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Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue 7 - Evidence - May 26, 2009

OTTAWA, Tuesday, May 26, 2009

The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 5:08 p.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.


The Chair: Good evening, ladies and gentlemen, colleagues and those observing our proceedings on the CPAC television network and on the World Wide Web. This is a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. It is our seventh meeting of hearings on the Navigable Waters Protection Act amendments contained in the budget implementation bill, Bill C-10.

We are privileged to have with us tonight one of Canada's leading environmental and energy solicitors, Ron Kruhlak, a partner with Group McLellan Ross LLP in Edmonton.

Mr. Kruhlak, I believe that you know a number of us, but I would like to introduce my colleagues. My name is David Angus; I am from Montreal, Quebec and I chair the committee. Senator Grant Mitchell is from your province and is the deputy chair of the committee. Also present are Senator Richard Neufeld from British Columbia, Senator Tommy Banks from Alberta, Senator Lorna Milne from Ontario, Senator Panna Merchant from Saskatchewan and Senator Elaine McCoy from Alberta.

I understand that you will say a few words, and then we will have a question period.

Colleagues, after hearing this witness, we will hear from officials whom we have invited back to the committee, given that this is our last meeting on this matter. We will hear from Donald Roussel, Director General, Marine Safety at Transport Canada and Bob Gowe, Manager, Navigable Waters Protection, Transport Canada.

You will probably note the absence of the name David Osbaldeston. He was scheduled to attend this evening but he was called away on urgent family matters.

I want to remind you that a number of matters arose that made us feel it would be appropriate to have these officials back before we concluded our hearings. We asked the officials for a considerable amount of information. We have received a package from the division of Transport Canada that deals with the Navigable Waters Protection Act, and I am currently having that circulated to each of you.

You are aware, , that Part 7 of the Navigable Waters Protection Act is already law. As part of the political process that led to the passing of the budget, it was agreed that various Senate committees would study elements of Bill C-10 with a view to ensuring that they do what they purport to do.

We have had a rather interesting series of hearings on the vast subject matter of the Navigable Waters Protection Act, and we are committed to report back to the Senate not later than June 11.

Ron Kruhlak, Partner, Group McLellan Ross LLP: I want to thank you for providing me the opportunity to be here this afternoon and accommodating some scheduling issues I had in arranging this meeting.

By way of background, I appreciate the introduction. I am an environmental lawyer from Western Canada. I act in the areas of energy applications, mining and water projects.

I am also a member of some industry groups as well as a number of not-for-profit organizations, and in these types of applications have been involved with proponents, regulators and intervenors. I see by reviewing the transcripts that you have had a number of witnesses from Alberta. Although it may not seem as if Alberta is the centre of navigable waters, because of the very significant development that has taken place over the last decade, a large number of organizations and individuals have developed significant experience with respect to development applications, whether they be federal, provincial or municipal, and understand some of the challenges associated with them.

In preparing for this afternoon, I have had a number of discussions with my fellow colleagues in Western Canada practising law, and some consultants as well as some clients. In looking at the transcripts, it is evident to me that this committee has identified the key issues and has been dealing with them through the course of the hearings that have progressed to date.

With respect to a number of comments provided to you by previous witnesses, I would simply mention a particular witness that you have heard from, Ron Middleton, with respect to a role he has with Alberta Transportation. I would concur with many of his comments with respect to some of the issues so I will try not to repeat those, which I think he has well addressed in response to your questions.

The Chair: I am pleased that you raised the topice of Mr. Middleton because I was about to ask if you knew him. I assumed you did, given his important position with Alberta Transportation and his familiarity with these provisions of the federal law.

You say that you have read and agree with most of what he said, but is there anything substantial that you disagree with?

Mr. Kruhlak: I do not think there is anything in that category that I disagree with.

The Chair: Near the end of our discussions, we got off on a tangent from his main written submission, and we called that our much-ado-about-nothing time in which he took a larger look at the amendments and the law in question that really had us scratching our heads, thinking that he was telling us that you do not need this law at all. I wanted to make that point. If you and he are onside, we will hear more from you.

Mr. Kruhlak: I am not sure I would go so far as to say that we do not need some law, and certainly some revisions to this legislation. I would like to speak to that in the course of my brief presentation, which will follow a bit of the outline I have had circulated.

