Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 4 - Evidence - April 23, 2009
OTTAWA, Thursday, April 23, 2009
The Standing Committee on Energy, the Environment and Natural Resources met this day at 8:07 a.m. to examine elements of Bill C-10, dealing with the Navigable Waters Protection Act (Part 7).
Senator W. David Angus (Chair) in the chair.
[Translation]
The Chair: Good morning, everyone, and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is David Angus. I represent the province of Quebec in the Senate and I am the chair of the committee.
[English]
I would like to welcome honourable senators present this morning, all members of the public who are with us in the room, viewers all across the country who are watching on the CPAC network and any others on the wonders of the World Wide Web.
This committee's mandate is to examine legislation and matters relating to energy, the environment and natural resources generally.
I would like to introduce my colleagues who are members of this committee and who are around the table here today, beginning with our deputy chair, Senator Mitchell, from Alberta. Next is Senator Banks, from Alberta; Senator Sibbeston, from the Northwest Territories; Senator Neufeld, from British Columbia; Senator St. Germain, from British Columbia; Senator McCoy, from Alberta; Senator Peterson, from Saskatchewan; Senator Merchant, from Saskatchewan; Senator Adams, from Rankin Inlet in Nunavut; Senator Milne, from Ontario; and finally, last but not least, Senator Spivak, from Manitoba.
On March 12, 2009, our committee was mandated by the Senate to examine and report on those elements dealing with the Navigable Waters Protection Act (Part 7) of Bill C-10, the Budget Implementation Act, 2009. We are directed to report back to the Senate by no later than June 11, 2009. Today, we initiate our study.
I note that the Navigable Waters Protection Act was enacted in 1882, making it one of Canada's oldest statutes. I do not believe it has had any significant amendments during the intervening period but has been the subject of studies in Transport Canada in recent years with a view to modernizing the statute to bring it up to date. Unfortunately, with the various comings and goings of Parliament, these amendments only recently reached Parliament.
The purpose of the NWPA, as I understand it, is to protect the public right of navigation. It requires federal government approval for works being constructed on navigable waters, and it ensures that works constructed in navigable waterways are reviewed and regulated so as to minimize the overall impact upon navigation. The NWPA includes provisions for the removal of unauthorized works or obstructions that render navigation so difficult that it is considered dangerous.
Prior to the amendments made and the ones this committee will consider in Part 7 of Bill C-10, the NWPA was recently the subject of consultations and studies for amendment in the Second Session of the Thirty-ninth Parliament. In June 2008, the House of Commons Standing Committee on Transport, Infrastructure and Communities tabled a report entitled Consideration of Proposed Amendments to the Navigable Waters Protection Act. According to that report, industry and provincial, territorial and municipal governments over many years have been requesting changes to the Navigable Waters Protection Act to reflect current economic needs and respond to the increased volume and variety of uses of Canada's waterways. The House of Commons committee was told that there is a backlog of projects waiting for approval and that by developing new legislation this backlog could be greatly reduced. No further action with respect to the NWPA occurred until the current amendments enacted by Bill C-10. While many of the amendments to the act appear to be attempts to modernize and update the legislation, there are also apparently several substantive changes to its provisions.
We are pleased to begin our series of meetings on this subject. We intend to drill down and get the full story. The steering committee has agreed that our committee will deal with this subject for its next five meetings at least.
I welcome Senator Dan Lang, from Yukon.
Our witnesses from Transport Canada today are Mr. David Osbaldeston and Mr. Donald Roussel. Welcome and thank you for joining us this morning. We received a briefing package from you yesterday, and copies were circulated to all members of the committee. We understand that you have appeared before another Senate committee and a House committee in respect of Bill C-10.
Donald Roussel, Director General, Marine Safety, Transport Canada: Thank you for the opportunity to participate today. We are pleased to appear before you to provide you with any further clarity you may seek regarding the recent amendments to the Navigable Waters Protection Act. The amendments will allow a more flexible regulatory regime intended to support the diversity of the modern-day Canadian marine environment overall and, in particular, the development and refurbishment of infrastructure and natural resource projects. Streamlining of the federal government regulatory process for such projects remains a priority for Transport Canada, and we continue to move forward toward change and economic growth.
In saying this, we recognize that there is concern among some interest groups and the general public. Our data in Canada show that there are six million recreational boaters who own three million recreational boats. It is normal to have a high public interest in this domain.
The Chair: It is probably fair to say that we have received an inordinately large volume of representations by email so we are aware that there is a great interest. That is another reason we are hoping you will give us the tools to respond.
Mr. Roussel: Some interest groups believe that these amendments will impact adversely the current public right to navigation and that major infrastructure and resource projects will no longer be required to complete an environmental assessment under the Canadian Environmental Protection Act. We would like to take this opportunity to ensure the committee that the Navigable Waters Protection Act will continue to protect the right of public navigation and that the environmental requirement for above-noted projects will remain. We will be pleased to give additional details to the committee following our opening statement.
David Osbaldeston, Manager, Navigable Waters Protection Program, Transport Canada: Thank you. I hope to provide a quick outline of some of the key points contained in the Navigable Waters Protection Act and their purpose.
As you are aware, the main objective and scope of the amendments is to meet the needs of proponents of works and those who use Canada's vast waterways in order to allow a balanced approach to the shared use of those waterways. The previous legislative and regulatory process failed to provide a review and approval process commensurate to the degree of potential interference with navigation. Small infrastructure projects with little impact on navigation and projects over sections of waters that could not be reasonably navigated were caught in an extensive review. These processes were required under the legislation without any potential flexibility incorporated therein. As a result, this seriously affected infrastructure project development and refurbishment timelines.
For example, the North Channel Bridge, which connects Akwesasne and the city of Cornwall, serves 2.2 million automobile trips and over 125,000 truck trips per year. The replacement of this bridge is long overdue. However, due to a gap in the legislation, a separate act of Parliament would have been required to bring replacement to fruition, a process that would have taken much longer than simply providing for its review, as with all other bridges in Canada under the provisions of the NWPA.
Even the smallest but most common infrastructure projects, such as bridge re-decking and guardrail replacement, which have no impact whatsoever on the navigational envelope and thus the safety underneath the bridge structure, generated not only a required detailed navigable assessment but also a time-consuming and costly environmental assessment under the previous legislation. It is the government's position that such requirements were neither warranted nor reasonable.
In order to make the Navigable Waters Protection Act relevant in today's operational and economic climate, the amendments have introduced a tiered approval process that ensures a review and approval process more commensurate with the degree of potential interference that a work may have on navigation than what was provided for previously.
The new provisions of the amended act also define classes of navigable waters that would not be reasonably used for navigation. The intention of defining classes of minor waters is to better focus efforts on truly navigable waters as opposed to farmers' drainage ditches or watercourses too small, shallow, obstructed or steep to reasonably be used for navigation.
Similar to minor waterways, the concept of minor works is introduced in the new legislation. Criteria are being developed and will be published as orders for small structures such as private docks and boathouses that have little to no impact on navigation. This will allow the department to reallocate the necessary resources required to manage the regulatory process for major projects involving infrastructure development, energy, mining, aquaculture, forestry and a myriad of other industry areas within Canada's economy.
Furthermore, the removal of the term "named works" now allows for the review of any work, commensurate with its potential impact upon navigation and not on the basis of the actual type of work in question, allowing for better oversight and regulatory control of the installation of works on Canada's waterways. New provisions also provide us with a system of increased fines to act as a deterrent to non-compliance.
