Transport Committee on May 29th, 2008

[The Chair (Mr. Mervin Tweed (Brandon—Souris, CPC)), Conservative, Merv Tweed]

Good morning, everyone, and welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting 29.

The orders of the day, pursuant to Standing Order 108(2), are for a study of the current status of navigation protection of the Canadian waterways, including the governance and use and operation of the current Navigable Waters Protection Act.

Joining us today by video conference, representing Lake Ontario Waterkeeper, is Krystyn Tully, vice-president.

We apologize for the delay. As you may know, we just came from the House from a vote. Unfortunately sometimes that takes the priority.

We welcome you to our committee in this format. I'm sure you've been given some instruction. You have seven to ten minutes to present, and then there will be questions from the members of the committee.

Please proceed. Welcome.

[Krystyn Tully, Vice-President, Lake Ontario Waterkeeper]

Thanks.

I believe you all have a copy of the brief that Lake Ontario Waterkeeper submitted. I'll just walk you through our proposals and our comments from that brief. As well, I have had an opportunity to review some of the transcripts from the previous committee hearings, so I can also respond to some of the statements that were made in the past.

Lake Ontario Waterkeeper is a registered Canadian charity. We work on waterways in the Lake Ontario watershed and we also support the growth and development of Waterkeeper programs across the country. We're a grassroots movement, so every Waterkeeper program has a boat. We're out on the water. We take the perspectives of the communities and we in every way possible bring them to the attention of decision-makers. We try to let you know how some of these federal laws and policies affect the communities that are living on waters across Canada.

The Navigable Waters Protection Act, for us, is a really important statute. It recognizes a right of the people to navigate waterways that goes back thousands of years. It's an important part of our legal history. And it reflects and reminds people that every person has a right to access waterways across the country, that the waterways are there for the people.

We are concerned with proposal one, to amend the definition of “navigable waters” to exclude “minor waters”. We would, in our experience, recommend against doing this for two reasons. First, in our opinion and our review, such an amendment isn't necessary. The act only applies to waters that are already navigable. If a waterway is really minor and isn't navigable, then the act wouldn't apply to begin with, so it's not a necessary amendment. Second, dividing Canadian waterways into major and minor waterways creates a two-tiered environmental and common law protection system where some Canadians would have access to certain protections and certain rights that other Canadians wouldn't. In our opinion, this changes and undermines the original intent of the legislation.

In the same way, proposal two, to amend the definition of “work” to explicitly exclude “minor works”, we also see as being unnecessary. The reason is that the Navigable Waters Protection Act only applies to works that interfere substantially with navigation, so there's already a separation of major and minor works in the wording of the act. Changing the definition at this time, again, would just promote a system where some waterways are more protected than other waterways.

In terms of proposal three, for the same reason, the idea of removing the four named works from the act is extremely problematic from the perspective of the grassroots and the communities who are living and working and playing and relying on these rivers and lakes and oceans across the country. In pretty much every case, bridges, booms, dams and causeways interfere, by definition, with navigation. We have seen in Canada incredible waterways, such as the Petitcodiac River in Moncton, completely destroyed and completely altered because of the construction of a causeway.

So to eliminate those four named works from the act and not require an environmental assessment before they are constructed can, we know, cause problems. We have seen it cause problems, and we would want to make sure that it doesn't happen again in the future. After the environmental assessment is completed and after the terms and conditions are imposed, it is possible for such works to go ahead and for navigation and fish and fish habitat and other water rights to still be protected.

Then there are the areas where we don't have as much of a comment, for instance, updating the fine range. We agree with this, we understand the logic behind it. We would support that to create both general and specific deterrents. We've recommended that you look at the Fisheries Act, section 78, for guidance on what might be a more up-to-date, modern fine range.

We have no comment on the wreck removal convention. The inspection powers are key to making the environmental assessment process work properly. I believe, as you've heard, under the Environmental Assessment Act, when the terms and conditions are imposed, the Environmental Assessment Act itself doesn't...there's no penalty for violating it. So the two acts, navigable waters and environmental assessment, go hand in hand. Inspection powers certainly help to strengthen that process.

