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Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue 31 - Evidence - November 8, 2012


OTTAWA, Thursday, November 8, 2012

The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:02 a.m. to examine the subject matter of those elements contained in Divisions 4, 18, and 21 of Part 4 of Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.

Senator Richard Neufeld (Chair) in the chair.

[English]

The Chair: Welcome to the meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. I am Richard Neufeld, I represent British Columbia, and am the chair of this committee.

I would like to welcome honourable senators, members of the public with us in this room and viewers all across the country who are watching on television.

I would like to now introduce the senators who are members of the committee here today, beginning with the Deputy Chair, Senator Grant Mitchell from Alberta. We also have Senator Dan Lang, from the Yukon; Senator Paul Massicotte, from Quebec; Senator Pierrette Ringuette, from New Brunswick; Senator Nick Sibbeston, from the Northwest Territories; Senator John Wallace, from New Brunswick; Senator Bert Brown, from Alberta; Senator George Baker, from Newfoundland and Labrador; and we also have Senator Judith Seidman, from Quebec.

I would also like to introduce our staff, Lynn Gordon, our clerk, who has been with us for the four years I have been here, Sam Banks and Marc Leblanc, both from the Library of Parliament.

On October 30, 2012, our committee, along with others, was authorized to examine the subject matter, in other words to conduct a pre-study on Bill C-45, a second act to implement certain provisions of the budget tabled in Parliament on March 29, 2012, and other measures. Specifically, we were asked to examine those elements contained in Division 4 of Part 4 which would amend the Fisheries Act; Division 18 of Part 4, which deals with the Navigable Waters Protection Act that under the authority of Transport Canada; and Division 21 of Part 4, which deals with amendments to the Canadian Environmental Assessment Act, 2012.

Our committee must submit our final report to the Senate no later than November 30 of this year.

Last Thursday, November 1, we held our first meeting on our pre-study. We heard from officials from three primary departments affected by the proposed amendments in these divisions, the Canadian Environmental Assessment Agency, Fisheries and Oceans Canada and Transport Canada. On Tuesday, November 6, we heard from representatives of the Canadian Association of Petroleum Producers, the Canadian Construction Association and the Canadian Energy Pipeline Association.

Today I am pleased to welcome, from Ecojustice Canada, William Amos, Director, Ecojustice Clinic, University of Ottawa; and Ian Miron, an articling student. We are glad you are here. I think you will find it interesting. We also have with us, from the Saskatchewan Association of Rural Municipalities, Ray Orb, Vice President.

I propose we proceed with the opening remarks from each organization in the order of the agenda followed by a question and answer session. Please proceed.

William Amos, Director, Ecojustice Clinic, University of Ottawa, Ecojustice Canada: Thank you, chair and members of the committee. We really appreciate the opportunity to speak. This is a very important topic.

[Translation]

I am very open to any questions in French and I will answer in the same language.

[English]

I will limit my comments today to the amendments proposed to the Navigable Waters Protection Act. I will start by saying simply that I would urge this committee to ensure that there is debate more broadly at the Senate level once the report has been brought back. The last time around with Bill C-38, it is our opinion that the discussion of this committee's findings around changes particular to the Fisheries Act and the Canadian Environmental Assessment Act were not substantially contemplated by the Senate as a whole. We did not see much in the way of a report coming out of this body. Given the investments made by civil society to ensure that this body of sober second thought has every opportunity to contemplate the issues, we urge you, particularly given the extent of the changes that are being proposed to the Navigable Waters Protection Act, to contemplate these issues in-depth.

My representations in no way suggest that Ecojustice feels that there need not be some significant changes to the way navigation approvals occur in Canada. We do not think that what is necessary is maintenance of the status quo; rather, there must be changes. They have been discussed for some time and changes have been made already.

However, the question that is squarely before this committee is: Do we want to shift to a situation where the regulation of navigation and navigable waters is shifted from the state to the private sector? Do we want litigation brought by private citizens to become the norm for navigation regulation? What is being proposed is such a major shift in governance vis-à-vis navigation that we really need to think hard about this.

I was remiss earlier in not indicating who Ecojustice is. We are Canada's leading public interest environmental law organization. We have been in operation since the early 1990s, with offices in Vancouver, Calgary, Toronto and Ottawa. We have been involved consistently in the reform of the Navigable Waters Protection Act. I believe we appeared before this committee in 2009, which was when the amendments were made in that budget.

Therefore, this is not new territory for us. We need to appreciate the views being brought to us by paddlers, anglers, and people in rural communities who are used to using the waterways and who are concerned about flow rates and the oversight of navigation. Their voices have yet to really be heard, and I do not know if I can represent them here, because I represent an environmental legal organization. However, rest assured that I have been hearing from them, and I feel it is my duty today to try to bring forward some of the concerns I have been hearing from them.

It is obvious to us that the changes proposed mean that less than 1 per cent of Canada's navigable waters will be subject to federal oversight. We understand Transport Canada's motive to focus the resources on specific waterways that are most used — those that are listed in Schedule 2 — but the end result is that navigation on over 99 per cent of Canada's waterways will be left to the protections of the common law.

We believe that this will increase uncertainty, delays and costs associated with projects. Industry constantly suggests that what they need is regulatory certainty. However, when no approvals are required and there exists a common law right to navigation — and that right can be brought before a court in a public nuisance action — it seems to me that this is a recipe for uncertainty and litigation. That is where I would like to focus my comments today.

It is remarkable that, according to a report from The Lobby Monitor, the changes to the NWPA had little lobbying support from the mining industry, the forestry industry or the oil extraction industry. We understand the nature of the comments from the construction industry and from municipalities, and we will hear more about those today I am sure. However, it is interesting to see where the intense support for these changes is coming. That speaks to the uncertainty. As we heard the other day, there is certainly concern from the Canadian Association of Petroleum Producers. This will generate some uncertainty for them, particularly around dewatering provisions, but also the dumping provisions.

There are some aspects of this bill that have not been thought through, both on a pro-industry side and on a pro- navigable water protection side.

I will leave aside the broader issue that was raised by Transport Canada around the environmental protection aspect of the NPA. Transport Canada is very clear: They do not feel the NWPA is about environmental protection; it is about navigation. Certainly the thrust of the amendments is towards making it abundantly clear that it will be about navigation protection.

However, the Supreme Court of Canada in Friends of The Oldman River Society made quite clear that there is an inextricable connection between the medium and navigation; there is no logical separation between navigation and the waters it requires. Flow rates are core to navigation and to the environmental medium that is that waterway.

It will generate conflict when cottagers, paddlers and anglers encounter lower water levels, find that their old fishing holes are gone, or when they find that waters in particular creeks are far more shallow and that they cannot paddle on them any longer due to unannounced physical barriers that no longer require a federal approval and that are not subject to any public notice or comment.

It is our assertion that this conflict can be avoided. There are measures that can be taken. We would suggest that this is a very significant step in changing the way navigation is protected.

All automatic public notice and comment periods will be removed, even if the proposed work would substantially interfere with navigation. That is a significant challenge to the openness and accountability of navigation governance in Canada. There will be no need to build projects in accordance with terms and conditions. There will be no authority to Transport Canada to remove an obstruction if it interferes with navigation. I am talking now in the context of unlisted waters.

In our view, we are seeing the externalization of the costs of protecting a public right onto private citizens.

I would like to speak specifically to the common law. Having read the minutes of past testimony, I do not feel there has been any discussion of what the nature of common law protection is and what the new regulation is. The new regulation, as we suggest, is litigation. What will be the terms of the game? The terms of the game will be the common law of navigation.