In closing, the amended act will help us to do a much more effective job of protecting the public interest in navigable waters while at the same time expediting infrastructure growth and development. Without these amendments, we would continue to experience delays in the approval of critical infrastructure projects. Our desired result is to stimulate the economy and remove the unnecessary regulatory burden, while continuing to provide due diligence with respect to the administration of this act.
The Chair: I have a long list developing here. Senator Spivak has to leave early, so I have agreed that she could be first on the list.
Senator Spivak: I think it is customary for the deputy chair to go first. Please go ahead.
Senator Mitchell: I will defer to you.
Senator Spivak: That is fine.
Senator Neufeld: Is there something in the air? We are being too nice here.
Senator Mitchell: We always build consensus through cooperation in this committee.
I have many questions, as do the other members. Basically, this bill will allow for many projects that would otherwise not have been excluded to be excluded from a review based on a ministerial decision. Is that right?
Mr. Osbaldeston: This law will allow for many small projects, many of which unfortunately do not come our way for review, such as cottage docks and cottage swim rafts, to forgo having to apply for approval in advance of construction. They are still covered under the legislation. The only thing they are being excluded from is needing to apply in advance for that approval.
Senator Mitchell: I see criteria that actually mean certain projects will not be, as you have outlined, reviewed under this particularly. If your minister excludes a given project, does that mean that, under the Canadian Environmental Assessment Agency, CEAA, whatever review they were going to do on the environmental impact will automatically be excluded as well?
Mr. Osbaldeston: No. Where there were projects that could be bound for an environmental assessment that we would have triggered before, because these projects are associated with water, other environmental assessment triggers through other federal bodies and through provincial bodies and through municipal bodies kick in.
For example, we are very closely tied to the Department of Fisheries and Oceans. Even a bridge that does not have a pier going into the water, although it may not cause navigational concern, still causes a shadow going over the water, and that could have habitat impact for fish involved, and therefore DFO would be looking at it from an environmental assessment point of view.
Senator Mitchell: If these other environmental assessments can proceed, what is the nature of the overlap with provincial? Why could they not be done in a parallel fashion? If this does not actually exclude other environmental assessments, how does it speed up any process in the pursuit of the objective of greater and quicker economic development? Why could you not do it in a parallel way?
Mr. Osbaldeston: Part of the overall stimulus package is to harmonize those environmental assessment projects with the provinces and others where possible, and work is being done through the agency on that right now.
Three pieces are required for us to issue our approval document. We must complete a navigational assessment when required. We must ensure that an environmental assessment, when required, is completed and positive. The third piece is that where Aboriginal consultation is required, that has taken place.
We do not trigger the environmental assessment. The environmental assessment is carried out by someone else. It allows us to proceed to utilize our resources a little more quickly to go to some of these larger projects. That is not the case when we have all these other smaller projects hanging around that should not be triggering an environmental assessment, such as cottage docks.
Senator Milne: How do you know whether a project is large or small unless you assess it?
Mr. Osbaldeston: We did a study over a number of years of the types of small projects that were coming in by application, such as cottage docks, swim rafts, aerial cables going over waterways. Consistently, we could tell the client, "As long as you construct in this manner over this type of water, the project is approved." As a result of doing hundreds and hundreds of these and being able to identify upfront for them what the criteria are to get approval, it we realized that if we just told the clients upfront, "As long as you construct in this manner, you will not have a navigational hazard," then we could eliminate that application process. It does not eliminate the purview under the act. They are still covered under the act. The only thing we are eliminating is application for approval in advance. It provides them pre-approval. If they do not follow the outlined criteria, then they have stepped out of their class and are subject to go back through a formal application and review process.
Senator Mitchell: It seems to me that the distinction as you describe it is so limited that it raises the fear that this really means something far more. If it is so limited, and you still need to use some resources to figure out these criteria, to see at some level that they apply, then how does that reduce your use of resources? I do not see it.
Mr. Osbaldeston: Over the course of the last year we have attempted to introduce some of these mechanisms through risk management policies and, indeed, develop minor works policies that have been in place. In developing those policies and eliminating the paper associated with those works coming in on those few we have identified over the last year, we have not had one single complaint, to my knowledge, with respect to their introduction and use.
Our problem really rests with the fact that when you have paper come in the door, you must do something with it, and doing something with it takes time, even if ultimately the doing something with it that takes the time comes up with the answer that there is no interference to navigation. If we can tell them upfront how to stay away from interfering with navigation, then we will save the paper coming in the door and save the time expended in making that assessment. That resource saving can be used on the larger projects that truly have potential for impact.
Senator Spivak: I think it is important for the public to know that this is sort of like Alice in Wonderland, verdict first and trial afterwards. Usually we examine legislation before it has been passed, but this has been passed. That is an important point.
I think also it is important to note that many of the people who have great fears about this legislation are not opposed to changes in the Navigable Waters Protection Act but are concerned with the process.
I have two questions; I will give them both at once to hasten things. First, in your document, you talk about public consultation, but I do not know whom those public consultations were with. Unless I am mistaken, they were certainly not with groups like Ducks Unlimited and all the recreation and boating people. I would like to know with whom you consulted.
However, the more important issue is that it is the minister who decides classes of works and classes of waters. As I understand, there is no need to comply with the Statutory Instruments Act. That means you bypass requirements of the act, and it dispenses with examination, registration and parliamentary scrutiny of such orders. This particular provision in the act has caused a great deal of concern. Could you comment on that?
Mr. Osbaldeston: On first part of the question with respect to consultation, as you have heard, it is one of the oldest pieces of legislation in Canada. In its 127 years of existence, there has been very little modification to meet current economic needs or, for that matter, any of the historical needs on the way up.
We had myriads of files of complaints from industry — many meetings over the course of the last 20 years with representatives of national associations of the various industries in Canada. We had municipalities writing to us constantly, in each case not only identifying concerns with the legislation and the inability to operate within it, but also providing to us recommendations — suggestions for change, suggestions for improvement.
It is those concerns and recommendations that we considered in our policy work leading toward these amendments. That is the consultative process we had in advance of the process that has recently undergone parliamentary review.
On the second part of your question, with respect to orders —
Senator Spivak: If I may, with great respect, we have had thousands of emails from people. If you had done such a good job of consulting, why are we getting all this static? Why are so many people saying, "We think there should be changes to the act," — they are acknowledging that — "but we have not been consulted"?
Mr. Osbaldeston: I am aware of the email traffic, the telephone traffic and the letter traffic. I have rooms full of it, as do you, but much of that is based on misinformation in a couple of key areas.
The first would be "named works." Information was sent out through the Internet by other parties saying that by removing the named works from the legislation, which are bridges, booms, dams and causeways, we were no longer going to be reviewing those types of works at all under this legislation should the amendments have been passed.
That is incorrect. It was not removing those works from the purview of the legislation. It was removing their special status as being named, and that leading to the fact that whether you were a footbridge going over a golf course creek or the Confederation Bridge between New Brunswick and P.E.I., you had to go down the exact same environmental and navigational review process.
We believe that all works should be reviewed in accordance with their potential interference to navigation. Depending on the degree of such interference, that is the degree of review they should receive. Obviously, bridges, booms, dams and causeways — substantial interferences to navigation — will have full review under our legislation. That is one area.
Senator Spivak: All these people are misinformed, are they? They are not just concerned about navigation; they are concerned about the environment. That is a separate issue from navigation, and under this act, that was a trigger. That is the whole key to their concern.
Mr. Osbaldeston: The essence of the triggers stemming from the Navigable Waters Protection Act prior to these amendments was substantial interference to navigation; that was section 5.1 of the last act. That clause remains in this legislation as section 5.2. If you pose a substantial interference to navigation, we will trigger the Canadian Environmental Assessment Act. The triggers remain. Again, that was misinformation.
