Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 6 - Evidence - May 12, 2009
OTTAWA, Tuesday, May 12, 2009
The Standing Senate Committee on Energy, the Environment and Natural
Resources met this day at 5 p.m. to examine the elements contained in Bill C-10,
the Budget Implementation Act, 2009, dealing with the Navigable Waters
Protection Act (Part 7).
Senator W. David Angus (Chair) in the chair.
The Chair: I call to order this meeting of the Standing Senate
Committee on Energy, the Environment and Natural Resources. Colleagues, I
welcome you this afternoon. I also welcome members of the public who are here in
the committee room with us, as well as those who will be following our
proceedings on the CPAC network and on the World Wide Web.
I am Senator Angus from Quebec, and I am Chair of the committee. To my right
is Senator Mitchell, Deputy Chair of the committee. Going down to my right is
Senator Banks, Senator Brown and Senator Lang. To my left is Senator Milne,
Senator Peterson, Senator Sibbeston and our favourite senator, Senator Spivak,
who will not be with us for all that long.
I would like to welcome Mr. Aaron Hill of the Watershed Watch Salmon Society.
As you know, and as I will elaborate briefly for our listeners, this is a
continuing study of those aspects of Bill C-10, the Budget Implementation Act —
which is now law — that deal with the Navigable Waters Protection Act and
amendments thereto in Part 7 which were referred to this committee for study and
review. We are to report back with our comments by no later than June 11. We
have heard substantial evidence to date and we still have more hearings
scheduled. You have agreed to come on behalf of the organization you represent.
This witness organization was recommended to us by Senator McCoy, who could
not immediately be with us this afternoon but who may join us later.
I believe you have provided us with a document.
Aaron Hill, Ecologist, Watershed Watch Salmon Society: Yes. I provided
you with a submission a couple of days ago.
The Chair: We have other nice things here: Your business card, a
pamphlet about saving British Columbian rivers, and so forth.
Mr. Hill: Yes.
The Chair: As I said, welcome. We will be listening intently when you
give your statement and then we will have questions for you.
Senator Milne has asked to bring a point to our attention, which arises out
of our last discussion. I think it will be interesting to hear what she has to
Senator Milne: At our last meeting, we had a gentleman before us who
said that the Credit River, which runs through the area that I represent in
Ontario, is divided in half, as far as navigation is concerned. There is a dam
across it that the landowner does not allow the canoeists or paddlers to portage
around; they must go around by road, which is quite a long stretch. I have
discovered that that is because the landowner there has something called "mill
privilege." This is a common law property right that is attached to a mill and
it originated, apparently, in the early Industrial Age in England, where water
power was so significant in powering mills and every kind of early industry that
It is carefully calculated to various sites where there is a possibility for
a mill. Apparently, although the landowner usually has no absolute control over
access, sale or use of the water, one very significant exception exists, thereby
conferring absolute power on a few riparian landowners — that is landowners on
both shores of the body of water — and this was a mill privilege. A riparian
landowner could receive a right to dam a stream to turn a mill wheel. This is
something that has existed through common law and still exists in Canada. Anyone
who has it guards it carefully.
One of the headwater streams that feed into the Credit River is called Shaw's
Creek. In the little town of Alton in northern Peel County, there are nine mill
privileges on that stream as it goes through the small town.
The Chair: In that one area alone.
Senator Milne: There are about nine dams on that stream, too. This
comes from the 1800s. It is pre-existing.
Senator Banks: Would you read again what you said about those rights
"may" be obtained? If so, do we know by what means they would be obtained?
Does one apply for this instance or is it automatic?
Senator Milne: Do you want me to read the whole thing or will I just
copy this out and give it to you?
Senator Banks: Just read the part where you said "may."
The Chair: If you could send it around to us later, that would be
Senator Milne: A riparian landowner could receive a right to dam a
stream to turn a mill wheel. Once they have it, they have it.
Senator Banks: Do we know how they would get it, and from whom?
Senator Milne: Whenever they wanted to put in a dam, they would have
The Chair: To whom?
Senator Banks: Would it be the county or the Department of Fisheries?
Senator Milne: Maybe, or maybe just build it. In this particular case,
when it was built originally in 1825, it was a wooden dam and it is now
The Chair: This landowner in question, you have informed us, is a
former member of Parliament, with a great interest in the environment.
Senator Milne: He is also generating electricity, a "run-of-river"
set-up from that dam, and I expect maybe he has had some damage done.
The Chair: To his property.
Senator Milne: To his property, and perhaps safety concerns about the
run-of-river installation, too.
The Chair: For anyone who wants to know his identity, what is the name
of the riding?
Senator Milne: I think it is Halton County. Anyway, the dam is in
The Chair: Having said that, thank you, Senator Milne. It is rather
quaint, in a sense. You will not probably see it in Quebec, for example.
Senator Milne: Yes. Some of the examples I found on Google were in New
Brunswick and one was in Quebec.
The Chair: We do not have the common law. I see some more senators
here, including one whose name was mentioned in dispatches, Senator McCoy.
I have just pointed out to our colleagues that this witness is from an
organization that you recommended to us as being in a position to edify us even
further on this subject.
Without further ado, Mr. Hill, please proceed.
Mr. Hill: Thank you, Mr. Chair and honourable senators, for allowing
me to appear before this committee today. I am in the place of Dr. Craig Orr,
the executive director of Watershed Watch, who was not able to get out of
previous engagements to come here.
I am an ecologist with Watershed Watch, which is a federally registered
charity. I work primarily on issues relating to conservation and management of
salmon and trout populations and their habitats in British Columbia. I also work
a lot on issues of sustainability of renewable energy development.
My testimony today stems from the importance of the Navigable Waters
Protection Act as a key trigger for Canadian Environmental Assessment Act
screenings, and the worrying nature of what we perceive as a general trend
toward environmental deregulation in British Columbia. I will be discussing a
single example in some detail, and that is the deregulation and associated
privatization of hydroelectric power development in B.C.
Before I go into the body of my presentation, I would like to state that
Watershed Watch strongly opposes the recent changes to the NWPA — is it okay if
I use acronyms here?
The Chair: Normally, my predecessor would require a 25-cent deposit
for anyone who used one without telling us what it means. You will have to use
your own best judgment there. We do have the door locked.
Mr. Hill: We strongly oppose the recent changes brought to the
Navigable Waters Protection Act, especially in light of additional changes that
are being proposed to the Canadian Environmental Assessment Act, which I
understand would remove additional triggers for CEAA screenings.
Watershed Watch shares the concerns of previous witnesses who have appeared
before you on the increased loss of public access to public waterways that may
result from the recent changes to the NWPA. We have said that in appendix A of
our written submission.
Before I state our concerns, I should make it clear that Watershed Watch, as
an organization, is certainly not opposed to all hydroelectric power
development. Climate change poses a grave threat to our ecosystems and our way
of life, and renewable energy development, along with dramatic energy
conservation, is obviously part of the solution to dealing with this threat.
However, if it is not done properly, if projects are not planned carefully and
strategically and strictly regulated, renewable energy development has the
potential to do more harm than good to our rivers, valleys and ecosystems.
Since the BC Energy Plan came out in 2002, over 700 rivers and creeks in B.C.
have been staked for hydroelectric power development by private interests. You
can refer to the map in our submission to get an idea of what that looks like.
Over 80 of these projects have now been approved and dozens more are well into
the permitting process. Another round of project approvals is now imminent
through BC Hydro's latest call for renewable energy.
The majority of these projects are river diversion projects, also known as
"run-of-river" or "micro-hydro," which I have briefly described in the
written submission, and which is also described somewhat in the pamphlet. They
are built and owned by private companies in these cases, and these companies
receive long-term electricity purchase agreements from BC Hydro.
As I have described in our submissions, these projects are not without
considerable environmental impacts — impacts to fish, wildlife and other
important values associated with rivers. However, still today, honourable
senators, the B.C. government has not conducted any regional or provincial
strategic planning to determine where these developments should or should not be
placed so that we can ensure that we are getting the most reliable and abundant
energy for the least amount of environmental damage.
Coordination between and within government agencies is minimal. For example,
BC Hydro and the B.C. Ministry of Environment have their own approvals processes
and these are, for the most part, completely uncoordinated with each other. Most
important, cumulative environmental impacts are not being addressed. Most
projects are considered on a one-off basis, even though there may be several
within a relatively small area, as you can see on the map. Monitoring and
compliance with environmental regulations is sorely lacking on these projects.
When this committee considers whether to let provinces take on more
responsibility for removing these triggers for environmental assessments, it
should understand and bear in mind that in 2002, the B.C. Environmental
Assessment Act was rewritten completely, and significantly weakened. Among other
things, it increased the threshold for reviewable hydropower projects from 20
megawatts to 50 megawatts. Likely, most senators know that a 50-megawatt project
is quite large. In fact, even a 20-megawatt project can involve significant
infrastructure and environmental impacts.
Since 2002, only the largest river diversion projects have been subject to
the B.C. Environmental Assessment Act. That is not to say they are not assessed
for environmental impacts because they must attain approvals and exemptions
under various statutes. However, without an official environmental assessment,
it is a much more ad hoc process and is less transparent, less stringent, and
not as standardized.
On the issue of strategic planning and land-use planning, I will fast forward
to the year 2006. A regional district near Vancouver voted to deny zoning for a
proposed 49-megawatt project, which is an important number, due to strong local
opposition. Shortly after the regional district rejected the project, the
provincial government passed a law clarifying that local governments are not
able to apply zoning decisions to these projects. The number of development
proposals increased sharply after that local control was scuttled through
legislation. Many of these projects, however, still received Canadian
Environmental Assessment Act screenings, due to three major triggers: The
Fisheries Act, when salmon were directly affected; the possibility of federal
funding; and the Navigable Waters Protection Act, because many of these
waterways are used by kayakers. Stephen Hazell, Executive Director of the Sierra
Club, recently told this committee that they found four hydroelectric projects
in British Columbia where the NWPA was the only trigger for CEAA screening.
Given the information on the Canadian Environmental Assessment Agency website,
if federal funding were no longer a trigger for these federal screenings, then
the number that would be exempt would be much higher. We will likely have more
situations where federal environmental assessments are not conducted because
only non-migratory fish species would be affected. Provincial assessments would
not be conducted because the projects are less than 50 megawatts. While each of
the projects on its own might not pose a grave threat to the ecological
integrity of a particular region, the density of the proposed infrastructure
that we are seeing in southwest B.C., where there are more than 250 development
proposals, means that the environmental impacts become very real. There is dire
need for much better planning and coordination among and within government
agencies with much better environmental assessments. The reality is that
environmental impacts are not being addressed and mitigated adequately on these
projects. I can speak to that more during question and answer.
It is not only conservationists who are concerned by what is happening in
B.C. A majority of local government representatives belonging to the Association
of Vancouver Island and Coastal Communities, which represents 11 regional
districts and about 40 municipalities, passed three separate resolutions last
month calling for an integrated sustainability energy plan for British Columbia.
Two of those resolutions called for a moratorium on private run-of- river power
projects in B.C. until such a plan is in place.
There is another reason that this is no time to be relinquishing
environmental assessment in planning. Watershed Watch is opposed strongly to the
recent changes to the Navigable Waters Protection Act, to this current trend of
environmental deregulation and to the lack of planning and oversight for
development. I would also like to remind honourable senators that while I have
discussed one example of a development pressure facing B.C. in the context of
this act, there are many others. The NWPA is a key trigger for open-net-cage
salmon farms in coastal waters that have been shown in multiple peer reviewed
scientific studies to severely impact wild salmon populations. I understand that
many proposed mines, oil and gas fields, oil and gas pipelines and other power
projects in B.C. could be affected by these changes as well.
Watershed Watch recommends that the federal government enact meaningful and
effective environmental assessment legislation and regulations, and to not
delegate the execution and enforcement of federal statutes on environmental
protection to provincial governments. In B.C., this would be a recipe for
extreme environmental risk.
I will conclude by saying that ecological sustainability is a bedrock
principle for civilized human societies. It is not a luxury. It is a
responsibility and a necessity for ensuring that future generations of Canadians
are able to experience a quality of life, sufficient supplies of natural
resources, access to the joys of wild nature, and economic self- determination
at least as much as we experience today. Environmental deregulation of the sort
that I have described will severely undermine our ability to carry out this
responsibility to future generations.
The Chair: Perhaps colleagues had the same problem I had in trying to
follow your oral presentation and your substantial brief. I gather you have
touched all the bases in the brief by jumping around a bit.
Mr. Hill: Yes. I had different prepared notes but I touched on the
major points. There is more detail in the brief, and we can get into that with
Senator Lang: I appreciate your travelling the long distance from B.C.
to appear before the committee.
The Chair: Your colleague, Senator Neufeld from B.C., is not here
tonight, to keep you honest.
Mr. Hill: That would have been interesting.
Senator Lang: I am sorry we missed that.
I appreciate the commitment and passion that people have when speaking to
this issue. I find it disappointing that there are few alternative solutions
coming forward to the situation that we face in Canada. It is easy to say that
we do not want any changes in favour of the status quo. However, the reality is
massive unemployment in many parts of the country that has affected many
families. People, through no fault of their own, are out of work and possibly
being pushed out of their homes. These sad stories create a great deal of
concern for everyone around this table. Yet, we have a commitment to the
environment. Many of us have canoes and kayaks and enjoy the outdoors. I enjoy
the outdoors every weekend when I go home.
I would like to hear your organization's suggestions for an alternative. We
have an environmental program whereby certain activities trigger an
environmental assessment. When that trigger occurs, it seems to go on forever,
and no one makes a decision. It has become an industry of its own, and people
are making money from it.
Mr. Hill, I would like to know what the alternative is. If you do not go for
small hydro in B.C., will you turn the lights off or will you turn to nuclear
power? What will we do?
