Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 5 - Evidence - May 5, 2009
OTTAWA, Tuesday, May 5, 2009
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 6:20 p.m. to examine the following elements contained in Bill C-10, the Budget Implementation Act, 2009: those elements dealing with the Navigable Waters Protection Act (Part 7).
Senator W. David Angus (Chair) in the chair.
[English]
The Chair: Honourable senators, I would like to welcome all present in the room as well as those listeners on the CPAC network and on the World Wide Web who are sharing in our deliberations with us.
I would like, in particular, to welcome our witnesses this evening. In the centre, we have Brian Jean, an MP, as I recall from a visit to his riding, from Fort McMurray-Athabasca, the scene of the famous oil sands.
Mr. Jean was first elected to the House of Commons in 2004 and re-elected in 2006 and 2008, and he was appointed Parliamentary Secretary to the Minister of Transport, Infrastructure and Communities in February 2006. Prior to entering federal politics, he practised law, was an instructor at Keyano College, a business owner and a publisher. We have been waiting anxiously to have him appear at our committee. Accompanying Mr. Jean tonight are Mr. Roussel and Mr. Osbaldeston of Transport Canada, who have appeared before us previously in connection with this matter.
This is our third meeting on the subject of the Navigable Waters Protection Act amendments as contained in Bill C- 10, the Budget Implementation Act, legislation that was passed by both the House of Commons and the Senate. It is now law. As part of the process that led to that passage, this section on the Navigable Waters Protection Act, NWPA, was referred to this committee for study and review, reporting back no later than June 11.
We have had a number of sessions. We are interested in knowing from you,
Mr. Jean, the government's policy with respect to this particular legislation
and why it was contained in Bill C-10 as well as whatever else you can tell us
so that we will understand better.
Obviously, this is a rather unusual process, being asked to review a section of a bill that has already gone forward, but we take our work seriously. We will report back our findings based on the evidence that we hear. It is important that we understand exactly the government's position.
I must say that Mr. Roussel and Mr. Osbaldeston have done their best to give us the background, but Mr. Jean is the man.
I am David Angus, and I am chair of the committee. To my right is the deputy chair, who is from just south of Fort McMurray, Senator Grant Mitchell. We also have Senator McCoy, Senator Banks, Senator Brown, Senator Neufeld, Senator Lang and, to my left, Senator Peterson, Senator Milne, Senator Sibbeston and Senator Spivak.
We are ready to go after you make your presentation. We all have a number of questions. We will get to the questions afterwards. Let us now get to the substance.
Brian Jean, M.P., Parliamentary Secretary to the Minister of Transport, Infrastructure and Communities: I cannot tell you what an honour it is to be here today and for myself to present in front of you to answer any questions that you may have.
I do know many of you from previously, Senator Mitchell in particular and, of course, Senator Angus, as many of the Conservatives in my caucus. I have had the opportunity to speak with many of you by phone. I appreciate your patience with me as I go through this particular presentation. I want to also apologize for being late as a result of a vote in the house.
It is correct that I am from Fort McMurray, 44 years. I am one of the few people who have been there since the population was approximately 1,500 people; now there are more in the neighbourhood of 100,000 people. Indeed, the area was called the tar sands at one time; it is now called the oil sands because we have the process perfected, and of course now we produce oil instead of tar.
By way of history, my understanding is that Jasper Avenue, as well as Parliament Hill, was at one time tarred with tar sands from the Fort McMurray area. Indeed, now we put it into our vehicles and produce energy.
The changes to the Navigable Waters Protection Act were part of Bill C-10, as you know, the Budget Implementation Act, which received Royal Assent on March 12. Although unusual, it is imperative that this happened because of the necessity with the global economic crisis. Canada's Economic Action Plan set out a very ambitious agenda to stimulate the economy, create jobs and help Canadian families. That was the intention of the government by placing it into the Budget Implementation Act.
One component of this plan, as you know, was a move to modernize the Navigable Waters Protection Act in order to make it a more effective and efficient piece of legislation. It had remained largely unchanged since the 1880s, and I believe it was the second-oldest piece of legislation in Canada, or thereabouts. It was about time we updated it to meet the needs of the 21st century.
By way of example, most of the amendments were done before airplanes were invented, so changes were necessary with regards to them. These changes streamline and modernize a regulatory process that oversees the protection of the public's right to navigate our waterways. I know that a number of committee members have received hundreds of emails and letters from Canadians who are concerned that these changes we have implemented will impact recreational boating and outdoor activities.
I want to assure this committee that I am myself a registered trapper and spend a tremendous amount of time in the bush as a canoeist and jet boater and I have watched this piece of legislation from start to finish. I am assured by my own investigation that the right to navigate our waterways will not be impeded as much as the letters and fear mongering I have seen myself have predicted.
I am here also to tell you that these changes will not in any way jeopardize the waterways that we have valued for generations. I want to be clear about one thing: if you can paddle down a waterway, it will still be subject to the Navigable Waters Protection Act.
The changes are focused on streamlining the process and removing bureaucratic red tape. The modern-day reality is that we need to keep pace with today's ever-evolving and complex marine environment and, at the same time, ensure that we are efficient and effective in dealing with the global economic crisis. We can only achieve such through a modernized act.
On average each year, some 2,500 Canadians apply for approval to construct a project in, on, above or across a waterway. A "waterway" is defined as any body of water that can float a canoe, and therein lies the problem. Until these particular changes, the act would treat major works, such as the Confederation Bridge to Prince Edward Island, the same as a footbridge over a nearly dry stream or a stream that is, in essence, dry for most of the year. They both require the same approvals and the same scrutiny from inspectors.
In fact, some projects are so minor that before our governmental changes, it was basically the regulatory equivalent of hitting a tack with a sledgehammer. A ditch with water for three days a year, we heard evidence in our committee, would require the same regulatory approval as a large bridge.
This government wants to use the people of Canada's tax money and resources on projects that could actually pose real issues to Canadians for boating and navigation. Our modernized Navigable Waters Protection Act will continue to provide such scrutiny. Our revised act will exempt certain classes of waterways and works from having to receive approval under the Navigable Waters Protection Act, and this would include those works that do not impede navigation — for instance, foot bridges over waters that any rational person would not deem to be navigable. Again, those would be nearly dry creek beds.
In this way, inspectors and government resources will be able to spend more time on the major projects as opposed to reviewing minor ones that do not create substantive issues. Most important, this will accelerate a number of projects of all sizes that will contribute to economic growth in our communities and ultimately to the prosperity of Canada.
Infrastructure projects were often delayed due to the provisions under the former Navigable Waters Protection Act, and sometimes even funding for critical infrastructure could lapse before the approvals were received. The revised act will expedite the development of projects through a more streamlined approval process. This supports the creation of jobs and, in turn, stimulates economic growth across the country.
This revised legislation will help us reach two very important goals: we will better protect the public interest in navigable waters, and we will expedite the approval process to get important projects under way.
The Chair: Another colleague has joined us, Senator St. Germain from British Columbia. Welcome.
Senator St. Germain: Thank you. I am glad to be here.
Mr. Jean: I want to make it absolutely clear that this government will not relax our standards on protecting the environment while maintaining access to waterways, nor will we abandon our efforts to maintain their safety. In fact, this revised legislation creates new enforcement provisions that would allow the government to fine people who violate the Navigable Waters Protection Act.