At common law, obstructions that significantly interfere with navigation constitute a public nuisance. Typically, only the Attorney General can bring an action or prosecution against an offender. A private citizen may bring a public nuisance action, but only if he or she has suffered special damage, so there is immediately a bar to standing. If the government refuses to prosecute a public nuisance or if it stays a public nuance action that is brought — and it has the power to do that — then many of these unlisted waters will not receive any protection whatsoever.

Therefore, we would suggest right off the bat that any proposal to shift the governance of navigation from an approval process to a common law protection litigation process has to remove the "special damages" standing requirement. Otherwise, citizens will have a very steep, uphill climb.

We would suggest that the bar to standing will decrease protection of navigation but it will not increase efficiency. The special damages issue will have to be litigated, and the issue of whether there is an obstruction to navigation — a violation of a public right — will have to be litigated. There will be conflict, process, it will take time and it will cost money.

This is not necessarily in the best interest of Canadian individuals, communities or industry.

This will not be a matter of one precedent-setting case that solves it all for everyone. Each navigation issue will have to be viewed on its own merits, on a case-by-case basis. This will not be a matter of boilerplate litigation pursuant to one decision that solves the issues for everyone.

We would suggest that this approach to generating greater efficiencies by cutting back on the regulatory process and so- called red tape simply shifts the delays and uncertainties from the front end. We acknowledge that Transport Canada officials have mounds of paper and people seeking approvals, and it is not efficient; we do not take issue with that. There needs to be a solution found to that. However, we have a problem with the back end where there are uncertainties like never before. We acknowledge there is an opt-in provision provided for in this legislation.

However, the reality is that, both for financial and timing reasons, project proponents will opt for the path of least resistance. They will assume that there will not be challenges, and they will wager that the efficiency benefits they get for not having to go through an approval process — not opting in — will outweigh the risks of potential litigation down the line.

I should also say that common law rules are not the same across Canada. Each province has a different approach. Provincial courts have interpreted the law differently, so this runs against the grain of what the Supreme Court of Canada said in the Whitbread decision, which is that, ". . . a uniform maritime law which encompasses navigable inland waters is a practical necessity."

That is what we had. We had a regulatory approach that required approvals and consistent guidance on that front, and we are going to lose that.

I know my time is running short. The changes that have been proposed were not the product of any consultative process. I do not know a single paddling organization, cottager group, environmental group, outdoor recreation company or single stakeholder that was proactively consulted on the public interest side of navigation. In our view it would be an affront to democracy if such radical changes to the governance of navigation were to be made in the context of what now may seem normal in Ottawa, an omnibus budget bill. It is, in our opinion, an affront to democracy to so radically change the governance of navigation in Canada without an open and consultative debate. I might cynically remark that, if there does seem to be openness to changes in this particular budget bill, Bill C-45, it is because so many industries are detrimentally impacted by the proposed changes. We know that the Canadian Association of Petroleum Producers does not appreciate the dewatering provisions or the fact that there is no approval process for the new rules there. That is one area where we see some positive developments, but, in general, the consultation prior to the tabling of these changes was so limited that even industry is frustrated. It will only be, in my cynical view today, because there is pressure on that side that we will see any amendments whatsoever.

We will wait to see what comes out of the committee process. The entire notion that there is a pre-study is to grease the wheels so that a budget bill can be fast tracked through the Senate. It is entirely possible that the Transport Committee will make recommendations for changes. I would be interested to understand how, if there is a potential for changes to Bill C-45, including to the provisions of the NWPA, this committee will deal with changes that are agreed upon there once they have heard witnesses speaking about a particular bill that has yet to be formally before the Senate.

I will conclude my remarks with that. Thank you very much.

The Chair: Thank you, Mr. Amos.

Mr. Orb.

Ray Orb, Vice President, Saskatchewan Association of Rural Municipalities: Thank you, Mr. Chair. My name is Ray Orb, and I am the vice-president of the Saskatchewan Association of Rural Municipalities, or SARM. I would like to begin by thanking the committee for inviting me here to present our views on the changes to the Canadian Environmental Assessment Act, the Fisheries Act, and the Navigable Waters Protection Act that are proposed in Bill C-45. It is the changes to the Navigable Waters Protection Act that are most relevant to SARM, and it is those changes that I am here to discuss today.

SARM represents all 296 rural municipalities in Saskatchewan and acts as the common voice of rural Saskatchewan. SARM serves as the principal advocate in representing the municipal governments of the province on priority issues, including the changes to the Navigable Waters Protection Act being proposed in Bill C-45. SARM is very encouraged that Bill C-45 proposes to rename this act the Navigation Protection Act and appropriately refocus the legislation.

The Navigable Waters Protection Act was enacted in 1882, and it has created unnecessary obstacles that have prevented municipalities in Saskatchewan from building cost effective transportation infrastructure. SARM believes that the act needs to be updated to recognize that a significant amount of water transportation on lakes and rivers today is recreational in nature. It is no longer a common means of everyday transportation of goods and people, as it might have been in 1882 when the act was created. As a result, the existing legislation has become outdated and an unnecessary obstacle to the transportation of those very same goods and people. As currently written, the Navigable Waters Protection Act applies to a very diverse set of waters, including everything from oceans to farmers' ditches. The result is that municipalities in Saskatchewan are often forced to spend time and money to build infrastructure that responds to requirements to accommodate nonexistent public water travel.

In many cases, this means that municipalities are required to install abnormally large culverts or bridge structures where roads cross water, and they must be large enough for a canoe to pass through.

An example that I would like to share with you comes from the Rural Municipality of Insinger, in Saskatchewan, and a bridge replacement project on the Whitesand River. In January 2005, the rural municipality, RM, applied to Transport Canada to build a structure across the river. In April of that year, Transport Canada determined that the waterway was navigable. The determination was made in spite of the fact that the stream bed was blocked by beaver dams, rocks and brush and no one living in the area could recall a canoe ever attempting to travel on the waterway. In July, Transport Canada advised the RM that their proposed design for two 2,700 millimetre culverts and one 3,000 millimetre culvert, for a total cost of $125,000, did not meet the minimum clearance requirements to accommodate navigation.

The RM was also advised that it would need to install a multi-plate culvert that would cost the taxpayers of the rural municipality $400,000. To avoid this substantial cost increase, the RM attempted to prove to Transport Canada that the river was not navigable by sending them 56 pictures of barriers to navigation along the Whitesand River.

This visible evidence that the stream was not navigable made no impact and Transport Canada upheld their earlier decision. Their hands were tied.

The RM then approached SARM in December 2005 to work with Transport Canada on their behalf. In February 2006, after many meetings and phone calls, Transport Canada agreed to approve the original three-culvert design. This approval came more than a year after the RM's initial application. This is one example of many.

Municipal governments in Saskatchewan simply do not have sufficient time or funding to wait for approvals to build infrastructure that long ago ceased to be necessary, but which is still required under the current act.

SARM believes that the proposed amendments to the act included in Bill C-45 should help to mitigate situations such as the one I have just described.

The new Navigation Protection Act will clearly list major waterways for which regulatory approval is required for construction projects. It will also allow proponents of the construction projects in unlisted waters, such as the Whitesand River, to proceed without approval from the federal government. The list will provide much needed clarity to municipalities and their residents across Canada.

For years, SARM has been advocating for this distinction. For too long Saskatchewan municipalities have been required to install larger culverts and bridges to accommodate the passage of canoes and other watercraft, whether or not it was on a significant navigation route. SARM does believe that waters used for navigation should continue to be protected and believes the bill will do just that.

I will conclude by saying that roads and bridges are the lifeline for commerce and prosperity in Saskatchewan rural municipalities. Removing the unnecessary requirements, such as those imposed by the current Navigable Waters Protection Act, will help to ensure that the much needed repair and replacement of the rural road network is done in a timely manner and with no unnecessary additional cost. In turn, this will help to ensure that rural businesses in Saskatchewan remain in their communities and prosper, which, of course, creates positive economic spinoffs for those communities and all levels of government.

