[Recorded by Electronic Apparatus]
Thursday, November 30, 1995
.1105 
[English]
The Chairman: Order.
The Standing Committee on Natural Resources will commence hearings pursuant to Standing Order 108(2) on a study of the environmental regulations in the mining sector.
We have with us today, from Fisheries and Oceans, Mr. Parson.
A voice: Mr. Parson is not here today.
The Chairman: It has been changed. Perhaps you could introduce yourselves to the committee. You can commence when you're ready.
Mr. Gerry Swanson (Director General, Habitat Management and Environmental Science, Department of Fisheries and Oceans): I am Gerry Swanson, and I am the director general of habitat management and environmental science with the Department of Fisheries and Oceans. With me are Mr. Steve Burgess, the head of our habitat policy section, and Mr. Dave Robinson, the head of our habitat operations group for central and western Canada. Also at the table this morning is Sue Daly, representing Transport Canada.
We're here to talk about two pieces of legislation: we're here to talk about the Fisheries Act and Ms Daly is here to talk about the Navigable Waters Protection Act. We're at your convenience in terms of which you would like to hear about first.
The Chairman: That's completely up to you, whatever you feel more comfortable with.
Mr. Swanson: Perhaps I might start then.
We have distributed through the clerk a presentation deck, which will be the basis of my remarks this morning with regard to the Fisheries Act. We have also made available through the clerk copies of our fish habitat management policy, which might be of interest to you.
I propose to talk this morning about the Fisheries Act and how it relates to the protection of the fishery and the habitat on which the fishery depends. I'd like to draw some links between the Fisheries Act and the Canadian Environmental Assessment Act.
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I understand you're interested in mining, of course, and I'll talk about the Fisheries Act regulations and how it relates to mining. We have had workshops and dealings with the mining industry. We'll talk a bit about what we understand the mining industry's concerns are with regard to the Fisheries Act regulations.
We have some remarks to make on some of the policy initiatives that are currently under way within the department to address these kinds of concerns. I'll conclude by speaking a bit about the relationships we have with provincial governments in this particular area.
The Constitution provides the federal government with authority for sea coast and inland fisheries. The federal government has expressed its wishes on how it will exercise this responsibility through legislation passed by Parliament in the Fisheries Act. The Fisheries Act is a broad act, but it encompasses, among a number of other things, the protection of fish and the fish habitat on which the fish depend. That act applies to all marine and fresh water in Canada.
We are concerned, in our particular part of the department, about the protection of habitat. We're concerned about it because habitat dictates the long-term capacity of Canada to continue to produce fish for Canadians.
Under the Fisheries Act, ``fish'' includes all life stages of finned fish, shellfish, crustaceans and even marine mammals. It's a very broad definition. Marine mammals, of course, include things like whales and seals. They are defined for the purposes of the Fisheries Act as fish. Fish habitat is defined in the act as all areas which are frequented by fish and on which the fish depend directly or indirectly for spawning, rearing, feeding or migration.
The administration of the Fisheries Act is split between two departments, although the Minister of Fisheries and Oceans is accountable to Parliament for the act. DFO administers all portions of the Fisheries Act except for the provisions of the act that are referred to as the ``pollution prevention'' provisions of the act. Those sections are administered on behalf of the Minister of Fisheries and Oceans by the Department of the Environment.
You might be interested in some of the habitat provisions. There are provisions in the Fisheries Act to ensure that fish have safe passage in migration routes. There are provisions that require that fishways be constructed if there are obstructions in water bodies. The act provides the Minister with the authority to ensure that there are sufficient flows for fish below water control structures. Where you have intakes, it's a requirement that there be necessary fishguards or screens to prevent the impalement and entrainment of fish. Fish cannot be destroyed according to the act by means other than fishing.
These sections of the act are very important, but the section of the act that gets the most attention is section 35 of the Fisheries Act. That's the section of the Fisheries Act that prohibits works or undertakings that result ``in the harmful alteration, disruption or destruction of fish habitat''. There is a prohibition against such undertakings unless, as provided for in subsection 35(2), the proponent has an authorization from the Minister of Fisheries and Oceans.
As I mentioned, that is the section of the Fisheries Act that appears to gain the most attention when we are talking to the public and to bodies outside of Fisheries and Oceans about the habitat protection provisions of the act.
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There are further provisions in the act that have been outlined in the deck. The minister may request of proponents that they provide plans and specifications where it appears there could be harmful alteration or destruction of fish habitat or where it appears the provisions of the act administered by the Department of the Environment and related to the deposition of deleterious substances could be breached. Whereon receiving those plans and specifications the minister has reviewed them, the act provides the authority to order the modification, restriction or closing of an undertaking with the approval of the Governor in Council.
Just a brief word about the pollution prevention provisions of the Fisheries Act: I understand officials from the Department of the Environment have appeared recently before the committee - or may be scheduled to in a short while - so we do not propose to address the pollution prevention provisions in any detail. Indeed, officials of the Department of the Environment are in a better position to talk to the details of those provisions than we are.
As I mentioned earlier, the pollution prevention provisions - these are the provisions of the act dealing with those things that come out of pipes and things like that - of the act are administered by the Department of the Environment. They complement quite nicely responsibilities the DOE has for environmental protection in a general sense.
There are regulations made under the Fisheries Act, and those sections of the act prohibit the deposit of deleterious substances in waters frequented by fish unless authorized by regulations. For purposes of your deliberations, there are regulations that have been passed under the Fisheries Act known as the metal mining liquid effluent regulations, and they deal with mine operations. We work very closely with the Department of the Environment because of the particular expertise we have with respect to fish in terms of advising them on the composition and the subject matter of regulations.
I might just turn now to the policy for fish habitat management. The full details of that are set out in the policy paper, which I left with the clerk. I'd like to summarize some of its provisions because it is this particular policy that provides a kind of guidepost for our staff within DFO, for provincial people we work with, and also for proponents who may be conducting works or building things that could have the possibility of impacting upon fish habitat.
The broad overriding objective of the policy is that there be a net gain of the productive capacity of fisheries resources within Canada. That's to be done through three goals: fish habitat conservation, which is keeping what we have; fish habitat restoration, which is work to restore habitats that have been previously degraded; and finally, fish habitat development, which means looking for opportunities where fish habitat does not exist, perhaps to create a new habitat.
The guiding principle of the conservation goal is referred to as the no net loss principle. This is a principle that really is the one we focus on very closely. It's the one that the companies and proponents that we deal with focus on as well. Essentially, this means that if a proponent is building something or is doing something near water, that construction activity should not result in.... Well, if it results in the destruction of fish habitat, we deal with the proponent to attempt to ensure that the habitat that is destroyed as a result of a particular activity is replaced in some way, so that building something and building something again and again does not lead to the eventual disappearance of fish habitat in the country. As we go along, we're attempting to replace habitat that is affected by activities.
