ENVI Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Wednesday, June 5, 2002

¹

1540

The Chair (Mr. Charles Caccia (Davenport, Lib.))

Mr. Richard Nadeau (Director, Habitat Operations, Department of Fisheries and Oceans)

The Chair

Mr. Richard Nadeau

¹

1545

The Chair

Mr. Richard Nadeau

The Chair

Mr. John Herron (Fundy—Royal, PC)

The Chair

Mr. John Herron

The Chair

The Chair

Mr. Richard Nadeau

The Chair

¹

1555

Mr. Richard Nadeau

The Chair

Mr. Richard Nadeau

The Chair

Mr. Richard Nadeau

The Chair

Mr. Richard Nadeau

Mr. Edwin DeBruyn (Habitat Chief, Ontario and Great Lakes Region, Department of Fisheries and Oceans)

The Chair

Mr. Edwin DeBruyn

º

1600

The Chair

Mr. Edwin DeBruyn

The Chair

Mr. Edwin DeBruyn

The Chair

Mr. Julian Reed (Halton, Lib.)

º

1605

Mr. Edwin DeBruyn

Mr. Julian Reed

Mr. Edwin DeBruyn

Mr. Julian Reed

Mr. Edwin DeBruyn

Mr. Julian Reed

Mr. Edwin DeBruyn

Mr. Julian Reed

Mr. Edwin DeBruyn

Mr. Julian Reed

Mr. Edwin DeBruyn

Mr. Julian Reed

º

1610

Mr. Edwin DeBruyn

Mr. Julian Reed

Mr. Edwin DeBruyn

Mr. Julian Reed

Mr. Edwin DeBruyn

Mr. Julian Reed

Mr. Edwin DeBruyn

The Chair

Mrs. Karen Redman (Kitchener Centre, Lib.)

Mr. Richard Nadeau

º

1615

Mrs. Karen Redman

Mr. Richard Nadeau

º

1620

Mrs. Karen Redman

The Chair

Mr. John Herron

Mr. Richard Nadeau

Mr. John Herron

Mr. Richard Nadeau

Mr. John Herron

º

1625

Mr. Edwin DeBruyn

Mr. John Herron

Mr. Edwin DeBruyn

Mr. John Herron

Mr. Edwin DeBruyn

Mr. John Herron

The Chair

Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance)

Mr. Richard Nadeau

Mr. Roy Bailey

º

1630

Mr. Edwin DeBruyn

Mr. Roy Bailey

Mr. Edwin DeBruyn

Mr. Roy Bailey

Mr. Edwin DeBruyn

Mr. Roy Bailey

Mr. Edwin DeBruyn

Mr. Roy Bailey

The Chair

º

1635

Mr. Edwin DeBruyn

The Chair

Mr. Edwin DeBruyn

º

1640

The Chair

Mr. Edwin DeBruyn

º

1645

The Chair

Mr. Julian Reed

º

1650

Mr. Edwin DeBruyn

Mr. Julian Reed

The Chair

Mr. Richard Nadeau

º

1655

The Acting Chair (Mr. Julian Reed)

Mrs. Karen Redman

Mr. Edwin DeBruyn

Mrs. Karen Redman

Mr. Edwin DeBruyn

Mrs. Karen Redman

»

1700

Mr. Edwin DeBruyn

Mrs. Karen Redman

Mr. Edwin DeBruyn

Mr. Richard Nadeau

The Acting Chair (Mr. Julian Reed)

Mr. Richard Nadeau

»

1705

The Acting Chair (Mr. Julian Reed)

Mr. Richard Nadeau

The Acting Chair (Mr. Julian Reed)

Mr. Richard Nadeau

The Acting Chair (Mr. Julian Reed)

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CANADA

Standing Committee on Environment and Sustainable Development

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NUMBER 078

l

1st SESSION

l

37th PARLIAMENT

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EVIDENCE

Wednesday, June 5, 2002

[Recorded by Electronic Apparatus]

¹  (1540)  

[English]

    The Chair (Mr. Charles Caccia (Davenport, Lib.)): Since we have a quorum and it's already 3:40, perhaps we could start this session with the Department of Fisheries and Oceans witnesses.

    On behalf of the committee, I would like to welcome you, Mr. Nadeau and Mr. DeBruyn.

    You're familiar with the reasons for bringing you into this august chamber and company this afternoon: various briefs of a rather disturbing nature that were submitted last week, particularly ones by the Coalition of Concerned Citizens, Manitoba's Future Forest Alliance, and the Inverhuron and District Ratepayers Association. Members would like to have an understanding as to why complaints were made in relation to your department, so we welcome your presence. You have the floor in order to cast some light as to what happened. After your explanation, I'm sure there will be questions by the members.

    Mr. Nadeau or Mr. DeBruyn.

[Translation]

    Mr. Richard Nadeau (Director, Habitat Operations, Department of Fisheries and Oceans): Thank you, Mr. Chairman.

    I would first of all like to thank you for having invited me to come and reply to your questions. My name is Richard Nadeau and I am the Director of Habitat Operations at the Department of Fisheries and Oceans. I am accompanied by my colleague Edwin DeBruyn.

[English]

He is the habitat chief for the Ontario and Great Lakes area of the DFO central and Arctic region.

    Fisheries and Oceans, along with many other federal departments involved in the Canadian Environmental Assessment Act, participated in the five-year review of the act. DFO was consulted on the content of Bill C-19 and supports the proposed amendments to the legislation being reviewed by this committee.

    We appreciate the opportunity offered by the committee today to answer questions with regard to Fisheries and Oceans' involvement in the Tay River water intake project proposed by OMYA. We will be happy to answer questions in relation to the Tay River project proposed by OMYA in the area of Perth as well as questions regarding the Rockfort Quarry project to be carried out by James Dick Construction in the area of Caledon.

    The Chair: Are you familiar with the contents of the briefs submitted to the committee by the Coalition of Concerned Citizens, Manitoba's Future Forest Alliance, and the Inverhuron and District Ratepayers Association?

    Mr. Richard Nadeau: Yes.

¹  (1545)  

    The Chair: Would you like to take the committee through each of those three briefs and deal with the complaints or observations that have an impact on your department? To give you an example, in paragraph 3 of page 2 of the Coalition of Concerned Citizens brief, the observation is made that “we understand that the DFO has chosen not to consult with Environment Canada, the principal federal body with expertise in water resources”. Would you like to comment on that? There must be a reason. Is this accurate, and if it is, what are the reasons?

    If you can, please go through each brief so as to comment on what your position is with respect to each of these briefs. This is the purpose of the meeting.

    Mr. Richard Nadeau: I don't have copies of the briefs with me.

    The Chair: We can make a set available to you right now, and we'll start from scratch.

    Mr. John Herron (Fundy—Royal, PC): Mr. Chair, are we going to be reviewing the Lavoie case as well? If so, shouldn't those briefs be provided?

