Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 6 - Evidence - May 14, 2009
OTTAWA, Thursday, May 14, 2009
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:08 a.m. to examine the elements contained in Bill C-10, the Budget Implementation Act, 2009, dealing with the Navigable Waters Protection Act (Part 7).
Senator W. David Angus (Chair) in the chair.
[English]
The Chair: Good morning to everyone here in the room sharing our deliberations and welcome to all people with us on the CPAC television network, as well as those tuning in on the World Wide Web.
My name is David Angus. I am a senator from Quebec and I chair the committee. Present today are Senator Grant Mitchell from Alberta, our esteemed deputy chair; my predecessor as chair, Senator Tommy Banks from Alberta; Senator Fred Dickson from Halifax; Senator Bert Brown from Alberta; Senator Robert Peterson from Saskatchewan; Senator Pana Merchant from Saskatchewan; Senator Nick Sibbeston from the Northwest Territories; and Senator Willie Adams from Nunavut. We have a rather diverse group.
This meeting continues our study on Bill C-10, the Budget Implementation Act. The bill passed on the condition that various hearings are held on elements of the bill, including the Navigable Waters Protection Act and amendments thereto contained in Part 7 of the act.
Honourable senators, I believe this is our last session but one. We have had extensive hearings. I believe our witnesses have been following us directly or indirectly. You will know that we have heard a cross-section of Canadians who have helped us in our deliberations. We have had officials from the Department of Transport that directs the Navigable Waters Protection Program, and the Parliamentary Secretary for Transport, Member of Parliament Brian Jean from Fort McMurray. We have had representatives from Canadian Parks and Wilderness Society, Canadian Wildlife Federation, Canadian Rivers Network, Paddle Canada, Lake Ontario Waterkeeper, Ontario Recreational Canoeing and Kayaking Association, Watershed Watch Salmon Society, Transportation Alberta, Assembly of First Nations, Association of Iroquois and Allied Indians and the Nishnawbe Aski Nation, who we heard from earlier this week.
I think you have a sense that we are listening and giving people an opportunity to be heard so we can report back to Parliament — to the Senate and the House of Commons — on how the amendments are viewed, and provide suggestions perhaps for starting on the five-year review clause, et cetera.
We are blessed to have you here today representing "the oil patch," if I may call it that, so that we might have a balance in outlook. Many people looking at these amendments have become silent because the bill has been passed into law, so the matter became less pressing to them. Having you here to tell us about why these amendments may or may not be appropriate is helpful.
Good morning, Senator Milne.
We have before us Brenda Kenny, President of Canadian Energy Pipeline Association, accompanied by Jeff Angel, Vice President, External Relations. Representing the Canadian Association of Petroleum Producers, CAPP, is Peter Miller, Counsel, Law Department, Imperial Oil Resources. Representing the Federation of Canadian Municipalities is David Marit, President of Saskatchewan Association of Rural Municipalities, accompanied by Susan Irwin, Policy Advisor.
Welcome. Ms. Kenny, please proceed.
Brenda Kenny, President, Canadian Energy Pipeline Association: Thank you and good morning. We appreciate this opportunity. It is a pleasure to appear before you to share some of the views of the Canadian Energy Pipeline Association, CEPA. I have prepared remarks and a set of documents that we can refer to as we go along. I look forward to answering your questions.
I will provide context. The Canadian Energy Pipeline Association represents companies that transport 97 per cent of Canada's oil and natural gas. We construct and operate over 100,000 kilometres of pipelines in Canada and in the United States. Through those facilities, two-thirds of all energy used by Canadians is delivered to their homes and vehicles to meet their needs. In the next 15 years, CEPA members expect to invest more than $40 billion in new and expanded pipeline infrastructure to meet the growing needs of Canadians. That number does not represent the possibility of two major northern gas pipelines.
The pipeline industry is committed to environmental sustainability, public safety and respect for landowners and land users' rights. Our industry is regulated through its life cycle from design through to decommissioning by the National Energy Board and by provincial energy regulators. Pipelines built and operated by CEPA member companies deliver the energy needed by Canadians to live their lives in comfort and safety and for the Canadian economy to grow, while protecting the environment every step of the way.
CEPA considers the amendments to the Navigable Waters Protection Act, NWPA, to be positive changes. These amendments are an important piece of legislation, and the Navigable Waters Protection Act is a long-standing and important objective for Canadians to ensure and protect the public's right to navigate Canadian waters. This legislation has little to do with environmental assessment and everything to do with competent regulation of activities that might affect the ability of commercial shipping and recreational users in Canadian waters. These amendments enhance Transport Canada's ability in that regulatory role.
The pipeline industry also believes that the authority of the minister to designate classes of works of navigable waters reflects a modern risk-based approach to regulation that is both effective and efficient. The pipeline industry has an enviable safety record, excellent standard practices for water crossings and lengthy experience, with the benefit of the National Energy Board inspection, audit and oversight throughout its life. Changes to the Navigable Waters Protection Act can build on that record and potentially remove unnecessary permitting and review from both proponents and Transport Canada. As a result, the expertise and attention can be focused on protection of the public's right to navigate Canadian waterways where and when the protection is really needed.
To use the vernacular, the mesh on the NWPA regulation net is too fine. As you have heard, Transport Canada receives and reviews at least 2,500 permit applications every year. Section 5 of the NWPA is broad and offers little discretion. In CEPA's view, the results are that regulation is done on far too many simple crossings. The amendments provide the discretion and the need to focus Transport Canada's regulatory efforts on important rivers and streams, and the issues that affect them.
Let us look at the few examples of navigable waters where permits have been required. I point to the photographs I have provided to the committee. You will see in these documents several photos of actual crossings that required permits under the NWPA. The specifics in each case are outlined beside the photos. I will review these cases for you briefly, and we can come back to them in questions.
The first picture is a winter construction permit that was required. You can see a field that might occasionally have a small freshet. The time required to issue this permit was not particularly productive or helpful on the overall environmental assessment or on optimizing construction method, and it led to a lot of confusion.
The next set of photographs on slide number three shows a flow in streams under a highway in an existing culvert. This flow required a navigable waters permit. The unfortunate situation that developed in this case was clearly that there was no opportunity for recreational use. Yet, the delays in finalizing permits caused us to need to use suboptimal construction techniques, despite having worked closely with fisheries officers to ensure that we could do the best possible job on the important fish habitat site. Offsetting and conflicting permits can result in a diminishment of efforts to protect the environment.
Slide four shows an existing bridge belonging to a landowner who said that the pipeline company could make use of it for construction purposes. The company needed to strengthen the bridge to use it in conjunction with the agreements made with the landowner. Unfortunately, the Transport Canada officer determined that the work required a permit even though there was absolutely no change to the crossing because all work was above the bridge deck.
The last slide shows a clearly obstructed waterway where navigation was blocked. The debris jams prevented recreational use, but again, it was deemed necessary to have a permit.
I provide those slides to the committee as examples of situations that can require extra permits, which you have heard about throughout these proceedings. I reinforce the point that, of course, there are many streams and rivers on which navigation must be protected. The industry supports the objectives of the NWPA and the use of permits where necessary and appropriate. The industry is committed to work collaboratively through all stages with Transport Canada to concentrate on those permits.
A few days ago, the Minister of Transport issued an order to formalize minor works guidelines. We support that order and intend to work collaboratively on it. It is important to look at the spirit of continual improvement of regulation and environmental performance. We are mindful of the risk created on the ground during construction. Laying on of permits and requirements, and terms and conditions is where we, together, risk injuring the environment and safety precautions rather than looking at an optimal outcome. The requirement for multiple permits can cause unintended consequences, and we would like to avoid those consequences.
This can be put into implementation with effective mitigation of any risks, making sure that critical timing windows for projects that will proceed are done well. Our objective, as always, is to continue to meet the energy needs of Canadians while maintaining our industry's record of outstanding environmental stewardship and safety performance.
Thank you once again for this opportunity.
