Proceedings of the Standing Senate Committee on
Issue 2 - Evidence
OTTAWA, Tuesday, April 3, 2001
The Standing Senate Committee on Fisheries met this day at 8:00 p.m. to
examine matters relating to the fishing industry.
Senator Gerald J. Comeau (Chairman) in the Chair.
The Chairman: Honourable senators, our witnesses this evening are
representatives of the Coalition of Concerned Citizens of Caledon.
Mr. Charles Birchall, Legal Counsel, Coalition of Concerned Citizens of
Caledon: Honourable senators, I am an environmental lawyer in Ottawa. The
firm of Birchall Northey is a private-sector law firm that does a significant
amount of public interest advocacy on behalf of citizens and not-for-profit
organizations across Canada.
With me is Mr. Rod Northey, a Toronto environmental lawyer. He will speak to
you this evening about issues concerning environmental assessment. He is the
author of a very large environmental assessment text, the 1995 Annotated
Canadian Environmental Assessment Act and EARP Guidelines Order.
With me also is Mr. Andrew Dumyn. He is a senior business person in the
mining sector who has spent a tremendous amount of volunteer time over the last
three years working for the executive of a coalition of over 3,000 residents of
Caledon. Caledon is just northwest of Toronto. Some of the members of the
coalition have made the drive to be with you this evening.
Caledon is in southern Ontario. It is at the headwaters of the Credit and
Humber Rivers, flowing south into Lake Ontario. Environment Canada has just
highlighted the importance of this area, dating back to 1996, as a major
We are here this evening to highlight the serious concerns we have with DFO
practices relating to the conservation and protection of Canada's inland
fisheries. The proposed Rockfort Quarry in Caledon highlights the problems. It
is situated on a 200-acre site that will involve extracting millions of tonnes
of aggregate 100 feet below the water table in an area surrounded by fisheries
on three sides of the quarry. Mr. Dumyn will address issues associated with the
quarry. A more detailed analysis was provided to the chairman in January, I
In a nutshell, we have five points. One, we think that the DFO has a clear
statutory and policy mandate to conserve and protect Canada's inland fisheries.
Two, properly applied, the Fisheries Act, the Canadian Environmental
Assessment Act and the 1986 policy for the management of fish habitat give the
DFO the tools to anticipate and prevent harm to fish resources, including inland
Three, while the DFO talks a lot about the importance of conservation and
protection in such documents as its sustainability policy, its actions seem to
say something quite different.
Four, the Rockfort Quarry case serves as a stark example of this dichotomy.
Five, we are here to urge this committee to turn its attention to these
matters by launching a formal review or inquiry. We know that this committee has
been examining certain issues concerning inland fisheries. It has heard about
the importance of this renewable resource not only from a sustainability
perspective but also from an economic perspective. The evidence is clear.
I reference a 1995 DFO document that summarizes recreational fishers as
spending approximately $6 billion on fishing inland fisheries. A 1990 Ontario
study identifies Ontario recreational fisheries as involving expenditures of
$3.4 billion per year. The DFO study indicates that 4.2 million anglers fish in
Canada every year. Almost 1 million are foreign tourists. It is estimated that
fishers spend over 700,000 volunteer days doing habitat cleanup, fishway
construction and other work. Canadians care deeply about this resource.
Given this virtually incomparable level of recreational participation, how do
Canadians think the federal government is doing through DFO when it comes to
conserving and protecting fisheries? The answer is that Canadians are not too
impressed. In a recent poll released to the press, a mere 6 per cent thought
that DFO was doing a good job of protecting Canada's fisheries. Canadians are
worried that this precious renewable resource is being squandered.
It is clear, however, that the federal government, through the DFO, has the
constitutional responsibility for managing and protecting fisheries resources in
Underpinning the DFO mandate is the Fisheries Act. Since Confederation, DFO
has had the power to prosecute persons who damage fish and fish habitat. In
1977, the DFO obtained the power to intervene in the planning process of a
project before it results in harmful alteration, disruption or destruction of
fish habitat. The three of us will be referring to that phrase as a
Since 1977, the DFO has repeatedly made it clear that its top priority is to
intervene in the planning cycle of a project. As the then Minister of DFO, the
Honourable Roméo LeBlanc, when introducing key Fisheries Act amendments in
...we would be able to examine the plans first, and to require modification
or, if necessary, prohibition. Instead of accusing someone, after the fact, of
destroying fish habitats, we would be part of the planning to save them.
In 1986, the DFO built on these amendments by presenting its policy for the
management of fish habitat to Parliament. The policy remains the central
document for managing fish habitat in conjunction with the Fisheries Act.
