Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 5 - Evidence - November 22, 2006
OTTAWA, Wednesday, November 22, 2006
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-3, respecting international bridges and tunnels and making a consequential amendment to another act, met this day at 12:05 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: Good morning. We are pleased to have as witnesses today the mayor of the City of Windsor, His Worship Eddie Francis, and his legal counsel, Mr. David Estrin. Welcome to our committee. Please proceed with your presentation.
[Translation]
His Worship Eddie Francis, Mayor, City of Windsor: Honourable senators, as mayor of a Canadian municipality, it is a privilege for me to appear before the Standing Senate Committee on Transport and Communications, and I thank you for the invitation.
[English]
Thank you for taking the time to hear from us. I appreciate the opportunity to appear before you to discuss a very important issue to the City of Windsor as it relates to Bill C-3.
We have provided you with a copy of our PowerPoint presentation as well as a written submission that relates to the amendments we are seeking. I will try to make reference to both, respecting the time allotted, in order that there may be opportunity for questions and answers.
First, the issue as it relates to Bill C-3 from the City of Windsor's perspective deals with two provisions in the bill. Specifically, the provision of Bill C-3 in the interpretation section provides:
"international bridge or tunnel" means a bridge or tunnel, or any part of it, that connects any place in Canada to any place outside Canada, and includes the approaches and facilities related to the bridge or tunnel.
The underlying issue is what the intended meaning is behind the phrase "the approaches and facilities related to the bridge or tunnel." It is our respectful submission that some limitations must be placed on these words.
The term "approaches" cannot be interpreted to mean any roadway that leads to an international bridge or tunnel, no matter how far away it may be. I will walk you through that with our PowerPoint presentation. To elaborate on the point, it may be useful to look at Windsor's border and consider it in its historical context.
The second issue I will deal with is the obligation of the minister to consult with the local municipality.
I will first offer a bit of history. Windsor is, by far, the busiest border crossing in North America. It accounts for approximately 28 per cent of Canada's international trade. We have two primary international vehicle transportation crossings; the privately owned Ambassador Bridge, operated in Canada by the Canadian Transit Company; and the Detroit-Windsor vehicle tunnel, the Canadian half of which is owned and operated by the City of Windsor. We also have an underwater rail tunnel and a ferry crossing to Detroit, Michigan.
Of all Canadian municipalities, Windsor and its citizens are most uniquely affected by the situation of the border and border issues. In no other jurisdiction does local traffic co-exist and mix with international traffic in residential neighbourhoods or on city streets. This is an illustration of life in Windsor.
This slide shows the primary corridor to the Ambassador Bridge, some 12 kilometres away from Highway 401. For traffic to cross the international crossing, they must pass through a local community. They mix with residential traffic, neighbourhoods, communities and businesses. The next slide is a photo of local traffic mixing with international traffic at an intersection.
The same is true of the approach to the Detroit-Windsor tunnel. The next slide shows traffic in the evening hours. These are salt trucks heading to the Detroit-Windsor tunnel, again crossing residential neighbourhoods. Adjacent to that is the number one fire station in the city of Windsor.
As I stated in my introduction, one of our concerns is with the interpretation provision of Bill C-3.
Clause 5 of Bill C-3 allows the federal Parliament to use the federal declaratory power in section 92(10)(c) of the Constitution Act to declare international bridges to be works for the general advantage of Canada.
The minister appeared before this committee on November 8, 2006. Senator Phalen asked him:
I received correspondence from the City of Windsor, dated September 19, in which they outline their concerns that this legislation ignores the municipality in the decision-making process, even though the municipality will be directly impacted by any changes.
Can you or have you addressed any of the concerns of the municipalities?
The minister's response to the senator's question was:
At the outset I will indicate to you that of course this is federal jurisdiction.
That is the issue we are raising. The declaratory powers that are being applied to approach roads and to facilities is the issue with which we are concerned. It is a concern that we raise with you, but it has historically been recognized by Parliament. Parliament has recognized that the City of Windsor is entitled to require its consent to be obtained in the establishment or modification of border crossings through the city. Parliament has historically also required that private bridge and tunnel companies enter into agreements with the city to ensure that the city's interests and those of its residents continue to be protected.
Specifically, the legislation that has recognized this can be found in the 1921 act incorporating the Canadian Transit Company, the Ambassador Bridge, which states under section 10, c.57:
The Company shall not construct or operate, any of the works mentioned in section eight of the Act along any highway, street or other public place, without first obtaining the consent, expressed by by-law, of the municipality having jurisdiction over such highway, street or other public place, and upon terms to be agreed upon with such municipality, and failing such consent then upon such terms as are fixed by the Board of Railway Commissioners for Canada.
Moreover, section 17 of the 1927 act incorporating the Detroit and Windsor Subway Company provided for a vehicular tunnel to meet the same type of conditions. That act reads in part:
The Company shall not construct or operate any of the works mentioned in this Act along, under and over any highway, street or other public place, without first obtaining the consent, expressed by by-law, of the municipality having jurisdiction over such highway, street or other public place, and upon terms to be agreed upon with such municipality.
This historical precedence continued. In 1928 there was a subsequent agreement entered into as a schedule to "an Act respecting the Detroit and Windsor Subway Company." Again, the agreement specifically provided:
In the construction, maintenance and operation of the said tunnel or tunnels and approaches in so far as the same shall be within the City of Windsor all valid applicable regulations under the laws of the Dominion of Canada and the Province of Ontario or the Ontario Municipal Act or police regulations of the City of Windsor, including all traffic regulations, shall be complied with by the party of the first part, its successors and its assigns...