The Chair: Dr. Kenny, that was a fine presentation. We are grateful. We will ask you questions later on. As is our practice, we will hear from everyone first.
I want to introduce another one of my colleagues, who has just arrived. She may be known to you. She is one of our newest senators, Senator Raine from British Columbia. She joins us this morning on behalf of Senator St. Germain.
Our next presenter is Peter Miller. I mentioned earlier that he represents the Canadian Association of Petroleum Producers and he is counsel with the law department of Imperial Oil Resources.
Peter Miller, Counsel, Law Department, Imperial Oil Resources, Canadian Association of Petroleum Producers: On behalf of the Canadian Association of Petroleum Producers, I thank you for this opportunity to address the committee on the recent amendments to the Navigable Waters Protection Act. CAPP views these changes as significant improvements to a rather old bill. The changes go a long way to modernize this legislation and to respond better to the contemporary socio-economic needs of our society.
The Canadian Association of Petroleum Producers represents 130 companies that explore for, develop and produce natural gas, crude oil and oil sands throughout Canada. CAPP member companies produce more than 90 per cent of Canadian natural gas and crude oil. CAPP also has over 150 associate members, who provide a wide range of services to the industry. Together, these members and associate members are an important part of a $120 billion a year national industry that affects the livelihoods of more than half a million Canadians.
These amendments to the act were made with a specific purpose in mind, and this was described by the manager of the program, David Osbaldeston. The amendments are designed to remove the bureaucratic barriers, as described before the House of Commons Standing Committee on Transport, Infrastructure and Communities, as great impediments that will seriously affect the infrastructure project development. The solution that was offered by the department was to provide a review and approval process commensurate with the degree of potential interference.
We heard from the previous witnesses before this committee that the changes are designed to make the whole review and approval process much more efficient. By no means are the changes intended to be a vehicle for fast-tracking, taking shortcuts or avoiding any environmental protections. The question has come up: In what way will this legislation help infrastructure programs? Again, this legislation is not an approach or attempt to fast-track those programs but, as Dr. Kenny described, we believe the program will effectively reduce needless work and free the resources of the department to deal with the real issues that face it in interference with use of the rivers.
Though the legislation has a specific targeted purpose, Senator Banks was able to confirm in questions that these improvements will continue in the legislation. In fact, there has been much discussion before this committee about the five-year review, which will afford an opportunity for continuous improvement and review of the changes to assure they achieve the objectives that were intended.
The Chair: On that point, are you saying there has been considerable discussion amongst people like yourself and the officials at Transport Canada?
Mr. Miller: No, sir. I have read the transcripts of previous proceedings of this committee.
The Chair: You are referring only to those transcripts?
Mr. Miller: Yes, Mr. Chair. Improving the efficiency of regulatory processes is a goal that CAPP is constantly pursuing at all levels of government, and these amendments accurately reflect what Transport Canada has learned over decades of protection for Canadian waterways.
A brief comparison of the old legislation with the new will help us understand exactly what steps have been taken or what changes have been made. This committee has heard that the protection of our rivers or water bodies has been lessened by these changes. I submit that the opposite is true. Under the old legislation, section 5(1) begins with a prohibition that no work may be undertaken without an approval. That has not changed in the new legislation. However, section 5(2) provided an exception for bridges, boons, dams and causeways, which are the major works. The old act made it clear that section 5 does not apply to a work which, in the opinion of the minister, does not interfere substantially with the navigation. To be clear, the old act did not deal with any works that did not meet this threshold of substantial interference.
Under the new legislation, as I said, we still have section 5(1) that has a blanket prohibition. We still have the test of "substantially interfere," which entitles the director to impose terms and conditions. However, under the new legislation, the director can also impose terms and conditions on works that fall below that standard of "substantially interfere." In fact, even more so, the issue has become so controversial in dealing with the classes of works in navigable waters, I submit that the creation of this power puts even more works under the supervision of the director than existed under the old act. Under the old act, only those works that had substantial interference required approval. What is proposed is that all works will have some sort of scrutiny, either through criteria and guidelines or through terms and conditions.
I submit that the amendments to the legislation offer more protection of our waterways than the old act.
The Chair: There is less red tape; is that it?
Mr. Miller: Yes; that is exactly the problem. Under the old legislation, the director had to decide, first, whether the water was navigable or not, and then whether there was substantial interference. The process of answering those two questions was incredibly time-consuming and I believe the department felt the act compelled them to conduct that scrutiny on each and every work that was proposed.
The director has told us that through 20 years of experience, they are now familiar with certain routine types of works and they do not need to conduct that type of investigation for each and every one of those proposed changes. That experience is what adds the efficiency to the process. As I said, it frees up the resources.
The Chair: In your view, was this criterion of "substantial interference" a reasonably defined term? Did it have a recognizable and accepted meaning or was there subjectivity that caused issues as well?
Mr. Miller: There has been a lot of discussion before this committee about definitions and terms. I do not believe there is a definition for that term. Speaking to you as a lawyer, I can tell you that over the centuries, the law and courts have not had difficulty with that kind of nebulous arrangement.
I should not say that the courts have never had trouble. There has always been an issue around definition, but the courts have always been able to deal with terms such as due diligence, negligence and gross negligence without precise definitions. What the courts have said, going back to England hundreds of years ago, is that these matters are specific to the facts and must be determined on the facts of each case.
I am not troubled by the fact that we do not have definitions. In long discussion with some of the environmental groups, they themselves were not able to offer a definition. They recognize definition is problematic in terms of trying to define certain concepts such as what is navigable and what is substantial. As I said, I do not think the law has difficulty in dealing with those issues.
The Chair: It is more the pre-law level of the bureaucracy.
Mr. Miller: Yes; again, we see these amendments as giving the director the flexibility to clear the decks of a lot of low-level issues that do not present a concern to navigation.
The Canadian Wildlife Federation put a proposition to the committee that the amendments significantly reduce the waterways that will be protected by the act's approval process. The federation would lead you to believe that amendments provide no indication of alternate measures to protect Canada's water from these works. Mr. Osbaldeston, on the other hand, stated that the amendment does not eliminate the purview of the act, and suggested that the presented views were based on misinformation and misunderstanding of the intent of legislation.
We submit that the proposal offers another smarter and no-less-effective way of protecting the waters in this country by following outlined criteria and employing risk-based policies.
These changes will also enable industry to improve continuously its operations that may affect Canada's waterways and the environment generally by the development and adoption of best practices and codes of practice. Senator Banks raised a question on these codes about the delegation of authority, and raised the prospect of adopting codes that are beyond the control of the government, and that may change and become troublesome.
We submit that the government does not lose control of those policies, guidelines or codes that are incorporated by reference. The government still has the enforcement function; the minister still is required to steward the applicability and adequacy of those adopted standards. That kind of question, and the committee dealt a fair bit with this item, shows the significance and importance of this type of process because the committee was able to bring out from the manager of the program the true purpose and intent, the objective, of these changes. If a question ever arose as to the scope or application of these changes, reference would be made to the proceedings of this committee's deliberations to clarify that intent.
There was concern and discussion about applying discretion to large controversial projects such as a bridge across the Ottawa River. To me, it is inconceivable that the situation would ever happen. The manager of the program made it clear that it was not the intent of the amendments. The intent was to deal with low-level, no value-added type of work that he felt the law, as it stood at the time, required him to undertake with proper due diligence.
The major resource development projects will benefit in particular from the efficiencies of the approval process. These projects are developed and approved in an open and rigorous consultation and review process. We see no possibility that significant environmental concerns will go unaddressed as a result of efficiencies described in these amendments.
The public interest as well will be better served as the costs of performing the statutory duties under this legislation will be reduced greatly by the introduction of class exemptions. For instance, the Mackenzie gas project had an extensive environmental review process with the joint review panel. It was identified that 676 water body crossings had to be dealt with, and Transport Canada dealt with each one of those crossings, but in the end it turned out that fewer than 100 were navigable waters. However, each one of those, almost 600, had to be reviewed. It is clear that 500 extra steps were taken to visit, to review and assess these sites.