Senator Spivak: That is helpful.
Mr. Osbaldeston: Returning to the question of named works, if we were not going to review them, their concern was that no one would be looking at the environmental assessment aspect associated with them as well. If we are going to review them and there are substantial interferences by their very nature, they will trigger environmental assessments.
Senator Mitchell: If they are not, they will not trigger an environmental assessment.
Mr. Osbaldeston: Section 5.2 of the old act said that if you were not a substantial interference to navigation, you were not on the law list for triggering an environmental assessment. This is a similar case here. Other interference, other than substantial, does not trigger.
Senator Mitchell: Maybe that is where we need the amendment — that it should or should not exclude the triggering.
Mr. Osbaldeston: Those would be considerations for the agency; we do not deal with the Canadian Environmental Assessment Act. It is outside of our purview.
Senator Spivak: What about the second part of the order, the minister's discretionary powers and the Statutory Instruments Act?
Mr. Osbaldeston: When the assistant deputy minister for transport and myself first approached the Standing Committee on Transportation, Infrastructure and Communities in February 2008, after a year and a half of policy review in my own shop, the proposal that we tabled to them was to start a preliminary consultation process on potentially repealing this particular piece of legislation in its entirety and coming through with an entirely new piece of legislation.
Because of time concerns and some other concerns on the table at the time, that committee chose, as they put it, low- hanging fruit. Could we identify low-hanging fruit that could provide the greatest benefit in the shortest time to the most people? We did so. We gave them with a list of measures we thought would provide for that outcome.
Our intention was to move that into a formal regulatory process immediately after their preliminary consultation. However, events transpired. They issued their report in June and we ended up with a summer recess. Time for our response on the part of the government was pre-empted by the call of an election, which subsequently led to a new crisis upon the return of the government, that being the economic crisis.
In order to deal with the economic crisis after the hearings of the Standing Committee on Transportation, Infrastructure and Communities, it was clearly understood that the approval process for a navigable waters protection approval was a great impediment to getting infrastructure projects under way and refurbished in Canada. If that was to be the goal of the economic stimulus package, then they needed to fix the legislation. Regulatory process takes a number of years for full public consultation. It was determined that to provide the benefit over the two-year period of the economic stimulus package, orders would be the more efficient and effective way to move quickly and follow up at a later date with a full regulatory review process.
Senator Spivak: I have a final comment. I do not want to put you on the spot, but it appears that this was a political decision, not necessarily a bureaucratic decision. You do not have to respond to that comment.
The Chair: On a point of clarification, I understood that the study included input from the parliamentary side to develop a process for amending this act going back seven or so years. You talked about elections intervening in that process and, therefore, the amendments not being brought forward before now. When Parliament returned, it faced dealing with an economic crisis, and so this was brought forward to remove impediments to certain projects. Given that this was done quite quickly, as Senator Spivak has suggested, are all the amendments that you folks were planning to bring forward before the prorogation of Parliament included in this package, or is this only a first step in terms of modernizing and upgrading the Navigable Waters Protection Act?
Mr. Osbaldeston: This is not a new piece of legislation but an amended piece of legislation. Over the 20 years that the policy review was conducted, and more importantly the 18 months prior to approaching Standing Committee on Transportation, Infrastructure and Communities, we had identified approximately 70 different concepts to consider for amendment within the legislation. The concepts contained within the amendments in the new legislation are indeed those pieces of low-hanging fruit that were identified to the House of Commons committee to provide the greatest benefit in the shortest amount of time to the widest breadth of individuals and agencies in Canada. They have been incorporated in this set of amendments.
The Chair: Thank you. Is it fair for us to conclude that there is an ongoing process under your direction for further amendments or for a complete new act on navigable waters protection?
Mr. Osbaldeston: One of the amendments in the legislation provides for a five-year review. We will take the five years of operation of these amendments to assess, in consultation and collaboration with our stakeholders across the country, their benefit to determine whether the amendments are achieving the intended results and to ensure they are not providing any undesirable results that need to be corrected. We have committed to report back and identify whether these amendments are sufficient and whether more are required.
Senator Spivak: Mr. Chair, unfortunately I have to leave. May I ask these gentlemen to provide us with a written answer to the question of the minister's discretion and the statutory instruments, which he had no chance to answer in full?
The Chair: Do you understand what Senator Spivak is asking for? I do not want you to commit to something you cannot deal with.
Mr. Osbaldeston: Perhaps the best way to respond would be to ask that a formal request be made in writing, and we can determine the precise nature of the question.
The Chair: We might be able to bring it out in the course of the hearing this morning.
Senator McCoy: I am pleased that you have noted this time that the NWPA had not been amended substantially. When you appeared before the Senate Finance Committee you said that it had not been amended since its enactment in 1882. I am pleased to see some clarity emerge. That is what we would like to establish. According to your numbers, one out of every five Canadians has a direct interest by way of recreational navigation. How many would you estimate each level of government represents? All Aboriginals and all provincial and municipal governments have a vested interest in the Navigable Waters Protection Act. Therefore, it is important that we have the right balance.
I was trying to imagine what it looks like in reality. Mr. Osbaldeston, you are the manager of the Navigable Waters Protection Program under Transport Canada. How many people report to you?
Mr. Osbaldeston: The national program comprises approximately 70 individuals who are based in six regional offices across the country. Of the 70, approximately 42 are designated officers authorized to carry credentials and make decisions under the Navigable Waters Protection Act. The remaining individuals are clerical and managerial staff.
Senator McCoy: There are 42 designated officers with ministerial authority.
Mr. Osbaldeston: If managers are included, there are about 48.
Senator McCoy: Do they report to you?
Mr. Osbaldeston: I am a functional authority. The regional officers report to regional managers, and regional managers report to regional directors of marine safety, who report to regional directors general, who are at the assistant deputy minister level and report to the deputy minister.
Senator McCoy: Could you give us an organizational chart of that structure? It would be helpful.
Mr. Osbaldeston: Certainly.
Senator McCoy: Given the name of the act, Navigable Waters Protection Act, it would seem that the statutory duty put upon all 70 individuals of the Navigable Waters Protection Program might have something to do with protecting navigable waters. How would you characterize your statutory obligation?
Mr. Osbaldeston: Our obligation is to protect the public right of navigation. We protect safe navigation and the environment in doing so, but we protect safe navigation. I have to be up front: the title of the act from 1882 has been the subject of hours of discussion in policy review among practitioners to determine whether it is a misnomer. Under the law, we are protecting the common-law public right of navigation.
Senator McCoy: As you administer your statutory obligation to protect the public common-law right of navigation, are all navigators protected equally? Are there hierarchies of users, or are they all of equal weight and concern?
Mr. Osbaldeston: There is only one law, and it is for all Canadians; therefore, there is only one law and it applies equitably to all who navigate. We have to make decisions that provide a wider channel for a wider form of navigation, and those sorts of things, but there is one law servicing all Canadians.
Senator McCoy: I can appreciate in this day and age, with continual pressures on our civil service and cutbacks and so forth, that you have been sorely pressed and in fact have a backlog of applications. Your website indicated that last year, or it might have been the 2007-08 fiscal year, the Department of Transport received 2,500 applications under the Navigable Waters Protection Program. That would seem to me to be an average of just over 200 a month, which would be roughly 10 a day. Are you saying that your 70 individuals are unable to keep up with 10 applications a day spread across the country?