In our submission, Bill C-3 and the provisions that are being tabled whereby the minister will be provided the ability, as well as, through the operative clauses of the bill, the declaratory powers expanded so as to include approaches and facilities, are inconsistent with the case laws and inconsistent with the historical precedents of Parliament.
As a result, a narrow meaning must be applied to that interpretive phrase. The approaches and facilities relating to the bridge or tunnel must be specifically defined and cannot be broad. Otherwise, and as it currently reads, it would be an unlimited application of a declaratory power, which is inconsistent with the precedents as well as with our understanding of the federal state.
Unfettered use of the power could lead to a gutting of the provincial and municipal authority as it relates to local roads in our cities, towns and provinces. That is why past acts have included the provision that municipal consent be sought when talking about construction of facilities.
We do support this bill. There are a number of good elements in it. I have raised one concern we have with regard to the definition of approach roads and facilities. The second issue I wish to bring to your attention, which requires amendment, is the assurance that there is consultation with the City of Windsor. It is particularly important that the historic rights of the city be maintained given the private interests at play with regard to the construction of new facilities.
On November 8, the Minister of Transport stated the following:
The government has closely demonstrated its willingness to consider stakeholder input, and the House of Commons amended the bill during third reading in response to concerns raised by a municipal government.
The issue dealt with the federal government obtaining municipal input into the decision-making process for construction, alteration or change of ownership in an international bridge or tunnel.
This bill as amended includes provisions for the Minister of Transport to consult with other levels of government or individuals who may have direct interest in the matter.
While the city appreciates the minister's understanding that there is a need to consult with municipalities, the amendment as currently written does not reflect this need. Specifically, clause 15(2) stipulates that the minister should consult the local authorities or any interested party only if, according to the circumstances, he finds it necessary to do so.
As I mentioned earlier, not only is the declaratory power being expanded and the historical authority that has been given in recognition to municipalities being diluted, but also this discretion of power is now moved from the legislator to the minister. Of particular concern is the broad discretion of power that could lead to unfettered discretion, which could lead to arbitrary decision-making.
Specifically, in this section it is up to the minister, and solely the minister, to determine the nature of the consultation process after he has reviewed the application.
Under clauses 7(1) and 7(2) of this bill, applications are submitted to the minister. It is the minister who will take them to cabinet for approval. The nature and the extent of the consultation will be determined by the minister. Parties to be consulted will be determined by the minister. The nature of the documents and any other support will be at the request and at the determination of the minister. In this case, the request to consult with the municipalities is also at the discretion of the minister.
However, interestingly, as set out in clause 15(1), the only requirement for the minister to consult is with the owner and operator concerning impacts of tolls, fees or other charges that could impact the financial bottom line of operators. This is a stark contrast to the broad discretion to refrain from consulting with municipalities, and that is an issue that we wish to raise here.
Environmental assessment, EA, consultations have also been raised before this committee. It is our submission that the environmental assessment is a different process. It is a broad process which allows for discretion on what is to be followed. It is our submission that the EA process is not the process that was first envisioned through the precedents and the acts that have been established over the course of almost 80 years.
In closing, I wish to turn your attention to our written submissions. We are seeking two amendments. On page 5 of our written submissions we set out the amendments we are requesting to the bill. We wish to have clause 2 amended to amend the definition of "international bridge or tunnel" to clarify that approaches and facilities are those in the immediate area of the crossing, so as to avoid constitutional overreaching. We have provided language in that regard.
The second amendment we are seeking is to clause 8(4). This is to preserve the historical context of the legislation and to preserve the rights and role of municipalities as they relate to roads and traffic crossing through the different jurisdictions.
It is there for you to read. I know that we are pressed for time.
The Chairman: Thank you, Mr. Mayor. We will take the time necessary; do not worry.
One of the main objectives of Bill C-3 is to confirm the federal government's responsibility for international bridges and tunnels. Under our Constitution, undertakings that connect one province with another or extend beyond the limits of a province fall within the exclusive jurisdiction of the federal government.
In paragraphs 9, 10 and 11 of the document you submitted to us you say that the federal government lacks the constitutional jurisdiction to authorize how the facility will be integrated into local planning.
Bridges and tunnels are works for the purpose of the Constitution Act, 1867. Section 91(29) and 92(10) grant the federal Parliament jurisdiction over such works. As well, clause 5 of Bill C-3 makes it clear that all international bridges and tunnels are works for the general advantage of Canada.
The footnote on page 2 of your document lists court decisions in support of your argument. For instance, the Supreme Court of Canada, in the United Transportation Union decision, found that the Central Western Railway was not under federal jurisdiction. The facts in the United Transportation Union case were very different from the question of international bridges and tunnels.
If Bill C-3 is adopted as is, will the City of Windsor consider making a court challenge on constitutional grounds?
Mr. Francis: The position of the City of Windsor is consistent with case law as well as legislation. On your earlier question with regard to facilities, it is not us challenging the authority of the federal government to have oversight over the crossing and even the plaza locations. Our area of concerns is the broad approach that has been given to the approach roads. There is no strict definition given of where they end and where they begin, and where the jurisdiction is. There is a significant amount of case law that underlies that premise.
