Evidence of meeting #28 for Transport, Infrastructure and Communities in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was river.
A recording is available from Parliament.
NDP
Robert Aubin NDP Trois-Rivières, QC
At the beginning of your answer, you stressed that there's room for improvement. What would you add to make the consultation process to your liking?
Executive Director, Fraser Basin Council
Number one, we're finding out, is meeting with first nations right from the outset. Sometimes it's a little bit too late in the process. For example, we had a board meeting a couple of weeks ago. You may not be aware of this, but the first nations of British Columbia have formed what's called the First Nations Leadership Council. It's made up of three of the major groups in British Columbia: the Union of British Columbia Indian Chiefs, the First Nations Summit, and the regional office of the Assembly of First Nations.
We had representatives of all three at our board meeting talking about the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, the new FPIC, the free, prior and informed consent principle, and the recommendations of the Truth and Reconciliation Commission report. We've asked them how we can help facilitate some more attention around those.
These are some of the specific things we could probably get started on in order to improve our work with first nations.
NDP
Robert Aubin NDP Trois-Rivières, QC
Thank you.
I have another question I'd like to hear your opinion on.
Transport Canada's navigation protection program no longer accepts complaints about work that is not on designated waterways. The people who feel harmed must now go to court to make their case.
Do you think it's normal to have people go to court to make their case?
Executive Director, Fraser Basin Council
We absolutely do not. We prefer to avoid the courts, if at all possible. That's why I emphasized in an earlier question the importance of bringing people together right from the outset, trying to respect their various interests, looking for the common ground, working together in coming up with practical solutions, and moving forward.
To give you an example that I think relates to navigation, a few years ago there was always the continuing risk of flooding in the Fraser River. Prior to that our salmon stocks started to disappear. People were worried, because they felt the habitat was being destroyed because of heavy excavation in the river to take gravel out of the riverbed. As a result, they felt there was some evidence of destroying critical habitat for salmon. There was therefore a moratorium placed by the provincial government on gravel mining in the Fraser River. The federal government's Department of Fisheries and Oceans supported it. Then the local government politicians became concerned, because they felt that the riverbed was starting to rise and that therefore we were putting the communities at risk from a flood.
We wanted to know what we could do. We brought together all the key interests, including first nations communities that were on the flood plain. We asked what we could do to try to ensure safety while taking into account navigation interests, flood protection interests, as well as salmon interests.
We came up with a five-year gravel management strategy that was agreed to by the federal and provincial governments and the first nations, which would determine when gravel could come out of the river, in what quantities, and at what location, in order to minimize the impact on salmon habitat.
That's a classic case of people coming together, avoiding the courts, and coming up with a practical solution. Most of our work is in that area.
NDP
Robert Aubin NDP Trois-Rivières, QC
Thank you.
Did you have to go through the regulations to include a new body of water in the schedule of the act? If so, is it a complicated process?
Executive Director, Fraser Basin Council
No, we didn't have to do new legislation. We were able to draw upon existing legislation and find out what attributes of that legislation would help us move forward to get to the decision we wanted to reach.
October 25th, 2016 / 9:20 a.m.
Liberal
Sean Fraser Liberal Central Nova, NS
Madam Chair, through you I'd like to thank our witness for coming here. Mr. Marshall, I find your testimony very valuable for the purpose of our study.
Here is just an introductory question. You mentioned the importance of both recreation and trade on the Fraser River. Of course, there are waterways all across Canada that aren't quite the same in scope, in terms of their trade or recreation volumes. Is there a certain volume at which you see it would be appropriate to include a specific waterway on the schedule? Is there a threshold that you think would be appropriate?
Executive Director, Fraser Basin Council
No, I would caution against that. I think it depends on the location of the river and the uses of the river. You could have a larger river in a relatively remote location that doesn't have the same sort of risks attached to it from commercial activity.
What you need to do is look at the critical importance of the river, its recreational value, its commercial value, and then determine at that point whether and where navigation fits in. I think that would be a better approach to take than trying to do it on size or length or whatever.
Liberal
Sean Fraser Liberal Central Nova, NS
Thank you very much for your response.
You discussed the need for early resolution of potential disputes. Is there something that you think, from the federal government's perspective, through legislation or otherwise, we could do to encourage those conversations early, before it gets to a breaking point where you might have to consider the courts?
Executive Director, Fraser Basin Council
A good example is the one I was talking about, if we can come up with some sort of implementation mechanism under the Navigation Protection Act to be able to anticipate where there may be some risks associated with the navigation. For example, if the Fraser River wasn't on the list, obviously because of navigation being so important, it should be on the list, especially if it's going to be affected not only by human intervention but by natural causes such as the one I mentioned this morning.
Liberal
Sean Fraser Liberal Central Nova, NS
Still on the topic of complaint or dispute mechanisms, if you can't sort things out on your own early on through the process, I'm a big believer in a more efficient process than taking things to the courts. I think if there were some kind of tribunal or independent body that would be less burdensome than the full civil litigation process, that would be a good thing.
Do you think that would be an appropriate step we could take as the federal government or a recommendation as a committee, to implement a body that is more streamlined, to hear complaints when they do arise?
Executive Director, Fraser Basin Council
That would be an excellent recommendation. It also enables me to talk a little about our organization, which we believe is very unique, as I pointed out and there are very few of its kind in Canada, in the sense that we do not take positions. We act as the catalyst, the honest broker, to bring those various players together, and then capitalize on the instruments, whether legal or information that works around the table to reach the solutions that I talked about with some examples earlier.