Mr. Hill: That is an excellent question. Certainly, we are not
advocating the abolition of small hydro. The reality is that 80 of these
projects have been approved since 2002, and many are under construction. The
approval of many more is imminent, depending on which way the provincial
election goes today. Those projects would go ahead and we would see a
significant amount of hydroelectric power development. We are saying that
additional development should be subject to strategic planning so that we ensure
that we have the absolute best quality and greatest amount of electricity with
the least amount of environmental harm for any new projects developed. We should
have a strategic assessment as to how much development is actually necessary.
We are absolutely not saying that we should completely stop hydropower
development. The reality is that we are well under way. Right now, it has been
so deregulated and it is such a free-for-all that, to use a term that I hear
often, we need to put the brakes on and bring in more strategic planning and
more scientific rigor and standardization, rather than less. If we had that, it
would accelerate some of the most appropriate developments.
There are certain hydroelectric projects out there that make very good sense.
I will give you an example. There is a small project in the village of Hartley
Bay on the coast of B.C. which they are building in the creek behind their
village, in a community of 200 people. That small project would allow them to
stop burning about $500,000 a year in diesel. They are building that in a creek
above a barrier to salmon migration and it will be fully owned by the Gitgat
First Nation through their development corporation. That is an arrangement that
is totally acceptable and should not be held up. However, the process is such a
scattered one, with so little planning and oversight occurring, that it is
reflecting poorly on the appropriate projects as well.
Senator Lang: Could you name a project?
Senator St. Germain: A project that is damaging in British Columbia?
Mr. Hill: There are many of them. I will give you an example of a
small project in the Skeena watershed that we think should have been subjected
to more planning and a strategic assessment. It is located in Sedan Creek. It is
a small project but it would dewater about two kilometres of creek where adult
chinook, coho, summer run steelhead, rainbow trout, cutthroat trout and char
have been found. We think that if the people of the Skeena watershed and of that
region had been allowed to have a say in some sort of land use planning process,
they may have chosen to develop renewable energy in a more appropriate location.
That is not to say for sure, but we do not know because that process never took
place. That was recently approved.
Senator Lang: I thought the Fisheries Act was a trigger when it came
to that type of thing.
Mr. Hill: That is a good point. That is another good reason why we
need federal environmental assessments. Because of the involvement of the
Department of Fisheries and Oceans in that project, our understanding is that
the flows that were mandated to be left in that stream were much higher than
what the province would have allowed if it were just left up to the province.
The involvement of the federal government in that case, although we still do not
believe it was the best project, did allow for the mitigation of the impacts.
Senator Lang: The impression I am getting from your presentation is
that you would be happy if the federal government were responsible for
environmental assessments and the provinces were not involved?
Mr. Hill: Not at all. I think both governments should be involved. In
fact, they should be more involved. For example, wildlife and fisheries
biologists at the Ministry of the Environment are rarely consulted about these
developments. The referrals go to certain individuals within the departments.
The people with the most knowledge about the fish and wildlife populations that
would be impacted are often not consulted about the projects.
Senator St. Germain: Are you saying that the province takes precedence
over DFO in determining the habitat of fish? If that is true, Mr. Hill, this is
something that is totally new. I was a developer 26 years ago, before I came
here. At that time, DFO were watching creeks in the Coquitlam, Port Coquitlam
and Port Coquitlam River area. They had the final say. On the Sedan Creek
project, if DFO were aware that these were the waters in which salmon of any
type — cutthroat or what have you — were prevalent, I would find it strange that
they would even consider allowing the province to proceed, because they used to
have the final word, unless you are telling me that that is different now.
Mr. Hill: The way it works, DFO has jurisdiction over certain salmon
species, but for trout species DFO has delegated the implementation of the
Fisheries Act with respect to those species to the province. There are many
cases where the Department of Fisheries and Oceans is not involved, and CEAA
screenings are not triggered for these hydroelectric development projects
because they have resident fish such as char and trout but no salmon.
Senator St. Germain: You said that on the Sedan Creek there are
chinook and all these salmon.
Mr. Hill: Yes, and DFO was involved, and there was a federal
Senator St. Germain: You say this is still a bad project?
Mr. Hill: I am saying that, because of the impacts to salmon habitat,
if there were some sort of planning process to evaluate which environmental
values were to be preserved and which ones were to be sacrificed to develop this
energy, then the people in the area might have decided that the salmon habitat
was off limits. We are saying that without strategic planning and stakeholder
involvement to decide where these projects should and should not happen, it
becomes difficult. We suspect that there may have been more appropriate areas in
the region to develop hydro power before this creek was developed, because of
the salmon habitat.
The Chair: Between the two of you, with our new electronic age here,
we have taken 10 minutes and 29 seconds. We only have 13 minutes left with this
witness. I have three people on my list. I will give you each five minutes. That
will take us well over our allotted time, but we have two other groups after
Senator McCoy: Thank you very much for coming here today; I appreciate
your attendance. When I spoke with Dr. Oliver, I asked him in particular about
his experience and his organization's experience with public consultation. That
is what I would like to pursue in my minimally allotted time here.
I have one other small fact-based question and then I will get into public
consultation. Are there any run-of-river dams that you might be aware of,
proposed or built in B.C., that are built on a stretch of water that is nine
feet wide and two feet deep?
Mr. Hill: Exactly nine feet wide and two feet deep?
Senator McCoy: Or less.
Mr. Hill: Okay.
Senator McCoy: You might want to think about that or check it out and
come back to me later.
Mr. Hill: I am not sure, because rivers change their depth and width
as they go through their course. I am sure there are, but I cannot think of any
Senator McCoy: We could follow up with you later.
Let me ask you about your experience with public consultation. By way of
preamble, the Navigable Waters Protection Act, which is what we are looking at,
used to require developers, proponents of projects, to advertise their intention
to develop a project. That has been eliminated in terms of minor projects and
minor waterways, and diminished at the minister's discretion in terms of other
projects, which leaves no notice to individuals; they might not otherwise know
that a project is being built.
I am getting the impression that that would make a huge difference, in your
opinion. You have given us one example. I want to hear why you think public
consultation is important, and I want to understand what you think will happen
if it is not facilitated.
Mr. Hill: It is an excellent question. Public consultation is
important because Canadians value rivers for many reasons, and hydroelectricity
is just one of those reasons. Conservation of important fish and wildlife
species is another, as is recreation. There are places where it makes sense to
develop hydroelectricity and there are places where it does not. The public
needs to be involved in some way in deciding where these developments should or
should not happen.
In the absence of a comprehensive and strategic process, the only thing left
are these public consultation requirements that come about as a result of these
screenings. Doing away with those screenings would just be one more way of
alienating the public that is already feeling very alienated. It is one reason
why this has become such a divisive issue in B.C. in communities, in the
environmental movement and with First Nations. Consultation and planning are
absolutely essential to ensure that this stuff happens in the most appropriate
Senator McCoy: I think you have answered the question and I could go
on. However this tyranny of time might be interfering with our ability to have a
discourse. Thank you very much for your responses.
Senator Milne: On one page of your brief, you say that cumulative
impacts are currently only addressed — "were currently," before this budget
passed — for hydroelectricity projects under federal EAs at the comprehensive
and review panel levels, but not at the screening level. Is this a
recommendation that you would make for actually stiffening up the environmental
Mr. Hill: Absolutely. The lack of assessment of cumulative
environmental impacts is the fatal flaw in what is happening with this
hydroelectricity power development. That is probably the number one concern that
When you look at density of developments happening, especially on the south
coast of B.C, they are taking place in some of the last best habitats for
threatened and sensitive species, such as marbled murrelets and grizzly bears.
One project by itself might not be the death knell for a population of species
in that area but, when you start putting them together in the densities that you
see there, it starts to become a problem.
Even the cumulative assessments that are done under the comprehensive and
review panel level are inadequate, we think. It is really the least
precautionary interpretation of a cumulative assessment you could engage in, but
at least it is something. We certainly need more of that.
Senator Milne: Is that what you are referring to when you say "not at
screening level;" it is taking into account all the other developments along
that body of water? How much water is being removed from the river?
Mr. Hill: Exactly. It is not just the water removals but also other
developments such as roads, railways, transmission lines and those sorts of
Senator Milne: It is taking into account everything that is happening
on that river that will alter the water flow and the quality of the water?
Mr. Hill: Exactly, and the habitat in the valley itself — the
Senator Milne: You say that 80 have been approved since 2002, with
many of them already under construction. Do you know how many of those 80 had
federal EAs done on them?
Mr. Hill: I do not know the number off the top of my head. I would say
probably most of them, or at least a good half of them. However, I can get you
Senator Milne: Just a ballpark figure, what percentage of those.
Mr. Hill: I would say the majority of them. That is an educated guess.
It is a very good question and is a number I should know, but that was because
federal funding in the Navigable Waters Protection Act were triggers. I would
say, in the future, if things keep going in they way they are, we would see far
fewer EA screenings on these projects.
Senator Milne: You say over 700 water licence applications have been
filed by private hydroelectricity power development companies and schemes. What
percentage of those would have fallen into the federal EA purview before this
Mr. Hill: That is a tough question. Many of these projects are sort of
claim- staking because it is a first-come-first- serve process with the water
licensing. However, with the NWPA, it depends on whether kayakers come forward
with concerns over navigability of the waterway and whether DFO puts their foot
down if there is any salmon involved. It also depends on federal funding, of
Senator Milne: Again, it is complaint driven?
Mr. Hill: Yes, it mostly is.
Senator Spivak: I understand the issue about cumulative impacts, but I
wanted to ask if, by some strange chance, one were to wish to improve these
amendments to the Navigable Waters Protection Act, would the insertion of salmon
habitat — being a major consideration — be helpful?
Also, salmon are disappearing like crazy in B.C. In a few years, there might
not be salmon habitat.
Given the issue of the flow of water because of global warming and if the
glaciers disappear, what will happen to the water in all those streams?
This goes along with the idea of a strategic plan and cumulative impacts.
However, I am looking at practical ways, perhaps, to attempt to improve these
amendments since, of course, the possibility of reviewing the Navigable Waters
Protection Act as a stand-alone act was denied by the insertion of this matter
into the budget implementation bill. Also, share with us any other ideas you
Mr. Hill: You touched on some very important things. I will try to
deal with them in order.
Salmon habitat is something we think should be part of strategic planning as
to whether salmon habitat is a value that should be held above others, for
example, when deciding whether these developments should take place or not. When
public participation is available, that could be looked at.
Of course, salmon are under tremendous pressure in British Columbia,
especially the southern populations where a lot of this development pressure is
happening. That should be a major consideration.
A lot of the pressure on salmon populations is as a result of global warming,
which was a nice segue into your other point. A lot of these projects are driven
by meltwater in the spring, and they produce power sometimes only half of the
year when the water is flowing. Therefore, a lot of these projects are not very
high quality electricity.
That is another thing that we should be considering when we consider what
values we want to sacrifice in order to build these projects. Are we getting
good quality, year-round power or are we just getting what some people call
Global warming is changing stream flows and that is another consideration.
How long will these projects be viable for? That is something that should be
considered in these environmental assessments. I do not know if the Navigable
Waters Protection Act is an appropriate place for that, but it is certainly
something that we think should be considered.
There was a final part to your question.
Senator Spivak: It was just about the water flow. We are stuck with
this; I am looking at practical amelioration. Perhaps the issue of water flow
might be one of the things that should be taken into consideration.
When you talk about values, have you thought of doing a poll? This is just a
quick aside. Years ago, the Conservative federal government forced the pulp and
paper mills to change their practices. It cost billions of dollars, and it was
because they were ruining the fisheries.
Mr. Hill: There is one other thing I would like to say regarding water
flows. It is mentioned in the submission, so I will not go into great detail;
but a professional hydrologist looked at the way these projects are assessed and
monitored in terms of how much water they take out of the creeks and how much
they have to leave in for fish and other values. He found significant problems —
very poor monitoring of the power companies and problems also in the way the
flows are calculated. There is more detail about that in my submission, but it
is a very important issue. That monitoring and enforcement of maintaining
in-stream flows for in-stream beneficial uses, in our opinion, certainly should
be mandated by legislation.
The Chair: We have to press on. I have two senators who wanted to add
something. Is it really important?
Senator St. Germain: Yes, because it is my home province and this is a
major concern. If what Mr. Hill is saying is correct, in response to Senator
Milne, Senator Milne says it is basically complaint-driven as far as the
regulation. I am alarmed at that.
Inasmuch as I believe that we need to have good, clean power, we cannot
sacrifice our fisheries in British Columbia. I would be the last one who would
want to see that resource put in jeopardy.
From what I am hearing from the witness, DFO is not doing its job. I cannot
bring myself to believe that, knowing how DFO has operated in the past, how
concerned they are. To make the reference that it is complaint-driven, I do not
want to take up too much time, but —
The Chair: Was there a question? You are getting this on the record.
Senator St. Germain: That is important. The fact is that no one in
British Columbia that I know of who has any brains wants to put into jeopardy
our streams. When I hear that DFO is not doing its job, I cannot believe that.
The Chair: We will check it out. That is why we invite these witnesses
Senator St. Germain: I think that should be investigated.
The Chair: Did you want to comment, or do you hold to your earlier
answer that there has been no misunderstanding?
Mr. Hill: I will make a quick clarification, which is that it is not
entirely complaint-driven. DFO still does assess the projects and still does
prescribed mitigation measures. Our concern is the lack of strategic assessment
to determine whether these projects should even be put into salmon-bearing
The Chair: We cannot cancel any more fishing trips.
