were included in the Fisheries Act amendments passed in June have not yet come into force. Some of them have come into force, but the big changes have not. It is proposed that should the further amendments proposed in this bill be adopted, they would come into force at the same time as the previously approved amendments come into force.
[Translation]
This initiative amends the Fisheries Act and the Jobs, Growth and Long-term Prosperity Act to provide legal clarity to previous amended sections and to provide a transitional authority for existing authorizations for harm to fish habitat.
For example, an addition was made to section 40 to direct all fines collected under section 40 of the Fisheries Act to the existing Environmental Damages Fund, to be used for proactive initiatives to further advance the protection of Canada's fisheries.
[English]
There is a proposed amendment to the definition of ``Aboriginal'' with respect to fisheries, which replaces the term ``subsistence'' with the term ``purposes'' set out in a land claims agreement to ensure that we are clearly capturing the responsibility to protect fisheries that are defined in current and future land claims agreements.
With respect to fish passage, section 20 and section 29 fish passage provisions of the Fisheries Act are proposed to be amended to provide greater clarity that the section 35 prohibition, the main prohibition in the Fisheries Act, clearly applies to any obstacle to fish passage. There are transitional provisions to clarify that an authorization provided under the previous act applies in the current act and that the conditions of the authorization may be applied consistent with the new provisions of the act.
That is a high-level overview of the changes, and I am happy to take any questions from senators.
The Chair: We will keep the questions until everyone has made their presentations, at which point senators are allowed to ask any one of you questions they may have. I would like to now go to Transport Canada and Mr. Gorall.
Nathan Gorall, Director General, Navigable Waters Protection Task Force, Transport Canada: Thank you for this opportunity to clarify the objectives and benefits of the bill. As you know, amendments to modernize the Navigable Waters Protection Act were introduced in Parliament on October 18 as part of the new Budget Implementation Act. I want to spend a couple minutes walking you through some of the rationale and some of the provisions of the act.
All levels of government, industry and small private builders have long complained about delays in getting projects approved under the Navigable Waters Protection Act, not only because of the time involved, but also because of the extra costs associated with waiting for approvals. They question why, if the objective of the act is to support trade and commerce, that current regulatory burden creates so many obstacles to commercial navigation. To address this issue, it is important to go back in history and reflect on the evolution of the NWPA.
Under the British North America Act, the federal government was given exclusive jurisdiction over shipping and navigation. This gave it the authority to establish the Navigable Waters Protection Act or what you will hear us refer to as the NWPA for short. When the legislation was originally created back in 1882, it was designed to approve infrastructure projects in waterways that support trade and commerce. It set out to balance the efficient movement of commercial marine traffic with the need to construct works that might otherwise obstruct navigation.
In fact, the first act was called ``An Act respecting Bridges over Navigable Waters constructed under the Authority of Provincial Acts. The original title gives clear indication of its objective; it allows critical infrastructure to be built, such as bridges and dams and wharves.
I want to emphasize this point. In essence, what the NWPA does is makes it legal to construct projects that might otherwise infringe on the public's navigation rights under common law. The common law right of navigation, which has been in place since the time of the Roman Empire, protects free and unobstructed passage on navigable waters.
Over the past century or more, the courts have interpreted the question of navigability generously. Today, if a waterway is navigated, even by a canoe, any works constructed in those waters become subject to the act. This has dramatically expanded the scope of application of the NWPA far beyond commercial navigation.
The legislation is now applied to all waters, even brooks, streams and other waters that are not normally navigated commercially. All kinds of small projects with no impact on navigation or on waters that are of limited or negligible recreational navigation use must now be reviewed by Transport Canada. The result is a huge backlog for the department.
Back in 2008 and 2009, parliamentary committees examined this act, including the Senate. Provinces and municipalities particularly asked that waterways not heavily navigated be excluded from Transport Canada's oversight. The department also supported an overhaul of the act, calling for a more streamlined, modern regime that would reduce unnecessary project reviews.
In 2009, some incremental improvements were made. Primarily, the Minor Works and Waters Order came into effect. As a result, low-risk works to navigation can be built as pre-approved. This would refer to things like docks and boathouses. Interestingly enough, and this is a critical point that I want to make, in the three years since we introduced those amendments in 2009, the department is not aware of a single complaint that has arisen from the result of those orders.
Despite this improvement, Transport Canada still faces a considerable backlog in applications, with the resulting delays and uncertainty that discourages public and private sector investments. Because of this, municipalities, provincial and territorial governments, industry and small private builders have all urged us to make substantive changes to the act.
The Federation of Canadian Municipalities has provided numerous examples of delays in building critical infrastructure that have resulted in significant additional cost. Frequently, these complaints come from small communities with few taxpayers to pick up the tab. Alberta municipal representatives have told us they are responsible for 9,700 bridges in the province. Many of these cross small waterways which create a need to seek approval from Transport Canada before repair or replacements, and these problems affect the entire country.
For example, if Transports Québec wants to change a guardrail and repave a bridge that happens to cross over a navigable stream, the act requires a formal NWPA review, which, it could be argued, unnecessarily delays the project.
Currently under the act, if the Maryland bridge in Winnipeg collapses over the Assiniboine River due to spring flooding, the authorities cannot legally rebuild that without first receiving approval from NWPA or from the program.
It is not just big builders who are asking for these changes. We are still approving hundreds of docks and boathouses each year. Even after the minor works order was put in place, there is a single lake in Alberta for which we have approved 80 docks over the last three years alone. On average, because of the backlog, it has taken us about a year to process each of the applications for those docks. For this reason, the majority of groups that frequently submit applications are calling on us to reduce regulations and speed up approvals.
There are other concerns with the act we were not able to address in the 2009 amendments. One issue that was brought to our attention was the need to beef up fines and penalties for individuals or groups that skirt the law.
I want to talk a little bit about the specifics before I turn it over.
The new legislation addresses these issues. It will streamline and update the act to make it more responsive to navigators and builders who operate in and around Canadian waters.
There are four key elements to the proposed plan. First, we are focusing our time and resources only on Canada's busiest waterways. The amended legislation would clearly define the waterways where regulatory review is required prior to beginning construction of a project. The requirement for approvals would only apply to works considered likely to substantially interfere with navigation. This would let us zero in on bodies of water that are the busiest or most heavily navigated in the country. This determination is based on statistics that indicate high levels of either recreational boating or freight movement. This change would enable us to review projects thoroughly on these important waterways, ensuring they comply with all the requirements of the act.
That said, governments and developers will not have carte blanche to build whatever and wherever they please in unlisted waterways.
As I said earlier, navigation rights have been protected under common law for centuries. This right of navigation will continue to protect boaters and other recreational users for those who cannot reach agreements with their neighbours on shared waterways.
The second major element of the plan is to expand the class of minor works eligible under the Minor Works and Waters Order. This would permit more low-risk projects to be pre-approved because they pose very little or no impact on navigation.
Third, builders planning construction projects in unlisted waterways could opt into the legislation, if they chose. They would request that the minister review and, if appropriate, approve the work in the same way that projects in listed waterways would be. The advantage would be greater certainty about building in unlisted waterways.
Fourth, and finally, the name of the legislation would be changed to the Navigation Protection Act to reinforce that the act is focused on protecting navigation.
I want to note that there are still eight other acts within Transport Canada alone that protect marine safety and marine navigation, including the Canada Shipping Act. There will not be a deterioration of public safety in any way.
With that, we would be pleased to try to answer any questions you may have.
The Chair: Thank you very much.
Third and last, John McCauley and Steve Mongrain are here from the Canadian Environmental Assessment Agency. I do not know if you both have comments or if just one of you does.
John McCauley, Director, Legislative and Regulatory Affairs Division, Canadian Environmental Assessment Agency: Thank you very much. It is a pleasure to be here this morning to present to you and to answer questions on the proposed amendments to the Canadian Environmental Assessment Act. I have a few comments. I will walk you through the amendments, and we will be happy to answer your questions.