SARM thanks and supports the federal government for the amendments they are proposing to the Navigable Waters Protection Act and the result of the benefits that these amendments will provide to our municipalities.

Thank you for the opportunity to appear here today. I will be pleased to answer your questions.

The Chair: Thank you. I will ask the deputy chair of the committee, Senator Mitchell, from Alberta, to begin questions.

Senator Mitchell: Thank you, gentlemen, for giving us your insights into these proposed changes. Mr. Amos, you addressed this in a variety of ways. On the question of what triggers an environmental review, and you are really focused on the navigation side, it used to be that a project under the Navigable Waters Protection Act would trigger one of three kinds of environmental review: a level 1 screening; a level 2, which is more intense; or a level 3 board review, which is much more rigorous. What will trigger environmental reviews of many such projects if they are not designated, advertised, listed or open for comment? If I were to build a bridge across a waterway and put a piling into a sockeye salmon breeding ground, who would know and take the first step to check that out? Will that kind of project fall between the cracks?

Mr. Amos: We live in a different environmental assessment world post-Bill C-38. We have left the previous trigger regime, and, obviously, a regulation designating physical activities was established pursuant to CEAA 2012, which provides a list of projects. If that bridge with a piling is not on the list, and typically I do not believe it would be on the list, then there is no environmental assessment unless, pursuant to section 14(2) of CEAA, the Minister of the Environment designates a given project.

The discretionary door can always be opened pursuant to public outcry or concern. Any given project, unless it is listed in that regulation designating physical activities, will not generate any process.

Ecojustice Canada has been very clear. We have a backgrounder on our website that goes not only to the changes made to the Canadian Environmental Assessment Act in Bill C-38 but also to the regulation designating certain activities. There are significant problems, not the least of which is an overreliance on provincial environmental assessment regimes. We do not believe that these, in most cases, are particularly robust processes.

We are concerned generally with the direction that the federal government is taking vis-à-vis planning around projects. It is our feeling that with the changes proposed, including those to the Navigable Waters Protection Act, we are shifting toward an under regulated approach. Regulation does not have to mean that industry or project proponents are overburdened because there are smart ways of going about regulation. However, on the sides of environmental assessment, navigation and navigable waters protection, it is a complete disengagement.

A comment was made recently by the prominent corporate law firm, Blakes, Cassels & Graydon LLP. We quote them in a commentary published in The Globe and Mail today, a copy of which we provided to the committee. They suggested that the changes amount to the federal government taking itself out of the approvals business. That is pretty blunt.

Senator Mitchell: I am interested in your statement that you agree there should be some changes and that it is not a perfect process. I too am concerned about loading this on the private sector and individuals who may or may not have the resources to take someone to court, and probably will not do that. How would they know if they have not had a review of that piling going into sockeye salmon habitat? How would they know to do it? What could be done at the front end, in your estimation, to make this situation better so that Mr. Orb's problem could be dealt with in a more effective and efficient way? Do you have specific ideas about that?

Mr. Amos: Certainly. This government has already gone a long way to removing a number of these irritants with the 2009 changes to the NWPA.

Senator Mitchell: Mr. Orb's case was 2005-06, so it may have been accommodated already.

Mr. Amos: Yes, I believe that it had been accommodated by the establishment of ministerial regulation and ministerial order exemptions for minor works in minor waters.

Senator Mitchell: This might be overkill.

Mr. Amos: A ministerial order established by then Minister Baird in 2009 identified specific classes of works that would be exempted from the approvals process. It went a long way toward solving the problem identified by municipalities. I do not see what these proposed amendments will do, apart from ripping apart the apparatus for federal approvals of obstructions to navigation. This is akin to taking a paddle to crack an egg.

Senator Patterson: I would like to thank the witnesses. On Senator Mitchell's question, the Department of Transport told the committee that many other acts exist to protect waters other than the proposed navigation amendments. With reference to the piling in the sockeye salmon habitat, would you not agree that provisions in the Fisheries Act prohibit impairment of fish habitat without process? I believe it is in section 23 on fish for commercial, Aboriginal or recreational use. Would provisions in the Fisheries Act be triggered by that project?

Mr. Amos: Other lawyers at Ecojustice Canada are more able than I in matters related to the Fisheries Act. However, I would suggest that we are in transition. The fundamental changes to section 35 — habitat protection provisions — in the Fisheries Act have yet to come into force. That requires an order-in-council.

My understand is that DFO is waiting for a series of regulatory and policy ducks to be lined up before that order-in- council is put in place and the new regime comes into effect.

The upshot of the changes is that there will only be protection for habitat related to Aboriginal, recreational or commercial fisheries. In the case of sockeye salmon, that is obviously a matter of a fishery, and so there would likely be some form of protection pursuant to the Fisheries Act. However, it is quite possible that you could take the exact same project example, a bridge with a pile, which would apparently impact a less important fish species that is not commercially or recreationally fished or fished by Aboriginal peoples, which would no longer be subject to section 35 protections and would most certainly fall through the cracks.

I think that where the greatest damage will be done as between the changes both to the Fisheries Act and to the Navigable Waters Protection Act will be on small feeder creeks, small waterways that provide the habitat for fish that are not commercially sought but which are absolutely necessary, not only for ecosystems but also for those more commercially important fish.

I would urge this government to contemplate how it is that impacts to navigable waters might occur and to contemplate what Commissioner Cohen suggested in his report when he was speaking about the changes being made to the Fisheries Act regime and the rollback of protections. I would suggest that these changes made to the NWPA are in lockstep philosophically with an approach to regulation and governance, but they are going to conspire together to result in much less protection for small waterways and the ecosystems associated.

The Chair: I will say that we have a certain amount of time. I appreciate that the questions have been pretty succinct, and we do want to hear the answers. However, remember that every senator wants to ask a question, and I do not want to get to the end and say to three senators, "You have one minute apiece." I think it would be fair to everyone if we tightened it up a bit, and if you could respond to the question as directly as you possibly can. I am not trying to thwart you in what you are trying to say. I think that, as a lawyer, you will understand that quite well.

Mr. Amos: I appreciate the remark, chair.

The Chair: Thank you.

Senator Lang: I think it has to be put on the record that every senator around this table is concerned about the environment. We all live in Canada and we all have concerns. What we are trying to do here is to find a balance. That is where I would like to see organizations such as yours contribute in that manner, to say, "Can we find that balance?"

I have two questions, first to Mr. Amos.

In your opening statement, you made the point that Transport Canada, under the present 1882 law, has mounds of paper to go through to give approvals to construction projects such as Mr. Orb cited earlier. Subsequently, in some cases, they are unable to do their job; and second is whether or not it is necessary.

What would you recommend in order for Transport Canada to meet their objectives and not be clogged down with bureaucratic mounds of water such that they cannot do the job they have been asked to do in those important navigable waters?

My next question is for Mr. Orb.

With respect to the project you cited, perhaps you would outline the other permits required to do that type of construction. I think this is a point that must be outlined here, that you do not only go to navigable waters; there are permits from highway departments, environmental permits from the province, and numerous other avenues you must obtain before you can actually begin construction. I think that should go on the record as well.

Perhaps, Mr. Amos, you could tell us what you would do to streamline this, and then perhaps Mr. Orb could comment in respect to the various other authorities.

Mr. Amos: Number one, I do not think it should be taken as a given that there now remain mounds of paper.

Senator Lang: I recited you.

