Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 32 - Evidence - November 22, 2012
OTTAWA, Thursday, November 22, 2012
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:02 a.m. to examine the subject matter of those elements contained in Divisions 4, 18, and 21 of Part 4 of Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012, and other measures.
Senator Richard Neufeld (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Richard Neufeld. I represent the Province of British Columbia in the Senate, and I am the chair of the committee.
I would like to welcome honourable senators, any members of the public who are with us in the room and viewers all across the country who are watching on television or the Web.
I am pleased to introduce the deputy chair, Senator Grant Mitchell from Alberta. Also with us around the table are our staff: our good clerk, Lynn Gordon; and our two Library of Parliament analysts, Sam Banks and Marc LeBlanc.
I would like now to ask the senators, starting with Senator Ringuette, to introduce themselves and say what province they represent.
[Translation]
Senator Ringuette: Hello, my name is Pierrette Ringuette, and I am a senator from New Brunswick.
Senator Massicotte: Hello, my name is Paul Massicotte, and I am a senator from Quebec.
[English]
Senator Lang: I am Senator Dan Lang from the Yukon.
Senator Wallace: I am John Wallace from New Brunswick.
Senator Brown: I am Bert Brown from Alberta.
Senator Patterson: I am Dennis Patterson from Nunavut.
The Chair: On October 30, 2012 our committee, among others, was authorized to examine the subject matter to conduct a pre-study of 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 deals with the Navigable Waters Protection Act, an act under the authority of Transport Canada. Division 21 of Part 4 deals with amendments to the Canadian Environmental Assessment Act. Our committee must submit our final report to the Senate no later than November 30, 2012.
Today marks our fifth and final meeting with witnesses on this matter. I am pleased to introduce our witnesses, both in Ottawa and from Toronto via video conference. From Lake Ontario Waterkeeper, we have Mark Mattson, President. From the Assembly of First Nations, we have Audrey Mayes, Senior Policy Analyst, and Dan Pujdak, Policy Analyst.
I propose that we proceed with the opening remarks from both organizations in the order on the agenda, followed by a question-and-answer session. I would like to remind witnesses that, for the purposes of staff interpreting and transcribing your words, please speak clearly into the microphone at a reasonable speed. Thank you very much.
I want to remind senators that we will go in camera later this morning to discuss terms of reference, so we would like to be done this part of the meeting no later than 9:30 in order to leave time.
With that, I would like to move forward with Lake Ontario Waterkeeper, Mark Mattson.
Mark Mattson, President, Lake Ontario Waterkeeper: Thank you, Mr. Chair, and good morning, senators. I am a lawyer with more than 20 years experience in Canada in environment and administrative law and in environmental prosecutions. I am the Waterkeeper and President of Lake Ontario Waterkeeper, which is a registered charity. I am also on the board of the Fraser Riverkeeper in British Columbia, the North Saskatchewan Riverkeeper in Alberta and the Moose Riverkeeper in Northern Ontario. I am also the Canadian representative on the board of the Waterkeeper Alliance, a global network of waterkeepers of more than 200 groups working around the world for swimmable, drinkable and fishable water, and we have eight organizations in Canada.
I am here today because of the changes to the Navigable Waters Protection Act. It is very important to know that the act has always been about navigation on water. If you take the word "water" out of the title, it makes no sense. This act will not start covering navigation on roads, in the air, on bike paths or on railway tracks. Therefore, if you change the name and take the word "water" out, it becomes misleading.
Further, if the proposed changes were to go forward, it would be absurd. If you were to say that there were places in Canada where you could build an airport or a new highway without informing the government or the public, this would be opposed magnificently across the country. I do not believe any government would propose to do that, considering what the impairments would do to our economy, our communities, our social networks and safety. Yet, this is exactly what the changes to the Canadian Navigable Waters Protection Act will do.
For most of Canada's water, if the Navigation Protection Act goes forward, there will be no notice of impairments to navigation on waters in Canada, to government or to communities. Proponents will no longer be required to give any notice at all. They will not have to do their homework, identify what impairments or changes might have on the environment directly or indirectly. There will be no questions asked and, most importantly, those opportunities to mitigate dangerous situations, loss of habitat, loss of navigation rights, to put in place easements or to find ways where different portages could be put in place around dams or impairments will all be lost.
As a waterkeeper, I think it is important to note that I walk, travel and boat around Canada and speak to those people who are most closely connected to our waters. They tell me and all of our organizations that if there are impairments put on our waters across Canada, there will be impacts. I know that, not only as a lawyer but as a waterkeeper.
We know that there are impacts when you reverse water flows, when you reduce water flows and when you block water courses and if you do not take the precautions to inform people to do their homework, there will be serious repercussions and consequences.
The federal government is the government in Canada under the Constitution section 91(10) that has the responsibility to protect navigation on water. It is the Government of Canada's jurisdiction to protect navigation on water, and no matter where any Canadian or anyone who visits Canada goes in Canada, it is the federal government that looks after the safety and the protection of these people navigating on our water. It is not up to the provinces and it is not up to the municipalities or to the common law to take those precautions. The municipalities, the provinces and the common law may deal with the repercussions, and they may find there are steps that need to be taken in light of the Government of Canada's failure to take those steps, but it is not their constitutional obligation. That falls to the federal government.
If the legislative measure proscribes that the government decides not to do its homework on most of Canada's waters and chooses not to protect people's rights to navigate on those waters, then we are in a different world. We are in a world where Canadians will lose one of the oldest and most important rights that was specifically prescribed to this government to protect. I note, senators, that it is not just that we are losing the government's duty and obligation to protect Canadians; the navigable protection act takes a second step that I think is even more worrisome. It no longer requires the stakeholder, the proponent, the one who is asking for the privilege, to use our public water courses and to impair them; it no longer requires them to tell the public. It is one thing not to tell the government and have the government take steps or precautions, but it is another thing to tie the hands of the public by keeping them in the dark and not having the stakeholders or the proponents themselves who are seeking the privileges to use our public waters tell Canadians that these waters will be impaired so that Canadians can take steps to protect themselves.