    The Chair: If we can get hold of a copy of that case, we could make a photocopy for Mr. Nadeau and Mr. DeBruyn and do that as well.

    Do you have a copy with you?

    Mr. John Herron: No.

    The Chair: Someone has gone upstairs to...unless Mr. Birchall has a copy in the room.

    Thank you.

¹  (1548)  

---

¹  (1551)  

    The Chair: Just to start the discussion, some witnesses have brought to the attention of this committee the fact that your department, Fisheries and Oceans, advises proponents to scale down the nature of their activities to avoid triggering more than a minimal review of what they plan to undertake. This allegation has been made to this committee by witnesses.

    The comment was made that this is a deliberate attempt to evade the public participation rights, the scope of the act, and the implications of looking at the full range of things that the Canadian Environmental Assessment Act would require, in terms of looking at alternatives or the cumulative impact of projects.

    Would you like to comment on this allegation, please?

    Mr. Richard Nadeau: Yes, Mr. Chair.

    As an introduction to my response to your point, the primary mandate of the Department of Fisheries and Oceans under the habitat protection provision of the Fisheries Act is to protect fish habitat.

    What could be perceived by outsiders as DFO narrowing the scope of the different components of the project to avoid having to get into bigger environmental assessment under CEAA is in fact DFO trying to protect fish habitat by having the proponent modify their project so that proceeding with their project will not result in the reduction of habitat productive capacity at the site of the project. It's not avoiding CEAA; it's focusing on doing our habitat protection job.

    If proponents, at the end of the discussion with DFO, can propose a project that will not result in the destruction of fish habitat, the Department of Fisheries and Oceans is satisfied. If the proponent cannot reduce the impact to the point where DFO says there will be no resulting harmful alteration, disruption, or residual impacts, the proponent must receive an authorization under the Fisheries Act, which triggers CEAA. We apply CEAA according to the scope of the project that we have defined in the context of the Fisheries Act.

    The Chair: Thank you.

    Now that you have a copy of the Coalition of Concerned Citizens of Caledon brief, I invite you to look at the last paragraph on page 1 and comment on the observations on the authority and its lack of power to require information from proponents.

¹  (1555)  

    Mr. Richard Nadeau: You're talking about the Coalition of Concerned Citizens?

    The Chair: Yes.

    Mr. Richard Nadeau: Sorry, which paragraph?

    The Chair: It's the last paragraph. Then there is the third paragraph on page 2, which relates to you and Environment Canada, etc.

    We were hoping you would come here prepared to deal with these briefs, rather than having to bring them to your attention for the first time.

    Mr. Richard Nadeau: We actually have copies of the briefs in our office, but we came prepared to answer questions from the committee.

    The Chair: Fine. Then go through the briefs first, if you have read them. Have you read them?

    Mr. Richard Nadeau: Yes.

    The Chair: Then take us through the three briefs. There is one from the coalition, one from Manitoba's Future Forest Alliance, and the third one is being photocopied, the John Lavoie case, which is also riddled with questions related to your department.

    Please go ahead, Mr. DeBruyn.

    Mr. Richard Nadeau: Mr. DeBruyn will answer your question.

    Mr. Edwin DeBruyn (Habitat Chief, Ontario and Great Lakes Region, Department of Fisheries and Oceans): Thank you.

    I was hoping that some of the questions might be a little bit more specific. Rather than walking through these briefs on a paragraph-to-paragraph basis, it would make it a little easier for me to be able to answer some specific questions the committee might have.

    I'll try my best to answer your comments in relationship to paragraph--

    The Chair: What would come to mind to members of this committee is whether these allegations are correct.

    Mr. Edwin DeBruyn: I can walk through the fourth paragraph on page 1, in terms of the comments, and the paragraph in respect of Environment Canada's participation in this review.

    In respect of the fourth paragraph on page 1, the Coalition of Concerned Citizens, many of the comments they make in this letter are correct insofar as the concerns of the Credit Valley Conservation Authority and the concerns in respect of fish and fish habitat are shared by Fisheries and Oceans. That is our duty and that is our responsibility in terms of the Fisheries Act.

    We have a partnership with the conservation authority. In Ontario it's an agreement wherein they review projects on our behalf to help streamline referrals in Ontario, reduce some of the duplication between their authority under their provincial legislation and our authority under the Fisheries Act. Where they feel there may be an impact to fish habitat that may be in relation to the Fisheries Act, they will refer it to us for further review.

    I repeat, we share their concerns in terms of fish and fish habitat in relation to a quarry that could have an impact on adjacent water bodies. We engaged in the review of that quarry when it was referred to us in 1998.

    With regard to the sentence that says “The DFO did not intervene even though the Authority did not have the DFO powers to require JDCL to provide information in a timely or comprehensive fashion”, in our day-to-day management of our affairs in Ontario in Fisheries and Oceans with respect to referrals, our principal responsibility is vested in the Fisheries Act and we are guided by our policy, the policy for the management of fish habitat, a 1986 document. I'm sure you're probably familiar with it, although it's not referenced in here.

    If you look through that document--and I have a copy of it with us--our principal objective is, as Richard said earlier, to work with proponents to reduce the impacts to fish and fish habitat. That's our principal objective. Our principal objective overall is a net gain in habitat throughout the country. We achieve that through three goals. The first goal is conservation and protection, which really means to conserve and protect the habitat that's there. The second goal is to repair those damaged habitats we encounter in our referral reviews. The third goal is to enhance or create new habitat where that's possible.

    In the context of this particular sentence, what we were doing with JDCL once we received the file is we worked with the proponent to advise them that we had concerns with fish and fish habitat. At one point we drafted a letter--and I think that's before the committee as well--saying we thought their project was going to result in a harmful impact to fish habitat that would require a Fisheries Act authorization.

    They informed us that the information we had was preliminary, and that they were interested as well in protecting the environment as much as we were. They advised us to hold off in our assessment, that they had more information coming, and that as they got the resources and consultants in order to address further questions that we had, they would provide that information to us so we could conduct a further review.

    So in terms of the comment about whether they produced information on our timeline versus their timeline, it's entirely up to the proponent and Fisheries and Oceans to decide whether or not we are being provided the information in a timely fashion. They're the proponent. It is their business plan, and if they are providing information to us and working with us cooperatively to provide that information in a timely fashion that they think is appropriate to the scale and their future plans, then we have no reason to exercise further authority under the act just to tell them to hurry up.

    So in terms of being able to respond more fully to that, DFO was of the view that James Dick Construction Limited was providing information to DFO, in respect of our concerns and questions over this period, in a timely fashion. That may not have been the view of others, and clearly the coalition felt it wasn't happening as quickly for them as they felt necessary. But it seems to me that from the normal day-to-day involvement of files, that's not an unrealistic timeline for large projects.

º  (1600)  

    The Chair: Mr. DeBruyn, 18 months, according to this paper, went by without any response from JDCL. How do you explain that?

