Standing Senate Committee on
Agriculture and Forestry
Proceedings
of the Subcommittee on the
Boreal Forest
Issue 3 - Evidence
OTTAWA, June 10, 1998
The Subcommittee on Boreal Forest of the Standing Senate Committee on Agriculture and Forestry met this day at 5:30 p.m. to continue its study on the present state and future of forestry in Canada as it relates to the boreal forest.
Senator Nicholas W. Taylor (Chairman) in the Chair.
[English]
The Chairman: Good afternoon, Mr. Swanson. Are you the only speaker today, and will you begin?
Mr. Gerry Swanson, Director General, Habitat Management and Environmental Science, Fisheries and Oceans Canada: I suspect I will be the only one, but my colleague Michaela Huard may be able to assist me if I am unable to answer some specific questions.
I will share with you my prepared presentation, and then we will be happy to answer any questions you might have, if we can. If we are not able to, perhaps we can point you in the right direction or do some research, in order to provide you with the answers you are looking for.
This afternoon, I propose to focus my remarks on the particular part of the Department of Fisheries and Oceans, the DFO, that I work in, the protection of fish habitats. I would also like to speak about our relationships with some of the provincial governments in respect of that.
The Constitution gives the federal government authority for seacoast and inland fisheries, and it has chosen to exercise its legislative responsibilities in this area primarily through the passage of the Fisheries Act.
In fact, I think the Fisheries Act is one of the first acts to have been passed following Confederation, and there are sections in the act that we are working with today that date back to 1868.
The Chairman: When you say fish habitats, you are not just talking about inland fisheries, but about game or any type of trade, right?
Mr. Swanson: The Fisheries Act pertains to fisheries waters in Canada. That includes waters in our coastal and inland areas. Fish habitat is defined in rather complex terms within the Fisheries Act, but it is essentially where fish live.
The Chairman: It can be any fish at all, even sport fish.
Mr. Swanson: Yes, that is right. Some court cases indicate that federal government jurisdiction, with respect to fish, pertains to fisheries. A fishery is where people use the fish in some way, whether it is a commercial, recreational or an aboriginal fishery.
The principal section in the Fisheries Act dealing with the protection of fish habitats is section 35(2), and we will talk a bit about it this afternoon. It may be a section that you hear about as you travel across the country, looking at this particular issue.
Section 35 indicates that it is an offence against the act to destroy fish habitats, however, there is an exception to that offence. You may destroy fish habitats if you have authorization or permission from the Minister of Fisheries and Oceans, and I will get back to the provision a little later.
There are other provisions in the act as well, to protect fish habitats: provisions which ensure that there is sufficient water for the passage of fish, provisions allowing the minister to require the construction of spacing fishways around dams, and this kind of thing.
Essentially, I am involved in the area of habitat management that involves the review of projects which in some way could impact on fish habitats. We attempt to find ways to reduce or eliminate those impacts.
In doing that, we operate under a policy which contains a principle known as the "no-net loss principle", by which we attempt to mitigate the impacts of a project on fish habitats by changing the way a project may be built, when it may be built, and its location. If we are unable to do that, the minister may issue an authorization, which would essentially allow for the destruction of a fish habitat. However, our policy requires that the loss be compensated for in some other way, such as the creation of a fish habitat at or near the location of the project itself, in the same kind of ecosystem, river or water body where the fish originally lived.
Perhaps I can turn to the relationship that we have with the provincial governments. Generally, fresh-water fishery management has been delegated to provincial governments in Canada. There are long-standing arrangements, for example, in the provinces of Ontario and Quebec, that really go back to the turn of the century. The first arrangements in Ontario and Quebec were entered into in 1899, and essentially at that time, although it is difficult to find the documentation, the responsibility for administering the Fisheries Act was turned over to the provincial governments. We have similar arrangements in the Prairie provinces. Those arrangements, though, are more recent and date back to the timing of the resource transfer agreements in the 1930s.
The provinces then have the responsibility for fisheries management, and they do it under federal legislation. If you are out fishing on the Rideau River, and a game warden comes along, that person will be a provincial person, not a federal one.
The Chairman: Is this an automatic thing or is it a treaty that is signed from time to time?
Mr. Swanson: The records vary in form. I mentioned the arrangements with Ontario. We have had legal people try to find the documents that affected this transfer, but they have been unsuccessful in doing so. However, the arrangements are continuing ones: they are not renewed on an annual or periodic basis.