Mr. Osbaldeston: What does not appear in the applications that we receive on an annual basis is the corresponding number of applications that are ongoing under review on an annual basis. We do receive, on average, 2,500 applications annually, but on our desks, carried over from the year before, still undergoing review, are another approximately 2,500 applications. Some of these applications under review, as you can imagine, go on for two or three years for the mega hydro programs and mega transmission lines for large energy projects and pipelines. We are under review now for the Mackenzie Valley pipeline. It has been 14 years. There are projects still on our desks that carry over from year to year that we continue to work on. There are 2,500 new applications a year, but on average there are also 2,500 applications already on desks and moving in some form.
Senator McCoy: What is the actual process you go through? Let us leave environmental assessments to one side. I might come back to that, if I may, but that is really not your business, is it?
Mr. Osbaldeston: No, it is not.
Senator McCoy: You do go through a review process, and I want to pick that apart, if I might. Did you say what you do is a navigational assessment?
Mr. Osbaldeston: Navigational impact assessment.
Senator McCoy: What does that entail?
Mr. Osbaldeston: That entails, first, receiving an application from a proponent that has tombstone data on it, not only who they are and what they are proposing to do and the various logistics of themselves, whether they are a consultant or the owner, but also identifying the owners of upland properties and the logistics associated with the waterway itself as they best know it. The application provides us a starting place to gather minimal information in order to start our review.
Once we receive that, we assess the waterway itself to determine whether it is navigable. "Navigable" has been defined for us through various jurisprudence ultimately as being that if you can float a canoe or kayak, regardless of for how far or how long, it is navigable. If it indeed is navigable, then we will start our assessment of other components associated with that particular waterway. What businesses on it use the waterway? What landowners are on it and have interest in the waterway? What type of actual navigation is there on the waterway? What type of industry depends on that waterway, such as aquaculture, commercial shipping, that sort of thing?
After all those considerations are done, we assess the impact of the proposed work upon that type of navigation. We could actually chart on drawings, on actual charts, the position of the work in the water and determine its impact on navigational corridors. If we are unfamiliar with the particular waterway, we could go out and do a formal site inspection to visualize the waterway. We work collaboratively. Canada is a pretty big place, and we have a lot of water. We could contact other federal colleagues and ask them to take photographs of the specific position where the work is proposed on the waterway and photographs upstream and downstream to give us a visual in the office if that would work. Quite often, we end up climbing into aircraft or helicopters or boats and heading out to look at that portion of the waterway, as well as upstream and downstream, to determine the area, the cultural environment, et cetera with respect to navigational concerns on the waterway.
In the end, we make an assessment. Is it navigable? If yes, then the act applies. If it is not navigable, then we send a note back to the applicant to say the act does not apply. If it is navigable, we conduct that assessment and determine whether any navigational concerns are evident. If they are evident, we identify whether any measures could be put into place to mitigate the concerns, such as signage, lights, sound systems. Or we could request repositioning — move your dock over a few feet, for example.
Often there is an iterative process on the larger projects, as you can well imagine, with both consultants and the proponents. Where there is substantial interference to navigation, there is a public advertisement requirement automatically whereby there has to be a period of time where the individual posts ads within papers in the area and nationally to identify that there is a project identified at this particular location and to invite comments with respect to navigational concerns. That is a 30-day period. At the end of that, we assess those comments as well and add them to the pool of potential concerns and see whether we can mitigate those concerns.
Most often, concerns can be mitigated. I want to emphasise the point that we are after shared, safe waterway use. Things have to go in, on, over, under or through water, but people have to move on the water as well. People like to enjoy the water from a recreational standpoint, and businesses need the water in order to traverse in certain areas. We are after safe, shared use. We most often are able to come up with a plan, terms and conditions that we can attach to approval of the work, and as long as the individual complies with those terms and conditions to construct his work, his work can be placed in that water and maintained in a safe manner.
Senator McCoy: That is an excellent description. I understand from people in Alberta and also from evidence given before the House of Commons committee that one of the delays in administering and therefore building infrastructure on navigable waters has been the requirement for your program to make that first determination, whether something is it navigable waters. The Government of Alberta, for example, and many counties will give you example after example of having to wait a minimum of six months for that one determination to be made. One of my friends in the business of environmental assessment said they were held up for almost a year in a remote part of Alberta because your program could not even find the water that was in question on a map and was reluctant to go into that mosquito-ridden remote area, and so they had to wait for almost a year. I see nothing legislative. What have you done to overcome that administrative deterrence? That has not been addressed in these amendments.
Mr. Osbaldeston: I think we have gone a long way to address that — or will be with the passage of orders. Those orders identify classes of water that would be unreasonable to navigate.
The particular concept there for the orders would be that if a section of river or creek bed, for example, is too obstructed, shallow, narrow or steep to support reasonable navigation, there is no need to apply. That, in itself, is really a determination of navigation for those types of waterways such as you have just described.
I recently met with the Transportation Association of Canada — the chief engineers, the people who build the bridges. We have been in contact quite extensively over the last seven or eight years on this matter and they asked me the same question. I indicated to them that if the orders go through, which I understand they have, you could actually create a 200-metre template. This is your single point where you are proposing to put a bridge or run a pipe or a line; 100 metres above it and 100 metres below it on that waterway, if there are so many obstructions or if the slope is so steep or if it is this narrow at three measurable points or if it is that shallow at three measurable points, you can determine that it is unreasonable to be used for navigation, with no need to apply to us prior to construction.
They could actually build that template and go over those Alberta maps they have and ask whether that fits. That section is not reasonably used for navigation; we can construct there. Three hundred metres downstream is navigable, so maybe I do not want to propose to put my particular crossing in at that point.
We are addressing it in the minor waters aspect of the orders — at least I hope we are. That is the intent; our five- year review will tell us.
The Chair: I am putting you down for a second round, Senator McCoy. I have given you long latitude here because you are so well prepared. We will come back.
Senator Milne: I may be able to follow up on some of your questions, Senator McCoy.
I have two questions. First, why was the old act applied to waters that were clearly non-navigable? That seems to be the basic problem that has caused a lot of angst over the years.
Mr. Osbaldeston: The first order of the day was to determine what was non-navigable. That has always been the problem.
Under the old act, the way it was worded — and I will be facetious here in my example — if we closed the doors in this room, filled it halfway with water and floated a canoe in here, I would have been regulating this room, which clearly was not the intent of this act. Jurisprudence being what it may, and with hidden agendas over a long period of time in various courts, that is what it led to.
We hope the new legislation resolves that by cutting these truly unreasonable-for-navigation sections of water out. No one we have been able to speak to has been able to provide us with a true definition of "navigable water," but we can define what in our marine safety experience, our navigational safety experience, cannot reasonably be used for navigation.
Even if a creek has a foot of water in it —
Senator Milne: A canoe can get up it.
Mr. Osbaldeston: It could until you put a big body in it and then you may be scraping down it. You can still go, but you will scrape your paddle and your canoe. Is it reasonable to think that they will do it, or will they get out of the canoe, go around and portage because they do not want to scrape off the bottom of their canoe and their paddle? These are the type of criteria we are trying to develop in the orders, where it is reasonable.
Senator Milne: My canoe floats in a foot of water quite easily.
Mr. Osbaldeston: Until you get in it, no offense.
Senator Milne: A foot of water would sink it.
Mr. Osbaldeston: I can tell that you we did have third-party studies done to determine what was reasonable in that respect. We talk about sinuosity. The reason I am bringing this up is this criterion did not exist before. There is no definition of "navigable" you can find anywhere to apply, so we are trying to create it, but by what means? Hopefully, it is one that the public can use. We are trying to create the definition by means that are measurable in the field by industry and by the average cottagers, if they want to put in their dock.