Its first goal is fish habitat conservation. The act and policy give DFO two
separate regulatory powers to ensure that DFO can intervene in the project
planning stage. First, the DFO can issue an authorization to the proponent,
where the proponent requests it. Second, the DFO can issue an order against the
proponent, where the proponent has not requested authorization but the DFO is
seeking to prevent harm.
Under these powers, the DFO can require proponents to implement measures to
prevent or mitigate harm to fish habitat. It can even stop projects from
proceeding where there is harm.
These strong powers are complemented by further powers central to the act and
the policy, namely, the DFO power to request information from a proponent at the
earliest stages of project planning.
According to the policy, DFO obtained these information-gathering powers to
get involved in projects on a proactive basis. These powers can be used
regardless of whether proponents have sought out the DFO.
Notwithstanding this clear direction and mandate, the DFO has developed a
practice of requesting information only in rare circumstances. Instead of taking
charge, the DFO prefers to wait for the proponent to seek an authorization from
it before conducting any kind of an assessment. In the Rockfort Quarry case, it
took a 3,000-member citizen coalition to trigger DFO inquiries.
Yet, the "waiting" strategy has an obvious failing. A proponent may
decide it does not wish to seek authorization from DFO. In this scenario, there
can be multiple processes dealing with the same project and, yet, no process
that integrates fish habitat issues with other design issues.
This is the Rockfort Quarry situation. A provincial hearing has commenced
regarding this matter and the DFO is still trying to make up its mind whether an
80-year project that all parties, including the proponent, acknowledge will
cause a HADD deserves to be formally assessed under the Canadian Environmental
I will now turn the floor over to Mr. Northey who will talk about the DFO and
Mr. Rodney Northey, Partner, Birchall Northey: Honourable senators, I
will give a bit of background on the Canadian Environmental Assessment Act. As
you may be aware, federal environmental assessment moved from policy into law in
the late 1980s with decisions of the Federal Court of Canada.
In 1992 the Government of Canada assented to a new Canadian Environmental
Assessment Act, but delayed its proclamation.
In 1995, the Government of Canada did proclaim the Canadian Environmental
Assessment Act in force and of significance for fishery issues. In that
proclamation, some regulations were passed, and those regulations clearly
require environmental assessment where DFO is engaged in making, one, an
authorization to deal with harm to fish habitat or, two, an order against a
proponent for a project that may harm fish habitat.
It is very clear that, as of 1995, the Canadian Environmental Assessment Act
does apply to decision making by DFO.
From a policy perspective, the 1995 act is really a step-by-step mirror of
the 1986 DFO habitat policy that Mr. Birchall mentioned. From a legal
perspective, the environmental assessment legislation is also complementary to
the 1977 amendments to the Fisheries Act that Mr. Birchall also talked about, in
this respect: The amendments and CEAA require DFO to get involved in project
planning early in any federal decision-making process.
To provide several points from the legislation then, I will crib some terms
from CEAA. First, the Canadian Environmental Assessment Act requires an
environmental assessment of a project "as early as practicable in the
planning stages of the project."
Second, the preamble to the act states that the Government of Canada is
"committed to exercising leadership within Canada and internationally in
anticipating and preventing the degradation of environmental quality."
Notwithstanding all of this about CEAA and environmental assessment, the DFO
seems determined to trigger environmental assessment of a project only as a
matter of last resort.
Instead of triggering early assessment, the DFO has adopted an internal
practice of not triggering any environmental assessment until it has reviewed
all possible measures to prevent or mitigate adverse effects to fish habitat and
has concluded at the end of the review that prevention and mitigation will not
Now, that is the internal practice. One compares that to environmental
assessment legislation, which is a public legislative process to consider the
prevention and mitigation of adverse effects.
Putting those two together, we have, by DFO logic, a process where, only
after DFO concludes the prevention and mitigation will not work, it will trigger
legislation to consider prevention and mitigation.
Into this bureaucratic absurdity, two additional points should be added.
First, this legislation states as one of its purposes that it is intended to
avoid duplication of process. Further, to avoid duplication of process, there
has been a regulation passed called a "coordination regulation." The
coordination regulation provides a timeline for triggering environmental
The regulation indicates that environmental assessment should be triggered on
the basis of a "project description," a defined term that makes no
reference to mitigation. It also says the triggering process should require no
more than 40 days of bureaucratic time.
As you will hear from Mr. Dumyn shortly, DFO received the quarry project
description in the spring of 1998, almost three years ago, yet, today, no
assessment has been done.