Mr. Amos: I should have said that pre-2009 changes to the NWPA, there would have been an argument that there was an excessive workload and a backlog of approvals. There is no reason to believe that, pursuant to changes made to exemptions for minor works and minor waters, that that backlog exists. There is no evidence before me that suggests that is the case.

Second, I would suggest, as I did in my earlier comments, that the mounds of paper that may still be on the desks of Transport Canada officials will soon be on the desks of superior court judges or before small claims courts.

I would suggest that one thing that could be done that would potentially prevent or lessen the degree to which litigation becomes a serious issue is to build back in the notice requirements so that community members are not taken aback when a municipality or a project proponent obstructs a waterway in some way. If people know in advance what is coming down the pipe or what obstruction will be generated, there is actually an opportunity to discuss. However, without notice and comment period, ex post facto plans will be made, construction already engaged, contracts signed, and then conflict, and that does not speed up anything. It is a "be careful what you wish for" scenario.

Senator Lang: I want to make one point. You obviously do not have much faith in the provinces or territories to take on their responsibilities. Quite frankly, you are aware that with some of those legislative approvals, someone who has to apply for a project has to go through a public process to let the public know what they are doing, either the municipal government or the project proponents themselves.

Perhaps Mr. Orb would like to comment on that.

Mr. Orb: Yes, thank you. To answer your question about the other entities we have to get approval from, in the case that they deem the stream to be fish bearing or to support fish habitat, we have to also get a permit from DFO. In my own municipality last year, we had to apply for a permit from DFO. It also requires special design and installation of culverts, which are very expensive.

Talking to a farmer who lived nearby for over 50 years, he said there had never been fish in that stream, ever. SARM actually testified on that issue last spring, and we said that, naturally, we care about the environment and we will not destroy fish habitat, but we do not think it is necessary. This is another onerous set of rules we have to go through.

I know a little bit about the Environmental Assessment Act. I know that the big projects will still be looked at by the federal government and the smaller projects will be looked at by the provinces. The Province of Saskatchewan, I think in about four years, is adopting a new environmental code.

Those kinds of things are results based. Whatever projects we have to do, we still have to play by the rules, if they change the definition of navigable waters. They have told us where the streams are already. If they are streams that only run for a day or two sometimes in the spring, they are not navigable, so we are happy with that. We will have a new set of rules. The perception from the public that these things may not be looked at is false. I do not believe that will not be the case at all and that it will be a much more efficient system.

One suggestion we may have in regard to DFO is that there could be an online approval system where people go actually online to an interactive site and municipalities can apply, and in that case DFO will be able to work with the municipalities. It is not time consuming at all. It is easy to understand. That would be a good system if it actually comes into being.

The Chair: I am familiar with British Columbia, and in no waterway can you construct or do anything, even a creek or something that only runs for part of a year, within 15 metres of either side of the centre. You cannot construct anything without a permit. You have get whatever permits are required, and I am not sure what they are, but I know that takes place in B.C.

[Translation]

Senator Massicotte: Mr. Amos, government officials told us that the proposed amendments to Bill C-45 would in no way hinder the existing environmental law nor the necessary permits. From reading your articles and listening to your speeches, it would seem that the amendments to fish habitat protection for example will be significantly watered down.

Could you clarify your comments on that? Is Bill C-45 effectively proposing a change to environmental regulation?

Mr. Amos: Fundamentally, Senator Massicotte, environmental protection under the Navigable Waters Protection Act has already been changed through a recent budget implementation act. This changed the way environmental impact assessments are initiated. Currently, obtaining approval under the Navigable Waters Protection Act does not require an environmental impact assessment. The changes being considered now would not translate into major changes.

That being said, we must acknowledge that protecting navigation cannot be separated from protecting the water medium. It is impossible to consider navigation without the waterway which requires a certain flow.

This law has always indirectly dealt with environmental protection. However, it is clear in rulings handed down by Canadian courts, including the Supreme Court of Canada, that navigation protection has always been linked to navigable waters protection.

In the past, a process of environmental impact assessments was used. Now, however, these two concepts of protection will be completely separated and we feel that this is an artificial separation.

Senator Massicotte: You mentioned the importance of flow for fish habitat. I am no expert on the matter, and that is why we invite expert witnesses like yourself. The proposed bill states that if more than two thirds of the width of the river is obstructed at low tide, a special permit would be required. In other words, no more than two thirds of the river's width can be affected. This leads me to believe that the remaining third would not be adequate for fish habitat from a scientific point of view. I have been told that this criterion of two thirds has existed for a hundred years around the world, and that there has not been a serious impact of water flows on fish habitat. Do you disagree?

Mr. Amos: An obstruction could still have a detrimental effect on navigation and species despite this limit of two thirds. Regardless of the river or the size of the obstruction, navigable waters could still be negatively affected.

Senator Massicotte: Are you speculating when you refer to two thirds?

Mr. Amos: Yes, exactly.

Senator Massicotte: But there is no evidence to the contrary. No scientific study shows if this is good or not.

Mr. Amos: No, this is an artificial rule. In reality, we would analyze each case individually.

[English]

Senator Seidman: Mr. Amos, I will pursue this a bit because I am still a little confused. Earlier this week, we talked about this. Last week, we had Mr. Gorall here, who is the Director General of the Navigable Waters Protection Task Force. He said clearly that there was nothing in these amendments that altered the roles and responsibilities of other federal departments and agencies or those of the provincial, territorial or municipal governments. In other words, all the existing regulations are still in effect. For example, in Quebec, I know that the environmental protection laws are extremely strict. You have said clearly in your presentation that the municipalities and provinces will not be able to deal with this. I do not really understand that. You keep saying that in response to everybody's questions here. I do not really understand why you think that the current regulations in effect in the provinces, territories and municipalities will not able to pick up the slack?

Mr. Amos: I appreciate the question, and this goes to Senator Lang's question as well. The answer is very simple. The provinces and territories have no jurisdiction over navigation. While provinces and territories can engage in environmental assessments and deal with riparian issues and have all sorts of jurisdictions around waterways and in waterways, they do not have the jurisdiction to regulate navigation. That is constitutionally given under section 92 to the federal government. It is not a question of whether a province has strong regulations. As it pertains to the protection of navigation, what a province may have in place in regard to separate permits just does not apply. It has no bearing on the matter.

I definitely take issue with your characterization of Quebec's environmental protection regime. The environment commissioner, under the Auditor General, in his reports indicates quite clearly that the environmental protection regime in Quebec both in terms of how it is framed and how it is implemented leaves much to be desired. That is not me saying this; this is an authority that is responding to the national assembly.

Leaving that aside, this is not about saying the provinces do not know how to do this or the provinces do not have appropriate notice and comment periods and are not capable of doing their jobs. Absolutely, provinces are capable of doing their jobs, and they have effective processes. However, when it comes to the protection of navigation, that is simply not within their constitutional jurisdiction. It is no more complicated than that.

The Chair: Are you okay?

Senator Seidman: No, I am still confused in the sense that this protects navigation. This new act protects navigation and transport, but the environmental piece, the regulations that apply to all the environmental reviews on anything that might occur in waterways, still falls under CEAA, for example, and all the environmental regulatory agencies in the provinces. I am still confused about this.

The Chair: Thank you.

Senator Baker: This is perhaps a good place for me to start and try to get to the bottom of this. Mr. Amos is an expert on jurisdiction.

I want to congratulate him on his efforts in the Supreme Court of Canada decision over the summer in which he represented one of the applicants on a different matter.

First, it is not just fish that are of commercial value or that are recreational need or Aboriginal need. The fish also have to be licensed. When you look up the definition of recreational fishery, it is the fish that are licensed, so there is a further restriction on the authority of the Department of Fisheries and Oceans under these changes.