The target for cost savings and, I think, one of the dilemmas and challenges the minister faced was: How do we deal with these extra 500 steps in this case? The amendments have answered the question of how do we deal with the 500 sites most efficiently.
In our industry, the mechanism chosen is simple and applicable. Because we are a highly regulated industry, we employ sophisticated expertise to help us to assess projects, and we follow rigorous protocols with internal stewardship and accountability. We are perfectly suited to an approach that employs an approval process commensurate with the risk.
In earlier proceedings, Senator Lang raised a couple of times this issue of common sense, and he said we need to bring common sense back into our administration of the law. I dare say 100 years ago our forefathers had much more common sense than we do because it would never have occurred to them to have a set of rules or interpret a law that required the regulation of activities that did not affect navigation.
Today, as is the case in the Mackenzie gas pipeline where we looked at 600 different sites, most are minor stream crossings. The assessments would be conducted in one week in the middle of winter and the land would be restored with absolutely no effect on navigation. Again, 100 years ago no one would have thought that a dry riverbed would have any interference with navigation, yet we have come to the point where we feel compelled, and the law requires us, to look at each and every one of those sites. The amendments to this legislation will deal with that issue. We will be able to work smarter. Senator St. Germain raised the question about the practicality of the old process and Senator Neufeld raised the question of how we are spread so thin: 730 people across the country. We have to work smarter in this end of the business and these amendments will get us there.
The manager of the program made it clear that he was relying on education of the stakeholders. He expects to receive fewer applications in the future as a result of these amendments that will take the load off the system to free the resources to deal with the real problems, which are the big infrastructure projects that the government has set a priority to deal with.
I can assure that honourable senators will not have difficulty engaging our industry in this program. We are committed to continuous improvement, both in terms of process efficiencies and in standards of operation, and we look forward to working with the department in the future under the new legislation.
The Chair: Thank you, sir. I cannot help but observe with approval that you have examined the transcripts of our work to date on this topic. You referred to it a few times and have even outlined your view of the ongoing role for these deliberations as points of reference and so on. Have you also seen the transcripts of Ron Middleton's testimony of Tuesday this week?
Mr. Miller: I have been traveling; I did not see that.
The Chair: I suspect Senator Banks might question you with respect to his final comments, which made us wonder whether this is all much ado about doing.
Next is David Marit, President of Saskatchewan Association of Rural Municipalities. Welcome, sir, and over to you.
David Marit, President, Saskatchewan Association of Rural Municipalities, Federation of Canadian Municipalities: Thank you, Mr. Chair and ladies and gentlemen, for having us here this morning. I am the president of the Saskatchewan Association of Rural Municipalities, and I also have a role at the Federation of Canadian Municipalities, FCM. I sit on the board of directors of the FCM and I am vice-chair of our rural forum. Along with that position is the role of the FCM co-chair of the FCM Department of Fisheries and Oceans working group that has been undertaken. I want to thank you very much for inviting FCM here this morning.
As you know, Budget 2009 committed to implementing limited changes to the Navigable Waters Protection Act, as recommended by the House of Commons Standing Committee on Transport Infrastructure and Communities. Bill C- 10, the Budget Implementation Act, includes elements that deal with the Navigable Waters Protection Act, NWPA. Amendments to the NWPA include the following: removing named works including bridges and dams; combining two or more works if they are related; grandfathering works constructed under the authority or owned by a province; creating classes of works or classes of navigable waters for which no approvals are required; increasing the flexibility of the submission process; allowing the minister to cancel or amend an approval; and proposing an increase in penalties under the act.
FCM is encouraged with these recent changes made to the NWPA in Bill C-10. We are also pleased with the efforts of the federal government to listen to the concerns and challenges facing municipalities. The revised act will streamline approvals and entirely exempt some classes of work and waterways from the approval process completely.
For example, we are happy with the redefinition of works because it will ensure project approvals in a quicker and timelier fashion than was the case before the amendments to the NWPA were made. While changes to the legislation provide mechanisms for streamlining the process, there are also amendments that give the minister broad and relatively arbitrary powers to amend or cancel approvals for projects at any time. This division shows the need for ongoing consultations with municipalities and other stakeholders as the amendments to the NWPA are implemented and enforced.
One of our principle concerns remains the definition of "navigable waters" and "named works" in the NWPA. Transport Canada's definition of "navigable waters" is "any body of water which is capable, in its natural state, of being navigated by floating vessels of any description for any purpose of transportation, recreation or commerce, and includes a canal or any other body of water created or altered as the result of the construction of any work."
Using this definition can refer to anything from a four-foot deep stream used for canoeing to a major waterway such as the St. Lawrence River. This definition is an area about which we continue to have concerns.
Our secondary concern regards named works. Since 1882, the NWPA has added named works that fall under the mandate and control of the act. These works include bridges, booms, dams, causeways, wharfs docks and piers. No type of work has ever been removed from the act, only added.
The principle implications for municipalities of the definition of navigable waters and named works are as follows: On the approval side, the NWPA requires municipalities to obtain approval for any project built in, on, over, under, through or cross a navigable waterway. Due to the vague definition of navigable water, this work includes any body capable of being navigated from any type of floating vessels from a container ship to a kayak for the purpose of transportation, recreation or commerce.
The application of this definition in many situations is not practical to the project and has led to increased costs and serious project delays. On environmental assessments, when the project receives federal ministry approval, environmental assessment is triggered in accordance with the Canadian Environmental Assessment Act. As a result, there can be significant cost to the municipality in association with an environmental assessment including consultant fees, project management and project delays even for comparatively minor projects with limited risks already covered by provincial, territorial or municipal environmental project provisions. The end result is that municipalities are often forced to spend time and money to build infrastructure and respond to requirements to accommodate nonexistent public water travel.
FCM appreciates the importance of Canada's water transportation system and understands that the NWPA is meant to protect that crucial system. These changes to the legislation will provide for the protection of the NWPA it is meant to provide while eliminating or mitigating redundancies, red tape, project delays and higher costs to property taxpayers.
Thank you for taking the time to listen to our concerns. We are confident your committee can understand the need to implement the amendments to the NWPA as soon as possible.
The Chair: Some of you appeared before the House of Commons committee. Did you, Mr. Marit?
Mr. Marit: I appeared jointly with my colleague from Alberta, Don Johnson.
The Chair: I believe others of you clearly followed the proceedings, based on what you said.
Senator Mitchell: This presentation has been excellent and is helpful to the committee. I will start with one point that, for me, is at the core of this issue.
There is a contradiction inherent in the range of presentations we have received. Much of the evidence is that these amendments do not affect much that is of significance. Ms. Kenny's pictures show a ditch that you would be hard pressed to wet your feet in, let alone navigate it with a canoe or other vessel. Then we say, if it does not affect anything, why bother doing it. However, if the government is amending it and they are intent on amending it, it must affect something big, but no one can tell us what it is. Therefore, one becomes immediately suspicious. What is happening here?
It is compounded by another element of contradiction, which is that the government must amend the act so they can speed up the process and put infrastructure into place immediately to stimulate the economy. However, the act does not affect large projects being held up at this level of review in any event.
People are suspicious of one fundamental thing. If we skip over something with the Navigable Waters Protection Act, will we miss some important fisheries or environmental assessment process? If the minister says we do not have to worry about this issue under the NWPA, does that eliminate the trigger that would require an environmental assessment that would not otherwise be done, or can that EA be done in any event even if the NWPA trigger is not ignited?
The Chair: You can all respond to that question. Senator Mitchell has crystallized one of our dilemmas.
Ms. Kenny: That is an excellent question and it goes to the heart of the matter. Piggybacking of permits is what we are faced with in Canada currently through well-meaning legislation that has caused us to grab as much as we can to ensure we are safe. The unintended consequence is that when planning for and designing a project, we are working closely with a range of stakeholders and departments. That process is a complex and arduous affair in many cases. However, what is important is that we end up with an optimal outcome with the best possible way to proceed if the project is required. This process does not undercut the responsibility of us all to protect fisheries habitat. Aspects of the Fisheries Act in place currently would remain. Over the next several years, this committee may hear further ideas on how to improve that particular piece of legislation, but that is not our goal today.