The second point that underlines the extent of DFO machinations is a cabinet
regulation under CEAA to address major projects. Under the CEAA, major projects
are required to undergo something called "comprehensive study." For a
project to be required to undergo comprehensive study, cabinet must have
concluded prior to the regulation that the project is likely to cause
significant adverse environmental effects.
The Comprehensive Study List Regulations include stone quarries with a
production capacity of at least 1 million tonnes per year. The Rockfort Quarry
extracts up to 2.5 million tonnes per year, with the bulk of that extraction
below the water table.
As of 1999, DFO has acknowledged that this project does require comprehensive
study if it triggers environmental assessment, yet today we still do not have
Let me summarize. There is an act that says: trigger assessment early in
project planning, engage the public, and avoid duplication. There is a cabinet
regulation that says: trigger assessment on the basis of a project description
that does not refer to mitigation, and do that process of triggering in no more
than 40 bureaucratic days. There is a further cabinet regulation which says:
Major projects likely to cause significant adverse environmental effects require
comprehensive study from the outset.
However, DFO has an internal, untimed, non-legal, behind-closed-doors
practice of not triggering assessment on even major projects until it concludes
that prevention and mitigation of environmental effects cannot work. Under this
approach, DFO has given the proponent three years and three separate
opportunities to redesign the project so that DFO does not trigger environmental
If the Rockfort Quarry were an exception to DFO practices, we would not be
here. We have been repeatedly advised by DFO that this is a process that it
routinely adopts. In fact, we have been told that, as far as this quarry, we
should be grateful because DFO has done more than usual by asking the public to
comment at this stage of the process.
We can tell you of, and be pleased to talk about, other projects showing a
similar pattern. In this scenario, it is not surprising that the public has low
regard for the federal government's record concerning fisheries.
We respectfully ask this committee to cast a light on these serious issues by
holding hearings that address the following three questions: Is the DFO using a
prudent or precautionary approach in carrying out its responsibilities under the
Fisheries Act and the 1998 policy for the management for fish habitat in order
to prevent harm to freshwater fish habitat? Is the DFO taking full advantage of
the legislative powers and authority of the Canadian Environmental Assessment
Act to intervene in project planning to prevent harm? Is the DFO using its
legislative powers under these statutes to meet its stated objectives under its
sustainable development strategy to make decision making more transparent,
accountable, timely, effective and consultative?
Mr. Andrew Dumyn, Member, Coalition of Concerned Citizens of Caledon:
Honourable senators, I would refer you to our 10-page letter. When you look at
the map provided by the clerk, you will see that we are focusing on inland
fisheries in southern Ontario, northwest of Toronto. Figures 1 and 2 attached to
the letter show a hatched rectangular shape that is the proposed location of the
Rockfort Quarry. The circles show the identified locations of fish on three
sides of the quarry.
Since 1996, James Dick Construction Limited has been publicly committed to
building and operating a 200-acre quarry in the western part of the Town of
Caledon. For 30 years, the planned rate of extraction will be up to 2.5 million
tonnes of aggregate per year with virtually all of the valuable aggregate lying
up to 100 feet below the water table, or 10 storeys. It will take another 50
years for the ground water levels at the quarry to be stabilized, long after
James Dick Construction has stopped earning revenues from the mine. This is not
a small or insignificant project. I fear my grandchildren will be living with
the costs of this project.
Once the quarry proposal became known to the public in late 1996, the
coalition was formed to do three things: uncover relevant facts, issues and
risks associated with the quarry; provide timely and accurate information; and
represent all those who might be adversely affected by the quarry. The coalition
has now more than 3,000 members.
For three years, the coalition, the mayor and council of the Town of Caledon,
and other concerned citizens and local regulatory authorities have spent
significant time and hundreds of thousands of dollars trying to obtain and then
review information respecting the quarry. The coalition and the town have hired
experts in fisheries, ecology, hydrogeology, mining design and engineering. Even
though this project clearly qualifies for comprehensive study under the Canadian
Environmental Assessment Act, we are still trying to convince the Department of
Fisheries and Oceans to trigger an environmental review.
During this period, the coalition has been at the altar three times with DFO.
The first time was in 1999, trying to get DFO interested in reviewing the
project. Given the likelihood of HADD, initially DFO was content to leave the
matter in the hands of the Credit Valley Conservation Authority, a provincial
organization that has no power to request and obtain information from the
proponent, and it was stonewalled in its information requests for 16 months.
The second time was early in 2000, trying to convince DFO that, based on the
information provided by James Dick Construction, there was likely to be a HADD
and that environmental assessment should be triggered. In February 2000, we were
advised by the minister's office that the Canadian Environmental Assessment Act
would be triggered. In March 2000, we were advised that the decision had been
deferred pending the receipt of further information from the proponent.
