Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 32 - Evidence - November 20, 2012
OTTAWA, Tuesday, November 20, 2012
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 5:13 p.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.
The Chair: Honourable senators, we are having a little technical difficulty hooking in with Vancouver, so people are working on that. However, in looking at the time we need to move forward.
I would like to welcome everyone to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. I am Richard Neufeld. I represent the province of British Columbia in the Senate and I am chair of this committee. I would like to welcome honourable senators, any members of the public with us in this room and viewers across the country who are watching on television.
I will now introduce the senators who are members of this committee around the table today beginning with the deputy chair, Senator Grant Mitchell from Alberta. I want to first introduce the staff, including our clerk Lynn Gordon, and Sam Banks and Marc LeBlanc from the Library of Parliament. I will let the senators introduce themselves, but do not tell the story of your life.
Senator Massicotte: I am Senator Paul Massicotte.
Senator Sibbeston: I am Nick Sibbeston from the Northwest Territories.
Senator Patterson: Dennis Patterson, senator from Nunavut.
Senator Baker: I am George Baker from Newfoundland and Labrador.
Senator Lang: Dan Lang from the Yukon.
Senator Johnson: I am Janis Johnson from Manitoba.
Senator Ogilvie: I am Kelvin Ogilvie from Nova Scotia.
The Chair: On October 30, 2012, our committee, amongst others, was authorized to 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.
Specifically, we were asked to examine those elements contained in Division 4 of Part 4, which would amend the Fisheries Act, Division 18 of Part 4 which deals with the Navigable Waters Protection Act, an act that is under the authority of Transport Canada, and Division 21 of Part 4, dealing with amendments to the Canadian Environmental Assessment Act, CEAA 2012.
Our committee must submit our final report to the Senate no later than November 30 of this year.
Today marks our fourth meeting on this matter. I am pleased to introduce our witnesses both here in Ottawa and from two separate video conference locations.
We are hoping that the Vancouver video conference will be up soon, and that will be Mr. David Labistour who is the CEO of Mountain Equipment Co-op. Next on video conference we have Mr. Tony Maas, Director of the Freshwater Program with the World Wildlife Fund Canada. Rachel Forbes, Staff Counsel with the West Coast Environmental Law Association, is also with us today.
I propose that we proceed with opening remarks from all three organizations followed by a question and answer session. For the purposes of staff interpreting and transcribing the words you say, please speak clearly into the microphone at a reasonable speed. Thank you.
We will proceed first with Mr. Maas.
Tony Maas, Director, Freshwater Program, World Wildlife Fund — Canada: Thank you to the chair and members of the committee for the opportunity to speak on Bill C-45. I had a similar opportunity to speak to Fisheries Act changes on Bill C-38, so I appreciate the opportunity to share the time with you and for making the video conference option available to me.
As introduced, I am Tony Maas, Director of the Freshwater Program for WWF Canada. As many of you will know, we are one of Canada's largest and oldest conservation organizations with staff and offices across the country. Our freshwater program is aimed at protecting and restoring the health of Canada's waters through science, citizen and business engagement and policy analysis and advocacy.
Going forward, I will focus my testimony largely on the proposed amendments to the Navigable Waters Protection Act, or NWPA, included in Bill C-45; and to be more specific, that is clauses 316 to 350. I will also reflect on how these changes, along with other recent changes to federal laws and cuts to federal agencies, are putting Canada's waters at risk. Finally, I would like to leave you with some perspective on where WWF believes Canada should be going on water policy in the 21st century.
I will start three specific concerns related to amendments to the Navigable Waters Protection Act. The first is the idea that we can suddenly separate navigation from the health of the aquatic environment by changing the law. That Canadians depend, often unknowingly, on the protection of navigation rights as a means for protecting the health of our rivers and lakes reflects a natural fact: the two are very much inseparable.
Trying to pull navigation apart from the waters that enable it is as artificial as thinking that we can protect fish without protecting the waters that they live in or suggesting that our economy and our environment are unrelated.
It should not come as a big surprise that, over time, the Navigable Waters Protection Act has become an important tool for protecting Canada's freshwater resources and ecosystems. WWF is concerned that the amendments proposed in Bill C-45, which we see as weakening the Navigable Waters Protection Act, will leave gaps in the overall framework Canadians have come to rely on to sustain our aquatic environment, especially when considered alongside the major amendments to environmental laws included in Bill C-38.
It also is rather presumptuous to consider that other levels of government or other sectors can step in and fill the gaps these accumulating changes to federal laws will leave in their wake.
The second concern I would like to raise is the narrowing of the scope of the Navigable Waters Protection Act primarily to the waters listed in Schedule 2 of Bill C-45. I am quite confident in suggesting that most of the waters that are not listed in Schedule 2 are frequented by navigators of some sort. The St. John River in New Brunswick, where we at WWF have a new field program, is a case in point. According to Schedule 2, only that portion of the river that runs from below the Mactaquac Dam to the Atlantic Ocean is deemed significant for navigation.
I can attest that there is navigation upstream of the dam. There are tourists and anglers that keep houseboat operators and marine owners in business. There is a group of youth that we at WWF are helping to send down the river by canoe next summer. All of this depends on protection of the navigation and waters all along the river's course. This is a clear example of where our economy and our environment are deeply interconnected, through the water resources that sustain both.
Finally, my third concern is that, as with the many changes to environmental legislation witnessed in this and the previous budget bill, there has been a significant lack of meaningful stakeholder and public consultation and limited transparency in decision making. It very much seems that Canadians are being told, not asked, if their waters are significant. While I appreciate the opportunity to speak to the committee today, I am far from a representative voice. It would take hundreds of meetings to hear from the diverse organizations and people who will be impacted by the changes to Bill C-45.
For example, I recently attended a meeting of the Waterloo-Wellington Canoe Club in the area where I live, around Kitchener-Waterloo. They would have a strong interest in the proposed changes but might not even be aware of them. The same goes for the recreationalists and business owners on the St. John River that I referred to earlier. I believe that you should be hearing from these people in some way, but there has been no mechanism to facilitate that in advance of these changes.
I would like to speak to how the list of water bodies included in Schedule 2 of Bill C-45 was developed. I participated, as did many others in my sector, in a conference call briefing provided by Transport Canada on Friday, October 19, concerning the proposed amendments to the Navigable Waters Protection Act. One of the items discussed was the process and criteria by which agency staff arrived at the very limited list of waters included in Schedule 2. Following that briefing, I requested, by email, documentation from Transport Canada on what was explained in the conference call and promptly received a link to a webpage that provided a high-level overview of the process and criteria. It was a rapid response and very encouraging.
The covering email included an offer to provide further information if required. I did follow up on that opportunity. I outlined five very specific questions that dug a little deeper below the surface of what I had been provided in order to better understand the process and criteria. I made that request on November 5 and again yesterday, but I have received no response from Transport Canada staff since that initial email.
It makes it very difficult to participate effectively in democratic processes like these hearings and similar hearings that I have tried to participate in for the House Transport Committee if agency staff will not or cannot share basic information on how decisions are being made.