With the administration of the Fisheries Act to provincial governments, there is also enforcement of the act. The game warden I talked about is a provincial official, but that person would be administering our piece of legislation, as well as legislation that the province may have. The federal government, however, has generally retained its authority in coastal areas, so the DFO continues to have a large staff on the East Coast and the West Coast, and we also have a small staff in Northern Canada.
Senator Spivak: Did the recent harmonization agreement have anything to do with fresh-water habitat management?
Mr. Swanson: No. I have to rely on my colleague to assist me on this, but an overall umbrella agreement was signed between the federal government and all of the provincial governments, except for Quebec, last January.
That agreement had three sub-agreements. One dealt with environmental assessments. One dealt with inspections: who should be visiting various kinds of plants to check what was coming out of the pipe. The last one, I believe, was on environmental standards.
Senator Spivak: So there was nothing in there for further delegation of federal powers under the Fisheries Act.
Mr. Swanson: No, it does not deal with that. With respect to habitats, I mentioned earlier that the provinces have the authority to manage the fishery. However, certain sections of the Fisheries Act, under the act as it is constructed, cannot be delegated to provincial governments, such as section 35. That power now rests with the Minister of Fisheries and Oceans and his officials. Although provincials governments may review projects under their own legislation for various effects, if those reviews determine that a fish habitat will be destroyed, provinces do not have the authority to make that determination.
There are relationships between fish habitats and forestry. Generally, the management of forest-harvesting activities is a provincial responsibility. The Crown land in the province is Crown land held in right of Her Majesty, with the Crown represented by the provincial government. However, forest-harvesting activities can have an impact on fish habitats. There could be changes to hydrologic regimes due to a loss of forest cover. There could be physical disturbance or destruction of fish habitats as a result of heavy equipment moving through streams and lakes.
If vegetation is lost along the shores of rivers and lakes, water temperatures could be increased. This affects fish. This kind of activity can also lead to increases in sediment loads in water bodies. We cooperate with provincial governments in the development of guidelines and practices to mitigate the effects of these kinds of activities. One guideline I am sure you may hear about is the B.C. Forest Practices Code. I was here a year ago, and at that time, I said it was a great document and a model to be followed. Indeed, I would still ay that, except that it now appears that there may be some backtracking or relaxing in that document, as well as questions about enforcing its provisions.
Having said that, the concept was certainly a good one. It attempts to set out, in advance of activities, a way of doing things that would minimize disturbances on fish habitats.
Senator Robichaud: Who would relax; the provincial government, the federal government, or both?
Mr. Swanson: We understand that the relaxation is part of a provincial program. The B.C. Forest Practices Code is a document issued by the provincial government. We were consulted very closely, however, and had input into it. When the document originally came out, it was viewed quite positively, at least by certain aspects of society. Now, it certainly does not appear to be enforced as some would like.
Senator Spivak: That is a very diplomatic way of putting it.
Mr. Swanson: Other provisions of the Fisheries Act also have relationships to the forest industries. These provisions are generally known as the pollution-prevention provisions of the Fisheries Act. The principal pollution-prevention provision, which is sort of a parallel provision to section 35, is section 36 of the Fisheries Act. It stipulates that you cannot deposit, into fisheries waters, substances that are deleterious to fish, unless that deposit is authorized by a regulation.
The experts on section 36 are people in the Department of the Environment, the DOE, and I understand that they will be appearing before you later. The provisions are in the Fisheries Act, however, there is an arrangement that those provisions are administered by the Minister of the Environment, and not the Minister of Fisheries and Oceans.
We still have, within the Department of Fisheries and Oceans, the DFO, the scientific capability to work with officials at Department of the Environment, the DOE, in terms of researching the impacts of various kinds of deposits on fish.
There are regulations under section 36 dealing with the deposit of substances from, for example, paper mills. Those regulations set acceptable limits of deposits in terms of paper-mill effluents. Our scientists worked with the DOE in terms of establishing what those limits should be.
Another legislative provision or statute that comes into play from time to time in the protection of fish habitats is the Canadian Environmental Assessment Act, the CEAA. It is a fairly new piece of legislation: I believe it came into force in 1995. It is the legislation which, to a large degree, governs the federal government in its environmental assessment of projects. That act ensures that the federal government will conduct an environmental assessment of projects that are federally funded, that are on federal land, and for projects that are proposed by the federal government. For example, if the DFO -- and I do not think we do this anymore -- was building a small-craft harbour some place, that would be the type of thing on which we would have conducted an environmental assessment.
Finally, an environmental assessment is required, where there is some sort of federal regulatory approval.
Senator Spivak: Was this part of what was removed from Bill C-9, the Maritime Act?
Mr. Swanson: I am not familiar with Bill C-9.