The third time was early this year, when we provided detailed comments from
our experts on fish habitat and hydrogeology.
We are not the only ones pressing the DFO to act. Murray Calder, the elected
federal member for the riding, has met with staff and written letters to the
minister at various times asking the DFO to immediately trigger an environmental
assessment of the quarry. In Mr. Calder's words, the purpose for triggering a
comprehensive study of the quarry is to take a prudent and precautionary
The coalition is deeply concerned that, instead of having an open and
transparent process, the DFO will internally review the comments filed by
interested parties and then just continue to ask James Dick Construction, behind
closed doors, to strengthen its application by providing more information
respecting HADD and possible mitigation measures. In short, DFO seems to be
doing everything it possibly can to give James Dick Construction the go-ahead
without the required study.
On behalf of the coalition, I am asking the standing committee to cast a
needed light into the DFO's mission and practices. Holding an inquiry into this
matter may cause the DFO to finally exercise a leadership role concerning the
conservation and protection of inland fisheries before it is too late for places
I thank you for the opportunity to make this presentation. We would be very
pleased to answer any questions.
For the committee's assistance, we have copies of our submission and relevant
maps of the quarry illustrating the draw-down effects, which we will hand out.
The Chairman: On behalf of the committee, I thank you and members of
the coalition for appearing before us tonight. Your appearance shows the
commitment that you have to this project.
Your presentation is somewhat timely. This committee has expressed interest
in the whole question of habitat protection, both inland and salt water.
Your presentation might be a catalyst for us to pursue this matter, although
you raise concerns that have already been expressed by others.
Senator Corbin: I am looking for some additional information. Did I
understand correctly that there will be an ongoing provincial process in
connection with this project of public hearings? If so, can you tell me what the
purpose or objective of the process is, and in what way that would tie in with
DFO responsibilities or federal government environmental responsibilities?
Mr. Northey: To briefly answer that question, the provincial process
that is going on at present and has been going on since early 1998 is headed to
a board called the Ontario Municipal Board. That board typically deals with
planning matters and also, in provincial law, has a lead responsibility over
aggregate resources under the Aggregate Resources Act. Both of those matters
have, for this particular quarry, triggered a public hearing process.
One of the limitations that can be pointed to is that, since 1997, I believe,
there has not been an agreement in place between the Province of Ontario and the
federal government on the issue of fish habitat. Prior to that time, there was
such an agreement.
One of points pertinent to that is that, when there was an agreement, the
province did have a lead role in referring and dealing with issues of fish
habitat and sending those on to DFO. Thus, there was clearly a provincial role.
Absent that agreement, DFO has been increasing its staff throughout Ontario
because it recognizes that it has a lead responsibility to deal with fish
The silent issue at this point is: What is the authority of the OMB to deal
with fish habitat specifically? One can point to some longstanding decisions
that say that fisheries is clearly a matter of federal concern. Thus, the
question is: Can the OMB even deal indirectly with the issue of fisheries?
There are many processes in other provinces where there is contemplation of
joint reviews. In fact, Fisheries and Oceans jointly reviews projects in an
integrated regulatory process. There is no integration proceeding right now.
There is nothing to suggest that integration will occur.
Our early hope was that DFO would trigger federal environmental assessment to
create pressure for there to be that integration. By that, there would be two
parallel regulatory processes going on with one project. How would they
reconcile their competing visions of what needs to be done?
What one has now is a situation where the provincial process is barrelling
ahead. What DFO has to say about this or contribute to planning is still
unspoken because they have not even initiated the first thing to trigger an
assessment and/or regulatory action.
Mr. Dumyn: There is another problem with that. We are faced with the
dilemma that the proponent has submitted all his application documents to the
provincial authorities, and has advised the municipal board that his application
documents are complete and, therefore, the provincial process should proceed.
The proponent is also telling DFO people who are revising the entire mining
plan and the mitigation measures of this particular quarry, "Don't bother
reviewing the application documents because they are not the final
He is allowed to proceed provincially, whereas federally the process is being
The Chairman: I have a note that indicates that, in 1997, the Ontario
Ministry of Natural Resources formally withdrew from any kind of agreement with
the federal government for the review of the authorization of projects. Do I
under that correctly?
Mr. Northey: Yes, that is correct.
The Chairman: Thus, whether the developer has submitted its documents
to either local or provincial authority is irrelevant, because the relevant body
to which this submission must be made is the DFO; is that correct?