    Mr. Edwin DeBruyn: I don't have all of the details on how the file was managed from our office, in terms of all the telephone calls that may or may not have occurred. We do have a file folder that has a lot of information. Maybe they did take 18 months to provide the information. They weren't proceeding with the project.

    The Chair: No. I don't want to mislead you. It was 18 months before the authority decided to refer the file to DFO, because information was not forthcoming. It is the point the coalition is making at the bottom of page 1, in the last sentence, if you read it carefully.

    Mr. Edwin DeBruyn: The conservation authority had asked them for information and JDCL didn't provide it.

    The Chair: Right.

    Mr. Edwin DeBruyn: It's their business prerogative, as far as my understanding is concerned.

    If proponents proposing a project think that sometime in the future they're going to be doing something, they ask what we think of it. Then a regulatory authority, whether it's the conservation authority or DFO, gets engaged in the file. We tell them we will need information before they proceed with the project.

    If they back off for 18 months and ask what we can do about it, we have no recourse. We could take a formal recourse under certain sections of the Fisheries Act. If they're simply asking that we hold off until they get their ducks in a row and the information to give to us, then we'll proceed to the next step.

    As an example, I have a file currently before me that I was meeting on yesterday. The initial proposal came into our office in 1988. I am still working on the file to find a resolution to close the particular file. As to your stance on a big project, relative to some other projects I've been working on, in my experience, it's not unreasonable and untimely.

    The Chair: Mr. Reed.

    Mr. Julian Reed (Halton, Lib.): Has any time passed that disallows you from taking action? I've heard figures, such as in 45 days you have to do such and such, otherwise you lose it. Have any timelines gone by that have inhibited your ability to act fully now?

º  (1605)  

    Mr. Edwin DeBruyn: There are none whatsoever.

    Mr. Julian Reed: There are none whatsoever.

    What are you going to do now?

    Mr. Edwin DeBruyn: Right now, we are completing our review of all of the information James Dick Construction Limited has provided for us. We're reviewing all of the information the Coalition of Concerned Citizens has provided for us. We've provided the information James Dick Construction Limited gave to us. We gave it to the coalition and their experts to have a look at, as well. The coalition had their experts provide advice for us. We are now going through the information.

    Mr. Julian Reed: Considering it's the province that issues the permit, is there any kind of a loophole that would allow the province to issue a permit with a failure of the timely examination of information?

    Mr. Edwin DeBruyn: To my knowledge, no, there isn't. The province has authority through the Pits and Quarries Control Act, as I understand it. I'm not fully familiar with the provincial legislation.

    As far as the manner in which we do business and apply the Fisheries Act, while we recognize that there are provincial statutes, we also take the view that the Fisheries Act has precedence over provincial legislation in terms of the extent of its authority.

    Mr. Julian Reed: Therefore, you still hold the power or the reins, if you like, to be able to prevent the issue of a licence pending your assessment?

    Mr. Edwin DeBruyn: It's a legal question that I'm afraid I'm not able to answer. However, from a policy standpoint, our position is we are in a position to not have our Fisheries Act authority fettered by provincial legislation.

    There may be clauses within the provincial legislation that may stipulate that they can't release it until all other regulatory authorities have been issued. I don't know for sure.

    Mr. Julian Reed: What official role does the conservation authority play here?

    Mr. Edwin DeBruyn: They have an official role through the Conservation Authorities Act. I believe it's under section 28. Again, it's provincial legislation.

    Mr. Julian Reed: There is no power.

    Mr. Edwin DeBruyn: It has power to issue permits, what they call the “cut and fill” regulations, in a flood plain. Since the area is in the headwaters of the Credit River, the conservation authority has an interest in terms of what effect activities within the watershed may have on flood protection downstream.

    Mr. Julian Reed: You're limited to the fisheries impact until you trigger an EA--is that correct? Once you trigger an EA, you are bound to deal with things like groundwater impacts and other extenuating impacts.

    Mr. Edwin DeBruyn: That's a good question. I would say that about 70% of the items we would normally look at through a Canadian Environmental Assessment Act review are typically contemplated through a review process under the Fisheries Act.

    We can make the extension that the fish and fish habitat are like a canary in the mine shaft type of indicator species. So Fisheries and Oceans has a strong interest in ensuring that the fish and fish habitat are protected. If the fish and fish habitat aren't protected, there will be a ripple effect back up the watershed in terms of protecting the interests of other species. If you protect the fish and fish habitat in a wetland or stream that migratory birds, waterfowl, or what have you rely on, then by default you are protecting those other species.

    Mr. Julian Reed: I have one final question, Mr. Chairman.

    How extensive has your on-the-ground examination been, with your own people being up there and seeing that area? I think you've been there once or twice, and the first one was a very cursory examination. How much detail have you gone into and how much more are you prepared to go into in order to establish the impact on the fishery?

    I know that river pretty well. I live on it. This is my conflict of interest, which I declare every time. I would challenge any fisheries expert or fish biologist that there could be some means of mitigation. Therefore, I'd like to know just how extensive your examination of that situation is going to be before you finalize a decision.

º  (1610)  

    Mr. Edwin DeBruyn: With regard to how extensive our examination has been to this point, I've been involved in a number of fairly large files in my experience with Fisheries and Oceans. It's probably one of the most comprehensive reviews we've undertaken in terms of looking at the effects of a project on fish and fish habitat that's proximal to the project itself.

    At our own expense, not the proponent's expense, we have engaged specialists. I'll now jump to page 2, with Environment Canada. The comment has been made that we've refused to seek advice from Environment Canada. I'm not sure where that comment came from or how it was constructed or viewed. The groundwater science specialist at the National Water Resource Institute in the Canadian Centre for Inland Waters, one of the key people, shares an office wall with me. I was talking to him just yesterday, and he is quite familiar with the expert the coalition had. Actually the expert the coalition had used to be his boss.

    Mr. Julian Reed: Is that information public?

    Mr. Edwin DeBruyn: I think I just made it public.

    Mr. Julian Reed: No, I mean to be able to see the paper on the web.

    Mr. Edwin DeBruyn: Do you mean the advice we give--

    Mr. Julian Reed: I mean the results of the study.

    Mr. Edwin DeBruyn: I think the results of our work were actually provided to the coalition. I can check on that with the staff that have been working on it.

    Getting back to the timing, we were going through a bit of a rough spot in Ontario, with the Ministry of Natural Resources going one way and getting new offices. I've had four different people working on this file in the last four years. Because of its complexity, it takes a fair bit of work to bring all of that information to a new desk and to get them up to speed in terms of working on the file.

    When we approached Environment Canada--they're academics, as opposed to technical reviewers--they said they were a little on the busy side and weren't really that interested. Again at our own expense, we went to a very knowledgeable, reputable groundwater hydrogeologist, who is peer-respected in his field, to do the work for us. He worked with the hydrologic engineer we have on staff. So I think we've done a considerable amount of work.