Senator Spivak: I guess not. That just excludes harbours.
The Chairman: I do not know about that.
Senator Spivak: No, it does. I just wondered whether this was part of it, but perhaps not.
Mr. Swanson: I am not familiar with that, but I did mention that an environmental assessment is required when there are certain federal regulatory approvals listed in the CEAA's regulations. If you will go through those regulations, you will find section 35 of the Fisheries Act listed.
Senator Spivak: If you were building a small-craft harbour, and it affected fish, there would have to be an assessment, right?
Mr. Swanson: If you were building a small-craft harbour where the federal government was contributing funds, an environmental assessment would be required, whether it affected fish or not.
Senator Spivak: What is the relationship here?
Mr. Swanson: If a private citizen were building a small-craft harbour and it did not affect fish, it would not require an environmental assessment unless some federal money was going into it. However, if it affected fish and was going to require federal regulatory approval, it would then trigger an environmental assessment.
The Chairman: Who decides whether it affects fish?
Mr. Swanson: We do.
The Chairman: How do you know about it? Does someone call you up?
Mr. Swanson: I am going to get to that issue. The particular provision that I referred to, section 35, does not require that the proponent make an application or have a permit; it simply sets out an offence. If you destroy a fish habitat, you can be hauled before a judge, but if you do not want to be hauled before a judge, you would be wise to come to the DFO to talk to us and get this authorization from the Minister of Fisheries.
Senator Robichaud: I thought you needed a permit to do any alteration within 25 metres of a water course.
Mr. Swanson: You do not, under the Fisheries Act.
Ms Michaela Huard, Director, Habitat Management Branch, Fisheries and Oceans: You do under provincial law.
Senator Robichaud: Then, when you make your application, they go to Fisheries.
Mr. Swanson: Exactly. This has been set up in many provinces. They might have legislation such as the senator is referring to, or other kinds of legislation, and the provincial people will look at it and say, "This is pretty close to a river; it could be affecting fish in some way. We had better send this over to the DFO."
I want to make the distinction between a permit, which is like your driver's licence, in that you must have it in your wallet at all times when you drive a car -- it is an offence not to -- and this authorization that I am talking about. The permit is different from the authorization that we have under the Fisheries Act, and leads to the kind of complication that we are talking about. There is no requirement that they come forward to us and so we must, and do, rely on other methods for bringing these things to our attention.
I was talking about the CEAA, and the various things that trigger an assessment under that act. A number of these regulatory approvals under the Fisheries Act require an environmental assessment, and they are listed there. The principal one is the authorization under section 35(2), which comes into play most frequently.
Senator Spivak: Harbours have not been excluded from this.
Mr. Swanson: I would be pleased to review that particular provision with you at some time, if you wish, and perhaps we could have discussion as to how this might still apply. But I am not familiar with it, so I will refrain from commenting at this point.
I would like to talk about the process that we follow in coming to a decision as to whether or not an authorization will be issued. We are in the business of protecting fish and fish habitats. We would like to see fish habitats maintained; we do not want to see them destroyed. That is why we go through a fairly lengthy process, elaborated in six steps here, before we get to that step where the CEAA would be triggered.
We have a period of discussion and negotiation to try to get the proponent to conduct the project in some way that the habitat will not be destroyed. It is only when all else fails that we then look at issuing an authorization, and we are then at the stage when the CEAA would be triggered.
This back-ended trigger, as we refer to it, results in considerable uncertainty for proponents and other stakeholders and creates delays in project decisions. In the meantime, provinces may be carrying out their own review process, and it becomes difficult to trigger these kinds of reviews.
When we do trigger an environmental assessment under the CEAA, that act provides for different kinds of reviews. The first one that you will hear of is a screening decision, a process under which more than 90 per cent of all cases are looked at. It can be a fairly extensive process, but because we handle things at a screening level and do not refer it to an environmental assessment panel -- a public panel -- people often believe that a full environmental assessment has not occurred. That is not necessarily the case.
If you look at something at the screening level, you may determine that the environmental impacts are insignificant. There is no requirement that it go on to another stage, and you make your regulatory decision. There are also projects under the act which require a comprehensive study, and that is really a more detailed review than a screening decision.
These kinds of projects are listed under the CEAA's regulations. While I do not have any examples with me pertaining to the forest industry, you will see regulations stipulating that, for example, a mine which produces more than X number of tonnes of whatever per day, per week would require this kind of comprehensive study.
Finally, there is a panel review. It is required only where a screening or a comprehensive study has determined that the impacts are significant and cannot be mitigated, or where there is substantial public concern. Only about 1 per cent of the projects submitted to the CEAA are subject to panel review.
