Subcommittee of the Standing Committee on Finance on Bill C-38 Committee on May 29th, 2012
Evidence of meeting #3 for Subcommittee of the Standing Committee on Finance on Bill C-38 in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was environmental.
A video is available from Parliament.
On the agenda
- Chief Shawn A-in-chut Atleo National Chief, Assembly of First Nations
- Fred Denning President, The British Columbia Coast Pilots Ltd.
- David Schindler Professor of Ecology, Department of Biological Sciences, University of Alberta, As an Individual
- Terry Quinney Provincial Manager, Fish and Wildlife Services, Ontario Federation of Anglers and Hunters
- William Amos Director, University of Ottawa - Ecojustice Environmental Law Clinic, Ecojustice Canada
- Ron Bonnett President, Canadian Federation of Agriculture
- Kevin Obermeyer President and CEO, Pacific Pilotage Authority
- Scott Vaughan Commissioner of the Environment and Sustainable Development, Office of the Auditor General of Canada
- Clarence T. Jules Chief Commissioner and Chief Executive Officer, First Nations Tax Commission
Michelle Rempel Calgary Centre-North, AB
To your comments earlier, Mr. Chair, I believe your comment was to have the witness stay relevant to the scope of part 3 of the BIA.
I believe, if one checks the record, the witness started off with something akin to “I'm here to talk about the national round table”, which is included in part 4 of the BIA.
The Chair Blaine Calkins
David Anderson Cypress Hills—Grasslands, SK
Mr. Chair, I think it's important that we stay inside the scope of what we were given from the finance committee. We have some fairly specific parameters here.
When Ms. Duncan says it's all fine...and she can give us the bio of Mr. McGuinty, but the activity that we have been charged with is to study part 3. If he has as much expertise as she has claimed he has, he should be able to stay inside the parameters of part 3 in his presentation and in the question and answer session as well. I think it's reasonable to expect that he....
He's familiar with this bill. He knows we're discussing it. He should be able to stay inside part 3 if he's going to make his presentation.
The Chair Blaine Calkins
I'd like to thank all honourable colleagues for their interventions on this.
I'm in a very difficult situation here. When I first saw the witness list being submitted, I looked at the fact that the witness who is currently testifying before this committee is a sitting member. I like to extend to members privileges in this place. It is a bit of an oddity and a rarity to have a member appear as a witness before a committee, other than during the presentation of their own private member legislation.
So we started off, and I humoured this right from the get-go, because I thought it was important that if there was something valuable to be brought to the table, then it should be heard. However, I am not at liberty to go outside the scope that was handed to us by the finance committee.
Ms. Duncan, you and Mr. McGuinty are experienced parliamentarians here. The mandate that we were given from the finance committee was quite clear in its subject content, that we were only to study part 3. The finance committee, the main committee, is studying parts 1, 2, and 4 of this bill. If Mr. McGuinty wanted to testify as a Liberal witness before the committee in dealing with the National Round Table on the Environment and the Economy, he should have made that representation before the main committee of finance.
Mr. McGuinty, I don't want to excuse witnesses from the committee. I don't think that's appropriate. However, I would ask that you stick within the purview of part 3 for the remainder of your comments, which would enable your testimony here to continue at this meeting.
Please continue, sir.
David McGuinty Ottawa South, ON
Perhaps, then, through you, Mr. Chair, you can enlighten me. Just give me the parameters, please, so I can make sure I frame these to satisfy the Conservative members here.
The Chair Blaine Calkins
Mr. McGuinty, why don't we do this, then? In the interest of time, I'll move on to Mr. Atleo. In the meantime, we can find...and get you briefed, rather than using the committee's time, on the scope of part 3. We'll move on with the other three witnesses, and I'll have you back at the end of the agenda to finish your ten minutes.
Is that okay?
David McGuinty Ottawa South, ON
The Chair Blaine Calkins
David McGuinty Ottawa South, ON
I don't need a briefing, sir. I can adjust my remarks extemporaneously quite comfortably.
The Chair Blaine Calkins
Part 3 is going to take me some time to explain to you. I would rather that somebody explain it to you not in the use of the committee's time. That will give you an opportunity to review that. We'll move on with the other witnesses right now and we'll get back to you at the end.