There is one starting point. I would like to share what I see when proponents are applying for new projects, certainly in the West, and I assume that goes for across Canada, and that is that, by and large, they want to know: ``Tell me what the rules are. Give me some idea as to what will happen, some certainty so that I can make the associated financial decisions and plan on the resources I will need to carry through this project.''

In many projects, you require a variety of approvals from the different levels of government in this country. I do have to say, though, as has been raised on numerous occasions, that there is frustration that these developers or proponents experience with respect to the time it takes to get a necessary approval under the Navigable Waters Protection Act and the certainty, or uncertainty, that they face as to whether they are actually dealing with navigable waters.

I spoke to a consultant recently who had finally received a licence for a bridge in northern Alberta. The approval was applied for and took well over a year to be obtained. It was not a significant river, as he described it, yet it included in this two-page approval simply seven conditions, all of which appeared to be relatively standard and not necessarily specific for that particular water crossing.

Again, the concern being expressed is that this takes a great deal of time. It is necessary if it is part of a larger project. This particular approval was to facilitate some oil and gas activity in the northern part of the province.

I would submit to the committee that certainly, because of these often-repeated concerns about timing, anything to assist in expediting a regulatory review would be supported. If that is the premise behind the ministerial order which was issued, exempting some projects and waters from the need for approvals would be welcome. I am not sure that it will expedite any infrastructure projects intended to stimulate the economy, but it may allow for redeployment of regulatory resources to review other and more significant projects on an expedited basis. That would be the hope that we would have more effective regulation of those particular projects that warrant review under the legislation.

I have a brief number of specific comments that I would like to share with you. First, in reviewing the transcripts, I notice that it has been raised by many others that, although I am not an expert in drafting and enacting legislation but, as an observer in reviewing new legislation from time to time, especially in the area of resource development in Canada, it is curious how these amendments could have ever been included in the budget implementation bill. I believe that the inclusion of amendments in this fashion probably led to the creation of more suspicions and concerns in the minds of many, even before they had a chance to study the amendments. We run into that on projects where there is concern with respect to disclosure and sharing information with the public. Any time any information is not shared first-hand, it tends to lead to problems and concerns over true intentions.

As a result of my earlier comments, I certainly support the removal of minor projects from the need for approvals and would support classification of projects that may also be exempt. In how the ministerial order was crafted, I assume the regulator here has ample experience over the last many years in trying to frame some of those particular descriptions for exemption purposes.

However, I would observe that it seems surprising to see this type of information in a ministerial order. More typically, in this type of legislation, this kind of substantive classification as to the applications of the act is typically found in regulations. That perhaps makes it easier to identify, although I see that the MO in this particular case is to be gazetted in the fashion described. I know that any time you leave many of these items to ministerial discretion, it goes again to creating greater uncertainty, potentially, in the minds of proponents and intervenors, and it also creates challenges for ministers in the future when faced with pressures as to how to potentially exercise that discretion.

I note there have been concerns expressed about the reduction, potentially, to environmental assessments that may occur as a result of removing the need for approvals under the act. It would be my observation that projects that are being removed would not give rise to any substantive type of environmental assessment, certainly those removed under the ministerial order. For more significant projects, there would likely be other triggers also required and more typically we would expect to see a Fisheries and Oceans approval for projects impacting the waterways. Those types of environmental assessments are probably more suited to dealing with the broader environmental issues than an assessment under the Navigable Waters Protection Act. I would expect that assessments under this legislation would be more technical and far more specific and restricted in any type of scope that would typically be undertaken.

I have a few brief comments with respect to the penalty provision. I do not think there is any dispute that the penalty should be reasonable, having regard to today's standards. However, we often see the availability of creative or alternative sentencing in other public welfare type statutes that is useful in sentencing in addition to monetary penalties. Where there is a violation under the act, an alternative available to the court can be to order education programs or perhaps to repair damaged waterways.

On the five-year review, in addition to what is required of the minister to conduct that review, it would be helpful if the review were to encompass some broader form of consultation. As well, we might want to see an assessment of regulatory performance over the next five years. Are we getting better approvals? Are the timelines improving with respect to application to approval issuance? Is there any other need for third party assistance in carrying out some of the responsibilities of the act?

Those are my brief comments, Mr. Chair.

The Chair: Thank you for the excellent lead-in to what will be an interesting discussion. I will take the liberty of starting the questioning. The process employed to approve these amendments might have created suspicions and concerns with people simply because they were included in a bill dealing with the budget and some other subjects that, on the surface at least, were not related to the budget. That is what you mean, I believe, when you refer to ``the process.''