Let me close with some thoughts on where our organization believes Canada should be going on freshwater policy. I believe that the accumulated impacts of these changes are becoming more about this or that law. Canadians have come to rely on a wide range of tools and institutions, on laws, policies, programs and agencies at municipal, provincial and federal levels to protect water resources and sustain the health of the aquatic ecosystems. That is the way we have evolved. These many tools and institutions have been described by academics as a bewilderingly complex jurisdictional maze, and for good reason. There is often a lack of clarity about who is responsible for what as it relates to the waters of this country. There might be overlaps in mandates and functions in some areas and gaps in others, and those are big problems. Could the system be more rational overall? Yes. Could the system be modified to be more efficient, effective and results driven? Yes. Are there good ideas on ways to move forward in the business community, among NGOs and civil society groups and in governments? Definitely.
My recommendation is this: If the Government of Canada would like provinces, territories, municipalities, business and industry, NGOs and citizens to take on a greater role in protecting our waters and our aquatic environment, they should start by providing direction to that end and follow up that direction with meaningful engagement that brings sectors and interests together to figure out a way forward that works for everyone.
That small step alone would bring Canada back into stride with leading jurisdictions on water policy and sustainable water management — the European Union, South Africa, and Australia, to offer a few examples.
By contrast, the current process of amending laws and expecting other levels of government and citizens to take up the slack stands to put at risk the waters that are so fundamental to Canadian culture and to the health of our economy, our communities and our environment.
Thank you, and I look forward to the discussion.
The Chair: Thank you very much, Mr. Maas. We are sorry about that interference coming through earlier. We were having a little trouble. We were able, I believe, to hear you clearly. I hope that we have it under control now.
Next, we will go to Rachel Forbes.
Rachel Forbes, Staff Counsel, West Coast Environmental Law Association: Good evening. Thank you for having me. I am a staff counsel with West Coast Environmental Law Association, a B.C.-based non-profit organization of lawyers and analysts, and we assist other community groups and clients in having their voices heard in environmental decision making. We also administer an environmental Legal Aid program through our organization.
We were founded in 1974, and our organization has had a role to play in many of B.C.'s laws and in federal laws related to the environment, including a longstanding role on the Regulatory Advisory Committee, which is now defunct to the best of my knowledge, and the Canadian Environmental Network.
We were involved in the original drafting of the Canadian Environmental Assessment Act and have been involved in fisheries issues, both provincially and federally, for some decades now.
I will go through my brief roughly in order. I will speak to all three divisions that the committee is examining and will start with some general comments about the cumulative impact of Bill C-45, together with Bill C-38 and the breadth of the changes happening to some of Canada's key foundational laws, which we would call environmental laws.
The divisions that we are looking at today and many of the changes in Part 4 of Bill C-38, which I believe this committee also examined, are under the current federal government's Responsible Resource Development Plan, which has the overall goal of unleashing Canada's natural resource potential by streamlining processes, making things more efficient, making things more predictable, reducing duplication and strengthening environmental laws.
As I have said before in other submissions to other committees, we do not disagree with those aims, but we do disagree with the proposed way of doing them and the direction in which the changes in Bill C-38 and now in Bill C-45 are taking environmental law and regulation in Canada. Even if we did agree with the direction in which these changes are taking environmental law, we think that the process is too fast and is not taking into consideration consultation needs. I know that, for example, many people were simply not consulted on the navigable waters changes. I believe one of the witnesses you had from Transport Canada said that, and that really all they had or intended to do is have a rich discussion with the provinces on the proposed amendments. Many people have been left out of understanding the purpose and the need for such massive changes so quickly.
Bill C-45 also contains a number of housekeeping measures, for example, to the Fisheries Act and the Canadian Environmental Assessment Act 2012 that would not be necessary if Bill C-38 had been broken up or examined more thoroughly. The speed with which many of the amendments are being implemented is leaving the door open for lesser quality law and regulation than we could be having. We are seeing that now with Bill C-45 because we are having to come back to laws that we just enacted three months ago and tidy them up.
On that note, our main or priority recommendation for this committee and its reporting to the Senate is to separate at least the Navigable Waters Protection Act proposed amendments because they are so significant. Many people have a lot of questions about what is really going to happen on the ground and how that will work for regulators, for people that are in Transport Canada, for industry and for recreational users. Across the board, it is not well understood how this will happen on the ground. Our recommendation would be to split that division out of Bill C-45 and have better and wider consultation on it and come back to it.
Going back through the three main divisions, starting with the Fisheries Act, there are a number of amendments in the Fisheries Act that we are coming back to, things that were proposed in Bill C-38 that are not necessarily even in force yet. Right now, Fisheries and Oceans Canada is undergoing a number of consultations on how the second phase of amendments to the Fisheries Act from Bill C-38 will actually be implemented and what type of regulation is required for that. Many questions are coming up across Canada from industry, from hunting and fishing groups and from conservation groups about how this will work and what new definitions mean and how enforcement of those new types of definitions and new regulations will happen on the ground. This just goes to the issue of these changes being very significant, whether you like them or not, and there is a lot to be decided and determined on how things will be implemented. We are coming back and amending sections that are not even in force yet, and we do not know when they will be in force. That says to me that we should be doing this at a more moderate pace and figuring out exactly what the aim is and how we can properly get to that before we re-tinker with everything.
I have two other substantive comments on the Fisheries Act. One is related to the new provisions that speak to the Environmental Damages Fund. We are certainly in support of taking fines and penalties related to enforcement of Fisheries Act violations and putting them into an Environmental Damages Fund. That is a good aim and ensures those monies are being put back towards conservation and rehabilitation measures. However, in speaking with colleagues and a number of other organizations such as the Atlantic Salmon Foundation or the Pacific Salmon Foundation, there is concern about whether there will be adequate staffing to enforce the Fisheries Act and if we are going to get any charges and fines out of the Fisheries Act that would actually be put into the Environmental Damages Fund. While it sounds like a good goal on the surface, whether or not we will have monies put into that fund is questionable.
The statistic demonstrating that is that in 2000, in the Pacific region, there were 1,800 habitat-related investigations for Fisheries and Oceans Canada, which led to 49 convictions under the act. By 2010, two years ago, that number had dropped to 300 investigations and the number of convictions to one. Since then, we have had massive cuts to Fisheries and Oceans' staff, especially in the Pacific region and those related to habitat and environmental assessment. Whether or not there will be people out there who can enforce the act and collect fines and penalties is a big question mark in my mind.
The second point on the Fisheries Act amendments is in relation to the transitional provisions proposed in clause 177 of Bill C-45. First, subclause 177(1) says that all prior permits and authorizations under the former Fisheries Act are continued, which is pretty standard legislative language and we have no problem with that. However, then subclauses (2) and (3) allow the minister, upon application of a permit holder or someone that has been authorized, to change, amend or cancel entirely that Fisheries Act authorization. These are section 32 or section 35 authorizations, which are habitat protection. There is a 90-day window for this from when the act would come into force.