We also have robust environmental assessment requirements in Canada. For example, the pipeline sector has unique overarching pieces of legislation such as the National Energy Board Act that require the equivalent of sustainable development oversight. Their public interest requirements span all environmental issues — safety, social needs and the economy.
One photo I shared showed a small pond beside a culvert. In that particular case, it was an important design aspect that required much negotiation over a long period with parks, fisheries and many others to find the correct approach. An unfortunate delay from this relatively innocuous permit for navigable waters, for what clearly is not navigable water, prevented the company from executing the best possible mitigation for fish habitat. The company worked with fisheries officers during construction, but had missed the ideal window and were unclear what to do. Coupled with tricky winter construction, which will reduce risks in terms of habitat, we had confined construction space on the right- of-way with large pipes swinging around on booms putting the on-site workers at risk. We always try to find the best possible way. Specifically, there will not be an undercutting on environmental assessment or on the fundamental objectives of Transport Canada and the need for protection of navigable waters. We will see an evolution toward an effective and pragmatic approach that protects the things that matter most and that encourages collaboration on a risk-based approach.
The Chair: Mr. Miller, do you wish to comment?
Mr. Miller: Yes; there is a simple and categorical answer to your question as it applies to our industry. We have a regulated industry and we do not undertake any activities that are not closely scrutinized by both the regulator and the public. Speaking for our industry, there is no question that environmental assessment will not be reduced or undermined by these changes. As I mentioned, the original NWPA was simple and it was written 100 years ago by people who had more common sense than we have. As we interpret it today, it imposes an obligation on the manager to conduct a full due diligence assessment of everything that comes before the manager, which is incredibly time consuming. If anything, the act, as amended, is a positive step to free up much of the manager's time on issues that, as Ms. Kenny described, we can all agree do not affect navigation in the waters. The amendments allow us to focus attention on the real issues. This step is positive, and there is no way that it will undermine the environment. In the terms of reference, the scope of the legislation is navigation legislation, not environmental legislation. We have to be cautious about overlaying these two issues. There is some discussion about the federal government trying to extricate itself from the assessment business in respect of activities that truly fall under provincial jurisdiction.
We have to respect jurisdictions and trust that people who hold responsibility will do their job properly, while we feel that is not happening to work at those levels. We must not impose a duty or responsibility in one piece of legislation that goes beyond the government's scope and intent resulting in the creation of burden in respect of someone else's jurisdiction. The legislation then causes confusion, uncertainty and planning difficulties for industries such as ours.
Mr. Marit: Our concern at the municipal level is the duplication of process and the delays that are created. Under the memorandum of understanding, MOU, that we have with the Department of Fisheries and Oceans and the FCM working group, municipalities work with the Department of Fisheries and Oceans on projects and to protect the environment, whether environmental issues or transportation issues arise. I will give an example of how environment and navigable waters contradict each other in this regard. In Saskatchewan a few years ago, a rural municipality was working on a road project over a tributary of the Great Swan River. The tributary does not flow year round but the Department of Fisheries and Oceans required approval for both navigable waters. The project was delayed for well over one year because under the Navigable Waters Protection Act, the municipalities were required to put in a certain culvert system that would cost over $400,000. DFO had already approved a culvert project for that municipality to protect the environment, including fish habitat, at a cost of $125,000. The project was delayed well over one year while waiting for approval under navigable waters. As a result of political intervention, Environment Canada won over Fisheries and Oceans Canada and we protected the environment and saved the municipality in excess of $200,000. That is the kind of issue that we face in the municipal system. We think we are protecting the environment but navigation is different. Until we define "navigable waterway," we will have ongoing delays, which is the concern in municipal systems. We have federal and provincial program funding delivered in the fiscal year so we have a certain time that we can work on the projects. When we have to wait for approvals and face year-long delays, we lose those funding dollars. It is important to expedite the approval process, but that does not mean we are neglecting environmental issues. We are simply trying to avoid the red tape.
Ms. Kenny: I will make a supplementary comment to reinforce a point raised by Mr. Marit because we face a similar dilemma in the pipeline industry. From a public interest point of view, it is a matter of who is calling the shots among regulators in terms of the best mitigation ways and what the environmental concern is that we are working to address. The example provided by Mr. Marit is similar to the situation that we face with pipelines on a regular basis. As a citizen, I prefer to have a fisheries officer directing the best mitigation rather than a well-meaning transportation navigation officer. We need to recognize that across the public service, we can and do work more and more across departments, but we can end up with unintended consequences when folks who might be less informed on specific environmental concerns are feeling burdened with having to make those choices.
The Chair: Ms. Kenny, as a representative of the pipeline industry, you would rather have the fisheries officer direct best mitigation?
Ms. Kenny: Yes; we are encouraged by what the government's attempts at cross-departmental collaborations through the Major Projects Management Office, for example. We are encouraged by the work of the National Energy Board in collaboration with other departments so that we can ensure the best possible mitigative measures are conducted. However, this kind of situation still arises when one department directs something that might undercut the environmental protection that you are attempting to put in place. Frequently, it happens at a cost that is far higher and takes away the opportunity to do other good works.
The Chair: Mr. Marit, even though these amendments are law, they do not fix the problem of the cross-purpose that you described.
Mr. Marit: The act, as amended, does not fix all the problems but certainly, it moves us in the right direction. It helps. We ask and encourage the committee to implement the amendments as quickly as possible.
Senator Milne: I have questions for all the witnesses, beginning with Mr. Miller. You said that the amendments do not remove the term "substantial interference" from the NWPA. You also said that these amendments will allow the industry to develop a code of best practices. Do you have such a code?
Mr. Miller: Yes.
Senator Milne: Why then are you talking about developing a code in the future?
Mr. Miller: The point is that we develop codes of practice. For stream crossings, we have developed excellent practices. We have come to the point where most of our stream crossings are bored beneath rivers so that there is no more ditching, although that can be necessary for larger waterways. The codes keep the standards high and consistent throughout industries. These amendments give us the certainty and the assurance in our planning such that when we apply the codes of best practice, we will not have to endure a long and uncertain approval process.
We know the outcome of the approval process will be to apply the terms and conditions that are contained in the codes of practices. We have already come forward with those codes. We developed them collaboratively with regulators and they are constantly under review and approved from time to time.
Senator Milne: This question applies to Dr. Kenny as well. For many years, my husband was in charge of obtaining all the environmental approvals for pipelines across Canada and their projects into the United States. I am well aware of the process. The companies dealt mainly with the National Energy Board. Once they completed that process, they did not have to go to navigable waters and they did not have to go through all the other procedures.
Mr. Miller: We prefer a one-window approach. I think you have heard that all of government is moving towards that approach as well.
Senator Milne: However, it has already been in place for years for major projects.
Mr. Miller: Yes; what we are talking about here now is no diminution of that approach at all. The standard will still be high. All we are talking about is process. When we have all that process in place and the rules are clear, acceptable, satisfactory and sufficient, do we still have to go through a process? The evidence that I have read indicates that sometimes the delays are six months or a year because when a regulator is presented with a decision, the regulator cannot book a helicopter for $10,000, run out and look at this site. We heard about coordination with provinces to achieve efficiencies by inspecting a number at once. That approach results in delays that are burdensome for industry. It impairs planning and the economics.
We are saying that when we have recognition of these codes of practice, we will have the assurance in the planning cycle that we can schedule equipment and work to be completed. Most of our work is undertaken in the wintertime and there is only a six- to eight-week window when work can be done. Over and over again we run into these delays that shorten the window and give us a suboptimum work program and schedule when we would prefer to plan and schedule it better. The codes of practice will give us the assurance that we do not have to go through a long approval process that is hampered by such things as schedule, resources and logistics.