In the original act, the largest penalty that could be imposed for violation was $5,000. This amount may have been significant in the 1880s, but now it may be considered simply the cost of doing business. This is not acceptable. Our changes will impose fines of up to $50,000 per infraction per day. This is a serious and meaningful deterrent to noncompliance.
The changes we have made in the Navigable Waters Protection Act were brought forward after lengthy consultation was stakeholders. I would like to take this opportunity to thank the members of the House of Commons Standing Committee on Transport, Infrastructure and Communities for studying the proposed changes and for making informed recommendations.
I am happy to say that all of these recommended changes were fulfilled by the proposed legislation. By making these important changes to the Navigable Waters Protection Act, this government has taken a big step forward. We are removing red tape and allowing important projects to get under way without compromising our environmental oversight or Canadians' rights to navigate our waterways. This government has taken real action on this file, and it is only the beginning to our economic stimulus plan. I hope I can answer all your questions.
The Chair: Do the officials have anything to add at this point? Thank you, Mr. Jean. May we assume that you are familiar with the testimony we have heard already? Have you been briefed on the transcripts?
Mr. Jean: I have read most of the emails that I received and have talked to many of my constituents. I brought this particular piece of legislation forward four years ago from a constituent of my own to the former Liberal minister, whose response was that the legislation was fine as it was. I brought it forward again to this government and changes were suggested to be studied by the committee.
This was one of the most important issues that I heard about in Northern Alberta, where most people in my constituency pride themselves on their love of nature and their need to navigate waterways. I have heard from many constituents and I heard from all of the witnesses at every single meeting the Transport Committee had. I have read the emails and understand most of the issues.
The Chair: This is apropos of your statement about consulting with stakeholders. We had some witnesses here last Thursday who had a contrary view.
Senator Spivak: I have a few questions that I will try to ask quickly.
First, could you perhaps elaborate a little more on why the government chose to include these amendments to the Navigable Waters Protection Act within the budget bill?
To set the record straight, Mr. Osbaldeston did not deny this. When the Transport Committee reviewed the bill in the House of Commons and when they passed it, they made a promise to recreation and tourism industries that a full public hearing would be held before this bill could be passed. The government then simply inserted it into the budget bill.
The major objection that we have heard to the process is that paddlers, river people and boaters were not consulted. In the statement that Mr. Osbaldeston made, he listed who was consulted. There was not a single paddler in that list.
Perhaps you could explain this hurried measure to put the changes within the budget act. I know you said that it was to streamline the process, but could you be more precise?
Mr. Jean: I would like to answer that question. First, may I refer to the study itself and those persons who were invited to appear?
Senator Spivak: I have seen them and the committee has seen them.
Mr. Jean: Have you seen the paddlers and kayak associations and so on that were invited to submit briefs?
Senator Spivak: However, they did not.
Mr. Jean: They did not. That is correct.
Senator Spivak: I have heard they did not submit because they did not have enough notice, but that is alright. Perhaps you could go through the reasons.
Mr. Jean: I think it was included in the budget implementation bill because of the necessity for change based on the global economic downturn, the crisis and the ability to stimulate the economy through infrastructure investment, such as bridges and roads. Since Canada has approximately one third of the world's freshwater supply, the need in almost every case is to go over some form of water. The officials can be more specific, but in most cases, the average application process could take somewhere between 12 months and 20 months to process.
There were situations that would be a rubber-stamp process by the department. However, they would have to go through each and every hurdle in the process for the government to be able to rubber-stamp those. As a government, we felt that would not be necessary if we could create an environment where those rubber-stamped items were taken away from the bureaucrats.
Senator Spivak: With respect, Mr. Jean, you normally do not have a construction project on a ditch with three feet of water. My understanding is that even under the act as it was previously, it was possible to avoid certain environmental assessments.
I want to be clear about what you are saying. If it is a major project, are you of the opinion that in the interests of economic stimulus, we do not need to consult or examine?
Mr. Jean: Not at all.
Senator Spivak: Okay. How will you streamline?
Mr. Jean: I am suggesting that every body of water in Canada is a navigable waterway. The definition of "navigable water" is that every piece of water, including a ditch in a farmer's backyard that he dug 60 years ago, was considered to be a navigable water. For example, he had to go through each part of the process in order to have an application approved to build a footbridge over it.
As a government, we are trying to create the exemptions that were already in place but that had to go through a lengthy, time consuming and costly process to be rubber-stamped.
Senator Spivak: Okay. I have one more question. Ministers will now have the power to distinguish between "works" and "waters" for which an environmental assessment of a project is necessary. In other words, there will be two classes, and an order to create classes of works and classes of water will not need to comply with the Statutory Instruments Act. Bypassing the requirements of that act expedites the coming into force of such an order, but dispenses with the examination, registration and parliamentary scrutiny of such orders. The minister's power is not limited only to minor works; it could be a major work.
Perhaps you could explain why that was necessary. Are you also suggesting in that the interests of time we should bypass the Statutory Instruments Act?
Mr. Jean: Absolutely not, madam. My understanding is that scrutiny will continue to take place in major works. Let me assure you that the integrity of environmental assessments will not be hampered in any way by the coming into force of this act.
My understanding of the minister's ability to exclude particular works or waterways is those waterways that are already, as I mentioned, rubber-stamped and excluded by the department.
Senator Spivak: My apologies. I did not ask the question properly.
Mr. Jean: Maybe I misheard; I apologize.
Senator Spivak: It is within the minister's power to create classes of works and classes of water. The minister can do that without going through the necessities of the Statutory Instruments Act. We were told that was indeed the case.
Mr. Jean: I will refer to the official here.
David Osbaldeston, Manager, Navigable Waters Protection Program, Transport Canada: That is correct. That was determined to be a requirement in order to deal in a timely basis with the economic crisis that was at hand. The NWPA approvals were recognized as a key piece to refurbishment and development of infrastructure. Also, for major refurbishment and major redevelopment projects, which is what we are speaking of, in order to achieve benefits out of the two-year infrastructure funding, the timing had to be streamlined.
Thus, yes, orders are used with the concept that ultimately they would be reverted into regulations, and that converting them to regulations would provide the full regulatory process, including full public consultation.
Senator Spivak: Again, I want to be clear that I am interpreting what you are saying. All of this is in the interest of speed — let us get things done more quickly. Is that right?
Mr. Osbaldeston: The orders provide for speed, but not to the detriment of navigational safety or environmental oversight.
Senator Spivak: Yes, but it is the case that you do not need parliamentary scrutiny of those orders. The minister has the sole power to determine, without any other person or Parliament, which classes of waters — to separate those works and waters.
Mr. Osbaldeston: That is correct.
The Chair: I point out, Mr. Osbaldeston, and for your information, Mr. Jean, that when the officials appeared before us on April 22 or April 23, they undertook to provide us with additional information, including the 10 orders that have already been made by Minister Baird under this law. We have not received that information yet and we are anxiously awaiting it.
Mr. Jean: May I respond to that? I did receive them; they are public knowledge now. I have copies to distribute to the committee. They are hot off the press less than an hour ago. I will have someone distribute them.
As well, I wish to advise Senator Spivak that part of the ministerial issue is why there is a proposed further review of the act in five year.
Senator Spivak: That is too late. I am sorry; continue.
Mr. Jean: That was what I was going to say, madam. I understand that particular issue may be of some concern. It is also a concern to other people, myself included.