The concern here is that companies or organizations or whoever is holding these authorizations take the opportunity to apply to the minister to have them amended or cancelled entirely, and these could involve large fish habitat protection measures in industrial projects and that type of thing. The basis upon which those would be cancelled is questionable, and we would recommend deleting subclauses (2) and (3) entirely from the transitional provisions and just having the authorizations and permits as they were previously issued continue under the new act.
Under Division 18, the Navigable Waters Protection Act, generally, as I said, we would support and recommend removing this section from Bill C-45 and having a more thorough consultation and examination of what the aim is here and the best way to achieve it. We do not support the direction that the proposed Navigation Protection Act is going, and generally we do support and second the submissions of our colleagues. I know you have heard from Will Amos of Ecojustice and also Mr. Tony Maas of WWF Canada. We support their submissions as well.
In addition to that, I have two other comments and recommendations. One is that if this committee does not see fit to recommend that this whole section be removed from Bill C-45, we do think that minor amendments could improve some of the provisions that are currently proposed and actually potentially increase some of the efficiency and reduce duplication in the act, which have been stated goals of the government.
One of our recommendations — and I think you have examined this previously — is that where an owner of a proposed work in a navigable water would like to opt into the regulatory scheme to achieve protection under it and not have to worry about common law actions, we recommend that criteria be set for when the minister is making decisions on who can opt in and who cannot opt in so that we can look back and see how those decisions were made, and that written reasons be given for them.
We also recommend in various sections where there is a lot of decision-making power that is put on the minister through this new act, so where decisions are being made about opting in, whether something significantly or substantially impedes navigation, that reasons are given for how that decision is made.
We also think, because the number of waterways in the schedule is so few and if people are going to be submitting their works as proposed to opt into the system, that when a work is allowed to opt in and obtain an authorization, that waterway should then automatically become a listed waterway on the schedule. This would reduce duplication if someone was coming back to do additional work on the waterway. We already know it is in the schedule and have an easier way of dealing with it and with fewer steps. These are some ideas for how to improve for what we are working with there already.
The other comment I wanted to make is there has been a lot of discussion about whether or not this act is about environmental protection and how the act as it currently is prior to amendments interacts with the Canadian Environmental Assessment Act. As I am sure you have heard, the Navigable Waters Protection Act as it is and the previous Canadian Environmental Assessment Act worked on a triggering approach, so there was a trigger in the NWPA that required an environmental assessment. However, CEAA 2012 does not use a triggering approach; there is no longer that same trigger. My interpretation of the language is that in CEAA 2012, section 5, which I have copied in my submissions for ease of reference, subsection (2) talks about federal authorizations and works that happen. It states that:
(2) However, if the carrying out of the physical activity, the designated project or the project requires a federal authority to exercise a power or perform a duty or function conferred on it under any Act of Parliament other than this Act . . .
Then there are additional environmental effects taken into account. It broadens significantly the type of environmental effects that an environmental assessment would take into consideration.
With the new Navigation Protection Act, there are still authorizations to be made, although there would be far fewer of them. If you take the Navigable Waters Protection Act as it is now and how it interacts with CEAA 2012, the proposed changes would mean that there are less opportunities for us to scope those additional environmental effects into environmental assessments when they happen. I think that is that is an ongoing relationship that the acts still have and that the proposed changes reduce that scope of environmental effects.
On CEAA 2012, most of the amendments, as I have already stated, are so-called housekeeping but might not be necessary if we took more careful time with CEAA 2012 initially. I propose just one minor change. I think you have heard people from the agency already, John McCauley, in particular about the closing of a loophole. There is a loophole that one of the amendments in Bill C-45 is meant to close, where an environmental assessment that would have been required under the previous act is continued, basically, if something becomes apparent or if a federal authorization is needed prior to January 1, 2014. It is the "prior to January 1, 2014" that we disagree with. If we are closing the loophole, I do not know why we would only want to close it for another year. There may be a reason for that; I have not heard reason for why an arbitrary date has been set. We would recommend omitting that section.
Those are my submissions.
The Chair: Thank you very much.
We have now Mr. Labistour on the screen. We are sorry, sir, that things did not work out, but we are happy that you are able to present your case. It worked out just fine with the time, so it is over to you, sir.
David Labistour, Chief Executive Officer, Mountain Equipment Co-op: Thank you for inviting me to appear at the hearing. I have a force field around me that whenever technology and me come into the same room, something breaks down; my apologies for the delay.
I will be speaking not only on behalf of MEC but also the outdoor recreation and tourism industry, an industry for which we are tightly integrated and highly dependent for our business.
MEC is an iconic Canadian brand and a leading retailer for people who lead active lives in the outdoors. With a vibrant and growing membership of 3.4 million Canadians, we are committed to increasing activity levels within Canadian communities and to connecting Canadians to the natural playground that is an integral part of Canada's heritage.
Speaking for the outdoor industry, it is instructive to refer to a recent study done by the Outdoor Industry Association that shows that consumer spending on outdoor recreation in the U.S. is almost double that of pharmaceuticals, motor vehicles and parts, gas and fuels and household utilities. Moreover, the outdoor industry in the U.S. employs more people than in oil and gas, finance, construction, transportation or the education sectors. I am confident that the same would hold true in Canada.
I have shared these numbers with officials at the Department of Fisheries and Oceans and Environment Canada. It bears noting, too, that per capita, MEC's sales are more than double of those of REI, our U.S. counterpart. Hence, we believe that the numbers I just cited are likely higher in per capita terms in Canada than they are in the U.S. As such, I would like to recommend a federal review of our industry to establish the economic significance and importance of our sector.
Let me turn to some general comments about Bill C-45.
We must acknowledge, first, the need to streamline processes and improve efficiencies. I understand that these are things that all responsible entities are required to do and our business is no exception. However, our concern is with the elimination of regulations and standards that protect the integrity of the areas in which Canadians recreate. This perception is widespread. As the corporate law firm Blakes recently put it, "the federal government is taking itself out of the approvals business." That observation certainly corresponds with what I am hearing from our constituents and customers.
Within our community, outdoor enthusiasts do not separate water from access or fish from rivers. To them the areas in which they recreate — be they oceans, beaches, mountains, lakes, forests or rivers — are all one system. Likewise, they do not separate the changes enacted in Bill C-38 from changes in the Navigable Waters Protection Act proposed in Bill C-45. Rather, they fear the erosion of their access to and quality of their recreation. A lack of public consultation and transparency has exacerbated these perceptions and created a high degree of mistrust in the outdoor recreation sector.
In particular, I am hearing five themes that I would like to share with you today. The first is reduction of access to and quality of outdoor recreation. Access to and the navigability of waters of all sizes is enormously important for the quality and viability of our activities, be they recreational paddling and boating, hunting, fishing or dockside cottage country recreation. For most Canadians, the waterways on which these activities take place fall outside of the waters listed in Schedule 2 of the NWPA.
In the absence of a clear and universal law on obstruction, access to and quality of navigation on unlisted waters, there is a very real risk of significantly reducing the potential social, economic, cultural and ecological benefits gained from these activities.