Finally, the five-year review clause seems like a great opportunity for the public to also respond and bring to your attention key issues and key impacts of this legislation on their communities. So we would support and recommend in favour of inserting a five-year review clause.

Generally, I just want to underscore the importance of this act and how it affects our communities, and to talk about the idea of whether the purpose of the act is to protect navigation or to protect navigability.

In our opinion, in our view--we're supported, again, by 2,000 years of legal theory and legal policy and the principle of rights and justice--every person has a right to navigate a waterway. The Navigable Waters Protection Act was created to give certain people, under certain conditions, an opportunity to infringe upon that right. So the purpose of the statute is to protect the public's right to the water, not to protect the right of business or industry or private developers or whoever is interested in impeding navigability.

Again, the purpose of the act is to protect the public interest. For that reason, we were also concerned by a lot of the documentation where Transport Canada refers to their clients as being those who wish to impede navigation, as opposed to the public. We believe that most Canadians believe--certainly from our experience, when we're in the community--that the federal government's job is to protect Canadians and individuals and the public right, first and foremost. That's what most people believe is happening. In the environmental assessment process and the navigable waters permitting process, that's the role they see Transport Canada playing. That's what their expectation is of the government. We just wanted to bring that perspective to you as well.

There's been a lot of talk about environmental assessment. We would in particular like to bring to your attention concerns about the suggestion that this Navigable Waters Protection Act assessment process delays the approvals process. Again, that goes back to the purpose of the act. The purpose of the act is to protect navigation, so the idea that environmental assessment is in some way a delay or an obstacle is really problematic. The community, for the most part, participates in good faith in the assessment process. They're trying to make these projects and proposals better. They're trying to strike a balance between the needs of development or industry and the needs of the community. And to say that the approvals process is an impediment suggests that people are going in assuming that they have a right to a Navigable Waters Protection Act permit, and it's not actually true. We would want to make sure that, when people are applying for licences, they understand the great privilege that is being given to them.

Finally, I would also like to clarify, on the environmental assessment issue, that not every Navigable Waters Protection Act permit comes with a Fisheries Act permit, and there are two reasons for that. One, as I believe you've been told, it is possible to, for example, build a bridge that doesn't impact fish habitat in any way, so in such a case the Navigable Waters Protection Act would be the only licence, the only opportunity for the public to comment. And in the other case, Fisheries and Oceans has a “no net loss” policy for fish habitat. So if fish habitat is being altered or destroyed to construct a bridge or a causeway or something similar, if the person building the bridge can build other fish habitat or create new fish habitat and there is, technically, no net loss of fish habitat, then in a lot of cases DFO does not require that an environmental assessment be done. So there are many instances, from a community perspective, where the navigable waters is the only licence that creates an opportunity for public comment, consultation, input, and improvement.

Finally, I would like to reiterate the idea that Canadians do expect that we have equal rights to swim, drink, fish, and navigate our waters safely, so the idea of dividing waterways into major or minor waterways and giving some communities more protection and more rights than other communities is extremely concerning. This is particularly important for communities that live in places like Toronto or Oshawa or Kingston, or areas on the Great Lakes or industrial areas where we've already lost a lot of our waterfront areas. Many of our rivers are no longer navigable, but they easily could be with restoration. It would be devastating to a lot of communities to label certain rivers as minor waterways because they are not currently navigable when the community's expectation is that with some investment and some support, those waterways could very easily be navigable again.

As an example, I would cite the Petitcodiac River, where the federal government, the local government, and the community are doing a lot of work, looking at the causeway that destroyed the river in the 1960s. When it's removed, we will see the restoration of that river. We will see an incredible river come back. We wouldn't want anybody to think that it's a minor waterway just because at this particular moment in time it happens to be in trouble.

We don't want to write off any communities. We don't want to write off any rivers that could, in fact, be great rivers again in the future. There's a real fear among the grassroots that this is what these amendments would do.

Those are the comments I have for now. I would add that commerce is not the only navigational use that benefits communities. We do have a shipping industry in Canada, but also, on the Great Lakes in particular, the recreational boating industry is worth billions of dollars to Ontario.

So we wouldn't want to see the right to navigation limited to one particular sector. It really does have to remain in the hands of all people for the common good.