What are the criteria whereby they can define that? That is why we used third-party studies. We have taken that and used our own knowledge of marine safety and navigational techniques, and I hope we have come up with the best possible solution. Five years down the road will tell us as we do the review, but the answer to the question is that there has never been a definition of "navigable." We could not come up with a clean one that would suit all aspects; so the next best thing, we felt, was to come up with clear and measurable descriptions of types of waters that would not be reasonably used for such navigation.
Senator Milne: That leads me to the next question. In the term you use, if the paper does not come in the door, how will you ever be able to tell if an assessment should have been done in the first place?
You have only 70 people out there. They will not be able to inspect every inch of shoreline and waterway in the country every year. There is no way they can possibly do that. If someone just says, "Okay, I am just rebuilding my dock" — except they are expanding it from 15 square feet to 6,000 square feet — they are just rebuilding their dock. How will you ever be able to judge?
Mr. Osbaldeston: Quite frankly, we were not seeing a lot of that stuff anyway. In those particular cases, were they being built safely or not? No one could tell because no criteria had ever been developed to describe what a safely built dock in a small navigable channel would be; so people were winging it and we were getting complaints. We were going out and then forcing them through the route to make the application.
I think we have progressed beyond that now. We are now going out and saying, "Here is safe construction. Here is safe positioning within a navigational channel of this type of minor work. As long as do you it that way, you will be safe and people attempting to get around you will be safe." That is an enhancement to where we were.
Senator Milne: It will be complaint-driven?
Mr. Osbaldeston: For the most part, even on the larger projects right now, most of our reactionary work is done off public complaint, or when we are in the field and we see something and go down and take a closer look.
The main thing is that whenever there is a public complaint, whenever there is a public concern — whether it is a work that has been constructed without application in advance for approval, such as under the orders, or with an application — as soon as there is a navigational concern, our officers are on it and they will review it and correct that situation.
Senator Milne: Even though they have 2,500 things sitting on their desk?
Mr. Osbaldeston: Even though they have 2,500 things. There is one law for all Canadians, and if there is a safety concern we cannot ignore it. We have to address it.
Senator Milne: In the new act, subsections 4(3) to 4(5) discuss the removal and alteration of a work. What are the criteria for that? Will there be a timeline? What are the rules?
Mr. Osbaldeston: I do not believe there was any great adjustment to those particular areas.
Senator Milne: The provision in section 4(3) allows a minister to order the alterations or removal of a work or to order the owner to comply with any terms and conditions specified by the minister in this section; section 4(4) allows a minister to remove and destroy the work if the owner does not do it; and section 4(5) allows a minister to recover costs.
Mr. Osbaldeston: Yes, it always has been there. Those particular provisions have always been part of the legislation, and that is part of our corrective action capability.
Senator Milne: Is this not a new section?
Mr. Osbaldeston: It is not a new section. Mind you, it has been associated with works either that have not been approved in advance or that have been approved but not built correctly.
Senator Milne: What ratio is there between works that are complaint-driven and works that you initiate?
Mr. Osbaldeston: I do not have that figure.
Senator Milne: Could you get that for us?
Mr. Osbaldeston: I will see whether we have statistical information on the number of complaints that come in, but I cannot guarantee that it is captured. We will look into that for you.
Senator Merchant: Thank you for your explanations this morning, which have helped to clarify the act.
What happened when people did not comply with the regulations under the old act? How has that changed under the new amendments?
Mr. Osbaldeston: Under the old act, if we observed a non-compliance issue we would attempt to negotiate compliance with the concerned party. If the concerned party refused to comply, we would then issue formally an order for compliance to make adjustments. If that were not undertaken, then we would have the adjustments made and charge back to the non-compliant party. The adjustments would be to have the non-compliant element either modified or removed. This was the clause to which the previous senator referred.
Ultimately, the largest fine under the old legislation for doing anything improperly was $5,000. Indeed, we have had situations in the past where unapproved work has been started and has caused serious interference with navigation. Our officers have not been able to respond due to the close proximity of the site to attempt to remedy the situation by ordering stop work. In one case, the individual said, "What can you do to me?" We said that we would fine him. He asked, "How much is the fine?" We said that it was $5,000. He went to his pickup truck, pulled out a cheque and asked, "Who do I make it out to?" He then said, "I need this crew at another location tomorrow; $5,000 is nothing." We were stuck. We would have had to call the police but, by then, the work would have been done and the interference would have occurred anyway.
In trying to provide a deterrent to non-compliance, we do not want to get into enforcement action, because that involves time and money for all parties, ties up the courts and can go on forever. The best thing is to establish reasonable deterrence in order to promote compliance. Under the new legislation, that deterrent is a fine of $50,000 per day per non-compliant incident. If the offender stays non-compliant for one day, it will cost him $50,000; and for a second day, it will cost him $100,000. It is a continuing offence.
Senator Merchant: How did you arrive at the figure of $50,000?
Mr. Osbaldeston: We looked at a number of pieces of legislation within Transport Canada that had been passed recently. One involved international bridges and tunnels and their numbers are very high — up to $500,000. We recognized that for large works encompassing an international bridge or tunnel, a fine of $500,000 per day for non- compliance is likely equivalent to a fine of $5,000 per day for a cottage owner who is non-compliant. Therefore, we determined that a fine of $50,000 per day to promote compliance would be reasonable at the outset. The five-year review will tell us whether we were right.
Senator Merchant: Do the proposed amendments take into account Canada's international agreements? I notice there is mention of the Nairobi International Convention on the Removal of Wrecks, 2007.
Mr. Osbaldeston: We took that out. It was a proposal to attempt to align with some international convention work that we were doing through the Canada Shipping Act. We have removed it from the considerations for this bundle in the amendments. It does not exist in the new legislation. That international convention will be much further down the road. For it to take place, we need to make a legislative change, but it is not required for quite some time if it ever comes about. That is why we removed it.
If I may, I realized that I was incorrect in answering Senator Milne. I was referencing a different clause than the one to which she referred. Senator Milne referred to Crown works, referred to in the new section 4. It is important to note that, because it is a big part of this legislation.
Senator Milne: Did you say Crown works? The new section 4(4) allows the minister to remove and destroy the work if the owner fails to comply. That cannot possibly refer to the Crown.
Mr. Osbaldeston: May I consult a moment with my legal adviser? I am misinformed.
Senator Milne: This is from the department's analysis.
Mr. Osbaldeston: I understand, senator.
Whether it is a Crown work, the gist is that if we see something that needs to be changed, we can order it changed. It speaks to Crown works determined to have been approved as of March 12, whether or not they were approved in advance. For any work beyond, such as extending a wharf, they must apply to us as any other tenant would be required to do. If in the course of that application something is done incorrectly, then we can order that it be changed. We treat it as any other application.
The Chair: Thank you for that clarification.
Senator Lang: I appreciate the overview you have provided of the consequences of the legislation. I have a point for clarification in looking back at the history of the Navigable Waters Protection Act. Senator Spivak gave the impression that a political decision was made in the last two years to change the NWPA. However, it is my understanding that there have been complaints over the past 10 years at least about the constraints that the NWPA puts on various types of construction. Further, other players, whether within your department or otherwise, have called the act into play where it has not been necessary and caused undue financial hardship and time delays. I want to get that clarified for the committee. This has not just appeared all of a sudden. Is that not correct?