    I've engaged a specialist in fish and fish habitat to do some additional work for us this summer. I'm just in the process of writing the contract and finding the funds to do that. Things are getting a little tighter in being able to do that.

    To answer your question generally, we've done a lot of work. We try to work in cooperation with the public and other resource agencies to the extent that we're understanding all of their concerns in relation to this file. My personal view is that we're doing an exceptional job relative to the amount of effort we put into a lot of other files.

    The Chair: Thank you, Mr. Reed.

    We have Madam Redman, Mr. Herron, and Mr. Bailey. Madam Redman.

    Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chair.

    My comments weren't just specific to this file but more to your department. Can you explain for us what types of projects Fisheries and Oceans handle that trigger CEAA and provide maybe an example of what a small-scale versus a large-scale project that would concern you would look like?

    Mr. Richard Nadeau: I would like to make a general comment before answering your question.

    I think that not everybody understands that the habitat protection provision of the Fisheries Act that we use the most to protect fish habitat is section 35 of the act, which is a prohibition for anybody to destroy fish habitat. And this prohibition is followed by subsection 35(2), which allows the minister to authorize conditions for the destruction of fish habitat. Nobody in Canada--not a company, not an individual--has to come to DFO to obtain an authorization. It's not what is called in legal lingo an “affirmative regulatory duty”. In other words, anybody could proceed with any project without even coming to DFO to ask any question.

    Our job, under this subsection 35(1) prohibition, is to make sure that people do not damage fish habitat, and under subsection 35(2) we can take people to court. But people don't have to come to us. In most instances, and the case of Rockfort Quarry is a good example, a company that is afraid or has concern about damage that could be caused to fish habitat can come to us, not asking for an authorization, but come to us to see how we can help them, and we work with them to better protect fish habitat.

    I want this to be clear: Nobody needs a fisheries authorization to do anything in Canada. People come to us, we work with them, and when it becomes clear that an authorization is required, we do issue an authorization and we trigger CEAA.

    To get to your question in terms of a small project, In Ontario, since we're in Ontario, there are many activities along lakeshore lines where people want to put docks and all kinds of wave protection structures. This is what we consider small referrals, small projects, where we provide advice to people and we have a multitude of guidelines that are out there for people to use: if you follow these guidelines you will not be damaging fish habitat. And people call us to make sure that if they follow these guidelines they will not damage fish habitat. This is the stuff that is, at this point in Ontario, handled mostly by the conservation authority. If the assessment from the conservation authority, which has been the case in Rockfort, raises concerns about the project as proposed, the file is referred to us for further review.

    In the case of Rockfort, Rockfort itself--and I don't want to insult anybody--is not that big a project compared to a mining project, compared to a hydroelectric project, or pipeline projects that could be for hundreds of kilometres with 2,000 or 3,000 stream crossings. And this, what we see as a small project, is the day-to-day business of habitat biologists. Not everybody works on big projects.

    For DFO, Rockfort Quarry became a big project because of the effort that needs to be put in there to protect fish habitat. But we have on the west coast and on the east coast pipeline projects that have been ongoing for years, and we have people dedicated to following the pipeliners around to make sure they meet the guidelines or the conditions of their authorization.

    Currently, following the opening of the energy market in the United States, there are a lot of hydroelectric projects, power generation projects, pipeline projects, offshore oil and gas development proposals, and offshore oil and gas exploration. This is the bulk of the work these days.

    In good years or bad years, DFO reviews about 12,000 referrals a year, and it goes from small ones to bigger ones, such as, as I mentioned, mining projects or hydroelectric projects. And out of these 1,200 projects we carry out 500 to 600 CEAA reviews, going from the simple screening to panel reviews. In the past seven years, since CEAA's been put in place, I think that ten CEAA public panel reviews have been carried out, and DFO was the lead authority on a least nine of them.

º  (1615)  

    Most of the comprehensive studies carried out on private projects have been carried out by Fisheries and Oceans, which at the end of the day is the only federal department issuing any environmental approvals to projects. It's not even to projects: it's authorizing conditions to destroy fish habitat in relation to projects.

    Mrs. Karen Redman: My understanding is that DFO is actually one of the busiest departments with CEAA assessments, and you talked about some of the volume. What would an annual average be of the number of assessments DFO is involved in?

    Mr. Richard Nadeau: DFO as a whole triggers CEAA under the four main triggers: as a proponent, as a landowner, as a financing department, and as a regulatory department. Just within DFO there is an average of 1,500 a year from these four triggers. Out of these four triggers, if I focus more on the regulatory trigger, of which we have two, namely the Navigable Waters Protection Act and the Fisheries Act, it's roughly 600.

º  (1620)  

    Mrs. Karen Redman: Thank you.

    The Chair: Now it's Mr. Herron, followed by Mr. Bailey and the chair. Mr. Herron.

    Mr. John Herron: I'd like to see if I can follow the same project we're talking about.

    We made a reference a few moments ago to the coordination regulation. In a letter I believe you're aware of written to Senator Comeau outlining the issue, he specifically mentions the coordination regulation under CEAA, which sets out strict timelines for departments such as DFO to determine whether environmental assessment of a project is likely. If those timelines are set out, how is it that DFO has missed those timelines in connection with the Rockfort Quarry three times?

    Mr. Richard Nadeau: We have never missed any timelines, because CEAA has never been triggered.

    If we had come to a conclusion four years ago, or three or two years ago, that the project required authorization, the coordination regulations would have been triggered.

    Mr. John Herron: This might lead into my second question, then. If DFO makes a conclusion as to whether a project is likely to cause a significant adverse environmental effect after taking mitigation into consideration--if it already makes that conclusion in advance--then is it a little bit illogical that DFO can make that conclusion before we even trigger CEAA? You're reaching a conclusion about whether mitigation can take place even before we actually get into CEAA, and it seems like a back-door way. It seems to me that it would be duplicitous. Could you comment on that little circle?

    Mr. Richard Nadeau: It's actually simple. We could give you the example of James Dick. They came to us asking for comments or review of their proposal because they had concerns about fish habitat. Our position since the outset had been because of the concern raised by local residents and the coalition at the time about the primary fisheries nature of this head of water, because it's in the headwater of the exploit system--the Credit River. We said to James Dick, “We will not accept habitat destruction in this location”, and it was up to them to figure out a way to carry out their project. We do that often. We do a review of a project and we say, “We cannot accept your project as is”. In the case of James Dick, we didn't have the information at that time to say clearly “We will not accept damage to fish habitat”, but through discussions and working with the company and different experts we've been working our way toward protecting fish habitat completely. We haven't finalized the assessment, but we'll see what the result will be--whether we're satisfied it will be protected.