Thank you.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

We'll go to Mr. Volpe.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

We were going to let Mr. Murphy go first.

[The Chair, Conservative, Merv Tweed]

I'm sorry. Mr. Murphy, welcome.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman. I thank you for your welcome to the committee. I am a visitor to the committee.

I am very interested in the testimony from Waterkeeper. I come from Moncton, New Brunswick, where the Petitcodiac River is. I am very interested in your comments. Not to make it sound too local, I want to say that the act in question, or the amendments, might have a cascading negative effect on many streams and bodies of water across Canada. That's why I'm asking a question of you with respect to the amendment dealing with the word “minor” waterways.

I don't need to tell the witness, Mr. Chairman, the history of the Petitcodiac River, but by way of explanation, perhaps I'll do so briefly.

The water in the river that remains is barely navigable. It might be considered, below the causeway structure, a minor water system, because it's barely navigable. The point is that it's been choked off by the causeway and has become barely navigable over time because of the actions of governments, and more importantly, because of the inaction of governments. This is really a non-partisan issue, because it has cut both sides, Liberal and Conservative, over the years.

My question is whether you feel as strongly as I do that by stealth, the second point in your commentary, such an amendment regarding the word “minor” might undermine the very purpose of the act. Might it act as a way for the current federal government and successive federal governments to escape their responsibility to participate in restoration initiatives, as is under way in Moncton for the Petitcodiac River?

[Krystyn Tully]

Yes, that would be a grave concern. One of the reasons I chose the Petitcodiac River as an example is that the federal government did do an environment impact assessment on that river. The findings were that if the causeway were removed, the river would be completely restored, and every species of fish, except one, would return to that river.

We have affidavits and testimony from former commercial fishermen on the river who talk about the environmental benefit it would have, the economic benefit it would have. All these issues really do stem from that one issue of navigation.

The fact that the Petitcodiac River, to look at it today, could be classified as a minor river is a great disservice to the people of Moncton and to other economic opportunities in that area.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I don't know if everybody is aware of the work of Robert Kennedy and the Waterkeeper Alliance generally, but the story of the Hudson in the United States, for instance, and their work in North America in general has been quite outstanding.

Could you explain to me how, certainly in Moncton under Daniel LeBlanc, you have moved in various communities from tiny protest groups to an over-weaving group of community interest? In fact, in Moncton, that exact story happened. You might have been a tiny protest group, but now the vast majority--some 72% of the people in the greater Moncton area--want the restoration of the Petitcodiac River, and they want the federal government to come to the table with the promised funding.

Can you explain that process just briefly? How do you sort of educate people to come to view our water and streams and lakes as fundamental to communities?

[Krystyn Tully]

By way of illustration, I'll give you the story that Mr. Kennedy tells about the founding of the Hudson Riverkeeper, which was the first public interest Riverkeeper organization on the planet. In the 1960s the Hudson River was completely destroyed. The fish were inedible. The plants were spewing toxins into the river. You can look at old videotapes of cars, garbage, waste, and oil floating down the river. The community was extremely concerned about it.

There's a story about a meeting in an old legion hall, where a bunch of old military army guys got together--the grassroots, the community fishermen--talking about their options for restoring the river. They were really angry because the fishery had been wiped out. The local businesses had been wiped out. They were talking about doing things like setting an oil slick on fire or shoving mattresses up the intake pipes of the industry.

There was an old fisherman, Bob Boyle, who pulled out an ancient statute, called the Rivers and Harbours Act, which said that actually what they were doing was illegal: “They're not allowed to put contaminants into our river. We shouldn't be talking about breaking the law, we should be talking about enforcing the law.” At that moment, the concept of the riverkeeper was born. These grassroots organizations spend time on the river. They see for themselves what the issues are. They become the voice of the river and then they use the existing laws, rules, policies, and commitments of government, working with government, wherever possible, to win back those lost rivers and protect rivers from being lost in the future.

That spread; there are now 177 Waterkeeper programs around the world. We're in the United States, Canada, Latin America, India, Russia, Africa, and Australia.

There are nine programs in Canada. The Petitcodiac Riverkeeper was the first. The Lake Ontario Waterkeeper was the second. The only way we can do our job is with important statutes like the Fisheries Act, the Navigable Waters Protection Act, and the Canadian Environmental Assessment Act, all of which are threatened by the proposals that are on the table here today.