Mr. Osbaldeston: You are correct, senator. In the last 20 years, to my knowledge, there have been four separate attempts to form project teams to implement amendments to the Navigable Waters Protection Act in two different departments, in Transport Canada and when this program was with Fisheries and Oceans Canada as part of the Coast Guard. In 2002, I left Justice Canada and took an appointment with the Coast Guard in Fisheries and Oceans Canada specifically to lead a project team to amend the Navigable Waters Protection Act. Unfortunately, as events transpired, as they often do in government, two weeks after I arrived, I was informed that we were not doing that any more. There has been a great attempt over the last 20 years to try to get this act modernized. The longer the delay, the more serious the difficulties we encountered in attempting to administer the act in its old format.
Senator Lang: We are all looking for a balance, not unlike yourself, and some common sense coming into play. From my part of the world, I have seen a number of times where legislation and requirements that do not make common sense are in place and cause great hardship to individuals or collectively to companies, and at great cost. I support that type of an approach. It is overdue. Common sense has to start to prevail if we are to meet the needs of the economy of today as well as our environmental responsibilities.
I have a question on the applications. You mentioned 2,500 applications on average per year. Do you have any idea how the new legislation will affect the number of applications? Will the number of applications decrease because of the new criteria that will allow people to move in certain areas that are not necessarily against the legislation?
Mr. Osbaldeston: Obviously we do not have a fixed number. In the first year at least, we are hoping for a drop of about 15 per cent of the small stuff to try to eliminate that. If we can achieve more through the measures we are trying to put through with some other administrative and policy issues, that would be excellent, but at this point we cannot say.
Senator Lang: Further to that, you have a list of projects that are in the pipeline. My understanding is that the passage of this legislation will speed up or expedite certain types of projects. Do you have a list of the projects that would be expedited because of this legislation?
Mr. Osbaldeston: I do not have a list with me here, but I could provide one.
The Chair: That would be helpful.
Mr. Osbaldeston: I could also identify which particular amended clause provided for that benefit that will be realized as a result.
Senator Lang: It would be interesting to see in the next two years what projects will be expedited and be able to go ahead.
Mr. Osbaldeston: These are mainly related to the infrastructure projects.
Senator Lang: Regulations are required under this act. My understanding is that the regulations will go under some public review prior to being promulgated. Have the regulations been drafted? Are they available for review, and when would that review start? When do you expect it to come to a conclusion?
Mr. Osbaldeston: The amendments provide for regulation-making power, which we did not have before. It was our intent, when we went before the Standing Committee on Transport, Infrastructure and Communities to move directly into regulation mode with the amendments.
Because of the economic crisis, we moved into the orders first, in order to achieve the initial benefit. My understanding is that those orders were signed last night by the minister. We have already started to plan towards the development and implementation of regulations, including in that regulatory package a full public consultation process as per any other regulatory amendment or development process.
We have started, at least with the planning and staffing up for the work. As can you imagine, we need quite a few regulations in place. The old act had no authority to do it, so we are playing catch-up here. We hope over the next couple of years to put a number through.
Senator Milne: I have a supplementary question: Will those orders be gazetted?
Mr. Osbaldeston: Yes. The orders will be gazetted within 23 days, and once gazetted, they will come into force 30 days subsequent to that date.
Senator McCoy: I thought we had asked staff to ask you to bring a copy of what you intend to promulgate under these orders. We do not have that. Now that the orders have been signed, could you provide us with copies with alacrity? We might as well speed up the public dissemination process here.
The Chair: I will allow that intervention, Senator McCoy, with alacrity, but, in the future, would you please do it through the chair.
Senator Neufeld: I appreciate that you said you have been 20 years trying to bring some recommendations to change the Navigable Waters Protection Act. Obviously that has happened under different political jurisdictions in Canada. Everyone realizes that an act written in 1882, amended, I think you told us, once or twice, does need some huge changes.
When I was a minister in British Columbia, usually when we got recommendations from staff about issues because they could not carry out their work, it was not political interference; rather, it was our democracy, which works quite well. Politicians listened and said we need to change some of these things, and that is how it works. It is not political interference but is actually moving forward, and I wanted to clarify that a bit.
I want to go back to the 2,500 applications per year. I am a bit surprised that you think there will be only 15 per cent fewer. Is that decrease in the first year, or are you anticipating that number dropping quite substantially in the ensuing years? Will you get more staff? I think you said about 70 people administer this. In British Columbia, we have over 300,000 rivers, streams, you name it. Seventy people could not even begin to manage that. Could you expand on that?
I appreciate what you are saying. You need to have some rules that say how to do a dock so that individuals do not have to go talk to you anymore, because that is needless, but is there an anticipation that the applications will drop more substantially in the ensuing years?
Mr. Osbaldeston: Absolutely. I am being conservative at 15 per cent because I do not have substantive enough statistics in front of me, and the responsiveness of Canadians to the new endeavours is yet to be seen. We want to get the drop to be as large a number as possible, and we will do everything we can in order to do that while ensuring that we maintain the navigational safety standards and our oversight of environment.
The answer is that we hope to improve substantially, and my 15 per cent is conservative at best. Perhaps my superior can respond regarding the resources.
Mr. Roussel: As the director general of the organization, I receive the request for funds. We are quite concerned about this program; we have put a lot of funds into it and will continue to put in funds.
However, the main focus we must be aware of is that we have amended a piece of legislation. We have orders that will be the base of the regulatory regime; and we have to be clear that when the order goes out, it is how we will use this piece of legislation in the future. The regulatory-making power is there, and you could probably see in the future that the order will become regulation.
The second important point is that we will continue to embrace in the coming years an intensive awareness and education program with our different stakeholders.
Due diligence by the stakeholders must take place, and that is somewhat a reverse of burden. For example, when people in the forest industry are opening a new area going over rivers, creeks and so forth, sometimes they have to build 40 bridges to get to the new area for exploitation. It is the same with the pipeline industry. Awareness and education around the implications for those large clients will help reduce significantly the number of applications. We always have the caveat that the numbers of crossings done over rivers, creeks and so forth fit within the order regime, so that we have a limited number of applications.
This will take the whole of 2009. We are starting next Thursday with a public session, not during our Canadian Marine Advisory Council meetings that we have in May and November. We will do regional awareness and education sessions at our original Canadian Marine Advisory Council. We are doing it across the country in the five regions, including the North.
Senator Neufeld: Having been responsible for power development in British Columbia and mines and oil and gas, when it came to creeks and rivers, I also got thousands of emails. They were usually almost the same. A huge group of people out there will immediately start sending lots of emails about destroying the environment and those kinds of things. I do not believe you would want to do that, or any political party would want to do that in the world that we live in today.
I believe in looking at maybe the federal government deferring a bit more responsibility to the provinces and territories. Actually, I think provinces can make some pretty good decisions about some of these things in a general envelope across Canada. Do you defer to the province any of your decisions as they deal with the Navigable Waters Protection Act, to make decisions that respect the environment but get things done?
Mr. Osbaldeston: No, our legislation has not provided for that. We hope down the road to look toward partnership arrangements, whereby if you have officers in the field who are in areas where there is proposed work, we could ask you to assist us by providing information. Taking digital photographs is usually the most common way — digital photographs of a particular water location if you are going to be in that location.
We do that type of collaborative effort now, but we hope to formalize some of those arrangements down the road. It would be a more efficient and effective use of resources that are out in the field in some pretty remote areas.
We currently share helicopter time, for example. If federal people are heading out to review a pipeline or a hydro project in B.C, we always call our provincial or territorial counterparts and say, "We are heading out this way; do you need to take a look at anything while we are going?" The reverse is also true.