Senator Milne: The definition of navigable waters is anything that will float a vessel. If the Mackenzie Valley pipeline goes ahead, you will construct there in the winner. These rivers and lakes that run into the Mackenzie River are basically the highways in the north in the winter. The only way to get around is with a snowmobile. The waterways are still navigable waterways for the local population to get around.
Mr. Miller: Absolutely; we recognize and respect that use and have been working on that basis for decades. There is not an issue there. I can debate you as a lawyer about vessels and definitions. I think that debate is not what the act was intended to deal with. I can give you the assurance that we recognize that use and we deal with it. It has not been an issue in the past.
I keep talking about common sense. There is no navigation on a frozen river stream in the middle of winter. There is transportation. The question is, is that transportation what the act was intended to deal with? Is it intended to deal with snowmobiles? This issue is the real issue here. An act that was written a hundred years ago did not contemplate snowmobiles. It contemplated dogsleds and transportation — so, yes, it dealt with that use.
However, we need to build into our legislation the flexibility to deal with this kind of change. We believe the discretion provided in these amendments gives the minister that flexibility.
Senator Milne: You think the amendments do?
Mr. Miller: Yes.
Senator Milne: Mr. Marit, I am sympathetic about the length of time required for approvals, which may mean you miss your funding window because it may die at the end of the year and that is the end of the project. You do not have the money any longer to go ahead with it.
In the written brief you have provided us, you talk about the 2008 NWPA review from the Federation of Canadian Municipalities. You make three recommendations, but it seems to me all three have been addressed by these amendments. The recommendations are on page 3 and 4 of the brief. Your concerns in that way have been met, but you then carry on to note that there are also amendments that give the minister broad and relatively arbitrary powers to amend or cancel approvals for projects at any time. You still have concerns about that arbitrary power given to the minister. We have noted the new amendments give power to the minister without any parliamentary purview or oversight whatsoever, because the minister can amend or cancel without coming before the Standing Joint Committee for the Scrutiny of Regulations.
Mr. Marit: That power is new and huge concern to us. Regarding the number one recommendation on page 3 of our submission about the definition, we do not think the definition has gone far enough yet. Our submission to the Transport Committee was a lot stronger, clearer and more defined than the definition here. We had some concerns on that definition.
You are right; we have concerns about ministerial interference, which could take a project away for reasons beyond anyone's control.
Senator Banks: Thank you for your excellent presentations. Mr. Miller, you talked about common sense. We would all love to be dealing with common sense but we are not; we are dealing with government and the law. Common sense and government and the law are sometimes mutually exclusive terms, as I am sure you know from previous practice.
It is important for us all to understand what we are dealing with here. We are dealing with an act that has nothing to do with the environment — nothing. We may deal with the environment in another context in a different situation at another time. This legislation has to do with navigability and nothing else. It would be nice if there was one-stop shopping. If I were a developer, an operator or a municipality, I would want one-stop shopping, but there are constraints against that, which I want to ask you about.
The Chair: Senator Banks, as you say, the amendments deal with navigation, but also these basic rights that appear almost as part of our Constitution, as was pointed out to us on Tuesday night.
Senator Banks: You are right. We heard interesting comments on Tuesday about that question from people who have been using those waterways and thinking about them differently in ways that we are incapable of thinking.
Mr. Miller, you talked about, and we have all talked about, the overlap and the redundancy. Do you think that navigability or navigation in the constitutional division of powers exists anywhere in the provinces? The environment exists; it is a shared jurisdiction in the Constitution. Does navigability enter into any of the purviews of the provinces under the Constitution? That is a cogent question to what we are dealing with here. You talked about letting the provinces regulate navigation. Does that regulation, in your view, fall within the purview of the provinces constitutionally?
Mr. Miller: No, I believe navigation falls under federal power. Navigation has to do with safety and access, but, as you say, not with all the other ancillary environmental issues.
Senator Banks: We are dealing with that fact. We are dealing with questions of navigability that constitutionally fall within the purview of the federal government alone. We are dealing with questions of navigability and not matters of the environment. It would be nice if we could do that, but we cannot unless the Constitution changes or we find a way around that issue.
Mr. Marit, you talked about the necessity to obtain approval in your presentation. Correct me if I am wrong, but my understanding is that the requirement for municipalities, developers or pipelines to comply with the provisions of the act regarding obstruction of navigation have not changed in the amendments before us. What has changed is whether you need an approval in advance. Is that the only thing that has changed in the amendments to the act?
Mr. Marit: You are correct. There has been no change on the obstruction side, which is what we wanted. If you talk to any jurisdiction in this country with regard to municipalities, we have to perform our due diligence. We are dealing with an old act where the modes of transportation depended on water when the act was written. Our total mode of transportation has changed and the act must be changed.
Senator Banks: Do you understand that the act talks not only about commerce, but also recreation?
Mr. Marit: That is exactly right. We can address projects dealing with recreation. The issue municipalities have is the definition of a navigable waterway.
Senator Banks: Let us talk about that definition. Ms. Kenny has shown us a picture. However, do we all agree and understand that there are streams that are sometimes navigable and sometimes not? A navigable stream in the view of a paddler can be navigable for 10 days of the years and not the other 355 under the act.
Mr. Marit: The FCM has raised that concern to the Commons Transportation Committee about the definition of a navigable waterway. The amendments move us in that direction, but they have not gone far enough.
Senator Banks: Mr. Marit, you talked about navigable water being anything from a four-foot deep stream. We have heard from concerned parties that it can be a four-inch deep stream. What do you think of that definition?
Mr. Marit: That is our concern. That is the current definition.
We want to change the definition so that it is a water body that supports a draft of one metre on a vessel and it runs for more than three months per year. We have many systems in rural Canada where the only water that runs is what we call "spring run-off," yet it is still under the purview of navigable waters.
Senator Banks: Yes, there are many water bodies like that.
Mr. Marit: We have no problem with that water body being under Fisheries and Oceans Canada because it may be fish habitat.
I can provide absurd examples — to use the right phrase — in this country that municipalities have had to deal with. The Saskatchewan provincial ministry of highways had to appease navigable waters people by installing a toll phone so if someone was coming down this water body and needed to cross the highway, they would phone the ministry of transportation who would come out to shut down traffic to permit the person to portage across the highway to the creek on the other side. This stream does not run all year; they have proven it over many years. It does not run for more than three months. That is the absurdity of the act.
Ms. Kenny: The minister would have authority to designate classes of works and classes of navigable waters with some of these changes. I concur with the points made by Mr. Marit but I would add that we at a stage now where we have an opportunity to look ahead at more sensible approaches. We have the opportunity to work collaboratively with the department and other stakeholders to understand these classes of works and to ensure fundamental objectives of public interest can be met in a way that is sensible, smart and effective. None of us benefit from having Department of Transport staff chasing things that are of little or no consequence. The risks inherent to any number of sectors and works necessary for Canadians are profound.
I would reinforce the risk-based approach and smart use of necessary permits. On Senator Milne's point, sectors such as pipelines have oversight by the National Energy Board. Beyond the NEB requirements are permits required in other pieces of federal and provincial legislation. We need to do a better job of understanding how those pieces fit together, and ensure that fish, navigable rights and use of land-base water quality are all protected in the best possible way.
My main submission today is that extraneous permits under the Navigable Waters Protection Act provide no assurance to Canadians that those primary interests are met. They simply distract us. We are pleased with these changes.
Senator Banks: As the chair mentioned, the question whether something is of little or no consequence depends on one's point of view.
Ms. Kenny: Yes; working collaboratively with people using these waterways is important. Clearly, for a winter construction project that leaves no residual impact on the ability to use that waterway, we would be hard-pressed to argue that even a canoeist should be concerned about that use.
Senator Banks: As the chair has said, we heard interesting testimony from Aboriginal people about that issue, to which I commend your attention.
I close by saying to Mr. Miller that my concern about the incorporation of materials by reference and the questions you raised was not that the government would lose control over those things; my concern is that Parliament would lose control over those things, which is a different matter.
Mr. Miller: Yes.