However, in this particular case, I suggest that the situation will be remedied and is necessary, based on not only the global economic downturn but, as you said, to speed things up. These decisions were already being made; they just had to go through a process. For instance, to revitalize the deck of a bridge or to replace a bridge that already existed, a project must go through that entire process.
It seems to me that in some cases this would be a bad use of tax dollars and a bad use of time. If I may give a personal example, as you know, I am from Fort McMurray, which has had a tremendous growth rate. My constituents have a four-hour drive to go 30 kilometres because of a bridge going over the Athabasca River. When there is an accident, or any kind of holdup, they must wait for two hours there and two hours back to be able to spend time with their family. It should take them about 26 minutes.
The regulatory approval on that particular bridge happened a month and a half ago. From my perspective, that is an unacceptable thing for the quality of life of my citizens. Indeed, two bridges already exist in that location; a third bridge is necessary to add an additional five lanes, and it has been necessary for some three or four years.
The Chair: I would like to thank you for bringing the orders that are now being circulated to my colleagues on the committee.
Senator Milne: I have just discovered another question in these orders that I am scanning through quickly.
Mr. Jean, thank you very much for coming before us tonight; I appreciate it. My question follows along Senator Spivak's question. It is political.
We understood from the department officials who were here before that they have been studying revisions to this act for 20 years. Because of the great rush to get this through, only some of the revisions that they have been looking at are included.
Who made the decision to cut the process even shorter and stick the revisions in the Budget Implementation Act? Was it the minister? If not, was it even higher up?
Mr. Jean: Quite frankly, your question is beyond my pay grade. I am not privy to that information.
Senator Milne: As a lowly parliamentary secretary, surely you know whether the minister made the decision?
Mr. Jean: To be honest, senator, I do not; but if I had that option, I would have included it as well, with respect.
Senator Milne: I have a question about canoeing that I will save perhaps for a second round, but the other political thing that concerns me about this bill is that so much discretion is given to the minister. If he is a good minister, he may not use it; but in the future, a minister may use it and entirely exempt any work whatsoever from environmental regulations. That power exists now in these revisions to the act, which is one concern.
The other concern is that the regulations are not statutory regulations. That is paragraph 327(12)(2.2); they are not statutory regulations and cannot be reviewed by the Standing Joint Committee for the Scrutiny of Regulations. There is no parliamentary overview whatsoever. This rests entirely in the hands of the minister, and there are enormous powers being given to the minister by this portion of the bill.
Mr. Jean: In relation to the committees and their own mandate, my understanding of the standing orders is that a committee can take it upon itself to study whatever it wishes to study and make recommendations to the government and to the house on whatever that issue may be.
I certainly would suggest that something as intrinsic to our country's values as the navigational ability from one end of this country to the other should be of great concern to the people of Canada. Based upon a letter-writing campaign or information provided to the House of Commons or to any member of the house through the people they represent, the appropriate committee would be able to study that issue. As a parliamentary secretary, I have many issues brought forward by members of other parties. We are bound by the will of the committee to study those things.
Senator Milne: In the Senate, committees cannot study things that have not been referred to them. There are only two committees that can do that, Rules and Internal Economy. Those are the only two committees that can take up studies on their own. The rest must have studies or issues sent to them.
Whether this applies to Scrutiny of Regulations I do not know; but I do know that the committee has enough regulations it is required to study that I would be astounded if it picked up on something it was not required to study.
Mr. Jean: I was not aware of that, senator.
Senator Milne: I am very concerned about the enormous powers this bill gives to the minister.
Senator St. Germain: On a point of clarification, are you saying that a committee requires a reference from the Senate before it can study something?
Senator Milne: Yes, as I know your committee has.
Senator St. Germain: I was just wondering exactly what the question was.
Senator Milne: That is what I said.
Senator St. Germain: The thing is if we want to study something, we can go to the Senate. As the parliamentary secretary has pointed out, maybe it would be a good idea to study things like this. I am sure we could get a reference.
Senator Milne: Unfortunately, as you know, senator, many of our committees are bogged down in government legislation; certainly, the Standing Senate Committee on Legal and Constitutional Affairs is bogged down in government legislation and simply has not had the time to do even the statutory five-year reviews on some of the things that we should have been doing them on.
Senator St. Germain: Clear the deck, Senator Milne; I know you are capable of it.
Senator Milne: I am trying to clear your deck.
Mr. Jean, you are sitting beside a department official who appeared before us a week or two ago and told me if I sat in a canoe in a foot of water, I would probably sink it. As a canoeist, I am sure you can tell him that if you are sitting in a 16-foot canoe, it will probably go down about two inches. If you put almost a tonne of weight in the canoe, it will go down four inches at the maximum.
Navigable waters, as you yourself have said, are every body of water in Canada. It is anything that is over an inch deep. I am concerned about some of the items in this bill — for example, that 100 metres are protected upstream and downstream from various and assorted works. You can certainly canoe through 100 metres very quickly. You can canoe every body of water in Canada, so I think that this is far too wide.
Mr. Osbaldeston, I think you were the one who told me that.
Mr. Jean: I also wanted to clarify, Senator Spivak, why this was included in the Budget Implementation Act. As a matter of course, the previous Liberal budget, in the Thirty-eighth Parliament, in 2005, introduced Bill C-43, which amended nearly 20 pieces of legislation. There is precedent for that; it has happened in the past, and certainly under different governments; examples include the Canadian Environmental Protection Act, the Asia-Pacific Foundation of Canada Act and the Income Tax Act. Significant changes have been made to particular acts through budget implementation bills.
Remember that as a government we wanted to ensure that no body of water fell through the cracks, and that is why "navigable waters" includes every single body of water in Canada. We are making exclusions, instead of having a definition of navigable waters and having things fall through the cracks that should not fall through the cracks, and that is how we will ensure that we keep navigable water as an intrinsic part of our culture in Canada and create those exemptions that Mr. Osbaldeston commented upon.
Senator Milne: Including the farmer's ditch.
Mr. Jean: But then making exclusions so that we can exclude those particular pieces that do not make sense to be in the act.
Senator Milne: You are depending too much on a single minister.
The Chair: You made available to us a few moments ago a Minor Works and Waters (Navigable Waters Protection Act) Order. Could one of you describe for us what it is you have handed to us in both official languages? To me, it looks like only one particular order, and we wrote a letter listing a whole lot of other things. I do not want the record to be confused. This is not a response to our letter, is it, Mr. Osbaldeston?
Mr. Osbaldeston: No. The material is being prepared for that.
The Chair: What is this?
Mr. Jean: This is an example of the ministerial order that has just been released for public consumption. Indeed, I wanted to ensure I brought it tonight, as soon as it was off the presses. I made several phone calls to some of your members, asking them what they were particularly interested in and if I could provide any additional information. I did receive those requests, and this is one of them.
The Chair: I meant to say at the outset, thank you very much for having made those phone calls. We thought it was a very proactive and constructive thing you did, and we appreciate it.
Senator Neufeld: First, for an act that was developed in 1882 and had one small amendment in 1965, I think some amendments were long overdue. I am not here to beat up some of those amendments; I just want some clarification on a couple of items.
Witnesses came before us a week ago and also wrote in a letter that the Navigable Waters Protection Act is an important trigger for the Canadian Environmental Assessment Act, and in some cases it is the only trigger for any environmental assessment, federal or provincial.
I am not asking you to comment on the provincial case but on the federal case. Would that in fact be true, or is that someone just writing something?