Mr. Kruhlak: That is correct.

The Chair: Yet, these concerns were either real or imagined. Would you agree in terms of what the fears would be about?

Mr. Kruhlak: Certainly, people who follow this legislation closely would expect to see changes to the NWPA as a stand-alone bill. The way in which changes to the legislation came out would give rise immediately to concerns that there is an attempt to pass something surreptitiously.

The Chair: It seemed so on the face of it because of the process. However, in making that comment and in observing these concerns, have you considered the circumstances? I will put it another way: The facts are that there is a minority government in place during unusual and stressful economic times that call for urgent and unusual action. Have you considered that?

Mr. Kruhlak: No, but I recognize the pressures Parliament would be under to deal with the issues on a timely basis. I appreciate the fact that there have been attempts to amend the NWPA, perhaps, on earlier occasions. It is simply a side observation. I do believe the act needs amendment.

The Chair: That was my point. We have had evidence before the committee that it has been under study for about 15 years, that there were hearings in the other place, that all kinds of amendments were suggested, and that this was the way chosen in the circumstances that I outlined.

Given those circumstance, are you familiar with the expression ``politics is the art of the possible?''

Mr. Kruhlak: I have heard that on occasion.

The Chair: Does it sometimes make sense to you?

I will move to Senator Grant Mitchell, Deputy Chair of the Committee.

Senator Mitchell: Mr. Kruhlak, my questions to you deal with your experience with this kind of review process. You made the point in your example that a project was in review for one year under the Navigable Waters Protection Act.

First, can that happen in a fashion that is parallel to other environmental assessments or is some kind of staging required by definition?

Second, what causes the delay? Are there not enough people to do the review or are there unnecessary steps in the review process? It seems like a black hole. What can be happening for a full year?

Mr. Kruhlak: Perhaps department officials might better explain what transpires. There are concerns with respect to available resources. In response to the first part of your question, in some applications you can stage various activities and applications in tandem. Often in some cases, such as energy development, the application is for the broader authorizations required. After the initial application, more specific information becomes available, such as the characteristics of a needed crossing. Then, all the necessary information is ready to apply for the approval, even though the original application was made years earlier for other aspects with respect to the provincial energy legislation. That is one of the challenges. With respect to what occurs, one of the frustrations is that many applicants simply do not know. There is not a great deal of communication back to the applicant on how much time it will take and why. It might be just as you described — a bit of a black hole.

Senator Mitchell: From your reading of this bill, while certain projects will be exempted somehow based on the definition of the waterway as being less significant, are you aware that this will in any way waive the responsibilities of the people building that project? Even though it does not have to be reviewed, it is not weakening any kind of rule that they might have to adhere to in the construction of their project.

Mr. Kruhlak: That is my reading of it. They still have to meet the obligations of the NWPA, even if the project falls under one of the exemption categories because they might still create a navigation hazard or concern that they can be directed to deal with.

Senator Spivak: Mr. Kruhlak, I am a little surprised by two of your comments. First, you said that the process to amend the NWPA might have created suspicion, but we are dealing with the law. I am sure you have seen what the Aboriginal people who were here have said. They feel that the law has been breached in that they were not consulted.

Second, when the committee in the other place held hearings, they said that they were criticized because they did not have a range of consultants, in particular people who use the waterways for recreational purposes. They said that they would get back to that and invite more witnesses, but of course this bill was quickly introduced and that was it.

From the point of view of the law, I am not interested in what may not have created suspicions. That is not the issue here. The issue is your opinion on the consultation process, in particular as it relates to the Aboriginal witnesses we heard, and generally, although you say you are not really experienced in the creation of law, in terms of the instigation of legislation, what is your view more specifically on the process?

Mr. Kruhlak: I do not think I am fully qualified to give you an answer on the consultation requirements that should be met for enacting this kind of legislation. I am aware that the departments gave an indication of the extent of consultation, and First Nation groups have expressed concerns.

I can tell you with confidence that whenever we seek approvals or are carrying out applications, there are obligations, be they federal or provincial, to engage in consultation with affected First Nations. In that world, it is a given. I must be cautious about commenting on the requirements that have to be fulfilled in this case.

Senator Spivak: Thank you. I appreciate that.

