Affidavit Of James F - DOC

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					                                                         Court File Number: T-452-06


                     IN THE FEDERAL COURT OF CANADA
                                     TRIAL DIVISION


Between:
               LES AMIS DE LA RIVIÈRE KIPAWA incorporated as
                         1162209036 QUEBEC INC.

                                                                            Applicant

                                          and


              THE ATTORNEY GENERAL OF CANADA and
THE MINSTER OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA,
THE MINISTER OF FISHERIES AND OCEANS, THE MINISTER OF TRANSPORT,
            and DAVID S. LAFLAMME CONSTRUCTION INC.


                                                                         Respondents


                         AFFIDAVIT OF JAMES F. COFFEY




I, James Frederick Coffey of Davidson, Pontiac County, Province of Quebec, MAKE

OATH AND SAY, as follows:



  1. I live at # 3 Ch. Esprit in Davidson, in the Province of Quebec and have lived at

     this address for at 14 years.
                                                                                      2


2. I am an internationally known adventure tourism operator.             I specialize in

   whitewater rafting, canoeing, kayaking, river rescue, wilderness first aid and water

   safety. Attached hereto as Exhibit “A” is a true copy of my resume.



3. I have been professionally involved in the whitewater recreation and adventure

   tourism industry since 1984, working as a safety kayaker, kayak instructor, canoe

   guide, canoe instructor, rafting guide, swiftwater rescue instructor, company

   manager and company director/owner.           Since 1985 The“whitewater based”

   adventure travel industry has provided me with full time world wide employment

   until the present.



4. I first gained familiarity with the Kipawa River seventeen years ago and its tourism

   potential, recreational value and environmental significance in 1987. My first

   experience was on a private trip. I was managing a rafting company and was

   approached to organize a raft to run the river with the idea of assessing its

   commercial potential. It was one of the first times a raft had run the river, and

   certainly the first time a commercial outfitter had scoped it out for its commercial

   viability. Back then, the river was more commonly known to kayakers as a Portage

   at Le Grande Chutes was formidable/impassible with a raft at that time. Although

   I did not return to the Kipawa River for many years my most significant lasting

   memory of that first journey was running the river at Laniel. That rapid stood out

   in particular contributing to the river’s “commercial” value.
                                                                                    3




5. I currently own and operate Esprit Rafting Adventures Inc. (“Esprit”), incorporated

   under the laws of Canada since October 2 1996 (#330168-9). Esprit operates

   whitewater based adventure tours on a variety of rivers in Eastern Canada.



6. I am the Director and owner of Esprit Whitewater Worldwide. Currently Esprit

   Whitewater Worldwide is under the same incorporation which sells and operates

   whitewater based adventure tours in Canada, the USA, Mexico, Costa Rica,

   Ecuador, Chile, Argentina and India.



7. I am the Director of the Whitewater Intensive Leadership Development School.

   (“W.I.L.D.”) which is a world renowned school for whitewater guide training

   which provides elite level training in 6 disciplines in Canada, the USA and

   Mexico.    The disciplines of instruction include whitewater rafting, canoeing,

   kayaking, riverboarding, swiftwater rescue and wilderness first aid. Graduates

   receive internationally recognized certification in each discipline. More

   importantly they receive experience and decision making skills to assess and

   manage risk. The goal is to for them to develop into professional guides who take

   on the responsibility of safeguarding the lives and property of their guests. These

   skills are essential to their career as guides, managers and company owners if they

   are so inclined to continue in the industry.
                                                                                     4