Mr. Osbaldeston: It is highly unlikely that that would be the case. I think I mentioned during my testimony that, because of the nature of the business we are in, which is review and approval of works in, on, through, over or under water, we work very closely, hand in hand, with the Department of Fisheries and Oceans. For example, even though a bridge may not actually touch the water surface, it does create a shadow over the water surface, and if the shadow is big enough, that has interest to Fisheries and Oceans with respect to fish habitat. My answer is that it is a rarity.
Senator Neufeld: Thank you. I appreciate that, because I remembered to a degree what you had told me and I wanted to reconfirm that that was in fact the case.
Mr. Jean: My understanding is that the trigger within the Navigable Waters Protection Act — and I would ask the officials here today to make any suggested changes — is whether the work would interfere substantially in some form with the waterway, which would be picked up, to my understanding, primarily by provincial legislation, notwithstanding that it would be picked up by the Navigable Waters Protection Act as well. The government is trying to eliminate the duplication and unnecessary expenditures and actions by government officials. However, if the work does trigger a substantial interference, my understanding is that indeed an environmental assessment would still be necessary, notwithstanding the changes to the Navigable Waters Protection Act.
Senator Neufeld: Thank you.
Mr. Jean: Would you like clarification from the officials on that?
Senator Neufeld: No. That is good enough for me. I just wanted to be sure about what you said the first time, and you are saying almost exactly the same thing now, so I am satisfied with that response.
Mr. Jean, you said that if you can paddle a waterway, it will still be subject to the Navigable Waters Protection Act. How do you define a small creek or a small waterway that you could float a canoe on for maybe four months out of the year and the rest of the time it is dry? Is that navigable water or not?
Mr. Jean: Yes, it is. However, it might be exempted, depending on the size and the exemptions set out in the amendments. As I said before, everything is a navigable waterway in Canada, but there are exemptions provided by this legislation, and exemptions that can be taken out because the waterway is simply not navigable. Those include many of the creeks on my trapline in Northern Alberta, for instance, where you could not get a canoe through the creek even if there was enough water, because of the beaver dams and trees across it. I would ask the officials to confirm whether that is the case. That is why, again, we said that all waterways will be navigable, but there will be exemptions to exclude them from the process. It takes up to 20 months to go through the application process.
Would that be fair to say?
Mr. Osbaldeston: That is correct. It is key. If you are paddling on the waterway now, you will be able to paddle on it in future. If you are paddling on it now, it falls under the purview of this legislation and it will continue to fall under the purview of this legislation.
We recognize fully that some of the best whitewater is around only for a short period of time in any given season, for the purpose of whitewater kayaking and rafting. That is recognized. If you are paddling it, you will continue to be able to paddle it and it will continue to be reviewed under this legislation.
One key piece is that the very first review of any waterway determines the navigation that currently exists on the waterway. Is there navigation currently there, and what is it? What is its nature?
Senator Neufeld: I live just west of you, so I am aware of and talking about the same things you experience. It still bothers me. Not all those streams are whitewater. Not everything is whitewater, and we should never think it is. There are well over 300,000 streams in British Columbia alone. There are many places to put in a canoe or kayak and have some fun, but there are problems with streams that only run in the spring with spring run-off and then they are dry. You are telling me they would still be subject to the Navigable Waters Protection Act and the minister would have to make a decision to exempt that? Is that correct? He or she could do that on what grounds? How does the minister, whoever it happens to be, make that decision?
Mr. Osbaldeston: Under the orders, as a class of water, not for exemption — and I want to emphasize that it is not exemption to the legislation — the orders merely exempt you from having to apply for approval in advance of construction. All other aspects of the legislation apply, which continues with respect to the fact that if someone subsequently makes a complaint that you have constructed something in accordance with the order improperly or that there is another factor that came into play that was not considered, we can still go back and order you through a full review process and modification process if necessary in order to meet safety requirements and to balance the public right of navigation. It is not exemption; it is exclusion from a process of application for approval. All other aspects apply.
With respect to your question about seasonal streams, how would we exclude them from an application process if someone wanted to build something on them? We would have to create, under this new legislation, a class of waters specifically defining a seasonal stream, for example. It could be flows; it could be whatever. I do not know what it would be. I have not thought that far. We have not considered it.
However, one thing that would go in the face to negate such a proposal would be the question of whether navigation actually exists on that particular stream, albeit over the course of four months. If there is active navigation based on a local situation and we have obtained that local knowledge, we would be hard-pressed to make an order saying you would not need to apply, I would suggest.
Senator Neufeld: Actually, those answers bother me a little bit because I thought we were trying to simplify things to actually get some things done on the ground. I am familiar with working on the ground. I am familiar with some of these waterways I am asking questions about, so I will ask one final question.
When you were here before, if I remember correctly, you said you had 70 people in all, including 40 inspectors for the whole country of Canada. Mr. Jean, how do you enforce the Navigable Waters Protection Act on all these streams that we just clarified? There are thousands, hundreds and hundreds of thousands of them that may have activity — not all have activity, but many do, especially where I come from. I cannot imagine it is any different where you come from. How do you manage that with 40 inspectors across all of Canada? I am not even talking about Ontario and Quebec. Think about all the waterways there. Explain to me how you do that.
Mr. Jean: My understanding is it would be based primarily on a complaint process, and indeed the monetary penalties, which we have raised from $5,000 per occurrence to $50,000 per day, would be a deterrent to people intending to do something. For instance, in our particular area, the oil and pipeline industry will not want to be subject to the course of business; they will want to ensure they comply with this act because of the penalty, and of course it could harm them in substance.
I understand Premier Campbell has indicated that this act in its prior form was the number one job killer in British Columbia. I am sure you have heard that before. A constituent of mine in High Prairie, not far from where you are from, brought this to my attention when I was first running for this position. It was also brought forward by many constituents as being a job killer in Northern Alberta where, as I said, people take the environment very seriously. Although the act is a change, and although we may not have implemented it to the degree some wish it would be implemented, I believe it is a balance between the competing interests in this case — a good balance and a good start.
Senator Neufeld: I would have been the one prompting Premier Campbell to say that, because in my past life I was the Minister of Energy, Mines and Petroleum Resources. We had lots of projects on the books, not just with the Navigable Waters Protection Act but with the Canadian Environmental Assessment Agency, and they were holding back a huge amount. I hope that logjam bursts.
Senator McCoy: Welcome, Mr. Jean. You are a breath of fresh air and another Albertan. Thank you very much for bringing the ministerial orders, which we were told had been signed on April 22. We do appreciate your intervention in bringing them forward in as timely a fashion as you could. Needless to say, we have just seen them, so it is true that after some longer reading of them we might have more questions yet.
I will start with page 12 of the ministerial order that you have supplied us, which I believe is where the definition of minor navigable waters begins. In section 11(2), it says:
Sections of navigable waters are established as a class of navigable waters for the purposes of subsection 5 1(1) of the Act if ...
There seems to be a decimal point missing there. I am assuming that that should read 5.1. Do you think that would be correct?
Mr. Jean: With respect, I have just discovered I am missing page 5 of my own document.
Senator McCoy: We are on page 12.
Mr. Jean: But the reference is to section 5, which is found on page 5, and I do not have page 5.
The Chair: Neither do we.