    To address your question about mitigation in the context of the application of the Fisheries Act and the fish habitat protection policy, mitigation is seen as one way to ensure that there will not be residual habitat destruction. Our hierarchy of preference is: complete relocation, which in the case of a quarry is not possible; redesign, which is possible; and mitigation. Mitigation could be of a different nature, but it's not mitigation in the context of the Canadian Environmental Assessment Act, which roughly could come to the same conclusion. The issue with mitigation is, if impacts could be fully mitigated, the EA is over.

    Mr. John Herron: If we go to the redesign issue itself, this particular quarry, since its initial application... Would it be a fair statement to say that the design has not been significantly altered since 1998?

º  (1625)  

    Mr. Edwin DeBruyn: Has the design of the project changed since 1998?

    Mr. John Herron: Has the scope of the project been significantly altered since 1998?

    Mr. Edwin DeBruyn: As I understand it, the principal project we received in 1998 was to quarry bedrock from the area of the Niagara Escarpment. The bedrock quarry operation, in terms of the phasing, has not changed in terms of how they would go about extracting that particular size of quarry in terms of what they've developed. What has been altered and changed over the period of time is that we've been asking them what they are going to do to mitigate the impacts of the quarry operation on the fish habitat that we and others have identified and that are proximal to the quarry, such that there will be no effect on fish habitat.

    As Richard Nadeau pointed out in his earlier response, we took the position with James Dick Corporation that because of the sensitivity of the habitat, we were asking for the proponent to come up with designs and approaches that would mitigate those impacts. That's the information we're currently reviewing to look at its efficacy to achieve that objective.

    Mr. John Herron: We know we need to review the project throughout the entire life of the project, and that includes many years after the extraction of the rock itself. Is it probable that in order to regulate the project...? I'll rephrase. Is it possible that in order to regulate the project itself, we may not actually utilize our two principal tools, the Fisheries Act and CEAA?

    Mr. Edwin DeBruyn: That's a possibility. We have other examples where DFO has participated in the review of quarry operations where we've taken a position and said we will not provide you with a Fisheries Act authorization to destroy habitat proximal to this quarry.

    There's a quarry in the area of Guelph that we took the same position with. We provided them the basic position that DFO had, in consultation with the conservation authority and the Ministry of Natural Resources, who also had vested interest. The proponent of that quarry came forward and said they had a plan that would mitigate the impact such that there wouldn't be effect on fish habitat and that they would like DFO to participate in the management, the long-term review and assessment, of the mitigation and management approach to monitor and assess whether or not effects to the proximal habitat were ongoing.

    That project has been in place for four or five years now, and we are still working with the conservation authority, the Ministry of Natural Resources, and the quarry operation on an annual basis, looking at and reviewing the reports to ensure that in fact the quarry operation is not having an effect on that proximal habitat. So this is not new or unique.

    Mr. John Herron: Thank you.

    The Chair: Mr. Bailey, please.

    Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance): Thank you, Mr. Chair.

    I have one quick question before I get to the real meat of the question I want to ask. Who decides what is a traditional area of fishing? I heard this morning that some fishermen off the northern part of Prince Edward Island were fishing in the wrong zone, because it wasn't their traditional area of fishing. Does DFO make that decision? If not, where does a decision like that come from?

    Mr. Richard Nadeau: This question should be addressed to our fisheries management people. We don't do fisheries management; we're habitat. Would you like me to ask them this question?

    Mr. Roy Bailey: I would indeed, yes. Thank you.

     Mr. Chairman, I'd like to explain something, particularly to Mr. DeBruyn.

    You stated that DFO has overriding powers because you are a federal department, and I understand that. Let me just very quickly take you to an event of last summer, when my fax machine began to run early in the morning, something I would rather not have heard. I went and picked up the fax, and it had come from a rural municipality--that's our third level of government--stating they'd like me to come to their office on my way to the larger centre because they were having some misunderstanding with DFO.

    As I live on the prairies and a long way from a river or even a creek, my immediate reaction to that was “I wonder what scheme these boys have up for me today”. But it wasn't a scheme; it was for real. What was going on was that there was a study being done of not just the headwaters of the Souris River but the meltwaters as well. I believe that in the end you found about three fish about so long, and DFO left with some orders about a ditch, which the RMs, the rural municipalities, had put in to drain that water, and some other regulations.

    Now, the local government had never ordered that. They didn't know it was about to happen, yet they got billed for it, and they had to pay something like $42,500 for that out in the prairies. Can I ask you, was that work and that investigation for that study done in conjunction with a request from the provincial government?

º  (1630)  

    Mr. Edwin DeBruyn: I truly wish I could help you out with some of the details on that particular question, but Manitoba doesn't fall within my area of--

    Mr. Roy Bailey: No, this was in Saskatchewan.

    Mr. Edwin DeBruyn: No, my desk covers Ontario, which is big enough for me right now, so I can't help you out with some of the details on the Souris. I did live in Manitoba for a while, and I do know where the Souris is, but I can't tell you what the arrangements and the discussions were between Fisheries and Oceans, the provincial government, and the rural municipality you speak of in terms of how they decided what to do and when and who would pay the bill.

    That's the best I can do; I'm sorry.

    Mr. Roy Bailey: The point I wanted to make is this, sir. These are the headwaters. The Souris goes through my constituency, down into the U.S., and then back up into Manitoba. I have watched that runoff for over 50 years, and if somebody had come to me, I could have told them that outside of a tadpole or something you're not going to find any living organism for about 20 miles in that particular ditch they had created to prevent spring flooding.

    I've been trying, sir, to understand why this project was carried out, why the local government was billed, and what the purpose of it was when any farmer or rancher who lived nearby would have said that there never had been and never would be a fish in that area. And it if was provincial, then... I'd appreciate it if you could send that information to me, because this has been bothering me since last spring.

    Mr. Edwin DeBruyn: I or Richard will undertake to find that information.

    Mr. Roy Bailey: I would appreciate that.

    Mr. Edwin DeBruyn: I'll just make a general comment--not give details--in relation to agricultural drains and watersheds.

    One of the things you will note in the Fisheries Act is that it does provide a definition of what fish habitat is and what fish are. In effect, it protects marine mammals to the extent that one could say that a polar bear is a fish under the meaning of the act.

    What we've tried to do in terms of managing fish and fish habitat in agricultural drains and other watersheds, even though there may not be a fishable species within that, is to look at it in a watershed context. We make sure that in whatever action we're taking, maybe in a headwater stream that has forage fish for a fishery downstream, we exercise authority in terms of protecting that habitat. We do this to the extent necessary to ensure the stream's productive capacity is maintained, even if it's a non-fishery stream, because it may have an indirect benefit downstream.

    Mr. Roy Bailey: Thank you.

    If you could, please get that back to me. I would appreciate it if the local people, including the local rural municipality--the RM's name is Scott--were in fact informed of this.

    Thanks, Mr. Chairman.

    The Chair: Thank you, Mr. Bailey.