I am not challenging the declaratory power under the Constitution that allows the federal government to take charge over international traffic. Our concern, as this photograph depicts, is the local roads. What limitation will be applied to the ability of the federal government to define how many kilometres of the roads are part of the facility?
The case law and our own precedents clearly show that those are of a provincial nature. Those are areas to which the declaratory power will not be able to be applied, in our humble submission. We recognize that that may be the reason the government, in 1921, chose to include specific language to prevent conflict between the use of the declaratory powers and intrusion into provincial or municipal jurisdictions.
Our issue is with the approach roads. Is the City of Windsor prepared? We want to work with the government and will continue to do so, but issues of local concern will be raised in the proper forum. This is not only an issue for Windsor; this will affect cities across the country.
The Chairman: You mentioned "the proper forum." What is the proper forum? Is it a court challenge?
Mr. Francis: I hope it would not have to go that far, but if constitutional issues must be praised, we will exhaust those options.
The Chairman: The future of the Ambassador Bridge and the construction of a new crossing expected to be completed by 2013 are subjects of interest and are, of course, vital to the economic welfare of your region. What kind of input are you looking for from the population? Are you organizing special hearings, public consultations or conducting polls to reach out for the comments of the population of Windsor and the area?
Mr. Francis: As it relates to the new crossing, there is no process underway sponsored by the federal or provincial government on our side or the federal or state governments in the U.S.. We continue to make submissions on behalf of the respective citizens of the City of Windsor and have continued to provide them our areas of concern. With regard to their decision-making process, we are integrated in terms of providing them all that information.
Again, they are going through an environmental assessment process, and we are doing the best we can to respond to their process, because that is the process they have established.
Senator Tkachuk: To ensure that I am clear on the status quo, if the Government of Canada wished to do something, what would the process be? Since the Windsor-Detroit Tunnel is half owned by you, obviously nothing would happen without the city being involved. That is not an issue. However, the Ambassador Bridge, which is operated by the Canadian Transit Company, is an issue.
Mr. Francis: Based on our submission today, it is not an issue. Our issue is the language in Bill C-3. Without strict definitions applied to the language, especially the interpretive provision, our issue is with the local roads that run through our city to any crossing; not only today but in the future. Historically, Parliament has recognized that local roads fall under provincial jurisdiction and municipal authority.
Senator Tkachuk: Let us say that in the absence of this bill, the government decided to change traffic routes. What is the current process for that? What would they have to do? Would they not have to consult with the City of Windsor? Do they not need your permission to do anything?
Mr. Francis: Status quo, they would.
Senator Tkachuk: Why is that?
Mr. Francis: Because former legislation has established that precedent. That is one issue. The second issue is that the status quo would allow them to do that, because, under the separation of responsibilities provincially, that falls under the jurisdiction of the province.
Senator Tkachuk: They would have to deal with the province on all those issues?
Mr. Francis: Status quo. This bill would provide them the opportunity, because of its broad definitions, to sidestep that type of consultation.
Senator Tkachuk: Even the provincial jurisdiction?
Mr. Francis: In our respectful submission, yes.
Senator Tkachuk: If this bill were passed without your amendments, what do you feel would happen?
Mr. Francis: If it were passed without our amendments, it would allow the minister of the day, at his or her discretion, to declare, for the general works and undertakings of Canada, that a particular approach road 10, 20 or 50 kilometres from the border was a necessary part of the facility and could declare for use by international traffic, without input from the municipality, and it would be binding on the province.
Senator Tkachuk: You do not think that, under the bill as it is currently, the minister would deem this an important issue to consult you on, considering it is an approach road going through the city of Windsor?
Mr. Francis: I would hope that it would be of such critical importance that we would not be here today asking for the amendment to ensure that its continuity is enshrined in legislation.
It is surprising to me that the language in this bill leaves it to the discretion of the minister to consult, if the circumstances so allow, with local municipalities. However, when it comes to tolls and to private operators, it says "shall consult." There is no discretion. There is a stark contrast there. When it comes to cities, it is at their discretion, but when it comes to the private sector they must consult.
We are only asking to have continued that which has been recognized in legislation since the early 1920s, and to ensure that the municipalities, which have jurisdiction for roads and for the local communities, are consulted not at the discretion of the minister, but mandatorily.
Senator Tkachuk: Is the fear that, under the current bill, the minister would not see it necessary to consult or that you do not find the provision sufficiently explicit?
The only reason that provision is there is if it affected the city of Windsor; otherwise, why would it be there? I do not know why you would worry that the minister would not consult. How can he go about doing something without you being involved in it in the city of Windsor?
Mr. Francis: The way Bill C-3 is drafted will provide him or her the ability to do that.
Senator Tkachuk: They can expropriate property?
Mr. Francis: Yes. They will declare it as a general work undertaken for the Government of Canada and they can expropriate property. Right now, status quo, they not only have to consult with the city, but also need to seek the agreement of the city as it relates to our municipal bylaws and other jurisdictions.
Senator Tkachuk: Thus I make it clear, they can expropriate property anyway, correct? For any reason, any city.
Mr. Francis: Yes.
Senator Tkachuk: Do they?
David Estrin, Legal Counsel, City of Windsor: The special parliamentary legislation that created the facilities that now exist in Windsor specifically says what those undertakings can do. They approved a specific bridge and a specific tunnel and, by reference, incorporated the expropriation provisions of federal legislation for those purposes. As it stands today, without Bill C-3, there is no authority to do any other bridge or tunnel. Without Bill C-3, there would have to be another act of Parliament.