Mr. Jean: I apologize for that. I will advise you that that was not intentional on my part. I asked for that to be copied. I would be happy to do the same as I do for my constituents, who are the most important people in my life and my bosses, except for my immediate family, and that is any questions you have that I or the officials cannot answer today I would be happy to get back to you; and if you find additional questions in the future, I would be happy to respond to those as well.
Senator McCoy: I appreciate your courtesy and generosity with your time, but looking at page 12, section 11(2), it refers to subsection 5 1(1). There is no decimal point. I am wondering whether that is meant to refer to section 5.1(1).
Mr. Jean: The reason I cannot answer that with certainty is that I do not have page 5.
Senator Banks: It is 5.1 of the act, not of these regulations.
Senator Milne: There is not one decimal point or one period in the entire document.
Senator McCoy: I am thinking if we could infer that, because when you come to paragraph (a) of 11(2) on page 12 it says here is what a class of minor navigable waters is, as I understand it.
Mr. Jean: I do see that indeed there should be a decimal there based upon my cursory look at it, and very astute of you to recognize that. I see page 14 of the clause-by-clause documents in the binder, which I believe you all have received, does indicate that there should be a decimal point there, so that would be an error that of course the sober second thought would pick up and indeed has.
The Chair: That was page 293 and 294 of the act.
Senator Milne: It is also on every page of this document.
Senator McCoy: I am not sure whether I am reading this correctly, but then it says that sections of navigable waters are an average width at the high-water level of less than — and I am assuming — 1.2 metres, which would be four feet, roughly.
Senator Spivak: Not 120.
Senator McCoy: Good. Is this the definition of minor water?
Mr. Jean: That is correct.
Senator McCoy: So a minor water is less than four feet wide and less than one foot deep, and the parts of the act that we have previously discussed do not apply to that?
Mr. Osbaldeston: The only thing that does not apply is that if you want to build something on it, you do not have to apply for approval prior to doing so.
Senator McCoy: Do you have the new act with you?
Mr. Jean: Yes, I do.
Senator McCoy: The new section 5.1(3) says that sections 6 to 11.1 do not apply. Then section 14.1 of the new act says that Part I, which deals with the ability of the minister to remove obstructions and obstacles from navigable waters, does not apply to classes of minor waters.
How does the minister intervene on minor waters if the act does not apply to minor waters? It seems to me like a circumlocution.
Mr. Jean: If I may complete subsection 5.1(3), it reads:
Sections 6 to 11.1 do not apply to works referred to in subsection (1) unless there is a contravention of subsection (2).
Section 5.1 (2) says:
The work shall be built, placed, maintained, operated, used and removed in accordance with the regulations or with the terms and conditions imposed under section 13.
My understanding, and I hope the officials will confirm this, is that standards will be set out with which these minor waterways and anything put over them have to comply. Those regulations will of course include having to be at a certain height, of a certain construction quality, et cetera.
Is that correct, Mr. Osbaldeston?
Mr. Osbaldeston: That is correct. Section 6 applies to unlawful works. It would not apply to a lawful work. Section 10 of the legislation deals with alterations. If you make modifications, you are stepping outside the criteria identified for a minor work within the legislation. If you step outside your defined class, you are into an application process. You are coming through with a new work, senator.
If you are in the minor work category, there is no need to apply. If you modify it in any way outside the minor work, or if you decide to expand the minor waterway into a major canal system, you are becoming something other than a minor work or minor waterway and you have to come back to us, because you are brand new. You need to make an application and undergo the full review process, which could, in itself, trigger not only a navigational review but also an environmental review.
Senator McCoy: I would love to argue this in court, because I think your interpretation is generous. In fact, section 5.1 of the new act says that the act does not apply in the case of either a minor work or a minor water. It is not "both" but "or."
If you build something in a minor water as your minister has now defined it, which is less than four feet wide and a foot deep, which we have established, through expert testimony from people who paddle from one side of the country to the other, is navigable and frequently navigated, you are out of luck; you have no authority. Your minister has no authority to intervene whether the work is legal or not. There are no conditions, as far as I can tell from a quick reading, that are associated with minor waters.
On my reading of the act, there will be a lot of water under the bridge, if I may make a pun, to your regret. I appreciate your intention. I do not doubt your desire to do the right thing, and I am not calling anyone's motives into question. I am looking at the legislation as passed, and now the ministerial orders, and I question whether the outcomes that have been expressed as being desired are the ones that we are getting.
The Chair: Senator, if you would like to ask one question, I will put you down for a second round after that.
Senator McCoy: Mr. Jean, you said that you have been deeply involved in this legislation. Many of us would thank you for that, including the one in five Canadians who are recreational boaters of one sort or another, the provincial government and many of the municipalities in my province. We are all saying that the Navigable Waters Protection Act, which was last amended in 2004, could be improved.
Have you any knowledge of whether the administration of the Navigable Waters Protection Program undertook an efficiency study to determine whether the processes that they applied, which you have testified took as long to review for the Confederation Bridge as for a minor culvert in Fort McMurray —
The Chair: Senator McCoy, I have to rule you out of order. I have given you some latitude.
Senator McCoy: Did you ascertain whether any efficiency studies have been done in the administration of that program?
Mr. Jean: I did not ask specifically, nor did any of the other witnesses, about any efficiency study done by the department, although there was a line of questioning that dealt with that in particular. My understanding is that most of the inefficiencies of the department were as a result of the time frame required to receive requested information, to visit sites, and so on. A time frame is allocated for each of those, and that was a large part of the inefficiency, especially when about 38 per cent of the applications were simply rubber-stamped by the bureaucracy and were not at all necessary.
The issues you are bringing forward are exactly why we need the five-year review that was proposed by the committee and accepted by the government.
I am certainly glad I have never had occasion to argue against you in court.
Senator McCoy: You are such a charming man. Thank you so much.
Senator Mitchell: Mr. Jean, thank you for taking the time to be with us.
I would like to pursue your example of the bridge in Fort McMurray. I am sympathetic to that. I was up there in July, and it took quite a while to get to the plant we were visiting.
You said it was delayed a long time. Can you tell us how the review under the Navigable Waters Protection Act was responsible for that delay? It seems to me that an environmental assessment would be much more lengthy and detailed than an NWPA review. It seems to me they could go on at the same time, so why would the NWPA contribute to the delay at all?
Mr. Jean: I cannot give you anything more than hearsay. I did work on this particular application for some time because my constituents would make daily phone calls in relation to the delays going back and forth to their work sites and the quality of life and the detriment to their families as a result of four hours on the road.
My understanding is that it took 20 months. Fisheries and Oceans Canada may have been involved in that process as well. I believe that Navigable Waters was, but I cannot give first-hand evidence in relation to that. It took 20 months, and it was a result of several pieces of legislation, including the Navigable Waters Protection Act.
Senator Mitchell: Could you undertake to find out how long it took to do the NWPA review, whether that review was conducted at the same time as the Fisheries review or an environmental assessment, and whether it was longer or shorter than those two other reviews? My point is that if it started at the same time or was bracketed by those other two, then it would not have had anything to do with the delay.
That brings me to my next question. Could you give us some examples that you had in mind when you brought in this legislation of where the NWPA was delaying projects that you would like to get through more quickly, and could you give us some examples of what projects you are anticipating under this infrastructural support program? Presumably, when you raised it, you did not know what projects. What projects were you anticipating that would have been delayed by an NWPA review?
Mr. Jean: Did anyone hear the dinner bell?