I have heard through these Senate hearings that there will be no negative impact from the changes to the Navigable Waters Protection Act, but so far there has been no proof of that. There is no study, research or public consultation that proves that claim. Even worse, we may never learn of the impacts of this decision because there is no mechanism being built in to monitor the rivers and lakes as you abandon them as unscheduled. Absence of proof is not proof of absence. In other words, it is a fallacy to suggest if we do not hear about the problems or do not know about them that they do not exist.
This fallacy is also intended, a rhetorical technique to switch the onus from being the government's obligation and duty to protect Canadians to put the onus on Canadians to prove that there are impacts, to switch the onus of proof. As far as I am concerned, in every hearing and court and government process that I have been involved in, those who are searching for the truth do not allow the party seeking the privilege to use our public water courses to switch the onus on the public to prove that there is a reason for them not to have to give notice and comment to the public.
In conclusion, if the aim of the legislation is to make uninformed and bad decisions about the use of our waters in Canada, then, yes, eliminate the opportunities for public notice and comment, because this is what Bill C-45 will do. If the aim is to be unaccountable, then go ahead and create two tiers of navigation, ensure that government is never informed about the threats to navigation on the majority of our rivers and lakes in Canada because this is what Bill C- 45 will do. If the aim of the legislation is to eliminate certainty, then go ahead and replace the statute with common law jurisprudence because this is what Bill C-45 will do. If the aim is to make it impossible for Canadians to protect themselves, to step into the breach and fill the void where the government leaves it, then keep doing what is being proposed in the navigable protection act because that is exactly what it will do.
I do not believe that anyone I am speaking to today in the Senate or in government is really that cynical. What I believe is that most people do not understand the ramifications of this bill, that where the rubber hits the road in this country people will be affected, jobs will be lost and people will be hurt if we do not do our homework, if we do not ask the right questions before we impair our rivers and lakes. These changes will hurt people and Canadians will suffer.
If the act is changed as it is prescribed, and the Navigable Waters Protection Act changes to the navigation protection act it will protect nothing for 99 per cent of Canadian waters or 97 per cent of Canadian waters, and Canadians who rely on the water for economic, recreational, traditional and cultural uses will lose those protections and will pay the price.
Lake Ontario Waterkeeper, along with other waterkeeper organizations in Canada believe the Senate should ask the government to split the bill and seek to have the government to put more consultation before changing the Navigable Waters Protection Act and to ensure that the new act truly benefits Canadians and does not just do away with proper due diligence and homework and leave future Canadians to deal with the consequences. Thank you very much.
This is my fourth appearance, I believe, before the Senate on Navigable Waters Protection Act comments, and I appreciate the opportunity to have some forum to speak in and to be part of the decision making that goes into this act.
The Chair: Thank you, Mr. Mattson. We will now go to Audrey Mayes.
Audrey Mayes, Senior Policy Analyst, Assembly of First Nations: Thank you very much and good morning honourable senators.
I am Audrey Mayes, and I am the Senior Policy Analyst at the Assembly of First Nations for fisheries. I am originally from Nova Scotia; I am from a place called Indian Brook First Nations in the Atlantic.
I have several remarks this morning to put forward with regard to the proposed changes to several pieces of legislation with Bill C-45. Specifically, I wish to touch on the amendments and processes related to the Fisheries Act, the Navigable Waters Protection Act and the Canadian Environmental Assessment Act. As a preliminary remark, I would like to note that my appearance today does not qualify as consultation with First Nations. The Assembly of First Nations is a political representative organization and not a holder of Aboriginal rights. Robust consultation will be required by the Government of Canada with First Nations across Canada on amendments put forward on Bill C-45.
With respect to the Fisheries Act, I will begin by touching on sections 173 to 175 amending the Fisheries Act. Section 175 amends Bill C-38 by replacing the definition of "Aboriginal" in relation to a fishery. The amendments in section 175 specifically remove recognition of subsistence fisheries and added those fisheries within a land claim agreement while maintaining the recognition of food, social or ceremonial fisheries.
To begin with, the AFN is concerned by any attempt to legislate a definition as to which fisheries qualify as Aboriginal. It is up to each First Nation to determine the extent and nature of their fisheries and to leave avenues open for departmental policy to define food, social and ceremonial fisheries or which fisheries qualify as those within a land claim agreement that may result in infringement of First Nation rights.
The government must robustly consult and accommodate First Nations if it is to contemplate the nature of Aboriginal rights and Aboriginal fisheries. The definition, in its current form, excludes some currently practised fisheries based on treaty and inherent rights. The terminology "land claim agreement" does not clearly include treaties that do not contain clear components of land claims or land secessions, such as the peace and friendship treaties on the East Coast or the West Coast harvest agreements that to not contemplate possession of land.
As was testified before this committee on June 7, 2012, First Nations practice fisheries with economic or commercial components. The definition fails to recognize these fisheries, including the moderate livelihood fishery reaffirmed by the Supreme Court in the Marshall decision and the commercial fisheries reaffirmed in the Ahousaht et al. decision
Following that logic, it is troubling that the definition within Bill C-45 does not contain language that would allow for an evolution in our understanding of Aboriginal fisheries. As Canada continues to recognize Aboriginal fisheries beyond food, social and ceremonial or those specifically articulated in a land claim, the government may find itself forced to reopen the text of the act more frequently than anticipated to accommodate evolving understandings.
In a high level engagement with DFO, the AFN has learned that the government intends to interpret this definition in a limited temporal scope, meaning that fisheries that are not utilized, which often occurs for conservation purposes, will no longer be protected from serious harm. This is counter intuitive and opens the door to abrogating or derogating First Nation rights by allowing for species that First Nations fish to continue to decline in population, potentially past the point of recovery, to the detriment of the ability of First Nations to continue to exercise the right to fish.
Bill C-45 should be amended to make clear that all traditional fisheries must be protected, whether currently practiced or whether in a period of recovery to allow for future practice. Since Aboriginal fisheries clearly must be protected under section 35 of the Fisheries Act, the AFN would recommend that the definition be expanded to include traditional fisheries, fisheries within treaties and within land claim agreements and fisheries practiced for purposes consistent with an Aboriginal right.