On the issue of ministerial discretion, that discretion is not at all subject to parliamentary input. It does not comply with the Statutory Instruments Act or any such thing. I guess the government can introduce any legislation it wishes. What is your view about the omission of parliamentary oversight? The minister simply determines whether works are minor or major, and that is it.

What is your view of the legality of such parliamentary practice as opposed to regulations that must be promulgated in public with opportunity for comment and some parliamentary process?

Mr. Kruhlak: I understand that this is a balancing act to deal with a problem that is seen to have some urgency. I understand from the evidence given to you by department officials that to pass regulations to deal with that would take a lengthy period of time. That was part of the explanation for resorting to the use of the ministerial order to set those classifications.

I am trying, as well, to grapple with that balance. I very much want to see some clarification of that ministerial order. As a broader comment, we want to strive for certainty and predictability. I would feel more comfortable with that type of determination being made in regulations and subject to legislation, as you have indicated.

Senator Spivak: Right. We are getting into feelings, and I do not really want to talk about feelings.

In the practice of law, generally speaking, how important is the question of urgency versus the proper application of the law? Many times courts will not even talk about that. As a lawyer, what is your view on that? Politics and law are not exactly related in terms of what is justiciable in the courts.

Mr. Kruhlak: Substantive issues with which the legislation deals ought to be prescribed in regulations and subject to the scrutiny and process that one would expect.

Senator Spivak: Thank you. I have one last question. Are you a paddler, a kayaker or a canoer?

Mr. Kruhlak: Yes, but not accomplished in any category.

Senator Spivak: Thank you.

Senator Banks: Welcome, Mr. Kruhlak. It is nice to see another Edmontonian and Albertan here.

In your preamble, you used the phrase ``regulatory efficiency.'' To use cartoon versions, a robber baron's version of regulatory efficiency would be to approach the wicket, give the guy five bucks and get a permit. A tree hugger's view would be, ``I don't care if it takes five years; it will save the trees.''

Senator Spivak: No. That is an exaggeration of tree huggers.

Senator Banks: I exaggerated on both ends.

Senator Spivak: We are also interested in efficiency.

Senator Banks: I said I was exaggerating, and I exaggerate on both ends, senator.

Senator Spivak: Very well.

Senator Banks: I referred to the other guys as robber barons, and they are not. I am being very colloquial.

As between those two extremes, what do you understand to be meant by regulatory efficiency? Is it that it works or that it is fast?

Mr. Kruhlak: I would prefer that it works well. In working well, you are generating good and thoughtful approvals in a realistic time frame. Getting a poorly drafted approval usually leads to future problems. Trying to steer a project through potential challenges can also cause you to be susceptible to challenges if the process is not followed fairly. Timeliness is certainly a component of what I would define as efficiency.

Senator Banks: Undue delay places the patience of capital at risk, does it not?

Mr. Kruhlak: It does.

Senator Banks: An investor would wonder how long they are to be left waiting. Efficiency has to be on both sides, in other words. It has to work, but it has to work within a reasonable amount of time.

Mr. Kruhlak: It would be appropriate to have an understanding before making an application of the expected time frame. Being told that it might be one or two years is challenging.

Senator Banks: You said that the Navigable Waters Protection Act ought to be focusing on waters that are, in fact, navigable; that those waters that are not navigable should be exempted. We have several versions of what is meant by ``navigable waters.'' What do you mean by waters that are not navigable?

Mr. Kruhlak: It relates to how hard it is to move a canoe up or down them. That is one of the challenges in studying this legislation; there is not have a clear definition in it. The closest we have seen is the definition in the ministerial order.

Senator Banks: You talked about the penalty provisions and the idea of using creative sanctions. Bill C-16 is a bill that is before us. I know you have not yet read it as we just got it. It sets out minimum penalties for an array of environmental transgressions. Everyone here agrees that penalties need to be made greater, to the extent that penalties work as a deterrent. Does that operate in any way against your concept of using creative penalties?

Mr. Kruhlak: I would expect that the legislation would make that alternative type of penalty available to the courts. I am not sure that it can be ordered in the absence of an express provision.

Senator Banks: I do not know that, either.

Mr. Kruhlak: That is what I would expect to see, that alternative being recognized in the legislation. That is what we typically find in other pieces of legislation. Often, some of the provincial statutes refer to it as creative sentencing, or it may be referred to as alternate measures in some other pieces of legislation.