In the operational world, those types of partnership arrangements go on informally, but we are hoping, with our new capabilities, to be able to formalize some of that. At this point, decisions under the legislation remain under the Minister of Transport.
Senator Neufeld: I know that back home the Oil and Gas Commission, which is a regulatory body responsible for administering the oil and gas acts in British Columbia, has an agreement with Fisheries and Oceans Canada to do some of the work for that department. Rather than having a bunch of people wandering on the site day after day, you have a certain set of rules and ensure they are being administered correctly.
I would hope that in the future you would look at making similar agreements with different public bodies, especially provincial or territorial bodies, to carry out some of the things you have to do. It reduces the duplication and probably would be more understandable.
Your 70 people across Canada are spread pretty thin, I think it is fair to say. Therefore, perhaps there is a way that we can do those kinds of things.
I have one final comment: I would almost bet — as long as I am here anyhow — that if another administration comes to government, there will not be a change back to the old act as it was before. I think this discussion is good and progressive and we will see some movement so we can get some things done in Canada.
Senator Banks: You mentioned that there is a statutory requirement in this act for review and reporting in five years. Who will report to whom?
Mr. Osbaldeston: I am not sure of the logistics of that process.
The Chair: Who will do the review?
Mr. Osbaldeston: It is up to the department to review and to report back.
Senator Banks: When you are able to, will you tell us to whom you will report? I presume it will be to the minister.
Mr. Osbaldeston: I am unfamiliar with the process exactly, but I will find out what the details are. It is not an unusual process; it is a common piece now in legislation.
Mr. Roussel: Section 41 in Part 5 of the Navigable Waters Protection Act states that a review of the provision and the operations of this act must be completed by the minister before the end of the fifth year after the day on which this section comes into force. On tabling of the report, it says that the minister shall cause a report of the review to be laid before each House of Parliament.
Senator Banks: That answers my question. We are very familiar with reviews of this kind of matter. We have several reviews; the Canadian Environment Protection Act is coming up, for instance, and I must give you some news about that today.
You talked about a connection between the actions that are necessary in this bill of amendment and infrastructure and economic stimulus and the like. I presume I am correct in assuming these provisions survive any current economic stimulus package. There is no sunset in here. They may have been triggered by, but they are not connected to, a particular economic stimulus package. Am I right?
Mr. Osbaldeston: That is correct. These amendments are amendments to the legislation, and the legislation is in place for all Canadians until further amended down the road.
Senator Banks: Aside from this act, are you aware of any automatic exemption from your review of navigable waters and their protection that would relate to the Building Canada program? Is there an automatic thing that says projects under the Building Canada program are perforce excused from your purview?
Mr. Osbaldeston: Not to my knowledge. If they are within 30 metres of water, which is part of the screening criteria of the infrastructure, they will be reviewed by us under this legislation.
Senator Milne: I have a supplementary: How do municipalities get away with everything they do in Ontario? They can fill in headwater swamps with gravel. A company goes through, and if there is a beaver dam holding back an amount of water, the company has to ensure the beaver dam remains in place. However, the next day, the municipality can come in, blow it up, and fill it with gravel.
Are municipalities exempt because they are creatures of the provinces?
Mr. Osbaldeston: Municipalities, provinces, the federal government and all Canadians are bound by this legislation.
Senator Milne: I will make a point of pointing that out to some of them.
The Chair: I think you should run for mayor and get it fixed.
Senator Banks: I want to return to a question about the phrase "not a statutory instrument." You said that regulations under this act will be drafted and published in the Canada Gazette. Are they statutory instruments? Will those regulations be susceptible to scrutiny by the Standing Joint Committee for the Scrutiny of Regulations?
Mr. Roussel: Yes, any regulation made would go to the Standing Joint Committee for the Scrutiny of Regulations.
Senator Banks: Does that include all regulations made under this act?
Mr. Roussel: Yes, to my knowledge.
Senator Banks: However, ministerial orders made under this act are said not to be statutory instruments and are, therefore, not susceptible to scrutiny. That raises the question: If one were to contravene a ministerial order given under this act, and it had not been susceptible to scrutiny, is it possible that a person, a corporation, a province or a municipality could break a law without being aware that they have broken the law or transcended a regulation — or actually, a ministerial order, in this case? How would I know?
Mr. Roussel: It is published in the Canada Gazette.
Senator Banks: Ministerial orders are published in the Canada Gazette, notwithstanding that they are not statutory regulations?
Mr. Osbaldeston: That is correct. As I signed last night, these orders will be published in the Canada Gazette within 23 days.
Senator Banks: I have a predilection against the delegation by Parliament of too much authority, which has been happening under successive governments of all stripes; in some respects, we have been delegating authority that, perhaps, in some cases, we ought not to have delegated.
In the case of this bill, amended section 13 of the Navigable Waters Protection Act provides that a ministerial order may be given under this act that is not a statutory instrument and, therefore, is not susceptible to review by the Standing Joint Committee for the Scrutiny of Regulations, and that "An order may incorporate any material by reference, regardless of its source, either as it exists on a particular date or as amended from time to time."
I will be absurd. I am bringing this up because I am a member of another committee that has just dealt with an act where the minister, when he appeared before us, agreed to the removal of this provision. I will give an extreme, absurd example: The minister could incorporate, under section 13 of this act, regulations that exist in North Korea. Not only could the minister incorporate them, but they are ambulatory, in that five years after having been incorporated by reference in this act, if they were changed by the Government of North Korea, that change would become a part of a ministerial order under this act.
Therefore, we are not only delegating from Parliament to the minister the authority to do these things, we are delegating to the minister the authority to incorporate any material from any source whatsoever and it would become part of a ministerial order.
The Chair: Are you asking a question about that?
Senator Banks: I am explaining the question I am about to ask.
The Chair: So far, I go with your reductio ad absurdum, but do not take it too far.
Senator Banks: The minister could incorporate any material from any source, and we are also authorizing the minister to delegate the making of what constitutes regulations under this act to someone who is not necessarily a Canadian.
Is that wise, and do you not think that subsections 13(2) and 13(3) are an unwise delegation of parliamentary authority to the minister to incorporate any material, from any source, for any purpose?
Mr. Osbaldeston: Perhaps, I could just speak to what that was leaning toward with respect to what types of materials we are talking about.
The Chair: You have to admit it is very broad language and the senator has a good point there.
Mr. Osbaldeston: Maybe Mr. Roussel can speak to the second part of the question, which was too broad.
The Chair: And he may not.
Mr. Osbaldeston: That was going to be my point.
The Chair: Senator St. Germain will have a point of information.
Mr. Osbaldeston: This type of referencing leans back to, for example, the Canadian Standards Association's standards. I will give you the example of aerial cables, communication and hydro cables going over waterways that we can reference to a published standard by an authoritative organization recognized nationally for such responsibilities, which says that it must be so many metres above.
Senator Banks: It does not say that, however.
Mr. Osbaldeston: No, it does not say that, but that is what it is geared for. That is the intention, the objective. If there are recognized standards by incorporation by reference, if they amend those, we will continue with the amended version from there on in.
Senator Banks: If this amendment were amended to make it a sufficiently broad description of the materials to be incorporated, it would incorporate the kind of things that you are talking about and leave considerable leeway. Would you think that would not be obstructive to your purposes?
The Chair: Senator Banks, I am with you on this, but would this not be an appropriate place to make a note in contemplation of the five-year review to determine the use and/or abuse of that particular section? On the face of it, I do not think you need to be a rocket scientist: this provision has wide latitude, and Senator Banks has done a good service to point it out.