If you want to see grassroots groups protecting waterways in Canada, doing it legally, doing it without protests, being able to work with government, we need these kinds of tools and the ability to create public input to get out there to hear what the community has to say, to learn from the wisdom they have, and to make the best possible decisions in the future. If you take away every right that the community has and hand over our waterways to a few private interests, I believe those are decisions that we will truly regret in the future, not just due to the environmental consequences but because of the cultural, social, and economic consequences of making those short-term sacrifices.

[The Chair, Conservative, Merv Tweed]

Very good. Thank you.

Mr. Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Thank you very much, Ms. Tully, for joining us today.

I would not want anyone to misunderstand me. At no time was it ever the committee's intention to place responsibility for waterways in the hands of the private sector.

I've listened to your comments and read your brief. One of the problems is that the act has not been amended and the courts have pounced on that. What was deemed to be navigable at the time the legislation was first enacted...Now, this designation applies to all waterways, whether minor, medium or large. The waterway that you are defending will probably always be governed by this act. We are now focusing on the smallest streams and perhaps it is because we want to counter the effects of the courts that we are saying today that it is time to review the very definition of what constitutes a navigable waterway or zone.

Representatives of the Alberta government, who also happened to be representing several other provinces, made a presentation to the committee. This province is prepared to draw up a list of waterways that will remain navigable. We need to understand that if we do not address this matter... As you stated in your submission, Environment Canada maintains certain standards. When the federal government provides funding, an environmental assessment is done, and that satisfies our requirements. The use of the Navigable Waters Protection Act has been challenged in court , which has resulted in the act being applied unevenly. We are not calling into question the Fisheries and Oceans Act. We want it to continue to apply, just like the Canadian Environmental Protection Act.

Even municipalities benefit from certain safeguards and we want that to continue. All we want is for the definition of “navigable” contained in the Navigable Waters Protection Act to be more in line with the aim of the legislation when first enacted, more so than the interpretation of the courts.

I sense that you are concerned, but I hope that we can alleviate your concerns somewhat today. If your waterway is navigable, then there shouldn't be a problem. I'm not familiar with the situation and I see that my colleague Mr. Murphy knows considerably more about this than I do. However, if pleasure craft navigate on your waterway, then there won't be any problem. The waterway will be protected by the act.

[Krystyn Tully]

In response, there are a couple of examples. There's the Don River in Toronto. It would be questionable whether or not the Don River is considered a navigable waterway. My hunch would be that most people would consider it a minor waterway. It's navigable once a year when it's flooded for a public event, a paddling event, on the river, but the rest of the year, for the most part, it's not navigable. However, if the conservation authority proceeded with a number of projects over the coming years to remove some small weirs and small causeways, it could again be a navigable river.

So one of the problems with coming up with a concrete list of what is a major waterway and a minor waterway is that for all of these waterways currently threatened, there would be no incentive and, possibly, very little opportunity to restore those rivers. So that's one concern.

My understanding is that the act only applies when the water is already navigable, so I am a little bit confused about what someone would say is a navigable, but still minor, river. A definite concern that we would have—and we get this from the grassroots—with creating a list at the outset, saying, okay, here's a list of the major waters in a province and here is a list of the minor waters, is that for the most part, private citizens who get involved in environmental issues don't consider themselves environmentalists. They're not reading the Canada Gazette every day. They typically find out about these proposals later on in the planning process, and they don't know what tools are available to them to express their concerns or to make a project better. So they're certainly not going to be involved in the policy process at the beginning of the creation of this inventory of major and minor waterways.

It's very difficult to uphold the public right to navigation when you create these concrete lists. It's much better to have the general prohibition on interfering with the public's right to navigate. We do understand that there are tools, such as the class screenings under the Environmental Assessment Act, that can help deal with some of the smaller and more minor projects.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

You also need to understand that a bill has not been tabled. It's time to rethink the way in which the courts have defined navigability over the years. We are decision makers and law makers. It's normal for us to request that a bill be examined once it has been tabled to get...