Senator Banks: Unlike what we are now studying, Bill C-16, it will come to this committee, will it not, Senator Neufeld? We will look at it before it is passed into law, so we may be able to take your recommendation into account.

Mr. Kruhlak: It works very well, especially if there are concerns about the adequacy of resources in a department, because some of these provisions may help to promote the activities the department is trying to advance, whether it is through public education or what have you, for instance.

Senator Banks: Thank you.

Senator Milne: Mr. Kruhlak, you said at the outset of your remarks that the people who are doing large projects just want a clear set of rules, and they are puzzled by what the rules are. All they want to know is what the rules are.

What do you think would be the reaction of people who theoretically have minor works over minor waters, how they would feel about rules that they have absolutely no knowledge of, or even where to find out if any rules may be in place? Is there somewhere they can go to find what rules may be in place?

Mr. Kruhlak: I think you are correct. We have run into problems with frustrated people, often in the agricultural industry. A farmer wanting to undertake some improvements on his land and makes a change with respect to wetlands or perhaps a waterway is often faced with significant challenges in meeting the requirements of a realm of legislation, whether it is navigable waters or fisheries. I do not think I have an easy answer for that. Those people typically have to find help probably in contacting departmental officials, if they are steered that way early enough.

Senator Milne: That is a big ``if'' if one is merely extending their dock out.

Mr. Kruhlak: That is right.

Senator Milne: I see this as a real problem. Then when I come to look at the interpretation of navigable waters, the order that the minister has published, if you look at the area where it talks about docks and boathouses, class established, they are established as a class of works for the purposes of subsection 5.1(1) of the act if — and one of the guidelines is that the works are at least 10 metres from any dock, boathouse or other structure that is fully or partially in, on or over the navigable waters.

Many of our early cottage lakes in Ontario have lots on them now that are narrower than, if your cottage is in the middle of your lot, 10 metres from each side of a 20-metre lot. Many of them are narrower than that. That means that every single one of those is in violation of this act and will have to be removed.

It goes on to say, in the next section, that the extremity of the works that is furthest from the land is at least 30 metres away from any navigable channel. When Quebec was settled, the rivers were the highways. Every single original lot in Quebec was subdivided between successive generations of children, and they run long narrow strips back from narrow rivers. It seems to me that almost every farm, every cottage and everything along a river in Quebec will be subject to this act. These rivers are not 60 metres wide. I see some real problems with ordinary Canadians trying to obey the law, but having absolutely no idea that this law actually applies to them.

Mr. Kruhlak: I would not think that what has been set out in the ministerial order will be the end of providing further clarification.

Senator Milne: I imagine maybe for five years it will be. It will never come before the Scrutiny of Regulations Committee because that ability has been taken away under this act. Parliamentarians will never look at it and realize how this legislation is affecting people in their own areas.

Mr. Kruhlak: I have no comments. Your observations appear to be sound, in that this will create problems still for other classes of projects that it does not address.

Senator Milne: I have no further questions.

Senator Neufeld: I come from Northern British Columbia. I can relate to some of the things you are talking about, such as building bridges or crossings across what some people consider to be navigable waters where it only runs part of the year, during runoff. When you responded about the definition of navigable water, it is still out there to try and figure out what it actually means. All the way from here to there, there are different definitions for navigable water.

I want to go back to a question asked by Senator Mitchell. I will use your example where it took a year to get a permit to cross a river or a stream, whatever it was. The question was: Do you think there are not enough bodies to actually process these applications? That was one thing that struck me when the ministry was here and talked about — I will use round numbers — 70 people who work there and about 40 inspectors. I believe it was somewhere in that neighbourhood; do not hold me to the exact number. That is who looked after all of the navigable waters and were responsible to apply this act across Canada, which I know is not possible. There must be something done to figure out how we can actually deal with these issues.

In British Columbia, sometimes when our processes were a little bit slow, we were hamstrung to be able to hire people because of budget constraints, that the industry — whether it was mining, oil and gas, electricity generation or anything like that — actually proposed to the government that they would pay much higher fees to have money stay with that department, whoever was dealing with it, so that they could actually hire the people — not for each project, but hire people to process applications and get them through a little bit quicker. That often seemed to me to be not a bad idea because, as Senator Banks said, the money or the investment can leave very quickly. I know with the type of investment such as in the oil and gas industry, it can go someplace else pretty quickly if you are not able to get the processes through.