Senator Brown: I wanted to reiterate that the senator told us there
were 300,000 streams in British Columbia, and I believe there are over 4 million
people. Could you tell us, or get back to us on how much area of B.C. is
developed as a percentage of the size of the province, and how many of those
total streams are being involved in these projects, as a percentage of the
Mr. Hill: I could get back to you with a percentage of the total. I
will make one comment, and that is the highest concentrations of these
developments are in southwest B.C. and in a few other areas where the economics
of the project make the most sense, where the electricity grid is closer and it
is closer to electricity markets.
When you ask that question, as a percentage of the size of B.C., that is a
good question. However, another question that might be more important would be
looking at it from a regional basis, especially on the south coast of B.C.,
where we see some of the last best habitats for sensitive species such as
grizzly bears and marbled murrelets being encroached upon by these developments.
Every inlet up the south coast of B.C. has development proposals in it for these
projects. It is quite significant in that region.
The Chair: Sir, thank you very much indeed. If you can send us that
other information, that would be helpful. We will take note of not only your
excellent brief but what you have said to us today. If we find that we have to
call you back on Senator St. Germain's point, you might get another trip. Thank
you for coming.
We have another witness who is waiting patiently here, Mr. Ron Middleton,
Director of Environmental Management Services with Transportation Alberta.
According to our original schedule, he would have been finished now, but we were
20 minutes late starting.
Senator Banks: Mr. Chair, before we proceed, this witness has said, if
I understood him correctly, that DFO has devolved authority for fish habitat,
other than for salmon, to the province. Can we find out whether that is so, and
if so, is it by agreement?
The Chair: This delegation?
Senator Banks: Yes.
The Chair: Mr. Hill, there was one point. You spoke about a delegation
of certain authority from DFO to provincial authorities for certain species
other than salmon, I think it was.
Mr. Hill: Yes, that is correct.
The Chair: Is that pursuant to a regulation, to a written document, a
sharing of powers?
Mr. Hill: I think it is a practical sharing of powers in that the
province has management over the streams and the valleys and DFO is more focused
on the oceans. Because salmon migrate from the streams to the oceans, DFO
maintains authority over them; but the province deals with the other species
that do not migrate out to the ocean, except for steelhead.
The Chair: Thank you. I should point out that probably those answers
will not get onto the record. That is helpful. We will get in touch with you if
we need more fleshing out.
Mr. Middleton, it is very good of you to come here from Alberta to share in
these deliberations on the Navigable Waters Protection Act. I believe we have
your written submission. Without further ado, please proceed with your brief
statement, after which we will ask you some questions.
Ron Middleton, Director, Environmental Management Services, Transportation
Alberta: Thank you for inviting me. I have worked for the Government of
Alberta for 33 years in the areas of water resources and transportation. I did
pioneer work in Alberta to determine flow requirements for boating on Alberta
rivers. Currently, my section in transportation is responsible for environmental
matters and regulatory approvals related to highway and water projects. Yes, I
am a recreational paddler.
Last year, I presented to the Standing Committee on Transport, Infrastructure
and Communities with respect to the NWPA. At that time, I spoke on behalf of all
provincial and territorial transportation agencies, with the exception of those
of Quebec, Prince Edward Island and Nunavut. Given the short time that I have
had to prepare and consult, I am not able to claim a similar mandate this
evening. However, I will reflect the views that I stated in my earlier
presentation. My comments and knowledge are limited to those sections of the
NWPA that relate to the approval of works in navigable waters.
Approvals under the Navigable Waters Protection Act are the most vexatious of
all the regulatory approvals for construction and maintenance of the kinds of
works that we do. These approvals routinely require years to obtain, and rarely
result in positive project changes. The projects we deliver are in the public
interest and are driven by concerns for safety and economic efficiency. Delays
in delivery cost money and lives. In the delivery of our projects, we are not
blind to the need for environmental protection or to the welfare of users other
than the driving public. We, in Alberta Transportation, as with our sister
agencies across the country, assess the environmental implications of our
activities and take measures to mitigate their impacts, irrespective of
regulatory requirements. The professionals who design our projects are concerned
with and liable for public safety. In the cases of bridges and culverts, this
includes those who use the waterways as well as those who use the roads.
We look for the following characteristics in all of our regulatory approvals:
predictability, timeliness, fairness and reasonableness, and value added. In our
experience, the NWPA and the manner in which it is currently administered offers
none of these. The only predictability in the process is that it will not be
timely. We routinely undertake discussion on the manner in which navigation will
be accommodated on waterways that have never seen a boat and have no prospect of
ever doing so. As stated above, rarely does the project result in significant
positive change to a project.
I would like to point out that for much of the 20th century, the Navigable
Waters Protection Act was largely ignored. Very few projects, including many
constructed by the federal government, went ahead without scrutiny or approval
under the act. If the act and its related approval process were fulfilling a
truly valuable function, one would expect that this period of unregulated
development would have resulted in substantial impingement on the ability to
safely navigate Canadian waters. That has not happened.
A few years ago, Alberta consulted with all the boating clubs in the province
with a view to actually establishing a map delineating navigable waters in the
province. At that time, we also solicited information regarding man-made
structures that presented a hazard or obstruction to navigation. That list was
remarkably short. We provided it to the Standing Committee on Transportation,
Infrastructure and Communities. I would do the same for this committee, should
you wish that copy.
The Chair: Thank you, that would be helpful.
Mr. Middleton: I will make a note of that.
The Chair: Did you appear before SCOTIC in connection with Bill C-10?
Mr. Middleton: No. It was as a result of the committee report in
anticipation of amendments to the act.
The Chair: Thank you.
Mr. Middleton: I was as surprised as anyone to find them in the budget
The Chair: Were you pleased or displeased?
Mr. Middleton: We will get to that, if I may.
With respect to the amendments to the NWPA that were part of the budget bill,
we support their intention, which we believe was to reduce unnecessary
bureaucracy in administration of the act and to address some of its most obvious
shortcomings. By and large, the amendments present the possibility of relief but
do not guarantee it.
The one concrete change under the act that we fully support is to grant
existing provincial works legal status under the NWPA. We have many
circumstances where urgent repairs to bridges have been delayed because they
were considered "unlawful" as they were never registered. Transport Canada has
refused to accept an application for such repairs until the project is
registered under the act — a process that takes a minimum of six months. I
believe that Mr. Osbaldeston previously stated that many repairs and such things
that are regulated do not even affect the navigation window but still have to be
I will note that we do not have any objection to the increase of fines under
the act. The size of the potential penalty is irrelevant to our endeavour to
obey the law. We also have no objection to authorizing representatives of
Transport Canada to enter project sites for purposes of inspection. We have
never denied them access, even without that authority. We are a little surprised
with the extent of the search and seizure authority that the amendments grant,
and we have some difficulty in seeing the need for that level of authority; but
so be it.
The most significant changes are those that grant substantial discretionary
power to the minister and to the Governor-in-Council. These include the
potential to exclude classes of waterways and classes of works from the approval
process. They also include the authority to arbitrarily amend or cancel an
approval. Only time will tell how this discretion will be exercised.
In the case of the exemptions, if the intention is simply to formalize those
that Transport Canada already examines, it will provide very little value to our
organizations. The exemptions capture very few of our projects, and the only
potential value would be the reduction in Transport Canada staff workload, which
would result in more timely review of our projects. The ability to amend or
cancel approvals injects uncertainty into the process and, as noted, that is
among our highest concerns.
Concern has been expressed about the removal of some projects from the CEAA
review process. I can say from experience that environmental conditions are
rarely included in the Navigable Waters Protection Act approvals. Their focus is
almost exclusively related to navigation issues. It is also difficult to imagine
a situation where a project involving impacts to an environmentally sensitive
waterway would not trigger an approval under the Fisheries Act. With respect to
your earlier discussion, there is no delegation of authority from DFO to the
provincial agency in Alberta or across the Prairies. Of that I am sure.
The Chair: Were you familiar with the B.C. agreement that the previous
Mr. Middleton: I was not aware of it but I was aware of amendments to
the Fisheries Act that allowed that kind of agreement to occur; so it is quite
The Chair: It makes sense, does it not, in terms of sharing?
Mr. Middleton: Yes. There was a time when there was that informal
sharing agreement, but I will not go into the ugly history of how that fell
apart in other parts of country.
In Alberta, as in other regions, watercourse crossings routinely require
approvals under at least two federal and two provincial acts. These involve some
measure of environmental scrutiny and public notification or consultation. I
point out that the federal-provincial harmonization agreements relate only to
major environmental assessments with full screenings and panel-type hearings,
and not to the desktop and smaller-level screenings. Similarly, these projects
are also regulated by dozens of pieces of legislation that might not require
approvals but provide a measure of environmental protection. I will leave it at
The Chair: That was most interesting and, to some extent, exposed us
to the other side of the coin.
Senator McCoy: Thank you. It was a delight to hear from a fellow
Albertan, although we have never met before. I appreciate the clarity of your
testimony which I read from the House of Commons committee and hear again today.
I very much appreciate the criteria that you have explicitly authored by
which we might judge a regulatory regime. We can go through those criteria. I do
not think I am quite organized enough to do so in a logical fashion, but I want
to ask you about three areas. I think they will each, in their own way, fit
within those criteria.
First, I would like to hear more about your method of ascertaining which
navigable waters were a priority within Alberta — that is, those requiring
attention from a regulatory point of view, whether it was navigational or
environmental. You said this last year before the House of Commons committee;
you have said it again today. I would like you to expand upon the example that
you have just given to us. You sat down and actually went through examples with
members of the boating community, and I presume other stakeholders.
Could you describe that process and the value that it gave you as a
Mr. Middleton: I certainly can. We are not a regulator. We are
regulated, but we sometimes step beyond our bounds to test what is possible.
That was such an exercise. After having gone through many years of discussion
with my colleagues in Transport Canada on navigable waters, I said: "How hard
can this be?" I happened to have a summer student who was in her first year at
university, and I said to her: "Gather up every boating guide ever written for
Alberta and take every reach of rivers described in there and map them." I then
asked her to contact every single boating club in Alberta, white water
association, all of those associations —
The Chair: How many summers was this job for?
Mr. Middleton: Just one summer. She is a good girl, a very ambitious
lady. She managed to get hold of all of the trip diaries of all of the trips
that they had ever done and I had her map those as well. We also talked to our
people in Transport Canada — I think it was the Coast Guard at the time — and
said: "You do determinations of navigability all the time. Would you happen to
have them all on a spreadsheet for Alberta?" After some discussion, they
actually did have this material and they sent me some 4,400 independent
determinations of navigability, which one of our people who was clever with
mapping was able to throw on to the map as well.
Beyond that, I had a hydro technical engineer seconded to my group for about
a year and he took over those projects. He took all those sources of information
and extrapolated them on to a map using the physical characteristics of the
rivers that we already knew were considered navigable. He expanded them out into
the areas where we had no information and said: "If this river and this
location of this type is this deep and this wide and is navigable, then this one
up here probably is, too." It took him about a year of part-time work to finish
that work for the entire province. We then sent that map back to a couple of
representatives of the boating community and said: "What do you think?" Most
of them said: "We have not ever gone that far up the system; maybe now we will
Senator McCoy: That is very helpful.
The second of my three questions concerns what I would call regulatory
triage. I have run various regulatory efforts over my career, and I do know that
one attempts to do some kind of triage. You organize your effort so that you
spend most of your time on the critical cases and the least of your time on the
routine, mundane cases that you recognize, after looking at them, are not
adversely affecting the public interest. That is how you make things timely and
effective in a regulatory system.
We have heard from the department and from the manager of the navigable
waters protection program that they felt that they had to look at every project
in the same way, notwithstanding it was a major project, a big bridge — and the
Confederation Bridge keeps coming up, I guess because it is very large — and
every minor one. The parliamentary secretary for the MP for Fort McMurray said
that it took two inspectors driving two hours out and two hours back to look at
his brother's dock. They look at every project in the same way.
I invite you to comment on your experience, including your comment today in
which you said that you had to wait six months for them to tell you whether they
would involve themselves in your project. I would invite you to talk about what
prompted me to ask the parliamentary secretary this: Did no one do any
efficiency study of the navigable waters protection program?
Mr. Middleton: I agree with you that the procedures are about 1880s
vintage. I am not sure how much discretion the officers feel they have in these
matters, because the act itself does not differentiate, and the act itself is
very prescriptive. It includes things we would never write into legislation
Senator McCoy: Have those been corrected?
Mr. Middleton: Some have, and some in surprising ways. Some of the
amendments went to places in the act where I would not have expected them. I had
to type up two different copies of it to see what had really changed. It was
very creative on someone's part.
To answer your question: Yes. These issues of defining an important waterway
and where areas of interest exist are important. You can also look at types of
activities and the likelihood of them having an impact on navigation. In that, I
refer to public safety more than anything else.
Many other regulatory agencies are struggling with these same things. The
Department of Fisheries and Oceans is trying to implement a risk-management
framework. That is exactly what they are doing, where they say: "Do not sweat
the small stuff. If it has a low fisheries value, or is a small project, give it
little attention; save your energy for those in the upper left-hand corner."
With their minor projects and minor waterways, Transport Canada is taking
small steps in that direction; they just have not defined it as such. They have
a long way to go to get there. Ironically, in many cases it is not the big
projects that are the issue with respect to navigation. A big bridge over a big
river will have large clearance underneath it by definition. You have to pass
flood flows. You do not want big trees hanging up on them, even if you did not
care about the boaters. When you get down to the medium-sized ones where you are
saying, "Should we put in a culvert or a bridge," that is where you have the
interesting discussions. That is probably where the majority of effort should be
Senator McCoy: We could spend a longer time speaking with you, as with
all our good witnesses. My last question addresses a point that I think you are
making and that I have implicitly raised, namely, an increase in the new act
that has been given to ministerial discretion. Time after time, it is as if
someone threw their hands up in the air and said, "I do not know what to do, so
let us just write the act in a way that, in the name of the minister at least,
we can do whatever we jolly well please." "We do not have to give notice. No,
there is no appeal process. We will just make it discretionary, which is to say
You are saying very politely: "We will see; let us wait and see." You have
no way of having any predictability — of knowing how, even with the bad track
record of administering this act, they will do so in the future.