Senator Adams: Thank you for appearing. Living in Nunavut, sometimes our rivers are not running yet. Communities may have snowbanks running down the road but the rivers are not running yet.
One year there were 600 applications for permits. If the bill passes, there are another 2,500 applications for permits. Mr. Miller, how long does an application for a permit usually take? How long does it take to receive approval and complete the work? Sometimes, you have to move equipment.
Mr. Miller: My experience is that for issues that are not controversial for other reasons, the department is efficient in dealing with applications and we have the permit within a couple of days. There is the application of common sense, good science and good experience. Many of these permits fall within the classes we are talking about creating. Ms. Kenny discussed shoring up an existing bridge to make it stronger to take heavy equipment across. We can have a 24- hour-hour turn around on that permit because everyone recognizes it is not an issue for navigable waters.
When other issues arise about the environment or rights, it can take a long, protracted time. I read examples in the transcript that took as long as six months to one year. That time is troublesome because we work with schedules. However, for the majority of the work, which is routine, turn around time for a permit can be quick unless encumbrances arise with other issues.
Senator Adams: Right now in Nunavut, they have two bridges to operate. One bridge has surface rights under the Nunavut Water Board. There is also the Yukon Water Board in the Northwest Territories, although it is a little different. Bill C-6, the Mackenzie Valley Resource Management Act, which came before the Senate Energy Committee, was passed a long time ago.
Before an application is made, we have approval from the Nunavut Water Board. Is it necessary still to apply for a permit? How does that work? I know that it takes from 60 days to 70 days to receive the ministry's answer to the NWB's applications. In the NWT and Nunavut, people go to their respective water board first. What should happen before approval of the application permit? Should people go to the ministry first or to the respective water board first?
Mr. Miller: Water board applications involve many more interests and stakeholders and are, therefore, much more thorough applications. An application under the Navigable Waters Protection Act could be much more streamlined and independent of that process. The applications could be made in parallel.
There is no question that the water boards serve a different function in that they respond to a broader set of concerns and needs.
Senator Adams: Where I live between Baker Lake and Rankin Inlet, we have many snowmobiles and related equipment travelling across the lakes and rivers. In the wintertime, would navigable waters be checked for permits or does that happen only when the water is running? I wonder how this bill, as passed, will affect things.
Mr. Miller: I have not seen the class of exempted winter works in the order. We want to see that exemption as well, just as you want to see federally regulated activities included as well. I hope that will come with development.
The NWPA deals with access of transport and safety. When we are at a construction site, we have to cross the obstruction that we create to install a pipeline, for instance. Access is accounted for, and we are respectful of those traditional uses. We recognize the paths that are on a lake when we know that it has been used as a transport route. I do not think there is any concern there.
Senator Adams: I have another short question. We deal mostly with the Department of Indian and Northern Affairs for anything that needs a permit. Will applications for permits go through Transport Canada now that Bill C-10 has passed?
Ms. Kenny: This change in the legislation will not affect any of those channels. I reinforce the point that in planning any large-scale project, in addition to the specific steps in regulation, there is extensive consultation with local communities to address concerns and interests that would occur if the project were to proceed, either during construction or through the life of the project. This issue of mobility on the landscape through frozen weather is paramount in the minds of developers and is dealt with in a number of different ways.
Senator Brown: It is nice to hear that the NWPA was simplified and streamlined, and, in particular, it was nice to hear Mr. Miller's comments about common sense.
Mr. Marit, you are the President of Saskatchewan Association of Rural Municipalities.
Mr. Marit: Yes.
Senator Brown: Do you have development officers in all municipalities?
Mr. Marit: No, not in all of them.
Senator Brown: Are there offices in most municipalities?
Mr. Marit: Yes.
Senator Brown: Do you have improvement districts that would have less regulation? Alberta has improvement districts and municipalities.
Mr. Marit: No, but watershed authorities have taken off in our province. They look after the environment side.
Senator Brown: You have control over both environment and navigable waters?
Mr. Marit: Yes.
Senator Brown: I do not know about every province in Canada, but I have dealt with Manitoba, where development officers control these things. Your comments that this act is better than it was before are encouraging because if we continue to create more and more restrictive legislation at the federal level, there is a danger of creating bureaucracies that grow into monsters, both in terms of size and costs. Most everything at some time comes down to an on-site decision at the municipal level. I encourage everything you do in respect of continuing your work with municipalities. I have done a considerable amount of work in that area when I was on the board of the Western Irrigation District.
The Chair: Senator Brown, do you have a question?
Senator Brown: Yes, I have asked my question. I have one quick comment on navigable waters. There are 14 irrigation districts in Alberta. They run full time in the summer. When it rains as little as half an inch of water, the rain creates navigable waters in what are called "overflow basins" in each of those 14 districts. The navigable waters can last anywhere from one hour to three days. They would classify as navigable waters six to eight times per year but not for long each time, giving rise to the need for a lot of common sense when dealing with those areas.
Senator Raine: Mr. Marit talked about the need to redefine "navigable waters." Is it feasible to include both frozen and running water in the definition to deal with the winter aspect when those waterways are navigable by snowmobile?
Mr. Marit: That would have to be brought into the definition where snowmobiles or even dog sleds are concerned. When I am in a water system, whether it contains water, snow and ice, I would not be on a snowmobile if there were no snow or some form of ice. As a snowmobiler, I also have the means to move off the waterway if there is another means for me to reach my destination.
The definition of "navigable water" must be clear and concise in terms of the type of navigation that we are looking at, such as recreation. We do not have to go into the full definition of size or depth of the waterway but we do need the definition of how long that water flows.
The Chair: I thank the witnesses for appearing today. As you know, we will report back to the Senate soon with our findings. Is there anything specific that you want us to include? I do not want to suggest that you have dammed the amendments with faint praise. I have heard each of you applaud the amendments but there are criticisms.
Do they not go far enough to eliminate all the things that are not practical in 2009?
Ms. Kenny: I give high praise to the amendments as they are. They are an important step and they indicate where we need to go. Some of the complications you have heard about today relate to other pieces of legislation and cannot be addressed within the Navigable Waters Protection Act in any event.
We applaud the effort to move forward and we think that the amendments represent a good, smart way to continue to improve regulation in Canada.
Mr. Miller: I agree with those comments and I am encouraged by the statements of the department that they look forward to a five-year review and to collecting comments and concerns. We are building this process and bringing an old act into modern times, so we are going in the right direction.
I offer one comment. I am disappointed we did not talk about the much-ado-about-nothing, the controversial issues. This hearing process is essential to government to demonstrate accountability and open and public transparency; it gives stakeholders an opportunity to bring their issues before the public and have them addressed. The process builds trust and confidence among the parties. It opens the dialogue in a friendly setting, and is preferable to dealing with these issues in courts of law. This hearing is a vital and essential part of our political process. I appreciate that the committee is able to have these hearings and meet with all of us.
The Chair: In that regard, nearly all the witnesses we have heard to date have criticized the lack of consultation with them or their groups by the officials. I hear you saying this study almost substitutes, in a way, for that; it provides a transparent — I think are your words — way to present the information.
Mr. Miller: Yes; we will always hear the concern about consultation and we can never have enough, but we consult as much as we are able. I heard from the manager of the program the direction they were given, and the steps they tried to take were positive. As I attempted to outline in comparing the two pieces of legislation, this legislation offers more protection; it is not a diminution or reduction in rights. I do not feel that this particular issue and the steps that were taken with this amendment called for, or compelled, the broad-based public consultation that was put forward, but that said, we believe in the process of public consultation. However, in this case I do not believe that criticism is fair because the changes that were made are even better for the protection of navigation, and possibly the environment and the public interest.
The Chair: Mr. Marit, do you have a comment?
Mr. Marit: In closing, I want to thank you and the committee for hearing FCM's concerns. We like the amendments that were proposed and put forward. We have some concerns with one and we will deal with it.