Have you any thoughts about whether that would be something that should be pursued by government and looked at as a reasonable way of trying to deal with the issues that this act brings forward? I know we must have some regulation. I appreciate that, but there must be reasonable regulation. When you start talking about these things, it is motherhood and apple pie; the world goes away from some people when you talk about crossing a stream. It will never be the same, yet we still need to cross some of those streams in order to obtain those services. Is that something that you think could be done?

The other quick question I have is that one-size-fits-all has never worked for me. In fact, even in the province of British Columbia, one size does not fit all. When we look across Canada and try to find one description that fits all, it becomes impossible to deal with.

I have always been a proponent that maybe some of these things should be broken up and provinces should be responsible for some of these services. Perhaps international waterways or large rivers, something like that, should be under the Navigable Waters Protection Act, obviously, but there are a lot of matters that provinces could deal with, I think, much better in their own fashion and in their own areas.

I have often said — no offence to anyone from Ottawa — that I do not need anyone from Ottawa to come to British Columbia to talk about how we get across a small stream in Northern British Columbia so some small oil and gas company can get to work, but I would rather have a British Columbian, who lives in British Columbia, doing that.

I am interested in your thoughts. Coming from Alberta, we will be interested in hearing what your thoughts are.

Mr. Kruhlak: We have seen in Alberta attempts made for some joint federal-provincial harmonization. We have had, in the past, delegation under the Fisheries Act to provincial officials. That came to an end. I do not see an improvement in federal-provincial relations in being able to carry out some of those functions. I have not seen a greater attempt to make use of the resources in the province, so I do not know if that can be available.

The comments about limited resources and the staffing levels at the Department of Transport with respect to navigable waters is a concern that other regulators express. Certainly, Alberta has been inundated with developments. The Department of Environment there has faced similar challenges and has attempted to, as they describe it, regulate smarter, trying to find ways where they can improve, or they have reduced in some cases approvals to codes of practice where matters are more routine and the impacts are more readily discernible.

They have even gone so far, in reviewing environmental assessments in Alberta, that it is almost a cue process. If you were another one of those large oilsands developers wanting to get your application in and you were going to be tenth in the queue for the reviewers to go through your assessment, the department would offer you the ability to say, ``We will contract this out to private firms to do the initial critique, but you will need to pay the cost,'' which is often very significant.

In order to keep a timetable moving reasonably, a number of companies did proceed on that basis. Again, it was the regulator trying to find additional resources that they could not hire in other ways, so they secured it in this fashion to move some of these applications forward.

There are a variety of alternatives out there to try to meet the demand if the resources are not there for the regulator.

Senator McCoy: Welcome, Mr. Kruhlak. It is a pleasure to see you again. We have had many files and many interests together in the past.

To follow up on some of these questions, in terms of your experience dealing with the Navigable Waters Protection Program and approvals needed thereunder, one of the outcomes I hear you wish for is knowing how long it will take to get an approval.

One of my first questions is: In the new act, is there anything there that gives you that assurance?

Mr. Kruhlak: Not that I have seen, senator.

Senator McCoy: Another of your criteria for an effective regulatory process, it seems to me, was some degree of certainty which, certainly when I was practicing or administering regulatory law, was knowing what criteria were to be applied in coming to a decision for an approval.

Is there anything in the new act that gives you any indication of what criteria there will be applied by the Navigable Waters Protection Program in coming to a decision as to whether you will get approvals?

Mr. Kruhlak: I do not think the amendments go so far as to give you that predictability. Some of the consultants I have worked with have said: ``If you just told me that, for this type of crossing, these are the ingredients you would expect to see for an appropriate crossing, then we will design a project that meets those clearly from the start.'' Again, there may be some technical discussions that the department offers. With the actual applicants, the consultants who put that together, it tends to be more technical than legal, but I have not seen that type of clear guideline.

Senator McCoy: That testimony corroborates the testimony of one of those technical-type people, and that was Mr. Middleton from Alberta Transportation.

There is, on the other hand, a difference between the statute, or even regulations, and the way a statute is administered. I have run departments myself, as have others around this table, and I know that it is how you administer the program that counts almost as much as what the legislation says. There are some indications to me that you are not being given that kind of assistance.