Mr. Middleton: I think you have read what I wrote absolutely
Senator McCoy: You want to say more on the subject?
Mr. Middleton: Clearly, it can cut both ways and, in doing so, I think
the department was buying itself some flexibility on dealing with the pressures
of time, economy and whatever else. They are seeking your advice as to how to
use this discretion now. That is what I am hearing.
I have my own briefing to my own senior management somewhere in this pile. It
says essentially the same thing: We will just have to wait and see about this
one because some of these, as I say, cut both ways in that, yes, we could see
some fast-tracking of some of our other projects with this amendment. By the
same token, they can arbitrarily withdraw approvals or change them once we have
gone into the tender process. That is a dangerous thing for us.
Senator McCoy: I hope someone else asks the question around what other
practical amendments you would recommend. However, I said I would have three,
and that is all.
The Chair: Senator Banks may. He has the floor now.
Senator Banks: What other recommendations would you have?
Senator McCoy: Another Albertan. How clever of you!
Mr. Middleton: Interestingly enough, I would be quite content to cast
some of the concerns with respect to discretion and those kinds of things in the
arena of public opinion. I have no difficulty with public notification. A
minister may wish to say, "Take Alberta's rivers navigability map and put it up
on the web," which the new amendments allow him to do. He might add, "For the
purpose of Alberta, this is our Navigable Waters Map," and then let the people
who have appeared before you comment on that. That would be one way to put it
out in a timely fashion.
Senator Banks: I think, when you were dealing with these matters, you
have approached what, if we were not in government, I would be tempted to call
common sense. I do not know how you got away with it, but good for you for
having done that.
Since you have dealt with the question from stem to gudgeon, if I might put
it like that, can you define navigable water? When you do, would you bear in
mind questions of whether it is one day a year or 364 day a year, and whether
you can float a canoe in three inches or a foot, or whatever? It says different
things in the regulations and the act. You are a paddler, so perhaps you could
help us out there.
The Chair: You were hoping he would ask that question.
Mr. Middleton: No, I was not. I threw out some possibilities when I
gave my other presentation testimony. To a degree, I threw it back at that
group, as well. I think the Government of Canada must have regard for what kinds
of activities it wishes to regulate.
Clearly, when it was passed in 1880, this act was meant to protect the fur
trade and similar endeavours, where the rivers truly were our highways. I
understand that in Quebec the act is interpreted somewhat differently than in
the rest of Canada and that, in fact, commerce is part of the definition of
navigability in that province. That, at least, is the result of one of the court
decisions I have read on it. You could choose to do that.
That said, you could look at some fairly straightforward definitions where
you would have a series of technical definitions of the ability to float a craft
with a draft of so much, with a frequency of so much. I have my hydrologist deal
with these kinds of numbers all the time. Again, my friends in Transport Canada
are sort of toying with a number of these ideas themselves. We are a fair
distance apart on what we think is truly reasonable in terms of a definition
What they are attempting to do with respect to these definitions of minor
waterways one could always do, as they are proposing to do here, and that is let
the minister use the discretion and say, "All of these are exempt from the
normal approval process." That could set the bar at a fairly "not-conservative" level, but make any projects on waterways below that
subject to a public review and a notification saying that if someone does not
believe a certain waterway is navigable, then come forth and tell us what you
have used it for. I know of lots of farmers' fields in Alberta with little
waterways across them that have been captured by this act, and that nobody has
ever gone across in a boat and are not likely to do so.
Senator Banks: We have heard of examples of dug-outs called
My final question has to do with what you have said and written on the
record. I think there is a conflict with what you said. At the bottom of the
first page of your written notes, you have said "very few projects" — meaning
not very many projects — "including many constructed by the federal government
went ahead without scrutiny or approval of the act."
Then you said, "If the act and its related approval process were fulfilling
a valuable function, one would expect that this period of unregulated
development would have resulted in substantial impingement." Do you mean to say
in the first sentence "Very few projects, including many constructed by the
federal government, went ahead with scrutiny"? It seems to me those two
sentences operate the opposite of each other. I will leave it to you to just
check that, because it is for the record, Mr. Middleton.
Mr. Middleton: Since I wrote it myself, very few projects went ahead
with scrutiny, yes.
Senator Banks: Thank you.
Mr. Middleton: Thank you for that.
The Chair: Thank you for making that clarification, Senator Banks.
Senator Lang: I want to pursue that section of your brief, if I could,
to clarify for the record. Basically, you are saying if the status quo had
remained, and that has been in place for so many years, the major projects that
went ahead, navigable water and the ability to navigate were taken into
consideration on those projects and there were few impingements to that?
Mr. Middleton: They were either consciously taken into account or, as
I said before, if you are building a large bridge, by the nature of the
structure it will pass boats.
Senator Lang: The other question I had is in regard to the second page
of your brief, and it has to do with the case of exemptions. You state:
. . . if the intention is simply to formalize those which Transport
Canada was already examining, it will be of very little value to our
organizations. The exemptions capture very few of our projects and the only
potential value would be the reduction in Transport Canada staff workload. .
Could you elaborate on that? My understanding was that the changes
recommended were to take a broader area and, if it made sense, then you could do
some exemptions. Is this a fact that you know what the exemptions are?
Mr. Middleton: I have known what they have been working with for the
last year or two. Even in the absence of amendments to the act, they have been
producing little leaflets that define minor waterways, minor works, overhead
cables and a number of things like that to which they were to say, "Do not even
bother to apply for these." When I looked, they do not involve the kinds of
waterways or works with which we would normally be involved. I just leafed
through the hundreds of pages of transcripts that were forwarded to me, which
talked about a minor waterway and something 1.2 metres wide — four feet. My
canoe is 34-inches wide at the gunwales. My paddle takes a little room, but —
Senator St. Germain: Are you a fur trader?
Mr. Middleton: I could be convinced. As I say, they have been very
conservative in these things.
For a number of years, we have had this sort of working agreement with the
local Transport Canada people. They said "Do not bring us stuff that obviously
is not navigable. We do not need the extra paper on our desk." Therefore, we
have been making that decision for them, with very few problems.
Senator Lang: The purpose of the act is to work with the provinces and
try to get a number of these projects under way, if it is possible and feasible.
Could we hear from you what you would recommend should be there to broaden that
exemption so that it would apply to some of the projects that you are looking
at, which you feel should go ahead a little bit unfettered?
Mr. Middleton: Actually, many of our projects involve rehabilitation
of existing structures. I would suggest that if we are rebuilding an existing
structure and are not having any greater impingement on the navigational window,
why do we need to go through a long approval process in order to do so? We have
now grandfathered all of those old structures from the 20th century that never
were approved. We said: let us start all over again; that was a very good move.
If we are just putting them back the way they were or better, why would we have
to approve them?
Senator Lang: My understanding of the act and the regulations is that
if the government chose to do that on your recommendation, they would have the
regulatory authority to do that, is that correct?
Mr. Middleton: That is correct.
Senator Lang: Do you know whether they have turned that down or are
they considering your proposal?
Mr. Middleton: I have not seen anything with respect to the
amendments. As far as I know, they have not. This could be a category of work.
Senator Lang: That is my point.
Senator McCoy: I do not believe they have included it in the
Mr. Middleton: That is not something I have seen them entertaining to
Senator Mitchell: Mr. Middleton, I am from Alberta too, and I am very
impressed by your presentation.
Mr. Middleton: I feel very much at home here.
Senator Mitchell: You should. You have been very specific and clear. I
have been wrestling — I think all of us have been, in many ways — with trying to
figure out exactly what this bill does. You seem to meet us going the other way
in pursuit of that question, because it does not seem to do very much.
Therefore, we might argue: why bother doing it? And those who are advocating it
might argue that if it does not seem to do very much, why not do it?
However, that is not really what they argue. What they seem to argue is that
we have to do this so that we will reduce duplication; we will speed up
approvals and we will be able to get shovels in the ground on all these huge
projects so critical to the stimulus of the economy.
One of your major conclusions is that this will not really affect any of the
projects you are working on now, in any event. Do you see how this act would
speed up the development, the implementation of a major project of any kind?
Mr. Middleton: Not unless the minister or Governor-in-Council uses the
discretion in a way that I have yet to see coming from Transport Canada. Even
for a major project — and we are attempting to negotiate something like this
with Transport Canada right now, because it is going to be a P3 project and we
want to get as much uncertainty out of the way as possible before we start — we
could say can we agree on the parameters that you would use to evaluate
navigation in this case, and just publish them in advance? We could say here,
Mr. P3 proponent, if you adhere to all of these conditions — never obstruct more
than one third of the active channel, ensure that the final clearance is five
metres, whatever you want it to be — then we can design to that, we can build to
that. If we could then assure that it would be fast-tracked as a result, that
would give us a great deal of comfort.
The Chair: This P3, are you talking public-private partnerships? Do
you mean that it would have two Ps, a provincial P and a federal P as the public
Mr. Middleton: It could well be; we at least want a gentlemen's
The Chair: That there are standards.
Mr. Middleton: Yes; and if we can define them in advance, we can do
it. To date, it is always a totally reactive system. We put in our application —
first, we ask is this navigable? Six months later, they say yes. Then we put in
the application, and then some time thereafter, we are told whether it is
acceptable or not. Usually, it is acceptable. Usually, there is very little
dialogue that happens between those two. It then is sent off to the people in
Winnipeg to do the CEAA screening on it, and I do not think there is any
communication between the people in Edmonton and those in Winnipeg. There
certainly is not between the people in Winnipeg and ourselves on this to speak
to how that process works. Then it all gets done and we get our approval. This
is what one looks like, if you have not read one.
The Chair: Is that part of your brief or is it filed?
Mr. Middleton: It has not been, and I hesitate because I heard the
discussion about French and English. We only receive them in English. This is
the Navigable Waters Protection Act approval for modification of the weir in the
city of Calgary. I have 10 copies.
The Chair: Do you have one for all of us?
Mr. Middleton: No, I did not know how many people there would be.
Senator Mitchell: In a sense, the one place where this might be
utilized to reduce overlap and duplication is on bigger projects. I also think
that what you are suggesting is that on bigger projects, you will not get around
doing environmental assessment studies — federal, provincial or both — in any
event, so that it is not the NWPA initiative that is really what delays a
project, if it is delayed at all. I do not necessarily agree that it is a delay,
but it is the environmental assessments that lengthen the process, in any event.
Mr. Middleton: That is not always the case. In the case of one of our
P3s — I am talking about one of the ring road projects that most of you
Albertans should be aware of — in one case, we are crossing the North
Saskatchewan River and in another case the Bow River — or the Elbow River, as
the case may be. They are big rivers. We will say that they are navigable; we
know that. However, because we have triggered federal involvement or perceived
federal involvement early on, we have already undertaken the environmental
studies for these, and had a measure of review of these, both provincially and
by our federal colleagues. The broad strokes are there, but we still must go
through the process of the individual approvals for the components of the
The big one will be on the Saskatchewan River bridge crossing. That is one of
the ones we are trying to negotiate because, albeit you may have done all this
environmental stuff in advance and the CEAA portion of it may be clean, you
still need to go through the formal application for each piece of the project
that has another federal trigger.
Senator Lang: What are we talking about in terms of time when we talk
about this trigger? What we are talking about is time. Is it a six-month delay
after you have done this, or three months, or what would it be?
Mr. Middleton: The one I just handed to you took us two and a half
years to receive.
Senator Mitchell: On the NWPA. How long did it take you to get the
Mr. Middleton: It was done well in advance of that.
Senator Mitchell: Why not do the NWPA in advance, too?
Mr. Middleton: They will not let us submit until we have drawings to a
Senator Mitchell: Will this act change that?
Mr. Middleton: No.
Senator Mitchell: It is not addressing the problems that ultimately
would create any delays. I do not get this piece of legislation. I just do not
understand why they argue, first, that it will speed up major projects when, on
the other hand, they seem to argue that it will not apply to major projects or
will not overcome the obstacles that delay the projects anyway.
Senator Spivak: The minister can exempt a major project from the NWPA
or from the Environmental Assessment Act.
Senator McCoy: The $10-million reference in environmental exemptions
is the Minister of the Environment under the Canadian Environmental Assessment
Act. Minister Prentice declared that exemption, which goes across the board. As
well, there are broader discretions under the Navigable Waters Protection Act
which we are discussing with Mr. Middleton.
The Chair: We are making Senator Spivak uncomfortable.
Senator Spivak: No.
Senator McCoy: I have a supplemental. Let me be sure that I understand
correctly. You do not know what standards the navigable waters protection
program will apply to one of your projects. They will not give, and never have
given you standards to work against?
Mr. Middleton: That is correct.
Senator McCoy: It is a black hole into which you throw your
Mr. Middleton: There is a rule of thumb on culverts, which is the one
metre by two metre navigation window, but that is the only one. On major
projects, we have repeatedly asked and been repeatedly told that they need to
look at them individually.
Senator McCoy: The agreement that you are seeking on this PPP project,
they have not yet approved your request for pre-project approval standards
Mr. Middleton: We have agreed to show them what this might look like,
and then we will see what they say about it.
Senator Lang: On the question of class of work, would it be your
opinion that this committee should consider recommending that they take a
classification of work and describe it to give you the framework within which to
work on a major construction project? In that way, you will know what you have
to build and it would give much more reason for the act.
Mr. Middleton: Absolutely.