I would undertake to make those requests of the department, because it is beyond my ability to find that myself. I will certainly make that request; I would be happy to do that. I will inquire from Fisheries, Transport and Infrastructure as to what caused the delay.
I do believe, senator, with respect, that you are exactly on point as to why some of the delays have been caused over the years — namely, because of the joint departments trying to work together and not necessarily working together and at the same time and in conjunction with the same projects to facilitate the applications at the same time. Often, that was one of the delays. One application would be started, and they would wait until that application was fulfilled or the terms were fulfilled before they would begin another application.
We did hear evidence at the committee that the average was somewhere in the neighbourhood of 20 months or longer. I would like to receive confirmation of that from the officials. A recent study indicated that some 38 per cent of those applications would not be necessary. They would simply be rubber-stamped. If you take away the 38 per cent of those applications that go through the process, I would suggest that those other applications that were taking 20 months or longer would be done much more quickly.
Senator Mitchell: The implication of what you are saying seems to be not that they would delay but that they would cost extra money. That is different than delay.
Mr. Jean: Certainly, but I would suggest that delay could be at the same time cost of money, much the same as our economic stimulus plan, this government's move forward. For instance, if we delay two years before we get out the $18 billion that we are planning on spending over the next two years, I would suggest that the Canadian economy will have a substantial cost. We are losing jobs every day in this country. I would suggest that many of these things, cutting red tape and moving things forward, are exactly what is necessary in order to ensure that the Canadian economy moves forward and jobs are created instead of killed.
Senator Mitchell: I would like to go after that a little further, but that is it for now.
The Chair: The parliamentary secretary's handlers are indicating that our time is almost over. I have five or six more names on my list. Could you stay with us a little longer?
Mr. Jean: I have not eaten all day, but I would be prepared to stay as long as the questions continue, certainly.
Senator Spivak: Let us bring him a meal.
The Chair: That is very kind of you.
Senator Mitchell: I would ask one more question. I am not doing a preamble.
When your officials were here before, they mentioned that in any given year you get about 2,500 applications under NWPA, and you have about 2,500 backlogged. That is 5,000 applications. Could you commit to finding out, somehow, even with a sample, how many of those 5,000 will evaporate because you do not have to do a review under this act? That is to say, how much will the backlog be shortened because the structure and requirements of reviews will have changed?
Mr. Jean: Certainly. I can do better than that, senator. If I may give a historical perspective, an analysis was done by the department. Over the last six months, the program issued 319 approvals. Of those issued, it is estimated that 35 per cent, or 111, would have benefited from the amendments had they been in force during the period of time at the project review, so somewhere around 35 per cent would be appropriate.
Senator Mitchell: Could you give us a list of those projects?
Mr. Jean: I cannot, but I can ask the department for that list. I would be happy to provide that to you if it comes to my office.
Senator Mitchell: That is great. Thank you very much.
Senator Lang: I appreciate your coming before the committee today. There are several things I want to say at the outset. This 12- to 24-month period that is required to review these projects, whether under the NWPA or the assessment process, must be examined. I agree with my colleague from British Columbia that that it is far too long and too expensive if we want to get on with things that are needed for the public interest.
I want to go a bit further. I have a question for the administration official. About two weeks ago, we asked for a list of the projects to which Senator Mitchell referred that would go ahead and would be given the green light because of this legislation. The commitment was made that we would get that list. Is that list prepared? Will we get it within the next week or so, Mr. Osbaldeston?
Mr. Osbaldeston: We provided some statistical analysis. That is in a package that is working its way up the line. As for a full list of projects, that is with Infrastructure. We have provided as well, in the same package, an example of projects that would benefit from these amendments. As well, we indicate which particular section of the amendments that benefit would be derived from, to allow you to correlate it. That is working its way through the system over to you.
Senator Lang: It is important that we see that and see the results of why the legislation was put in the way it was and to confirm that.
The other area I would like to refer to concerns creating classes of works and classes of navigable waters. My understanding is that we have these orders. I believe there are 12 of them. Is that correct?
Mr. Osbaldeston: There is only one order in classes of works and classes of water within the order.
Senator Lang: This will be the document that determines the classes of works and classes of navigable waters for the forthcoming year or two years in the regulatory process; is that correct?
Mr. Osbaldeston: No, that is the order as we have seen fit to be able to develop and to provide benefit at this time.
Senator Lang: I will go to the second round, Mr. Chair.
The Chair: In other words, you are okay for now?
Senator Lang: Yes, I am.
Senator St. Germain: Thank you, Mr. Jean, Mr. Roussel and Mr. Osbaldeston for coming here this evening and trying to clear up some of the mysteries surrounding this issue.
Mr. Osbaldeston, you were saying that there is really no exemption. Could you clarify that? Senator McCoy said that if a waterway was less than a foot deep and less than four feet wide, there was really no exemption. I think that many people who are listening are trying to figure that out. It is either in or out; is it not?
Mr. Osbaldeston: I understand the concern. Trying to determine whether we could come up with a suitable definition of "navigable" was an issue with our policy work. "Navigable" is not defined in the old legislation, and you can see we did not succeed in developing a definition that we thought would encompass what was required for the purpose of this legislation. I think you heard from witnesses last week who were asked about the definition of "navigable," and they could not come up with one, either. That is not to say that perhaps with more time we might not be able to develop it. We will keep trying.
However, in the absence of coming up with something workable, the question is how can we address the issues we have at hand. That is getting away from spending a lot of time and effort on waterways and on works that really either have little value to reasonable navigation or pose very little danger, if placed appropriately from a works standpoint, into waterways.
The best thing we could come up with was to say, "Let us start with everything we consider to be navigable but let us pare away from that the stuff where there is no value-added in providing heavy regulation to it." It is neither extensively used for reasonable navigation nor, as long as criteria for the construction of the work are following, will it pose a safety hazard to navigation.
It is almost like a negative billing; you start with everything and then you start to define what comes away. As long as you can clearly define what comes away, it actually brings clarity to the situation for those who are looking for it.
Mr. Jean: However, those things that come away still have certain requirements to comply with, and the minister has the ability to remove those if they do not comply with the act.
Senator St. Germain: I do not look at this as a partisan or political situation. The only thing I am concerned about is that unenforceable legislation is generally bad legislation. With 40 inspectors, I wonder about this. It is mind-boggling to figure out how this whole thing really works and how the general public can be well-served in a situation like this, so that there is not a situation where, as Mr. Jean said, it is based on complaints. To me, a bad neighbour can cause a lot of problems; I have a cattle operation and there are creeks. I do not know whether you can clarify that at this meeting, but thank you anyway for attempting to.
Mr. Jean: If anyone knows about bad neighbours, you can read The Edmonton Journal to find out what I think about my neighbour.
You mentioned how many persons in Canada are outdoor enthusiasts. Those persons use navigable waterways for kayaking, canoeing, hiking, mountain climbing, exploring, and those persons take offense. I suggest making complaints in relation to that, and the 40 inspectors would then have to be proactive in responding.
My brother has a trapline in Northern Alberta, and he uses it often. It is on the Clearwater River, which is a heritage river. There are two creeks within probably 600 meters of his cabin. One has a handmade log bridge across it that has been there for 20 years. The reason it has been there for 20 years and is only two or three feet above the water line is that no one will ever be able to navigate or cross that particular creek.