National Chief, the floor is yours for up to ten minutes, sir.
Can somebody please brief Mr. McGuinty on the...?
National Chief Shawn A-in-chut Atleo National Chief, Assembly of First Nations
Thank you Mr. Chair, members of the committee.
[Witness speaks in Nuu-chah-nulth]
Thank you for that pronunciation as well. My name is A-in-chut...[Witness speaks in Nuu-chah-nulth ]
Just a few words in my Nuu-chah-nulth west coast of Vancouver Island language to express my appreciation for being here in Algonquin territory.
Thank you for the opportunity to speak to you today about part 3 of Bill C-38.
As you are aware, I am currently national chief for the Assembly of First Nations. We are a national political advocacy organization for first nations in Canada.
In January of this year, first nations and representatives of the crown and the Government of Canada participated in a historic crown-first nations gathering. The intent of this gathering was to strengthen and reset the relationship between the crown and first nations, to move away from unilateral imposition of policies or laws that have had impacts on first nations peoples and territories to one that recaptures mutual respect and partnership.
Bill C-38 and the wide-sweeping and comprehensive changes to other pieces of legislation it contains continues historic unilateralism and imposition that we have worked, and continue to work, to overcome.
In November 2010, Canada endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which reflects the recognized customary international legal standard of free, prior, and informed consent. Free, prior, and informed consent, Mr. Chair, is not mentioned anywhere in Bill C-38.
Domestic law recognizes and enforces the duty to consult and accommodate first nations when crown conduct or omission may adversely impact established or potential aboriginal and treaty rights. Part 3 of C-38 will have a direct impact on the federal government's ability to fulfill these standards.
The Assembly of First Nations, to be very clear, is not a first nations government. Consultation or engagement with the AFN does not replace or fulfill the crown's duty to consult and accommodate treaty and rights holders where their rights may be infringed. To date, first nations have not been engaged or consulted on any of the changes to the environmental and resource development regime proposed within Bill C-38. This opens the crown to future risk and will have numerous and likely unintended consequences.
The stated intention of these legislative and associated regulatory changes has been said to improve the timeliness and efficiency of environmental regulations and project assessments. In its current form, part 3 of C-38 clearly represents a derogation of established and asserted first nations rights. If enacted, it will increase the time, costs, and effort for all parties and governments, as first nations will take every opportunity to challenge these provisions.
There are a number specific concerns, Mr. Chair, with the changes proposed in part 3 of C-38, which I will outline.
As I know you're aware, C-38 changes the scope and purpose of the Fisheries Act to the protection of fish that supports commercial, recreational, or aboriginal fisheries. Previously the act had prohibited “harmful alteration, disruption or destruction of fish habitat”. The proposed change prohibits “serious harm to fish”, defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat”.
I come from a fishing people, the Nuu-chah-nulth, as I said, on the west coast of Vancouver Island.
[Witness speaks in Nuu-chah-nulth]
In my language, core principles that we govern ourselves and live by are how our people manage aquatic resources within our respective territories. These words in my language describe an understanding about the interconnectedness of all life forms, that nothing is isolated from other aspects of life around it and within it—in essence, the ecosystem. These principles are the basis for respect for ourselves, others, and nature. In managing aquatic resources, these values bring respect for the oneness between humans and the environment and respect for all other life forms. Our obligation is to sustainably manage all aquatic life forms that exist, regardless of their perceived economic value.
The balance of resources in habitats is one that changes over time, and this is something well-known to first nations. However, only enabling the protection of aquatic species once there is certainty of their demise or permanent destruction of their habitats is likely too late and will not restore the necessary balance for their sustainability.
Specifically, C-38 would remove protection for fish habitat from the Fisheries Act and enable the minister to create regulations allowing for the deposit of deleterious substances. This may leave fish species and habitats vulnerable to destruction and prevent first nations from continued enjoyment of their constitutionally protected right to fish.
I feel strongly that first nations have a shared vision with all Canadians, particularly for clean water. Our watersheds provide us life, food, and health. Bill C-38 clouds that vision by creating new political discretion to poison our waters by changing section 36 of the Fisheries Act. Instead of allowing deleterious deposits to destroy our water, we must fulfill our inherent obligation as responsible stewards of the environment.