As you know, Division 21, Part 4, makes a number of minor, technical amendments to the Canadian Environmental Assessment Act 2012. As you also may know, that act came into force on July 6 this year.
[Translation]
Clauses 425, 426, 427, 429 and 431 are intended to ensure concordance between the French and English versions of the act. Clause 428 corrects an oversight with respect to conditions that can be put in a decision statement.
[English]
As you know, at the end of an environmental assessment, a decision statement is provided to the proponent of a project. This statement sets out the conclusion as to whether the project is likely to cause significant adverse environmental effects. It also sets out conditions that are binding on the proponent. These include mitigation measures and the requirements for a follow-up program.
The amendment proposes broader language — ``must include'' instead of ``are'' — with respect to the conditions to ensure that a decision statement can include administrative requirements, such as reporting on the implementation of mitigation or providing information on monitoring and follow-up.
Clause 430 clarifies that the obligation for federal authorities to ensure that their actions with respect to projects on federal lands do not cause adverse environmental effects is limited to the environmental effects caused by the components of the project that are situated on federal lands.
Finally, clause 432 proposes to close a loophole in the transition provisions. Currently, there is potential for a project to be exempted under the transition provisions, even though it would have required an environmental assessment under the former Canadian Environmental Assessment Act and would normally be subject to the new act. This change would subject a designated project, exempted under the current transition provisions, to the requirements of the new act if, before January 1, 2014, it is determined that the project requires a federal decision that would have triggered an environmental assessment under the former act.
Those are the eight proposed amendments to the Canadian Environmental Assessment Act. We would be happy to answer your questions.
The Chair: Thank you very much.
I have two quick questions to start with, and then I will defer to the deputy chair, Senator Mitchell, for his questions.
Do we have some idea of what the fines that will go to fisheries will amount to? How would they be allocated after that?
Mr. Stringer: The section 40 amendment that we are proposing is to require the funds from any fines to go to what is called the Environmental Damages Fund instead of to the CRF. It has been possible for that to happen in the past, but it would be up to the court to decide that it would go there. Two or three issues are important in considering what the opportunities are here. One is what kind of fines are collected. From year to year, it is different. The fines under the former Fisheries Act had no minimum and a maximum of $300,000. Under the proposed changes that were in Bill C- 38, they are significantly higher. There is a minimum penalty of $5,000. There is a gradation from first offence to second offence to third offence, et cetera, and there is a difference between penalties that are applied to large corporations, to small corporations and to individuals.
It is difficult to tell how much will be collected in the future, but in the past the fines have ranged from $500 to $10,000 on average. There have been some very substantive fines with a maximum, I believe, of $300,000. We have had anywhere from 9, I think it was, in 2010-11 to 32 in 2004-05. Those are the types of numbers of fines that we often had that could apply here.
The Environmental Damages Fund is a special purposes account established to enable funds from fines — not just from the Fisheries Act but also from different acts — to go to restoration projects and projects related to what the fine is about. There are some examples that have been applied in recent years. I point to one, a couple of years ago, where a B.C. development corporation pleaded guilty to illegal alteration of fish habitat and received a fine of over $300,000. The reparation went to the Shuswap Lake area, and $70,000 went to the Fraser Basin Council to be able to do specific work on restoration related to that area.
There are other examples across the country, but the idea is to ensure that the fines for violations around fisheries protection are applied to restoration and to fisheries protection. They go to the Environmental Damages Fund, which is managed by Environment Canada, and then it can go out to specific groups, to watershed groups and others that actually do fisheries protection work.
The Chair: Just to clarify that a little bit more for me, if there is a fine — and I use an example of $300,000 — to someone for doing something, would that money first be directed to fix what took place, or is the owner or the person who actually infringed in the first place responsible for fixing what they have ruined?
Mr. Stringer: If someone is found guilty of an infraction, often the judge will say ``You must fix this.'' They will be directed by the court to fix it specifically in the area, and then there is a fine on top of that. That fine is what would go to the Environmental Damages Fund, and it does get applied to restoration work, to work around fisheries protection in this case.
The Chair: When you say ``the court,'' does it always end up in court? Has that been the experience?
Mr. Stringer: With respect to a fine, yes; those things will go to court when we charge someone. They will defend or not defend, but the court will apply a fine.
The Chair: For a smaller fine, let us say for an individual, they are not going to go to court. There is no way that you can fight the government. That has been well known for a long time. You can go broke pretty fast doing that.
Would that money that an individual was fined for doing something negative to fisheries just go into the fund, and would it be decided where it would be spent?
Mr. Stringer: That is correct.
The Chair: I think Senator Lang has a supplementary.
Senator Lang: I just want further clarification on the amount of money projected per year. Looking at the last number of years, with the fine schedule that was in place, you said 9 and 32. Do you mean $9,000?
Mr. Stringer: I mean 9 cases where fines would be applicable and 32 cases in another year. It depends each year what kinds of fines are collected and how many infractions occur. Going forward, it will depend how many infractions there are.
Senator Lang: Do you have the amounts for the last three years?
Mr. Stringer: We can get that specifically. Today, I have the number of infractions and the average fine.
The Chair: My second question is about the Aboriginal clause and changing it from ``sustenance'' to ``fish for food.'' I believe that is the change. Does that change bring about any discussions from First Nations? I understand you are saying that it refers to land claims agreements, but in the province I come from more than 200 bands do not have an agreement, although we are working hard to try to get them. I believe that is the most of any province in Canada. Does that change have any effect on First Nations that do not have land claims agreements?
Mr. Stringer: The definition provided, which was passed in Bill C-38, basically said, ``Aboriginal with respect to fisheries includes food, social and ceremonial fisheries and subsistence fisheries.'' The proposed change says, ``Aboriginal with respect to fisheries includes food, social and ceremonial fisheries and anything else included in a land claim.'' The reason we had the word ``subsistence'' in the previous version is that the word appears in land claims. Our proposal to change it to anything that appears in the land claim is to say that there may be other things in the future besides subsistence fisheries that may be included. We want to make sure that the protection provisions apply to food, social and ceremonial fisheries; and to anything else that is in a current or future land claim. That is why we used that language.
Senator Mitchell: Congratulations, Mr. Chair, on your first meeting as chair. I wish you had told me years ago that you cannot fight government because I have spent most of my adult life in opposition doing just that.
The Chair: Sometimes it takes longer.
Senator Mitchell: Whether you can win is another case, but you can sure fight.
These changes are in the context of many things that are heightening the urgency and intensity of people's concerns with such changes. Yesterday, we had Mr. Justice Cohen present his study on the problems with sockeye salmon. He expressed grave concern over the way these fisheries changes have been going. That is quite powerful and telling. People who are concerned open this document and find that 99.7 per cent of all rivers in Canada are not listed for protection and 99.9 per cent of all lakes are not listed, or vice versa. Anyway, many are not listed. There is real intensity and concern. It is technical, and I will go at some of that.
There are at least a couple of places and maybe more where delegation seems to be afforded in these changes. One is delegation to municipalities and to provinces, which is not a new concept but is in here again, and delegations to third parties. Could you comment on that generally? I believe that is in parts of the Canadian Environmental Assessment Act. What assessment is made of a municipality's ability to deliver on the kinds of responsibilities that might be delegated? What other third parties are being contemplated when they use that term?
Mr. McCauley: In the context of the Canadian Environmental Assessment Act a number of tools are included to help manage duplication with the provinces in particular. Provisions in the bill allow for the delegation of the conduct of the assessment to third parties. It could be to a province or other body to carry out the assessment and meet the requirements of CEAA 2012 — essentially follow the process in the legislation. There are also provisions that allow for the substitution of a provincial process or a process under a land claim or self-governing agreement for the process in CEAA 2012. In such a case, the federal process stands down and the provincial process is carried out to satisfy the requirements of CEAA 2012 and to produce the information necessary to allow the decision maker to make a decision; in this case the minister to issue his decision statement.