Senator Banks: I have a question in respect of this document.
The Chair: I will hear Senator Milne first.
Senator Milne: What would be the minimum size, in your best guess, of
a waterway that would not be considered a waste of time by either you or the
federal government, or more work on the fed's desk?
Mr. Middleton: If I may, I will make an undertaking to forward to this
committee the criteria that we use when doing the mapping. I would be responding
off the top of my head otherwise, and I fear I might say something wrong.
Senator Milne: We forgive that quite readily here.
When we had the parliamentary secretary before us last week, who is from your
province, he described to us a new bridge that is being proposed in his
hometown. Are you familiar with that project?
The Chair: It is in Fort McMurray.
Mr. Middleton: Yes, we are very familiar with that project.
Senator Milne: Will it require screening under the NWPA?
Mr. Middleton: Oh, yes.
Senator Milne: You said that the approval for the weir in Calgary took
two and a half years. Could you estimate the delay in the final construction of
Mr. Middleton: The bridge is under construction. It took about two
years to get approval under NWPA.
Senator Milne: Would that bridge be exempted by the minister now that
Bill C-10 is law?
Mr. Middleton: It would not be automatically exempted, based on
anything I have seen to date.
Senator Milne: At this time, you have no idea and no way of knowing?
Mr. Middleton: No one has given me any indication that it would be
exempted. I know only about the kinds of ideas that Transport Canada was
floating previously; and it would not have been exempted.
To go back to what Senator Mitchell was saying, I have seen the whole
rationale for the changes they are proposing. "Let us get some of the small
stuff off our desks so we can spend more time on the big stuff." I do not have
a great deal of confidence that it will make a big difference.
Senator Milne: Could this new process, which is to be proposed by the
minister and that will not fall under any kind of parliamentary oversight
whatsoever, save you time?
Mr. Middleton: It could save time, but there is no guarantee that it
Senator Milne: No guarantees.
Senator Banks: The document in the record is an approval to Parks
Foundation Calgary from Transport Canada under the NWPA for the reconstruction
of one of the three weirs in the Bow River in downtown Calgary.
Mr. Middleton: Correct.
Senator Banks: I point out that it does not simply approve the
project. It says that the project can proceed subject to certain conditions.
Mr. Middleton: There are seven or eight conditions.
Senator Banks: Someone looked at it and determined the conditions.
Mr. Middleton: I have to say that a number of the conditions repeated
some of the things that we were proposing to do. For example, Appendix A refers
to a map that we sent to them, and they attached it and sent it back.
Senator Banks: I like Senator Lang's idea of telling people up front.
Senator McCoy: We could explore that more. If we had a little more
time, we might invite you to comment further along this line. Likely there are
generally accepted standards in your field, as there are in law, accounting,
engineering, construction, and navigation, that address the various issues that
we are concerned about. You are nodding so you agree with that. Do your
approvals generally follow the same standard time after time?
Mr. Middleton: Yes. They thought I was being facetious but many of my
regulatory agencies suggested having a write-your-own-approval system that I
could read over and sign it off. I have seen more of them than most of their
staff have seen.
Senator McCoy: It is with all due respect to the public interest that
the suggestion of Senator Lang, Senator Mitchell, Senator Banks and Senator
Milne is feasible. You could have a set of criteria that you would work toward,
although specific cases might have exceptions, so that you would know what you
were working towards?
Mr. Middleton: Yes, and sometimes the files get lost.
The Chair: At times, the files are closed.
Senator Peterson: We seem to have our witnesses in the wrong order
here. Would it be possible to have a sufficiently high enough government
official come here to answer this question? It is pretty basic. We are saying
that we did this and it does not work. I think it is a good idea.
The Chair: You need a brief question to the steering committee, then.
We will take it under advisement.
Senator Spivak: It is all very well to say that you have standards for
this and for that, and so on, but changes due to climate change go on all the
time, whether or not the fish are out of there. You should not throw out the
baby with the bathwater. This sort of one-size-fits-all idea may not be as
wonderful as you say it is. What is your answer to that?
Mr. Middleton: A partial answer to that is contained in some of the
amendments that they did put in as safeguards, which are reinforced and say
"Due to changing circumstances, or the state of the structure, or whatever, we
might tell you to change that or to get it out of there."
Senator Spivak: So you would not be as quick as you think you might
The Chair: I want to thank you, Senator Spivak, for making that point.
Sir, I would like to thank you very much. We are very fortunate to have had
the benefit of your many years of experience in this area. I would like to
explore with you some of your obvious other interests in life, which seems to be
landscape gardening. The fact that you were able to cover your flowers up last
night before coming down here is something that is dear to my heart. Thank you
We have with us now some very distinguished representatives of our Aboriginal
community. We are privileged to have you four gentlemen with us this evening.
We have next, from the Assembly of First Nations, Mr. Bob Watts, CEO; and Mr.
Stuart Wuttke, Assistant Director, Environmental Stewardship. From the
Association of Iroquois and Allied Indians, we have Deputy Grand Chief Chris
McCormick; and from the Nishnawbe Aski Nation, Mr. Terry Wilson, Forestry
Gentlemen, you are here as a panel. I gather some of you might wish to make a
statement and then we will engage in a dialogue with the senators. Some of you
have experience before Senate committees, but if you have any questions or if
you want to voice any discomfort that you may have with the process, let me
know. Otherwise I will ask you, Mr. McCormick, to proceed. It would be Chief
Deputy Grand Chief Chris McCormick, Association of Iroquois and Allied
Indians: I have one question. I am not sure of the allotted time.
The Chair: I had understood that you had a flight that was boarding at
8:30. I thought that if we went for an hour, until 8:10, we would cover off the
ground, if that works for you. One or two of our colleagues must leave a little
earlier, but those of us who remain will be focused and interested.
Over to you, Deputy Grand Chief McCormick.
Mr. McCormick: I would like to apologize to our French-speaking people
that we do not have the presentation in French. Our association does not have
the capacity or resources to be able to do that.
I want to put on the record that for First Nations people, water is not just
a commodity. For us, water has a spirit; it is part of our spiritual and
traditional way of living. Under natural law, everyone must drink water to
The Association of Iroquois and Allied Indians has not had any consultation
on this bill. Our association is primarily a political organization, and we
represent our member nations in any consultation with any level of government.
The association presently represents eight member nations with a membership of
about 20,000 people. The member nations include Batchewana, Delaware, Caldwell,
Hiawatha-Mississaugas of Rice Lake, Mississaugas of New Credit, the Mohawks of
Bay of Quinte-Tyendinaga, Oneida Nation of the Thames and the Wahta Mohawks.
Our treaties, for all purposes, are riparian; that is, our people could not
have hunted and fished without flowing waters or a body of water that would
sustain the fish and other forms of life. Canada's treaty relations vary with
the member nations of the Association of Iroquois and Allied Indians. Within our
membership, it includes the Robinson Huron Treaty of 1850, the Pennefather
Treaty of 1859, the 1790 Treaty, the Toronto Purchase, the Upper Canada Treaties
Area 1, the Upper Canada Treaties Area 2, the Silver Chain Covenant and the
Within the Robinson Huron Treaty and the Williams Treaty, First Nations
people have common law riparian right to water. Given their approximate
relationship to the water, the arbitrary diminishing of the water flow and
quality directly impacts rights encompassed in the treaties. The Supreme Court
will no doubt be examining navigable waters in relation to Aboriginal title.
The Association of Iroquois and Allied Indians is committed to protecting,
defending and enhancing the inherent rights of the member Nations while creating
mutual respect and understanding among and between the member Nations.
First Nations water rights stem from our status as sovereign rights and our
Aboriginal and treaty rights. We are concerned with both the nature of the
proposed changes to this act, the Navigable Waters Protection Act, and the
process of review that has been conducted so far. Changes to the act include
amendments to the definitions of navigable waters and works.
The existing definition of navigable waters in the Navigable Waters
Protection Act should be maintained during the current revision process so that
it continues to uphold the integrity of the original definition, which includes
any waters in which one can float a canoe. To amend the definition to exclude
minor waters will impose an unacceptable infringement on First Nations rights to
navigation in their traditional territories. Changes need to be made in
partnership with First Nations from start to finish.
Canada became a confederation in 1867. Fifteen years later, the Navigable
Waters Protection Act of 1882 was established, emphasizing the value of
protecting navigable waterways. First Nations people navigated waterways on
Turtle Island pre-confederation. Early 18th century commercial interests
demanded that Europeans venture deeper into the North American continent, where
they discovered extensive Aboriginal trade networks already in place along
established canoe routes.
Canada's Navigable Waters Protection Act has stood the test of time in
relation to protecting the waterways that accommodate the Aboriginal right to
navigation. There is a need for a thorough review by all those affected to bring
the act independently into the modern era prior to any finalization of the new
Unfortunately, the path to the Navigable Waters Protection Act receiving
Royal Assent through the passage of Bill C-10, the Budget Implementation Act,
has been void of meaningful consultation with First Nations people. First
Nations people have a legal right to be consulted on amendments to the Navigable
Waters Protection Act. The new amended NWPA allows individuals and agencies to
proceed with projects, provided they obtain approval from the minister, that
substantially interfere with the Aboriginal right to navigation and its
derivatives. This is not acceptable.
When Bill C-10 received Royal Assent, the Navigable Waters Protection Act is
embedded within that legislation. The AIAI sees appropriate environmental
assessment protection regulation as an exhaustive measure ensuring
accommodation, thereby reducing the potential for burdensome discourse.
Environmental assessments are established processes that are case-specific, a
requirement for making reliable decisions.
In terms of aboriginal and treaty rights, the Supreme Court has made a number
of decisions in recognition of Aboriginal and treaty rights and the processes
required to ensure the protection of these rights in such cases. I will not go
into all of them, but I just want to share some of the dispositions that were
In Nowegijick v. The Queen, the Supreme Court said that:
Treaties and statutes relating to Indians should be liberally construed
and doubtful expressions resolved in favour of the Indians.
The Sparrow case established that there was a duty to consult.
In other words, federal power must be reconciled with federal duty and
the best way to achieve that reconciliation is to demand the justification
of any government regulation that infringes upon or denies Aboriginal
In Gladstone and Delgamuukw v. British Columbia:
. . . the legal rights of the Indian people will have to be accommodated
within our total society by political compromises and accommodations based
in the first instance on negotiation and agreement and ultimately in
accordance with the sovereign will of the community as a whole.
In Haida Nation v. British Columbia:
The government's duty to consult with Aboriginal peoples and accommodate
their interests is grounded in the principle of the honour of the Crown. . .
the Crown, acting honourable, cannot cavalierly run roughshod over
Aboriginal interests. . .
. . . the duty arises when the Crown has knowledge, real or constructive,
of the potential existence of the Aboriginal right or title and contemplates
conduct that might adversely affect it.
Based on today's presentation, the Crown now has such knowledge.
In Taku River and Tlingit First Nation v. British Columbia:
The Crown's duty to consult and accommodate Aboriginal peoples . . . is
grounded in the principle of the honour of the Crown, which derives from the
Crown's assertion of sovereignty in the face of prior Aboriginal occupation.
The cases go on, and I think there have been dispositions from the court that
show there is an obligation for this government to consult with First Nations
Based on those court cases, will this bill be referred to the Standing Senate
Committee on Legal and Constitutional Affairs? I think that it warrants such a
We have recommendations from our association. First, the Navigable Waters
Protection Act should be separated from the Budget Implementation Act of 2009.
The Crown needs to demonstrate transparency to ensure accountability. There is a
need for avenues of process for addressing impacts on Aboriginal and treaty
Second, reinstate the definition of "navigable waters" to include "minor
waters." The term "minor waters" needs to be defined based on a consultative
input with First Nations.
Third, reinstate the definition of "work" to explicitly include "minor
works." It was not necessary to exclude minor works, given that ministerial
approval is justified for "substantial interference in navigation." As a
result, all "works" would be protected. The minister's discretion would be
removed in relation to "bridge, boom, dam and causeway" obstacles.
Fourth, reinstate the definition of works referencing the four names —
bridge, boom, dam and causeway — to the act. These four specific works pose
significant impediments in waterways and need to be thoroughly analyzed and
assessed. It is the Crown's responsibility to prove that there is no negative
impact on navigation. First Nations need to be consulted and have clarity on
works under the NWPA that impact their rights.
Fifth, develop terms of reference in relation to the process for and the
nature of the requirement of government to consult with Ontario First Nations
regarding Bill C-10, the Budget Implementation Act, 2009: those elements dealing
with the Navigable Waters Protection Act (Part 7).
There is a legal duty to consult with First Nations. Let it be recognized
that consultation with First Nations is beneficial to the development of
effective policy. For example, when working with businesses, the assurance that
First Nations people have been consulted removes apprehensions that they may
have in regard to doing business with Ontario.
Sixth, reinstate the environmental assessment component of the Navigable
Waters Protection Act regarding "minor works" in a new and improved way after
thorough comparative review of the overlapping environmental policy legislation
in regard to the triggering of an environmental assessment for navigable waters.
These new amendments do not demonstrate a clear and finite assessment of the
potential conflict in the environmental assessment legislations in Ontario.
First Nations need the minister, Mr. Baird, to specify the areas of duplication
referred to in his press release of May 9, 2009 and whether the Transport
Canada, in this amended Navigable Waters Protection Act, is circumventing other
That ends my presentation.
The Chair: Would it be your view that we should hear from all of the
witnesses first and then do the questioning? That is our normal practice. That
was an excellent presentation, a very detailed brief. Thank you for that.
Is Chief Watts next?
Bob Watts, Chief Executive Officer, Assembly of First Nations: No. It
The Chair: Would you like to be next?
Mr. Watts: Sure.
The Chair: We have your paper and we are interested.