What is the linkage to forestry in the CEAA? Forest harvest-management plans do not, in themselves, trigger a review under the CEAA. Forest activities could be subject to the CEAA if they require an authorization under the Fisheries Act, that is, that there is something in the harvest management plan where a stream containing fish is going to be damaged in some way. But the actual exercise of cutting down trees is not something that would trigger an environmental assessment under federal law. It may or may not trigger some sort of provincial review.
Senator Robichaud: People in New Brunswick tell you that if the operators go through little creeks with their timberjacks or their skitters, they will hear from the Department of Natural Resources. They check them.
Mr. Swanson: We certainly hope so. We had attempted to delegate some of the authorities under the Fisheries Act to provincial governments. The minister is still considering a proposal, which he discussed with his provincial colleagues just last month in Winnipeg. The authorities that I am talking about would issue authorizations under section 35 of the Fisheries Act for certain kinds of projects. There is some history to the particular proposal I am talking about. Originally, there had been a proposal that all fresh-water habitat management would be delegated to provincial governments. That met with strong opposition and, as a result, it was modified to address those concerns.
The proposal that is currently being discussed would see the Minister of Fisheries and Oceans retain the authority for certain projects, which would be prescribed in the regulations. Those projects would require a permit, as opposed to an authorization, so it would be known upfront whether or not there was a requirement to submit something to the Minister of Fisheries and Oceans. With that permit, there would be a requirement for an assessment under the CEAA. Projects which were not listed in these regulations could then be delegated to provincial governments. Generally, they would propose that a delegation be offered to those provinces that are now responsible for the management and protection of fisheries resources within their boundaries.
A set of conditions and standards that would have to accompany the signing of any kind of delegation agreement with provincial governments is also included as part of the proposal.
The kinds of things envisaged would be that provincial governments would have to agree to operate under policies approved by the Minister of Fisheries and Oceans, particularly our policy on fish-habitat management. They would have to agree to abide by ministerial directives in terms of issuing authorizations and various other guidelines that we might develop jointly or by ourselves. The agreements would also have reporting requirements and provisions for auditing.
There are certain benefits to that proposal. It would promote a consistent level of habitat protection across the country. There would be clarification of provincial and federal roles, and reduced overlap and duplication. It would also clarify many of the difficulties that we now have in terms of linkages with the CEAA.
The enabling provisions for that proposal were put forward in the last Parliament. They died and no new legislative proposals have been put forward. This kind of arrangement would be possible only if the Fisheries Act were amended. The timing of those kinds of amendments has not, at this point in time, been determined.
Perhaps I can stop here. It seems like a logical place to break and attempt to answer any questions you might have.
Senator Spivak: First of all, I cannot quite figure out how we would improve things by delegating anything to the provinces, and the reason is quite simple. At the moment, for example, in Manitoba, nobody enforces anything. There is no staff and there is not likely to be, and this is true of most of the provinces. If you are delegating something to the provinces, are you going to delegate staff and resources?
I would also like to know what the current level of enforcement is. On page 5, where you talk about forestry, you say that you review forest-harvest plans. Do you review all of them, in every province?
Mr. Swanson: No, we do not review forest-harvest plans in every province.
Senator Spivak: I quote, "DFO reviews forest harvest plans".
Mr. Swanson: But not necessarily all plans in all provinces. I refer to the minister's annual report to Parliament for the period April 1, 1996 to March 31, 1997, which gives a bit of a breakdown across the country, in terms of forestry issues that we looked at in that period of time. The total is about 1,900 nationally. The lion's share of those was in the Province of British Columbia, where there were about 1,600, and it goes down from there. I could not swear on a bible before you that we look at all forest management plans, or even what percentage that represents of the total.
Senator Spivak: What is the sanction then? Let us pretend that you have looked at them and that some of those plans are very good. For example, think of the plan for Louisiana-Pacific in Manitoba. Actually, I think the Environment Canada office there had a lot of these provisions, including watersheds and streams. Nobody is even acknowledging them. It is like the forestry company is merrily going around, doing whatever it wants, because there is not a single person out there checking what they are doing. They have a stack of plans, so detailed, to which they were supposed to respond. None of that happened.
Mr. Swanson: Destruction of fish habitats is an offence under the Fisheries Act.
Senator Spivak: What is that sanction?
Mr. Swanson: Unfortunately, I do not have the act with me. The penalties are substantial, though.
Senator Spivak: Somebody has to be there. They have to look at these plans and say, "This plan said that in this watershed you are supposed to be 32 feet away. You are not; you are here." None of that is happening, that I can see. Certainly not in Manitoba, I will tell you that.