Senator Mitchell: I thought that was already provided for.
Mr. McCauley: Yes, these changes do not affect those.
Senator Mitchell: Why are they being made? Of what consequence are they?
Mr. McCauley: It was an opportunity to align the original intention with the language in the legislation. In the three or four months we have had to implement the legislation, others have looked at the language and have suggested other ways to interpret what we have written; so this is to clarify the original intent.
Senator Mitchell: Clause 430 of the bill says that federal authorities will have to take action with respect to projects that are not designated — projects on federal lands — only to the extent of the components of a project that are actually on the land. That seems to say to me that if someone built a refinery — would we could do that and keep jobs in Canada — next to federal land, for example a navigable waterway, and it spilled all kinds of things into the waterway, but it was not actually on the land or only the garage for heavy equipment was on the land, would it mean that the government would have no responsibility whatsoever to check out the environmental implications of that?
Mr. McCauley: No, I do not think so. Using your case of a refinery, we have a designated physical activities regulation that specifies the kinds of projects to which the act is applied. Refineries are a type of project on that list. Also, we are required to look at situations where impacts occur outside federal lands onto federal lands from those kinds of projects. In fact, we would be able to look at the situation where impacts from a designated project occur onto federal lands.
Senator Mitchell: With respect to the question of delegation, there is delegation under the navigation act. Is that true? How will you assess the ability of whomever you delegate to have the resources to manage that work?
Mr. Gorall: There are a couple of opportunities for communities or local authorities to interact with the minister with respect to the amendments that we are proposing. One is in the list of waterways that provides for a local authority to nominate a waterway that by regulation the government could add to that list.
The other way is for the minister to delegate his or her authorities under the act to a local authority if they can reach an agreement and the minister is satisfied that the authority has the resources and the intent to implement the act on behalf of the minister. I would add that the minister has the authority to delegate some of his or her authorities over to other bodies, for example another Crown agency. One could think of, say, a port. In that case, if an agreement is reached the authorities could be delegated to that authority.
Senator Mitchell: You wonder if the minister will be left with anything to do at all.
There was a time when a federal environmental assessment was triggered by virtue of something being assessed under the Navigable Waters Protection Act, and I think that was pretty much excluded so that a NWRA action or process does not trigger a review. It seems to me that you could be building a non-designated project that could affect fish habitat, even in the more limited way that the most recent changes ended up requiring. The non-designated project is on a non-listed navigable waterway and will affect fisheries or someone has a suspicion of that under the Fisheries Act. How would we trigger an environmental review of those fishery implications?
Mr. Stringer: In the case where it does not trigger the Canadian Environmental Assessment Act but impacts the fisheries, the Fisheries Act basically says that if there is impact on commercial recreation or Aboriginal fisheries, it requires an authorization under the Fisheries Act.
You would require an authorization from our minister under section 35, which we passed in June. It is the prohibition that basically says you cannot have any undertaking work or activity that causes harm to commercial recreation or Aboriginal fisheries, or the fish that supports such fisheries. Regardless of whether there is environmental assessment, they need authorization under the Fisheries Act if they cause serious harm to a commercial, recreational or Aboriginal fishery. It may not necessarily be a full environmental assessment, but we would look at the fisheries aspect.
The Chair: Do you have a supplementary to that?
Senator Patterson: I do. With great respect to our deputy chair, he said in his first question that 99.7 per cent of waters are not protected.
Senator Mitchell: I said ``not listed.''
Senator Patterson: You said listed? I thought you said protected.
Do I understand that the Navigable Waters Protection Act was really not about protection of waters but about protection of commercial navigation? It was properly named when it first was introduced as respecting bridges over navigable waters. A lot of people are confused that we are eroding our protection for water, whereas in fact it has always been about navigation, and there are protections of water relating to navigation under the common law. Is that correct, and was the act really wrongly named when it was called the Navigable Waters Protection Act?
Mr. Gorall: I certainly cannot speak to decisions made in 1882, but I would argue that most of what you said is pretty accurate. The one area I want to clarify that is commonly misunderstood is that the act, when it was created in 1882, was not created to protect navigation; it was actually created as a statutory exception to the common law. Bridges were being built over very busy waterways across the country and were starting to become a little bit of a conflict.
To clarify this, because the federal government has exclusive jurisdiction over shipping and navigation in the Constitution, it was the federal government that introduced an act that would allow some exceptions to interference with navigation. That is what the act does. The rest of what you have described is absolutely accurate. The issue we found was that if it was not called the Navigable Waters Protection Act, it does not create the concept of protecting the waters themselves in the minds of Canadians. I am not in a position to speak on behalf of other departments, but what we have been focusing on in 1882, and what we would like to continue to focus on, is allowing exceptions to the common law right of navigation to allow good projects to proceed. It is not about the environment or quality of drinking water; we are focused solely on navigation.
Senator Baker: I would like to congratulate the witnesses on their presentations and also to welcome you as the new chair of the committee. After having served for about a decade as the Minister of Energy for the Province of British Columbia, you are well-suited to be the chair of this committee.
You will notice that the supplementary questions have come from the former Premier of the Northwest Territories, Senator Patterson, and a former cabinet minister from the Yukon of several departments. Hopefully we can keep these senators in order in asking their supplementary questions. It is just because they have had to administer these subjects for so many years and they do add to the committee.
I have one main question, and it involves what is in every newspaper today in Canada from the judicial inquiry in British Columbia as to what happened to the salmon that have to migrate up rivers to spawn, their disappearance, and the expression from Judge Cohen about these particular amendments going through now.
I imagine Mr. Stringer probably spent a sleepless night trying to find the appropriate words to describe these amendments. However, we assure you that you are the messenger, and we are not going to attack the messenger. Let us just for one second look at the change that is made. Under the previous bill, Bill C-38, under General Prohibitions under the Fisheries Act, 26 and 27 of the act were eradicated, wiped out. The heading to section 26 is — and thinking about salmon going up rivers — ``Main channel not to be obstructed.'' Section 26, now taken out of the law, said:
One-third of the width of any river or stream and not less than two-thirds of the width of the main channel at low tide in every tidal stream shall be always left open, and no kind of net or other fishing apparatus, logs or any material of any kind shall be used or placed therein.
Now under this act that is being brought in, that section is being supplanted into 29(1)(b). It reads:
No person shall erect, use or maintain any seine, net, weir or other fishing appliance that . . . obstructs more than two thirds of the width of any river or stream or more than one third of the width of the main channel at low tide of any tidal stream.
What happened to the logs? What happened to the other materials that were identified here? Logs or any material of any kind shall be used or placed therein?
This is my main question. You have left out the logs and you have left out all of the other materials and you have replaced it just with fishing gear.
Mr. Stringer: The reason that these changes are proposed from the former Bill C-38 is to clarify that logs and dams and other barriers are addressed under section 35. The section 35 prohibition applies to any obstruction, including logs, dams and other barriers.
When that legislation came out in June, there was concern from some of the stakeholders who said, ``Wait a second here, you have a prohibition under section 20 that says thou shalt not and no authorization scheme.'' We said the authorization scheme is section 35. We were hearing that is not clear.
We removed that section and then our fish managers said we absolutely need that section to ensure we will not have people putting a net across the river. Therefore, we moved it into this fish management section. However, the logs and any barrier or any obstacle are addressed under section 35, which says that you cannot cause serious harm to any commercial, recreational or Aboriginal fishery or any fish that supports such a fishery, unless authorized. That is the authorization scheme for dams, logs and other things. We wanted to ensure we had something specific in there for fish management and nets.
Senator Baker: However, it does not cover any fish not covered by those three distinct areas and the fish that live there.
Mr. Stringer: You are absolutely right; it is any commercial, recreational or Aboriginal fishery. The other thing is we were asked about the consequence of making this change. How many times have we used that section in the last 20 years? We have not used that section, except for the purpose of fisheries management. We were saying it is section 35 that applies anyway, and this just clarifies that.