Getting back to the main point that was asked of you by the senator, as I understand, you started off by saying that with a reference to the Friends of the Oldman River Society v. Canada case. You said that the Minister of Transport, under the Navigable Waters Protection Act, those waters that he had authority over, there was also a requirement for environmental standards to be applied to his decisions because of the decision of the Supreme Court of Canada in Oldman River.

As I recall, that case involved an application for certiorari and mandamus. Certiorari first to strike down the Minister of Transport's decision and mandamus to force him to pay attention to the environment. Every answer that we have heard from the government so far on these changes has been, "Oh, this is only for navigation, it has nothing to do with the environment." Is your main point that when you remove a river from the Navigable Waters Protection Act under the regulatory authority of the Minister of Transport, you also remove that accompanying responsibility to comply with the environmental standards? Is that your main point?

Mr. Amos: I would suggest that the dissociation of environmental protections from navigation protections occurred primarily through Bill C-38 by dissociating the environmental assessment process, by changing the trigger process and moving to a positive list process. That was what achieved the dissociation. We have consistently said this is problematic because we need the federal government to be engaged in environmental assessment in conjunction with the provinces. It is the case that there are federal and provincial regulatory regimes around different aspects of aquatic environmental protection that will still apply.

I think Transport Canada is justified in suggesting that the sky will not fall; environmental protections will still be there. As a basic proposition I can accept that. We do not accept that the protection of navigable waters and the protection of navigation are irrelevant to environmental protection. Historically, it has always been and there has always been — whether judicially or legislatively — an understanding that navigable waters — the environmental sub strata of navigation — is core to the protection of navigation itself.

Senator Baker: That is Oldman River. That is why you mentioned that. You reduce the number of rivers, navigable waters, and therefore you reduce that environmental component of that coverage under the authority of the Minister of Transport.

Mr. Amos: The applicability of Oldman River was reduced significantly by the enactment of the Canadian Environmental Assessment Act. With that new environmental assessment regime that came into place federally, we ceased to look at that decision as much, and we are much more focused on the triggering of environmental assessments pursuant to the requirement of an approval under the Navigable Waters Protection Act. We understand that has changed. Bill C-38 has passed, there is a new environmental assessment regime, and now approval under the Navigable Waters Protection Act does not trigger an EA process.

We are in a different world and the new governance regime that is being constructed is one where navigation protection is being completely dissociated from environmental protection, and that is the stated goal of this government. That is what Mr. Gorall explained. It is clear that they want to get out of the business of protecting navigable waters; they want to leave that to other provincial and federal regulatory regimes. The degree to which this will achieve efficiency and red tape reduction is a separate matter, and we have expressed our opinions on litigation being the new regulation.

Senator Baker: I was trying to get to the exact point you were making. I still think I am right; my assessment of the point you are making is the right one. I think you are absolutely correct, but mine is a much simpler explanation than you gave. Anyway, thank you.

Senator Lang: In discussing the amendments you must discuss totality. I refer to Senator Baker in his reference to the fact that it applies only to certain number of waterways. Along with that, and I would like to hear Mr. Orb's comments about this as well, there is an opt-in provision that you did not speak to in any great extent in your opening remarks, Mr. Amos. I want to point out that it puts the federal government in the situation where, when it is applied, the new legislation will apply. It is not ignoring those waterways. The other point I want to make and I would like you to comment on, is that we talk about the proponent making the application to opt in under the new legislation. It could be the province. It could be the Yukon Energy Corporation or the Saskatchewan Energy Corporation that asks to go under that act. Perhaps you can make your comments on that and clarify for us that it applies to all waterways if certain actions are taken — in those cases that the waterways that are not in the addendum — but the provision does apply and it is an opt-in clause. Perhaps you could comment quickly on it and Mr. Orb might have a comment on that as well.

Mr. Orb: Thank you. I am not familiar with that clause, but I think it would be a good thing if the provinces were allowed to do that. I do not see why that would be a problem. I cannot see anything wrong with it. It would be a good idea.

Senator Lang: It is in the legislation.

Mr. Orb: Okay, thank you.

Mr. Amos: Yes, there is an opt-in provision. My understanding is that the proposed navigation protection act will apply to owners, which could be municipal governments, Crown corporations, any number of project proponents, so the opt-in provisions apply comprehensively. That is not an issue. Our issue is not with the comprehensiveness of the opt-in provision; it is with the reality on the ground of whether this will be used. In some cases there will be sophisticated governmental or Crown corporation entities who, having done their risk analysis, will say it is in our interest to opt in and we will subject ourselves to the approval process. That does not, however, change the fact that the navigation protections that are provided for under the new NPA are greatly reduced as compared with the NWPA. It also does not change the fact that many "less sophisticated" — let us call them — project proponents will not decide to opt in. It is in this area where we will see the greatest conflict and the greatest reduction in efficiencies because litigation is not very efficient, as we all know.

Senator Ringuette: I want to address the issue of opting in. Yesterday the Canadian Energy Pipeline Association was before us. I asked if the opt-in provision removing litigation was for the construction or construction and operation. They clearly indicated that it was for both. If you look, for instance, at their situation, which is the construction of pipelines that would be interprovincial and probably international in some instances, you would have a great deal of unlisted waterways in such a project.

I find it interesting in all of this that the opt-in provision requiring the approval also removes, not only for the construction but for the duration of the infrastructure that will be built, any civil litigation from happening.

In your presentation, you talked about a greater ability to have civil litigation on unlisted waterways. The flip side to that, from my perspective, is the fact that we are removing quite a high risk to builders, for instance in pipeline issues, from being pursued in a civil court for damage either during the construction or for the 50- or 60-year life of the infrastructure. That is on the one hand.

I would like you to indicate something to us, also. Does the Government of Canada, being the trustee of the public good, not open itself to civil litigation — never mind the builders involved — in regard to unlisted waterways?

Mr. Amos: With respect to the interaction between the common law protection of navigation and the NWPA regime to protect navigation, I think that the testimony of Transport Canada is indicative of the correct answer, which is that the opt-in feature reduces the risk of litigation.

The statutory regime protecting navigation and navigable waters does not exhaust Canadian law as it relates to the public right of navigation. That is to say that the common law will always be a safety net, if you will, for the public to protect the public's right of navigation. The NWPA provides a certain level of protection. Quite often an approval from Transport Canada to construct a project that will obstruct a waterway will achieve sufficient protection vis-à-vis civil litigation, in the eyes of the proponent. Typically, they will have a strong argument for a defence of statutory authorization in the context of a public nuisance case.

However, ultimately I think you are correct that the common law does provide for broader protections of that public right of navigation. Although Canadian jurisprudence is not settled on the point of the existence of a public trust doctrine and on the inclusion or exclusion of the public right of navigation, or navigation in general as a component of that a public trust doctrine, it is a matter to be settled in the future. It really would not be a surprise, I do not think, to many if litigation going forward in relation to projects that are on unlisted waterways where the opt-in has not been sought by the proponent — that we may see arguments around navigation as a public right and around the development of the public trust doctrine.

I would say it is not clear that an approval process immediately eliminates the potential for civil litigation. It diminishes the risk but does not eliminate it. However, getting rid of the approval process materially increases the risk.

Senator Ringuette: Absolutely.

Since Bill C-38, we have now a bigger risk factor for the Government of Canada — i.e., the taxpayers of Canada — to be subject to litigation. I was looking this morning at a major article in the Ottawa Citizen indicating the huge increase in cost for law firms to defend the Government of Canada on different issues. On the one hand, we do something in order to, as the spin says, reduce red tape, costs and so forth. However, on the other hand, you end up with huge costs in the legal sphere of things.