Two huge forestry companies are cutting with abandon. I do not know what is happening in Alberta, but we did not see evidence of this. Is this fairyland, or what?
Mr. Swanson: Senator, the DFO has no personnel in Manitoba who are responsible, who have the training, to enforce the provisions of the Fisheries Act.
Senator Spivak: And the Province of Manitoba has none.
Mr. Swanson: The same situation pertains to Alberta and Saskatchewan.
The Chairman: I know sports fishermen will call the fishery department when they see a habitat being ruined.
Senator Spivak: That is good.
The Chairman: Areas half the size of Switzerland are being clear-cut. There are not many people out there, and nobody is looking. The province, of course, is getting a good royalty for everything that is cut. There is not going to be too much left there. You have both the provinces and timber companies with a vested interest in getting all the trees out of there in a hurry, and you have no inspectors. Does that not seem to be a problem to you, or do you think that eventually it will work itself out?
Mr. Swanson: The responsibility for the management of the fishery in these inland provinces has rested with the provincial government for many, many years. That includes the enforcement of all the provisions of the Fisheries Act. The provincial governments all have enforcement personnel who are charged with that responsibility. Whether they are doing a good job or not, is, I suppose, an open question.
Senator Spivak: Current figures show immense cutbacks of 60 per cent, 40 per cent. What do you mean when you say that the province has enforcement officials?
Mr. Swanson: Within the last two to three months, we obtained some data from provincial governments in terms of the number of people that they have. We broke this down in terms of people who review projects and people who enforce the statute. These figures were provided to us by provincial governments. I am reporting what they provided to us. Alberta has 130 enforcement personnel. In Saskatchewan, the figure is 170; in Manitoba, 136;, and in Ontario, 215. I am unable to compare those figures with what they may have been a few years ago, but those were the numbers provided to us by provincial governments.
Senator Spivak: Do you have a copy, so that we can see it; so that we know exactly what those categories are?
Senator Robichaud: New Brunswick has rivers where the salmon run, and both the federal and provincial governments watch those rivers like hawks. Does Manitoba have any runs in the rivers that empty into Hudson's Bay that would cause the federal government to be concerned?
Mr. Swanson: We have no enforcement personnel at all in Manitoba. There may be sturgeon runs, but I do not know if there would be anything else. They certainly do not have any salmon resources or anything like that.
Senator Robichaud: Sometimes, there can be other migrating fish, like gaspereaux and smelts.
Senator Spivak: There are a lot of fish. Manitoba has huge lakes. But you are talking about river runs.
The Chairman: Is there any other reason, besides habitat fish, that you would want to see a stream run clean, without silt?
Mr. Swanson: Clean water not only protects fish, it is also seen as a general indicator of a healthy environment. For that reason, people are concerned, whether they are interested in fish or not.
Senator Robichaud: In the Northwest Territories, what role does the federal government play in the protection of the fish habitats?
Mr. Swanson: The role in the Northwest Territories is an evolving one. Up until quite recently, the DFO managed the fisheries resource. However, we are now operating under co-management regimes in the North. For example, in the far Northwest, where they have established the Inuvialuit settlement region, there is a co-management body on which the federal government, the Minister of Fisheries and Oceans, is represented, as well as the people from the settlement area. The Minister of Fisheries and Oceans has a disallowance power. In those areas where something is proposed by the management board, he has a disallowance power on the grounds of conservation.
Again, those kinds of arrangements are fairly new. They are not standardized across the North, but they are quite similar.
Senator Robichaud: In forestry, do we play any role?
Mr. Swanson: The people able to address that would be the people from Indian and Northern Affairs. Given that, in many senses, they are "the province in the North", they have that kind of responsibility. However, the Fisheries Act still applies.
In the North, water boards and things of this nature have been established by the Minister of Indian and Northern Affairs. Just as we would provide input into processes at a provincial level, we would be involved in those processes in the North.
The Chairman: On page four, you said: "Ontario recently withdrew from [the] only agreement in place" and "that the inland provinces manage fish habitats as adjunct to fisheries without formal agreements". First of all, I guess they had to withdraw from an informal agreement because there was no formal one, but what happens now in Ontario? Why did they withdraw?
Mr. Swanson: The Ontario government indicated to us at the time that they withdrew that they were dissatisfied with the progress that the minister was making in terms of this delegation initiative that I have described to you.