Changes to the Fisheries Act will also reduce federal decision-making about fisheries management, the effect of which will be to narrow the triggers to consult and accommodate first nations, thereby reducing the federal obligation. First nations will vigorously oppose any attempts by the crown to erode or evade lawful obligations and responsibilities to first nations, which leads to an important element regarding the honour of the crown being called into question.
The CEAA last underwent a legislative review prior to Supreme Court decisions that established the duty to consult and accommodate. The sequence here is very important to point out. It has never been updated to operationalize the duty to consult and accommodate. In this regard, Mr. Chair, CEAA 2012 is a step backward.
Under the current CEAA, projects with minor environmental effects may have profound effects on first nations' rights, which triggers the duty to consult and accommodate. CEAA 2012 ends environmental assessments for minor projects currently referred to as “screenings”.
In addition, CEAA 2012 will continue substitution of provincial environmental assessments for the federal process as well as deem equivalency of such processes, which would exempt CEAA 2012 from further application.
The government is correct to note that where relationships with first nations, provinces, and the federal government have already been established, such as the Mi'kmaq-Nova Scotia-Canada consultation process, substitution in those cases may work well. But this also raises significant concerns, and it could very well lead to more situations that I know many are familiar with, such as the Prosperity Mine project in the interior of British Columbia, which was approved through the provincial environmental assessment process but subsequently rejected following more stringent federal review.
This also invokes for many first nations—for those of you familiar with the situation across the Prairies—the Natural Resources Transfer Agreement, or NRTA, of 1930. This was a unilateral agreement between Canada and the provinces of Manitoba, Saskatchewan, and Alberta to transfer resources and lands that were never ceded or surrendered by way of treaty by the first nations—another major impact.
The impact of the NRTA has been to lesson the scope and implementation of the numbered treaties in the Prairies, and it is a source of continued and ongoing conflict and litigation over 80 years later. This is about all of us, and for Canada, learning from history. This is what the recent crown gathering was an effort to reflect on, and to do much better going forward. First nations will not stand for such unilateral actions and will take all avenues available to them to prevent further derogation of their rights.
The increase in discretionary powers afforded to the minister within the Fisheries Act and the number of cabinet decisions under CEAA 2012 and the National Energy Board Act will severely impair transparency and accountability to first nations. The broad restrictions around cabinet confidences will mean first nations will find it increasingly difficult to know how the government considered first nations rights when developing accommodation measures. This too compromises the crown's ability to discharge its duty to consult and accommodate first nations and is an area for clear challenge.
Finally, on the issue of timeframes established for first nations to respond to notices under CEAA 2012 and the National Energy Board Act, they are insufficient, not allowing adequate time for appropriate review, analysis, and response. It's unreasonable to provide first nations with only 20 days to provide comprehensive scientific and legal materials related to assessing the potential impacts of a project. Any notices under CEAA, NEB, or the Fisheries Act related to development, authorizations, regulations, or policies must be sent directly to communities in an accessible form. The use of online notices limits first nations participation and is therefore insufficient to fulfill the crown's duty to consult with first nations.
While the government has an established legal duty to consult and accommodate first nations under Bill C-38, part 3, as well as any regulations developed under the authority of the act and any new policies created to interpret the act, such consultations have not yet taken place.
Numerous organizations in addition to the Assembly of First Nations, including MKO, in Manitoba, and the Union of B.C. Indian Chiefs, have all registered protest to the CEA agency's call for public comments on regulations to be developed under CEAA 2012, which had a deadline of May 23, 2012.
Paragraph 62(h) of the CEAA and paragraph 105(g) of the CEAA 2012 state that one of the objectives is to consult with first nations. However, to be clear, there's been no identification of a process for funding for such consultations to take place.
In conclusion, Canada, in our view, needs to take a step back and reconsider its approach. Hastily moving forward on significant and broad changes that will impact the exercise of established and asserted rights by first nations will have long-reaching and expensive consequences, contrary to the interest in moving in this direction.
Taking time to work with first nations jointly on resource management and protection plans will achieve far better outcomes in terms of certainty and increased prosperity, and we have many examples we can point to. This is the spirit in which, as I said earlier, we participated in the crown-first nations gathering, and it's in this spirit of a renewed and respectful relationship that we urge Canada to proceed.