8. I am the Director of Rescue 3 Northeast, and an Instructor Trainer with Rescue 3

   International. Rescue 3 International (based in Elk Grove California) has been the

   world’s leading provider of Swiftwater Rescue Training since its inception in

   1979. Rescue 3 International conducts courses in over 26 countries world wide.

   Swiftwater rescue training was born from the shocking number of professional

   rescue personnel suffering injuries/fatalities in the late 1970’s and 1980’s. Rescue

   in this medium was not very sophisticated back then. Since that time Rescue 3 and

   its cadre of instructors worldwide have dedicated years of training and instruction

   to emphasis the need for “successful” rescue, where at least the rescue team returns

   intact. To reach the goal of successful rescue, Rescue 3, and its instructors, place

   emphasis on risk analysis and scene safety. Once this analysis is complete then

   and only then is the scene declared a viable rescue site.       Previously trouble

   occurred when rescue personnel would arrive on scene and “react” without a

   proper risk assessment of the accident site. I spend a considerable amount of my

   time and effort teaching user groups (my clients) how to make site assessments and

   then use specialized techniques to execute the rescue. Courses such as the

   Swiftwater First Responder, Swiftwater Rescue Technician, and Advanced

   Swiftwater Rescue Technician are recognized by the National Fire Protection

   Association (NFPA). These courses are considered the minimum standard for

   professional whitewater guides and are very popular with private/recreational river

   users. My expertise in whitewater navigation safety and training is sought out by

   various private and government organizations and agencies. I provide rescue

   training specifically related to whitewater safety for a wide base of clients
                                                                                 5


   including the following: The Ottawa Fire Service, Madawaska Kanu Centre,

   Outward Bound Schools, National Outdoor Leadership Schools (NOLS),

   Dartmouth University, Mc Master University, Canadian Forces Base Petawawa.,

   Water Survey Canada, Environment Canada, as well as public enrollment and

   contract courses for EMS, Fire, Search and Rescue, as well as the commercial and

   private whitewater recreation sector.



9. I work as a consultant for some of the world’s most well-known international

   whitewater adventure travel companies including Expediciones Chile and Earth

   River Expeditions. My involvement with them encompasses product development,

   risk management and guide training.



10. Gougeon Insurance (“Gougeon”) is one of the few insurance providers in Canada

   that provides liability insurance coverage to the majority of commercial river

   outfitters nationwide. I have been recognized by Gougeon as "a leader in the

   whitewater industry, an expert in whitewater safety, swiftwater rescue and

   adventure tour risk management."



11. I am registered as an Emergency Medical Technician (EMTB # B1467037) with

   the NREMT (National Registry of Emergency Medical Technicians) The National

   Registry of Emergency Medical Technicians is an American Organization that

   provides testing and accredation for Emergency Medical Personnel in

   approximately 40 of the 50 states. The National Registry of Emergency Medical
                                                                                    6


   Technicians (NREMT) was first established in 1970. The NREMT mission is to

   provide a valid, uniform process to assess the knowledge and skills required for

   competent practice required by emergency medical professionals throughout their

   careers and by maintaining a registry of those with valid certification status. The

   organization has established, implemented and maintained uniform requirements

   for the certification and recertification of emergency medical technicians. The

   NREMT has also been involved in numerous national projects (USA) and its staff

   participates on major national (USA) committees, playing an active part in the

   ever-continuing process of improving standards of emergency medical services

   and personnel.



12. My experience with whitewater navigation includes being the captain of 4

   Canadian Rafting Championship teams and I have represented Canada with 4 top

   10 finishes at the World Rafting Championships in 1995, 1996, 1997, and 1998.



13. My company, Esprit, has been operating whitewater rafting tours on the Kipawa

   River since 1995. In 2005 my operation took over 200 people down the Kipawa

   River at Laniel. This operation includes 12 river staff plus 3 support staff for a

   team of 15 employees. On that particular weekend we managed only 56 people

   over the same time period on the Ottawa River. In total Esprit has taken

   approximately 500 people down the Kipawa River, 40% of which were in 2005.
                                                                                         7


14. I am intimately familiar with safety considerations, risk management, logistic

   issues, economic loss and potential impact that the proposed modifications to the

   water control structure at Laniel will likely impose on the adventure tourism

   industry and will address each of these factors below.