Senator Baker: I can understand what you are saying. You put forward a logical explanation, but it still leaves vacant the possibility of completeness, as far as conservation is concerned, of species that are not specifically licensed for which a licence is sought.
My supplementary question to what you have said is this: I agree with you that the word ``obstruction'' under section 2 of the Fisheries Act is defined as ``any slide, dam or other obstruction impeding the free passage of fish.'' However, under the section you have now introduced, it says ``obstruction referred to in paragraph (1)(a) or (b).'' What are those paragraphs? You have left out the logs and the other materials and you have replaced it only by fishing appliance.
Mr. Stringer: That is the purpose of that section. The obstruction items that are in the definition of ``obstruction'' in section 2 would be caught in section 35.
Senator Baker: Only for those specific species.
Mr. Stringer: The focus is on commercial recreation on Aboriginal fisheries, the fish that support those fisheries and serious harm to those fish, yes.
Senator Baker: That was excellently put, Mr. Stringer, and thank you for clarifying that.
Senator Lang: With respect to the question of the changes to the fisheries, I do think that the intentions of the department are valid with respect to bringing forward changes to clarify the fisheries and the act because in the past I do not think it is any secret that there was a lot of confusion. Subsequently, a lot of individuals having to comply with the Fisheries Act were not clear as to exactly how it affected them and what they had to do. That also goes for the navigable waters and this plethora of acts that apply to an individual organization that is trying to do something in a constructive way as far as their community is concerned.
I want to ask a number of questions. I want to go back to the Aboriginal fishery, and I want to get this clarified for the record.
During the hearings last year, there was some confusion as to whether the act the way it was written was going to bring into question how one applied to go into the commercial fishery, whether you were Aboriginal or non- Aboriginal. That, of course, brought concerns forward with respect to the question of managing the fisheries and who was responsible for them.
I just want to get it clarified for the record. Does this section, the way it is amended, clarify the act as it applies to the Aboriginal fishery and the commercial fishery so that there is no confusion and we do not get into a situation where all of a sudden, because of the way the law is written, we see further commercial ventures going into the fisheries for which they were not intended?
Mr. Stringer: I think it does. What I should say in addition is there are three definitions of note that relate to this in section 2. Recall we are seeking to provide protection to commercial, recreational and Aboriginal fisheries. ``Commercial fishery'' is defined as a fishery that is harvested under a licence associated with sale, barter or trade. ``Recreational fishery'' is defined in a way in which we wanted to ensure we are protecting commercial fisheries and recreational fisheries.
We know there are Aboriginal people and Aboriginal groups that fish as part of the commercial fishery. We also know that those two definitions do not pick up on everything we want to protect. We used the term ``Aboriginal'' with respect to fishing as we needed to pick up what is additional to commercial fishing and recreational fishing, regardless of whether it is done by Aboriginal groups or not. We had food, social and ceremonial fisheries. Then, the word ``subsistence'' caused confusion for some people in that it gives a certain focus. Our thought was it probably did not, but for purposes of clarity, we determined anything that is covered under a land claim; if there is a fishery identified under a land claim, that is something we want to protect. We do think it helps in that discussion in terms of clarity.
Senator Lang: I just want to get it clear. Therefore, the system in place prior to the amendments brought forward last year will basically be in place as it was before? There was some confusion with the way the act was going to be interpreted with the changes that were put in last time.
Mr. Stringer: I believe that this will assist in terms of resolving that.
Senator Lang: It gives those individuals in the commercial fishery some comfort. Is that correct?
Mr. Stringer: In my view, it should.
Senator Lang: I will move on to another area. That is a question about navigable waters. I personally think this is long overdue. I think your comments at the beginning, Mr. Gorall, were poignant in the fact that there has not been one complaint in three years with the changes that were made in 2009. If I am not mistaken, the sky would be falling, according to some senators around this table, if we went with those amendments.
I want to express a concern I have with navigable waters. I am from the Yukon. The Yukon River is under that schedule of 97 waterways. There is also the Stewart River, and it is almost as large as the Yukon River. I want to get it clear in my mind as to how this works.
If there is to be a major undertaking on that river and an individual builder contracts to put in a dam. Under what I read here, I believe the builder can apply to have that waterway put under the new act, the Navigation Protection Act.
What I do not understand is why does the province or territory not ask for that designation versus the builder? They are the ones who are ultimately responsible, from a regional point of view, for the overseeing of such construction and probably financing for part of that construction.
Mr. Gorall: I have a couple of points. First, you are right in the sense that a lot of the builders we deal with are provinces and municipalities, crossing streams and rivers throughout the country, obviously not just in the Yukon.
Let me take a step back. What we have done with many of these changes, we are putting the onus back onto the builders to take responsibility for something we think is appropriate. Provinces and municipalities and industry have told us for a long time that they understand how to construct and accommodate navigation, so let us do so without having needless paperwork and dealing with delays of upwards a year or two, sometimes even three years, to get a project done. We will accommodate the navigation.
In part, we are saying okay, when you are building, you must accommodate navigation. If you are in an unlisted waterway, you better build it correctly because if you do not, all the material we put on our website about how to build responsibly and how to not impact navigation will be there not only for the builders but also for the folks who use the waterway. The users of the waterway will be aware of the common law and the impact on them as a boater or a user of that waterway if that builder builds a dam across that river you have described.
In that scenario of a dam that will significantly impede navigation on that river, if they cannot work that out and they cannot accommodate navigation through there, a court may consider having that dam torn down. I certainly cannot speak for a court; I am not a lawyer. It is in those scenarios that we have determined it is the onus of a builder to come into our regime, if they want to, and we will treat them as if that particular project were in a listed waterway and put all sorts of terms and conditions on that approval, as if it was on the St. Lawrence Seaway.
Senator Massicotte: On the same point, Mr. Gorall, from what I read in the act and the amendments to the act, let us say in that case you did not agree with the decision of the municipality, or even, as I understand, give authority under a certain section of the act to so construct, the minister still retains their right to say ``I messed up, I was not involved, out with the ban, you must remove it.'' Am I correct in saying that?
Mr. Gorall: Yes and no. There is a way that the minister could make a change. Say it is a private sector developer. I know that we are playing with hypotheticals here, but it is a private sector developer. The territory or the local community would have the ability to go in and get remedy under the court systems if that builder did not opt in. I would suggest that most of the legal counsel around that firm would be strongly urging that company to opt into our regime to give them protection from the common law. Under that scenario, if they did not opt in, the community — potentially the AG from the territory — could submit a case for public nuisance, or an individual could put in for blockage of the public right to navigation.
Senator Massicotte: When you say ``opt in,'' they ask for permission? Is that what you are saying?
Mr. Gorall: What I am clarifying is that the builder says, ``I think that I will impede navigation. I believe that I am carrying a serious risk of impeding navigation, a common law risk or the risk of a public nuisance charge. I would prefer to go in, meet with Transport Canada officials and have them review the projects and apply whatever terms and conditions they want to reduce the risk that somebody would successfully bring me to court.''
Senator Massicotte: Let us say that they did that, and you gave authority. However, you learn, with experience, that you messed up; you should not have given that authority. You are saying that you still have the right to make amendments but that then it is like an expropriation, and you must pay compensation? Is that what you are saying?
Mr. Gorall: No, what I am suggesting is that the builder, in an unlisted waterway, is concerned about their impact on navigation.
Senator Massicotte: Let us say he opts in.
Mr. Gorall: Once that person has opted in, it is no different than if somebody is building a bridge across the St. Lawrence Seaway.
Senator Massicotte: You have authority to make amendments, but then you are financially responsible for the consequences I presume?
Ekaterina Ohandjanian, Legal Counsel, Transport Canada: You would have opted in because you are not in a listed waterway. The moment you opt in, what happens is that you are subject to the entire regime. If we want to go into the hypothetical situation where the minister has made an error in how the navigation impact assessment is made, there are authorities in this amendment package to allow the minister to go back in and rectify the situation. It is not a question of compensation. It is more a question of safety.