These amendments would assist in making the language of the Fisheries Act consistent with the language of the Constitution Act and with current case law.
With regard to clause 174, the AFN is concerned about the breadth of discretion in administering the Environmental Damages Fund. First Nations are specific resource users recognized by the act, and First Nations have specific uses for fish and specific fisheries that differ from those of other resource users. It is absolutely essential that First Nation rights and interests are considered when administering the fund. The AFN suggests that the government include First Nation representatives from accountable First Nation organizations on the technical evaluation team administering the fund. With regard to clause 173, the prohibition against fishing appliances that obstruct certain widths of a river may prevent First Nations from practising constitutionally protected rights-based fisheries that require weirs or seines, the AFN suggests that an amendment specifically exempt aboriginal fisheries from that prohibition. I would suggest that the government also consider the implications of this amendment in its own assessment of weirs, which are used in much the same manner.
I would like to talk a little bit about our concerns with the Navigable Waters Protection Act. As with virtually every other major reform announced in Bill C-38 and in Bill C-45, the amendments to the Navigable Waters Protection Act do not contemplate the existence of First Nation peoples in Canada. Like the CEAA 2012, the National Energy Board Act and the Fisheries Act, the Navigation Protection Act is silent in terms of specifying whether or how the Crown is to discharge its duty to consult and accommodate with First Nations.
New provisions in the Navigation Protection Act, however, go even further than these other pieces of legislation by enjoining consultation with First Nations. Under the act, Transport Canada, the minister and the government will be precluded from consulting or accommodating First Nation rights. The Navigation Protection Act changes represent an attempt by the government to explicitly legislate itself out of its own Constitution. This is quite disturbing given that the implementation of Bill C-38 reveals a government interest in implicitly legislating away its constitutional obligations, particularly with respect to CEAA 2012 and the NEB Act.
Specifically, the scheme for approving waters listed in the schedule provides no consideration of First Nation rights issues. This means that if the minister makes a decision on work or a project that affects First Nation rights, there is no way in this act for him or her to consider those rights when granting an approval, thereby guaranteeing costly and complex litigation related to project approvals.
The way this provision is structured, there is no way to avoid confrontation with First Nations because the minister is unable to consider First Nation rights when deciding to approve a project. If the minister does not consider First Nation rights, then the government will face a judicial review on constitutional grounds. If the minister does not consider First Nation rights, then a project proponent will judicially review the minister's decision on the basis that the decision was made inconsistent with the established statutory scheme. Similarly the scheme for approving or modifying work in section 6 and 7 is only marginally better because it allows the minister to consider public interest. In our experience with environmental legislation, the government does not interpret public interest to include First Nation rights. In fact, the government often perceives the public interest to act in opposition to First Nation rights.
As with other provisions of this act, this provision does not even permit the minister to undertake a cursory consultation process with First Nations. This guarantees costly and protracted litigation with First Nations. The scheme for listing protected waters under the proposed navigation protection act does not provide for any consideration of waters that are particularly important for navigable purposes for traditional occupations. Instead, it appears to the AFN that the waters being protected under the act were chosen because they were important to industrial or political interests.
To briefly touch on the amendments to the Canadian Environmental Assessment Act, the AFN reiterates its general concerns voiced to this committee in June regarding transparency, ministerial discretion and the government's ability to discharge the duty to consult under CEAA 2012. First Nations have not been engaged by the Canadian Environmental Assessment Agency since the act came into force. It appears as though the government feels that the environmental NGOs are more important than First Nations, as the government has gone out of its way to meet with them on regulatory and policy developments under CEAA 2012. These amendments support the AFN's earlier analysis that the act was thrown together haphazardly and likely to lead to a range of unintended consequences. Regrettably, while the government has listened to some stakeholders on issues that need to be clarified, it continues to ignore First Nation concerns about First Nation rights.
In conclusion, I would like to recap some of my recommendations: First, amend the definition of "Aboriginal fisheries" to include traditional fisheries, fisheries within treaties and within land claim agreements and fisheries practiced for purposes consistent with an Aboriginal right.
Second, ensure a First Nations presence on the administering body of the Environmental Damages Fund.
Third, exempt First Nation fisheries from prohibitions against weir and seine use.
Fourth, amend the navigation protection measures to ensure that the minister considers First Nation rights and interests.
Fifth, amend the listing of protected waters to include consideration of waters important for traditional occupations.
Thank you very much.
The Chair: Thank you, Ms. Mayes. We will go to questions.
Senator Mitchell: Thank you to you both. These are excellent presentations.
One common theme between the two is the idea that the government is absolving itself, legislating away — as I think you said, Ms. Mayes — its responsibilities and, by virtue of that, putting more pressure on the public to fulfil whatever role the government previously had. At the same time, they are underequipping the public to do that because, at the very minimum, there is no notice of many projects, as you said, Mr. Mattson.
Not only that, but rather than having government resources to prosecute, investigate, take to court and penalize, much of that will be left to the cottage owner or the canoeist who is being impeded or offended by some project, and they will have to use their personal resources to do it.
Mr. Mattson, at a technical level, there is no reason why, on the one hand, a government could not — and I am opposed to this, but they are going to do it — push a given responsibility off. For example, an automatic review of some project. At the same time, they would not have to say there would be no notice. They could at least say on these undesignated, unspecified, unlisted projects that there still has to be notice. It seems to me it would not be onerous on the government — it would not cost them anything, but it would at least allow the public the chance to begin a process of discussion before it is too late.
Mr. Mattson: Yes, Senator Mitchell, that is exactly correct. For example, the Lobbyists Registration Act and post notice of who is lobbying does not require the government to do anything about it, but it gives the public the opportunity to know who is speaking to government about what issues.