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With respect to fish habitat and mining, given the physical nature of mining activities and its magnitude, the mining industry has the potential significantly to harm habitat. This includes all phases of mining, from exploration, the development of mining properties, the day-to-day operation of mines, right through to closure. So within the Department of Fisheries and Oceans we are concerned about mining activity.
Mills and things that are associated with mining activity also are regulated under the metal mining liquid effluent regulations.
I mentioned that we have dealings with the mining industry through the Mining Association of Canada. The concerns that have been expressed to us and that we are attempting to address are the following: an inconsistent application of the fish habitat provisions; slow approval processes; concern about whether our decisions are based on sound science or not; and, finally, overlap and duplication with provincial decision-making processes.
With regard to the overlap and duplication issue, the Fisheries Act provides for the protection of fish and fish habitat that supports recreational, commercial, and aboriginal fisheries. There is no provincial legislation that specifically protects fish habitat, although there often is provincial legislation that might deal with questions of land use, water use, and so on. There may be provincial permitting that proponents might have to be involved with in order to proceed.
In order to avoid overlap and duplication, DFO works closely with provincial regulatory agencies in project review and approval processes. We attempt to establish, across the country, one-window approaches to issues. So if an individual or company requires an approval through a provincial permitting process, that process is used to deal with fish habitat concerns. We would work very closely with the provincial approver in order to ensure that fish habitat concerns are met.
Through a number of policy initiatives, we are attempting to address some of the other concerns that have been raised. These initiatives are a directive recently approved by the minister on the issuance of subsection 35(2) authorizations. We're working on a framework for the determination of harmful alteration and exactly what we mean by that term and to ensure that others who are working with the Fisheries Act have a common understanding of it.
We have developed, or are developing, conservation and protection guidelines, and also guidelines with respect to compensation. In this context, compensation is not monetary. Compensation is actual development of fish habitat as compensation for habitat that may be lost as a result of some activity or construction issue.
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The objectives of all these initiatives are to promote national consistency and fairness in the administration of the act and a sound scientific foundation for that.
The presentation deck goes on to explain in some detail what is involved in these policy initiatives. I don't know that I will necessarily go through those in detail, but there's a page there on the conservation and protection guidelines, outlining what the purpose of those guidelines is and what's included. There's another page on the section 35 authorization directive, its purpose and the matters that are included within that directive, and also one on our harmful alteration and destruction document and our compensation guidelines, which is an initiative we are just recently embarking on. The purpose is to provide clear guidance for the determination of appropriate compensation measures. That's a work in progress, which has a considerable road to go yet.
If I might just turn to federal-provincial relations with regard to fish habitat management in terms of our arrangements for management of the fishery, I might talk to that, firstly. We have longstanding arrangements with several of the provinces in Canada regarding the management of fisheries. These arrangements are in place primarily in inland provinces, that is, the prairie provinces, the province of Ontario and the province of Quebec. In those provinces the provincial government administers the fishery under federal legislation - that is, the Fisheries Act.
With regard to habitat management, in those same provinces the province administers day-to-day habitat management activities, but there has not been at this stage any formal delegation of that responsibility.
Finally, DFO is active in managing fisheries in coastal areas and where you have anadromous species, such as salmon, which spend part of their lifetime in the ocean and part of their lifetime in fresh water.
As you know, all federal departments have gone through or are going through substantial reviews of their programs. Under DFO's program review it has been proposed that we would be reducing our involvement in fresh water activities and fish habitat management with a corresponding increase in our oceans involvement. Our plans would include a formal delegation of fresh water fish habitat management to those powers that currently manage their own fisheries under federal legislation.
That initiative was announced in the Minister of Finance's budget of last February and was confirmed this month at a meeting in Charlottetown of federal and provincial ministers with responsibilities in fisheries. The joint release that came out of that meeting indicated the desire of both the federal and provincial governments to be moving ahead with the delegation issue.
From our point of view, this approach that I have outlined has a number of benefits, including the potential for the up-front integration of fish habitat concerns in provincial land and water planning processes, integrating federal and provincial decision-making, a reduction in overlap and duplication, a fostering of the one-window approach, more timely decision-making and the capability to have a local management responding to local needs.
Mr. Chairman, that concludes my prepared remarks. I and my colleagues are at your disposal for any questions you might like to ask of us.
.1130
The Chairman: Is there one more presentation after this one?
Mr. Swanson: We could do that if you wish.
The Chairman: Maybe we'll ask questions of you while they're fresh in our minds...not that any of us would ever forget anything. We'll start with Mr. Deshaies.
[Translation]
Mr. Deshaies (Abitibi): I want to thank the interpreters for getting here just in time to translate my questions.
My first question is directed to Mr. Swanson. In terms of the three goals established by the Department - conservation, restoration and development of the fish habitat - do you have many problems with the mining industry? In trying to reach your objectives, is the mining industry a problem?
[English]
Mr. Swanson: As I indicated, there is significant potential for individual mining projects to impact on fish habitat. That varies from project to project. The success we have in achieving our goals varies from project to project and from company or proponent to proponent.
From time to time there are cases where significant negotiation is required between the company and the department and where the impacts on fish habitat may be significant. We then get into debates with the company on the value of the fish habitat that could be affected by the project in relation to what are perceived as the significant economic benefits of the project.
However, in the final analysis the discussion will lead to an understanding, in by far the majority of cases, that will allow the project to continue and at the same time recognize the concerns we have regarding the protection of habitat.
[Translation]
Mr. Deshaies: On average, how long does this assessment process for the mining industry take, on a case by case basis? Of course, you can say that the assessment of major mining development projects takes longer because they have more significant impacts on waters. However, on average, for projects which impact only streams or small waterways, how long does it take, after the application is made, for a permit to be granted?
[English]
Mr. Swanson: I believe that varies significantly. There are small issues where it could be a question of days or weeks before we have resolved the issue. There are others where we're dealing with major impacts and large developments, and the discussion could go on over a period of months.
[Translation]
Mr. Deshaies: You also mentioned that, over the last few years - and this might be included in the new restructuring policies of the Department - you have contemplated delegating responsibility for the administration of the Fisheries Act to the provinces, which might lead to the establishment of one-window approaches across the country.
Is that an official policy? You said that, in some cases, provinces already administer these policies unofficially. Is there a real will to go this route? I am talking about assessment of simple cases which have very little impact on the waters and the fish habitat.
Do you think it would be beneficial to let those provinces which already have policies regarding the decision-making process administer the federal act so that the approval time is shorter?