    Mr. DeBruyn, perhaps you can help us in connection with three specific questions I would like to ask you. One has to do with the John Lavoie submission, which is in your possession, I understand. You will find that it deals with the Kagiano River in northern Ontario. In the third paragraph on page 1 we are informed that this river was environmentally protected because of fishery and tourism uses.

    The Ministry of Natural Resources of Ontario increased the protection by declaring the falls a fish sanctuary. Nevertheless, it allowed a proponent to submit a hydro project at the falls for review. In 1997 Ontario's fisheries agreement with the Department of Fisheries and Oceans lapsed, leaving your department solely responsible for fisheries. The federal assessment commenced in late 1997 and the project was approved in 1998.

    Mr. Lavoie sought to participate in and obtain the records for a screening under section 35 of the Fisheries Act in connection with diverting water for a hydro project. Despite 20 letters and phone calls to DFO, he received no records from DFO prior to the conclusion of the assessment, the issuance of the authorization, or the start of construction. Apparently the explanation by DFO was on the grounds that Mr. Lavoie had already been given an opportunity--as you can see in the last paragraph of that paper--to express some of his concerns through the provincial regulatory process. But he argues that that process did not include an environmental assessment or an assessment on fisheries issues.

    Then on page 2 you will see that Mr. Lavoie, under the heading “Science”, quotes the fact that DFO should meet its obligations under the no-net-loss principle. Then it goes on to say--I will ask for your opinion after I read this--and I quote:

    “When he ultimately obtained access to the relevant records, Mr. Lavoie learned that DFO administered the CEAA duty to assess the environmental effects of the project and its 1986 policy by first concluding that the entire area of the Falls, which was and is part of a provincial fish sanctuary, was not fish habitat and thus could be dewatered without any mitigation or compensation for loss. An expert retained to assist Mr. Lavoie calculated this lost area to total approximately 20,000 square metres. By contrast, excluding the Falls, DFO stated that the lost habitat totaled only 136 square metres; however, DFO has no record calculating that number.”

    Or how it was arrived at, I suppose he means.

    “The only source for the number was a proponent document, of which there are others with higher numbers. The DFO also takes the position that there is no obligation under the assessment or the Fisheries Act to quantify lost habitat.”

    This loss seems pretty serious stuff. Could you comment, please?

º  (1635)  

    Mr. Edwin DeBruyn: Certainly, I'd love to comment on this.

    I appeared before the Federal Court in relation to the same allegations quite some time ago, because this did go through a court proceeding and the court did make a decision on it that the decisions made by Fisheries and Oceans were indeed appropriate to the circumstances as provided to the court by both Mr. Lavoie and myself.

    First and foremost, in terms of response--

    The Chair: Was it noted that the court declared that you were not patently unreasonable? Do you recall the conclusion of the court?

    Mr. Edwin DeBruyn: I don't have the complete wording in terms of what the court said. The court did rule that the manner in which the project was reviewed and scoped, the manner in which the information was provided to Mr. Lavoie, in this case, and the decisions we made in respect to applying CEAA were reasonable in the circumstances.

º  (1640)  

    The Chair: What is the extent of the lost habitat? What is the record of calculation derived from?

    Mr. Edwin DeBruyn: If I might, it might help me a little if I could go back to some of the earlier statements you read in this document to help bring in the particular numbers you mention that are in the report.

    First and foremost, on the fish sanctuary issue, the Ministry of Natural Resources in Ontario, through a formal agreement with the Department of Fisheries and Oceans, is the manager of the fisheries resource in Ontario. We, by constitutional authority and through the Fisheries Act, protect the habitat upon which the fisheries resource depends. If the Ministry of Natural Resources defines an area as a sanctuary one day and changes it the next day, it is based on their knowledge, expertise, and the effort and management of the particular resource.

    In the manner of this file, they had originally declared it a fish sanctuary. They are also the managers of the aquatic resources for the purpose of developing hydro sites. They identified it as a possible hydro site. A proponent came along and gave a proposal that they felt was satisfactory in terms of hydro and fish sanctuary concerns.

    DFO was asked to participate at the early stages. Mr. Lavoie was a member of the public advisory committee under the water power development guidelines established by the Ministry of Natural Resources that DFO participates in, as well. Mr. Lavoie was a member of the public advisory committee. He went to, and attended regularly, the public advisory committee meetings that were held for a number of months, if not years, as part of the review process before a hydro plant is ever put in place.

    The Ministry of Natural Resources clearly made a decision that the fish sanctuary concern they had was more in respect to the base of the falls, rather than the habitat in the falls reach itself.

    I've attended the site probably about four times. It's in Manitouwadge. We looked at it and conducted various helicopter, fixed-wing, and other reviews of the particular area. My staff also attended the site and worked with the developer and the Ministry of Natural Resources for a number of months to years.

    When we looked at the information, if one were to look at the cascade or the falls, it is a series of nearly unbroken bedrock outcroppings over which the water cascades. If it is wet and therefore is fish habitat, then perhaps 20,000 units would be appropriate. There's not a fish I'm aware of that would ever be able to utilize it.

    In terms of doing the calculation, if one were to simply ask what the wetted perimeter of the falls is, then this number may be close to accurate. I don't want to sit here and get into a debate of whether it's 20,000, 21,000, or 4,000.

    When we did field surveys with the consultant, with the Ministry of Natural Resources, we looked at the usable habitat features within this very beautiful cascade. We looked at the things fish do actually use as they're being washed from upstream down through all the bedrock. There were specific pools. For any fish, whether it's a larval fish or an adult-stage fish, we looked at what pools would be available for their use as they're going down through the falls.

    We deem them as fish habitat, rather than the water-washed bedrock. If one were to look at Niagara Falls, from the top to the bottom, it's all wet and therefore is all fish habitat. I don't know many fish that spend very much time there. In the same sense with Twin Falls, I don't know very many fish that spend time within the reach of the falls.

    What was most important in that regard was the migration of certain species of fish to the base of the falls. They used the base of the falls as a spawning area. It's for all of their life cycle processes. It was a critical habitat feature.

    As part of our decision process, we said we wanted to write off the habitat in the falls area, cascade, pools, and things like that, because they're not important or critical. What is important and critical is the habitat at the base of the falls.

    We had the proponent develop a considerable amount of habitat enhancement. They actually increased the amount of habitat at the base of the falls that is used by various species to spawn and carry out early life cycle and full life cycle processes, as well as capitalizing on what we call the benthic drift of food that comes down over the falls and then circulates in the base of any falls. The fish coming in to spawn would still have this food resource.

º  (1645)  

    In terms of Mr. Lavoie's ability to participate in the environmental assessment, when Fisheries and Oceans triggered the Canadian Environmental Assessment Act review, we looked at what it went through in the provincial process, and rather than duplicate the environmental assessment process, which everybody is telling us we shouldn't do, we used the Ministry of Natural Resources EA consultation process to satisfy what is being contemplated in the Canadian Environmental Assessment Act under subsections 18(2) and (3).