Senator Wallace: One of the obvious key elements of the bill is that certain waterways would be listed and afforded the protection under the amended act, and other waterways would be unlisted. On November 1, we heard from Transport Canada's Nathan Gorall, Director General of the Navigable Waters Protection Task Force. He explained the rationale of the department in determining what waterways would be listed and what would be unlisted. I will read a brief portion of his presentation to us. He said:

This would let us zero in on bodies of water that are the busiest or most heavily navigated in the country. This determination is based on statistics that indicate high levels of either recreational boating or freight movement.

He went on to later add that proximity to heavily-populated areas would be relevant, as well. To continue:

This change would enable us to review projects thoroughly on these important waterways, ensuring they comply with all the requirements of the act.

What comments, if any, do you have regarding the criteria that Transport Canada is using to determine which waterways would be listed and which would be unlisted?

Mr. Orb: One of our main points is that you can have a waterway that has never seen any kind of a boat or canoe — anything — and maybe it never has. Maybe it is a stream that runs for maybe a week in the spring and that is it. However, it should not be on the list. I think that is a good thing, and it fits the criteria.

Obviously, the places that have issues with a lot of transportation on the water are a totally different issue. That is not our issue at all. The issue that we have is where there is no recreation and no traffic of any kind on the water. That is what we want.

Mr. Amos: I have read Mr. Gorall's testimony, and I do understand that Transport Canada has what it considers to be a rigorous process to evaluate statistics in relation to navigation use. I think that is good and appropriate. It would shock me if they did not have that. Two points I think can be made quite quickly.

First, Transport Canada admitted on October 19, in a teleconference call advising stakeholders of the nature of the changes being proposed, that they do not have statistics for many waterways in Canada, certainly not for all navigable waterways. Navigable waterways are pretty much anything that you can float a canoe down, so I think it would be unfair to suggest that they are dealing with a complete picture.

Second, I would suggest that the decision making around what bodies of water made the list was, ultimately, a political one. It is not up to Transport Canada to table this bill; it was the Minister of Transport. The choices of what waterways went on to the schedule were not those of Mr. Gorall. They might have been suggested. I am not aware of whether there was a difference between what was suggested by Transport Canada and what was ultimately tabled. That is a matter of political decision making informed by Transport Canada's own information, which, we would suggest, is not complete by their own admission.

Senator Wallace: From all of the witnesses we have heard representing the government, I have yet to hear that comment that you have just made, that it was a political decision. We have heard that it was based upon a focus on the busiest waterways, the most significant waterways in terms of recreation and commercial activity. Obviously, there has to be information available to do that. That is what we have heard, and we have heard nothing other than that. I have no reason to believe it is anything other than that.

You comment that the Department of Transport has acknowledged or said to you that they do not have statistics on all waterways. I do not think that that would be surprising. I think, with the range of waterways that we have in this country, I would not expect that anyone does. What we have heard is that their focus is on the significant waterways, and they certainly do have statistics regarding those significant commercial and recreational waterways. That is what they based their decision on, at least that is the evidence that we have heard here.

Mr. Amos: As the son of a lifelong bureaucrat, I believe that officials at Transport Canada are providing advice to this government in good faith and that they have a rigorous assessment process for what the busiest waterways are. I am not in any way trying to call into question their bone fides, but I would suggest that we, for instance, look in our backyard. The Ottawa River made the grade. It is on the list. The Gatineau River did not. I navigate the Gatineau River; I belong to the Gatineau River Yacht Club. I have a little canoe, and I paddle on that body. It did not make the grade. At a certain point, there is analysis of what the busiest are. Let us also acknowledge that the minister has the discretion to add further waterways. This is not a system that is inflexible, but suffice it to say that there are many waterways that are not on the list. As the media has covered extensively, well over 99 per cent of waterways will not receive statutory protection.

Senator Brown: I noticed this Ecojustice thing, of a number of pages, that we have been given. The only thing I can understand about it that makes sense is the conclusion where it says:

Although a handful of proposed amendments to the NWPA in Bill C-45 may enhance protection of navigation and navigable waters, the overall deregulatory impact will be to weaken Canadians' public right of navigation. In essence, the federal government is doing its utmost to "get out of the business" of protecting navigable waterways across the country, except for three oceans, 97 lakes, and portions of 62 rivers. The majority of Canada's waterways will not be subject to statutory navigation protections, leaving citizens clinging to the leaky lifeboat of common law in the fast-moving currents of economic growth.

For the life of me, I cannot believe that we would want the government to try to control every piece of waterway in this nation. This country is the second largest country in the world. There have to be thousands of waterways — creeks and whatnot — that are not going to come under federal government legislation. We went through this a year or two years ago, where we argued about whether a canoe could carry 400 pounds and be in four inches of water and still float and whether it needed a giant culvert or could be portaged across to the next 30 or 40 feet and put back in the water. I do not understand why there is any discussion at all about the federal government taking itself out of the business of waterways that are so small and are not on this list.

Can you give me any good reason why they should be?

Mr. Amos: As I indicated before, I think that the amendments that were tabled and enacted in 2009 provided the Minister of Transport with ample flexibility to exempt minor waterways. You are right; there are tens of thousands of water bodies. The 2009 amendments provided for ministerial exemptions, so they achieved more than what was necessary to allow the federal government to step back and to get out of that approval business, if you will. What we are seeing here are further steps. I do not see why it is necessary. I do not see why the federal government does not have the tools at its disposal to step back so that there are less onerous regulations on project proponents. I believe that they already have what they need. I do not think that the case has been made for a complete shift away from a regulatory regime that requires approvals in certain circumstances toward a greatly reduced regime where only a handful of waterways are covered. Even then, very few approvals will be required because a ministerial determination of substantial interference will have to come before that.

I would suggest that it was three steps back in 2009. Where is the case that two further steps back is required?

Senator Brown: I am not asking for more steps back; I am just suggesting that we have already got so much that government is looking after now in terms of large bodies of water. It does not make any sense to me to drag the government into something that a canoe can run on or something that is intermittent with water. I cannot understand that. Thank you.

Senator Massicotte: Mr. Amos, you mentioned the amendments proposed in 2009 as being three steps back. In other words, you think that there was a significant regression in our policies in 2009. Is that accurate? I did not review your position papers but I presume you were against that amendment in 2009?

Mr. Amos: We did not feel that the amendments in 2009 were particularly balanced, notably because the Statutory Instruments Act would not apply for ministerial order or ministerial regulation, such that that if a minor water, a class of minor waters, a class of works were or a work were to be identified, there would be no public notice or public commentary.

Senator Massicotte: It took us three steps back in your opinion. Today, three years later, what is the synopsis? What is the balance sheet? What has been the consequence of that change in real life?

Mr. Amos: The consequence in real life is that the federal government will get out of 99 per cent of the navigation protection approval.

Senator Massicotte: Three years later, what is the consequence to society? I appreciate the laws for a better Canada. Has it been negative or positive? Is it three steps back in reality?

Mr. Amos: I appreciate the need to control expenditures at the federal level and I appreciate the principle of subsidiary and the idea that if governance at a local level is possible, it is appropriate. In that respect, they have achieved the goals of reducing the state's expenditures, but the problem is that there is no backstop provincially or territorially to deal with navigation protection. The net effect is that the public right of navigation is less protected by the state.

Senator Massicotte: Is that because of 1999?

Mr. Amos: It is because of 1999, 2009 and these proposed amendments.

Senator Massicotte: Mr. Orb, you live those amendments day-to-day. Have they been negative or positive?

Mr. Orb: I think those changes have been positive and have made our situation a lot better. Our municipalities will save a lot more money in the future. The amendments in 2009 are an obvious step in the right direction. It has made Canada a lot better. It goes a lot toward economic development too to be able to save that money and spend it on the infrastructure that we need to sustain traffic on roads and bridges and things like that.