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[English]
Mr. Swanson: I think it's with precisely that philosophy that the minister has indicated his desire to move ahead with formal delegation of decision-making to provincial governments.
A large number of cases - in fact by far the majority of the cases - relate to issues strictly of a local nature, where the provincial government is dealing with other issues and is probably in a much better position to resolve the matter and to regulate it than the federal government.
The federal government's interest is more in the area of major developments that could have trans-boundary implications, either nationally or interprovincially. Certainly the view of the minister is that those cases that are strictly of a local nature can be managed quite effectively through provincial processes.
[Translation]
Mr. Deshaies: So, you think that it will soon be suggested to delegate the jurisdiction over the federal act to provinces, in some specific cases, which will probably not involve oceans, but relatively unimportant waterways.
[English]
Mr. Swanson: I believe that is so. I put a caveat on my response, though, in terms of use of the word ``jurisdiction''.
As I mentioned previously, the jurisdiction for sea coast and inland fisheries is vested in the federal government. We have arrangements across the country in many of the provinces where provincial governments have received authority to manage the fishery under federal legislation. The proposal we are talking about for fish habitat would be a similar proposal, where authority for decision-making would be vested in a provincial authority, but the authority would be exercised under federal legislation, the Fisheries Act.
Mr. Deshaies: That's it for now.
The Chairman: Mr. Strahl.
Mr. Strahl (Fraser Valley East): Thanks for coming. I have a few questions.
The Department of Fisheries and Oceans is going through a significant downsizing in personnel and budget. Is that going to have a positive or a negative effect on approval times for mining industries?
Mr. Swanson: Downsizing presents a challenge for us, and we are looking for new ways of doing business. Of course one of the approaches we're talking about is to attempt to reduce overlap and duplication through closer cooperation with provincial governments.
We are also looking at efficiencies that can be developed within the organization. For example, in the province of British Columbia, where by far the majority of our habitat work is done, we have recently amalgamated our fish habitat protection service with the salmon enhancement program in the region. The salmon enhancement program is community-based throughout the province, and we think with the combination of those two organizations, we're going to be well placed to manage the habitat responsibility in B.C.
Mr. Strahl: You mentioned the provinces frequently have their own, say, effluence standards or emission standards that apply to the mining industry, and I think you mentioned the need for national standards is one of the reasons the Fisheries Act is kind of riding herd on that.
If the provincial effluent figures are in line with the federal, why doesn't the federal just back off and say okay, it looks as though you have a good regulatory regime and a good set of standards?
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I think in B.C.'s case there are often very tough environmental standards. I'm from B.C. and I think a lot of B.C. people want that. But many people would argue ``Why don't the feds back off then because we have good standards? They're as good as or better than yours. It's just another slowdown in the process. We'll either approve it or disapprove it, but leave it up to us.'' Why don't you do that?
Mr. Swanson: I'm a little out of my field of expertise here. The mining effluent regulations are administered by the Department of the Environment. However, I do know it is working toward entering into agreements with provincial governments. Those agreements provide that the provincial department will become the focus for inspections and the administration of effluent standards. I'm aware that agreements of this nature have been signed in B.C. and I think in some of the prairie provinces as well.
The purpose of these agreements is to avoid the situation where an individual in a green shirt representing the federal government comes around in the morning, and somebody wearing a brown shirt representing the provincial government comes around in the afternoon and the plant authorities are escorting different people around the plant or preparing separate reports. So DOE is certainly working toward systems - and some are in place - where one common set of reports would be required, and one principal focus of officials would do inspections.
The federal regulations, of course, would still remain. It would be fine if the provincial regulations were more stringent than the federal regulations, but the federal regulations would continue to be in place. They would provide the base you're talking about, not only in that particular province but in other provinces where no such regulations could exist.
Mr. Strahl: From a regulatory point of view or an industry point of view, they would argue that if the Fisheries Act gets involved.... And the Fisheries Act, as I've mentioned in this committee before, is like dealing with a higher power, and I'm not talking the 12-step program here. All industry people walk on egg shells as soon as they think about its power. They say the Fisheries Act is a special problem because as soon as somebody does something in the Fisheries Act all the powers of the environmental assessment review automatically come tumbling down.
Is that true? We had a specific case Mr. Stinson brought up at Tuesday's meeting, where everything else was signed off on a mine approval but they just had to wait for the Fisheries Act to do its thing because it had the final say in the whole thing.
Mr. Swanson: If we're talking about the ongoing operation of a mine where a mill has been established, there are regulations that govern the nature of the effluents that come out of that particular mill. Unless there's some unusual occurrence within the plant and there's a spill or something, where the tolerances that have been built into the Fisheries Act or regulations have been exceeded, the operation continues.
There are, of course, other situations where new mines are proposed that could have significant impact on fish habitat because water is diverted out of streams, lakes are used for tailings disposal, or any number of reasons. The Fisheries Act requirements are quite clear that you don't destroy fish habitat unless you have an authorization from the Minister of Fisheries and Oceans.
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Having said that, though, officials of the department work very closely with provincial approval agencies and through provincial processes. I wouldn't exactly describe it as lock step, but at least the two approval processes are operating together. This is certainly the case in British Columbia, where there are processes that have been established under provincial legislation for the establishment of new mines, and where we work through the provincial approving agency to ensure that fish habitat concerns are met. I can't say, though, our concerns with respect to the fishery are met at exactly the same time as others are met in every case.
Mr. Strahl: The mining industry would argue that the Fisheries Act is such a powerful and dominant player in this overall scheme and takes such precedence that it's hard to get anything done until it gives its blessing. There have been suggestions that instead of just a Fisheries Act we should have a national water policy. Because water is used for all kinds of things in the country - human consumption, mining, fish habitat - some people have suggested it might be better to have an overall water policy rather than having the Fisheries Act be the signee when it's hard to get its signature. In your opinion, would that make regulatory approval quicker or just more convoluted?
Mr. Swanson: I'm not sure what the water policy might cover. It would obviously have to require both federal and provincial inputs, because of course water is a natural resource. Except for a special case such as the fishery we've been talking about, the regulation and management of natural resources is in the hands of provincial governments.
Mr. Strahl: Right now - except for subsection 35(2), the authorization permit from the minister - you have to just wait for that. There's no getting around it. Almost anything is a deleterious substance to a fish habitat. If your gum boots are dirty...it's almost that bad in some places.
People who propose this argue that a comprehensive water policy would say mining development is also a legitimate use of water - it almost always involves water - and we'll have regulations in place. Fish are important, but so are humans, economic development, social development, and economic development for aboriginals. All these things are part of an overall water policy. That way, fisheries wouldn't be the be all and end all, they would be part of the overall water policy. Is there a danger in that? Do you think that would speed things up, or is that just wishful thinking?