We have the following three recommendations:
Part 3 of Bill C-38 needs to be withdrawn to take the time to work with first nations to ensure their rights and interests are reflected and will not be compromised through such legislation. Failing that, I would recommend that the legislative amendments in part 3 be separated from the main bill to ensure appropriate study and amendments can take place with engagement and input from first nations.
Specific funding allocations should be made to engage and consult with first nations on CEAA 2012, amendments to the Fisheries Act, amendments to other legislation within part 3 of the act, regulations under the amendments, and any new policies relevant to the interpretation of amendments to new or existing environmental regulation.
Finally, any and all notices provided with regard to project reviews must be sent directly to first nations.
Bill C-38 unacceptably impacts first nations' rights. While I've been speaking about fish tonight, really I'm talking about the lifeblood that connects all of us, and that's our waterways, our watersheds.
I will close on that notion that we not forget about the need for a vision going forward to achieve pristine water in our country.
The Chair Blaine Calkins
Thank you, Chief.
Mr. Denning, for up to ten minutes, please.
May 29th, 2012 / 6:55 p.m.
Captain Fred Denning President, The British Columbia Coast Pilots Ltd.
Thank you very much, Mr. Chairman and members of the subcommittee. I appreciate the opportunity to appear before you today to speak briefly on a subject that is close to the hearts of all of Canada’s 400 marine pilots—tanker safety.
I'm Captain Fred Denning, and I'm the president of the British Columbia Coast Pilots and the vice-president for the Pacific region of the Canadian Marine Pilots’ Association.
There are 110 pilots based on Canada’s west coast. They serve the entire coastline of the mainland as well as the coasts of Vancouver Island and the Haida Gwaii, formerly referred to as the Queen Charlotte Islands.
As you may know, the entire coast of British Columbia is designated as a compulsory pilotage area, and our B.C. pilots board every vessel of a certain size and type. The assignments can be long and difficult. Both our coastline and the weather can be very challenging. I’m happy to say that we manage to pilot thousands of vessels in and out of B.C. waters every year, virtually without incident.
My maritime career spans 42 years, the last 22 of them as a marine pilot licensed under the authority of the Pilotage Act, which was passed by the Parliament of Canada in 1972.
Having mentioned the Pilotage Act, I do not want to pass up this opportunity before such a group of parliamentarians to say how well this particular act of Parliament works and serves both the people of Canada and its economy. For 40 years, Canada has had a pilotage system that is at least as good as the systems anywhere else in the world. Pilotage costs are among the lowest, serious marine incidents are few, and the service is quick, responsive, and flexible.
B.C. Coast Pilots have often been called on to provide expert advice and opinions on matters related to safe berthing and navigation of ocean-going vessels. Of course, much of this advice is provided to the Pacific Pilotage Authority, the federal crown corporation responsible for pilotage on the west coast and the agency that contracts with the B.C. pilots to deliver pilotage service.
We also work with developers and regulators in order to ensure that pilotage-related issues not only have been taken into account but have been fully understood. We have consulted on the development of new cruise ship terminals in Nanaimo, Campbell River, and Victoria.
B.C. Coast Pilots also developed a tug protocol for the safe passage of larger ships entering and leaving at Prince Rupert’s Fairview terminal. At Deltaport, just outside of Vancouver, we helped establish operational weather limits and tug requirements for the very large container ships using the expanded terminal.
More recently, and more relevant to the concerns of this subcommittee, B.C. Coast Pilots have helped develop procedures for ships to move in and out of coastal ports with the highest level of safety possible, thereby protecting and preserving the coastline and surrounding environment.
In respect of the Enbridge Northern Gateway project, we have explored a number of different operating scenarios and have developed risk mitigation strategies for those operating scenarios. In Vancouver, as a result of Kinder Morgan’s need to increase the draft of tankers transiting the harbour, we participated in a two-year risk management study that resulted in major revisions to the regulations applicable to vessel movements through the Second Narrows in Vancouver Harbour.
We have also been involved in the development of new tug escort procedures, using both simulators and live ship trials. New navigational aids were also identified to provide visual confirmation of the position of ships in the channel during transits, and I'm happy to say that these have now been installed by the port.