Some 200 or 300 meters beyond is a creek that could possibly be navigated. He has built another wooden bridge across that area — I hope I do not get in trouble with my brother for telling you this — and it is high enough for someone to navigate under it for that very purpose, so no one complains about it.
It is to be expected to have 40 inspectors nationwide, but, at the same time, because so many Canadians enjoy navigable waters and the ability to use the outdoors, I suggest it will come to the attention of either the provincial or the federal government, and they will police it accordingly.
Senator Lang: I want to throw something else into the mix. If a contract is allotted for a bridge — and I used to work on building bridges so I know a little of what I speak — because of the nature of the contract, there is always an inspector on behalf of the government that you have the contract with. They would have to comply and ensure we meet the building code and the various aspects of federal legislation if it applied to where we were building.
There is another area of inspection that can occur. It is indirect but it is there, depending on the scope of the work. Is that not correct?
Mr. Osbaldeston: With the provision of these particular amendments, we have the ability to look, for the first time, at building partnerships with other agencies out in the field in order to perhaps share the limited resources that we both have in order to achieve both goals. That is with provincial bodies, and it could be with private agencies. It must be explored further. We did not have the capability within our previous legislation to do that. That in itself, from a limited resource aspect, is making best use of all resources out there for the Canadian public, be they provincial, municipal or federal.
Senator Brown: Mr. Jean, thank you for appearing. With $12 billion of infrastructure flowing into the economy of Canada as a result of this kind of bill, how many projects do you think would be involved?
Second, how many days of parliamentary review would it have taken if we had not used ministerial powers to enact this act but had required a parliamentary review on every one of these projects? I know that will be difficult to answer, but guesstimates would be useful.
Mr. Jean: Certainly. I appreciate the question. The acceleration of the Gas Tax Fund will be felt in every community. Every Canadian will feel the advantage of that particular fund's being accelerated and also going directly to the municipalities, which I believe can spend money much more wisely than I can here in Ottawa.
I also believe the $12-billion stimulus fund will keep Canadians employed and will lessen the impact dramatically on their quality of life. We can do exactly what we are doing, and that is eliminating some red tape as well.
Within the Infrastructure Building Canada Fund, 431 projects have been approved for funding to date within the community component of the program. That is for communities under a population of 100,000. Of these, 160, 3 per cent, are identified as being within 30 meters of a body of water, such as a wetland. There has already been a direct impact by this particular piece of legislation.
Being able to foretell the future is not my specialty, but I can assure you that this government, by my involvement in it, can see that every Canadian will benefit from these stimulus funds as well as the $18 billion that we are planning on spending on infrastructure and sports complexes, roads and bridges. I know I sound like a political commercial, but I have seen the action going forward, and I do believe that we are doing what is in the best interests of Canada with this act and generally with the stimulus fund and $18 billion over the next two years.
Senator Banks: Thank you very much for appearing again, gentlemen. Mr. Jean, thank you for appearing as well; it is nice to see another Albertan at the table.
When we talked about the omnibus nature of this bill, you said that previous bills of this kind had been put through with 22 amendments to access, which is true, but this one hit the ball out of the park with 42. It is a new world record.
I have only two questions. First, Mr. Osbaldeston, I gather you are saying that nowhere I can take a canoe escapes the act and its provisions and that, if I am building something in, over or near such as a stream or body of water, while I might not have to apply, I must comply. Is that safe to say?
Mr. Osbaldeston: That is correct.
Senator Banks: Mr. Jean, is this ministerial order that you have kindly given us today susceptible of scrutiny by the Standing Joint Committee for the Scrutiny of Regulations?
Mr. Jean: My understanding is that at this stage it is not. I am not certain. Based upon what I have learned here today in this committee, I suggest it will be scrutinized by you, and any suggestions brought forward I would certainly put forward to my government.
Senator Banks, I wish to say that I planned last night to write a country and western song specifically to answer your question, but I did not know what the question would be. It is a pleasure to be here with you as well.
Senator Banks: Thank you. I have a brief supplementary to that. Do you think the government has in mind the possibility of turning these ministerial orders into regulations in the future?
Mr. Jean: I cannot crystal ball that. I think that is exactly the intent as well as the five-year review. If you look at them in conjunction with each other, this is a learning process for all of us.
As a result of the global economic downturn, the risk must be taken. At the same time, we must ensure that we continue to protect our environment in every possible way we can and continue to ensure that navigation, which is entrenched in our culture, is protected.
Senator Banks: Which risk did you say?
Mr. Jean: The risk of making changes. As you see in this particular case, the act has been changed little in over 100 years. In my opinion, and I am not saying it is shared by anyone else, that shows the leadership of this government and how it is prepared to take a risk in the best interest of Canadians. I believe the changes to this act are in the best interest of Canadians.
Senator Banks: Did you mean the risk of ministerial orders as opposed to regulations?
Mr. Jean: No, I did not mean that.
The Chair: We now come to a second round. Are you up for that?
Mr. Jean: Of course. I am at your disposal.
Senator Milne: This will be brief because I want to help the minister and the department. It is essential that the minister and the department, whoever writes these things, take another look at it. There is not one decimal point in the entire thing. Is it in waters of 25 meters or 2.5 meters? It is okay if it is 0.5 metres, but is the next item 50 metres or 5.0 meters? It is absolutely essential that these things be cleared up. It talks about 20 fathoms, which is 36,576 metres, or is it 36.5 metres? It is essential that these be absolutely crystal clear when you are looking at orders from a minister.
I direct you to page 2, item (2)(c), which states: "the vertical to horizontal slope of the works from the navigable waters is greater than 33%."
As an old physicist once upon a time, vertical to horizontal means you come down 33.3 per cent. That is a 57 per cent slope. That is far too steep to be excluded from anything whatsoever. I am sure you mean "horizontal to vertical." There are many little things like that all the way through here that I sincerely hope the minister will look at.
Mr. Jean: I cannot speak to the particular decimal points in this, but I would say they are consistently missing. I would also say that as a previous publisher and someone from a family of newspaper persons —
Senator Milne: Get an editor to look at it.
Mr. Jean: I would say this with respect, I programmed in basic Fortran and PolyForth. I can assure you that programs that may be done in one language and then are translated into another language when sent to my computer or printer may be missing decimal points. I suspect in this particular case, that is what happened. I was in a rush to provide to you answers to the questions I received yesterday and today. I wanted to provide as much information as possible. While I was making a vote, these copies were being made. I was handed them on the way over here this afternoon. I will suggest to you, and confirm it, that the decimal points are missing everywhere. That is simply a misinterpretation between two computer programs.
Senator Banks: On page 2 regarding the point that Senator Milne made, is it 33 per cent or 33 degrees?
Mr. Jean: Senator Banks, may I get back to the committee in relation to the decimal points and degrees? It is critical that we get the corrections. I will undertake to make those requests and get back to you as soon as I have them.
Senator St. Germain: I understand that Senator Banks' dog ran away and his pickup truck broke down.
Mr. Jean: Does he still have his girlfriend?
Senator St. Germain: I will not go there.
Senator Banks: How can I miss her when she will not go away?
Senator Spivak: I want to ensure that I understand after all this conversation what this act is about.
I am looking at it from the perspective of the safety of the paddlers. Correct me if I am wrong, but this act would allow the minister to designate minor waters that do not deserve protection under the act.
I know you are saying "apply" and "comply." That means minor works, for example, will not need a permit if the minister exempted them. Is that correct?