Senator Patterson: I would like to tell a short story about Senator Sibbeston's region; and I hope he will forgive me. I just heard from a mining company called Avalon Minerals Limited, which is hoping to develop a rare earth project in the Northwest Territories in a remote area south of Great Slave Lake. They have impact and benefit agreements with adjacent Aboriginal communities. Their mine plan, which has to be approved by Aboriginal Affairs and Northern Development Canada, calls for the depositing of tailings in what they call "ponds." I guess we might call them sloughs. They are less than 20 hectares and water freezes to the bottom every year. There are no fish and DFO has no concerns about fish. The Aboriginal people in the area have no concerns about these ponds being used for this purpose. No people want to navigate or cross a slough like that in this very remote area. Nearing the end of a long environmental review process with the Mackenzie Valley Environmental Impact Review Board, Transport Canada officials, as a result of recent changes to the Navigable Waters Protection Act, are telling the company that they must now receive new approvals for the dewatering of these ponds.

Mr. Amos, in your speaking notes you suggested that this is one of the few positive changes in the bill. I wonder if you would agree that in the situation I have described — no fish, water freezes to the bottom, small pond, no navigation, no Aboriginal concern, no concern on the part of DFO — that it is a good thing that a new amendment would allow Transport Canada to start a whole new process when the company is almost at the end of a very long regulatory review. Is that progress?

Mr. Amos: I cannot speak to the specifics of the Avalon situation, and I am not aware of how Transport Canada has interacted with the environmental assessment process. I will try to step away from the specific example, but I will go to the proposed amendments to section 23 of the NWPA, which are related to dewatering.

As we understand it, these provisions were proposed by Transport Canada as a positive reform because it was clear to them, and this is my understanding based on the teleconference call of October 19, that certain unscrupulous mining companies sought to avoid regulatory restrictions under the Navigable Waters Protection Act dumping provisions by dewatering streams or water bodies prior to dumping tailings into them. Again, this is what I understand Transport Canada's position to be. The idea was that if a body of water is dewatered to the point where it is no longer navigable, then the deposit of waste into it ceases to be problematic for the company.

I cannot speak to the specific situation of Avalon. I have no idea of the uses, and I imagine that there are many tailings ponds or sloughs that truly are not navigated, probably do not have any living organisms that humans might consume and may be weak ecosystems. However, I will say further that as the Mining Association of Canada and others, such as the Congress of Aboriginal Peoples, have suggested, it may be the case that there is a problem with the lack of an approval process around the dewatering provisions. If there are complaints or frustrations with the bill as it has been tabled, I would suggest that is what the legislative process is supposed to be for. Let industry stakeholders make their case and let us see if this government is willing to amend a single provision of the budget bill. I would be shocked, based on past history.

Senator Patterson: Mr. Amos, you suggested that there was no approval process for this dewatering situation, but I understand that in sections 22 to 24 of the NWPA there is the possibility of receiving an exemption by an order-in- council process. Do you have any comment on the appropriateness of allowing an order-in-council exemption for the application of the act?

Mr. Amos: No. As between an approval process that industry apparently would prefer or an order-in-council exemption, that is not an issue where Ecojustice Canada would take a position.

The Chair: Before going to a second round, I will ask a couple of questions of both witnesses.

Mr. Orb, Saskatchewan has been very busy and is leading the country in development and gross domestic product. Much of that has to do with oil and gas, I believe. There will be some other things, including manufacturing, so Saskatchewan is moving right along.

As a representative of the rural municipalities in Saskatchewan, since the changes that were made in 2009-10 to the Navigable Waters Protection Act, are you aware of anything that has happened in the negative that has required court action or required the federal government or the Saskatchewan government or companies or individuals to be taken to court because of the changes to minor works, which you have told us was very beneficial? I concur with the example you use, and I would assume there would be hundreds more of that kind of example in Saskatchewan with all the things that are going on. Are you aware of anything like that taking place? Has someone done something so bad that they have ruined a waterway or that kind of thing? I am including fracturing oil shales. That is what is generally driving the economy. There is lots of fracking going on. Can you tell me if there has been anything like that happening?

Mr. Orb: Not to my knowledge, no. I have not heard of anything. Obviously we do consult with our rural municipalities. They are all members of ours. It is kind of unique in a country like Canada where you would have a membership of every rural municipality. Also, we have a good working relationship with the oil companies, and especially in the south central and southeastern part of the province there is a lot of oil exploration and development going on. The Ministry of Highways and Infrastructure also has had some issues with navigable waters in the past. We have had some documentation and discussion with highways over this kind of thing, but that would pertain to more of the busy parts of the province where there is a paved, busy highway. I have not heard of litigation or any problems around any of those changes.

The Chair: Your organization represents rural communities. Saskatchewan is a huge agricultural province. We know that. I come from a farming background. Farmers are very good stewards of the land. Would you agree that if there was something untoward taking place because of the changes that were done earlier to facilitate things like you talked about, that farmers would be getting hold of their regional municipalities and saying, "Look, these things are wrong?" I want to double-check. You have not heard anything through the farming community other than maybe there are some differences of opinion once in a while, but anything major coming from the farming community, who are stewards of the land? Most of this action is taking place on an awful lot of agricultural land. Can you assure me of that?

Mr. Orb: I cannot guarantee that 100 per cent, but I think communities and individuals and especially farmers police themselves, because obviously they care about the environment. We have had a high uptake in our province among agricultural producers enrolling in Environmental Farm Plan. That is a program with a stewardship program associated with it where farmers can show what they are doing on their own farms to protect the environment. A number of people are watching what is going on in rural Saskatchewan. It is surprising, though, that it is happening.

Obviously, a lot of people do care about the environment. It is more of a top issue now. Environment is a very important issue in Saskatchewan. Some of the things you allude to with oil and gas development have brought the environment more to the forefront. People are cognizant of what is happening on their own land. There are other issues with the environment regarding the Species at Risk Act, and farmers are aware of those things.

In oil and gas, actually, the production was equalled. The total amount of oil and gas production in 2010 was equalled by agricultural production for the first time. The exports in agriculture were almost $10 billion. Many changes have happened since then, but our production is actually doing well. We have many sophisticated farmers using good technology, and they are good stewards of the land at the same time.

The Chair: Mr. Amos, I took the liberty of reading the transcripts from your previous appearance before this committee. I want to read one article out of it. We are referring to minor works now, and that was the question that I just asked Mr. Orb. That says:

The placement of these works that have been defined in this order will likely result in interference during construction and unknown levels of environmental damage, in particular if no environmental assessment is triggered under the NWPA.

I want to reflect a bit. I appreciate what you have come to tell us. I do read and reread a lot of the testimony so that I understand it before we do our reports. I will ask the same question — without repeating the whole question — that I asked Mr. Orb. Has something very negative happened across Canada, remembering this statement that you made in regard to removing minor works? Has there been something that I do not know about? I would appreciate knowing. I do not know. You are an expert. You represent a lot of people. I appreciate your in-depth knowledge on these things. Is there something that happened that this body is not aware of?

Mr. Amos: Since I am sitting in an office in Ottawa and not on the ground across the provinces dealing with specific projects, I cannot point to one example where a lack of navigation obstruction approval being required has actually concretely caused damage to a particular community or to a particular body. I can say that, pursuant to the 2009 changes and the ministerial order that followed where a number of waterways and a number of works were exempted from the approval process, meaning that up until July of 2012, on those particular works and waterways, no environmental assessment federally would be triggered, there will be projects that may have been subject to an environmental assessment federally that were not because there was no NWPA approval required to trigger that EA.