The second point is the marginalization of the outdoor and tourism industries in Canada. The proposed navigation protection act's narrow focus on commercial navigation minimizes the importance of paddling, boating, fishing, hunting and other water-based recreational activities. In short, the NPA discounts the socio-economic importance of these activities to Canadian society.
The third one is the removal of universally enforced regulation and standards and the reliance on common law. We believe this will put unreasonable onus on individual Canadians. For the vast majority of Canadians, using the courts to address issues of navigation is cost and time prohibitive. If enacted, we believe the proposed regulatory regime will be more cumbersome and possibly more conflict ridden than the one the federal government seeks to address.
More importantly, the proposed changes will not prevent obstructions to navigation from occurring; rather, they put the onus squarely on the individual user to identify and challenge infringements on their rights to access navigation, most likely after the fact and after infringements have happened.
The fourth is the weakening of statutory protection for the vast majority of Canadian waterways. The scope of the NPA is limited to protecting navigation on a fraction of the waterways in Canada: 62 rivers, 97 lakes and three oceans. In short, the NWP proposes to separate protection of navigation from protection of navigable waters.
As you will see in our written submission, we have identified a short list of 40 recreationally significant waterways that are not included in Schedule 2 of the NPA. The list includes 20 Canadian heritage rivers, as well as such notable paddling destinations as the Lake Temagami area in Ontario and the Tatshenshini River in the Yukon.
In a complex natural system, the simplistic approach taken in the NPA is grossly flawed. Most of us who spend time in the outdoors know that protecting navigation cannot be achieved without protecting the medium in which we navigate, namely waterways. Moreover, the health of the water depends on many factors from the source of the water to the flow path and the flow rate. All this is to say, no water, no navigation, no recreation.
The last one is public safety. This is something that I have personally experienced in paddling into the remnants of a barbed wire fence in a river. That experience underscores the fact that an obstruction within waterways can be extremely dangerous, particularly in running waters.
In closing, I would respectfully ask the federal government to take two actions. The first is to launch a formal review of Canada's outdoor recreation economy and tourist economy in order to confirm its size and significance relative to other sectors. The second is to withdraw the proposed NPA and conduct a broad public consultation that includes the outdoor recreation and tourism industries in discussion with Canadians on ways to improve our laws to protect Canadian waterways and the public right of navigation.
I appreciate having this opportunity to speak on behalf of the outdoor industry and our membership. Thank you.
The Chair: Thank you very much for your presentations. We will now begin the questions.
Senator Mitchell: I certainly can commiserate with you, Mr. Labistour. I think I have the same kind of force field when it comes to technology. I am getting on to this iPad here. It seems to be working okay.
Mr. Labistour: You are probably going to break that one, too.
Senator Mitchell: I should not have raised it. Thank you.
My first question is — not that I am a lawyer — more legally focused, I think. All three of you feel free to jump in, but probably Mr. Maas and Ms. Forbes.
The question of gaps in the downloading of federal to provincial delegation of these environmental review responsibilities is particularly exacerbated because there is not this triggering mechanism, necessarily. Could you give us some examples of a gap or of a project that might fall between the cracks because of these kinds of changes?
Mr. Maas, I saw you nodding your head. We have lost his audio. We will work to get it back.
Ms. Forbes?
Ms. Forbes: If we are thinking about environmental assessment, it is any project that is not listed on the project list of CEAA 2012, such as a mine that does not meet the threshold of ore that could take place in B.C., because B.C. environmental assessment legislation also works on a threshold basis. As an example of one of the dangers of having a regulation that is structured that way, in B.C. our threshold for independent power projects on small waterways — run-of-the-river as they are also called — is 50 megawatts. A lot of proponents will propose projects that are just under 50 megawatts so they do not have to go through an environmental assessment. The same thing could happen federally. It is a potential abuse of the system if you get proponents structuring their projects so they fall under the thresholds of the regulations. It could fall under both provincial and federal.
I am sure people would say there are other potential regulatory processes or permits that you would have to get, whether that is road building or tree cutting, for such a project. However, those are not coordinated. Part of the reason we look to environmental assessment — and one of the reasons everyone seemed to want to improve the environmental assessment regime in Canada — was so that we had a unified system where things were dealt with not in duplication but in a coherent manner. We had different departments working together and not in separate silos. You could have permits for those projects that fall under an environmental assessment, but there is no reason the different departments have to talk to each other about that. There are all sorts of ways things can fall through the cracks. People who know about fish habitat in the area are not talking to the people granting road permits.
Senator Mitchell: Great. Thank you.
Mr. Maas, are you back?
Mr. Maas: Can you hear me now?
Senator Mitchell: Yes.
Mr. Maas: I will try to give you one specific example and a couple additional reflections. The one I alluded to in my opening remarks was on the St. John River in New Brunswick. As I mentioned, we are kicking off a program of work that we hope will last at least five years, if not longer. The Mactaquac Dam, which is part of the way up the river system, is certainly a barrier to navigation but that does not mean there is not navigation on both sides of it. For example, works to be proposed upstream of the dam where that river is not listed in Schedule 2 would require that citizens stand on guard and be willing to take up any concerns through the common law mechanisms. Downstream you have a completely different framework because you have a statutory framework to protect it.
Having stood next to the dam, it seems a bit absurd seeing boats on both sides and a diverse grouping of them; we are not talking about a trickle of a stream here. There is a large head pond behind the dam where houseboat operators and anglers on either side depend on navigation. The full implication of the gaps is still a big question mark for me.
If I can reflect a little bit on that, the same issues arose — we are talking about cumulative impacts of changes that were also included, and some as yet enacted — from Bill C-38. A comment I heard was that three months after Bill C- 38 made it through the house, the Department of Fisheries and Oceans had only spoken to somewhere in the range of six to eight provinces about what these changes might mean. That seems a bit backwards to me. In testimony from representatives of Transport Canada to the house transport committee, I noted — and I do not have the quote in front of me — that all provinces and municipalities voiced a desire that waterways not heavily navigated be excluded from Transport Canada's oversight. That is a little bit thin in respect of the fact that it does not really explain who in the provinces this was discussed with.
As you well know, sitting where you sit, if you approach an agency whose responsibility is resource development and ask them these questions as compared to one whose responsibility is environmental protection, you are likely to get different answers. It is not clear to me who has been consulted at the provincial level or in the municipalities about these changes. I believe they are saying that the Federation of Canadian Municipalities was the voice for municipalities relating to changes to the NPA. As you will recall, we saw a slight shift in their perspective back in April or May relating to the Fisheries Act as they became more aware of the implications for them down the road.
Senator Mitchell: Mr. Labistour, in your presentation you list a number of rivers — it is quite striking to me — that have Canadian heritage status that are not going to qualify in the list under the navigable protection act. It is quite startling if you do not have navigable water protection. Even if you did, because you are not on the list, the project would not necessarily trigger an environmental review. If it was small enough, it would not trigger a review in any event.
What protects a Canadian heritage river? What is left? Would you be aware offhand, or is that deep in your concern?