It was something first proposed to provincial governments back in 1994. There was legislative provision for it in the last Parliament and, in their view, there was some concern as to whether or not the federal government was serious about the proposal. As of September 18 or 19, 1997, they withdrew from an arrangement under which they had referred projects to us, which, in their view, affected fish habitats. These projects could possibly require authorization under section 35.
The Chairman: Is there no policeman at all watching the store? The feds are not there because it belongs to the provinces. The provinces withdrew because they cannot reach an agreement. Is it just God looking after those things?
Mr. Swanson: We have taken some steps to attempt to address the problem. They withdrew at an off-time of the year, so we were able to deploy some fishery officers to Ontario. However, as we enter the summer months, that will become a problem for us, as they will have to return to their home region. We will have to look at this issue.
We have also employed a number of staff biologists on a temporary basis, who are in the process of reviewing the project proposals that now come to our attention. We are attempting, as best we can, to cope with the additional workload that has been brought on by Ontario's withdrawal from this arrangement.
The Chairman: In general, though, do the provinces want to administer and police their forests, and does the federal government want to get out of policing them?
Mr. Swanson: The provinces would have to speak for themselves. But I am sure that they want to be masters of their own houses, to a certain degree, when it comes to questions of natural resource management. I think that the federal government wishes to see a consistent level of habitat protection across the country.
The Chairman: That is a very puzzling statement. How could you expect ten provinces that cannot even agree on languages to have a consistent view of environmental regulations?
Senator Robichaud: It is not the same; they all speak the same language.
The Chairman: I can see zero consistency. B.C. has a huge sports fishing thing, and they are going to be watching one thing, and northern Manitoba will just lumber off everything.
Senator Spivak: There is a lot of sports fishing in northern Manitoba.
The Chairman: The provinces have the right to do anything. This is not to say that I am against some provincial rights.
Mr. Swanson: This file certainly contains some challenges. However, we are not proposing to deal with all ten provinces to the extent that that reduces the kind of issue we are talking about. We are dealing with inland provinces that already have, and have had, for quite some time, fisheries management responsibilities under the Fisheries Act. But that may only reduce the challenge you are talking about.
The Chairman: Who is driving this thing? We hear that the provinces want to have more authority and to hire more people. It is hard for me to believe that. Or does the federal government want to get out because the fisheries are causing friction in its relations with the provinces?
Mr. Swanson: Firstly, there is no question that the provinces want it, and every time the minister meets with them, they indicate that they want it. I would not characterize the federal government's position as wanting to get out of it, because, as the material that has been distributed to you indicates, we do not have people in these inland provinces doing it now.
The Chairman: If you were given a big enough budget to hire people, would you run it then?
Mr. Swanson: You are putting me in a very difficult position.
The Chairman: If you are just getting out of it because you do not have any policemen, that does not sound like a good reason.
Senator Robichaud: There is also a drive to simplify the whole process, and not to have to run too many departments and different levels of government. In some cases, if you apply to do any kind of work, some proponents will tell you that they are going to send you from place to place. First you go to the federal level, then to the provincial, and an assessment then comes back to the federal. It is a fairly complicated process in some cases.
Mr. Swanson: Senator, you must have a background in this file, but you are quite right. It is not as simple as the federal government wanting out of it and the provincial government wanting in. Certainly, it simplifies things for proponents and it simplifies the administration of the law. There are questions of duplication and overlap, and these things are also addressed in the proposal we are talking about.
Senator Spivak: This is really interesting. Look across the country; no one is complaining that there is too much environmental cleanliness around, too many fish and too many clean waters. You have the opposite. You have a disaster in the fisheries in many places, even in the inland waters. Should we then make it easier for industrial development to destroy our natural resources? People are always saying that it is too difficult to preserve natural resources, that it will cause unemployment. That is what they said in Newfoundland. Now they have no fish and no jobs.
Senator Robichaud: I would like to disagree with you there.
Senator Spivak: We will not disagree. I want to ask you, Senator Taylor, if your department is actively pursuing these amendments to the regulations, which have to do with harmonization. Are you pushing the file to the minister? It is a direct question; you will probably not want to answer it. Let me put it differently. Do you view this favourably?
Mr. Swanson: When the minister met with his colleagues in Winnipeg in mid-May, he indicated that it was an initiative he was going to proceed with.
Senator Spivak: Your advice to the minister is that this is a very favourable and positive development.
Mr. Swanson: My advice to the minister is my advice to the minister.
Senator Spivak: As you are very well aware, fish habitats are the most potent trigger available for environmental assessment. Perhaps you could explain what sort of projects would be delegated? Fish habitats fall under federal legislation. Now, you are going to change that federal legislation, and say that some can be there and some here.