Mr. Swanson: I don't know whether it would speed things up or not. I think it would be desirable to have policies in place that recognize this multiple-use dimension of water, and indeed any resource. But I think we would have to look very carefully to make sure the policy was written in such a way that environmental standards weren't lowered in some way and the requirements to protect fish habitat weren't diluted in some way.
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I guess one of the things we have to recognize in looking at individual proposals is that we're faced with individual proposals day after day, year after year. The argument in many cases is that this individual proposal's impacts are quite minor, but if one were to add up the impacts of that proposal with the proposal we dealt with yesterday and the one we're going to deal with next week, the cumulative impacts become quite significant. So those kinds of things have to be reflected in any policy approach you would have.
The Chairman: Mr. Reed.
Mr. Reed (Halton - Peel): Is there any avenue of appeal for proponents, in terms of impact, when a position is taken in the field?
Mr. Swanson: The ultimate authority in these cases is the minister, and that particular appeal element is outlined in the policy document we've made available today.
Mr. Reed: I say that because in my own experience the whole concept of dealing with the fishery has been very subjective. When I see terms like ``harmful alteration'' and ``no net loss'' and ``cold water fishery'', I see subjective opinion in almost every case. Your attitude towards those things almost depends on which college or university you've graduated from.
I would suggest that while proponents in the field, such as the mining industry, are perfectly prepared to work within a known regulatory process, somehow when there are challenges to positions taken, they should be able to be heard and heard quickly and dealt with. As I said, I speak from very personal experience on this. I have heard different opinions expressed from the same ministry and I have seen interpretations made that could be and were in fact challenged by independent biologists, for instance, somewhere else.
I put that to you, that need for the ability to have a clear-cut avenue of appeal and to be able to present another side of the story that will be heard in an objective way.
The other question I wanted to ask is whether government agencies are exempt.
Mr. Swanson: I'll answer the last one first because it's probably the easiest to answer. The answer is no, they are not exempt. The act is binding on the crown. We do have situations where proponents may be instruments of the federal government and where they may be instruments of provincial or local governments, and in all cases the act applies to them.
Your comments on the consistent application of the act are well taken. We recognize that those are concerns and we are attempting to address them through the various policy initiatives I indicated earlier.
We are involving representatives of industry groups, not just the mining industry but other industry organizations as well, in the development of those policies so that we can have, as much as we possibly can, a common understanding of what the requirements and the principles are and that the requirements are based on a sound scientific basis.
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Mr. Reed: I have one last brief question. How do we reconcile what nature does naturally versus what man does? If humans commit the same act as nature, humans are subjected to charges under the act and of course it's pretty hard to charge God.
I hope there's a growing recognition that we are all creatures of nature despite our ability to make decisions and so on. I hope the ministry will recognize, through the application of the act, that what is often considered a deleterious act or negative thing may happen equally in a natural situation and perhaps should be subject to a different set of parameters when it comes to assessing what has taken place.
Mr. Swanson: Sure, it gets recognized that a stream or whatever is a living, evolving kind of thing. We've all seen from the air instances when you can see that a stream at one point in time went one way and now it goes another way through simple evolution.
Years ago we had in many instances situations where slides occurred into rivers, blocked them up and dammed them up as well. In some of those cases that was thought to have been a natural kind of occurrence we would have to live with because, as you pointed out, we don't know where to go with those natural occurrences.
However, sometimes when you look at these things that may appear to have natural causes you may find the hand of man has been involved in some way. I think particularly of situations where logging practices have had to change over the years, where logging went right down to the stream or lake edge. Long after the logging companies may have left you're confronted with a slide situation into the water body because there's no longer any vegetation to hold back the earth. So we have to work with proponents and industries and those kinds of views so that the practices that are in effect no longer lead to those kinds of occurrences. Indeed, that's what we seek to do, not only through the mining industry but with other industries as well.
Mr. Rideout (Moncton): It's seems as though the thrust of section 35 and a number of things under the Fisheries Act automatically trigger ministerial involvement. Have you explored the possibilities of actually just establishing some regulations, and rather than triggering all of the ramifications under section 35 maybe to have some regulations so they'd know just what has to be met and then go about it? I realize the minister doesn't make the decision, but perhaps this could involve the minister. Perhaps the same idea could apply even under section 36. I realize there's a philosophical approach of whether you regulate that way or do you just trigger and then force the proponent to prove that everything they're going to do is going to be hunky-dory.
Mr. Swanson: I think there are a couple of approaches, one that we're quite active in and another one that's under consideration. The first is the development of guidelines that we work on through industries and others. One example of this is stream crossing guidelines that we have developed with the pipeline industry. We work on these guidelines that we endorse, and these guidelines indicate that if you do a stream crossing in a certain way you're not going to run afoul of the Minister of Fisheries and Oceans or whatever. In fact if you do it that way you probably don't even have to come and talk to us. That's one approach. We're trying to expand that approach as much as we possibly can, whether it's culverts or pipelines, so that if you do it a certain way you're okay. Just go ahead and do it.
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Another proposal, and no decision has been made on this yet, is that legislatively we somehow attempt to capture or categorize projects that are considered to be major projects, which could just by their nature affect fish habitat. Those projects would be subject to an automatic review, and others of a smaller, more local nature would not necessarily be subject to the same review.
Mr. Rideout: Could the same approach under section 36 apply too, as far as establishing some criteria? We've heard it said before that even walking through a stream obviously causes some problems and you might be in contravention of the legislation. Could you establish regulations or policies, whatever, that would permit certain materials to eventually end up in streams and try to have some certainty rather than starting and proving your case again?
Somebody from the committee across the way, in environment, would be saying that it should be just the opposite and we should be forced to prove that everything we do won't cause any harm. I'm just thinking the other way, of having some clear regulations and then going ahead.
Mr. Swanson: We have examined from time to time the possibility of developing regulations under what is now section 35 of the act that would in some way capture in advance this kind of pre-authorization issue you're speaking of. We find that we're stymied every time we look at it because the situations we're confronted with and the projects we have to deal with are so varied that they defy advance description in a regulation. It's a very real problem for us. It's something we've looked at and tried and we run into that kind of a wall every time we do it. It's for this reason that we're pursuing the guideline kind of approach. Indeed, I suppose it's a variation of what you have suggested, this attempt to define these major projects that would require the automatic review with others not necessarily being necessary to scrutiny.
Mr. Rideout: I wanted to know whether there's any possibility of establishing time lines as far as making decisions with respect to anything that eventually gets going up through the stream.
Mr. Swanson: We're certainly aware of the desire of people who are proponents of development to have some idea when they start something as to when they're going to reach the end of the regulatory road. It's for that reason that government departments in general, and not just Fisheries and Oceans, are in the process of developing service standards that will state the kinds of expectations a proponent might have in terms of the performance of the department.