It is not the case that, across the board provincially, the environmental assessment processes require assessment of projects. There are a number of different industries or projects. For instance, in British Columbia if your road is not 20 kilometres or longer, you will not have to do an environmental assessment. What was created was a series of gaps.

Can I point specifically to instances of gaps where there was no federal environmental assessment required and where the provincial environmental assessment regime was not applicable? No, I cannot. I did not prepare my remarks to deal with that question, and it would take some significant consultation with groups on the ground in different provinces to sort this out. I do not think I am here before you saying the sky is falling.

My concern is ensuring that the regulatory regimes are robust and that if we are going to streamline, we do so in a responsible and consultative manner and in a way that does not ultimately place the burden of regulation on the shoulders of private individuals.

The Chair: I will take the prerogative of the chair and take a little bit more time because there is a second part to this question that I would like to bring forward. When you say you are not here to talk about the sky is falling, I had your legal backgrounder that was given to me. I think everybody around this table and in fact probably most Canadians in Western Canada, at least, know about Northern Gateway and the problems it is causing. These are your words, and the sky is falling. I want to remember what you said:

Under the proposed NPA, proponents of industrial development and large infrastructure projects (e.g. Enbridge's Northern Gateway pipeline) will be given free rein to disrupt and impact Canadian waterways without regard to either navigation or environmental rights.

That is a legal backgrounder and I would say that is saying the sky is falling. With all the things happening with Northern Gateway and all the protections that I know are in British Columbia and that the federal government has, I think to say those things is a bit inflammatory if you agree with me. I want to actually look to your testimony that I read from the last time you were here. You said:

I cannot point to one specific example on a specific project. As a lawyer, I often work in theory rather than in practice.

I wonder if you could explain a little bit more to me that you work in theory, but not in practice. I asked whether something bad had happened over the changes last time. We are saying there will be some really bad things going forward with these changes and I want to keep that all in context in my mind.

Mr. Amos: Yes, it is self-evident that the vast majority of rivers and waterways that the proposed pipeline will cross will, in some way, shape or form, have an impact on navigation. Those will no longer require approvals. Those are approvals provided by the National Energy Board and not by Transport Canada. I think it is fairly obvious that if the vast majority of waterways impacted by a project are not subject to the navigation regulatory regime, then you have a situation where there is a significant gap in the public's protection. To me, that is not a sky is falling situation; it is an assertion of reality. If I am going to express that reality in colourful language, that is a matter of editorial discretion and not a matter of misleading Canadians.

I appreciate that there are thousands of Canadians who rely upon Ecojustice Canada as a charity to provide balanced assessments of proposals for legislative reform at federal, provincial, municipal and territorial levels. It is our responsibility to ensure that we provide accurate information and that our legal analysis is solid. To be frank, we stand behind everything we have said in this legal backgrounder. What we do not see is any response whatsoever from this government as regards the meta-issue of litigation becoming the new regulation. There is not one iota of justification apart from we need to streamline, let us cut some red tape. As far as I am concerned, the greater issue here is not what editorial decisions I make in articulating what I think is a pretty basic point that navigation protections and approvals are not going to be provided by the federal government in relation to most waterways affected by Northern Gateway. That is a minor issue in comparison with the bigger issue of dealing with transformation of the navigation governance regime. Let us talk about it.

Senator Mitchell: How would we know if something bad has happened if there had not been any reviews of it? A government concerned would go out and do sampling of how the changes affected environmental results.

My question is: In one of your briefings — it is very interesting — you point out that the regulations designating physical activities will replace the — to this moment — current comprehensive study list regulations. Under that new regime, RDPA as we are calling it, existing projects will be exempt from environmental assessment when they propose an increase in production capacity, for example an electrical generating station, of more than 35 per cent for oil refineries. These projects, for example expanding the number of golf course holes in a national park, will be exempt from an environmental assessment. Also, developing a commercial ski area in a national park or reserve will be exempted even if it is not consistent with the long-range development plan approved by the minister.

We could have a 35 per cent increase in an oil refinery and 18 more golf courses in Banff or Jasper National Parks, a commercial ski area expansion of Lake Louise, Sunshine or Marmot in those two parks, and there is no environmental assessment required. Am I right when I interpret that briefing in that way?

Mr. Amos: I would want to go back to the recent amendments to the environmental assessment regime. In developing the regulation designating physical activities, which took almost word for word what was in the comprehensive study list regulation previously applicable under the old CEAA, Parks Canada took almost all of it and some of the national parks aspects you pointed out were not included. I would have to go back and look at what Parks Canada has done on a separate ledger to provide for assessment of those projects. I cannot provide you with a complete answer. However, I believe our CEAA backgrounder provides that information.

Senator Lang: Mr. Amos, earlier in your testimony you mentioned that without the current Navigable Waters Protection Act in force, the waterways not on the designated list could then be interfered with in respect to water flows. I believe you specifically referred to that. I do not understand why you would say that, knowing that in the provinces and the territories there are other legislative measures in place that are required to be met prior to any interference in the water flows of these other waterways, or for that matter any waterway at the provincial or territorial level.

Perhaps you could tell me which province or territory does not have legislation in place that has to be met before a stream could be redirected or flows interfered with? It is misleading to give the inference that if these changes go through you are then able to go and interfere with a waterway with carte blanche, without having to meet any legislative bar. The federal Fisheries Act are and the Environment Act are still in place; why would you say that and leave it hanging? Perhaps this is a variable, and maybe you could comment on the fact that there is other legislation in place or point out that there is not for the record?

Mr. Amos: Sure and, mindful of the time, I will be brief. I acknowledge that there is provincial and territorial legislation that goes to water flow management in Ontario. You have the Ontario Water Resources Act, but none of these statutes goes specifically to the impact of flows on navigation.

The provinces do not have the jurisdiction to deal with the navigation. They might deal with water flows of a specific project pursuant to their own process defined by provincial legislation.

Senator Lang: They are required to.

Mr. Amos: However, that legislation does not have any regard for navigation because it cannot; they do not have the jurisdiction to look at navigation.

The Chair: Another committee will soon be coming in here, and I will ask Senator Baker for an observation, a very quick one.

Senator Baker: Just an observation. I was shocked to listen to former Premier Patterson of the Northwest Territories — we have two former premiers from the northwest here — describe what is happening to our flagship discovery of rare earth minerals and the difficulties that they are having. I would strongly suggest that the steering committee, if it is suggested by the former premiers, take some kind of action or make some kind of inquiry into this matter and that it be dealt with in the steering committee meeting. Perhaps there is something that we can do because, the way it was described by Senator Patterson, it is really alarming that there would be such obstruction in a case like that.

The Chair: Thank you.

Senator Seidman: I want to go back. Mr. Amos, earlier in your testimony, you implied that the list of waterways is somehow political because you said that it was not Mr. Gorall who tabled the bill but the minister. I would like, for the record, to suggest that indeed it was the minister who tabled the bill, but I presume that he would have taken the advice of all his consultations and the director general of the Navigable Waters Protection Task Force. That is my point.

Mr. Amos: I take it as a given that ministers receive advice; I do not take it as a given that they accept it. I think that there are many well-intentioned, highly educated, public interest minded bureaucrats working in Ottawa and elsewhere in this country for the federal government who are providing solid advice and it is being ignored. That is the political process; governments choose what advice they want to listen to. They listen to stakeholders and to their own civil servants. The decision to list a particular river on the schedule of the proposed Navigation Protection Act is a distinctly political one, and that issue has been covered abundantly in the press.

Senator Seidman: I would take exception to that and say that it is an expert who makes that decision and that the ministers follow the advice of experts, not their own personal, political ideas.

The Chair: Thank you.

Thank you, witnesses. I appreciate the time that you have given us. Have a good day.

(The committee adjourned.)