Senator Tkachuk: That is right.
Mr. Estrin: With Bill C-3, it is meant to facilitate changes to bridges and tunnels. As the mayor said — and I believe you are also getting at this — if a tunnel or a bridge were authorized under the new legislation, the powers of expropriation would come to it under this bill. We come back to the question of the definition: What are the approaches and the things that are necessary to go with the bridge and tunnel? The city does not quarrel with the bridges or tunnels, it is the definition found in clause 2 of the proposed bill. If you look up the term, "international bridges and tunnels"on page 5 of the written submission, you will see international bridge or tunnel means a bridge or tunnel and includes approaches and facilities. It is the concern that "approaches and facilities" is very vague. That is why we are suggesting that it is in the interest of this bill, constitutionally, as well as in the interest of municipalities, such as the City of Windsor, that you say what you mean. That is, that these are approaches and facilities directly related to the bridge or tunnel and are in the immediate vicinity thereof but excluding local or provincial roads. That would help keep the Constitution respected and ensure that the consultation was had.
The Chairman: Did you appear at the House of Commons committee to submit amendments?
Mr. Francis: We provided written submissions.
Senator Phalen: I will stay on the same line of questioning as Senator Tkachuk.
When I raised the questions last week about your legislation, the bills that you quoted, 1927 and 1921, witnesses before us indicated to me that they spoke to you about your concerns. I then asked them, kind of jokingly, were you happy? The answer I got was, "Additional consultations were added to this bill at the request of the city of Windsor in two or three different clauses to give another voice to Windsor in the consultation process. I do not know if they are happy, but I would argue we have accommodated that request very well." What were the accommodations?
Mr. Francis: I have not spoken with the minister, but I believe when it came to the House they inserted the provision that "at the discretion of the minister, they shall consult."
Mr. Estrin: May consult.
Mr. Francis: Yes, "may consult."
Senator Phalen: That leads me to another part of a question. He said in answer to the same question:
The concern in Windsor, as you spell out in their letter, they would like to have — I do not want to call it a veto power — a right to approve construction and operation. The way the government addressed that concern was through the amendment that was made in the House committee, to have the minister consult with the municipalities that are implicated through the construction operation.
It appears to me that you are saying that "consult" is not a strong enough word. Is that correct? Are you saying that "consult" should be "shall"?
Mr. Francis: Yes, it should be "shall." "Shall consult; shall not be at the discretion."
Senator Phalen: Is that what you are saying?
Mr. Francis: That is part of it. We are seeking to maintain what has been provided not only to the city of Windsor, but also to municipalities across this country. Specifically, in the city of Windsor's case, it was recognized in 1921 — and subsequently in 1928 in every other act — that municipal authority and municipal approvals would need to be satisfied as it deals with issues of a local nature. It is our submission that Bill C-3 has failed, in its definition and interpretive provision, to specifically identify what is meant by "approach roads." That broad definition violates constitutionally what otherwise would be afforded to the municipality.
Senator Phalen: If they are forced by legislation, and if the clause says "they shall consult," that does not mean you will get satisfaction; it only means that they have to talk to you.
Mr. Francis: That is right.
Senator Phalen: There was an article in The Globe and Mail yesterday about the report on the federal government desire to hear pitches from private sectors to help construct a new Detroit-Windsor crossing. The article mentioned the federal U.S. study group, the border transportation partnership. This study group is to announce in 2007 its preferred location detailing routes leading to the proposed new bridge.
Has the city of Windsor been involved with this federal study group?
Mr. Francis: We are not stakeholders at the table. It is a process that is being driven by the federal government and by the provincial government. The City of Windsor's role has been limited to providing submissions under their environmental assessment process. We are being treated as a citizen, and under the process a citizen would have to make written submissions. That is what we have been doing. We have been responding to the process.
Senator Phalen: This same article yesterday said that the Minister of Transport reaffirmed the federal Tory government plans to evaluate a wide range of options to reduce trucking congestion in Windsor. Your submission to this committee shows trucks backed up for miles. Yet, with all this talk of congestion, I have read that the volumes on your bridges and tunnels are actually increasing. Can you give this committee some idea of the current volume versus previous years?
Mr. Francis: Senator, you, at the federal level as well as at the provincial level, have a group of dedicated individuals that are probably better versed to speak of volumes, because they have the current numbers as they are doing their study. When it comes to the border crossing, I feel it is very important — and I am speaking only from the city's perspective. This is infrastructure that has been built by our grandparents. Yet, it continues to sustain a level of trade that has been explosive. We must look forward into the future that that trade will continue.
Windsor accepts the responsibility of hosting the world's international border crossing. We accept that responsibility; it is a responsibility that we have lived with for some time. However, I view the border in the city of Windsor and Detroit as a critical supply chain to this country's economy — a critical supply chain that extends far beyond our corridor, connecting us all the way down to Laredo, Texas; connecting us with the ports on the West Coast; and connecting us with the shipping lanes in Asia.
With regard to volumes, your people at the federal level, through transport, could provide you with better numbers. From our perspective, our submission this afternoon deals with Bill C-3 as it relates to the approach roads and facilities.