    We made a decision that there has been full consultation for a long time with the public advisory committee and the proponents and the open houses and all the things they need to do in order to get to a decision point, and a decision point was reached. DFO agreed with their decision point and said “You've already gone through this. Do you want us to do it again? It's not necessary.”

    But one individual separated from that public advisory committee and said “Sorry, I don't agree with what's going on”. One individual then took it upon himself to say that he was aggrieved. How did we deal with that? We tried to deal with it as best we could, but we weren't going to say that because of one individual we were going to go through a whole public process again. We attempted to address the concerns of the individual.

    There's a bit of confusion in his submission in terms of CEAA and the no-net-loss principle. The no-net-loss principle is a DFO policy. The Fisheries Act doesn't say no net loss. The Fisheries Act only says the minister can authorize the destruction of fish habitat in any fashion he or she may want to do that. The policy merely sets out a number of criteria and guidance around how we would do that business. It's not a statutory obligation.

    When we have a regulatory authority to do an environmental assessment, CEAA is there to guide us in terms of contemplating all of the things we would normally contemplate in relation to authorizing the destruction of habitat. The legislation is clear that we can use environmental assessment processes from other legislation and jurisdictions, which we did. So we put all of that into our collective EA process and came to the conclusion that there are no significant environmental effects, and we offered up the authorization for the project. So that's my quick summary of the project.

    Mr. Lavoie has an appeal before the courts. I'm not sure what the status of that is.

    The Chair: Mr. Reed, do you have a question?

    Mr. Julian Reed: Yes. Thanks, Mr. Chairman.

    I think one of the things we're dealing with is the dilemma that God never made an ugly waterfall.

    I thoroughly agree with the conclusion of DFO about the size of the fish habitat. I question the quality of an assessment that would include the cascade as being habitat.

    The concern I have in the case of Mr. Lavoie relates to the timely issuing of documents. If a small hydro is to become what it needs to be in terms of addressing climate change and so on, the 11,000 megawatts or so that are available across Canada, surely a smooth system has to be worked out so that people who have objections can have full access to documentation in a timely manner in order to satisfy their concerns. I'm sharing that concern with Mr. Lavoie. I'm not questioning the ultimate outcome of this decision. I just wondered if you could comment on that. Did you say the judge thought that Mr. Lavoie got all of the documentation in a timely manner? Did I understand you correctly?

º  (1650)  

    Mr. Edwin DeBruyn: I don't remember the details of the judge's decision on that. One of the questions before the court was whether or not Mr. Lavoie had access to the records. The ultimate decision was that Mr. Lavoie did get access to the records.

    In terms of my comments, your concern about the public having access to the records we use for making decisions under either the Fisheries Act or the Canadian Environmental Assessment Act... The Canadian Environmental Assessment Act is clear that we have to establish a public registry for the purpose of a Canadian Environmental Assessment Act review. We did establish that. For each and every project that goes through a Canadian Environmental Assessment Act review in our office, we establish a public registry through an electronic database.

    Through that there is an electronic list of records we keep. When people ask us for documents from the public registry, we provide them the list of records, not the actual documents, because we are bound by the access to information and privacy laws. Rather than provide all these documents and go through the access to information and privacy laws, we hold them in abeyance and we give the requester the list of records of all the things we have in relation to making our decision. That list of records goes to the individual upon request. The individual then is told to pick the things they want from this list of records, and we will provide them to them in accordance with access to information and privacy.

    In this particular circumstance, the requester didn't understand the legal implications of the two things. I think when our staff members explained it to him, there was some confusion in terms of understanding those legal requirements. In any event, Mr. Lavoie did provide to us the list of items he wanted from our list of records. We then took all those items and checked with the third parties to ensure we were not in violation of access to information. Once that information was screened and cleaned, if you like, for third-party interests, those documents went to Mr. Lavoie.

    That's not a timely process. In this particular circumstance with Mr. Lavoie, it wasn't a timely process. What we're trying to do is improve the manner in which that is done. Still complying with the legislation under section 55 of CEAA, complying with the access to information process, and complying with the requester to try to get some timely information, we're working and we're trying to improve that on a regular basis, in terms of providing access.

    At the time, as well, our office was in Burlington. We didn't have an office in northern Ontario. So all this was done out of our Burlington office. That was where the public registry was established physically. Mr. Lavoie was asking for it out of Manitouwadge in northern Ontario. That's a fair distance, in terms of doing that communication in an effective way. Now we have eight offices throughout Ontario. That's one way of improving our client service.

    Mr. Julian Reed: Thank you.

    The Chair: May I ask a question? I have to absent myself because of a debate in the House in a couple of minutes.

    Mr. Nadeau, the coalition, on page 4 of its brief, makes a statement to which you probably would like put on record your reply, because it is fairly far-reaching, in a way. In summary, it says the following:

    “The Department of Fisheries and Oceans has an internal, untimed, non-legal, behind-closed-doors practice of not triggering assessment on even major projects until it concludes that prevention and mitigation of the environmental effects cannot work.”

    You probably have an explanation for that. Would you like to put it on the record? It is from page 4, the third paragraph.

    Mr. Richard Nadeau: I have to say this allegation is completely false. DFO has no, as it's called here, “internal, untimed, non-legal, behind-closed-doors practice of not triggering assessment on even major projects”.

    As I explained earlier, DFO's main mandate is to protect fish and fish habitat. We do focus our work, our effort, on protecting fish and fish habitat. What is called here internal, untimed, and non-legal is actually the mandate that is given to us by the Fisheries Act to protect fish habitat. As I explained before, after we've done everything possible to protect fish habitat, if there's residual impact, we do not hesitate for one second to trigger CEAA. Our records show that we have triggered CEAA in all cases where we concluded there would be residual fish habitat impacts. I just can't understand why this allegation has been made.

º  (1655)  

    The Acting Chair (Mr. Julian Reed): Thank you.

    Mrs. Redman.

    Mrs. Karen Redman: Thank you, Mr. Chairman. I just want to go back to something Mr. DeBruyn said.

    My ears really perked up when you were giving the answer to the specific case referred to us earlier. You were talking, it sounded to me, as if people went through the Access to Information Act to get their information. Was that really what you were saying?

    Mr. Edwin DeBruyn: To clarify, section 55 of the Canadian Environmental Assessment Act sets out the manner and circumstances by which a federal department would maintain--it doesn't give specific guidance, but it does require our responsible authority to maintain--a public registry that would be accessible by the public to review documents relating to the environmental assessment.

    As we all know, once the federal government gets possession of records, they are accessible to the public through an Access to Information Act process. The Canadian Environmental Assessment Act sets out the criteria: we must have a public registry in place.