In Ontario, we have the Environmental Bill of Rights, which requires proponents or those seeking certificates of approval or control orders to post on the Environmental Bill of Rights registry their request, and then the public has the opportunity to at least do their homework and get the information they need in order to protect themselves or to mitigate damages that might happen in their community.
It is done in other legislation. It is not our preferred route. We would love to see government resources be involved in order to show that they are taking onus, claiming properly and ensuring mistakes are not made. However, if the alternative is nothing, then certainly let the public know what is happening and give them a chance, as well as First Nations communities, environmental groups and outdoor enthusiasts, give them the opportunity to do their homework and participate in proper planning.
Senator Mitchell: There is an irony in this. If someone sat down to talk to a minister about building a project, they would have to give notice under the Lobbying Act, but if they actually just built the project, they would not.
Ms. Mayes, you make powerful points about the potential for legal action as a result of these erosions of Aboriginal rights and other features of this legislation. The irony in that, of course, is that the government's argument would be they are doing this to streamline, get projects faster, cut red tape and so on.
Could you again address the issues or a number of these places where you think Aboriginal peoples — probably others as well — could utilize these weaknesses that are literally being implemented now to delay projects because there are opportunities and the basis upon which legal argument could be made before the courts?
Ms. Mayes: Thank you. I will pass some of this over to my colleague as well.
I will reference the potential for infringements on First Nations rights in that the definition of "Aboriginal fisheries" has not been contemplated before within legislation in Bill C-6 and other Fisheries Act attempts. This is one of the things contained in Bill C-45 that was very disturbing for First Nations because we have constitutionally protected rights.
Also, there are various types of fisheries we have across the country. We have economic as well as moderate livelihood type of fisheries. We also have various treaty groups and different causes in the interpretation of their treaties. We have Aboriginal rights. We think that there could have been a lot more discussion with First Nations and that that would have happened during a full engagement and consultation process, which never did happen.
There are some legal issues that we would like to avoid, of course, but with the way it has been drafted, it could be challenged for sure.
Dan Pujdak, Policy Analyst, Assembly of First Nations: With regard to the proposed navigation protection act and some of the areas of concern for potential litigation, the minister, as Ms. Mayes had noted, is really enjoined from considering First Nations' interests and rights in making decisions and approvals under paragraph 6, I believe. Any time the government makes a decision or contemplates an action with the potential to affect Aboriginal rights or title, the government must consult and accommodate. The act leaves little room for the minister to enter into this consultation and accommodation, let alone even consider the interests of First Nations.
For proponents who are no longer required to give notice or to seek approvals, they may find that in construction or in other works that may result in issues of preventing access to fisheries resources or preventing access to water resources for First Nations, they may find themselves in conflict with local First Nations and without any good way to go about and engage in front-end conversations, as would have previously been required.
Senator Mitchell: Thank you. I have a quick technical question, Mr. Mattson. This would probably be particularly within the scope of your presentation.
There is this provision that if an obstruction to a waterway is less than two thirds of the width of the waterway, then it is excluded in some way or another. Is there any provision that, let us say, the next third is blocked by a sandbar or a ridge of some kind three feet below the water, that somehow that is taken care of? If you build across two thirds or less, you are okay, you do not need to review it, but the rest is not navigable either. Who would know until you hit it?
Mr. Mattson: Yes. Senator Mitchell, every situation requires proper study and homework because some are tidal rivers. At different times of year, rivers will run high and run low. Even the idea that only two thirds is blocked is a very inexact science because of the way the waters flow in Canada.
The important point is the last one, which is that you really do not know unless you do appropriate study and understand sedimentation what will be caused by blocking the river. Will there be sandbars formed? Will there be impediments to fisheries, boats or navigation at different times of year?
Each and every project has its own set of facts, and each and every project requires homework if you really want to mitigate the impacts and protect people to navigate on water. I know under the old act it was two thirds. I believe that is still considered a non-impairment under the proposed navigation protection act, but regardless, under the new act there would not be that type of homework to identify those exceptions where the rivers are tidal, for example, or sedimentation builds over the next three to five years such as to fill that last third.
Senator Mitchell: Much is made of the government's constitutional responsibility, or at least responsibility defined now by the courts, to consult Aboriginal nations in any number of ways for any number of projects and activities. However, is there any responsibility to consult obligation on non-government proponents of projects that might affect Aboriginal rights or Aboriginal lands that you are aware of so they can proceed without any need to consult you?
Mr. Pujdak: There is a definite need for front-end dialogue and to consider First Nations interests moving forward, and I think that would be incumbent on the proponent in order to prevent possible challenges and possible problems in moving forward. The duty to consult and accommodate is the duty of the Crown. The honour of the Crown, as the courts have said many times, is always at stake in that.
Senator Lang: Thank you. I would like to begin first with Mr. Mattson, if I could.
I am looking at your bio here, and you state you are on the board of the Fraser Riverkeeper in B.C., the North Saskatchewan Riverkeeper in Alberta, the Moose Riverkeeper in north Ontario and the Canadian representative on the board of the Waterkeeper Alliance, a global network. It sounds like a full-time job. Can you tell me exactly what a waterkeeper is?
Mr. Mattson: Yes. Thank you, senator. It is a full-time job. In 2001, I gave up my private practice to become a full-time waterkeeper. A waterkeeper gives meaning and force to our democratic processes, our laws and our administrative reviews that protect water so that it is swimmable, drinkable and fishable. Those are the charitable purposes, and that is what I do full time. I am out there to give meaning and force to our democratic processes that make water swimmable, drinkable and fishable in Canada.
Senator Lang: To clarify, is this a paid position?
Mr. Mattson: Yes. I raise my own salary. It is a charity, so we rely on our supporters for donations. I have a staff here in Toronto — a counsel, a vice-president, an outreach coordinator. We run a clean water workshop where we train legal students across Ontario and Canada about our environmental processes and laws. I have participated in many hearings. We are currently involved, for example, in Ontario in the Canadian Nuclear Safety Commission reviews. I participate regularly in those. I was involved in private prosecutions, including as a witness for Environment Canada in Moncton, New Brunswick, dealing with the Petitcodiac causeway and the garbage dumping. This is a full- time job. I do get paid. My salary is $90,000 a year. I am a full-time counsel and president of the organization.