Mr. Northey: That is true. However, another issue has arisen in
Ontario under bodies called conservation authorities. As there has been an
absence of provincial agreement, under Ontario law, there is provision for
watershed bodies called conservation authorities to deal with watershed matters
under provincial law. The Department of Fisheries and Oceans has been involved
in negotiating agreements to take on matters that the province backed away from.
What one might add, though, in this particular quarry context, there is a
conservation authority. The conservation authority was made aware of this
project early in 1998, at the same time provincial applications were filed, and
the conservation authority requested information to answer some questions, but
has absolutely no authority to get the answers. DFO has the authority to get the
answers, but it did not get involved until 16 months later.
There is an issue about whether conservation authorities have the ability to
step in and do what DFO needs them to do in the early stages.
The Chairman: My understanding is that the general agreements with the
conservation authorities have not yet been signed.
Mr. Northey: I believe many have been signed.
The Chairman: Would you know whether the authority that would be
responsible for this particular project has been signed?
Mr. Northey: My understanding is that they are signed, renewable on a
yearly basis. I could not say whether the present one in Credit Valley has been
renewed but, certainly, in the recent past, an agreement has been in place.
The Chairman: Even though the group does not have the authority to
demand information; is that correct?
Mr. Northey: That is ultimately why we went to DFO and said,
"Stop waiting for this authority to deal with it. They cannot deal with
Senator Chalifoux: I come from Alberta where we had some concerns
regarding the fisheries in northern Alberta. Upon investigation, I was told that
the federal government does not have the jurisdiction for fish or fish habitat
within Canada, that provincial governments have jurisdiction. I was also told
that the only jurisdiction the federal government has is for rivers that flow to
the sea. That is their only responsibility, otherwise it is a provincial
jurisdiction. I should like to know what you have found out.
Mr. Northey: The next time someone gives you that answer, you should
tape it, because there is nothing true in that answer.
One of the few instances in the Constitution where the federal government has
clear authority over local matters concerning the environment is fisheries. That
power is paramount. There is no ability in a province to assert jurisdiction
over fisheries unless the federal government lets it, through an agreement. That
brawl has constitutional cases going back since Confederation, with Ontario
being one the first jurisdictions to challenge it and, all the way up, the
courts have clearly said that DFO has the lead responsibility in fisheries, and
their lead responsibility is to ensure the conservation of fisheries. In that
they have paramount authority.
In the 1970s, they expanded that legal authority by dealing with fish habitat
specifically in the Fisheries Act. In the 1980s, there were two challenges to
DFO's constitutional authority under the Fisheries Act. On the first, they were
nailed and were told they went too far. On the second, the court upheld what
they were doing.
As far as I can enlighten this committee, there has not been a challenge to
DFO's constitutional authority over fish habitat since the early 1980s.
Senator Chalifoux: I got around that because all the rivers go into
the Arctic Ocean.
What species of fish are we dealing with?
Mr. Northey: Trout is the main species. It is a cold water fishery, so
there are various fish, cold and warm.
Mr. Dumyn: There are approximately 16 species in total, but trout and
bass are the two main species.
Senator Callbeck: In section 35 of your brief you summarize the
situation. You say the act triggers assessment early in the project planning,
engages the public and avoids duplication. You talk about the 40-day deadline,
as well as the cabinet regulation. You say that major projects likely to cause
significant adverse environmental effects require comprehensive study from the
outset. Then there is a "but," that being that DFO is not following
the legislation or the regulations.
Is it the case that they never follow the legislation and the regulations?
Mr. Northey: Believe it or not, that is our understanding of how they
have interpreted the legislation. They have created a circle where one never
gets out of the situation of assessing whether their mitigation might work. I
might explain the circle this way: They review; they get project information;
they ask whether anything can mitigate it; the proponent comes back with some
information; DFO asks whether they are sure there is nothing more; and it just
keeps going around. DFO never wants to stop gathering information, trigger an
assessment, and get the public formally involved.
Therefore, yes, that is our understanding.
Mr. Birchall: In this case, as a result of access to information
requests, we have learned that DFO has hired an outside hydrogeologist who seems
to be helping the proponent strengthen its case around mitigation measures.
Senator Cook: To follow up on Senator Callbeck's question, have you
any evidence-based information that, until it concludes its work, the prevention
and mitigation of environmental effects cannot work?