We hope there will be further consultation, and there will be, on the definition, as I said this morning, and that is our concern. The biggest concern we have always had as municipalities is the red tape and trying to avoid duplication. They have huge impacts on the municipalities for cost overruns and completing projects. In many parts of the country our season is short for completing the projects. If we miss that window of opportunity, then we have a delay and huge cost overruns.
I thank the chair and the committee for hearing us. We like the amendments. We look forward to continuing with this issue of dealing with the definition.
The Chair: Thank you, all of you. I will suspend for one minute while we change to the next witness.
It is my pleasure to welcome our next witnesses from the University of Ottawa Ecojustice Environmental Law Clinic, William Amos, Staff Counsel; and Yolande Saito, Research Assistant.
Welcome to you both. We may find pressure because the Banking Committee will follow us, but we will try to give you 30 minutes. Please proceed.
William Amos, Staff Counsel, University of Ottawa — Ecojustice Environmental Law Clinic: Thank you for having us here. We appreciate the invitation and your willingness to examine this important issue. We realize the amendments are a fait accompli, but the issue is not dead and that gives us hope.
I am the staff counsel at the University of Ottawa — Ecojustice Environmental Law Clinic. To put that into context, Ecojustice is Canada's largest public interest environmental law association. We undertake pro bono work for the environment; we are not paid and we are a non-profit organization. Ecojustice has 13 lawyers situated across the country in Vancouver, Calgary, Toronto and Ottawa.
Ecojustice has partnered with the Faculty of Law at the University of Ottawa to provide clinical education to law students so they may learn what it means to provide strategic counsel to environmental and citizens groups. Ms. Saito is here with me. She is one of our best students and knows this NWPA issue well. I may draw upon her expertise to answer some of your more difficult questions.
I count myself among Canada's 2.3 million recreational paddlers. This issue is not only about the environment and paddling. It is about Canada's identity. I think that is why this issue has become so important. It is hard to tease apart the difference among uses that are navigational, environmental and socio-cultural, as you heard from Aboriginal witnesses on Tuesday.
Today, I am here representing among other groups, Mountain Equipment Co-op. They one of Canada's largest organizations representing paddlers and they are concerned about this issue.
I will make a few main points and hit the highlights and details quickly before moving to questions, which are the more important thing today.
The Chair: If it is not an undue intrusion into your thought process, you have referred twice to "the issue." At the beginning, you indicated that you are glad we are keeping "the issue" alive though the act has passed. You have just said "this issue" again. Can you crystallize for us what you see at "the issue"?
Mr. Amos: I see the issue as appropriate protection of the public right of navigation for Canadians.
The main points I want to hit today are the following: First, the fundamental changes that have already been made to the Navigable Waters Protection Act cannot be disassociated from what is happening and what will continue to happen potentially if the current federal government's plans move forward on the environmental assessment regime. The two cannot be disassociated. The consultation process that has occurred must be improved. These hearings are a small step forward, but more consultation must be undertaken on the other side of the chamber.
Second, the amendments will weaken the Canadian right of navigation. They will sacrifice recreational opportunities and will compromise the environmental assessment role played by the federal government through the use of non-transparent ministerial exemptions.
Third, I want to discuss a point raised by Senator Mitchell earlier. I want to expose the myth of provincial environment assessment overlap. It is the idea that there is red tape and duplication everywhere that must be addressed. There are issues of streamlining. There are aspects of the amendments that we appreciate and that are useful steps forward. We are not here to put a stick in the spokes of improved process. We are here to ensure the public right of navigation is protected absolutely and that any process efficiencies that can be gained within that perspective can be achieved.
I am happy to discuss the distinction between the federal and provincial environmental assessment role as it relates to navigation. One must understand the context of the debate within the main issue I defined earlier, which is the government's current decentralization agenda on environmental and navigational approvals.
That is the big picture. These amendments seek to decentralize — let the provinces do it; leave it to the municipalities. I agree that most of these issues are local issues, but that does not mean the federal government does not have a role. The federal government is a local presence as well.
Fourth, the Navigable Waters Protection Act amendments take away some of the statutory instruments through which the defence of public rights to navigate can be expressed and can be balanced with other priorities.
I am mindful of the time and I want to leave time for questions.
The Chair: You have a comprehensive and fulsome brief, which we have so that brief supplements your presentation.
Mr. Amos: We have also submitted a clause-by-clause analysis that I think will help the committee as it goes through its analysis. I will hit upon a few highlights.
We are sensitive to the need at this instant to expedite infrastructure with a view to stimulating the economy. However, there is no excuse for transforming the regime of federal protection for navigation in the long term to address a short-term issue.
The Chair: Hopefully.
Mr. Amos: There has to be a way. The pendulum has swung currently far too much toward short-term development interest. I do not say economic interest for a reason. That is because significant economic interests are associated with navigation. That is one reason why ecotourism groups, fishing and angling communities and our client, Mountain Equipment Co-op, have become involved.
The Navigable Waters Protection Act creates extraordinary powers for the cabinet or minister to exempt broad classes of waterways without any objective criteria or requirement to consult Canadians or Parliament. No cabinet or ministerial exemption order would be reviewable by Parliament. We do not think this situation is conducive to good public policy. Section 5.1, section 12 and section 13, establish new powers to create exemptions for classes of works and classes of waterways either through cabinet order regulation or ministerial order. The orders, in particular, are of grave concern because they are subject to minimal transparency and accountability requirements.
Our concerns with these unfettered exemption powers are justified given recent developments. On May 9, the Minor Works and Waters Order was published in the Canada Gazette. According to Transport Canada officials with whom we spoke at a briefing on April 30, this initial list of class exemptions was developed many months ago in consultations with groups such as those I listed.
Environmental, paddling and ecotourism communities were not consulted; they were not given the phone call, nor was I called. I have been involved in this issue for some months. A degree of trust has been breached. We do not feel the consultation process is working for those communities mindful of considerations of duplication of effort and excessive permit requirements. However, we are concerned as well about the public right of navigation. We do not think the public consultations adequately reflect those interests.
The placement of these works that have been defined in this order will likely result in interference during construction and unknown levels of environmental damage, in particular if no environmental assessment is triggered under the NWPA. I want to respond right away to Senator Mitchell's question about whether a given project will be covered or somehow examined by a provincial process if there is no trigger through the Navigable Waters Protection Act. The short answer is, not necessarily. Often, it will be covered or examined but the fact is that navigation, as Senator Banks pointed out, is a purely federal responsibility. When it comes to conducting an assessment of the navigational impacts of a project, only the federal government will conduct it.
There will be cases of projects, for example a bridge constructed over a small navigable waterway, that will trigger assessment under not only the Navigable Waters Protection Act but also under the Fisheries Act because the project might pose potential harmful interruption to, or destruction of, fish habitat. There are two kinds of federal triggers happening in such a case.
When a federal trigger occurs under the Fisheries Act, it does not necessarily mean that the project will be examined by the federal government. The policy of Fisheries and Oceans Canada is such that if there is no net loss of habitat, the project will not trigger an environmental assessment. There will be cases where a bridge can be compensated for elsewhere but might affect navigation. In that case, the environmental assessment will not be triggered. I cannot point to one specific example on a specific project. As a lawyer, I often work in theory rather than in practice. The reality is that it is possible that a federal trigger on the EA will not be available.
It is important to note that this debate on the Navigable Waters Protection Act is the opening salvo in a bigger, more fundamental discussion on the development of the Canadian environmental assessment regime. The NWPA is a portal into this discussion because it triggers environmental assessment. The federal government has made it clear that it wants to transform the regime and has issued two regulations that essentially gut the regime. I use those words advisedly. Ecojustice has launched a judicial review of those two regulations because we deem them ultra vires.
The Chair: Are you saying that you have taken a lawsuit to have the regulations declared ultra vires? They are in the document that we saw the other day as part of the first order that Minister Baird has made under the amended NWPA.
Mr. Amos: I am not sure if we are talking about the same regulations. I am speaking in particular to the adaptation regulations under the Environmental Assessment Act. It is not this act but it speaks to the same broader issue.
The Chair: We do not want the courts to usurp our function.