Senator Lang: I would like to go a bit further on this. I do not want to belabour it too long.
What is the definition of a builder, going back to the bridge or the dam? The Yukon Energy Corporation is the agency that has bid for that particular project. Are they classified as the builder, or is it the contractor?
Ms. Ohandjanian: The concept of builder is a colloquial term that we are using just to discuss the examples.
The ``owner'' is the definition used in the act, and that is broad enough to include anyone responsible for the work. As a result, your example of the Yukon Energy Corporation, would be subject to the act, as is the case with the municipality or the territory that ends up owning the infrastructure.
Senator Lang: Practically speaking, in any of these provinces or territories, the reality of it is that it will be the regional government or the municipality that, 99 per cent of the time, are the owners of these particular projects because they are generally in public waterways. It is not private development. Is that not correct when you look at it pragmatically?
Mr. Gorall: I do not want to assign a percentage, but clearly the majority of the applicants are governments or large industry.
Senator Lang: We can take some comfort that the regional governments will be involved in projects of this nature so that they will see the necessary guidelines to ensure that navigable waters will be protected in a practical manner. That is what I take your comment to mean.
Mr. Gorall: We actually met with every single province and territory prior to introducing this bill. We discussed the waterways that were listed. I am certainly not in a position to speak for any individual province or territory. I will let them speak for themselves.
The reaction that we got was very supportive, not only of the list of waterways but also of the amendments that we are introducing, for the reasons that you have cited.
Senator Lang: I think that clarifies it, Mr. Chair.
The Chair: Further to that, I think there is an awful lot of large industry that will be applying for those permits, whether it is the oil and gas industry or the forest industry. They build temporary bridges, ice bridges and all kinds of things to actually get at resources, while provinces and territories do not constantly build roads or dams.
[Translation]
Senator Massicotte: I do not know much about this area, but Division 4 says that at low normal tide, no obstacle may exceed two-thirds of the navigable waters. I assume that you know about this and that the fish are smart enough to know that, if there are two-thirds, there is another third left, and it will connect with the other end of the river. Why two-thirds and not one-third?
Mr. Stringer: It is really a matter of history. This section is there and has said two-thirds since the 1920s. It has always been two-thirds. I think there is no magic explanation for why it is two-thirds. However the idea is that the fish should be able to find a way. So, the two-thirds is what we have had for close to 100 years, I think.
Senator Massicotte: No one has ever challenged this proportion?
Mr. Stringer: No, I do not think so.
Senator Massicotte: It was said that the navigable lakes, rivers and waterways were chosen based on traffic and using a scientific method. However, the newspapers may lead us to wonder whether it is a coincidence that the constituencies of certain members have a protection of up to 80 per cent. What was this determination based on and was it really scientific, with no political involvement?
[English]
Mr. Gorall: Thank you for the question. The approach that we took in creating the list of waterways was to find the proxy for the busiest waterways that are used across the country, and so we used the most up-to-date data that was available to us, primarily public data, including CHS, the Department of Fisheries and Oceans. Part of what they do is chart waterways. They have a various levels of charts of service, based on how much those charts are used and how actively navigated the waterways are. We used public data on charted waterways across the country as an indicator. We looked at freight movement, which comes from Statistics Canada. We wanted to see how much freight was being moved up and down these various waterways, and we used a series of historical program data, including what we call navigation-related works.
An example of this would be, if there was a series of docks, marinas and boathouses as a type of work that we approved, as opposed to, say, a water pipeline or a hydro electric line — things that actually indicated a level of primarily recreational navigation traffic — then we weighted the waterways that way as well. Then there was some local knowledge that we included as well. We actually did some analysis with the officers in the field based on their experience dealing with which waterways are the busiest, and we had them all ranked. With that information, we created a list of waterways that compared across all of those various data sets. With a very data-driven, rigorous analysis, we produced a ranking of Canada's busiest waterways. According to the best available statistics that we have, we have listed the waterways that were the most heavily navigated across the country.
In that process, we went around the country. We met with provinces and territories and talked about the ones that we were proposing to put on that list and other waterways that might have been seen as prominent but that the data just did not demonstrate to be busy waterways. As I mentioned earlier, I am not going to speak for provinces and territories, but we were well received.
[Translation]
Senator Massicotte: The process you are describing makes me very happy, but there is no intervention of a political nature at any stage of its development. It is a totally scientific choice, based on actual facts. The bill illustrates the findings of this reasoning and no discretionary political opinion could influence the scientific results, is that correct?
[English]
Mr. Gorall: One, the bill is in front of Parliament now, of course, so there is a process to discuss. Two, it is very much a flexible document. It is not being embedded in the bill. It is a schedule to the act. There will be processes and regular reviews of that to add waterways.
[Translation]
Senator Massicotte: It has been totally scientific to date?
[English]
Mr. Gorall: One hundred per cent. I will give you an example.
Senator Massicotte: Thank you. That is what I was looking for. That is good; I am happy with the answer.
Senator Seidman: My questions have pretty much been covered by now. One of my questions concerned the criteria that you used to choose the bodies of water that fall under the new Navigation Protection Act, and you have just finished responding to that. Out of curiosity, how many bodies of water fall under the act now that you are using these new criteria?
Mr. Gorall: There are 161 listed waterways in the country. The focus on the numbers could distort the actual coverage of the waterways. Let me try to explain.
The vast majority of the waterways that we have been involved with, we will continue to be involved with. In fact, we will have more resources available to us to focus on those waterways. We will be able to monitor them more effectively than we have in the past. The Atlantic Ocean is an example of one listed waterway. Lake Muskoka is another example of a listed waterway. I would argue that those have very different distinctions and different geography around them, but those are two of the 161 waterways.
The Pacific Ocean is one of 161 waterways. If I showed you a map of Canada that colour coded all of the waterways that Transport Canada will continue to be actively regulating, the entire map would be filled with waterways.
The Trent-Severn Waterway is heavily used across the country. It actually connects two Great Lakes. We have had to break up all of those little lakes and rivers and streams for clarity in the bill, but they actually make one entity — the Trent-Severn Waterway — on which massive freight and recreational traffic takes place.
Senator Seidman: Mr. Gorall, I think you also said in your presentation that nothing in these amendments alters the roles and responsibilities of other federal departments and agencies or those of the provincial, territorial or municipal governments. That is a really important issue because the environmental protection laws are still in effect. Could you just elaborate on the details of this? I think it is important to recognize that particular fact.
Mr. Gorall: I think it is inappropriate for me to speak about other legislation. I would rather remind the committee that this Act is about navigation. It is about providing exceptions to the common law right of navigation. We allow builders to infringe on navigation a little bit. What we obviously do not want or intend to be involved with is the quality of the drinking water. It is the fisheries, the environmental protection. All of those other statutes are outside of the domain of this particular piece of legislation.
This raises a very good point. Historically, the act has been used to bring in agendas other than navigation. We have, in the past, had concerns about development. We have had concerns about fisheries, and here is an interesting one for you. We have had concerns about neighbour disputes. Our officers are involved in neighbour disputes across the country. One of my favourite examples is these water slalom courses. You can set them up on a lake. They are basically buoys for a short period of time. The cottagers will take turns racing down it, and it is all very clearly marked. This is temporary work but requires us to be involved. Fine. We are involved in this waterway. We go through and review the proposed work. It is clearly marked. There is clearly navigation around it. In fact, these slalom courses are used for navigation.
The problem is that a lot of cottagers have been opposed to this. They do not like the sound of the speedboats going by, for example.
It becomes a dispute. It takes four, five or six months to approve a water slalom course. The view of the department is that it is probably not the best use of the country's tax base to spend it on neighbour disputes among cottagers.
Senator Seidman: I think it is helpful and important to remind ourselves that just because we are making these changes in that particular aspect of the law, it does not change anything in terms of the environmental requirements. That is all still there.