I don't know how successful we're going to be in doing that in real concrete terms, but it is an issue we're looking at.
Mr. Strahl: One of my questions has to do with a follow-up on the idea that major initiatives would require a more detailed analysis than minor ones. Of course one of the big problems with mining is that it frequently is a major initiative. You're talking tens and maybe hundreds of millions of dollars.
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I understand Australia has a major projects facilitation unit or program. If there's a big mining project or a big pulp mill project or whatever, I think it's a cabinet committee that works for their prime minister's office to ensure a yes or no is given quickly. Of course, that's the big problem: Whether it's yes or no, I don't care; just tell me before I waste several years of my life.
Has there been any consideration given to anything like that? Maybe it should trigger a more detailed environmental fisheries assessment, but there should be some process. For example, Voisey Bay is coming up and you want to make sure this is done in eighteen months. All the departments will work to make sure this happens quickly. Is there a process by which you say something like this is a major process?
Mr. Swanson: With the particular project you've mentioned, I'm certainly aware that we are working with both other departments in town and with the provincial government so that it's quite clear from a regulatory point of view who has what responsibilities and who is taking the lead in terms of the review of the project.
Mr. Strahl: And who is that?
Mr. Swanson: We're having those discussions now.
Mr. Strahl: Okay.
Mr. Swanson: We haven't gotten there yet, but it's being narrowed down to two or three departments. That includes DFO because from what we know of the project at this point in time it appears there could be fish impacts with respect to the project.
One of the difficulties with this approach, though, is that often the projects themselves are evolving kinds of beasts. The company knows it's going to go in and it's going to have a mine. But it doesn't know when it starts out whether the headframe is going to be here or over there, or whether the bridges to get to the project are going to be over this part of the stream or someplace else. It evolves, and there's a requirement that it be a bit of an iterative process - we were talking about that word. If you need a bridge, where are you going to put it? We're going to put it there. That's an area that goes right over some critical fish habitat, so can you move it a hundred yards upstream or downstream? Could you build it at a different time of year to avoid these consequences? That kind of discussion has to continue to go on as the development proceeds.
Mr. Strahl: Within the mining industry, though, I think there's acceptance and understanding. I don't find mining people saying they want to dig up the salmon streams to see what kind of havoc they can wreak. What they're saying is that they know the rules, they know they can only be in the streams during certain months, they know what a salmon spawning ground looks like too. As you know, most of them wouldn't even propose such as thing. What they are saying is that overall, they need the approval done. They wouldn't go in in the middle of winter and start tromping around, but they could set things in motion once they had the approval.
I guess what I'm looking for is a response to the idea of whether or not it would be beneficial to say okay, let NRCan take the lead on this, if there's something like a big project coming up that's worth a proposed $500 million. NRCan can then take this file, making sure it doesn't go to the bottom of the other guy's desk, because there are some timeframes here that we're going to meet, doggone it, because this is important.
Mr. Swanson: Rest assured that NRCan is quite concerned about that, and we deal with them frequently on various projects. The decisions that have to be made in terms of Fisheries Act approvals are decisions of the Minister of Fisheries and Oceans, though, and not of the Minister of Natural Resources.
Mr. Strahl: I know that. The problem again, though, is that the regional guy approves it and then it goes into the stack and gets nowhere. I'm just talking about whether or not it would be beneficial to have a major project approval process that says we give the file to - I don't care who it is, it could be DFO and likely wouldn't be Environment - one minister who has the job of getting this through quickly or reasonably, not in three or four years but in eighteen months.
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We give it and then that person, doggone it, is going to make it happen, and it's not going to be a case of we'll wait for the environment minister, who waits for the fisheries minister, who waits for the.... It's away we go.
Mr. Swanson: I recognize the point you're making. I believe the systems that are in place recognize that point, to a certain degree. For example, as far as environmental assessment under the new federal statute, there is agreement in advance of that environmental assessment as to which federal department will be the lead department in coordinating that assessment. In many cases, there are two or three potentials. That is being done.
The Environmental Assessment Act that we're talking about is a relatively new piece of legislation. It was proclaimed just less than a year ago, last January. There are some teething pains we're going through with it. That's certainly one of the issues that we're working on. That's the federal dimension of this problem.
There's also a federal-provincial dimension and that's the other thing we're working on. We're working toward consolidating that as well, through agreements with provincial governments on synchronization of review processes so that if you have a federal requirement for a review panel and you have a provincial requirement for a review panel it's the same panel or a joint panel. Instead of having separate meetings you might have four people meeting, two who are provincial and two who are federal, and they meet at the same time and it's done that way. That is certainly what we're working toward and I think it's along the lines of what you're suggesting.
The Chairman: I'll just ask a couple of quick questions here. You indicated that fish habitat and inland fisheries are under federal jurisdiction. Is that correct?
Mr. Swanson: That's correct.
The Chairman: Do the provincial governments of the prairie provinces regulate the fishery now by legislative delegation as far as limits and all of that? How is that done?
Mr. Swanson: The approach up until now has been for provinces to manage their fisheries under regulations made under the Fisheries Act. There are regulations in place that are called the Manitoba fishery regulations. Those are federal regulations made under the federal act.
The Chairman: And the Saskatchewan fishery regulations....
Mr. Swanson: Exactly.
The Chairman: And so on.
Mr. Swanson: Yes.
The Chairman: Are these regulations largely prepared by the provincial authorities and then brought to the federal Parliament? Is that it?
Mr. Swanson: That's correct.
The Chairman: Okay. And are you thinking of doing that with the habitat as well?
Mr. Swanson: Generally, yes. We are proposing with regard to habitat that the federal government remain responsible for the development of the broad, overall policy framework, that the authority to make decisions under the act would be delegated to provincial ministers and that we would sign agreements, but before we sign that delegation over we would have an agreement with the province that in the exercise of its delegation it would be guided by policies approved by the federal minister.
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The Chairman: Is it possible because the fisheries regulations are in place that you could take out an area within a province and delegate the responsibility or aspects of the responsibility for fisheries to local people as opposed to the province? It could be done?
Mr. Swanson: That's conceptually possible.
The Chairman: Okay.
Mr. Wood (Nipissing): I have a quick question.
The Fisheries Act is of course an old piece of legislation. It has been around probably since Confederation. I just wonder what you're doing to bring it in line with the 21st century, where you're at and what progress you're making.
Mr. Swanson: You're correct, sir. I believe the first Fisheries Act was passed in 1868. It has been amended from time to time. I believe the most recent amendments were passed in 1991.