SAFETY

15. The International Scale of River Difficulty is a common and internationally used

   system to rate the level of risk and difficulty of moving water on a sliding scale

   from least difficult to most difficult. Class I is the least difficult and characterized

   by gentle moving water, moving sequentially up to Class VI which is the most

   difficult, hazardous and extreme. Attached hereto as Exhibit “B” to my Affidavit

   are descriptions of the International Scale of Difficulty for Running Rapids from

   various sources such as the American Canoe Association, Outward Bound and

   American Whitewater. The Kipawa River at Laniel and through the spillway can

   be considered a Class III rapid on the scale between I and VI. Class III, such as

   the section of whitewater in question would be best defined as “challenging.” This

   means a moderate amount of skill and familiarity would be necessary to navigate

   the spillway successfully. With proper equipment, some skill, knowledge and or

   guidance Class III is considered to be reasonable to navigate with little chance of

   major upset or loss. Class III is considered ideal for recreational and commercial

   activities as it presents challenge, excitement and rewards to participants with a

   minimal likelihood of upset. In the event of upset the likelihood of injury or
                                                                                       8


   serious loss is minimal. To the untrained eye, Class III presents a high perception

   of risk where in fact a low level of actual risk exists.



HAZARDS

16. As water moves down a grade it’s movement is defined by the laws of physics.

   There is no question that moving water is powerful, persistent, and predictable.

   The predictability allows users to choose a route to navigate free of hazards and

   dangers (called scouting) and upon descending the chosen route remain free of

   hazards and dangers. Some of the more common hazards and dangers include;

   strainers (trees or other obstacles that let water pass through them but entrap water

   craft and or their personnel), undercut rocks and or sieves, retentive

   holes/hydraulics. None of these common river hazards exist at Laniel. On the

   contrary, the rapid has a flatwater approach (allowing the paddler ample time to

   position themselves above the rapid), a high ceiling (so there is no height

   restriction) a sufficient flow rate (so as not to be too vertical to make contact with

   the bottom of the control structure) large, deep standing waves with no rocks or

   obstructions to hit in the event of capsize or passenger overboard) and a calm pool

   for the collection of swimmers and lost equipment in the unusual event of upset.

    I can see no greater hazard to participants while passing through the water control

    structure at Laniel than passing under any bridge or over crossing on any

    waterway.
                                                                                       9


RISK MANAGEMENT

17. From a commercial outfitters perspective the passage of the Kipawa River at

   Laniel poses very little risk to those descending provided they have a minimal

   amount of skill/guidance and are using basic safety equipment. As outlined above

   there are no common river hazards. The section is considered even more secure

   from a commercial stand point as river navigators have a clear view of the rapid

   from above the control structure to signal that the passage is clear and available for

   the next craft to descend. I believe the record speaks for itself. Literally 1000’s of

   canoeists, kayakers and rafters have passed successfully through this rapid and to

   the best of my recollection and that of others I have spoken with there is no

   memory of injury or loss suffered at this location.



LOGISTICS

18. Currently the practice of commercial whitewater operators, including Esprit, is to

   base themselves at the public launching point on Lake Kipawa which includes

   ample secure parking. From here they meet their guests upon their arrival at

   Laniel, provide a safety orientation briefing, sign participation agreement forms,

   provide and don safety equipment, provide on water practice and training, descend

   the rapid at Laniel and then continue downstream.



19. In the event the rapid at Laniel is no longer viable or becomes unsafe to run the

   logistics would be complicated as follows. Guests upon their arrival would receive

   a safety orientation briefing, sign participation agreement forms, be provided and
                                                                                    10


   don safety equipment, be provided on water practice and training, then returned to

   shore. They would then pick up and carry rafts 500m across a major highway,

   down a steep trail that currently does not exist then continue downstream below

   the Laniel Dam. Having large groups of rafters cross a public highway then make

   a steep descent to the river where no trail currently exists presents a higher

   probability of injury from either vehicle traffic, pedestrian collision or slips and

   falls on the banks of the river than from the descent of the rapid.