Senator Lang: I just want to go on a little bit further, if I could, Mr. Chairman. I want to go back to the opening remarks. First, though, before I go there, I think you are aware of and obviously have read the testimony that has been given to this committee prior to this meeting here today. The government is trying to put forward amendments that find that middle ground in respect to what is expected to meet our environmental responsibilities and also our responsibilities to allow economic development to proceed, where acceptable, throughout the country. We are looking at our federal legislation in concert with the provincial legislation. As you know, this bill that is being amended dates back to 1882. The question is, how does it relate to today versus 1882?
I want to say this: It does concern me when statements like this are made by reputable organizations such as yours. You state: "You reduce water flows, reverse water flow or block water courses without taking precautions or informing people. You will see homes flooded, jobs lost, fisheries destroyed and, most significantly, people harmed or killed."
My question to a learned individual such as yourself is this: Why would you make that statement when you know that there is the federal Fisheries Act that one must adhere to in situations where you affect the fisheries, and there is a public process in cases when that does happen? You know that, at the provincial level, there is the environmental assessment program or processes that are required if you alter waterways. You also have, in most if not all provinces and territories, the question of water boards and water resources, and that is a public process. Then you have the proponents having to go through the various administrative departments applying for permits and all those requirements to meet the laws of the land, whether the general laws of application from the province, the territory or the federal government. Why would you make a statement like that? You should know, and I assume you do know, that these public processes are required by law, perhaps a different level of government. They are out there, and people are notified and have the ability to put their positions forward if they disagree. Perhaps you could comment on that.
Mr. Mattson: Yes, senator. Just to be clear, I stand 100 per cent behind my comments based on 23 years of experience with environmental law in this country. The Navigable Waters Protection Act was one of the most important pieces of legislation that required proponents and stakeholders who are putting impairment on our waterways' qualities to do their homework. It was that homework that was mandatory under that act that ultimately triggered much of the other processes you speak of — the Fisheries Act, Ontario Environmental Assessment Act, similar legislation in B.C., Quebec and Alberta. The process began by having the proponent identify what potential impacts would take place as a result of their project. Without clarifying what they hope to build, what they think the impacts will be and how they intend to mitigate those impacts, without that study, without that piece of paper and giving that to the public, many of these other processes you speak of are never initiated and are never put into motion.
Yesterday, I heard, for example, one of the senators speaking about the mining lobby coming and saying that they were doing Fisheries Act assessments in areas where there are no fish. I know as an environmental prosecutor and as someone who has worked on many different environmental assessments acts that in Canada, if he told me where that mine was and what water tables were surrounding, and knowing the mining industry and what it takes to mine gold or copper or nickel, there are always impacts on our waterways, and there are fish in all of our waters, all of our rivers and lakes. I would have to go up there, with notice, and prove that, putting out traps and bringing in biologists to prove that there are fish. Once I prove that there are fish in those waters, that would trigger new processes that ultimately would enable us to maybe get an environmental assessment hearing and maybe get a Fisheries Act investigator from DFO into the area. However, without that original step or study or notice of what is taking place and the opinion of the proponent that there are no fish in the water and that there will be no impairment to navigation in an area where they are hoping to build a causeway or dam, without that notice, there is no opportunity for us to comment or to alert other government agencies of the appropriate permits or necessary processes that need to be put in place.
The Navigable Waters Protection Act was the ultimate piece of legislation in this country when it came to impairment of waters. It was the one that all of us relied on to kick off these other processes. Without it, and without even knowing what is going on in these waters or knowing what people are building, I can tell you with certainty that there will be loopholes, there will be damages and there will be impairment and potential loss of life.
What I hear from the government is that that will be dealt with in the common law and you can sue for penalty and reparation. That is not appropriate in 2012. We cannot go back to the common law that was in place before the Navigable Waters Protection Act was put in place in 1880. We cannot go back to the Justinian code. This is a modern government that knows that there will be implications and damages as a result of impairments on our navigable waters, and we need to take steps to ensure that those things do not take place and not leave it to the people to seek damages in the courts or to litigate.
That is why I am here today and why I am so concerned and why I do not think that my comments are excessive or exaggerated. They are the result of experience and knowledge working in this country in the way our regulatory processes work. We need to trigger those processes with facts and evidence. We cannot just trigger the processes because someone feels that there might be a problem. Those things are triggered by the applications under the stakeholders or the proponents who file for the privilege of building impairments on our waters. That is what kicks off the process and ultimately allows the other parties to get involved.
Senator Lang: Mr. Chair, if I could just pursue this a bit further, I think it is a question —
The Chair: I would caution both sides, and we should all remember that questions and answers should be as a succinct and as short as possible, remembering that all senators want an opportunity to ask questions.
Senator Lang: Once again, to the witness, if I could, it is a question of reasonableness. I can stand in my place and argue the point that these other processes need the navigable water to trigger these various other processes being put in place. I would argue that that is not the case.
I want to go further, because there is a common thread that has come through these hearings and previous hearings we have had on amendments of this nature. They are trying to find a balance, as I said earlier, in respect to the processes so that there is a time frame and a period of time that you can judge these particular projects and then a definitive decision being made. We have had witnesses in the last number of meetings, both those that are supporting the bill and those who are not supporting the bill, and each and every one have pretty much said that there are a lot of requirements in place right now that should be perhaps adjusted in order to be able to streamline the process.
If we do not go in this direction, what would your recommendation be to streamline the processes between the federal, provincial and municipal governments so that we can proceed with our economic future in a reasonable manner and still meet our environmental obligations? Do you have any ideas on that?
Mr. Mattson: Yes, thank you senator. I note that all of our environmental legislation that protects swimmable, drinkable and fishable water in the last 10 years, whether in Ontario, where I work a lot, across the other provinces, or nationally, has been amended. The Navigable Waters Protection Act was changed in 2009, and the regulations that were poised to set out the minor works and eliminate the need for environmental assessments or triggering assessments were never published.