Mr. Northey: In March of last year, the minister's office informed us
that DFO would trigger the Canadian Environmental Assessment Act because it had
concluded there was a problem with habitat that could not be mitigated. Through
access to information, we obtained the very letter that was supposed to be
handed across at a meeting. We understand, from information received months
later through access to information, that the proponent came to the meeting with
a lawyer who said, "We are going to change the project. Therefore, if you
trigger an assessment on the project that you have concluded will cause HADD,
you will be triggering it prematurely because we are now going to change the
The result was that DFO gave the proponent until September of last year to
provide more information, allegedly on changes to the project to prevent harm to
fish habitat. In September, more information came forward, but not a complete
package. We again wrote to DFO saying that they had not kept to the bargain and
asked for the triggering of the Canadian Environmental Assessment Act because
the theories still held.
Then, most impressively, in October the proponent told the Ontario Municipal
Board that the project information had been complete since March 1998 and that
the municipal board should proceed expeditiously with its hearing; this at the
same time that the DFO has a view that the project description is changing
At the end of the day, we now have what the proponent calls the "full
package." The project has not become smaller. The project design has not
changed. Here we are in April of 2001, more than a year after DFO concluded that
there was a HADD with the project they then had, and we still have that same
project, and they still have not figured out what they are doing.
Senator Mahovlich: Thank you for appearing this evening. I want to
make it clear to fellow senators that this is a very sensitive area. It is high
ground, and that is where all rivers begin. That goes right into Lake Ontario
where the lake trout come up to spawn.
Are the golf courses affecting this area?
Mr. Dumyn: We have heard rumours that the Devil's Pulpit golf course
is taking a considerable amount of water, but I think the golf course has come
to terms with that problem.
Senator Mahovlich: Does the use of fertilizers affect the lakes at
Mr. Dumyn: We have not gotten into that in a significant way. We
focused mainly on the quarry because they were going to drop the water table by
at least 100 feet. That would destroy not only the fish habitat. but also the
well water for the residents within two kilometres.
The last map in our presentation has a series of concentric circles. The
quarry is marked in red. The concentric circles tell you how far the water table
will drop. It will drop 25 metres directly around the quarry, about five metres
one and a half kilometres away, and two metres about two kilometres away.
Mr. Northey: This map was produced by the coalition as part of its
submission to the Department of Fisheries and Oceans earlier this year, and is
based on the opinion of the coalition's hydrogeologist. This opinion attempts to
predict what the effects of the quarry will be before asking whether mitigation
will work. It is an attempt to determine what mitigation must address as a
This map is significant because the proponent, despite the three-year
process, has never produced any information on what will happen to fish habitat
if mitigation fails. The purpose of this page is to provide an indication of the
baseline effect of this project if their mitigation does not work. The purpose
of these circles is to show the extent of draw-down in this sensitive area.
Senator Robertson: Thank you, gentlemen, for appearing here tonight. I
feel a bit like Alice in Wonderland. I have never heard such a story heard in
the 34 years I have been around government circles.
Have Department of Fisheries and Oceans officials asked to sit down with you
to try to resolve this? Have you had any face-to-face exchanges, or is it all
done through correspondence? I think we are getting so esoteric with some of
these things. What is your relationship on a person-to-person basis with the
Department of Fisheries?
Mr. Birchall: We have had a number of exchanges with the Department of
Fisheries and Oceans, from the people who are on the ground responsible for this
assessment in Burlington up to and including the minister's office. We have been
attempting to provide our view of this matter, in earnest, since the spring of
1999. We have written letters. We have provided briefing notes. On one occasion
we met with legal counsel for DFO. There has been no shortage of communication
in that sense.
As we have said in our brief, the DFO has a different view. As far as they
are concerned, they do not need to consider triggering an assessment until they
have concluded that there will be a harmful disruption or destruction of fish
habitat, and it cannot be mitigated. The proponent must come to them. They do
not make efforts to go out and find out about these things. Until they come to a
conclusion, there will be no triggering of the act.
It has been a very long process. We met as recently as two weeks ago with the
staff of the DFO and Mr. Calder to press for the notion that a precautionary
principle should be applied in this case. This is a project that is on the
comprehensive list of the Canadian Environmental Assessment Act and it should be
triggered. To date, we have not had any success. Indeed, we have been met with
the line that we should be grateful that the bulldozers have not begun digging
out the quarry.
Mr. Dumyn: We received a great deal of information under the access to
information legislation. We have some of the internal memos that passed through
various DFO offices. One memo that is very telling is one in which DFO are
trying to help the proponent to avoid triggering the provisions of the act. DFO
notes state that "Ray Blackburn, a hydrogeologist hired by DFO, an
independent reviewer of this project, attended and provided good and valuable
suggestions to the proponent for strengthening the report." That is to
confirm the fact that there is a great deal of reluctance to trigger the act.
Senator Robertson: If I understood you correctly, you mentioned
fisheries officials in Burlington. Do they understand your problem? Are they
cooperative? Where is the blockage? Is it in Burlington or in Ottawa?