Navigable waterways must be protected. That is my objective. We will take into consideration the definition that you have suggested, bearing in mind the season and other factors. A definition will be proposed. The current interpretation of the courts has resulted in a slew of requests which has added considerably to the department's workload. The time has come to consider some possible definitions and subsequently, to hear from the various stakeholders, to find out if they agree with the proposed definition. However, I do not want people leaving here with the impression that we want to privatize some waterways, or merely prevent that from happening. On the contrary, our objective is to protect navigable waterways.

As members of the Standing Committee on Transport, Infrastructure and Communities, we have a responsibility to question the definition of “navigable”. Is that for transportation, tourism or recreational purposes? That is what we intend to do. Based on what has happened, it's conceivable that the courts may have gone too far with their interpretation. It is time to restore some balance and to allow transportation activities. Other laws apply to other activities. Fisheries and Oceans and Environment Canada have applicable legislation. For that reason, we have tried to distance ourselves by maintaining that other laws must be applied.

Now then, it's time to refocus the definition on that which constitutes a navigable waterway. We're asking for your help in examining the impact that the court's interpretation has had, whether rightly or wrongly, over the years. Based on this definition, if one can navigate over a stretch of 100 meters, then the waterway is deemed to be navigable. That was not the aim of the legislation when it was first enacted. As defenders of the transportation sector, we have a responsibility to examine areas that are unclear.

[Krystyn Tully]

I see your point. Without having a proposed definition to work from, it is difficult for us. In our recommendations we did suggest that if the transport committee or Transport Canada is very committed to moving forward with these amendments, a more specific wording should be provided to the public for consultation. I don't want to argue in the abstract because we don't know the proposed definition of a navigable water.

Then, also, I wouldn't want to undermine or question the decisions of the court without having had an opportunity to review the jurisprudence. I would assume there was a reason why the judges have ruled the way they have and why the definition has evolved the way it has through case law. I would think the arguments that went into that evolution would be important for the committee to consider as well.

From a community perspective, that's typically how law evolves. The government passes the legislation and then we see what it becomes through court and through policy and through application. So I wouldn't want to take away from the efforts of the courts, because they may have a valid point or valid reasons for having created the definition that they have.

[The Chair, Conservative, Merv Tweed]

Thank you.

I think just for a point of understanding, the committee has been asked to study this act and make recommendations back to the government, which would then move the government to bring forward amendments to the act that, again, would become available to the public to have input to and to comment on.

So right now this committee is just studying the act to see if there are amendments we could make to improve the act, and obviously public input is going to be very important to that decision.

[Krystyn Tully]

So conceptually, just making sure that the broader the definition is to protect future uses...that's what we're hearing from the public is really important.

[The Chair, Conservative, Merv Tweed]

Yes, and I'm very certain you'll be back before this committee should we decide to make certain recommendations to the government.

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

Thank you, Ms. Tully, for appearing and adding another layer of information and debate that we haven't had yet through testimony.

We have a Detroit Riverkeeper where I'm from in Windsor, Ontario, and it's been very successful. You're right to describe it as a grassroots organization, but the depth and the value of the legal expertise is well appreciated as well, as you've seen the advancement of many different communities' projects.

You touched on the definition of minor and major, which I think is important. Many progressive communities across the globe are working in urban environments to restore rivers and tributary systems that were altered. Maybe you can highlight that development, because that's one point you raised that I think is important. The Petitcodiac River is one example, but I think there are other urban examples of projects under way to restore them. They're really an asset not only in terms of the environment but also to the community.

[Krystyn Tully]

I grew up in Oshawa, Ontario, which is on Lake Ontario just outside of Toronto. It's a fairly industrial city. I grew up in an environment where we assumed that Lake Ontario was supposed to be dirty. We assumed that the Oshawa Creek was not supposed to be something that we would ever go out on in a canoe or take our fishing rods out on.

Through my work at Waterkeeper, what I'm seeing in the community in maybe the last 10 years is that people's expectations are changing for what Canadian waterways should look like. People are starting to think that our waterways really should be clean, that there's technology available, that there's expertise and wisdom available to restore some of what we've lost. So while we have seen a lot of devastation, a loss of fish habitat, a loss of navigability, we are also seeing a renewed hope and a renewed enthusiasm and an understanding of how important these waterways are to the culture and to the businesses in our community.