We now have these amendments coming in 2012 after having gone through the process in 2009, only to find out under this budget bill that it is not just finding a balance; it is being tipped 100 per cent completely in favour of having no notice or comment for impairments of navigable waters across Canadian, and it excludes public involvement even where the government is not expected to spend money. It would cost the government next to nothing to require stakeholders to at least publish notice of projects on waterways across Canada. It is not a matter of expense.
It would not trigger even environmental assessments. Therefore, when it comes to this legislation no longer requiring any notice of or comment on the building of berms, dams or causeways, or putting impairments on our waters, it is not a matter of money or time. That is a matter of trying to exclude the public from the decision-making process and excluding probing and good questions about how these projects may impact people.
I think it is important to keep in mind that this country is an empty country. You cannot go out one or two days and say that because you have not seen anyone navigating these waterways there is no problem with navigation. It is infrequent and seasonal. It can be First Nations communities. It can be yearly.
Regardless, you need ask and pose the questions in the communities and say, "We are about to build this project" and ask if there are any concerns, if they use the waterways or if they need notice. Are there steps to take to protect health and safety? Will it affect the ice in the area such that you cannot snowmobile on it, for example, or use it for routes where there are no roads?
These are important questions in a country like ours. Where it costs next to nothing to actually exonerate the obligation to give the public notice of impairing navigation on our waters in Canada, it really is not about money or time. It is about excluding public consultation, and that is why I am very upset.
Senator Ringuette: Mr. Mattson, I have looked at the annex in regard to the waterways that have been identified, but I do not own a GPS. Maybe I am not with the times, but I do not own a GPS and I cannot identify most of where they are located in relation to a province, territory or if they are in the Arctic. Can you tell me if there are any waterways listed that are in the Arctic? Maybe that question is too technical.
Mr. Mattson: Yes, sorry, senator, but I do not have that level of detail. The best I have was a map produced by my friend Tony Moss at the WWF that outlines where the listed waters are. I am not sure if they are in Arctic waters. I have not seen anything more detailed than that coming from the government to date.
Senator Ringuette: You say that the Government of Canada has an obligation to protect people navigating on the water. We have here a constitutional issue. Most importantly — and I would like to get feedback from both of you — in 2013, Canada, along with Russia and a few other countries, will be going in front of a world process to advocate for the Arctic area. Fundamental to that argument is the partnership with First Nations and Aboriginal rights, which would include the Innu rights and the navigable waters within that territory.
My concern right now is that this indicates to me a very short perspective and view of navigable waters for certain projects. On a medium- and long-term view, the economic future and the sovereignty of Canadian navigable waters and the partnership with our Aboriginal community are at stake. Therefore, the entire argument in regard to Arctic sovereignty is also at stake.
I hope that right now there is someone from PMO and PCO listening who will be talking to the Department of Fisheries and Oceans and Transport Canada in order to correct what is going on in regard to reducing the responsibility of the federal government, and reducing the possibility in our arguments with regard to Arctic sovereignty in Canada. This is certainly an issue that Ms. Mayes can respond to.
Ms. Mayes: Absolutely. Thank you very much for that.
I would emphasize the concern the honourable senator just raised about First Nations sovereignty, as well, within the traditional territories and up north, especially when we are looking at First Nations. I cannot speak for the Inuit but we have many community members up north who are traditional fishers. We have trapping, hunting and gathering rights. These Aboriginal rights are protected.
When I referenced challenges, these constitutionally-protected rights are also in jeopardy. The First Nations up north will not be able to exercise their subsistence for food or for traditional fisheries or trapping — there are a lot of trap lines. There is also access to different waterways that will not be protected and that will not be supplying those types of natural resources for First Nations.
Thank you very much for your question. We are very concerned about sovereignty, not only for Canada but also for First Nations up north.
Mr. Mattson: Thank you. Senator, you touched on a very important point. Often people see these processes as holding up or stopping development. That is a very cynical way of looking at the proper planning that is required under the Navigable Waters Protection Act. The act itself also looks to the future of potential economic consequences and future commercial development. It looks at how these projects might affect generations to come and where the costs will be laid.
These processes are not being used, as some suggest, to slow down projects or to make them less economical. These processes use good information, data and input from First Nations and other communities in the North, for example, in order to ensure they are done in a way that does not cost us more money in the future.
I worked on removing the Petitcodiac causeway in Moncton. It was built in the early 1960s, and it was exempt from the Navigable Waters Protection Act and Fisheries Act reviews. Some 40 years later, it is now costing millions of dollars, but the water is being restored because the sediment filled up the river and that port town, Moncton, no longer allowed ships to come in from the ocean. They lost their salmon fisheries; all the Petitcodiac salmon are extinct, but over nine of the ten species identified have come back. We are now paying to make up for the costs of poor planning and poor process 40 years ago, but, thankfully, that river can and is being restored. However, other places will not be. Other navigation routes will be lost forever, and this is why these processes are not as the cynics see them, namely, to slow down good economic progress. They also make our projects more economic and more to the benefit of all Canadians going forward.
I appreciate the question, and I think anyone who thinks doing their homework puts them at a loss or is gratuitous or not necessary, clearly, has not done very well on their exams.
Senator Massicotte: Thank you to all the witnesses.
Ms. Mayes, I just want to ensure that I understand your brief. The way I read it and the way I heard it, is really Bill C-45, not the other one. I hear you saying that you have concerns that the revised definition will not respect the fact of the Supreme Court judgment. You are basically highlighting your concern, but you are not saying that the revision is not adequate. You have questions, which I gather you have expressed to the minister's department. You have had meetings with him, but given you have not heard back from them, while they gave you nice words, you are not sure the final conclusion will be satisfactory to you. You are not saying there is a problem; you are basically saying there may be a problem. Is that accurate?
Mr. Pujdak: There are several concerns with the definition as it stands, and there is certainly an aspect of uncertainty. The Department of Fisheries and Oceans has stated that the words "land claims" will include all treaties, and we hope that the Department of Fisheries and Oceans will follow through on policy that incorporates that definition into it. However, we are not certain. The definition most certainly does not include room for new Supreme Court decisions that may find other fisheries that are not food, social, ceremonial or within a land claim right now.