20. In 2005 Esprit operated two 5 hour trips per day on both Saturday and Sunday of

   the Kipawa River Rally.       Rendering the Laniel waterway unnavigable would

   complicate the logistics, delay the operation and diminish the trip quality. This

   would not support or contribute to the success of commercial operators promoting

   rafting on the Kipawa River. In the event that running the river at Laniel was

   made impassable or unsafe commercial outfitters would have to reconsider the

   viability of the excursion starting from Laniel.       Eliminating this rapid would

   require outfitters to reassess the complicated logistics and perhaps seek an

   alternative launch point downstream after a flatwater section above Buttonhook

   rapid. The logistical changes, highway hazard and other access to the river may

   require a re-evaluation of the value of running the upper section and potentially

   eliminating the running of two other significant rapids, that being the rapid called

   Rock n’Roll, followed by Tumbling Dice. At present, the easy access permits two

   full runs of the river on one day right now with the easy and quick start of running

   the dam. Preventing river navigation at the dam may mean starting river trips at the
                                                                                     11


   end of the flatwater above the Buttonhook Rapid. This scenario might be the next

   best commercial solution but there is no public launch point at the end of the

   flatwater and, in my opinion, would drastically curtail the duration and diminish

   the quality of the trip.    In the face of a deteriorated whitewater experience

   operators would have to reconsider their pricing and marketing of the river trip as

   an altered program and whether running rafting trips on the Kipawa would

   continue to be economically feasible at all.



IMPACTS

21. In 1997 Esprit took a handful of commercial rafters down the Kipawa River. At the

   time, the company’s gross revenue was less than $1000. In 2005 more than 200

   rafters participated with Esprit during the Kipawa River Rally and the resulting in

   gross revenue was in excess of $20 000.         To further exemplify the business

   potential of adventure tourism Esprit’s revenues from the time it began running to

   the present, are telling. Founded in 1992 Esprit grossed $50 000 in its fledgling

   year. In 2005 Esprit grossed more than $1,000,000.00 in revenues from its overall

   operations.   Esprit employs more than 35 people, including guides, safety

   kayakers, kitchen staff, office workers and other personnel required to run a

   whitewater adventure business.



22. The Kipawa River is currently one of the premier whitewater rafting rivers in

   Canada. It holds as yet untapped financial potential for current operators as well as

   future operators in sustainable eco-tourism for the area. Diminishing navigation on
                                                                                     12


   the Kipawa will diminish the whitewater experience and will not attract tourism to

   the area but hamper it. A safe runnable channel at Laniel, as currently exists, will

   support the growth of whitewater adventure tourism on the Kipawa and at Laniel.

   Rafting clientele, from my experience includes both local participants as well as

   travelers who come due to the river’s favourable reputation. For the local clientele

   there is no other form of commercial whitewater recreation within a 350km radius

   of Laniel. For those traveling distances to the Kipawa the loss of the rapid at

   Laniel would be devastating. More than 50% of Esprit’s bookings are repeat

   group organizers. In my opinion, they will likely not return for a reduced and

   inferior product if the run of the spillway is eliminated.



23. The experience currently offered to navigators of the Kipawa River can be

   described as follows. Although currently not as popular as the Ottawa River or

   Riviere Rouge, the Kipawa has currently surpassed in both user days and revenues

   Esprit’s operations on the Petawawa, Gatineau and Magnetawan Rivers. There are

   many aspects that render the Kipawa what can be considered a “World Class”

   whitewater destination. This includes the quality of its rapids (class 2 to 4+), its

   spectacular “Canadiana” scenery, the majesty of the Grande Chute waterfall and

   the relatively pristine nature of its shoreline. Part of what renders this whitewater

   navigation experience so spectacular is that the river trip starts and finishes with

   dramatic and different rapids. In other words, it is “book ended” by a spectacular

   start and a dramatic finish. The running of the river at Laniel, as previously

   mentioned, is not technically challenging, overtly hazardous or dangerous but it is
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   incredibly fun and exciting for everyone who has experienced it. Many clients of

   Esprit described it as the highlight of their trip. As the first rapid it gives them

   some enthusiasm and adrenaline for what lies ahead.