Mr. Gorall: That is right.
Senator Seidman: That is great.
You all talked about the process that you went through consulting municipal, provincial and territorial governments and other stakeholders. I would like each of you to give us a few very short lines about the kind of consultation process that you went through and the kind of cooperation that you can expect going forward with these changes.
Mr. Gorall: We did not have consultations on this bill because it was a private bill. We had what I would describe as rich discussions with provinces and territories. We did not talk to municipalities in advance of this bill being tabled. It was provinces and territories.
The department has, if you go back as far as 1980 and then to 1986-87, 1990, 1995 and 2004, tried to discuss the act, the restrictions of the act and the things that it requires builders to go through. One thing that we have heard is that there was a lack of common sense in some areas. The department has been advocating for changes of a substantive nature.
In 2008, the department came to the committee in Parliament and wanted an in-depth discussion and consultation with Canadians generally.
The economic crisis of 2008-09 took place, so instead of doing a more fulsome review at that time, we took what was determined to be the low hanging fruit. However, during that entire parliamentary process, both Senate and House committees had multiple people come in who were in support of or in some instances opposed to the amendments that we made in 2009. The foundation of our work today comes from that history.
Mr. Stringer: With respect to the Fisheries Act, there is a similar story in many ways. It was part of Bill C-38. There were no consultations on the specific Fisheries Act components. However, the fisheries protection regime that it creates was the subject of very substantive discussion with stakeholders and their views about needing to change this and focus on that. We had an Auditor General's report that made some comments. We had processes with the resource industry and development industry and with conservation groups; and we had discussions with the provinces and others. All of them were on what was then called ``the habitat regime'' that we now call ``the fisheries protection regime.''
The other thing I would note is that the Fisheries Act changes, in both Bill C-38 and Bill C-45, create an approach that requires some fleshing out, which will be done by regulation and by policy. That is where the substantive discussions will occur. We had discussions about what we would like to have and we have the legislation. Now, we will discuss how we will go forward; and regulations certainly require broader public engagement.
Steve Mongrain, Senior Policy Advisor, Policy Development Sector, Canadian Environmental Assessment Agency: With respect to the seven clauses in Bill C-45 that propose to amend the Canadian Environmental Assessment Act, we have been talking with project proponents, the provinces and stakeholders as we move forward in implementing the new legislation. It is in force. We have project regulations in force and others. Frankly, the bulk of the changes in the technical nature came primarily from comments from other federal departments, including the Department of Justice, for example, which noticed that the French language concordance in some sections was not precise, if you will. The language was not as precise as it could be.
More broadly, there series of consultations and studies and reports on the environmental assessment, including work done by this committee that fed into the development of what was in Bill C-38. With respect to the changes before you now and their technical nature, nothing formal was done, as consistent with what my colleague said.
Senator Ringuette: As you heard at the start of the meeting, I am new to this committee, so my questions may be a little naive, but I need to understand.
With respect to the 161 listed waterways, a project surrounding or on or under these waterways needs the minister's approval. Is that right?
Mr. Gorall: Well, yes and no. I will use an example. Let us say you have a dock that meets specific criteria that is listed in the minister's order. If you are on a listed waterway have that dock that meets those criteria, you do not have to come to Transport Canada officials. We are out of your hair.
Senator Ringuette: Okay. Let us say that you have a medium-sized project on that waterway.
Mr. Gorall: Let us say the dock that you want to build is on the Ottawa River. It goes beyond what we have described as minor works and minor waters because you want to build a bigger dock.
Senator Ringuette: There would be an environmental assessment done by your department in order for the minister to give approval.
Mr. Gorall: No.
Senator Ringuette: Is there no environmental assessment done with regard to the minister providing an approval?
Mr. McCauley: Maybe I can clarify that. With the changes that were made to the Canadian Environmental Assessment Act 2012, we have moved from a trigger-based system, which looked at whether there was a federal decision to require an environmental assessment, to a system that bases it on a list of designated projects that might impact areas of federal jurisdiction. If the project is listed in the regulations, then the agency would be responsible for completing the assessment.
Senator Ringuette: Would the construction of a bridge be a listed project?
Mr. McCauley: It is not in the regulations.
Senator Ringuette: Is it not?
Mr. McCauley: No.
Senator Ringuette: Let us say that the minister has granted a permit. Who supervises the construction to make sure that it is done according to the regulations and the law?
Mr. Gorall: By focusing on Canada's busiest waterways, and not dealing with —
Senator Ringuette: My specific question is: Once the minister gives the authority to proceed with a major project, who supervises the project?
Mr. Gorall: You are referring to supervising on navigable waterways.
Senator Ringuette: This is with regard to ensuring that the regulations and the law are abided by.
Mr. Gorall: Transport Canada officials would do that in a listed waterway.
Senator Ringuette: Your department supervises that.
Mr. Gorall: We will provide monitoring for sure. The point that I want to make, and I want to answer your question, is that in the past, we have not had the ability to do that as well as we have wanted to do it. By focusing our resources only on Canada's busiest waterways and not being involved in some of these neighbour disputes, we will have the resources available to us to do more of that type of monitoring. To supplement that, one of the things that we are introducing with these amendments is the ability for the first time to provide what we call administrative monetary penalties, AMPs, which are similar to penalties for fisheries.
Senator Ringuette: For instance, if the work is not done accordingly, is there a fine? Is there a penalty?
Mr. Gorall: Yes. There are all sorts of authorities under these amendments that the minister will have, including requiring a stop work order.
Senator Ringuette: What is the maximum fine?
Mr. Gorall: There are two different avenues. We currently have a maximum fine of $50,000 per day as a penalty. It is significant. The problem we found with that particular provision is that the burden of proof is so high, we have never implemented it. It is an authority that we have never used, as far as anybody in the program is aware.
Senator Ringuette: Coming back to these specific amendments, you indicated that it was an opting in for the builders; and that opting in for the builders would put them under your supervision and the said fine instead of possible civil litigation by environmental groups or other entities that have not been treated accordingly. From my perspective, this opting-in provision removes civil litigation from builders, which is a somewhat good protection for the builders.
Mr. Gorall: It is what they have now. Currently, they are required to come to us, and we will do an assessment of their impact on navigation. If they are concerned that they will impede navigation and for the reasons you have just described they want that comfort, then they could opt into our regime, as I have described. If we do not introduce these amendments, they would still be in our regime and would not have a choice.
Senator Ringuette: You seem to indicate that the resources might not be there to effectively monitor an opting-in project. How will you manage efficiencies in that field? How many resources over the last year have you lost with regard to your potential monitoring of those licences for either a minor or major project from the minister? You need the resources in order to do this.
Mr. Gorall: You are right. This gets at the crux of the issue for us. Allow me to tell you this story, because I get a kick out of it.
There is a training camp in the Prairies — a military base — that is completely fenced in. The military applied to us because they wanted to get their engineers to build a bridge and then they wanted their engineers to demolish the bridge — all as part of their training. They had to wait for a couple of months for us to approve that project. Instead of us doing that kind of work, we will have more resources available to us to focus on things like the dam example that we heard about earlier.
Senator Ringuette: For the example you just gave of building and removing a bridge for training purposes, there will be a lot of activity. I am supposing there is a waterway. If you build a bridge, you should have as much of a reality scenario as possible. If you are not monitoring that, who will be?
Mr. Gorall: The DND bridge?
Senator Ringuette: DND will?
Mr. Gorall: Yes. I do not know the exact dimensions of the waterway, but it is completely on DND land. There is no public navigation on it that I am aware of.
Senator Ringuette: Environment is nowhere, and Transport Canada would be nowhere around the issue?
Mr. Gorall: Transport Canada would not be, but having said that I would not want to speak for other departments.
Senator Patterson: I am also a new kid on the block. I am very happy to be on this committee and looking forward to working with you all.
The Chair: We are happy to have you.