Mr. Northey: I am not sure I will get the entire hierarchy right, but
our access to information requests show that DFO was aware as early as March
last year that this project would be harmful to fish habitat, and that the
Canadian Environmental Assessment Act and a comprehensive study should apply.
Since that point where everyone signed off on that, we learned that the
proponent said it would change its project design. The briefing notes that we
are now receiving through access to information requests do not admit that DFO
ever thought there was a harm to fish habitat, even though, as I said, the
project has not changed. In some sense, our concern is they are going even
further away from doing something to trigger assessment, and not getting closer.
You asked if Burlington is aware. They are certainly aware because the
determination that this project would cause that harm started in Burlington and
went all the way up from there.
Senator Robertson: You have great patience. I suppose the committee
will need to consider this. I have never heard tell of anything as bad as this.
Mr. Northey: They have lost a few fisheries elsewhere.
Senator Robertson: They sure have.
Senator Mahovlich: There are a lot of private fishing clubs in that
area, are there not?
Mr. Dumyn: Yes, there are a number. There is also Trout Unlimited
Canada and Izaac Walton. About half a dozen clubs fish the Credit River and its
Senator Mahovlich: Are they active with you?
Mr. Dumyn: Yes, they are. We have spoken with them, and they are very
supportive of our concerns. They believe that the Credit River draws a lot of
tourists. People come from the states to fish there. It is important, and it is
well recognized. The forks of the Credit are recognized as a good fishing spot
in North America.
Senator Adams: I come from the North, gentlemen. You mentioned that
there are 3,000 members in your coalition. You also told us that an Ontario
study identifies Ontario recreational fisheries as involving expenditures of
over $3 billion a year. Are there any outfitters who are part of your
Mr. Dumyn: We are independent. Some of the people who are members of
the fishing organizations are our supporters. There are people within the area
who tie flies, who do some guiding, teach people how to fish and whatnot. As I
say, we are in contact with approximately five fishing clubs. They are aware of
what we are doing and are supportive of us. Does that answer your question?
Senator Adams: Yes. Is there anything, any mineral or substance at the
proposed quarry site, that will affect the fish? Are you aware of what will kill
off the fish or harm them?
Mr. Dumyn: We hired a fisheries expert who did a count of fish in the
area. He concluded that there was a cold-water fishery, that we had a few
species of trout and bass. He determined that if this quarry went into
production the draw down by the quarry would kill all the natural springs that
feed the creeks that support the cold-water fishery. The fishery around the area
of the quarry would definitely be affected and destroyed. The habitat would be
Senator Adams: In the area right now, does DFO put any fish into the
Mr. Dumyn: Not in this area. This area is self-sustaining. They are
not doing anything. This is a wild situation; a natural environment. There are
no seeded streams.
Senator Adams: Without the fishery, will tourists still visit the
area? Is there another potential source of income in that area?
Mr. Dumyn: I did not realize how significant the income from sports
fishing is in the area. It is far larger than I ever thought. Apparently, in
terms of benefits, the commercial fishery provides approximately 20 per cent,
while sports fishing contributes approximately 80 per cent. It is significant.
Senator Robertson: You mentioned that Murray Calder, your federal
member of Parliament, has been involved with you. Has he spoken to the minister
to appraise him of your problems or to arrange for a meeting of your coalition
with him? In either case, has he been successful?
Mr. Birchall: Mr. Calder has done that. He wrote a letter in May of
1999 requesting the then Minister of Fisheries to trigger an environmental
assessment and met with no success. He wrote again to the current Minister of
Fisheries asking him to trigger an environmental assessment and met with no
success. He met with officials at DFO as recently as three weeks ago and met
with no success. He has met with the minister's staff on at least two occasions
and has met with no success.
Senator Mahovlich: Private clubs are stocked, are they not?
Mr. Dumyn: Yes, they are. Trout clubs have stocked ponds. They raise
Senator Corbin: Out of sheer curiosity, what makes that particular
site so attractive to the proponent? I do not dare ask if there are alternate
sites, certainly not within the region as far as you are concerned. That is the
last thing you would like.
Mr. Dumyn: The reason this site is attractive is that it is close to
his other operations. James Dick Construction Limited runs cement plants. At
this point, the company must buy crushed stone from other producers. It is
readily available, but they want their own supply. It just happens to be close
to the operation's other locations, so it is convenient.