Mr. Labistour: I have no idea. I speak very much as a recreationalist as opposed to an environmentalist. If I speak to the people and the communities on which we depend for our business — the recreation community — we cannot unpack Bill C-38 from Bill C-45. We have no idea what the protection of these places would look like once these two bills have been enacted. This is from a layman's point of view not a legal point of view.
Senator Mitchell: It is a powerful point.
Would either of the others like to jump in on that? I just have one other question.
Mr. Maas: Just to reinforce the points I made toward the end of my opening remarks, if we are after improved efficiency and effectiveness, results-based management, not just of our natural resources but also of the environment that provides them — and water is a critical natural resource to our economy and our communities — then let us have that discussion. Let us together work out what the gaps might be and figure out how best to move forward. We are not — and I speak for our organization only — an anti-development organization by any stretch.
What we are after is sustainable development. Doing so requires that we engage in a thorough discussion of how we protect our waters and other resources going forward.
Senator Mitchell: I have one other quick point. These presentations have been excellent. One of the things that was really striking to me — and I had not thought about its magnitude — was the point in Mr. Labistour's presentation about the magnitude of this recreational industry. I have this theory that every time we do something like erode an environmental review process or shut down the National Round Table on the Environment and the Economy, we send a negative message about Canada's commitment to environmental protection. That can have a huge impact when trying to get social licence for a pipeline.
Do you see that having an impact in recreational tourism as well? We just start to establish the kind of reputation that Canada is starting to lose those remarkable tourist resources. We are sending the wrong messages about that. Could that have an impact?
Mr. Labistour: I am on the board of the Outdoor Industry Association, a U.S-based organization to which we belong. I know that the kind of discussions that have been had about Canada within the American and some European vendors in the outdoor industry are not very complementary. Put it that way. I am talking about some of the large brands and vendors in this industry. There is some questioning around what is happening. It is coffee table discussion, but certainly Canada's reputation for being an outdoor paradise is being tarnished at this point.
The Chair: I have a supplementary question to one of your questions to Ms. Forbes.
In one of your responses you said that in British Columbia an environmental assessment was not required for a run- of-the-river project of 50 megawatts or smaller. Could you qualify that a little? I know that what is required after that is a full screening, almost the same as an environmental assessment. For that project, that has to happen.
It is not as though it just falls off the face of the earth. There is actually a very tough screening that takes place on a project like that. Would you agree with me?
Ms. Forbes: A provincial screening?
The Chair: Yes.
Ms. Forbes: I would agree that there is still a process that those projects go through. I think one of the benefits and tools of an environmental assessment is that it allows us to look at regional, cumulative impacts of projects. When we have projects that are not going through an environmental assessment, we do not have the ability to look regionally at the types of development we are doing and at the cumulative impacts that a number of run-of-the-river projects — a mine, a pipeline and whatever else is going on in that region — would have. I think that we lose some of the tools that environmental assessment can give us if we are not doing a full EA of those types of projects.
The Chair: To back up what you are saying, can you give me an example of something that would have had a negative impact on the environment? I would like to look at it. Just so you know, I am one of the guys who put in the law about the screening process and the environmental things that have to happen for independent power producers.
Ms. Forbes: An example of a project?
The Chair: Yes.
Ms. Forbes: I have not brushed up on what current projects are happening. One that is less than 50 megawatts?
The Chair: You referred to 50 megawatts and less, so I am asking you.
Ms. Forbes: I cannot. I am not trying to get out of the question; I do not have that information.
The Chair: Okay, I appreciate that.
Ms. Forbes: Part of the reason that I do not is that I work on environmental assessment, and I do not consider those projects to have gone through an environmental assessment. They are not on the list of current projects that the B.C. Environmental Assessment Office is looking at.
The Chair: Thank you.
Senator Lang: I would like to follow up on that line of questioning. I think that all of the witnesses and everyone around this table have the same objective. We want to ensure that we take our responsibilities to environmental obligations very seriously. At the same time, we have to balance that with the ability to provide the opportunity for development. I think Mr. Maas said it very well. I think it was Mr. Maas who made the comment that they are not there to obstruct. They are there to find a balance. This committee and any committee of the house, no matter what political party, is looking in that direction.
I think it was two years ago that we dealt with this act at the beginning, with respect to the budget that was put forward. The question was asked last committee, and I would like to put it to this hearing. Two years ago, we were told that if we passed those amendments to this particular piece of legislation, there would be major, significant environmental damage done over a period of time because of the passage of that bill. I would like to ask you, Ms. Forbes, Mr. Labistour and Mr. Maas, if you can provide us with actual examples of where — because that act was not in place — sufficient environmental guidelines were not put in place for projects that were approved and have gone ahead. Perhaps you could start, Ms. Forbes.
Ms. Forbes: You are speaking to the —
Senator Lang: The Navigable Waters Protection Act amendments put through a few years ago.
Ms. Forbes: In 2009.
I am not aware that our organization took the position that there would be major environmental damage if those went through. I think it was, like the changes to CEAA that happened around the same time, part of the start of the trend of eroding Canada's environmental laws, but I do not have any submissions on that.
Senator Lang: Mr. Labistour, do you have any examples that you can provide us with?
Mr. Labistour: We were involved with the hunting and fishing community when those laws were put forward, and we were really concerned that there would be an erosion of the natural recreation capacity in Canada. To be quite honest with you, I actually checked up on that one, and there have been no significant incidents that have actually happened, that we are aware of, subsequent to that.
What is interesting is that, at that time, this was put forward as a solution to the challenges that the current NPA, Bill C-45, is looking to do. In putting the original amendments to the NPA through, there were reasons for doing it in terms of streamlining the process. It seems to be that the process was streamlined and there have been no significant incidents, so back to you: Why would the NPA be coming forward again for additional amendments when the first one was there to serve that purpose? I do not know.
Senator Lang: To clarify the record, the ramifications of the previous amendments have been put in place, and subsequently there has been, to your knowledge, no damage because of it.
Mr. Labistour: Correct.
Senator Lang: Mr. Maas?
Mr. Maas: I did not participate in the last round of discussions two years ago on the Navigable Waters Protection Act. I am also not a proponent of speculating about what might happen in a complex world, especially when you factor the environment into it.
My one reflection on your question is this: If what we are talking about is how we will assess and understand the changes to a law as they translate to the quality of our waters or our environment on the landscape, we are in a position where we will be able to answer that less and less because we are not actually monitoring or setting targets or goals at the ecosystem level any more, other than in a very few specific places where we concentrating our management and monitoring efforts, and mostly our monitoring efforts as it relates to the environment. The bigger question is, how would we know what the implications to these changes would be if we are reducing staff capacity and reducing the amount and coverage of monitoring in this country? We have been doing that for 20 years. That is not a product of the last two or three or four years alone.
Senator Lang: I would like to go further. I come from the Yukon, and quite frankly I do buy equipment from Mountain Equipment Co-op. I am a recreationalist, and I do go out and enjoy my time away from urban living. At the same time, I understand that we have to strike a balance.