Senator Patterson: I want to thank Mr. Gorall for a very clear description of the Navigation Protection Act and of the waste of time and taxpayers' money that is directed to improving minor projects instead of focusing on the busiest waterways. The examples were enlightening, such as 90 docks on one Alberta lake, bridges on bike paths, guardrails on bridges and water slalom courses. It seems you have had armies of regulators causing significant delays with minor projects.
If the bill passes, is Transport Canada anticipating or budgeting for reduction of personnel in terms of enforcement with all this new focus on saving time and taxpayers' money?
Mr. Gorall: As I indicated, the department has known for some time that this act — it is 130 years old and starting to show its age — required some amendments. We have been advocating for some time that we would do an overhaul of the act, if appropriate. We take our marching orders from the government. The government has an interest in reducing regulations and has given us instructions that they want to balance the budget. As you know, every department is supposed to do everything it can to contribute to the deficit concerns.
Creating this bill addresses two issues for us. It allows us to focus our resources on the busiest waterways and not get involved in some of the examples I provided. It will reduce the regulatory burden on Canadians and dramatically reduce the backlog in applications. In a typical year, we roll over a couple of thousand applications that we do get to. These amendments will reduce costs for provinces and municipalities that will no longer have to come in and file paperwork.
In creating this regime, we are convinced that we will be able to focus on those busiest waterways and do the monitoring, as Senator Ringuette suggested, more effectively than in the past. At the same time, we will reduce the size of our footprint as a department. The extent that we are able to do it would be pure speculation on our part right now because the bill has to pass, we must introduce the new program and determine how many of the opt-ins will come in. We could estimate now, but I would be uncomfortable giving you a figure that I could defend down the road.
Senator Patterson: I believe you said with regard to the act that municipalities per se have not been consulted, but you have had discussions with the Federation of Canadian Municipalities on these amendments; is that correct? Is it correct that they were welcoming the proposed changes?
Mr. Gorall: Yes, absolutely. The example I used is that municipalities in Saskatchewan are responsible for 9,700 bridges and many of them cross navigable waters. They cannot repave one of those bridges without coming in for review from Transport Canada. They absolutely support us and more importantly, the work we are introducing — these amendments — builds on a body of work, requests and discussions we have had with stakeholders, clients, provinces, municipalities and territories for decades.
I think this committee, or subcommittee, had conversations with Saskatchewan regional municipalities as an example, or FCM. Absolutely, municipalities have been asking for this.
Senator Wallace: Mr. Gorall, in your opening statement you mentioned the aquaculture industry and the difficulties the act presents for it. I am from Atlantic Canada and the aquaculture industry in the Bay of Fundy is significant to the region. Could you expand on the difficulties the act presents for that industry as it is worded today, and how the change would presumably positively impact it?
Mr. Gorall: That is a good question. There are a couple of different elements to the issue with the aquaculture industry in the past. I will walk you through the biggest one. These are what the office refers to as dynamic works. It is not like they build a bridge; they actually put these cages in the water and they can move around. They need to be shifted around. Unfortunately, some of them are not well attended. It is a new industry that is starting to mature, but some of them can pull the cages down because of the weight of the fish or whatever harvest is inside. You can pull the buoys down so it becomes a danger to navigation. Sometimes they want to move the cages around for better position or add a couple of cages. They cannot do any of that without a new approval from us because of the how the act is written.
We propose introducing a pretty unique provision that we refer to as contiguous zones. We plan on creating an approval for an aquaculture work that says as long as long as you stay within this navigation footprint and it is well marked, you can do whatever you want. You can move, add or subtract without coming to see us; just stay within the envelope. If something changes and has an impact on navigation, there is now a new duty on that owner to let us know. We are not necessarily going to have to go out there and check aquaculture sites after a storm, for example.
There is another area that will be part of the overall plan, which is financing for aquaculture. As it is fairly new, lenders are a little risk averse. Being able to access financing is difficult because Transport Canada currently requires a five-year maximum limit on any aquaculture approval. After five years you must come back, even if you operate perfectly. It causes a problem with lenders because you have a government permit for five years and you want to borrow money for 10 years; they are uncomfortable. We hope to give them greater flexibility and help to secure financing easier.
Senator Wallace: With that increased flexibility within your department, within the area you cover being navigable waters, would you work in concert with the Department of the Environmental because there are environmental issues obviously around the aquaculture industry as well? Are you working hand in glove with the environmental department?
Mr. Gorall: Again, I do not want to speak on behalf of another federal department. I will allow my colleagues to address that. We are concerned about the actual permit that we give for navigation.
Senator Wallace: Is there any comment on the environmental element?
Mr. Stringer: We do each have our areas of responsibility. We do work together. We do connect and ensure that we know what one another is doing. The overall objective of responsible resource development is one project, one review, connected as much as possible and streamlined as much as possible, so we work together.
As my colleagues pointed out, we all have a specific responsibility. In our case, with aquaculture, that is the impact on the fishery. In their case it is as my colleague described, but we do stay connected in terms of making sure that we know what one another are doing.
Senator Brown: One of you mentioned the Shuswap Lake system in B.C. That is an important area and has a salmon run every year in the Adams River, I believe, and every fourth year it has a very strong run of salmon.
Also, I believe that five lakes are connected to the Shuswap system. One of them is there is Mara Lake, which intersects Highway 1, and is only about 12 miles long. Every second or third year it has a rather major amount of snowfall and because it is forested on all sides there is a lot of deadfall that comes into that lake in particular.
Do you supervise any of the attempts to trying to make the river navigable again? I have seen the lake when it was almost covered with deadfall. I wonder who is responsible for that. Do you provide any oversight to make sure it is cleaned up?
Mr. Gorall: If I understand the question correctly, there is a series of natural occurrences, the deadfall that goes in, and it can impede navigation potentially and who is responsible for that.
This is not an area that we would be involved with. I presume that lake is in the schedule to the waterways. It is not an area in which we would be regulating. If someone was building in that waterway, they would have to come in and see us, but for the natural occurrences, no.
Senator Brown: Are you saying it does not come under page 334? It talks about environmental acts and whether or not the federal authority can exercise a power to perform a duty or function conferred under any act of Parliament other than this act, Could it permit a physical activity to be carried out in whole or in part? Do you have any interest at all in making sure that it is cleaned up?
Mr. Gorall: No, we would not be involved in dealing with that sort of naturally created obstacle to obstructions. For example, if a tree fell across a river, it would be unlikely that you would find TC officials in there with a chainsaw digging that out.
Senator Brown: Do you know how that is cleaned up every year?
Mr. Gorall: I do not. I suspect it is probably not dissimilar to what community groups do. The water keepers associations play an important role. If you go down the Rideau Canal you can see the NCC folks out on their boats cleaning these things up, but it is not Transport Canada officials who would be out doing that.
I could certainly endeavour to get some research from some of the officers in the field and provide some options in that instance.
Senator Brown: I would be interested. It is not something that people would be out there with their boats to clean up. I have seen half of Mara Lake covered with perhaps 200 yards of logs that have floated in naturally because there is so much deadfall. It seems to cut into the narrows that go underneath the bridge at the intersection of Highway 1.
Mr. Gorall: If it is the committee's wishes, I would be happy to get back with some additional information on that.
Senator Brown: Salmon Arm has a logging system. They are the only ones allowed to float logs in the Shuswap system, but they cannot use deadfall.
The Chair: We will go to our second round. We have not quite 15 minutes left and there are four senators on the second round. I will ask you to make your questions succinct so we can get to all four questioners.
Senator Mitchell: I notice on the list of lakes you have Okanagan and Mara, but you do not have Kalamalka; in Alberta you have Pigeon but you do not have Sylvan or Wabamun, which would be very similar lakes. Why is that?
Mr. Gorall: It is very difficult for me to speak about specific waterways. The issue for us is we use the data sets that I have described for you and, in going through that process, it included local knowledge based on the busiest waterways. There are lots of waterways that may have traffic on them, which may seem extremely busy. However, from the most up-to-date statistics that are available to us, it just did not show up.
