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.
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
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
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
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.
I am very open to any questions in French and I will answer in the same
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
Senator Massicotte: Are you speculating when you refer to two
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.)