Mr. Osbaldeston: No, that is incorrect, senator. The classes of works and classes of water provide an exemption to the application for approval process.
Senator Spivak: Yes.
Mr. Osbaldeston: However, it is only the application process. All other aspects of the legislation remain in place.
Senator Spivak: However, if you do not need a permit, you can put up works if they are exempted. Only if someone complains, then they have to go through the process.
Mr. Osbaldeston: No, you can put up works in accordance with the criteria identified and clearly defined within the order. If someone complains, no doubt we will come out and look at it as we do now with those works that have a paper document. However, if we see something that is in violation of the order — with no complaint — we can look at it and say "that is not in compliance." We can force the issue as well.
Mr. Jean: There is a substantive penalty clause that can be put in place. Anyone who will invest in substandard work will be subject to the penalty. That would be a waste of an investment.
Senator Spivak: Yes, but I am going back to this gentlemen's statement that there are thousands of streams. In the end, if we know what the specifications are, most of them will be minor works. Therefore, they will be exempted from the application process. I have that right.
Mr. Jean: However, they will still be required to comply with the act.
Senator Spivak: Who will know whether they comply, with 40 inspectors in thousands of streams and thousands of minor rivers? My point is that we hear from the paddlers that all kinds of small things impede their safety, including for example a cable line, a fence or a culvert. That does not seem like much, but it could impede their safety. I think that is the issue the paddlers are complaining about.
If you have thousands of streams and minor rivers across Canada, you will not know whether they comply.
Mr. Jean: I understand your position. What stops them from doing it now if they want to do it?
Senator Spivak: Everything that is a work must have an application. Therefore, you know it is being done.
Mr. Jean: The point is that if they are to do a substandard work after the act is in force, they will not be applying at this stage anyway. It will not make any difference except to establish more protection for the future. They would not be applying now if they were doing substandard work. They would be building something across a stream or bridge and no one would find out about it.
In this particular case, there is a set of standards with a penalty that requires them to meets those standards and to incur that penalty if they do not.
Senator Spivak: You do not have notice of what they will do.
Mr. Jean: You would not anyway, even today.
Senator Spivak: You would if they need to make an application. I do not want to argue with the witness. I politely think that maybe the paddlers have a point.
Mr. Osbaldeston: If I could correct you, senator, only proposed works that have the potential for substantial interference to navigation undergo public advertisement. Small works with non-substantial interference do not undergo public advertisement.
By putting these orders in place, I think we actually enhance the safety on those waterways. For the most part, for cottage docks, swim rafts and all these small works that we are talking about here, right now people are not complying with the law; they are not applying the law under the application at all. They are putting them in.
They can choose to comply or not to comply, and if they cause a problem, we will get them. However, at least here, we have clearly defined for them that if you are going to do it, this is how to do it safely for the paddler.
Mr. Jean: I had a case some eight months ago from a current minister who advised me of a complaint of an aerodrome on a particular lake. Through investigation, I discovered that it was not even necessary to apply for aerodromes; someone could build it without any application process at all.
I would suggest that Mr. Osbaldeston is correct. If they are not going to comply with the requirements of the act in the future, they will certainly not make an application before they build it.
Senator Spivak: Think what you would have gained if you consulted with the people who use the rivers, like paddlers. You might have changed your mind.
Mr. Jean: I would also like to advise that for next week's meeting, we will have sent the PDF version of the orders in French and English complete, and not the scanned versions that you received today without the decimals. I apologize for that. I should have checked the document more thoroughly before running over here.
Senator Milne: Will you change horizontal to vertical?
Mr. Jean: I will have that examined and will speak to the department, if necessary.
Senator McCoy: Could I direct your attention again to pages 12 and 13 of these orders? Will you confirm for me that another definition of "minor waters" refers to anything that is 200 metres long, which is approximately one block, four to nine feet wide and one or two feet deep? Is that also minor waters?
Senator Spivak: Is that page 12?
Senator McCoy: It is at the bottom of page 12, carrying across to the top of page 13.
Mr. Jean: Is this at the high-water mark, senator, that you are talking about?
Senator McCoy: Yes.
Mr. Jean: So it would be at the high-water mark. Of course, these are approximates and I am taking for granted that your calculations are much better than mine on a per-metre, per-foot basis.
Senator McCoy: I am just showing my age; I still do the things in imperial measures.
Mr. Jean: I do as well, so I also have to show my age. I believe you are accurate. The high-water mark in Canada fluctuates dramatically, so if we are talking about high-water mark here, I would suggest low-water mark in this particular case, depending on where it would be found, could be a zero-water mark. I would suggest that is possible.
Indeed, one example was a gentleman who had built the ditch 60 years earlier. It would fit within that description barely, and he had to apply for a permit. I understood that two officials from the Government of Canada had to make a two-hour trip out and then back to ascertain, on two or three different occasions, whether he could build something across this ditch.
That is not a good use of taxpayers' money, in my mind, being that the ditch was all on his private property and he had dug it some 60 years earlier.
Senator McCoy: Just to recap, you are saying that if the water is four to nine feet wide and one to two feet deep, for a block long, that is minor waters?
Mr. Jean: During high-water mark.
Senator McCoy: I am not allowed to say anything else, so I will not refer to my earlier question about the efficiency of the way the program was run, driving out for two hours and two hours back to look at a ditch when we have email.
Mr. Jean: Senator McCoy, at any time you would like to argue further with me, I would be happy to listen.
Senator McCoy: Well, no, to engage.
Mr. Jean: Indeed; I have enjoyed it thoroughly.
The Chair: She is very cagey.
Senator Mitchell: I was quite taken by your example of your brother's two log bridges. It went through my mind that probably they would be excluded under this act from review — I do not want to presume, but probably they were. However, I cannot imagine that investing in those two bridges would have taken a lot of money or created much stimulus.
It seems to me there is a contradiction in your argument. The defence of this bill is that it is going to speed up reviews so that we can get at these big projects and stimulate the economy quickly. At the same time, you, and particularly Mr. Osbaldeston, go on about how this will exempt someone's dock and some wooden bridge over a ditch.
You cannot have it both ways. You cannot say it is going to stimulate by speeding up big projects on the one hand and then, on the other hand, say well it is really just going to speed up building a dock. That is my question.
Mr. Jean: With respect, Senator Mitchell, I see why you beat my former partner for the Liberal leadership in Alberta.
Second, you obviously do not know my brother very well, because it would simulate the economy and take a tremendous amount of work.
Senator Mitchell: It took a lot of effort, did it, all those nails?
Mr. Jean: Third, you must not be a Vancouver fan, because they play in three minutes.
Finally, there are a variety of explanations for different parts of this act. To your very example, this affects every Canadian. It affects every part of Canada; and we have received a variety of examples that will benefit Canadians greatly.
The examples I used were for particular circumstances, but they show the tremendous impact that this act and these amendments have on Canada. It is unbelievable that no government, no prime minister, has had the leadership capability to move forward on an act because of fear. That is what I believe we are here for, because of that. I would commend my Prime Minister on that.
Senator Mitchell: You and I will disagree on that, but thank you very much.
The Chair: On the commendation, you mean.
Senator Mitchell: Yes.
The Chair: Parliamentary Secretary Jean, you have been very forthcoming and helpful to us. I understand you have undertaken, along with your officials, to give us the additional materials. For that, we thank you very much. Faceoff will be in one and a half minutes. May everyone enjoy the game.
(The committee adjourned.)