24. The rest of the river trip occupies approximately 4 hours. During the next 4 hours

   navigators run a series of other rapids, all of which are more physically hazardous

   and dangerous than but, for most, not as memorable as the first, gradient drop at

   Laniel. The trip then features a long and continuous rapid and spectacular finish at

   a rapid called Hollywood. This is a challenging and potentially dangerous rapid as

   it features exposed rocks and hydraulic “holes” that makes an equally fun, exciting

   and rewarding finish.    The excursion abruptly ends after “Hollywood Rapid”

   where the Kipawa River joins into lake Temiskamingue. With a spectacular start

   and spectacular finish, what lies in between complements the entire river

   experience. Eliminating one “book-end” necessarily impacts negatively on the

   entire experience.      Knowledgeable rafting customers search for whitewater

   experiences having a spectacular start and finish. A “book ended” river is ideal,

   rare, memorable to customers and its value is beyond measure. One of the lasting

   results I see among return clients of whitewater rafting, is a renewed or newly

   acquired appreciation of our lakes, rivers, heritage, culture and the environment.

   These excursions are as much about stewardship for our natural, wild and scenic

   areas and their importance as they are about splashing and crashing. Inhibiting this

   stewardship, devaluing the product, diminishing business, and complicating the

   logistics under the false pretenses of “hazards and dangers” (that in my opinion are
                                                                                     14


   miniscule or non existent) is simply an uneducated assumption about the risks

   attendant to running a Class III rapid, and is detrimental and wrong. Refurbishing

   the dam structure at Laniel in a manner that supports the historical navigation of

   the Kipawa River at Laniel will support ongoing recreational whitewater eco-

   tourism to this area.



25. I have reviewed the letter dated June 15, 2005 from consultant firm Tecsult Inc.

   (“Tecsult”), signed by Pierre Tremblay, addressed to Robert Laporte of Public

   Works and Government Services Canada (“Public Works”). This letter contains, in

   my opinion, an unsupported assumption that whitewater river running is

   “extreme.” Certainly running rapids at the Class V level of difficulty can be

   considered an “extreme” sport, however as can be seen from my explanation

   above, the level of difficult of the spillway of the Laniel Dam presents only a Class

   III level rapid. It is not “extreme.” Other rapids along the river are more

   challenging and dangerous, such as Rock n’ Roll, Buttonhook, Zipper and

   Hollywood. They are all Class IV rapids. The spillway at Laniel provides

   challenging but not extreme or dangerous conditions. The Tecsult letter contains

   no analysis or comprehension of relative difficulty of whitewater navigation,

   current river navigation in whitewater and the relatively safe practice of running

   whitewater practices by open canoeists, kayakers and rafters in whitewater rivers.

   This Tecsult letter, inexplicably, ignores decades of safe navigation at Laniel and

   contains no valid, properly researched or any logical reason why the decades old

   safe practice of navigation of the Kipawa River should be eliminated.              It
                                                                                       15


      apparently wrongly assumes that the practice never existed. Further I am advised

      by Doug Skeggs and do verily believe that the author of the Tecsult letter when

      offered video and other evidence to establish the history of safe navigation at this

      site, the author specifically refused to accept any such evidence or consider it in

      expressing an opinion to Public Works that navigation at this location is not

      possible. Attached hereto as Exhibit “C” is a true copy of the letter dated June 15,

      2005 that I have reviewed.



  26. I swear this Affidavit for purposes of the Application for Judicial Review brought

      by the Applicant’s herein and for no other or improper purpose.




                                                    )
SWORN before me in the City of Ottawa in
the Province of Ontario on this ___ day of          )
March, 2006
                                                    )

                                                    )

______________________________                      _________________________________
Commissioner for Taking Affidavits                  James Frederick Coffey