Mr. Watts: First, I would like to start by recognizing that we are on
Algonquin territory, and give thanks to the Algonquin people for allowing us to
gather here and to acknowledge my fellow panellists.
Honourable senators, on behalf of the Assembly of First Nations, and the
National Chief of the Assembly of First Nations, I would like to thank the
Standing Senate Committee on Energy, the Environment and Natural Resources for
accepting our request to provide comments on this most important subject. I have
a colleague with me. When we get into the tough slugging, Mr. Wuttke will take
over. I just wanted to acknowledge him.
First Nations people have much to offer Canada. First Nation people continue
to have close relationships with the land and with the water. We have repeatedly
offered to share what we know of the environment, with the hope that our
knowledge will assist others to improve the quality of life for all.
We understand that Canada requires a more up-to-date act to protect its
navigable waters. However, we believe that the amendments to the NWPA that were
passed in the January 2009 budget do not adequately account for Aboriginal
treaty rights, the Crown's consultation and accommodation obligations and the
ability of the act to provide the necessary protection to our waterways so that
they retain their navigability and environmental integrity.
We are disappointed about the lack of consultation or engagement with First
Nations that was pursued while the amendments to the act were first being
considered back in the spring of 2008.
The Chair: If you do not mind, I will intervene at this stage. Mr.
McCormick, you mentioned the lack of consultation right up front. Mr. Watts, you
are now mentioning it. I think, Mr. Watts, you are making the distinction
between the amendments that have just been made in Bill C-10 and the study that
was going on over a period, we understand, of some 15 years, which led to a
report. Are you telling us you have not been consulted, ever, on any of this
Mr. Watts: We are talking about a lack of consultation. There might
have been some consultation 15 years ago, but when we are talking about the
process that led up to the spring of 2008, we are saying that there was
inadequate consultation in that process.
The Chair: Some, but inadequate. Okay. Is that fair?
Mr. Watts: Yes, that is fair.
We would also like to note that this lack of true engagement continues.
Representatives of the AFN, myself included, met with Transport Canada officials
on May 5, just last week, to learn more about how Transport Canada plans to
implement the amended act. During our meeting, Transport Canada officials
reported to us that no ministerial orders had yet been issued. Yet, only four
days after that meeting, on May 9, Transport Canada issued its first ministerial
order. To us, this does not demonstrate the intent to openly engage First
Nations or to work in partnership.
Consulting with First Nations provides an opportunity to incorporate First
Nations' unique knowledge into decision making. First Nations' knowledge comes
from the historic, current and ongoing relationship with Canada's waterways as
important routes for transportation. Access to waterways also remains essential
to First Nations' abilities to access ceremonial lands, foods, medicines and
Rivers, adjoining lakes and the ocean were, and often still remain, the only
safe travel mode for everyday survival and for attending annual cultural
ceremonies, gatherings and summer camps. Many First Nations are currently
engaged in applying state-of-the-art mapping technology to their collections of
Aboriginal traditional knowledge and the location of traditional and sacred
sites in support of sustainable development and planning. Many of these sites
are remote and accessible only by water.
First Nations identify rivers as the land's arteries. As such, they are and
always have been essential to the ongoing survival and well being of First
Nations. First Nations Aboriginal and treaty rights include the right to water
and the right to practice hunting, fishing, harvesting and trapping activities.
Rights to water and unobstructed waterways are essential to sustaining life and
society, and are a prerequisite to the enjoyment of virtually every other
Aboriginal and treaty right.
In moving forward, it is necessary for governments to recognize First
Nations' ownership over waterways as an integral component of Aboriginal title.
An important aspect of this ownership is First Nations' obligations to protect
these waterways, as well as the surrounding environment, including the fragile
ecosystems that all creatures are dependent upon.
Turning to our purpose of being here today, I am pleased to offer this
committee our perspectives on the adopted amendments to the NWPA. I would like
to reiterate what important work this is that you are engaged in right now. It
would have been nice to have had a lot of this work done prior to the budget
The NWPA has provided important protections to Canada's waterways since 1882,
and we must be certain that the amended act is able to continue to offer a
similar level of protection.
The first recommendation that the AFN hopes to see in your final report is
that we would like to see the January 2009 amendments to the NWPA repealed and
rewritten, based on a full, prior and informed consultation process with First
Nations. If this is not about to happen, if the Government of Canada choses not
to do this, the second recommendation that we would like to see included in your
report is for Canada to immediately establish a process with First Nations to
determine how the new ministerial authority contained in the amended NWPA will
be exercised in order to avoid possible infringements of Aboriginal and treaty
rights, and to ensure full prior and informed consultation protocols.
This process would include: the development of additional amendments to the
NWPA, which will be drafted with protection of Aboriginal and treaty rights and
proper consultation and accommodation protocols in mind; and the implementation
of transparent decision-making processes within the authorities provided to the
Minister of Transport through the act's amendments.
Providing prior information to First Nations and the public provides an
essential opportunity for feedback based on local knowledge. People living in
the vicinity of a proposed project will often have useful insights into its
possible impacts that those living far from it do not have.
Many First Nations have suffered the results of ill-conceived industrial,
hydroelectric and mining projects. Some of this suffering is historic, but much
of it continues right now. A better flow of information prior to decision making
can help avoid some of these situations.
An example of one possible solution is if any decisions were to be taken by
the minister, the affected First Nations should be notified of that, and a fully
funded legal review of possible repercussions for First Nations should be
conducted prior to any final approval of any project.
Ultimately, we see this as an opportunity for the Crown to enter into
partnership with First Nations in order to thoroughly consider how the Crown can
best discharge its fiduciary obligations to first Nations. The written brief
that we have provided to this committee contains more comments and specific
recommendations on how to proceed in this regard.
In conclusion, it is essential that the federal government recognize First
Nations jurisdiction and authorities. Government cannot continue to work in
isolation as First Nations have much to offer. Together we can develop a
stronger, amended NWPA that incorporates accountability measures. This process
may take some time . I recommend that this committee include in its report our
recommendation that the amendments to the NWPA be repealed or that additional
amendments be made to the NWPA to better account for First Nations' Aboriginal
and treaty rights, the Crown's consultation and accommodation obligations and,
ultimately, to ensure that the act retains its ability to protect the health and
safety of our waterways.
The Chair: Thank you for another excellent report. Our researchers
will have great recourse to it in preparing our report for approval.
I remind you of the five-year review provision in the NWPA, and we are six
months into it now. The process is critical, obviously, or it would not be in
there. This committee has pressed for review provisions in proposed legislation
in the past. Do you see any hope in the review process?
Mr. Watts: There could be a lot of water under a lot of bridges, or
perhaps not, in five years. We are not holding out hope for five years because
we see things that need to be done now. Having unfettered discretion on the part
of the minister is not helpful.
The Chair: We do not want to sweep it under the culverts.
Mr. Watts: No, sir. We need to build a box around that so that we are
involved in the process.
The Chair: Mr. Wilson, will you comment?
Terry Wilson, Forestry Coordinator, Nishnawbe Aski Nation: I believe
you have a copy of my presentation before you as well as resolution 09/14. In
the interests of time, I will focus on some of the main points because some of
our points have already been talked about.
I thank the committee for inviting me to appear, and I acknowledge my fellow
panel members. I will not focus on the NWPA and the changes, per se. Rather, the
Nishnawbe Aski Nation has asked me to talk about their position on the act and
the fact that they were not consulted.
The Chair: Could you tell us what a forestry coordinator is?
Mr. Wilson: Yes. It is a person who, theoretically, looks after
forestry and in reality handles everything.
The Chair: The manager of the resource.
Mr. Wilson: If something moves or breathes under its own steam, I get
it due to the lack of resources in the other areas. I primarily focus in on
forestry, but water, birds and critters end up on my plate, sooner or later.
The Chair: You are an expert in conservation issues.
Mr. Wilson: I was a forester with the Ontario Ministry of Natural
Resources for 20 years, and I have been working with First Nations for ten and a
Basically for too long now, the Government of Canada has made decisions and
imposed acts, laws and legislation that infringe upon the rights of the
Nishnawbe Aski Nation. First Nations need to be consulted on all issues that
impact their traditional territories, such that all of their concerns are met
and accommodated. Not only is this constitutionally required but it is also
necessary to ensure that decisions benefit and protect both First Nations and
Canada and do not infringe upon the rights and traditional ways of life of the
Nishnawbe Aski Nation. All too often, decisions are made without the
consultation or consent of First Nations, which leads to not only the further
suffering of the NAN First Nations but also of Canada.
Over the past few months leading up to these committee hearings, NAN has
lobbied our position on the Navigable Waters Protection Act. We have written
about and discussed this issue with a number of government officials. In these
discussions, we have reiterated the need for meaningful consultation,
accommodation and the protection of Aboriginal treaty rights.
By way of a brief history of NAN, in 1905-06, representatives of the Crown
signed Treaty No. 9 and Treaty No. 5. The treaty was between His Most Gracious
Majesty of Great Britain and Ireland and the Ojibwa, Cree and other Indians. The
commissioners appointed by the federal and provincial governments were there as
representatives of the King. They made adhesions in 1929 and 1930. Prior to
this, the Saulteaux-Cree Nations of Northern Ontario and Manitoba signed Treaty
No. 5 in 1875, again with representatives of the Crown. Those treaty bands
within Ontario are also part of NAN. Grand Council Treaty No. 9 was formed in
February 1973, and in 1981, the name was changed to Nishnawbe Aski Nation.
NAN is one of the largest political territorial organizations in Ontario.
NAN's territory covers approximately two- thirds of the province. It is
approximately 700 miles long and 400 miles wide. It goes from Quebec to Manitoba
and up to James Bay and Hudson's Bay. Within these traditional territories, NAN
holds some of the world's most precious aquatic habitat and resources. For
example, 5 of the remaining 12 undammed water sheds occur in this area, and the
world's third largest wetland makes up the Hudson's Bay lowlands. These
territories are full of lakes, rivers, streams, creeks and many forms of
navigable waters that have been navigated by NAN First Nations people since time
These sacred waters were given to the Nishnawbe Aski First Nations by the
Creator to be protected and used in accordance with natural laws. Therefore,
First Nations peoples have navigated sustainably these waterways for transport,
trade, sustenance and many other purposes. Navigating these waters is not a
recreational pastime; it is a fundamental and inherent part of Nishnawbe Aski
Nations traditional and cultural way of life. I have talked to many of our
elders who live on the land for up to 10 months of the year. They live in tents
and cabins and go into the communities in January and February when it is very
cold. They live on the land for the remainder of the year.
I will move to NAN's position on the proposed changes to the Navigable Waters
Protection Act. I will mention a couple of points of NAN. I understand the
current concern for economic development in Canada. However, NAN's communities
have an unemployment rate of 65 per cent to 95 per cent, which we would love to
trade for your 7 per cent to 10 per cent unemployment rate that people are
worried about. We have 49 communities where the rate is at 95 per cent.
Currently, NAN's population comprises about 10 per cent to 11 per cent of the
population of Northern Ontario. We have extremely high suicide rates that are
six times the average rate for the rest of Canada.
Since the proposed changes to the NWPA were brought to the attention of NAN
First Nations, many serious concerns have been voiced to NAN executive council.
NAN leadership has been communicating with members of the Conservative Party and
leaders of the federal opposition parties regarding this matter. Furthermore,
NAN has put forth media releases regarding this issue, and the people of NAN
expect to be meaningfully consulted. That is a key issue. I want to be clear
that I am speaking on behalf of NAN. In my experience working for NAN, I am not
aware of a single time when either the federal or the provincial government has
meaningfully consulted NAN on a single issue regarding lands and resources. The
key word is "meaningful." That is why NAN developed this consultation
handbook, a copy of which I have with me today.
The Chair: Do we have other copies?
Mr. Wilson: No, but I can get more. I will leave this one with you.
The key point of this booklet is the table at page 27.
The Chair: Could you describe the document for the record?
Mr. Wilson: This is a handbook on consultation on natural resource
development that was written by NAN. This is the third edition for 2007, and the
first edition came out in 2001. Since then, we have distributed hundreds of
copies of these booklets to governments, the private sector, universities, First
Nations and others. This defines "meaningful consultation" for NAN — how NAN
The first issue I would like to address regarding the NWPA is infringement of
these changes on the Aboriginal treaty rights of NAN First Nations. Aboriginal
treaty rights belong to Aboriginal people and come from the Creator. The
Canadian Constitution Act, 1982, section 35, which has been upheld by the
Supreme Court of Canada, recognizes and affirms Aboriginal treaty rights.
Therefore, the Crown has a legal obligation to consult meaningfully with First
Nations about any project, development, activity, policy, legislation or
amendments to legislation that might impact on Aboriginal treaty rights.
Consultation is to be done with an eye towards accommodating First Nations
concerns by trying to mitigate impacts or infringements on Aboriginal and treaty
rights and to limit damage done to the environment.
In the case of the NWPA, this has been violated in several ways. First, the
federal government failed to notify First Nations that changes to the NWPA were
being considered. Second, the federal government failed to consult with First
Nations on the proposed changes. Third, NAN has clearly outlined their concerns
to the leadership of Canada and identified that these proposed changes infringe
upon the rights of First Nations people in NAN. Fourth, the federal government
did not accommodate or address First Nation concerns regarding the NWPA.
Further, changing the definition of "navigable waters" will no longer
protect First Nations right of navigation to their traditional water systems.