At the moment there is an exercise going on within the department to prepare amendments to the Fisheries Act. I do not know the specific date, but I understand the minister will be bringing those amendments to Parliament shortly.
Mr. Wood: Is this going to relate to what we're doing?
Mr. Swanson: Without getting into the specifics of what is in the amendment package, the entire act is affected by the rewrite.
Mr. Wood: As we do this study, I've been asking the same question, and I'll ask it of you. It deals with overlapping. With the restructuring, as you say, that's going on in Fisheries and Oceans, do you see a time in the future when maybe your department will be out of the environmental regulations business and it will be left to the Ministry of the Environment or maybe Natural Resources?
Mr. Swanson: Certainly we would see ourselves not being involved in many local kinds of problems such as we now are. Whether at the federal level we're talking about the Minister of the Environment or the Minister of Fisheries and Oceans is another question.
The work we do is very closely linked to questions of management of the fishery, but one cannot dispute the fact that decisions we make to protect the fish habitat, the environment in which fish live, have consequences beyond fisheries protection.
Mr. Wood: Thank you.
The Chairman: I believe that's all.
Mr. Thalheimer (Timmins - Chapleau): Mr. Chairman, may I ask some questions?
The Chairman: Please do it quickly, because we have another presenter here, and I know they probably wouldn't want to miss out on the opportunity for lots of questions too.
Mr. Thalheimer: When did your department take over the administration of the Navigable Waters Protection Act?
Mr. Swanson: I believe the next presenter will be able to talk to that more specifically. The decision to amalgamate the coast guard and Fisheries and Oceans was made just within the past year, and I believe it was as of April 1 of this year that the commissioner of the coast guard began to report to the Deputy Minister of Fisheries and Oceans.
Mr. Thalheimer: I ask that because two days ago I asked that same question when the Minister of Natural Resources was here, and she and her people indicated it was still under Transport.
Mr. Swanson: It's an evolving file and the decision has been made. Maybe the decision was made subsequent to her appearance.
Mr. Thalheimer: Has the mining industry in particular been notified of this? Because they would be making applications still to Transport, I would assume.
Mr. Swanson: I believe the people who deal with navigable waters issues are not changing. They're the same people, so I don't believe we're going to be running into that particular difficulty.
Mr. Thalheimer: Okay, that's all. Thank you.
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The Chairman: Thank you very much, Mr. Swanson, for providing us with your comments.
We can now move on to Ms Daly. You may start at your convenience.
Ms Susan Daly (Director, Navigation Protection Program, Department of Fisheries and Oceans): Thank you very much, and good afternoon.
I'm here on behalf of the assistant deputy minister of the marine group with Transport Canada, who is Mr. Michael Turner, as you may know. He asked me to appear before you because my current responsibilities include the administration of the Navigable Waters Protection Act on behalf of the fisheries and oceans minister. So the questions we've just heard will be answered, I hope, in my presentation to you.
I would like to talk a little bit about Navigable Waters Protection Act, in terms of its purpose, how we administer it, and more specifically some of the areas this act might impact in the mining industry.
The primary purpose of the NWPA is to protect the common law right of all Canadians to navigate on navigable waters in Canada. It is not specifically related to either mining or the environment, but strictly to navigation. I will later demonstrate that it does link into the environmental assessment process, but the act itself does not speak to those two items.
It's applicable on all navigable waters within Canada, both fresh and marine, within the territorial limits of the country. So it's a very far-reaching act. Because of its influence on inland waters, it's of much interest to the mining interests.
The act is divided into three parts. I'm going to focus on just one of those parts, because I think that's the one that will be of the most interest to you. Briefly, part one refers to the approval of construction on, over, through, or beneath navigable waters. Part two speaks mostly to the removal of obstructions. There are some incidental parts in there that speak of the dumping of substances in navigable waters, but those parts of the act are rarely used. Part three speaks of regulations. Right now, the regulations primarily relate to cable ferries. Therefore, it has very little influence in your area of interest.
Part one has a process we must follow when we have certain types of work in, over, under, or through navigable waters. Some of those types of works are named. This is the source of many of the approvals that the mining industry has to attain from the Minister of Fisheries and Oceans. I refer specifically to work such as bridges and dams. Bridges, of course, are to access the site. Dams are often used to create a place where tailings can be disposed.
Not all other types of works require a formal approval. There is a provision in the act allowing us to look at the degree of interference with navigation, which is often considered to be not substantial. But for the named works, unfortunately, we do not have that capability.
Once we have determined that a formal approval is required, we then trigger the Canadian Environmental Assessment Act. Until January of this year of, course, we also triggered the environmental assessment and review process guidelines order, which we commonly refer to as EARPGO.
So we have been involved in environmental assessments for some six years, as a result of a Supreme Court decision, whenever there is a formal approval under part one. Those formal approvals take two forms. The first is a substantial interference with navigation. The second is a substantial interference to navigation that been commenced or completed without a formal approval. So either of those two can trigger the Canadian Environmental Assessment Act.
The Environmental Assessment Act, of course, requires then that the process under that act is followed prior to the granting of a permit under the NWPA. Therefore, it can extend the process. It doesn't always. It depends on the type of work we're looking at.
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The act is fairly simple, as you can see. It relates to one thing, the protection of navigation for Canadians. It does get us into some very complex issues, but it does not necessarily get us into an environmental assessment. As I said at the outset, it is not legislation that specifically relates to mining; however, it does impact on it.
As with the Fisheries Act, we too are interested in streamlining our process, and we're looking at two ways of doing that. One is through a review right now of the act, which we hope will result in some amendments to the act, bringing it in line, for example, with the Canadian Environmental Assessment Act and taking out some of the nuisances, such as the requirement to advertise the intentions twice. The second way we are looking at streamlining the application of this act is through potential partnerships with interested provinces.
I guess I would close by saying that the bottom line in the Navigable Waters Protection Act is whether a waterway is navigable. If the waterway is not navigable, of course the act will not apply, and this is why on occasion you will find that a bridge crossing a waterway will not require an approval. It is because the waterway is deemed to be not navigable.
I believe this causes some confusion in the clients and proponents who seek approvals. We do, however, work in close cooperation with all of our proponents to try to assist them in planning their works. As Mr. Swanson was saying earlier, we may also request that a bridge be placed elsewhere or be placed higher or be marked in a certain way so as to mitigate its effects, both under the legislation and for the people who are navigating in the area.
That, gentlemen, is the NWPA.
The Chairman: Thank you very much.
[Translation]
Mr. Deshaies: Thank you for your presentation, Mrs Daly.
Of course, since the bill is relatively simple, people can wonder why, in many cases, companies have to waste so much time waiting for a permit to put a large pipe over a small stream. However, you mentioned that the process is being streamlined and that you are thinking about delegating to other jurisdictions, either at the departmental level or at the provincial level, the responsibility to decide whether waterway is navigable or not.