With that sort of model, hopefully then it becomes much more efficient and effective and avoids the courts almost in a way of, not so much a tribunal, but a safe place for dialogue and constructive decision-making.
Liberal
Sean Fraser Liberal Central Nova, NS
Through the complaints process, in trying to flesh out what it should actually look like, would you suggest that perhaps almost a mandatory mediation or dispute resolution process would take place before you get to the next step of a tribunal or the courts? Would a staged dispute resolution process be appropriate?
Executive Director, Fraser Basin Council
Yes, absolutely, with one addition before you get into the mediation. With a process such as ours, it's more of a softer form of mediation facilitation, where there is a table for constructive dialogue set up, so people feel that they can put forward their case in a respectful manner, are listened to, and then hopefully move forward. If that doesn't work, then you go to a more formal side of mediation before you go to the courts.
Liberal
Sean Fraser Liberal Central Nova, NS
Would the appropriate mechanism for us to establish that kind of process be right in the legislation, and we'd say to get in a room and have that pre-dispute conference, or whatever you'd call it, and once you've checked that box, you can talk about the next stage? Should we have a dispute resolution procedure right in the legislation?
Liberal
Sean Fraser Liberal Central Nova, NS
Excellent.
You mentioned the gravel example. In a lot of the discussions we've had so far, I've been envisioning much bigger projects, such as dams or bridges being constructed over a waterway. Is there a certain limit or threshold we should have before we start considering what kind of work could actually be an obstruction for the purpose of the legislation?
Executive Director, Fraser Basin Council
Again, I'm always worried about setting specific numbers. I think it all depends on the points of consideration, the sensitivity of the waterway you're looking at, the navigation used, a number of different factors that need to be taken into account. That's a much better approach than putting a specific number.
Liberal
Sean Fraser Liberal Central Nova, NS
I think I've exhausted my time. Thank you very much to the witness.
Liberal
Vance Badawey Liberal Niagara Centre, ON
I have to give a lot of credit to you, Mr. Marshall, for a lot of the issues you're dealing with and how you're answering the questions. You seem to be part of an organization that's taken the bull by the horns with respect to sustainability of the watershed, improvement planning, water quality, fish and habitat, wildlife, and increasing community resilience, river flood protections, etc. That credit is to be given because we don't always see that due diligence in organizations. They depend on others. Once again, I want to give you that credit.
I want to dig a bit deeper on process—I think member Fraser touched on it and so did member Hardie—that being, for lack of a better word, Mr. Marshall, a mechanism that you as an organization that is working extremely hard can be a part of, whether it be federal or provincial. I know in Ontario, for example, with the watershed, we have tribunals, courts of revision, a process looked after by the province, through the Drainage Act, as well as the municipalities.
This, quite frankly, is where we are right now, because there always seems to be loose ends, and when you have loose ends and you don't have a process that's part of that, what ends up happening is that you keep changing legislation, depending on which government happens to be holding office on that particular day, which we saw with the last government and the reason this government is trying to get away from that process.
Do you see a middle ground there, whereby, whether it be an organization, a level of government, a ministry, the Canadian Transportation Agency, a process delegated to an authority that can deal with a lot of these issues, especially with respect to appeals, would be appropriate?
Executive Director, Fraser Basin Council
Absolutely.
Before I continue with my response, thanks for your comments about our organization. It's very much appreciated.
I talked before about the safe tables, but our particular organization, if you look at its board of directors, has federal, provincial, local, first nations, private sector, and civil society all represented. To have that degree of participation is unheard of in Canada. They all sit at the table as equals and bring their attributes to the table. I feel that initially that's why we're able to sort out some pretty tough issues. It will be 20 years old next year, which is hard to believe. We've cracked some really tough sustainability issues, not only in the Fraser River system but elsewhere in the province of British Columbia.
When we get to the point where we're not able to crack the issues—and we do rely on a particular legal instrument, whether it's federal, provincial, and, in some cases, both. To just give you a quick example, some of you probably have driven the road to Whistler and gone by Britannia Mine. That used to be the number one pollution problem in North America. Nothing could live in the foreshore.
We wanted to host the Olympic Games in 2010, but it would have been an insult and embarrassment to Canada, so we brought together all the regulatory agencies and drew upon their respective legal instruments to sort out that problem. Now everybody comes from all over the world to see that solution. Pink salmon have now returned to Britannia Creek for the first time in 50 years. That was done by going to higher levels of authority at the appropriate time, not right off the bat.
Liberal
Vance Badawey Liberal Niagara Centre, ON
What you're speaking of is combining the strengths and, therefore, the strategies: commercial, recreational, environmental, and dealing with the issues, but are they being dealt with? A lot of times they're not because we don't have an agency or a one-stop shop that we can go to, whether it be at the provincial, delegated by the federal government, or at the federal level. My point is that the process needs to be strengthened. You show your strategic plans and sometimes, because of those processes not being strengthened, they sit on the shelf.
When we look at watershed management, appeals, tribunals that would deal with those appeals, environmental issues and the challenges attached to them, when we look at funding and, as you spoke about earlier, leveraging that funding at all levels of government and organizations, would you find it would be a lot easier and a lot more streamlined if we had a one-stop shop, an agency that would look after that and deal with all issues, versus being ad hoc or knee-jerk and having legislation changed because of individual issues?