    The public registry has a lot of information that is third party: we ask a number of people; they write us letters; and it's all on the file. Before someone asks us for that information, yes, we have a public registry and under the Canadian Environmental Assessment Act we do provide that information. But we have to make sure that under the Access to Information laws we are correct in releasing information we have in our possession to others, making sure third parties are protected in that provision of the document. It's hand in glove, but it's a two-step process. They ask through section 55 for the access, but we also have to make sure we go through a review of that information before it goes out, through the Access to Information Act process.

    Mrs. Karen Redman: We may be saying the same thing. One of the things the minister said when he came before this committee was very clear: that for anything that was available through the Access to Information Act, nobody would be charged for going through the process to receive that information. Maybe you're saying exactly the same thing, but in a different way.

    Mr. Edwin DeBruyn: Yes, under the Access to Information Act process I think there's some money required for marginal costs associated with it. But with the public registry we have not been asking for funds or telling people they have to pay. I think originally, when we first got into this, we said “Well, before you can do section 55”--this was in the early stages when we were learning about how the Canadian Environmental Assessment Act worked, and we were a little confused about how it all worked--“here's a list of records. Now you have to go through the Access to Information Act process in order to get this, and it will cost you $5. You have to give $5 to the crown, and then we'll give you this information.”

    We've changed our processes iteratively since 1995 in order to be more correct. We're getting guidance from the Access to Information Office, in the commissioner's office and various other places. All the federal departments keep getting guidance through the agency. As I said earlier, we're trying to improve in terms of the timing and the manner in which we get that information out as quickly as we can.

    Mrs. Karen Redman: One of the issues we kept hearing as a recurring theme was that as much as the electronic registry was looked at by some people as an improvement, there were other witnesses who came before this committee saying they valued the paper registry. The minister has said we will retain both, and he's also said that nobody will be forced to go through the Access to Information Act to get information under CEAA; if it would be available through the Access to Information Act process, it will then be made readily available to the public. That is one of the amendments you will see the government bring in under Bill C-19.

»  (1700)  

    Mr. Edwin DeBruyn: I understand that, but even when I hear the manner in which you're stating it, it still causes me some concern in terms of the understanding that's taken away--that DFO will not have to tell people to go through the Access to Information Act process in order to get their information.

    I'd like to be clear that concerning the information we provide to people who ask for it through the public registry process under CEAA--the information that goes out to the public in relation to that, whether it's electronic or paper--we still have to make sure we screen it to ensure we're in compliance with the Access to Information Act. We don't tell them to go through the Access to Information Act process, but we're still bound to make sure it's respected.

    Mrs. Karen Redman: So in essence it's an internal function of DFO--asking if it's appropriate to release third party information--but it's not done as a block to proponents or public participants who want that information.

    Mr. Edwin DeBruyn: You're right.

    Mr. Richard Nadeau: The information we receive from the proponents for a review belongs to the proponents. It happened a few times in the past that proponents have refused us the right to make their information public. In the two cases I've been involved with where the situation was similar we have just told the proponent, “If you don't want your information to be made public, it's over for us. We cannot deal with you because we have to make this information public, because the information that needs to be put on the registry is all the information that is used for decision-making. If the proponent's report is part of it, it has to be there. The public has to know what the information is about.”

    Mrs. Karen Redman: Thank you.

    Mr. Richard Nadeau: And we have to clear this information through the Access to Information and Privacy Acts, as Ed just said.

    The Acting Chair (Mr. Julian Reed): Thank you, Mrs. Redman.

    Manitoba's Future Forest Alliance came as witnesses here and pointed out their belief that there's a fundamental contradiction between some certain sections of the act, sections 5 and 15 on the one hand, and sections 46, 47, and 48 on the other hand.

    What I have outlined for me here is that under sections 5 and 15 a project is a very limited matter, while under section 46 it is the whole project, the project as a whole. I'm wondering if either of you would be prepared to comment on this observation by Manitoba's Future Forest Alliance.

    Mr. Richard Nadeau: Section 46 speaks to the prerogative of the Minister of the Environment to take decisions. We cannot speak to this issue.

    But with respect to section 5, which is the section on the trigger, and section 15, which relates to scope of project, referred to in the memoir here that was produced by the Future Forest Alliance, having read the memoir I'd say again, going back to one of my earlier comments, that the Department of Fisheries and Oceans is not responsible to approve projects, but to authorize harmful alteration, disruption, and destruction of fish habitat.

    This brief speaks to what DFO, as per section 15, were responsible for at that time on the project, which were the crossings of the road leading to a mill. This is the way we've been doing business.

    To use an example, if the mill itself would have required an authorization under the Fisheries Act, and again based on the provision of CEAA, we could have not separated the different bridges and the roads leading to the pulp mill because it would have been seen as a splitting of projects.

    In this specific case the project for DFO's regulatory process was the stream crossings and the impact on fish habitats on these stream crossings, while the alliance has more concern about the actual activity of harvesting the forest, which is a provincial responsibility.

»  (1705)  

    The Acting Chair (Mr. Julian Reed): I realize that doing an assessment like this and broadening the scope of it could take you into virtually unlimited territory, couldn't it, if you go beyond the bridge, and you get into the forest, and then you're into the mill, then you're onto the roads, etc.?

    But we had one witness, the Canadian Hydropower Association, who urged us, when an environmental assessment was triggered, to please include certain elements above and beyond the immediate structure and impact on the particular area. They urged us all to consider as well the positive impacts, such as the fact that there'd be no greenhouse gas emissions from this plant, etc.

    Do you see that as a possibility for inclusion? Can that be stated in an assessment?

    Mr. Richard Nadeau: The experience and expertise in environmental assessment, as with anything else, is moving along as people gather more experience and see, from monitoring and following up on mitigation or monitoring programs on other projects, that there might be other components.

    On the way CEAA is being applied, I could use the example of a hydroelectric project. It could be anything from... Normally because it's right into our business--the level of assessment--if it doesn't make it to a panel review, it will be at least a comprehensive study. We deal a lot with members of the hydroelectric associations. They make those points to us at every... It goes beyond that.

    When they create a reservoir that actually augments the carrying capacity of fish, they would like us to consider this reservoir as compensation for destruction of downstream fish habitat. That gets very complicated, in terms of calculations. The fact is that in most cases the creation of reservoirs results in an increase in mercury level, which in many cases makes fish inedible for 15 to 25 years. It's kind of a difficult approach to take.

    In terms of bringing in the notion of what could be called credit for producing energy without generating greenhouse gases, I think the system is going there slowly, but we're not there yet.

    The Acting Chair (Mr. Julian Reed): Does anyone else have a comment?

    Having received that very valuable information, on behalf of the committee I'd like to thank you both for being here and testifying this afternoon. I apologize for being a little late myself. That sometimes happens.

    Thank you both for coming.

    Mr. Richard Nadeau: Thank you very much. It has been our pleasure.

    The Acting Chair (Mr. Julian Reed): The committee is adjourned until 9 a.m. tomorrow.