There is one question you asked earlier in terms of consulting. If they consult with us, we may not get what we want; we are not asking for that. However, I want to be as clear as I can be. Consulting with the city is also reflecting the precedence that has been set by case law and has been set by earlier acts. Those consultations do not, and should not, give the minister of any day the authority to make decisions outside the scope of his or her jurisdiction. Municipal laws and municipal rules and authorities must continue to be maintained. That is something that has been recognized over the past 80 years. That is our submission. It is one thing to consult and one thing to say that we will talk to you, but included in that consultation is that the municipal jurisdiction under the provincial spheres will be respected as well.
Senator Zimmer: Gentlemen, we heard you were coming here today, and we were anxiously awaiting your testimony. Thank you for a colourful presentation.
My questions are in the area of the environment. You indicated in your testimony that for the construction or alteration of any international bridge, there needs to be an environmental assessment process. That process involves extensive consultations. The minister stated that to add another set of consultation was duplication. You have indicated that is not a valid argument, because of argument in the works.
I have three questions. What is involved in an environmental assessment for the construction or alteration of an international bridge? Would the City of Windsor be consulted during this process? If so, why would you want to be further consulted after the environmental assessment is complete?
Mr. Estrin: I will address that. I am an environment law specialist and have been in this area for 30-plus years, so I feel I can help you.
At the moment, the Canadian Environmental Assessment Act does not apply at all, because the international tunnel and bridge act is not listed, because it does not exist. Assuming that by regulation, after this proposed act comes in, it is cross-referenced as something that would trigger a federal environmental assessment — there is something called a comprehensive study requirement under the Canadian Environmental Assessment Act — a bridge or tunnel would not qualify for the comprehensive study. It would only qualify if the Canadian Environmental Assessment Act was triggered for, what they call, environmental screening, which is the minimum form of environmental assessment under the Canadian process. Assuming the screening requirement is triggered, there is still no requirement for consultation under the Canadian Environmental Assessment Act. It is still discretionary as to whether or not a responsible authority, such as Transport Canada, would or would not consult with the city.
Assuming they do decide, again, to exercise that discretion to consult, it simply means consult — that is, give us your submissions. There is no standard prescription as to what kind of consultation that means whatsoever. It is usually, "Tell us what you think." Even if consultation was available and was asked for, that is probably what would happen. The follow-up is that consultation, even if it occurs, is quite different and does not mean the proponents must come and talk to the city to try to reach an agreement about how we will put this particular thing here, so that it does not cause problems down the road. While the minister could consult, many of these projects may be private sector projects. We want the proponents to be able to come to the city and discuss how these facilities will be integrated to access and avoid the problems you saw in some of those photographs.
I believe that is why Parliament, back in 1921 and in 1928, said that those proponents had to come to the municipality to get agreements with them on how these processes would actually operate. It worked until the border volumes became so crowded that traffic problems started backing up. It will work again, but we feel it is appropriate that the process be there to ensure that they have to not only talk to us, but try to reach an agreement on how it will work. The city was obviously reasonable in the past, and I am sure it will be reasonable in the future.
Mr. Francis: I put up the act that started the Ambassador Bridge. An environmental assessment may also not include the same consideration that was provided for in the earlier pieces of legislation, with regard to seeking municipal approvals as it relates to uses of the highways and roads under municipal jurisdiction, as well as satisfying all the other authorities — planning is one of them. Those are the issues that are encompassed in this act that may not be covered through a discretionary environmental assessment.
Senator Zimmer: Mr. Mayor, you referred, in your testimony, to precedence, history and status quo. Can you provide us some information on a case in the last decade or so where the City of Windsor was asked to consent to a project involving the establishment or modification of border crossings through the city? In particular, the part I am interested in is the agreement process or timelines, as well as any difficulties you encountered in reaching that agreement.
Mr. Francis: I can give you the example off the top of my head. The operators and owners of the Ambassador Bridge are in the audience. It was nearly two years ago that the Ambassador Bridge approached the city of Windsor seeking permission to expand their plaza site on lands and they needed rezoning. Mr. Estrin can speak to this. They needed permission from the city. I understand that after all the conditions were satisfied, approvals were granted to the Ambassador Bridge in that regard. They do have the approvals to expand. That is one example.
The second example, obviously, is work that we do with the Detroit-Windsor Tunnel Corporation. In 1994, that plaza was completely expanded and renovated. Again, the City of Windsor and planning authorities were involved and those processes were approved as well.
Senator Dawson: You used the expression "earlier pieces of legislation." As we know, this bill has been brought in by previous governments. On the consultation side, how would this compare with the previous bills that have been presented by the previous ministers of transport?
Mr. Francis: When I was referring to earlier pieces of legislation, I was speaking to the pieces of legislation that created the facilities.
Senator Dawson: I see; the existing status quo. Between the existing status quo and today, how would the bills that have been tabled compare with what exists today?
Mr. Estrin: I do not believe they were very clear on the consultation, either.
Senator Dawson: For consultation, we must realize that the minister has used the expression "shall consult." When we go to Vancouver, to Halifax and we have the airports, the ports and the 10, 12 or 13 bridges, depending upon how we want to count them, I guess the minister could be in consultation perpetually. We should try to define that. No one has come here and said, "We are satisfied with the consultation as it stands." I should like to know how we could define it to try to make it more realistic; so Transport Canada can have a better mechanism of consultation, because it does not seem to satisfy anyone as it stands now.
We have to rush away to a caucus meeting, but there was also the talk about a new bridge. The minister came here two weeks ago and no one mentioned the potential of a new bridge. All of a sudden, however, there is a new bridge and we have another issue, namely, a public-private partnerships project, that we have to deal with, which will compete with the Ambassador Bridge and your tunnel corporation. We were told last week that there is reduction in traffic and revenue. If there is reduction in traffic and revenue and we are creating more competition, how will the other competitors fair with this new project?