If you wish to address the issue of need, the resource in Ontario for
dolostone, which is required for good cement, stretches from Hamilton all the
way up the Niagara Escarpment, through the Bruce Peninsula, around Manitoulin
Island and into the United States. It is a band of stone about 10 to 20 miles
wide. Literally billions of tonnes are available. There is no shortage of this
material. Mr. Dick just happened to pick this location because it was convenient
for him. Knowing that the Ontario Municipal Board has never turned down an
application for either sand or gravel, pit or quarry, he thought he could get
away with it.
Senator Corbin: Are there other gravel or aggregate operations of that
type in the area with which you are concerned?
Mr. Dumyn: There are numerous sand and gravel operations within the
town of Caledon. As a matter of fact, they are so numerous that they are visible
from space. The town of Caledon probably has more sand and gravel operations
spread over a greater acreage than any other part of the world. It is not that
we do not have our fair share of aggregate produces.
As far as crushed stone is concerned, there are quarrying operations further
to the west and to the south of us. There is an adequate supply of stone. This
particular proponent does not wish to buy that stone. He wants to manufacture
Senator Corbin: The operation of this site proposed by the proponent
would have an adverse effect on the environment and the values that you want
Mr. Dumyn: It would definitely have a negative impact on the water
table. All other quarries within 20 to 30 kilometres are built on higher land
and in a place where they do not have to quarry under water. This particular
site is exceptional in that Mr. Dick plans to quarry 100 feet below the water
table. I do not understand why he decided to proceed, knowing that was the case,
but he did.
Mr. Northey: Mr. Chairman, I realize it is late, but would it be worth
the committee's time to hear about another example in another province? It does
not relate to another quarry, but it is equally as illuminating on what DFO does
The Chairman: Very briefly.
Mr. Northey: In Manitoba there are numerous forestry projects. We have
some familiarity with the project proposed originally by Repap Manitoba, now
Tolko Manitoba. In 1989, a forestry licence was granted to Repap Manitoba
covering over 11 million hectares. That is greater than the size of Prince
Edward Island and New Brunswick combined.
The Department of Fisheries and Oceans took two years to decide at that time
that this project would trigger an environment assessment under the
then-applicable law. Under the government of the day, that assessment, when
triggered, went all the way to a panel review, which is the highest form of
environmental assessment. However, the panel review was suspended while there
was court litigation on the constitutionality of a federal environmental
assessment. The panel review never resumed.
When the panel review was triggered, the focus was on the two mills that
would be associated with the proposal. What DFO could not figure out was how
harvesting the forest would affect the fish habitat.
A very illuminating study was done by DFO in 1992. It looked at the 11
million hectares and concluded that over 6 million hectares was high-quality
fish habitat at high risk from forestry.
The panel review was suspended because the proponent said, after everything
was declared constitutional, that it would withdraw the project. That is a
In 1995, the project, with some modifications, such as new mills and new
roads, came back to the table under the new legislation. Thus far, the federal
government has triggered a single bridge assessment. Thirty-five bridges were
proposed. Eight hundred kilometres of roads were proposed. Two million cubic
metres of timber are to be taken every year, unlimited. All that DFO has done in
this circumstance is let the Coast Guard assess a single bridge. They have been
aware of all of this because there is a court case on this matter. The Federal
Court of Canada declared that all that was needed was the assessment of a
bridge; worry not about the mill, the harvesting, or anything else. Hence, DFO
is vindicated for an approach that allows 6 million hectares to go without any
federal assessment on timber. There were another 3 million hectares in that area
where DFO had no information whatsoever on the fish habitat except the
presumption that it was high quality because it was so remote that no one could
The Chairman: I want to refer for a moment to the habitat management
planned spending full-time equivalents. The forecast spending for 2000-01 is
$131.5 million. The planned spending for 2003-04 is $80.8 million. We can see
the dramatic drop in planned spending for habitat management and environmental
science. That, as well, points to a problem down the road. It will get worse if
the situation continues.
I want to thank the witnesses for appearing this evening. Their testimony has
been most impressive. We are pleased with the way they presented their
information. It has been extremely helpful.
I would seek the permission of committee members to write a letter to DFO
seeking further clarification on the status of the project. I will be requesting
that further information be provided. At least it will show that we are
interested in what has been presented to us tonight.
This has been a healthy first approach to the habitat issue for us. It
highlights the problems that are out there.
Senator Kenny: When you are writing the letter, Mr. Chairman, perhaps you
would indicate that we would like to receive the background information so that
we may consider whether to hold hearings.
The Chairman: Is it agreeable that we file as exhibits all documents
that we received from the coalition?
Hon. Senators: Agreed.
The Chairman: One final item is the budget we discussed earlier
tonight in camera. I think committee members have before them the final proposed
budget of $43,250.
I see a consensus around the table.
The committee adjourned.