Changing "works" to exclude "minor works" would allow for minor projects to
be undertaken without proper reviews and protections. Removing the four named
works — bridge, boom, causeway and dam — from the NWPA would open the door for
large scale projects to commence in or near First Nations territories without
proper environmental protections. Collectively, proposed changes to the NWPA
would weaken the Government of Canada's duty to protect the rights of navigation
and, in turn, put more responsibility on the First Nations communities which may
not have the capacity to do so. In the end, this amounts to a further
perpetuation of cultural negligence — actions that ignore Aboriginal and treaty
rights and further disrupt the traditional ways of life of the NAN First
Nations. By eroding the strength and protection of the NWPA such that navigation
is no longer fully protected, you weaken NAN First Nations' ability to partake
in traditional activities that allow them to sustainably harvest their lands and
resources as they have since time immemorial. With high food prices in northern
Ontario and unacceptably low employment rates, it is not tolerable to weaken the
protections of NAN First Nations' right of navigation of their traditional
The NAN First Nations signatories to Treaties 9 and 5 did not cede ownership
to the water and the waterways located in NAN traditional territories.
Therefore, NAN continues to hold title rights for their exclusive use and
occupation. NAN First Nations have the right to direct the management,
conservation and development of these waters. Therefore, the proposed changes
that will clearly infringe upon NAN First Nations' cultural ways of life are not
For these reasons, NAN's Chiefs-In-Assembly passed a resolution that stated
that Bill C-10, the Budget Implementation Act and the Navigable Waters
Protection, including the proposed amendments, are inapplicable in the territory
of NAN First Nations Treaties 9 and 5 areas. The people of NAN First Nations
will not accept these policies until section 35 of the Canadian Constitution is
upheld, NAN is consulted in a meaningful manner, and our concerns fully
addressed and accommodated.
In conclusion, the Government of Canada must work with the Nishnawbe Aski
Nations on all issues that impact our traditional territories. Using the land's
resources is seen as a way in which NAN First Nations can become more
self-sufficient communities, thereby improving our health, standard of living,
education and social issues. In order to do this, the Nishnawbe Aski Nation must
maintain and protect the health and safety of their traditional lands, including
the navigability of the waterways. Such measures are vital to re-establishing
self-government in our First Nations.
The hasty changes to the NWPA are a clear example of economic expedience
coming at the expense of First Nations' rights and environmental protections.
One way we can deal with this problem is to reach a broad agreement that
everyone give up something for the benefit of future generations of First
Nations, and that we all restrain our short-term special interests to achieve
our long-term collective interest. Fairness and public purpose should guide us.
The Government of Canada must acknowledge that we face a serious problem, one
that we can solve only by working together. This cannot be accomplished by
changes to legislation without consultation and accommodation with the Nishnawbe
We call upon this standing committee and all Canadians to support the just
and fair treatment of Canada's first peoples. We demand that Canada respect its
constitutional duty to consult and accommodate First Nations. We owe it to the
future generations who will inhabit the land, navigate the waters and inherit
the future that we make for them today.
The Chair: Gentlemen, before we go to senators' questions, my friend
and colleague Senator St. Germain told me, "David, when these Aboriginal people
come to Senate committees, they are always well prepared." I have seen the
wisdom of his words, not only in your expressing the words but also in the
written words that you skimmed over and have left for our further edification.
Thank you for that. Senator St. Germain will be the first questioner.
Senator St. Germain: Thank you, gentlemen, for appearing before us
this evening. As the chair has so aptly put it, the fact is that you always come
Honourable senators, the thing that really strikes me is the generosity and
the patience that our Aboriginal peoples have exercised. The courts have clearly
stated consultation and accommodation. In one of the briefs that I went through
— and, I think of the Delgamuukw case in British Columbia — there is a
perceived urgency, and that the economy and the unemployment rates that are
rising are the reason they have proceeded in the manner in which they have.
Having said that, honourable senators, I hear this continually in the
Standing Senate Committee on Aboriginal Peoples, as does Senator Peterson, where
we are dealing with 65 to 90 per cent unemployment, as Mr. Wilson points out. It
is hard for people to relate to the fact that people are concerned at 10 per
cent unemployment or 8 per cent unemployment when they live in a world of 65 per
cent to 90 per cent unemployment.
My biggest question to all of you is this: Bill C-10 has basically passed now
and the Navigable Waters Protection Act has been amended. Would it be acceptable
to the Aboriginal community if the government consulted and accommodated from
now on regarding regulations and future amendments to the NWPA?
I place this question to all of you, if you wish to respond to it. If we are
to make a recommendation — and there was a lack of consultation on the initial
go around — where do we go from here? What is the best way to deal with this
legislation in the interests of all Canadians, but mainly our First Nations
Mr. Watts: I will take the first shot at it; I am sure my colleagues
will have something to say as well.
As much as it will be important in terms of future amendments and the
development of regulations to have a clear process for consultation and
accommodation, I think it is important to note that when we talk about
consultation and accommodation, it is for a specific purpose. It is for the
purpose of reconciliation and for the purpose of reconciling Aboriginal
sovereignty and other sovereignties in this country. It is not just something
that the court said would be nice to do. It was for a specific purpose that they
asked us to consider it, and we uphold that purpose. We commend the courts for
talking about reconciliation as a purpose of consultation and accommodation.
The Chair: Yes; finding that balance.
Mr. Watts: Finding that balance is what we need to strive for. As much
as it may be good in terms of future regulations or amendments — and we have
called for particular amendments to the NWPA — I think it does not help us in
terms of some of the immediate impacts.
The minister has a lot of discretion. When we met with the officials, they
could not describe to us the process that would assist the minister to make any
decision. We asked them, "What is your check list? How does the minister make a
determination?" From what we see, there is none. There needs to be consultation
and accommodation now. It is not just something in the future. Something needs
to be done now that helps guide the minister and helps the minister work in
partnership, as he is supposed to do, with First Nations right across this
country in terms of any decision he has to make.
The Chair: Are you suggesting, sir, that given that this is a forum
where we have been asked to hear the interested parties and give a report back
by June 11, we might suggest some criteria, saying, "Government, if you will
exercise discretion as per this new provision of the law, here is how we suggest
perhaps you exercise the discretion"?
Mr. Watts: That is right. Failing to repeal the amendments made, we do
not know what will happen. Some First Nations may say these amendment made were
unconstitutional, and they will end up in court over the unconstitutionality of
the act as amended.
The Chair: No First Nation would ever suggest that.
Mr. Watts: It is hard to imagine, I know.
The Chair: It is impossible.
Mr. Watts: That is quite likely. When we looked at this — and we
looked at some of the CEAA amendments, as well — we could not understand what
the relationship was between these amendments and trying to stimulate the
economy with shovel-ready projects. If there were shovel-ready projects, by
definition, none of this would have applied to them because they would have
already been through the processes. From what we are being told, in terms of
infrastructure that we want to do, it must be shovel-ready or it is not being
done. It does not seem to be applied throughout the country, however.
The Chair: Senator St. Germain, your question was so good and broad, I
think Mr. McCormick and Mr. Wilson may want to comment.
Mr. McCormick: As Mr. Watts has articulated, it is up to the
discretion of the minister. That means that every time there is a new minister,
there will be a different perspective on whether there will be an environmental
study. That is a real problem because you never know who the minister will be
and how that person got there.
Second, as Mr. Watts said, this country has a responsibility for the
international declarations that they have signed at the United Nations, one of
them being the Universal Declaration of Human Rights. It says that people have a
right to a nationality.
When my forefathers signed these treaties, we signed them between sovereign
nations. We do not think it is right to have it said to us: "You step back and
accept this bill." It should have been dealt with properly, in the first place.
First Nations people should have been consulted. Canada is based on the signing
of treaties with First Nations.
Mr. Wilson: I want to add something. The question you ask is a very
good one, but it is a question I have heard for many years now, not from people
at your level but from government officials. We cannot change the past. We all
have to recognize that we cannot turn things around. How can we make things
better for the future?
I have had many discussions with high level government officials. They say,
"Starting today, what if we start to meaningfully consult with you?" That was
three or four legislations ago. Your question is very good.
I am sure, when I made the statement earlier, in my opinion there has been no
meaningful consultation with NAN. I am sure some people's eyebrows are raised
and some people thought, "He does not know what he is talking about." However,
the concept is meaningful. It is not meaningful to send a letter to a community
saying, "We are thinking of doing this. Write your comments and, by the way,
you have 30 days to send them into us." It is not meaningful to go to Sudbury,
Sault Ste. Marie or Thunder Bay and say, "We will be at this hotel, at this
time, on this day. If you have something to say, come on down." That is not
meaningful; you must go to the community with these issues.
I agree with the points raised, but it must be meaningful. I mention it year
after year and it gets lost because people keep coming back with: "What if we
start today. . .?" A different group of government people come in with their
legislation and ask the same questions. "Do you people not talk? What about the
people who came last year or six or three months ago?" They ask the same
questions, and we are all in agreement. However, again, another act or amendment
comes along and we are still in the same position. NAN is becoming very
frustrated; we are repeating ourselves.
In my files, which is 10 years' worth of issues with NAN, I would say I only
have two files where there has been real progress made for the First Nations.
One is the court cases and the other is roadblocks. Roadblocks and court cases
are where I see progress being made for First Nations. Talking about our issues,
an issue comes by and we agree we must make things better in the future.
However, the future comes along and we are becoming frustrated.
I know there is a lot of talk about economic development. I have been at
three or four economic summits and round tables recently, and one of the
messages I give is that NAN and First Nations are not against economic
development. NAN has a 95 per cent unemployment rate. However, in the past,
economic development has often been at the expense of First Nations. NAN and
other First Nations are no longer willing to tolerate that situation. It is not
that they are against economic development; they want to be part of it. If
economic development will have a negative impact, as this legislation could
potentially have — if you start changing the rules on navigable waters — NAN
could get quite upset.
In the last year, we have had chiefs go to jail over a mining issue. I am
sure you are all aware of this. They went to jail because they did not want this
mining company proceeding in their traditional territory. In Northern Ontario,
we are trying to bring in people with dollars. Will it go ahead if First Nations
are becoming so frustrated that they have nothing to lose and something to gain
by opposing economic development that could be for the good of everyone?
That is where many of our communities are at right now: They see that they
have nothing to lose by opposing legislation and economic development. The best
case scenario is that it will not have any impact on them, and the worst case is
that it will have a negative impact.
Here we are again, a different group of people and a different act, saying
the same things. I hope I am not here in six months with another group, saying
the same thing.
Senator St. Germain: This question is for all of you. When the
stimulus package was being developed, the First Nations were consulted, were
they not? If they were not, I would be surprised. I think AFN was part of the
consultation process. I do not know how wide and expansive these consultations
were, because there are programs in the stimulus package for First Nations in
housing, I believe, and some infrastructure and training.
Were you part of that consultation, Mr. Watts? Was it meaningful? I know this
is diverting away from the subject that we are dealing with, but it is also part
of the whole process of why these amendments to this act were put into Bill
Mr. Watts: It is a fair question. We attended a first ministers'
meeting on the stimulus package. The national chief laid out a series of
recommendations in terms of dealing with stimulus. We met with Department of
Finance officials in terms of what we thought was required in the budget in
terms of stimulus for First Nations. We met with Indian Affairs and Northern
Development officials in terms of the waiting list on housing and schools, and
how those could be approached.
At that point, this bill and CEAA were not on the table. These were brought
before the Standing Committee on Finance — I believe it was through the House of
Commons. We asked to appear before the House of Commons Standing Committee on
Finance and we were not offered a chance to appear.
In terms of some parts of the budget bill — in terms of training, housing and
schooling, et cetera — we had our input, and I would say it was meaningful
input. The fact that $1.4 billion was put into the budget for those things was
In terms of things like NWPA and CEAA, we were not consulted and were not
given an opportunity to appear before the committee. We encouraged the Senate to
hold hearings on this bill, and it got rushed through the Senate. I guess that
is why these hearings are happening now.
Senator Spivak: First, we are a nation of law. Legislation can be
amended; it often is. In fact, some people here would like to amend the whole
status of the Senate. The only thing preventing an amendment here is the will of
the senators to exercise their sober second thought properly. There is
absolutely no reason why this legislation cannot be amended.
I have a specific question. Mr. Wilson, on the second-last page of your
presentation, you say that the Navigable Waters Protection Act, including
proposed amendments, is inapplicable in the territory of NAN First Nations
Treaties 9 and 5 areas. Do you believe this is justiciable? In other words, is
this something you can legally pursue?
Mr. Wilson: That will be up to the NAN chiefs. NAN passes resolutions
all the time stating their views. The history has been that the government does
not necessarily accept our resolutions. Again, the statement came out of the
resolution — I believe you have it — and that is the view of the chiefs.
I am not sure if we have ever come to head on an issue yet in the field,
where we have been clashing heads, saying yes and no. This is the position of
the chiefs, and where it goes will depend upon the federal government when push
comes to shove.
Senator Spivak: You state on another page that removing the four named
works — bridge, boom, dam and causeway — from the Navigable Waters Protection
Act would open the door for large-scale projects to commence. Could you
elaborate on that?
This question was raised earlier. I know you stated, and this was also in the
Sierra Club brief, that the minister cannot remove major works from
consideration through his discretionary power. Would you comment on that?
Mr. Wilson: If those four activities are taken out of the act to a
point where they no longer need reviews, we could be seeing a large number of
what we consider large-scale projects. We have creeks that maybe are not
navigable most of the year, but in the springtime, during the spring runoff, our
First Nations people are using these creeks as a means of transport. To put any
kind of structure on these creeks, without consulting with First Nations or
having any kind of review, could have a serious impact upon our people, whether
this be booms or dams or whatever.
We know, for example, right now the Ministry of Natural Resources has been
looking at a lot of the waters in NAN for waterway power. They have developed
maps of water potential and they talk about wanting to put in dams.
Senator Spivak: I have one further question. I can understand a bridge
could be small or a dam could be small, but how about a boom and a causeway? I
do not know about these. Can they also be small? Can you have a small causeway
and a small boom, or are these usually larger?