Mr. Roussel: It is a good point. If I may add to it and discuss how we use it in the regulatory regime, we consider orders to be in the genesis of the regulatory regime. When we make reference — and I understand the wording is very broad — usually we reference from standards that are recognized. For example, we would reference hydro standards.
The rule is that we will normally never reference standards that we, as Canadians, are not part of — such as organizational standards — in one way, shape or form. That means we have an influence in the debate of that organization when the developments of those standards took place. For example, we are doing this with international maritime organizations, international standards organization, the Canadian Standards Association and any other standards that are available. We go to great extent to ensure we are members of those organizations or of the committee that has developed the standards, that are of need for us. We will do the same in this fashion.
Senator Banks: I understand what is intended, but this is an act of Parliament and not a statement of policy, and this says any material from any source.
The Chair: I believe the point is made.
Senator St. Germain: I have a short question, but I will pass.
The Chair: We have 10 minutes remaining.
Senator Peterson: My question is how you interface with other departments, for example Fisheries and Oceans. An application is made to you and you determine a stream or body of water is not navigable. Is that the end of the story, and the next day, one could begin construction of a culvert or a bridge? O is there a higher authority?
Mr. Osbaldeston: No. A series of approvals and authorizations is required, as with any building project required. Fisheries and Oceans reviews and may issue an authorization document for potential destruction of a habitat. We also perform a review from a navigational aspect. Even though our review might determine no navigable concern, Fisheries and Oceans might have a concern with respect to fish and habitat.
Senator Peterson: If you are not the lead, why would that not have been resolved before so that it could be dealt with by Transport Canada? With other departments involved in the review process, when would the final authority occur?
Mr. Osbaldeston: As with any building project, permits have to be acquired. From a federal government standpoint, it is important to identify at the outset what is required and to provide that information up front. The final authority occurs when all of the permits are complete and positive.
Senator Peterson: Thank you.
Senator Adams: My question was similar to Senator Peterson's question. We live in the North where we have many rivers, lakes and the sea. They are not similar to those in the South. You talked about cottages in the future up there, but I do not go out until the beginning of July.
My concern with the Navigable Waters Protection Act is that we have water rights and surface rights under the Nunavut Waters and Nunavut Surface Rights Tribunal Act. We work with the mining companies, with the road crews for new mines and with Indian and Northern Affairs Canada, in particular for travel during the winter to the sites. Everything must be approved. They are even required to obtain the proper permits for winter trails to the mines to ensure that there is no environmental damage. People complain about the cruise ships in northern waters because sea mammals, polar bears and other animals live close to the communities on the water. People in Pangnirtung have great concern for the mating whales, given all those cruise ships sailing up there without permission. If that bill passes, will there be more ships? How will the animals be protected? Will this bill help that situation in the North?
Mr. Osbaldeston: I believe I indicated earlier that we have to issue our approval document, which is only one federal approval document. To do that, we must first complete our navigational impact assessment, including potentially looking at fishing areas and patterns of all boats in the area; and second, we must have a positive environmental assessment when required, including looking at animals and their habitat. Perhaps most important for the Nunavut community, we would look at whether Aboriginal peoples' concerns have been identified and addressed. All of that is taken into consideration when we create our approval document with terms and conditions.
Senator Adams: Someone has to make an application to build a highway and do other construction. Is there any way to ensure that companies comply with orders from Transport Canada or Fisheries and Oceans Canada or with environmental regulations to protect the animals and marine life?
Mr. Osbaldeston: Perhaps Fisheries and Oceans or Environment Canada would be responsible, but other federal departments also responsible for fish, wildlife and natural resources would review that as part of the application process.
Senator St. Germain: You have 42 regional officers in 13 regions for the country. Is that logical? As Senator Milne pointed out, municipalities are draining swamps and filling them in with gravel. Why is responsibility for these ditches not relegated to the provinces? Why is the federal government holding onto this unenforceable power? Any law that is unenforceable is bad law. You have 42 people, which means four people per region, before taking into account those away from work due to vacation. That does not leave many officers to look after such a vast country. I question the practicality of the entire process and whether that will be considered in the five-year review.
Mr. Osbaldeston: To be politically correct, I will let Mr. Roussel answer that question.
Mr. Roussel: We have to realize that we are not alone in this. We deal with aspects relevant to navigation. Others deal with environmental assessments within Transport Canada. Others still deal with environmental assessments under Fisheries and Oceans. Do we have enough public servants? I am in a conflict of interest. We never have had enough, but the public will say that we have more than enough. The regime we have to manage causes problems. We are convinced that the amendments will help to streamline the application process and consultations with the various stakeholders. In the end, clarification will be provided for all Canadians. We are convinced of that.
How will we move forward in the next five years? We are happy that this amendment is in the NWPA so that we can do this review. Of course, if additional needs arise, it will be part of any other review and will go through the normal process of cabinet and Parliament to determine the need for additional funding. At this time we have approximately 10 per cent additional funding to the overall program. We will continue to do that over the course of the next two years to ensure that the implementation of the amended act takes place, focusing on the awareness and education of stakeholders. We know it is a steep learning curve to convince everyone that it is good for Canadians. Although it is far from being a perfect package, it is better than the legislation we had before.
To give you an idea of the figures for infrastructure projects, 700 are available under the stimulus package within the municipal rim. Of those, a significant number are under NWPA review. People want those projects to move forward. They are all linked to water, sewers or piping and linked with the overall protection of the environment.
The Chair: It is now 10 a.m. Before we have one last question from the deputy chair, I wanted to say that this is only the first of a series of hearings. We will be reconvening here on Tuesday, April 28, and then the following week on both the Tuesday and the Thursday. I am sure you will be happy to hear this, Mr. Roussel and Mr. Osbaldeston. You will be coming back with either the minister or the parliamentary secretary. We have many more questions for you.
I apologize to Senator McCoy, but I know she understands. We did not get to the second round today, but she will have ample opportunity in the future.
In the meantime, the witnesses have made a number of undertakings in response to requests from various senators to provide further information for us. The sooner we can get that, the better. The transcript will be available and posted on the website as soon as today. If you can deal with our very able clerk, Ms. Gordon, to make sure we have this in a timely way, it will help everyone.
Senator Mitchell: I need to follow up on that insightful question by Senator St. Germain. You have 2,500 carry- overs and 2,500 new projects a year. I think we need to know how many of those will be taken off the table as a result of these changes and how many, therefore, will be taken off the table of the 2,500 in each subsequent year. If that is not significant, then it seems to me to be a prima facie case, contrary to what you have just been saying about funding, that you do not have enough funds, and maybe the problem is that you are not funded properly to do your important work. Could you answer that in writing?
The Chair: Let us have it verbally if you can do it.
Mr. Roussel: You have a very substantive question. We have to go back and do this formal analysis. As Mr. Osbaldeston said, we have looked at the modest reductions. We think the more we educate the stakeholders, the fewer applications we will get. We also have to look at the status of the backlog, and you need an answer on that. We received this program at Transport Canada from Fisheries and Oceans in 2004. We have been working with it in the fashion that it was designed, and we came to the conclusion that one of the main problems was the actual act itself. We will see how it performs in the years to come, but we do not have a crystal ball. Time will tell. We will get as much data as possible to you for our next meetings.
The Chair: Thank you, honourable senators. For the people watching on television and the web, we are conscious of the great interest in this subject matter, and all of the emails and requests to appear are being addressed in what we would consider the most efficient way possible. We will not have 2,500 people from paddlers' associations come, but we will have representative witnesses from all groups in a diligent effort to address all the interest. Thank you very much.
(The committee adjourned.)