Can we have a clear idea about exactly what the criteria in the new federal legislation will be as to which projects can just be handled by the provinces. How is this going to work?
Mr. Swanson: I really cannot tell you at this point. The bill that was in the last Parliament was enabling only.
Senator Spivak: It is all going to be a regulation; we will not even know about it before it happens.
Mr. Swanson: The last bill was strictly enabling. It provided for federal permits to be prescribed in regulation, and those would remain federal. I can tell you, though, that, in the discussions we have had with provincial governments, we have indicated that a logical point of departure, in terms of what might require a federal permit, might be the comprehensive study list that is associated with the CEAA.
Senator Spivak: That would remain in federal hands.
Mr. Swanson: Yes, those would continue. The comprehensive study list now refers to mines of a certain size, dams, things of this nature, but there will obviously have to be discussion between us and the provincial governments.
Senator Spivak: Right, but now the CEAA will also be amended, and will the comprehensive study list and a law list also then be amended? Yes or no?
Mr. Swanson: How about an "I do not know"? These are regulations again, and of course the regulations can be amended.
Senator Spivak: I know, but I have been through this before, as have other senators, and why am I not feeling reassured?
Mr. Swanson: The DFO does not administer those regulations.
Senator Spivak: But you must know.
Mr. Swanson: I know that there are ongoing discussions that our staff participate in, in terms of changing or adding to the regulations under the CEAA. In fact, the most recent documentation I saw added to the list of things that could be subject to an environmental assessment, not the other way around.
The Chairman: On page 14, you use the word "prescribed" twice. "DFO retains decision-making for certain prescribed projects." Later on you say: "Automatic CEAA trigger for prescribed projects." How does a project get into that category of being prescribed?
Senator Robichaud: The DOE and DFO have to determine what scale we are going to use.
Mr. Swanson: Sure. A dynamic is going on here. The provincial governments will argue that that list should be a very short list. The environmentalists will argue that the list should be a very long list. In other words, it will include many, many more projects that would be subject to a federal permit. That is the nature of the kind of debate that will go on.
The Chairman: You are the lucky department in the middle who gets to throw your weight either way.
Mr. Swanson: Exactly.
The Chairman: Do you want to explore that some more?
Senator Robichaud: I do not think that there is any drive to diminish the protection that we give to the environment.
Senator Spivak: Yes, there is.
Senator Robichaud: You might not agree, but I think the process is quite cumbersome. A lot of people want to protect the environment, and if I take New Brunswick as an example, I tell you that they are serious. You cannot do too much around real creeks that dry up in the summer. If you drive across them, the provincial people are in. If it has to do with salmon, then the federal people are in. I tell you, I do not think anyone wants to do away with those.
Senator Spivak: That is true.
Senator Robichaud: It is hard to find a workable process when it comes to environmental assessment.
The Chairman: I think you are exhibiting why you are from different provinces. Maybe New Brunswick may be over-regulated because fishing has been such a sport. Other senators get the impression that cutting trees is more important.
Senator Spivak: I think the senator is absolutely right. The only question that remains is what is the best means for doing that. That is where the argument is.
The Chairman: I wanted to ask a question. On page 17, when you say "legislative changes required", is that something your department feels should be done? Where does that title emanate from?
Senator Spivak: It means that these are what would be necessary.
Mr. Swanson: Exactly. These changes would be necessary if this is how the minister is going to proceed.
Senator Spivak: The whole point here is that, as you know, the environmentalists are interested in not weakening the trigger. This is where the debate comes. If you are going to give us enabling legislation, then Parliament will not be able to oversee that. They are not involved in the regulations and often do not have any input into approving or disapproving.
Last time the CEAA was reviewed, lawyers, environmental lawyers and other stakeholders went through the regulations. That process is fraught with danger because there are trade-offs and everything else. It is not a legislative process.
The fisheries habitat trigger is deemed to be one of the federal authority's most important triggers. You are suggesting here, if I am correct, that this is not weakening the federal presence in that trigger. What about whether it will be subject to a legislative or a bureaucratic review?
Mr. Swanson: Perhaps I can attempt to answer the question. I want to make it clear that in Ontario, now that they have withdrawn from the arrangement that we had with them, and in the Prairie provinces as well, there are now no agreements with us at all, in terms of how anything is brought to our attention.
If you look at the statistics, in terms of environmental assessments triggered by the Fisheries Act, certainly in the Prairie provinces over the last number of years, you will find that there are very, very few, if any. Whether this is a strong or a weak trigger has to be looked at in the context of the number of environmental assessments that are actually being conducted.