How come, in the past, companies had to wait several months before being told such a simple thing as: No, this is not a navigable stream?
[English]
Ms Daly: There is a series of answers to your question.
There are some works that we can process through the NWPA fairly quickly, if they are not named works and if they are not substantial interferences to navigation. However, for those named works - bridges is the example you have brought to the table - we are automatically required to go through the formal approval process, and that formal approval process triggers the appropriate environmental assessment legislation, which may extend the overall application period.
This depends largely on where the work is located, what types of concerns there are, and the overall environmental effects of that work. These things all being variable, we will have a variable length of process.
[Translation]
Mr. Deshaies: What you are telling me has a lot to do with the wording which is used. If you put a large pipe over a small stream, you call that a bridge. As soon as you do that, the assessment process is automatically triggered.
It might be a good idea to change the wording, so that for things as simple as that, companies don't have to go through the assessment process. In the case of a river, I suppose it's important to undertake an analysis.
Could we not change the wording, so that the act would not apply and an application would no longer have to be made in such simplistic cases?
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[English]
Ms Daly: Yes, I understand your concern. I think the question you are bringing to me is in relation to the question of the navigability of the water. In other words, can we determine that a stream is navigable as we determine that a river is navigable? I will tell you that we are guided in our decision as to the navigability of a waterway by many factors, including who is using the waterway and previous court decisions in respect of navigability.
The answer to your question with respect to the wording is that the question of navigability is not defined in the act. The act simply seeks to protect the right to navigate, and that right exists with or without the act. The frustration you feel is warranted because the question of navigability can become quite complex and in some cases will extend to what you and I might consider to be small waterways. Unfortunately, small waterways are also navigable, and therefore the right exists.
[Translation]
Mr. Deshaies: In some cases, a small stream, say five, six or ten feet wide, can be deemed navigable, because the act is not specific enough; in some circumstances, this is rather stupid.
You said that tailings ponds were considered as reservoirs created by the dams. Why are they included in the act? These are not natural waterways; these dams are used only to hold back tailings. Why are they included?
[English]
Ms Daly: When I referred to tailings and dams, what I was referring to was the construction of a dam on a navigable water for the purpose of creating a reservoir in which tailings might be placed. Likewise, dams might be constructed for other purposes related to the operation, such as if a head of water were required, for example. The act requires that when a dam is built on a navigable water, irrespective of the use of that dam or the purpose for the construction of that dam, a formal approval is required.
[Translation]
Mr. Deshaies: So, you are not talking about dams for the tailings that sometimes accumulate in some places. This is not what you were talking about.
[English]
Ms Daly: No, I was attempting to give you an example of the type of work you might need an approval for. You would need an approval for a dam no matter what purpose you were constructing the dam for. Obviously if the tailings were not in navigable waters, the act would not apply.
Mr. Deshaies: Merci.
The Chairman: Mr. Strahl, could we give Mr. Reed a go here? He has an appointment.
Mr. Reed: I need to get this out.
The Chairman: Let him get it off his chest.
Mr. Reed: Thank you very much.
Why did you abandon the traditional test of navigability 20 years ago?
Ms Daly: I know of no such abandonment, sir.
Mr. Reed: If there was no abandonment, then there must be still a traditional test.
Ms Daly: And that would be, sir?
Mr Reed: Commercial use, historic commercial use, and the possibility of commercial use in the transport of goods and services.
Ms Daly: Yes, sir, as well as some court cases which also guide us.
Mr. Reed: There was the 1983 court case specifically on Bronte Creek in Ontario, where there was a request made to declare the bed of Bronte Creek as belonging to the crown, and that would make it navigable. The judge said that he considered it navigable from the upstream fence to the downstream fence but no further. It was done for real estate purposes. But the judge also included a couple of cautions in his case. He said there's no countering evidence, so he accepted a concocted case from the Ministry of Natural Resources in cahoots with a private landowner who wanted a real estate development.
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As a result of that, I was taken to the Supreme Court on a similar charge. We didn't exactly lose that case. I should point out that the river my farm is located on was considered non-navigable as recently as 1960, when the Government of Ontario purchased the riverbed from us in an expropriation for highway widening, but twenty years later it was considered navigable.
I inquired with the archives here in Ottawa about judges' rulings on that river particularly. I was very kindly phoned back by some people who did some serious work. They found the index concerning the court case in 1905 that declared the river non-navigable, but the files were gone and never found.
So I want to know why this was abandoned. The business of who is using is the most subjective kind of nonsense I've ever heard.
The Chairman: Paddling your canoe up and down the river.
Mr. Reed: And touching bottom.
If people trespass, they're considered users, according to this.
Ms Daly: Well, sir, that's a difficult series of questions for me to answer. Some of them are very legal.
However, it's my understanding that ownership of the bed of the water does not confer ownership of the water column itself, and the right to navigate exists if it is a navigable water. I confess, though, that your frustration is felt by many, because the determination of navigability becomes a very difficult determination in many cases.
Usually if a waterway had been determined at some time in the past to be not navigable, unless there had been a significant change to that waterway we would not reverse that decision. Likewise, if it had been found navigable we would treat it that way unless there had been a major change.
I will give you an example, if I may. If a dam creates a reservoir, the reservoir obviously has changed the waterway, and the question then comes to us, is that reservoir now a navigable waterway? Of course, with that change we would therefore review that determination.
In respect to your question about your specific waterway, I would be most happy to look into that for you personally.
Mr. Reed: I would be most happy to have you look into it.
Ms Daly: I will do that for you.
Mr. Reed: We're not dealing with something that is totally site-specific here. There is general malaise across the country concerning this issue. It's not specific to me.
It seems to me this is another one of those smoke-and-mirrors, subjective things that people with a certain set of interests interpret one way and people with another set of interests interpret another way.
Right now, legally, I can't fence my cattle.
A voice: And if you let anything get into that stream....
Mr. Reed: I suppose if the cattle stop on the way, I'm in trouble. A lot of farmers experience exactly the same thing.
I will get in touch with you on that. I appreciate that.
A voice: Mr. Chairman, is that free legal advice?
The Chairman: Oh, he will pay dearly for that.
Mr. Strahl.
Mr. Strahl: Not wanting to end up in the Supreme Court, I'll be careful.
Was the transfer of the Navigable Waters Protection Act from Transport to Fisheries a result of the policy review? Is that what spawned that - ``spawned'' being a fisheries term? Is that what kind of forced that issue?
Ms Daly: The Navigable Waters Protection Act has been traditionally, or since about the 1960s in any case, administered by the Canadian Coast Guard. The Canadian Coast Guard was transferred, almost in totality, to the Department of Fisheries and Oceans.