Mr. Francis: First with respect to consultation, I suspect that the ministers and the federal government are occupied on a number of files. I would respectfully submit that for 80 years there has been an onus on the government to seek the agreement of municipalities. That is not to satisfy the city of Windsor or local interests. That is to satisfy the respective responsibilities that have been outlined in the Constitution that provides municipalities authority over local roads, highways and issues. That is what we are asking. We are asking not to dilute the responsibilities already enshrined not only through case law, pass precedents and special acts, but also enshrined in terms of our respective roles and jurisdictions. That is the key issue. Consulting with the municipalities, I would suggest, is probably far easier and more constitutionally prudent than it would be to mandatorily consult with the operators. There is a stark contrast in the bill as it exists right now. They are willing to consult with the operators but not with the municipalities, whereas constitutionally we have that authority.
With regard to the second question, my job as mayor is to take care of my own boundaries and my own city and to take care of municipal issues. With regard to new border crossings and a new facility, that is an issue for the federal and provincial government that you need to work out with the provincial government. They are the ones that started the process, and they are the ones having the discussion about where to build the new facility.
I would welcome the discussion in terms of new facilities and what it means to the state of the rest of the country. However, our job this afternoon is as it relates to this Bill C-3, as it relates, specifically, to the language, and as it deals with the approach roads and the broad definition that will now encroach upon municipal jurisdiction.
Finally, with regard to the Detroit-Windsor Tunnel, the city of Windsor owns the Canadian half; we operate the Canadian half. I wish to set the record straight so that there is no illusion. The Detroit-Windsor Tunnel's primary core of business is car traffic. Commercial traffic is predominantly carried on the Ambassador Bridge. They are two separate operations in terms of what they deal with in that regard.
Senator Dawson: You are also chairman of the Windsor Tunnel Commission?
Mr. Francis: Yes.
Senator Dawson: We have been told that, because of tourism, traffic has been reduced, in particular, for cars and tourists.
Mr. Francis: I believe revenue across all the operators has been reduced.
Senator Dawson: Why do we start another project there, then?
Mr. Francis: That is a decision for your authorities, who have already started the process. I am very proud that the City of Windsor owns the Detroit-Windsor Tunnel; I am very proud that that strategic asset is able to provide us a downtown-to-downtown connection from Detroit to Windsor; and I am very proud of the revenue that it provides. Instead of us coming knocking on the doors of the federal and provincial governments for infrastructure dollars, those revenues and those dollars are redirected to our roads and our sewers and are less of a burden on the national provincial dollar.
Senator Mercer: I have a comment before I ask a question. I find it interesting that the city was asked to make written submissions to the House of Commons committee and now they are appearing before this committee. This is a trend we are seeing in the last little while with other legislation. Perhaps we should take it up in the chamber someday.
In your reference, you talked about a new crossing, and the minister talks about a new crossing. I then read that the Ambassador Bridge owners are planning to build a new bridge and have acquired the land. You said, a moment ago, that they have approval to expand — I believe those were your words.
When you talk about a new crossing and the minister talks about a new crossing, are we talking about the new Ambassador Bridge or about another crossing entirely?
Mr. Francis: My earlier comments were in direction to the senator's question: When was the last time a private operator approached the city to seek approval process? I was able to share with you that the last time the City of Windsor was approached was by the Ambassador Bridge. They needed to make modifications to their existing plaza, so that they could move certain toll booths to the Canadian side of the border. That outlined how quick, once all authorities and approvals are satisfied, their permits could be obtained. That is my reference as it relates to the Ambassador Bridge; as it relates to the new crossing, that was a result of questions asked by senators.
The federal and provincial governments and the federal and state governments have established the Detroit River international crossing, DRIC, process. They are the proponents. The lead proponents are Transport Canada and MTO on the Canadian side, and their colleagues and their respective jurisdictions on the American side. It is a good question to ask of them. It is their process; it is their work. We are in the process of dealing with ensuring that local authorities are maintained, and we continue to make submissions to the DRIC process.
Senator Mercer: You are a good politician. There is no Question Period at the municipal level, but you have just avoided the question.
Mr. Francis: Senator, it is not my process.
Senator Mercer: No, no. You referred to a new crossing. I want to know whether that new crossing is, what I will call, the new Ambassador Bridge; or is it another crossing of which I have no idea of its whereabouts?
Mr. Francis: Thank you for that clarification. Under this DRIC process, which was established by the governments on this side of the border, Ambassador Bridge was one of the proponents considered. The provincial and federal governments have ruled them out of the DRIC process as their facility does not meet the needs. When the federal minister talks about a new crossing, I suspect he is talking about the outcome of where the new crossing will be located. That is a result of the process, and the process, through the environmental assessment, has dictated that it will be removed from where the existing Ambassador Bridge is located today.
Senator Mercer: My understanding is that the presidential permits for the new Ambassador Bridge are already in place, and there have been approvals on the American side and approvals by the Province of Ontario.
Mr. Francis: That would be most appropriate, yes.
Senator Mercer: Maybe I heard you wrong, but you were talking about another bridge. You said that this one did not make the cut for the process.
Mr. Francis: Those are most appropriate questions for the Minister of Transport as it relates to the issue of presidential permits.