A past example would be a moderate livelihood fishery, which we can say is not within that definition now. An example looking forward that you might see in the Ahousaht et al. decision, which the Supreme Court has put back down to trial, where the B.C. Supreme Court found that the Ahousaht have the right to all commercial fisheries within their territory, and it is not clear if those fisheries would have to be licensed under federal regulations or how those licensings would work. You may end up in situations where other fisheries are found that are not incorporated within that definition and that, contrary to what the Department of Fisheries and Oceans is saying, might not fall under the definition of a commercial fishery.
Senator Massicotte: Their response, I gather from the meeting, tried to assuage you and said it will not be an issue, but given you have not received written confirmation your concerns remain. However, is it concerns and not conclusions?
Mr. Pujdak: It would be helpful to have clarification in writing.
Senator Wallace: Thank you for your presentations.
My question is similar to that of Senator Massicotte. Ms. Mayes, it relates to the comment you made around the definition of the Aboriginal fishery. I was a bit surprised when I heard your comments — and clarify this if I am wrong — because when we dealt with Bill C-38 and there were representatives of the AFN who appeared before us, my sense of it was the changes that are proposed in Bill C-45 are what were being requested by the AFN at that time. As I know you are aware, the definition of "Aboriginal" that is currently in the Fisheries Act includes that reference to fish as food for subsistence or for social or ceremonial purposes.
There was some concern with that reference to "subsistence." On June 7, Morley Watson, the Regional Chief of the Assembly of First Nations in Saskatchewan, whom I am sure you know, said the following when he appeared before us:
I should say, by the way, that in the definition of "Aboriginal," the Aboriginal communities are well used to the terminology "food, social, ceremonial." They are not used to the term "subsistence." Where did that come from? What does that mean? Does that mean you can sell to some extent? As I said, the Supreme Court said that subsistence or bare subsistence is not what we are talking about, so that is not an answer to our dilemma.
He was saying quite clearly that the AFN well understood the references to food, social and ceremonial. If I remember correctly, I thought it was at the suggestion of the AFN that the definition should be tied back to land claims agreements, and that was seen as a deficiency by the AFN in Bill C-38.
When I looked at the proposed changes in Bill C-45, I thought they were addressing exactly what we heard around this table from the AFN at that time.
What is your comment on that?
Ms. Mayes: I will attempt to answer part of it, and then I will ask Mr. Pujdak to fill in the gaps.
With respect to land claim agreements, not every First Nation in Canada has land claim agreements. We have various arrangements. We have modern day treaties; I guess I could use Nisga'a and Tsawwassen, and we have the Yukon umbrella agreement. There are different arrangements for First Nations as well as the pre-Confederation treaties and the number treaties. There are different arrangements within those agreements.
We look at those agreements as binding agreements between the First Nation and the Crown. Of course, we reference food, social, and ceremonial fisheries as section 35 rights protected under the Constitution, but when we are looking at economic fisheries, the moderate livelihood and other case law that has been passed through, we want to ensure that there are not those fisheries that will fall through the gaps.
The other issue is that we have a number of First Nations who have been very diligent about restocking. We have conservation practices, and it is part of our traditional way. Some of our fisheries have been not exercised because of the lack or decline of some of these pertinent food fisheries. For example, if we have to look at the Supreme Court decision in Marshall, the Marshall decision was about eels. However, getting the eels is a part of our Mi'kmaq traditional food, but if they are on an endangered list or under the Species at Risk Act, when we are trying to restock or bring some of those fisheries back, they may not be captured under the current definition.
Those are traditional fisheries; that is why we referenced the traditional fisheries in our presentation. We also have examples about the lake sturgeon and other fisheries that First Nations have traditionally practised and utilized. That is why we wanted to expand. Of course, we embrace the idea of having a definition of "Aboriginal fisheries," but we certainly would have liked to have been involved in those discussions to ensure that it was done properly, and it would include all First Nations' interests.
Mr. Pujdak: To add to that, there is ambiguity as to what will fall under the definition of land claims within the legislation. Some First Nations have fisheries agreements with the government that are outside of land claims on the West Coast, and, as I previously mentioned, there are historic treaties that do not contemplate land quite in the same way. My personal fear on this is that the definition will lead to a policy level decision that deciding what will and will not fall under that definition will be decided by the Department of Fisheries and Oceans.
This could be improved by matching the language with that of section 35 of the Constitution Act. It would provide clarity, and I think it would be consistent with statements that have been made by Department of Fisheries and Oceans on this matter.
Senator Wallace: I take from what you are saying that a one size fits all is not what you are looking for, and there are different situations with Aboriginal peoples across the country. In that case, would it not make more sense to have the flexibility to deal with those circumstances by policy rather than trying to prescribe that in an act because there might be, as you say, so many varying circumstances? Would it not make sense to do it by policy in that situation?
Mr. Pujdak: Policy certainly provides flexibility, but if the definition is not sufficiently broad to allow the policy to contemplate all forms of fisheries, then the policy may be ineffective.
Ms. Mayes: I would like to add to that. First Nations want to be part of the dialogue and the discussions on Aboriginal fisheries. I think the concern is that, once legislation is passed, it is very difficult to go back, revisit and open up legislation. Those kinds of conversations are still out there and there are some concerns from First Nations about what is going to be contained in the definition.
Senator Wallace: But Bill C-45 builds on Bill C-38. Were there consultations with First Nations people leading up to Bill C-38?
Ms. Mayes: No, and unfortunately it was a surprise to us when Bill C-38 came out. There was no First Nation consultation at all. We were led to believe that there would be some kind of engagement process. We did have a few high- level technical briefings with the department. However, we have not seen any type of consultation process with First Nations across the country.
Senator Wallace: You call them briefings. Again, it surprised me when you said that. My recollection was that there indeed were discussions; it was not something that came out of the blue. Again, maybe it is the degree of consultation that you have a problem with. I understand that.