Another mitigation factor identified for the heavier tankers through the Second Narrows was a navigation system to be carried by pilots, independent of the ship’s own equipment. This led to the development of the so-called portable pilotage units, or PPUs, which are tailored for the unique pilotage conditions on the B.C. coast and are now used coast-wide.
In all of this work, marine pilots have helped develop an approach and process that is recognized as leading edge in terms of providing for an unparalleled level of safety for ships. In all cases, marine pilots had no off-the-shelf answers or solutions to the issues or challenges they were presented with. Every time, we had to gather and study a lot of information—for example, tides, weather, currents, size, type, and number of ships, berth considerations—and then undertake simulations with actual trials. Only then were we in a position to comment on feasibility, degree of safety, and possible risk mitigation strategies.
None of this, however, makes B.C. marine pilots able to speak on questions related to the environmental assessment and approval process applicable to the Northern Gateway project or any other such undertaking. Similarly, as marine pilots, we have no comment on the wisdom of the proposed routing of the pipeline itself.
What we can talk about in an informed way, however, are some prudent measures that should be in place for the transit of tanker traffic in the waters of a port such as Kitimat, or anywhere else along the Pacific coast of British Columbia.
The following measures are of particular interest to marine pilots, and they will mitigate the risk.
First, all vessels entering the marine terminal should be modern and double-hulled and vetted by independent third-party agencies as meeting high safety and environmental standards. It is our understanding that this would be the case at Kitimat.
Second, vessel speed should normally be reduced in marine channels. In the case of Kitimat, transit speeds would be reduced to between eight and 12 knots, which is a speed range in which escort tugs can effectively work.
Third, an enhanced radar system would be necessary to provide coverage of important route sections. It would provide additional information to pilots and all marine traffic on the coast. In the case of Kitimat, the information we have is that such a system is to be installed, as are additional navigational aids throughout the channel.
Fourth, powerful tug escorts need to be available to assist tankers wherever there may be a need, with loaded tankers requiring a tethered escort tug for the entire passage in pilotage waters. A commitment has been made for this to be the case at Kitimat.
It will be up to the environmental review panel to assess the proposed pipeline development through northwest British Columbia to the coast. They have a big task in front of them. Ultimately they must balance real environmental concerns with Canada’s need to secure its economic future.
For our part, B.C. Coast Pilots can only say that it appears that all reasonable measures to mitigate risk at Kitimat and along the coast have been agreed to. It will be up to the review panel to determine whether the measures are sufficient.
The Chair Blaine Calkins
Thank you very much, Mr. Denning.
We'll have Dr. Schindler, for up to 10 minutes, please.
Dr. David Schindler Professor of Ecology, Department of Biological Sciences, University of Alberta, As an Individual
Mr. Chairman and members of the committee, I have given Mr. Lafleur several copies of my presentation. It has some figures, and as a result I will not read it. I've always had a thing about somebody giving me something to read and then reading it to me, which is usually one-tenth as fast. So instead, I'll just hit some high points.
Figure 1 is my first point. It shows the rate of increase in the oil sands area, a doubling every 10 years. I can tell you first-hand that a lot of the environmental problems that are developing are because of that rate of development. That rate of development is only matched by China, and it's only been matched in the past during times of war. I wonder what's the hurry. I think we need to take the time to change Bill C-38 to get it right, at least the environmental part of it.
I'll show you several examples of provisions of the bill that don't make environmental or economic sense. The first is the proposed change to species of economic, aboriginal, or recreational value. I'll give you an example from the Experimental Lakes Area, which I directed when I was a scientist with DFO for 22 years. Those were the days when acid rain was considered a problem, or it was debated as to whether it was a problem.
Most of the data, when we began our experiments there, were from short-term lab toxicity studies, mostly done on the fish of interest for economic or cultural reasons. It was decided that acid rain wasn't a problem until these systems reached pH 5.
We began acidifying a small lake to see what happened along the way. We found that some of the key species of food for lake trout were ten times more sensitive. They disappeared when the lake hit pH 6. They were species that would not have been protected by this proposed wording change. Fathead minnows and opossum shrimp, a large crustacean that have co-evolved with the lake trout, are its main items of diet in many lakes. So it's an example of how these key species would not have been protected.