Senator, if I may, my direct response to your question relates to a process that has been established by Canada, by Ontario, by Michigan and by the U.S. That process began as an exercise to evaluate, through the environmental assessment provisions of both countries, where the next crossing location will be. It began in 1999 and as of late last year, after considering all the proponents, the process has now gone on public record stating that the new bridge will not be in the area that you are referencing next to the Ambassador Bridge. That is my understanding of it. For any other detailed questions, I believe the Minister of Transport would be probably better able to answer.
Senator Mercer: However, you are the mayor of the city of Windsor.
Mr. Francis: I am.
Senator Mercer: I suspect that the city of Windsor has more than a passing interest in this process or you would not be here.
You are chair of the tunnel commission, is that correct?
Mr. Francis: I am chair of the Windsor Tunnel Commission, yes.
Senator Mercer: Does that come with the title of mayor? Is the mayor always the chair of this commission, or is this something separate?
Mr. Francis: No, the mayor has historically taken on roles and responsibilities on a number of committees. In addition to the Windsor Tunnel Commission, I am also chair of the energy company. It is part of our job; our jobs never end. We work on committees.
Senator Mercer: I have bridges in my province that go from one city to another, not from one country to another.
Mr. Francis: It was established that, when the tunnel was created and then vested in the city of Windsor, a committee and a commission would be struck. The commission is an agency.
Senator Mercer: City council then chooses who the chair is, do they?
Mr. Francis: The commission does, yes.
Senator Mercer: The commission, but who appoints the commission?
Mr. Francis: The city council.
Senator Mercer: I told you he is a good politician.
I have one last question. I am still confused by the process. Maybe you are correct: we do need to ask others. There has been some approval given to the new Ambassador Bridge. You are now telling me that the new Ambassador Bridge did not make the cut for this selection process. I am confused, because I have not grasped whether we are talking about one bridge or two bridges.
Mr. Estrin: Perhaps I can add some clarification. The process that the mayor was talking about between the Governments of Canada and Ontario and the United States is that of looking for a new river crossing. They considered several locations. In the course of that, one of the alternatives they did consider was a second bridge right by the Ambassador Bridge. They rejected that and a number of others and are now considering a location down river from the existing Ambassador Bridge.
However, the Ambassador Bridge is a private company. As a private company, it is of the view that it is not tied up in the government process. It is making its own application to have a second Ambassador Bridge right beside the current bridge. At the same time, we have the Government of Canada, the Government of Ontario and the United States saying that the best location is not there. They said that location would be horrifically impactive on the city of Windsor and they chose a down-river location.
The city is concerned about the need for amendments, senator, because not only is there another river crossing proposed by the government at a down-river location, which seems to be okay in terms of its impacts on the city, but also a private sector proposal by the Ambassador Bridge for a second bridge. The government process has already said this location would be seriously impactive to the city of Windsor. In addition, there is a proposal by another private sector company consortium, the Detroit River Tunnel project, to convert a rail tunnel to a truck route — to take trucks underneath the Detroit River in a rail tunnel. On the surface, that sounds like a fine idea; except that on that rail corridor today, there are only about six trains per day, and that rail corridor goes by almost all the new subdivisions in the city of Windsor.
The city of Windsor is saying that it would like to be consulted about any new cross-border proposal. That is why we are here to ask for these amendments; namely, to ensure that we are consulted and that any proposal, such as the second Ambassador Bridge or the Detroit River Tunnel project, has to come to the city and talk and reach an agreement.
Senator Eyton: Mayor, I am curious. You are eloquent and forceful in your argument, but I fail to understand why you did not appear before the House of Commons committee when the bill was before them.
Mr. Francis: Through the written submissions we had made and through the discussion we had, we believed that these amendments would have been successful. Several MPs, who represent the Windsor area, were very involved with Transport Canada in trying to seek amendments, but we were led to believe that the written submissions were adequate.
Senator Eyton: Now you are wiser; is that the point? You are a wiser because you are appearing before us.
Mr. Francis: That could be.
Senator Eyton: To me, the bridges and tunnels that are the subject of the act are clearly vital national works. They have an importance much beyond the city of Windsor, and they have a terrific importance for Southern Ontario. I believe something like 25 per cent of the goods traded between Canada and the U.S. go over the single bridge, the Ambassador Bridge. It is clearly a national work. That says to me it is clearly under federal jurisdiction and it is clearly a federal responsibility to bring in Bill C-3. In fact, I fail to understand why it was not brought in many years ago. In particular, it seems to me that under the circumstances the federal government has paramountcy. It can consult or not. Obviously, consulting is a good thing for it is better to coordinate if one can, but essentially the federal government should have the last word.
I have looked at the definition. In your submission, you refer to the 1921 act, and it is interesting that, even then, when it was relatively less sophisticated, the provision read:
The Company shall not construct or operate, any of the works mentioned in section eight of the Act along any highway, street or other public place...
— and I emphasize "or other public place" —
...without first obtaining the consent, expressed by by-law, of the municipality having jurisdiction over such highway, street or other public place, and upon terms to be agreed upon with such municipality...
Then it adds: ...and failing such consent then upon such terms as are fixed by the Board of Railway Commissioners for Canada.
Even back in 1921, there is a provision saying, "We will try to work it out, but essentially, if there is a disagreement or dispute, then it will go to a federal body, that is, the Railway Commissioners for Canada.