Mr. Amos: I am not so interested in discussing that balance between judicial and executive legislative powers, although Mr. Miller mentioned previously that there is a certain degree of desire on the part of industry to ensure that these discussions happen at a political level.
Our interest is in ensuring that an effective environmental assessment regime that allows the federal government to ensure that all of its responsibilities are overseen is established and maintained. Through the Navigable Waters Protection Act, we see one avenue only through which environmental assessment may occur less often. We are seeing the same thing through the two regulations that were passed one and a half months ago under the Canadian Environmental Assessment Act. These amendments fit into a broader scenario of environmental assessment re- examination. I hope to open the discussion a bit more broadly so that we understand that this legislation is about more than just navigation; it is obviously of grave concern.
I point out as well that the amended NWPA adopts a repair-after-the-harm-is-done, or an ex post facto approach to navigation protection. There are increased enforcement provisions and increased maximum fines. There are provisions for revoking or changing the terms and conditions of a permit, if it is in the public interest. Those measures are good, but they are indicative of a broader approach, which is to let the amendment go forward first and if there is a problem, fix it after. We do not think that is efficient from an environmental, social or economic perspective.
We appreciate that there is a five-year statutory review process, but we are not confident that it will be sufficient. We want this committee to write a strong report recommending that the government reconsider the amendments. The most significant amendments to the public right of navigation in decades was done through the budgetary process. We think this change was a sleight of hand and that it is corrosive to democracy.
Understanding that these amendments are law, I have these recommendations in respect of mitigating the existing deficiencies in transparency, accountability and effectiveness. First, there have to be objective criteria to determine what works interfere substantially with navigation. Currently, there are no objective criteria, a situation that leaves all sorts of fertile ground for abuse of discretion. Second, we need objective criteria to guide the creation of class exemptions, which obviously constitute a critical issue for us.
The Chair: I remind you that it is ten o'clock. You have been 17 minutes, which probably seems like two minutes to you, and you wanted to leave time for questions. It is up to you.
Mr. Amos: I will end this presentation as quickly as I can. Loquacious lawyers must be corrected. Thank you, chair.
We need to incorporate consideration of navigational and sustainable development principles in all approval and exemption decisions. That need should be a given. The NWPA amendments represent a partial abandonment of the government's role to protect the public right of navigation in favour of particular development interests.
I appreciate the opportunity to speak and the committee's willingness to take on this issue.
Senator Banks: I am not a lawyer and I am about to demonstrate that fact once again with respect to this act. Your point in your submission is that the minister now has the extraordinary power of being able to exempt broad classes of waterways. Please tell us, exempt from what? I seek to be corrected but it is my understanding that exemption means from the application process but not from conforming with the existing constraints against obstructing navigation under the law. Have I got that right?
Mr. Amos: The changes that have been brought about have made it such that what used to be an application process for distinct projects has been replaced by a pre-approved process. The minister may exempt certain classes of waterways and certain works, and they have started this process of exemption with the recent orders. They define certain types of waterways, specifically minor waterways. I can find them for you here, if you would like.
Senator Banks: Let me cut to the chase. If I build a dock or a weir on a minor waterway, I do not have to apply to make that change in advance, but I know what the act says I must do to conform. What I build can be torn down after the fact if I have not conformed with the requirements under the act. Do I have that right?
Mr. Amos: Yes, you do; if that dock or weir were included in a class exemption for certain types of works. A number of works will be identified and exempted through a ministerial order, for example.
Senator Banks: However, it says in section 5.1(2) that
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.
While I may be exempted from the approval process, I still must build that work in conformity with the provisions in the act that keep me from obstructing navigation. Do I have that right?
Yolande Saito, Research Assistant, University of Ottawa — Ecojustice Environmental Law Clinic: You are correct in the fact that there are a different set of exemptions. You are right; there is a class exemption. A minister comes out with the terms and conditions. If you meet those, you have met the requirements of the act.
We are saying that we have lost the public consultation. We have lost the environmental assessment. We have lost all these triggers and safeguards that were there prior, in the old act.
Mr. Miller said that we can depend on common sense. We are saying that we have seen a lack of trust. We do not know if that common sense is there. When those class exemptions have terms and conditions that are determined by a ministerial order or a cabinet order that has no objective criteria, that is unfettered, then we say we do not know whether those terms and conditions protect the right to navigation. While there is still something applying to these particular works, it might not be something that meets the purpose of the act; that is, consulting the public. All these things, while they meet the terms and conditions that the minister has put forward, are not really meeting.
Senator Banks: Have the prohibitions against my interfering with navigation in a minor stream been changed under the act? I am not referring to the approval process, but to the prohibitions. Can I now do something to impede navigation in what will now be called a minor waterway that I could not do two months ago?
Ms. Saito: I would say yes. In the previous act — this is what we are hearing — the test for navigability was to float a canoe. There are debates about whether that test is correct or not. With the order that came down last week, we are seeing a much broader exemption. From what was to float a canoe, which was effectively a four-inch depth, we are seeing it can be 30 centimetres deep.
Senator Banks: No, the amendment says that a minor waterway will be defined as one that is less than 30 centimetres deep. It does not say that I have to take any less care when I am impeding it.
Ms. Saito: The order gives out terms and conditions, and the terms and conditions for that waterway is that you can obstruct that waterway as long as you allow safe passage. You are allowed to build something on a waterway 30 centimetres deep without even notifying the minister; without notifying the public or doing anything.
Senator Banks: That is as long as it still allows for passage by a canoe.
Ms. Saito: It is safe passage during construction. You can obstruct that waterway now. Previously, you could not or you would need ministerial approval before you could.
The Chair: There is a difference of opinion there.
Mr. Amos: There is a point I can make quickly. If construction occurs on a minor waterway now, you have an approval before you can make the construction, but if the waterway is small enough, shallow enough or not sinuous enough, if it meets the criteria of a minor waterway, the project can go forward without the approval from the minister afterwards because it has been deemed already given. We can be certain, given the state of enforcement that exists already, that there will not be anyone checking up. This situation raises all sorts of issues of public safety but also navigational and environmental concerns. If no one is out there checking, if they do not need to ask for permission, the projects will go ahead.
Senator Banks: Will a canoeist not bump into it?
Mr. Amos: Yes; that is a concern.
Senator Banks: Will the canoeist not complain and will the minister not then say: You have obstructed that waterway; you cannot do that under this act? Will that not happen?
Mr. Amos: It is possible. The canoeist in question may be injured. There may not be a portage around the obstruction. The canoeist may be trespassing. There may be all sorts of unexpected outcomes that arise.
The Chair: The record will show that what Senator Banks was trying to get you to agree to is, with the exemption process in terms of doing the work, you do not have to go through all this application red tape, but you still must observe the law and you cannot do certain bad things. It will show on the transcript.
Senator Raine: I hear loud and clear that you are concerned that the recreational interests in terms of use of navigable waters are not being invited to the table. That is something I would like to see in our report because it is essential for the public's access to waterways for their recreational interests to be at the table during those discussions. Thank you for bringing that to our attention.
I like the way you talk about navigable waters being a portal to trigger protection under the Canadian environmental assessment review. This portal is the only one that the recreational interests have had to trigger environmental assessments. We need to somehow address that situation in our report. It is one thing for industries and municipalities to be at the table and to have access to triggering environmental reviews, but it is important that recreational use is considered. Am I on the mark with that comment?
Mr. Amos: Absolutely; consultation is a major issue for us. This process is a great process. It is an ex post facto process. When we saw there was to be a report and study, we thought that it was great, but the report and study do not change the law. We are conscious of that situation. We will not stop.
Senator Raine: You want to be there over the next five years so that, when there is a review, you are part of it?
Mr. Amos: We do not want to wait for five years. We want this provision changed in the next parliamentary session.
The Chair: That may be five years.
We hear you loud and clear. Your documentation is thoughtful and thorough. The points you have made will be taken into consideration in our report. It may well be that we will invite you back for your thoughtful input.
(The committee continued in camera.)