We nearly lost the lake trout in that lake, not because of the toxicity to them but because these other two species that were non-target species disappeared. The lake trout began to starve and they stopped reproducing and the population went into decline.
That's the kind of loophole that we can expect from the proposed change in wording. Some of the figures are of those very organisms. In that same pH range between the normal pH of 6.5 and 5, where it was believed that damage began with our whole ecosystem experiments, we lost 50% of the normal species in the lake. Most of them would not be targeted by the proposed changes.
What it meant was that we lost several key processes in that lake: key biogeochemical processes like nitrification, so we had an ammonium buildup; changes in algae, so that instead of clear water with algae that would be grazed by plankton and zooplankton and then eaten by fish, we had big balls of rolling algae on the bottom of the lake.
So expect big declines in biodiversity without this protection for fish habitat. The work done at ELA was never done solely because of the fish. It was all regarded as work on fish habitat.
I think it's a weakness of our current DFO that we have Environment over here studying the environment and Fisheries over here managing fisheries in isolation from the very ecosystems that support it. We're almost unique in the western world for that approach. It is outdated by 70 years. We have to realize that fish are a part of an ecosystem and need to be regulated as part of it. We shouldn't have these disparate things.
If you look at the various mandates of Fisheries, they all have cod or salmon in the top 20 priorities. There is nothing on inland fisheries at all. Yet a lot of our people—mostly aboriginal people and a lot of our recreational fisheries—depend on freshwater fisheries. I can tell you that provinces don't do any research on them, and I have lived in three provinces. It has been up to the federal government, and that mandate should continue.
In the press, soothsayers for DFO have told us about all of the nasty things that happen—how concerts have to be cancelled, and irrigation water back-flow can't be discharged because there are a few fish in it. To me that seems analogous to saying we should be throwing out murder as a charge because there were boo-boos in the Robert Pickton case, or we should get rid of police because of a botched policing action around G20. They're exceptions to the rule.
I can tell you that with 22 years as a DFO scientist, and a daughter with 10 more as a habitat officer, there are some very practical things with respect to habitat that are done. One common example that's very inexpensive to do right, but very expensive to fix afterwards, is called hanging culverts. Typically, someone with no knowledge of fisheries will put a culvert across and water flows through it. There's no regard to whether the flow might be too fast for fish to come upstream and use what is often key spawning habitat. I have seen cases in Alberta where one culvert cut off red-listed bull trout from 60% of their spawning habitat in a stream. The rate of flow through the culvert can be too high. There are simple design features to make them level enough so fish can go through them, or broad enough so the flow can be tolerated by fish—or with some resting baffles. They are very simple things to do.
My daughter was a habitat officer for DFO in the Bella Coola region. She reports that she has never had a hostile incident. The contractors there were always happy to have the design input, and proud of the fact they could put in road crossings and maintain the salmon and other species that were using those streams.
Another example given in the press was lakeshore development. I chaired a committee for the Minister of Environment in Alberta on lakeshore development in Lake Wabamun. All of the cottagers pointed at the big power plant, but we found that the main damage was due to people putting in docks and beaches where there should have been fish habitat. I give you some examples of how cottage development destroys fish habitat, based on studies done by my son in the U.S.
Much of what I have said also applies to terrestrial species. I give you two Alberta examples: sage grouse and woodland caribou. We have known for 20 years that caribou were on the skids. Now we have Environment Canada reporting that it's questionable whether we can recover them at all. The sage grouse probably is not recoverable; it's near zero. Both of them are near zero because their habitat was not protected. We don't need any further weakening of habitat revisions.
To finish, I support the idea of streamlining the review process, but not necessarily to hurry development. The way to go about it isn't to weaken our environmental laws; it's to streamline this stupid process by which the science is collected by a few students who work for consulting firms, 10 pages are hidden on a long shelf, and a committee is expected to find them and make sense of them in a year or less.
It's time we had an organization that did professional environmental impact assessments, based them on good long-term monitoring—we usually know in advance when those systems are going to be targeted for development—gave us an unbiased view of what the changes to those systems would be, and then went back afterward to see if their changes were correct. That's something that is not done in our current environmental impact process. It's not a science, because that self-correcting action simply does not occur.
Thank you for your time.