Senator Spivak: Exactly. That is not the fault of the law, it is the fault of the enforcement and the application of the law.
Mr. Swanson: The benefits, however, of the presentation or the proposal that we have is that there would be a mechanism to ensure that prescribed projects are assessed under the CEAA. In addition to that, for projects such as culverts, cottage docks, and what have you, the provincial government would issue its approvals and review those types of projects in accordance with guidelines that have been approved by the federal government.
The Chairman: You must remember, if we seem to hit on fisheries quite a lot when we are a forestry committee, that our hearings are in the West: In Manitoba, Saskatchewan and Alberta, where we appeared in many towns and areas, people were almost begging us to install a communications system with fisheries because they perceived that fishery habitat damage was the only trigger that they had to stop anything wrong in the forest.
They could not prove that we are getting rid of our carbon sinks. That is a hard thing for a layperson to complain about. They could not complain that they got more acid rain in the lakes. They could not complain about pulp mill effluent because there was always someone with two Ph.D.s drinking in front of the camera, being able to prove that the water was not that bad. They all knew that their grandfather or their father could go out and see the damage to the river.
That is why the responsibilities fall so heavy on your shoulders. That is probably why we will be looking into it, because it is the trigger. You have hit it right on the head. You have a very good paper here. Somehow or other, the public has to feel that they could do it. But we have a senator who thinks that they might be pulling the trigger too often.
Senator Robichaud: I am not saying that.
Senator Spivak: The pulp mill effluent, was that not through the fisheries?
Mr. Swanson:The pulp-and-paper effluent regulations are under the Fisheries Act, section 36, and they were amended quite recently, as a matter of fact. The original regulations under the Fisheries Act grandfathered mills that had been constructed prior to 1970, or something or other, but the regulations were amended recently so that all mills are now covered by those particular regulations.
Senator Spivak: That is a success story.
The Chairman: On page 20, you look at the "Development of framework agreements with the provinces" under "Next Steps". If Senator Chalifoux were here, she would point out that our aboriginal people, from Métis to Inuit to any First Nations, have a vested interest in the forest for a number of reasons: for their own timbering and also for their fish habitats, which are associated with a lot of their food input. I think 75 per cent of our First Nation peoples live in forested areas. The forests are home to many of the animals that they trap, as well as to the ungulates and others that they live on. This does not even mention the First Nations. Should it not be a three-cornered agreement? How do you fit in our aboriginal people? I know that you do in the North, but in the Prairie provinces, Ontario and Quebec, where a high percentage of native peoples live, they seem to be left out of the formula.
Mr. Swanson: I think the previous page refers to a workshop that we held in November 1996. At that workshop, we had representatives from the various aboriginal groups across the country. Certainly, our plan of action will continue to involve them. On the paper that I distributed, I guess I should have called "the next steps" "the next step" because we are only talking about a very short term here. Over the summer months, we plan to have our legal people work with us in terms of the implications of recent court decisions, so that we involve First Nations people in the ways they are entitled to be involved.
The Chairman: The very statement I am getting at shows on page 18. Workshop "attendees included representatives of national, environmental, Aboriginal, industrial and recreational fishing organizations". These people are not an organization; they are not equivalent to the environmental or recreational fishing organizations. They are part owners. In other words, they are proprietors. They are not just noble natives that we have to look after. I am just wondering if that point is coming through at all.
You are not the first federal department to have done this. Even the Department of Native Affairs has. Sure we talk to the Native people; we want them to join management; we like to know what they think, but the point is more than that. They have a proprietary interest. Is that coming through?
Mr. Swanson: Yes, it is. As matter of fact, the people that we deal with in Indian and Northern Affairs Canada, for example, are constantly reminding us of that responsibility. We recently attended and hosted a workshop within our own department, in terms of our responsibilities and the consequences coming out of the most recent Supreme Court decision dealing with native groups.
Another workshop will be conducted by the Department of Justice itself within the next few weeks, and we are going to have people at that. It is an area that we hope to keep on top of and do the right thing.
Senator Robichaud: I think that the DFO, in determining the aboriginal fishery strategy, hears what you are saying. It recognizes the rights and the court decisions, and is working in that direction with aboriginal groups and is moving forward.
Senator Spivak: All the provinces want to roll back those court decisions.
Senator Robichaud: There are different interests.
Senator Spivak: That is true. They own the resources. This is not going to be easy, I can tell you.
Senator Robichaud: No, nobody ever said that it was going to be easy.
Senator Spivak: Some people are heading in exactly the wrong direction, just so you should know.
The Chairman: Mr. Swanson, thank you very much.
The committee adjourned.