Mr. Maas, the reality is that whether you are in the Yukon or in New Brunswick or in Northwest Territories, if you are going to do anything with a waterway, whether it be build a bridge or put in a culvert or affect it in any way, there are certain requirements under the federal Fisheries Act. There are requirements under the provincial or territorial environmental assessment acts. There are requirements under the Highway Act. I am pointing out that there are a multitude of permits — including, in our case, the water board — that you have to apply for and get consent before you can proceed.
Are you telling me that in a waterway that is not being used in most part for major commercial navigation, they are not being adequately protected with those laws that are in place and that have to be followed in order to have any development done? Why would you take that position in view of the fact that there are probably four or five departments you have to satisfy prior to proceeding?
Mr. Maas: What I am getting at here is your point precisely. My head is often stuck in this bewilderingly complex maze of laws it takes not only to get a project through but also to understand from my perspective how to look at a project in a way that we can preserve the environment, for me specifically the aquatic environment, and that speaks to the recommendation I tried to put out to the committee. Let us look at that and put that in front of all of us so that we can begin to assess and think through what integration really means and what efficiency and effectiveness are really about. We are not having that conversation. I agree that there is a lot of overlap, or there may be, but let us get that on the record and put it in front of ourselves and bring that to bear in a transparent way so we can have a discuss about that, not this piece and then that piece being added or subtracted from the overall tool kit.
Senator Massicotte: Ms. Forbes, we heard the minister, and you probably read his testimony when he described the proposed amendments to the bill. His basic argument was that the original intent of this act was always navigation. We have simplified it for those waterways that were heavily circulated. We delegated the responsibility to the province or municipality. We are not touching the environmental aspect at all. We are not diluting the strict environmental criteria and qualities required by the existing act.
I did not follow all of your proposed amendments, but you seemed to suggest that is not the case. You talked about a triggering, which I understand, but you seemed to suggest that there is a dilution of the environmental reviews and the inspections and the concerns that could be expressed. That is how I read your comments. Is the minister fully wrong? Is he telling us a fib? What is going on here?
Ms. Forbes: I am not proposing that the minister is wrong. I do think that the hard and fast repetitious statement we are getting from Transport Canada, that this is an act about navigation and only navigation, would be tantamount to saying that the Criminal Code should exist as it did when it was enacted and that we should not think about Internet crime or drug regulation. Laws evolve and we come to use and amend them over time to deal with things that are concerns to us and our society. I do think the Navigable Waters Protection Act had come to be used as an environmental protection act and, as my colleagues have said, you cannot divorce navigation on water from water.
Senator Massicotte: I can accept your argument that many acts serve many purposes. Having said that, given the amendments proposed to the navigation act, are the environmental reviews and criteria any weaker? Have they been diluted by the amendments proposed?
Ms. Forbes: I do think so. Even if you forget the triggering thing, and that is out of the question and we are not doing that, where you have a project that is being looked at by the Canadian Environmental Assessment Agency, or even by the National Energy Board, if there are approvals that happen by a federal agency that are not under the Canadian Environmental Assessment Agency, then that broadens the type and scope of environmental effects that you look at in that environmental assessment. That is subsection 5(2) of CEAA 2012. For example, you can see that in the Site C dams environmental impact statement guidelines that were issued in September 2012 under the new CEAA 2012. They scoped in a number of additional and more broad environmental effects than they would otherwise be able to because there were approvals that were happening under Transport Canada and the Navigable Waters Protection Act.
Senator Massicotte: There could be something bad happening to the environment that would not be covered under the existing environmental laws and that would have been caught under the old navigation act.
Ms. Forbes: That is how I read it, yes.
Senator Massicotte: The other comment, Mr. Maas, is that navigation has been common law for decades. Nothing changes, so those rights remain. I can appreciate the argument being made that with common law, you have to sue. It is complicated. There is no regulatory body doing so. Given the cost and delays of courts being so immense, maybe that law does not apply to the common Canadian. Am I correct? Is that the principle argument you are raising?
Mr. Maas: It is. I will put one caveat around that, and that is that I do not hold a degree in law. Ms. Forbes is probably in a better position to elaborate. As I understand it, what I see in these changes and potentially under the changes in Bill C-38 to the Fisheries Act is a lot of unanswered questions or areas of gray that will require us to revert to the courts. That is concerning to me because that is not how I grew up understanding the Canadian environmental law and policy development process. To me, that is the U.S. style. It is kind of not the Canadian way. If that is the direction we are going, it will cost, I guess. That remains to be seen, but it may cost citizens and it may cost the government as well in terms of proceeding to court, if that is where things will go.
Senator Massicotte: Thank you.
Senator Johnson: I find your comments very upsetting in terms of the Canadian tourist industry, especially access to water-based outdoor recreation. Were many stakeholder organizations or groups consulted prior to the drafting of these amendments?
Mr. Labistour: Not that I am aware of. I do know that some of the hunting and fishing organizations were consulted. Outside of that, I am not aware of any others.
Mr. Maas: I am not aware of anyone being consulted, no. I know that the fishing and angling community has been convened by the Prime Minister, but as I understand it, there has been very little back and forth dialogue on the Fisheries Act changes in Bill C-38, for example. However, I am not aware of consultations beyond briefings from the agency when the bill was tabled.
Senator Johnson: Would you elaborate more on the marginalization of the outdoor recreation and tourism given this legislation?
Mr. Labistour: One of my recommendations is that we look at the scale of our industry in Canada. If we look at the U.S. numbers, once again, I think that Canadians are a more active society in the outdoors than the Americans are, judging by the numbers that we look at. The outdoor and tourism industry employs many people and creates a lot of revenue. It is lots of small industries, small brands and small outfitters all coming together, whether it be in the hospitality industry, the transportation industry or in guiding industry. When you add them together, they become a significant contributor to the economy of the country. If we do not consider this driver of the economy, I believe it is being marginalized.
Senator Johnson: What about the World Wildlife Fund in terms of the perception elsewhere with regard to this legislation? How did it affect you?
Mr. Maas: To be honest, our supporters are feeling a bit bewildered by the rapid succession of changes and all that is being altered as we have seen in the last budget bill. We participated recently in a report, along with the United Nations Environment Programme, offering advice to financial institutions. One of the things that we raised that made it into that report concerned the extractive sectors around the world. There is a sense of growing or at least a period of risk for investment in extractive industries in Canada because of the broad uncertainty that we are in, at least at this moment in time, related to how projects will be assessed, what the implications will be, and, to the points raised by Senator Massicotte, any potential for intervention of the courts. We are trying to place on the record that we are in a period of uncertainty that increases, to some degree, the risk that others around the world may not be aware of.
Senator Johnson: Thank you both.
Senator Ringuette: I am a New Brunswicker, so when you were talking earlier about the St. John River, the full lights went on. I know that many waterways in Canada are jointly managed by Canada and the U.S., such as a portion of the upper St. John River in New Brunswick.
Out of the 61 listed rivers, do we have any rivers that are under joint Canada-U.S. management? What happens to projects and the environmental laws in Canada and in the U.S. with regard to those waterways?
Mr. Maas: The St. John River is an interesting example because there is to my understanding no formal joint management framework as there is for the St. Croix River, for example, down the coast a bit, where it is an international watershed initiative through the International Joint Commission.