Ms. Mayes: I would add that we had asked the department for a number of documents to help us prepare, do some analysis and do our own technical briefings to provide information. The only information that we had came during a two-hour technical briefing, and it was handwritten notes. Two days ago, they posted something on the DFO website, so now we do have something that we can work with. However, we are now at the eleventh hour in this legislative process, and so I fear that the consultation with First Nations has not been adequate.
Senator Patterson: Mr. Mattson, I am the senator who talked about the pond in the far North without fish. That pond froze to the very bottom, and that is why I made that reference.
I want to ask you about your opening remarks about the deletion of the word "water" making the act senseless, as I think you put it. I took a quick look at the definition of "navigation" in the Oxford dictionary and the origin of that word from the French naviguer denoting travel on water. The Oxford definition refers passage of ships. Would you not agree that the word "navigation" does connote water?
Mr. Mattson: I do not think that that is why the government is taking the name "water" out. I think that they are trying to make it very clear that they see this act as being about navigation and ships. The water part of it is 100 per cent connected to the act. This is about navigation on water. That is what the act is about. As I said, it is not about air, roads, bike paths or railway lines. It seems gratuitous and maybe a little misleading — more than a little misleading — to take the word "water" out of an act that is 100 per cent about navigation on water.
I would also note that those ponds that freeze also still have fish in them. They are an important part of life under the Fisheries Act. Those ponds have always been found to be fish habitat for the purposes of the Fisheries Act. To exclude all the ponds that freeze, saying they are not of value ecologically or not connected to the overall chain of life as fish grow from small fish to bigger fish, is not scientifically accurate. This is why, when a mining representative says that there are no fish in the pond, we need to have people who can go up there and clarify the science and the actual laws, as defined by the policymakers and the government, to ensure that those ponds are protected as well. If we lose all of those ponds and all of that habitat for small fish and for the ecosystem, we will not have the big bluefin tuna and the other big fish because they will not have fish and food to feed on. The migratory birds that fly through and rely on those fish at different times of the year are all important. That is why it is really important that, when the mining executives say that those ponds are not worth protecting, that the public and the government ensure that they get in there and do their due diligence and homework to ensure that that is scientifically accurate and that the law would allow someone to fill a pond in with tailing waste with no regard for the life that exists in it.
That is a perfect example of why we need public notice and comment and why we need to do our homework and bring good science to the table and not just listen to the stakeholders who truly want to avoid cost and move forward as cost effectively as possible. If we allow them to use our ponds, lakes and rivers as waste sites, they will do it, but that is where the job of government comes in to ensure that we do not allow that, that the costs are internalized, that the public is protected and that the projects can move forward in an economic basis.
Senator Patterson: You will be interested to know that the mining company I spoke to operating in the Northwest Territories was concerned about provisions in this act that bring a new level of permit requirement from the Department of Transport for the dewatering or use of even small ponds for tailing. The industry was concerned that, in fact, the act is adding a new permitting process on top of the Fisheries Act and the environmental processes in place existing in the Northwest Territories.
I would like to turn to the Assembly of First Nations. You referred to moderate livelihood as a possible type of fishery that might not be included in the revised definition of "Aboriginal." If we are concerned about impairment of fish habitat, would the Bill C-38 definition of impairment of fish habitat, which includes a commercial fishery, not contemplate and protect the moderate livelihood fishery that you felt was excluded in the definition in Bill C-45?
Mr. Pujdak: In the Marshall decision, when the idea of a moderate livelihood fishery was articulated, it was laid out that a moderate livelihood fishery is different from a commercial fishery. That was put forward to this committee in June 2012, as well. The definition for commercial in relation to a fishery, in order for it to be eligible for protection from serious harm under section 35, is that it requires a licence. There are issues that arise when First Nations have economic fisheries that are either not specifically commercial fisheries or that do not have a specific licensing regime that may fall under the definition of "commercial" in relation to section 35. It is, I would argue, sufficiently unclear at this point. Lacking written documents and specified plans and interpretations from the Department of Fisheries and Oceans, it is very difficult to answer that in a direct way.
Senator Patterson: I would like to ask the AFN representatives a question. Thank you for being here.
Thinking about the concerns you have expressed, I am mindful of the fact that Aboriginal rights are given the protection of the highest law of the land in section 35 of the Constitution. I know that you have expressed concern about how these definitions would be interpreted, whether the words "land claims agreement" would be broad enough to include other arrangements or contracts with the Crown of Aboriginal peoples.
Do you not feel some comfort that in fact the protection of Aboriginal rights in the Constitution would require governments and, if necessary, the courts to give a broad definition to the rights of Aboriginal people in connection with fisheries?
Ms. Mayes: Thank you for the question, senator. I think that with respect to the various processes and negotiations that are going on with various First Nations, in terms of the protection of Aboriginal rights, we do have the Constitution, but I think that the definition, especially when there are different types of arrangements across the country, they would have benefited very much from being included in the conversation so that we could ensure those definitions would encompass some of these particular rights that have been recognized, not only by the Supreme Court but future rights that may not have been put before the courts.
There are still some outstanding issues with the implementation of Supreme Court decisions in Canada. Some First Nations have expressed frustration that some of the Supreme Court decisions have not fully been honoured. There is some concern about having a definition put into this piece of legislation, and all we have to resort to are the courts. Of course, it is very cumbersome and expensive going to court, and many First Nations do not have the resources to do that type of thing anyway.
There are still some outstanding issues here, and we would have liked to have a process wherein First Nations could help resolve some of these issues within their processes. I know the East Coast is involved in treaty talks, and some of their discussions are related to the definition of what a moderate livelihood is to them. Of course, there are also various treaty processes across the country, and I think those types of interpretations might have been helpful when the government was drafting this legislation.
The Chair: I would like to thank the witnesses. Ms. Mayes, Mr. Pujdak and Mr. Mattson, thank you all for the time you have taken to come and give us your viewpoints. We appreciate it very much.
(The committee continued in camera.)