Senator Mitchell: Unfortunately, Pigeon Lake is practically not usable for a good part of the summer because of the algae bloom that is very toxic. Sylvan Lake, on the other hand, is crystal clear and any time I have been on it there are lots of boats. Perhaps you could get back to us on that.
Speaking of Wabamun, I noticed in your opening comments you said that in the last three years you approved 80 docks in Lake Wabamun, but I thought all of that was taken care of by the minor works changes in 2009. Why would you still be doing dock approvals?
Mr. Gorall: Thank you for that question. We asked the same, trying to understand what is it about this lake that requires this. I have an aerial photo looking down at the lake and you see that it is a perfectly shaped oval. Much of the shoreline is actually very shallow and from the aerial photo you can see that its colour goes from a tan to a dark blue. They have to go beyond what our regulations require to build a dock to get out to a lake for boating.
Senator Mitchell: That is because the water is receding. I know; I go to that lake frequently.
Mr. Gorall: It looks like a beautiful lake, but it still requires that we go in and actually review and approve every single one of those.
This gets to another point. One of the things we noticed is a serious of outliers when we are going through our data and we ask what that is about. One of questions we asked ourselves — and you find this typically on cottages — is why some cottages have a tremendous number of applications and some do not. We have come to realize after talking to some of the local officials and the people on the ground that it depends sometimes on how active the cottage association is. You find people talking to their neighbours and asking if they have a permit. That requires work for us for building docks that have very little or no impact on navigation.
Senator Lang: I want to say that I am really pleased to see the common sense approach being taken. I think it is long overdue. We will see how it works in the future, but from everything you have said, when one listens to your testimony, it is difficult to argue with the direction you are going.
You mentioned that some projects took up to three years for approval because of the process and what was required of your department, and because you were spread so thin in respect of doing all the things you outlined earlier.
Now, with this being narrowed and your clearly defining, to the best of your ability, the guidelines on where your responsibilities are, could you give us some assurances that these approvals will be done well in advance as opposed to how they were done in the past? These two- and three-year timelines are totally unacceptable from the point of view of anyone involved in any of these projects, and it makes government the laughingstock of the community at the end of day. Perhaps you can tell us, looking ahead, what you see.
Mr. Gorall: I want to be concise here for the sake of time. One of the things we would be able to do is that by focusing on the busiest waterways, we should free up resources to reduce the backlog.
The second thing we will be able to do is that we are expanding the minor works concept. Perhaps more of those docks, boathouses and slipways could be covered without coming to see us. That will continue to reduce the workload.
Finally, even if you are in a listed waterway as a potential builder, we are giving our officers, for the first time ever, the authority to screen a project out, to say, ``You do not have to come and see us anymore. You are bigger than our minor works to build that dock. You have given me enough information, a one- or two-page screening application. Our officers will look at it.'' For the first time ever, with the authority of the law, they will be able to say, ``I can tell, based on what you have said, that you will not have a significant impact or be a substantial interference to navigation, and so I am allowing you to go ahead.'' Now, if you build something else other than what you have just said you were going to, then you are subject to our new fines.
Those are ways that we will be able to streamline the entire approval process. We will be able to focus our resources. The formal approvals are the ones that substantially interfere with navigation. That is where we should be focusing our attention.
Senator Baker: I have an observation, and if a witness wishes to comment, that is fine.
In answer to a question by Senator Massicotte, the witness mentioned this provision that we are now concerned with, where it says:
No person shall erect, use or maintain any seine, net, weir or other fishing appliance that . . . obstructs more than two thirds of the width of any river or stream or more than one third of the width of the main channel at low tide of any tidal stream.
Then the witness said that to his recollection there had not been any prosecutions under this section.
I would direct him to several cases, one that I recall well, R. v. Doucette, 1996 Carswell NS 585, in which the court, as in several other courts, said that section 26(1), which has been eradicated under this legislation, the previous legislation, and section 29(1), which has now been substantially changed, was litigated. It involved a structure or — what we are leaving out here is ``logs or any other material of any other kind shall not be placed therein,'' the point being that we are restricting it now to fishing equipment, whereas in jurisprudence, cases have involved the other things that are now being removed from the act: material of any kind, logs and so on.
In terms of the answer by the witness, I completely understand that you are saying that the broader powers of the minister under section 35, which involves construction, can be used to effect the same thing. The point is that when you remove something from the act, when you remove logs and all dumping in rivers from an act, then you have to trust the minister to use his or her broad powers to give the same effect. I tell you, from personal experience, that it has not worked in the past.
Mr. Stringer: If I may, my understanding is that with respect to recent years, it has been used for the purposes of fisheries management but not for other types of obstructions. However, I will check that, and certainly it has been used historically.
Section 35 is not just that the minister ``may'' use it. There are pieces in section 20 that the minister may use; he can require certain things to be done. However, section 35 is an absolute prohibition. It says you may not do activities, works and undertakings that cause serious harm to fish in a commercial, recreational and Aboriginal fishery. We do think that covers it. However, the senator is absolutely right when he says that is focused on the commercial, recreational and Aboriginal fishery and at the level of serious harm.
Senator Ringuette: I have two questions. One is for Mr. McCauley. Did I hear you correctly to say that the construction of a bridge is not a designated project requiring environmental review?
My second question is for Mr. Gorall. I firmly believe that legislation coming in front of Parliament does not happen out of thin air; it is a reaction to an action. I will not ask you how many lobbyists were at the department, but I will ask you how much civil litigation in regard to waterways has occurred in the last five years.
Mr. McCauley: In response to your question, bridges are not a type of project that is currently on the regulations designating physical activities.
Senator Ringuette: That is unbelievable.
Mr. McCauley: That regulation was based on the Comprehensive Study List Regulation under the former act, and that listed major categories of projects that had the potential for significant adverse effects.
Having said that, the minister has the ability, under section 14 of the act, to designate a project that may have impacts on areas of federal jurisdiction for the purposes of requiring an environmental assessment.
Senator Ringuette: This is unbelievable.
Ms. Ohandjanian: I will speak to that question by giving a recent example. A judicial review application was brought by Cameco against a decision of the department to request that work that Cameco was proposing to do with a body of water that you would see featured in one of many lakes within Canada's geography was subject to the Navigable Waters Protection Act. Cameco challenged that decision, explaining in its arguments all the elements that pointed to that water being not navigable, within the meaning of the common law, despite the fact that you can float a canoe.
That is an important thing to keep in mind. The regime is about the public right of navigation, which is predicated on there being a navigable water.
Senator Ringuette: My specific question — and it is a very short question that requires a very short answer — is how many civil litigation cases are occurring and have occurred in the last five years with regard to navigable waters?
Ms. Ohandjanian: It depends on the point of litigation. Civil litigation is not something that the department tracks just because, as my colleague said, it is a statutory exception. We are there to provide protection — that is what we do — to avoid litigation. I cannot speak to civil litigation.
Senator Ringuette: To avoid litigation that would be brought forth for builders. This opting in, from my perspective, is certainly designed as a financial protective measure with regard to builders.
The Chair: We have run out of time. If we could get some further clarification in writing from you, if that is possible, that would help us a bit.
Ms. Ohandjanian: I just need clarification. Civil litigation is not something that the department would be monitoring between private parties. The raison d'être of the act is indeed to permit. It is the current case. The act operates to permit the infrastructure to be placed in navigable waters, without the risk of civil litigation.
Senator Ringuette: Exactly.
Senator Baker: The cases she mentioned were just simply sent back for another decision maker within your department to take care of.
Ms. Ohandjanian: That decision was withdrawn; exactly.
The Chair: My request, then, is not needed.
I want to thank the witnesses for their testimony. You were succinct and explained it very well for us. Thank you very much for taking time out of your busy schedules to do that for us.
(The committee adjourned.)