I may ask if I can get a bit of support — and I do not want to put her on the spot — from Ms. Forbes. As I understand it, the Navigable Waters Protection Act does not apply to boundary waters because the Boundary Waters Treaty covers that off. I wonder if there is any clarification on that. I have briefs in front of me, but I will not put you through rifling through them if Ms. Forbes knows the answer to that.
Ms. Forbes: That is my understanding. I do think there is some question as to whether the proposed navigation protection act's regime would put into question our being able to meet our transboundary water treaty, but I am not familiar with the details of that.
Senator Ringuette: There is an issue here for some waterways with regard to treaty, management, environmental assessment, monitoring, oversight, and so forth. I do not think that we have the answers with regard to these waterways. From my perspective, we are looking at quite a number of them because of the very long borders that we have between Canada and the U.S. If any of you could enlighten me in that regard, I would welcome it.
Mr. Maas: We can take that away, if that is okay. I see that as a clarification between the relationship between something like the Navigable Waters Protection Act as it would be or the navigation protection act under the proposed amendments and the relationship to our responsibilities under the Boundary Waters Treaty of 1909, which is just an example of the point I was trying to raise earlier. When we make these changes, they are not discrete. They are tied to many other bits and pieces that we need to have a thorough look at so that we do not open up loopholes while trying to make things more efficient.
Senator Ringuette: Exactly. Tying this to Senator Massicotte's previous question with regard to litigation, what would happen in such a case? Furthermore, the amendments that we are looking at give the builder an opportunity to list the waterways and, from my perspective, also remove all the civil litigation that would be attached to this project. How would that work with regard to a waterway that is jointly administered? I think there are a lot of questions here that I need to have some answers to and I welcome whatever information you can provide us.
Thank you.
The Chair: We will go to second round of questions.
Senator Mitchell: I am very interested in the question of the 1,800 investigations in 2000 that Ms. Forbes mentioned, or maybe it was Mr. Maas, down to 300 now and only one conviction. What did that poor soul do to get convicted? How hard is that to do?
Ms. Forbes: I am taking those numbers from the Atlantic Salmon Foundation, as it says in my report, so I do not know what that one conviction was in 2010. There is a very noticeable and demonstrable reduction in Fisheries and Oceans' staff across Canada. The point is that we get statements about increasing enforcement capabilities, having new fine mechanisms and what we will do with those fines, but it does not mean anything if there is no enforcement of the act. Right now, we do not have the people out there to enforce the Fisheries Act.
Senator Mitchell: Absolutely. You are being asked by people who want to do this, and I think it begs this question: Has anything happened? Has there ever been a problem? How do we know if there has ever been a problem if there is nothing to trigger reviews and we have very few people to investigate if there were a problem in any event? If you ever wanted to push these things through and not have it appear that there are problems, just cut the staff and cut the triggers to do reviews.
Ms. Forbes: The same thing is applicable with the proposals to the proposed navigation protection act and the briefing call that Mr. Maas alluded to with Transport Canada. We were told, as was the committee, what the process was in coming up with a schedule for waterways. Yes, the best available data was used for the major navigation we have going on in major waterways currently, but we do not have a lot of the waterways that Mr. Labistour is talking about which people use because we do not have people there; we do not monitor it. Bad data in equals bad law and policy out. We need better information. One of the problems with doing major legislative reform this quickly is that we do not have all the information before us or what the implications are.
Senator Lang: I want to follow up on this because obviously there seems to be some information that you have acquired. I am not quite sure where you acquired that information to give us the statistics. Was it the salmon foundation?
Ms. Forbes: The Atlantic Salmon Foundation. It is just an example of the reduction in enforcement and convictions.
Senator Lang: Are you aware that in 2009-10, $1.5 million in fines were levied under the old act; 2010-11, $1.2 million; and in 2011-12, $4.2 million in fines were levied and collected? Could you tell me why we would have that increase in fines if we were not enforcing the act?
Ms. Forbes: Fines could be bigger, but also, can you tell me the percentage of DFO staff that has been cut this past year?
Senator Lang: I do not have that in front of me. What I do have in front of me —
Ms. Forbes: There were two thirds cut in B.C. regarding EA, one third habitat.
The Chair: Before we get into a discussion around the table, this is a question and answer between Ms. Forbes and Senator Lang.
Senator Lang: I just want to put on the record that it is important to realize that three times as much has been levied than in previous years.
Ms. Forbes: The point I was trying to make in my submission is that touting the Environmental Damages Fund and the money it is going to collect is not a valid point unless we can demonstrate that we have additional people out there enforcing strong environmental laws that are going to collect that money.
Senator Brown: I am interested in Mountain Equipment Co-op. I was director of management of the Bow River in Calgary, and we had to put a weir underneath the river in order to raise the level to make it go to a main canal for the western irrigation district. As a consequence, we had to put booms across before the weir because it was very dangerous. If a log got in there, it would literally strip all the bark off the log because the water churns continuously. People who would get near that would drown in a hurry. We had a few accidents. People in rubber boats were ignoring the boom, which gave them a sign every so often to tell them that they should not try to go over this weir.
After a few years of losing people, we had to make some changes. I am not sure of the exact figure now, but I believe we spent $18 million on starting with very large boulders, as big as four feet across after the weir, so we could slow the water down and still have it high in order to go into a canal. I think the project was finished two years ago and they kept making the boulders smaller as they went downstream so it looked like it was pretty safe. However, we still had the booms up telling them it was dangerous. This last spring we lost a couple of people because they thought it would not matter now. They ignored the boom and got caught in the boulders in very cold water. In the spring it is very cold. We lost them because they were trapped in there long enough that the loss of heat was enough to have them die before they could be rescued. We used jet boats and everything else.
Is Mountain Equipment Co-op giving any type of safety record to people, telling them what it is like to get into this kind of water? Are we just getting boats, canoes and blow-up rafts that get these people in trouble no matter what you do?
Mr. Labistour: That is a good question. First, just to be clear, we do not sell and do not run any of the big blow-up boats. Those are generally run by a different form of outfitter.
However, we spend a lot of money in the back country in terms of snow safety and water safety, both in the oceans and on running rivers. We partner with outfitters and people that are able to teach these skills. We partner with Paddle Canada to promote the skills. We spend a good deal of money encouraging people to get outdoors because that is part of the culture of Canada. However, at the same time, we put our money where our mouths are to ensure we provide the skills and training not only to do things safely, but to respect the trails and the environment in which people play. We take a holistic view on recreation.
Senator Brown: You made a comment about us having more people going outdoors than they do in the United States. You were doing that on a percentage basis, I would assume.
When I look at Canada with 33 million people, I am not even sure we have one acre for each one of the 33 million, so we are not crowded like they are in the United States. If we tried to have as much protection in terms of the law, it would cost an incredible amount of money to have people do what you propose to do, which is to try to get more people on the ground watching and looking after the safety of the running water. I think it is an awfully big and expensive project.