The legislation itself requires incidental amendments in order for it to be transferred to the Department of Fisheries and Oceans, and I believe that will be coming forward shortly.
Mr. Strahl: Did this act and the people who work under it take part in the government's policy review over the last year or two?
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Ms Daly: Are you referring to the program review?
Mr. Strahl: The program review, pardon me.
Ms Daly: Yes, all of our activities were reviewed.
Mr. Strahl: How many people are involved in the administration of this act? Is it a big thing?
Ms Daly: No, sir. It involves in the neighbourhood of 25 to 30 people across the country.
Mr. Strahl: For the whole country.
Ms Daly: Yes, sir.
Mr. Strahl: Are they necessary? Could the work not be done by other fisheries officers, or is it just such a different line of work that you need that expertise? I'm not sure if this is an archaic act. Because an investigation triggers an environmental assessment and all the other things that go with it, is it necessary that this continue? Could it not be done by other fisheries officers? When the green-shirted people are coming down with their checklist, could they just look around and say navigable or not navigable? Is it necessary?
Ms Daly: I'm going to answer your question in two parts, if I may. The first is that every application does not get us into environmental assessments. There are only four parts of the act that do that. The impression that every time someone builds something in a waterway causes an environmental assessment is simply not so. A good 80% percent of our work does not trigger an environmental assessment.
As to whether others can carry out the functions, the answer I would give you is yes, it's entirely possible that others could carry out the administration of the act, which is one of the items we're looking at and negotiating with the provinces right at the moment, dependent of course on their willingness. But we're very early in those stages now.
Mr. Strahl: I would think that would be something they'd want to look into.
The last question concerns the bigger problem of the grandfathering idea in the mining industry, where they start a project that takes several years, make applications, dump the Navigable Waters Protection Act into somebody else's department, and the changes themselves create a hassle, changing regulations, changing jurisdictions, different ministers in charge, and so on. What protection does the mining industry, which is what we're supposedly investigating here, have to make sure that changes don't suddenly undo their good work?
They did everything they could. They jumped through all the hoops and did all the right things, but then there was a change and now they either had to go part way back or way back and start again. It's basically time and often quite a bit of money too. What are your thoughts on a company that starts a process being allowed to continue under the set of criteria they were given when they started?
Ms Daly: In respect of the application of the NWPA and its triggering the Canadian Environmental Assessment Act, that act does provide some sections for the transition from the old environmental assessment process to the current environmental assessment process. It in fact continues the old environmental assessment process to the completion of the current activity. So there is that.
Mr. Strahl: Mr. Swanson, do you have a comment in general on that concern they have?
Mr. Swanson: I can talk specifically about the regulations that have been made under the Fisheries Act, the mining effluent regulations and a similar situation with regulations that were made under the Fisheries Act with regard to effluents from pulp and paper mills. In both cases those regulations were brought in to apply to operations that were established after the passage of the regulations in recognition of the fact that there may have been longstanding mining operations or pulp and paper operations in place and that would be a very onerous burden to apply to them suddenly. These regulations were brought into place in the 1970s, though, and are now in the process of being updated.
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The pulp and paper effluent regulations were updated two or three years ago. In the update, the regulations were revised to apply to all pulp and paper operations. But even in doing that, it was recognized that the application should not occur overnight. It was again done in a phased-over period, which recognized that some of the mills would have greater difficulty meeting the new standards than others. That was recognized in the approach.
I understand there is a review of the mining regulations at the moment. I'm not certain what stage that's at.
Mr. Strahl: That review is by whom?
Mr. Swanson: These regulations are administered by the Minister of the Environment, by the Department of the Environment, and we cooperate with them in that from a technical point of view. What I don't know is what stage they're at specifically and whether they've reached a stage where they would be contemplating the kind of approach that was adopted when the pulp and paper effluent regulations were modernized.
Mr. Strahl: Okay.
I have one last question. ``Building an Innovative Economy'' is the name of an initiative by the industry minister, where he said he was going to try to streamline regulations in six key areas, one of them being fisheries, as it applied to the mining industry. In your presentation here, you mention several things you are currently doing to try to improve the regulatory process. Is this your part of what the industry minister is looking for? Is this what you're going to give to him as your contribution to the regulatory streamlining?
Mr. Swanson: Yes, those would be the kinds of approaches we would be proposing for that kind of initiative.
The Chairman: Mr. Rideout.
Mr. Rideout: Is there any possibility of developing regulations that can give some certainty to people, rather than investigating each process?
Secondly, what are your time lines, as far as responding to people who have an application?
Thirdly, what's the coordination between you and DFO as far as permits are concerned and working together in order to expedite a development possibility?
Ms Daly: The first question I will answer. It relates to the regulations.
As with the Fisheries Act, the problem with developing regulations is that the number of factors that are determined for the determination of navigability or the determination of whether a work is a substantial interference are so varied that to put them down in regulations is very elusive. I believe the regulations would be just as unsettling as the current practice is, because they would be so unspecific.
Mr. Rideout: Is there a possibility of having a definition included in regulations for navigability?
Ms Daly: What we have now is an administrative definition, which we apply, as your honourable colleague was indicating, where we look at whether commercial interests are using the waterway, how long they have been using it, whether it's viable for commercial use, and so on. We do have that. We are not currently considering putting that in legislation. However, in our review of the act the door is not closed on any suggestions.
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As to your second question, which I believe related to time line, we have a fairly diverse answer to that. A major work, for example a bridge, can be approved in as little as four months, depending on the geographic location and depending on the concerns in the area and the environmental assessment process we must follow. Typically, I think you would find that our applications are processed within about six months, barring those that require a major environmental assessment.
I am sorry, what was your third question?
Mr. Rideout: The third one was on the coordination between you and Fisheries and Oceans as to expediting or handling a project.
Ms Daly: Whenever we have a major or formal approval under the sections that trigger the Environmental Assessment Act, we have always worked closely with Fisheries and Oceans to expedite the permitting process and will certainly continue to do so.
Mr. Rideout: How long...? I guess you can't tell because each one has to be evaluated on its own.
Ms Daly: Each one is very different and depends very much on the environmental assessment we are obliged to undertake.
Mr. Rideout: Right. Does every application to you trigger an environmental assessment?
Ms Daly: No, sir. We receive approximately 2,000 applications. Only 200 of those receive formal approvals.
Mr. Rideout: Thank you, Mr. Chair.
The Chairman: Are there any more questions?
Hearing none, we want to thank all of you for coming from Transport Canada and the Department of Fisheries and Oceans to provide us with information on our study. Once again, thanks very much for coming and sharing with us.
The meeting is now adjourned.