The point was made then, but if you accept my argument that paramountcy matters, then the federal government was saying, "We would like to work with you if we can, but if we cannot, there is a final opinion that goes to a federal authority."
Bill C-3 defines an international bridge or tunnel as:
...a bridge or tunnel, or any part of it, that connects any place in Canada to any place outside Canada and includes the approaches and facilities related to the bridge or tunnel.
That is a much narrower definition than that in the 1921 act where it just said "or other public place," without any definition. Under Bill C-3, there has to be a direct relationship.
Mr. Francis: Thank you for those points. On your last point, the difference between Bill C-3 and the interpretive provision you read in the 1921 act is that there was no discretion given to the minister. There was no declaratory power given. It was that you must sit down and you must talk.
Senator Eyton: I was focused on the definition of bridges and tunnels. We can get on later to the approval section.
Mr. Francis: However, there was a mechanism in place that would not give him or her sweeping declaratory powers to come in and designate approach roads. The bridge and facilities were defined as bridges and facilities. The piece you just quoted from Bill C-3, we submit that that is a broad category; that is sweeping.
Senator Eyton: It says bridges and tunnels "related to."
Mr. Francis: It includes "the approaches and facilities related to the bridge or tunnel."
Senator Eyton: It reads "related to." In the previous legislation, it simply said "or other public place."
Mr. Estrin: Senator, I believe the reason that it was not a concern then is because it was a specific bridge or a specific tunnel, as opposed to legislation that allowed anything to be built anywhere in Canada, as this legislation does, without really any consultation.
Senator Eyton: I hear you. I do not necessarily agree, but I hear you. Then I will go on to your own suggestion for the definition of bridges and tunnels under your submission.
You try to be more particular. You say "directly related" — which I guess is more focused and precise — "to the bridge or tunnel." You then go on to say, "and in the immediate vicinity thereof"— again narrowing it down a little bit — "but excludes local or provincial roads."
By any stretch of the imagination, it seems to me that guts the entire definition of bridges and tunnels. In fact, it allows therefore the municipalities or the provinces to assert that their roads have to be excluded from the act.
It seems to me, it makes the definition of an international bridge or tunnel meaningless with that last tag, not necessarily with "directly related" or not even "in the immediate vicinity." Those seem to be sensible suggestions, but it seems to me that the last tag guts it.
Mr. Francis: We provide that to illustrate what we are asking for. There needs to be some limitation placed on those words. There needs to be a limitation placed on the word "approaches." Our submission is that the interpretive provision that references "approaches" cannot be interpreted as "any roadway." We are saying that there needs to be some restrictions put in place.
I agree with you concerning jurisdiction. The federal government has jurisdiction over general works for the advantage of Canada — the bridge, the plaza, the facility, and the immediate area — but the issue for us is defining what "approach roads" means. Clearly, a 20-kilometre road removed from the facility does not fall within the federal jurisdiction.
Senator Eyton: What you have submitted is overreaching by a good deal.
Mr. Francis: We provided as an example to illustrate the point that some restrictions need to be put on that operative provision.
Senator Eyton: I go on to your next submission, which was the addition of section 8(4). Again, I would make the same comment. There may be some legitimate concern about the consulting requirement built into Bill C-3. That is fair enough, but enacting anything like your suggestion would in fact gut the entire bill. Again, it is overreaching. Would you make the same response?
Mr. Francis: We are trying to provide language that would be consistent with the previous acts that have established the crossings in the area. This bill will take the authority from the legislator and will put the authority in one minister — we understand those challenges. We are trying to put the protections in place that were protections that we otherwise could have been afforded through legislation through special acts.
I do not know if Mr. Estrin has anything to add.
Senator Eyton: I do not want to go through it in detail, but there is the notion that the federal government in that circumstance would be subject to arbitration or to many other tests that you have included here.
Mr. Francis: You earlier referenced the 1921 act, and there was a mechanism whereby, if the municipality and the federal government could not agree, there would be some third party that would provide an opinion. That same body is no longer in existence.
Senator Eyton: That third party was a federal body.
Mr. Francis: At least, it is a body. We are trying to suggest that some mechanism be put in place. Thus, if there is a dispute, there is a mechanism that will allow for a resolution of that dispute by someone independent, whether it is federal or not. There would be a body that would actually hear the dispute and then provide a decision. If that body were still around, we would have suggested that that earlier body be the dispute resolution mechanism, but our language is just to provide some dispute resolution mechanism.
Senator Eyton: I can see where we could make some smaller amendments to Bill C-3 and make more precise the definition of international bridge or tunnel, so that it answers at least part of your concern. I can see where we might want to change the consulting provisions that are there now — mostly in section 7(1.1) — to make them a little more mandatory and more direct. Now, it is a subtle, nuanced kind of process.
With respect to both your submissions, they reach way too far, and, in my view, are not workable.
Mr. Francis: I appreciate that, senator. That is the purpose of our visit here this afternoon. Any assistance that we could gain by making those amendments to deal with those issues, whatever that specific wording may be, as long as the principles or the concerns that we have raised have been dealt with, would be greatly appreciated.
The Chairman: Mr. Mayor, we were pleased to accommodate you and hear from you today. Unfortunately, you could not do it in the House of Commons, but we are quite pleased to have had your presence here. Feel free to send us any other information you feel necessary to our work. We will be studying this bill very closely and seriously. We thank you again for your presence, and Mr. Estrin, to our committee.
The committee adjourned.