Mr. Wilson: I believe they can be large. We do not have too many
causeways in NAN, so I am not sure.
Mr. McCormick: I just wanted to make a comment on your first question,
which is in regard to NAN's legal rights. I wanted to talk about treaties,
because there is a misconception that treaties are giving First Nation people
rights. It is the other way around.
Your forefathers, when they came here, did not have a right to anything — to
the resources, to the land. It is the First Nations people who are giving you
rights. A treaty is kind of like a warranty on your car. If your steering wheel
needs to be fixed, if your gas tank needs to be fixed and it is in your
warranty, it will be fixed; but if your brakes go and it is not in your
warranty, when you bring it in, they will not fix it.
The point I want to make is that we are giving the rights. If it is not
specified in the treaty, then the indigenous people retain that right. That is
our relationship with you. In NAN's treaty, if they do not say they are turning
over the rights to the waterways in their treaty territory, then you do not have
any right to it.
Senator Spivak: There are famous court cases, however, that most of us
here have at least a passing knowledge of, which clearly set out the
consultation process — that it actually has to be almost a decision-making
process. It is not just consultation and goodbye.
The Chair: Those were good questions.
Senator Banks: Gentlemen, I want to plough the ground again that
Senator Spivak has referred to. First, in the speech to which she just referred,
you said that the Navigable Waters Protection Act is not applicable in the
territories that you are talking about — not just the amendments to it, but the
act altogether. I presume by that you mean that from 1882, it never was
applicable in your territory.
I am looking at your second-last page, third paragraph, which says:
For these reasons, NAN Chiefs-In-Assembly passed a resolution saying that
Bill C-10, Budget Implementation Act, and the Navigable Waters Protection
Act (including the proposed amendments) are inapplicable in the territorial
of NAN First Nations Treaties 9 and 5 areas.
Do you mean that it was not applicable from 1882? Based on what Chief
McCormick has just said, if the treaties are silent on it and do not grant the
rights to the water, are you saying that the Navigable Waters Protection Act has
never applied to the waters within NAN?
Mr. Wilson: What I am saying is that the chiefs we have in place now
are saying that the act is not applicable, as of the signing of this resolution.
Going over the resolution, it does not really say "Go back in time." At the
same time, though, NAN did not seek ownership to the water when the treaty was
Senator Banks: Do you think — and Mr. Watts, do you think — and I am
going to guess, Mr. Wuttke, are you a lawyer?
Stuart Wuttke, Acting Director, Environmental Stewardship, Assembly of
First Nations: Yes.
Senator Banks: Will this legislation pass a section 35 challenge?
Mr. Wuttke: That is a good question, senator.
Senator Banks: It is the question.
Mr. Wuttke: With respect to certain treaties, definitely. Treaty No.
5, the adhesions to that, and Treaty No. 7 specifically have clauses that state
that the First Nations will give settlers free navigation through their
waterways. That is the language in the treaty itself. To many of the treaty
nations in those areas, that means that it recognizes their ownership and title
over the waterways by the act of allowing settlers free navigation through their
waterways. In those specific cases, definitely that is a case that could go
before the courts.
Senator Banks: If we are talking about navigation, I am presuming you
are familiar with the amendments that have just been passed and with the NWPA in
Mr. Wuttke: Yes.
Senator Banks: Where, in the amendments, is navigation impeded?
Mr. Wuttke: Navigation could be impeded, for instance, if large dams
were erected in the waterways — bridges themselves that have lower levels of
clearance. As far as bridges that are built and dams that are subsequently
built, and the cumulative effect is rising of the waterways in certain areas or
even lowering of the waterways in certain areas, that could, in fact, impede
Senator Banks: I refer to Mr. Wilson's comment that the reservations
arise from the amendments to the NWPA. If I understand correctly, and as the
government has undertaken to us, the NWPA requirements for navigability and
ensuring that works, major and minor, do not impede navigability have not been
changed by these amendments. The process for application and the circumstances
in which the application for a work needs to be made have been changed in this
process, but the overarching requirements to maintain navigability have not been
A publication in the Canada Gazette says that nothing will impede
navigation and that vessels, even during the construction of the work, must be
allowed to pass and must be given assistance, if required. Where in the
amendments have the fundamentals of the act been changed. Can you tell me?
Mr. Wuttke: In the old provisions of the act in its entirety prior to
the amendments, there is some question as to the applicability and how they are
recognized. There was some comparable interpretation of the act in many views of
the First Nations in terms of the rights of free navigation. They were in
conformity with similar views. The changes with the recent amendments grant a
discretion to the minister that poses a problem to many First Nations
communities because we are no longer looking at two systems that can live side
by side. Now, we have a system that includes discretionary authority of the
minister over all waterways.
Senator Banks: Does the discretion include allowing something that
would impede navigation?
Mr. Wuttke: We do not know the answer to that yet. It is a
possibility. We do not know which projects the minister might deem to be exempt
from certain things. We recognize that there might be certain exemptions from
environmental standards but there will be regulations with respect to the permit
process. Once again, many First Nations communities will not have a say in their
development. As far as we know from our discussions with the bureaucracy, many
of those changes would be policy based, not legislatively based. That poses
problems for us because many policies are often overlooked by federal
departments. There is no direction from Parliament as to how department
officials are to exercise their discretion.
Senator Banks: Just to be clear: Do you think that the ministerial
discretion provided in the act gives the minister the discretion to allow a
major or minor work in a major or minor waterway that might impede navigation?
Mr. Wuttke: I believe so, yes. We see dams all the time, and dams
definitely impede navigation.
The Chair: For the record, if I understand what you are driving at,
senator, in your line of questioning, you are asking counsel for these people
whether he thinks that this act, as drafted in providing unfettered discretion
to the minister, becomes unconstitutional. Is that your question? Or are you
asking whether it would support section 35?
Senator Banks: My first question was whether it is justiciable and
actionable and whether it would stand the test.
The Chair: You are asking whether it is ultra vires.
Senator Banks: I keep reverting to my understanding that what the
amendments have changed does not include anything that would permit impediments
to navigation that did not exist before the amendments. It simply changes the
process. We have always built dams.
The Chair: The official said that.
Senator Banks: I am going in that direction.
The Chair: Yes.
Mr. McCormick: I want to say two things: I had asked whether the bill
would be referred to the Standing Senate Committee on Legal and Constitutional
Affairs. We have been clear about our understanding of treaty rights and that
they are recognized and affirmed in section 35 of the Constitution. We made our
presentation and answered your questions, and I want to be clear that you
understand what the chiefs and our community members are saying. That was the
point of being clear on it.
I thank senators for inviting our association to come. We appreciate it. I
wish you the best in your endeavours. At some time, I do not know how you will
answer my question, but I think it should be given due consideration. Thank you.
The Chair: Thank you Mr. McCormick. We have a car waiting for you at
Senator Spivak: My question follows Senator Banks' question. It is not
a question of whether the amendments would impede navigation. Rather, it is a
question of whether these processes — the ministerial discretion when he makes
the major and minor works without any recourse, for example, to statutory
instruments or Parliament. That is what I want to ask you. That might open the
Remember, we are here to ensure that this legislation is constitutional. That
is what the Senate is supposed to do. That is the question,
The Chair: I think the answer was clear. Your follow-up is along the
same lines as my question. That is our duty.
Senator Spivak: Right.
The Chair: Did you want him to change his answer? He said that they
have a view.
Senator Spivak: Perhaps I did not hear it properly.
Mr. Watts: Part of the broader question is not just whether the
amendments are constitutional but whether the old NWPA was constitutional. That
is a great question. We might need to litigate that. There are probably some
good treaty areas to do that.
The objective is how, in a cooperative fashion, can we sort through some of
these areas so that the economy can move forward and First Nations can feel part
of it through full consultation and accommodation in the manner that we deem
appropriate. That is a whole other question. When you cloak all of this in
ministerial discretion, whereby the minister does not have to pose notice and no
legal recourse is provided, the recourse becomes the courts and blockades. Is
that the kind of legislation that you envisage putting in place? It does not
make any sense to go down that road, or that piece of water.
The Chair: That is why we have Senator St. Germain here.
Senator McCoy: I appreciate your time and attention on this issue,
which was immediate. I see the resolution that NAN passed was March 12, which
was the day that Bill C-10 was passed.
Before we go any further, as Senator Banks said, Mr. Osbaldeston, a
government official, said he has no right to make a regulation that does not
protect navigation. I dispute that reading of the act. No matter how often he
says it, I still do not believe it. If you believe him, it is because he has
said it so often, perhaps. I want to tell you that as a lawyer — which he is not
— I disagree with him.
I want to come back to this point that we have all been looking at. We talk
about democracy. One of the first things that democracy was based on was the
rule of law. That was the Magna Carta. That happened in 1215 in our system, a
little later in your system. We based it on the fact that you cannot have
arbitrary rule; you must have some standards set up, in advance, so that
everyone knows what those standards are. Those standards would then be applied
equally to all citizens.
Again I am hearing from you that in this case there are no standards, no
criteria that have been established in advance. Therefore, there is no rule of
law; it is arbitrary. You are nodding your head. Are you agreeing with me?
Mr. Watts: Yes; I agree with you.
Senator McCoy: That is my first point. Regarding my second point, I
think you were here when Mr. Middleton, from Alberta Transport, described the
process by which he began to develop, and did develop, what would have been
criteria that would accommodate many interests in Alberta. He did not mention
First Nations, and I am sure you made the same note. Would you say that a
process similar to that that included your people in each region, bringing your
special and multi-generational knowledge, traditional and ecological knowledge
to the table, would be one that you would recommend?
Mr. Watts: I think it is a great question. Whether or not it is
something that we would recommend to the exclusion of other things that we are
already recommending is another question. I know you are not trying to ask me a
Senator McCoy: It is not an either/or question.
Mr. Watts: I think that would be useful, and good for the entire
country if we had that sort of process.
I have had a chance to meet with officials from the Nuclear Waste Management
Organization a few times. They are trying to understand traditional ecological
and environmental knowledge in terms of how they would place a waste site. They
are going through a real struggle. They have their own scientists and
environmentalists and we have our own scientists. We are trying to figure out
how we can do these things. Other parts of the country have done these things.
In Clayoquot Sound they did a wonderful piece of work including western science
and indigenous science in how Clayoquot Sound could be managed. To bring that
type of energy to this type of process would be wonderful.
Senator McCoy: That is helpful, because it begins, then, to open up
possibilities. Others have suggested a similar process. Thank you for that.
I do not know the case law well enough, so I will turn, perhaps, to Mr.
Wuttke, but I have the impression that if there is not reasonable accommodation
and meaningful consultation, things are null and void. Forget even more
fundamental questions of treaty rights in some areas of the country. Certainly,
projects have been stopped. Once you went to court, you said that one of the two
files made progress for First Nations. Is not that a show-stopper?
Mr. Wuttke: It is a show-stopper where First Nations decide to
challenge things. In many cases, however, there are not the resources for First
Nations to hire lawyers and that type of thing. There is not that access to
justice for many communities.
Senator McCoy: Again, if enforced, that is a show-stopper, and the
show just does not stop unless someone says halt. That takes a lot of time,
effort and resources. Thank you. I think that answers my question. I think
others have sketched these things out. If you want to add anything else, you may
do so, but it is getting late in the evening. Once again, thank you very much.
Mr. Wilson: I am only speaking on behalf of NAN, but I think most
First Nations would agree. First Nations are not against economic development.
When in NAN or in other places we have had blockades, it is because we do not
have the money to go to court, but we are frustrated. When you start blockading
something, especially when times are good, people want to talk to you. Forestry
is now down in the doldrums, so there is no point blockading someone's mill when
it is not operating. When times are going well, First Nations would blockade
something, though, because it is the only way to get people to the table to
listen to their concerns. If we had the money, we would probably be in court
but, as mentioned, it is time-consuming and costly.
The First Nations with which I have dealt — and I am speaking generically —
are all for economic development, but they want to be part of the picture. They
want to be consulted in a meaningful fashion. They are not here to stop progress
but want to be part of the progress.
The Chair: I hope you feel that you have had a good hearing,
gentlemen. We have been fascinated by what you have had to tell us. As you have
said, Mr. Wilson, some of it has been said before in other forums. My friend and
colleague Senator St. Germain has kept me relatively well-advised about some of
the good things that are being done. People are listening carefully, and we at
this committee will certainly continue to listen carefully. We have taken
careful note of what you have told us tonight.
Colleagues, I ask you all to support the chair and the clerk. We have
violated a quasi-rule imposed by the whips about two-hour time slots. We have
exceeded three hours tonight. The fact that you are here, listening carefully,
is a tribute to our diligence and now you are party to it.
Gentlemen, would you like a last word, or are you fine? If so, I will just
declare the meeting adjourned.
Mr. Watts: If I could, a note of appreciation to this committee for
allowing us to appear before us. These are difficult questions. I was at a
meeting of the Canadian Council of Churches today and there was discussion about
how we balance things such as faith, values and economics for a better society
for all of us. Some of those questions are underpinning the things that we are
presenting here. As my colleagues have said, we want a better society, too. We
want healthier communities, better schooling for our kids, better houses and
water; all of those things. We do not want to be outside of the economy looking
in, but there are values, there is knowledge, there are principles, and there
are rights that we have. We want to be assured that they are part of the process
so that our only recourse is not either court or blockades. As human beings, we
can talk with each other and we can sort things out. I think that when people
sign treaties with each other, that is what they expected we would be doing, and
not hiring lawyers to hammer away at each other to sort through these things.
I do appreciate the opportunity that we have been given this evening.
The Chair: Thank you. Those are very wise and telling words. Your
opening words about the spiritual elements of water certainly hit home with us
and will be remembered. Thank you very much.