Senator Patterson: I would like to direct my question to Mr. Maas. It is Mining Day on the Hill here in Ottawa. I had a delegation from the Mining Association of Canada in my office today. They told me that they welcomed the amendments in Bill C-45. I believe that the Mining Association of Canada was invited to make a presentation to our committee, perhaps with a view to expressing concerns, and declined the opportunity to do so. I believe you also mentioned the changes to Bill C-38.
I have heard from mining associations operating in the North nothing but concerns about what they called the overly broad definition of "fish habitat" in the previous Fisheries Act, which led to time consuming environmental reviews where there was no impact on fish or no fish at all. I gave examples when I spoke to the bill in the Senate. They said that moving to one project, one review and timelines, without diminishing the rigour of environmental review, was welcome to them.
You said tonight that you had understood that there was a risk for investment in the extractive industries around the uncertainty of changes. Am I missing something in my discussions with the Mining Association of Canada, who seem to endorse these changes? I know that they have been controversial, but the mining sector has not been complaining as far as I know.
Mr. Maas: No, I would not say that you are missing something from their perspective. Of course, I will not even try to speak on their behalf.
To clarify the report that I referred to, that was our own advice, our own input to a broader global report set within some bounds provided by the report drafters, which is the United Nations Environment Programme Finance Initiative. One of the questions they were probing us on is the degree of certainty associated with the present regulatory regime. I am not aware of whether or not mining industries or other extractive industries were included in that report or that assessment.
I have heard consistent messaging from that sector, through various channels, that they are very supportive of the changes in both Bill C-38 and here.
Senator Patterson: Thank you.
Senator Ringuette: My question is a follow-up to Senator Lang's question. I am new on this committee, so I have a question for you, Ms. Forbes.
With regard to process, if there is a complaint, an investigation, charges — in the scenario I am talking about, there would be reason to charge — court proceedings and a verdict that would include fines, what would be the timeline of that?
Ms. Forbes: That is highly variable, depending on your jurisdiction, what the backlogs are like there, if it is a difficult case and whether or not it is appealed. I would say roughly anywhere from one to six years. That is a very rough estimate; I have not done any breakdown of that.
Senator Ringuette: Let us say that in 2011-12 there were fines of $47.9 million. That does not mean that these fines were the result of Bill C-45 or the previous bill. Therefore, we definitely cannot assume that this amount of fines is the result of complaints, investigations, court proceedings or court rulings in 2011-12. Is that right?
Ms. Forbes: No, it would be based on the previous Fisheries Act. However, there are also different ways of levying fines and liabilities. Some are stricter and more direct.
I do not know when those instances would have happened and when we would have —
Senator Ringuette: I did not want us to assume that the increase in fines collected in 2011-12 was because of changes in the process required to get to that point. The point between establishing a fine and collecting the fine is probably a lot more than one year. Your guess of anywhere between one and six years is probably right. I think we need to correct an assumption here.
Thank you, Ms. Forbes, for giving me the opportunity to understand that the process is not three months or six months or even one year; it is more than that.
The Chair: Thank you, everyone, for your questions. I have a couple of observations I would like to make.
Mr. Labistour, in your comments you talked about five things that you were very concerned about. I appreciate that, and I am happy that you did. The last one you talked about was public safety. I want to read from it. "Anyone who has encountered wire, garbage or debris from industrial development while paddling or boating knows that it can be extremely dangerous." I totally agree with you.
I live quite close to a lake. There is no industrial activity — zero — but lots of recreation, boating, fishing, you name it. We have to have a cleanup around there every year to pick up the garbage. Would you agree with me that it is not just industrial activity that sometimes leaves those things behind and that it is actually other people out there using the waterways for recreational purposes? I do not know how else that stuff gets there.
Mr. Labistour: There is no question about that. I am still amazed in this day and age that litter in our streets and our communities is an issue. Saying that boaters throw things overboard or leave things behind is absolutely valid, but I do not think that takes away from the fact that there are other things that we need to guard against as well.
The Chair: I totally agree with you. I just wanted to clarify that you were not stuck on it just being industrial development that did it. It is people in general, and industrial development can cause the same things.
Mr. Labistour: Yes, no question.
The Chair: The second question I have is to Mr. Maas. In your recommendations, you say that the government should get everyone together — provinces, territories, municipalities, business, industry, NGOs and citizens — to take a greater role in protecting our waters and aquatic environment. Then you say, "That small step alone would bring Canada back into stride with leading jurisdictions on water policy and sustainable water management." The European Union is one that you mention, as are South Africa and Australia.
Can you give me some place I can go to, such as a website, to find out where the European Union, or a country as large and diverse as South Africa or Australia — millions of people — has actually gotten these people together to figure out how they will look after the water? Could you give me somewhere I can go to find out exactly how they got these thousands of people to agree on something?
Mr. Maas: I am sure that they did not get everyone to agree, for starters. However, let me point you to, for both of those examples, a place to start and a place where I think Canada should go. I am not suggesting that we get hundreds of thousands of people in a room together to try to reach consensus.
The European Union Water Framework Directive set a goal across the European Union countries that all waters in the union would be in good condition or better by 2015. That has driven all sorts of important science, research, collaborative decision making and water management planning across 23 different languages and 27 different jurisdictions. It is hard for me to swallow when I am told that any kind of comprehensive view of water policy in Canada would be stymied by the fact that we have shared jurisdiction between the provinces and the federal government.
In South Africa the process was very different and one that is not desirable to replicate, I would say, or easy to replicate. A lot of the progressive work that happened there came as a product of rewriting the constitution post- apartheid South Africa where the environment was included as having a stake in water resources. In that country, it is required that the environment has a voice, if you will, in water management planning, and that is written into their constitution. In that instance, it has driven all sorts of progressive water policy reform and all sorts of challenges that they have run into.
In Australia, it is driven largely by drought in the Murray-Darling Basin.
We have partnerships that have caused many collaborators in my sector to raise their eyebrows, such as partnerships with Coca-Cola, for example, who are on the same page in terms of where we ought to be going in terms of protecting our water resources. I cannot speak for them, but I can certainly speak to a partnership we have had with them in Canada and globally for five years. We are moving together and forward on protecting water resources. These kinds of things can be replicated. What we lack in many respects is active leadership by federal and often provincial governments to move forward.
The Chair: Thank you for that. I appreciate it. I live in a part of northern British Columbia where hunters, anglers and people from all over the world come to be outdoors and to do those kinds of things. As I understand, Canada is still one of the most sought-after countries to immigrate to because of all the things we do — not always correct, and no one will always do it correct, but I think we do it pretty well. I always try to keep that in the back of my mind when I think about these things. We are pretty darn lucky to live in a country like Canada and to have what we have. I agree with some of the things that all of you said. We need to maintain that in the best possible way we can because if you do not have a good environment, you will not have a good economy. If you do not have a good economy, you will not have a good environment. Where I come from, the people go to work every day and do not put their hat on and go out in industry and say, "I want to do something negative to the environment." They appreciate where they live, and they live up there because they are in the environment all the time.
Thank you very much, all three of you, for great presentations. I appreciate it. I thank everyone for their questions.
(The committee adjourned.)