As an example, the Oshawa River is the reason the city is there. It was a very important natural harbour area. It was a very important navigable water area and over the years, through development, it's dried up so much it's no longer called the Oshawa River, it's now called the Oshawa Creek. Through a simple name change, people have forgotten what that river was supposed to be like.

Through the work of the City of Oshawa, the Oshawa Marina Users Group, and other organizations, we're seeing this idea that Oshawa could be restored and the memory of what it could be is coming back to communities. That's really important. We're seeing that in Toronto as well. We see that in Hamilton. Again, we see it in pretty much every industrial area and urban centre on the Great Lakes. We're seeing it in some of the maritime communities, definitely in Moncton.

So the Navigable Waters Protection Act is not bad, but it's old. It's great that it's old, it's a reminder of what Canada is supposed to be and what rights and privileges and opportunities the public is supposed to have. I think those kinds of works.... I could probably go for an hour through every community in the country that has some kind of restoration project going on right now.

[Brian Masse, NDP, Windsor West, ON]

These are exciting times in many respects. There is opportunity to redevelop urban areas that are underutilized and add a quality of living that was never expected or had been long forgotten.

With regard to your comments about the boaters, I'd like you to expand on recreational boating. It's very big on the Great Lakes.

As well, I have a few concerns with the amendment you flagged in terms of minor works. Every year I like to go kayaking. I can tell you that if the docks aren't done properly, that can make a substantial difference in the public usage of the stream you're on, and actually the water flow, because of how they impede passage through the system.

Could you highlight for us how the boating community should be engaged in this?

[Krystyn Tully]

The boating community is really important. Every area you go to, you have a slightly different community.

For the Ottawa River, there's an Ottawa Riverkeeper program. That's one of the world's greatest rafting rivers. There's a strong boating community there that has very particular interests and very particular concerns. You could compare that to a city like Kingston, where they're not navigating the river so much--it's more about the harbour--but it's a big sailing city. There are Council of Commodores everywhere across the country. It's a community that really does understand what the waterways are like because they're out there every day.

You might think to yourself, well, I'm building a dock, and it's just two feet longer than the dock I used to have. I have to build it because my old dock is rotting. You're up at the cottage and it seems like a small minor project, no big deal. But it can in fact have a huge impact on the current uses for that waterway.

We see that on the Hudson River, which was mentioned. I had the privilege of spending a week there last year, camping and getting to see the river. There are very strict rules about where docks can go and how long they can be. They have had problems on that waterway over the years with small projects that people didn't think were a big deal when they were actually interfering with a fairly substantial right.

[Brian Masse, NDP, Windsor West, ON]

Do I have time, Mr. Chair?

[The Chair, Conservative, Merv Tweed]

You have time.

[Brian Masse, NDP, Windsor West, ON]

In your experience as a riverkeeper, can you compare Canadian laws with American laws to reclaims rivers? My understanding is that we have a disadvantage compared with our American friends.

We probably need to be looking at more progressive ways to improve our waterways and tributary systems as opposed to perhaps taking another tool out of the toolbox on that.

[Krystyn Tully]

The American system is completely different from the Canadian system when it comes to environmental protection. They have the Clean Water Act, which actually encourages citizen involvement. And it encourages big lawsuits, which to Canadians sounds extremely litigious and very confrontational, but for the most part it is a paperwork process similar to what we do with our licensing certificates of approval under provincial laws.

The difference is that there's an expectation built into American environmental law that communities will be involved in the decision-making process. In Canada we tend to be labelled NIMBYs fairly quickly or to be accused of some ulterior or special interest motivation, when really we're just trying to arrive at the best decisions possible. So citizens are definitely encouraged to participate in the American system much more than they are encouraged to participate in the Canadian system.

That being said, in the Canadian system, the Fisheries Act is a quasi-criminal statute. If you're in violation of the Fisheries Act, you can be prosecuted in the criminal court. Inherent in the Canadian law is the understanding that to infringe upon the public's environmental rights is extremely serious and a threat against the public interest, as opposed to the American system, which is much more based on the tort system and damages and issues between private parties.