We have all been given a copy of the Navigability Inspection Field Guide, which is a document, I believe, that the department uses to help its navigable waters protection officers. I will read you a statement from this document, which says:

It is National Policy not to reply on questions of navigability unless there is a written request and there is a work involved. Navigability enquiries do not trigger the NWPA, applications do. We are not obliged to respond to enquiries from legal firms with respect to property sale, severance and transfers that may be affected by the navigability of creeks and streams passing through property.

Does that reflect your experience?

Mr. Kruhlak: In the limited requests that have been sought about navigability, that has been the sort of indication we have received. On the one hand, I can see departmental officials are concerned about offering comments, either hypothetically or on a situation without examining it further, because of the difficulties they face in making a ruling, so that type of direction probably is not surprising.

Senator McCoy: No, and it is something you have experienced. The document goes on to talk about filling out the navigability report, and a portion of the navigability report is to determine if the waterway is navigable, in fact. It says:

The primary observation location will be at the site of the actual or proposed work . . . .

In some cases, due to the Officers local knowledge of the waterway in question, an actual site visit might not be required.

Now, I know you are with a prestigious firm, one of our leading firms in Alberta, and I am assuming that your clients have developments all over the province, so your experience would be throughout Alberta. I am also assuming that you are making your application to the local navigable waters protection office. You would be making your applications, I think, through Edmonton. Mind you, you may be so senior that you may not know that anymore.

Can you confirm that assumption?

Mr. Kruhlak: I think they are processed elsewhere, the actual approval, but I would have to see where we have sent the last ones.

Senator McCoy: It would be interesting, because I am looking at an organizational chart for Prairie and Northern region that was supplied to us by the department. In fact, for all that I can see, only two navigable waters protection officers are in Edmonton. Those are the only two I can see that are assigned to Alberta, and we will confirm this in a moment or two.

I am thinking that in almost no case does the officer have local knowledge of the waterway in question and, therefore, according to the field guide, must make an actual site visit in every case.

Mr. Kruhlak: It is my general understanding that site visits are conducted.

Senator McCoy: Are they conducted in every case?

Mr. Kruhlak: I am not aware of what would fall into the category of ``well known,'' unless it happens to be, perhaps, a river in the vicinity of the City of Edmonton.

Senator McCoy: That is what I was asking in terms of our experience, namely, whether the inferences that I am drawing from this material and what others have said are accurate.

Senator Merchant: I am looking at your presentation, and many good questions have been asked. You have given interesting answers, and I like it. I am looking at your observation for the five year review and, of course, we would all support a review and amendments after the initial review, if they were required.

Then I look at your sentence: ``Hopefully, the minister will engage a process to address any concerns expressed at this time about consultation.'' What are you hoping for when you say that? If you were setting up a process or advising the minister to set one up, exactly what kind of a process would it be? How long would it take? If they start a process today, how would it work? It is reassuring to think that it will be reviewed and amendments may be made, but what kind of process do you hope for?

Mr. Kruhlak: There is a huge variety of degrees one can undertake in consultation. I am aware of the witnesses in panels who complained or raised concerns about the adequacy of the consultation.

It is twofold. First, the concerns about consultation at this time with respect to the passage of the amendments might be better addressed when the review is conducted, but I would expect to see some time, perhaps a year, prior to the five-year time frame. Typically, we see questionnaires or information sent out to interested parties to let them know that this review is taking place, to seek responses and have information gathered and produced in a report. That report can then be available to those who are concerned about either the performance of the act to date, post amendments, or some concerns that were not addressed in the amendments. It would be an active information-seeking engagement-type process of consultation.

Senator Merchant: Was that expressing, then, your feeling that maybe this time around, this process did not take place ahead of being in these regulations? The notion that you are hoping would mean that you feel not enough consultation was done then. Is that your feeling?

Mr. Kruhlak: I cannot comment. I am not aware, firsthand, of the efforts made to consult. I know there was some indication from, I believe, department officials that there was consultation, yet there were other witnesses who raised concerns about the adequacy. I have not got the information to assess whether there were flaws.

Clearly, to have good laws and have them followed, people need to have information about them, and if there are substantial concerns expressed about consultation, I would see the five-year review as a place to try to address those.

The Chair: In the number three bullet of your written presentation, you talked about the broad discretion granted to the minister, and that concerned all senators on this committee during the hearings. Yet you have stated that the recent ministerial order issued pursuant to this section appears sound and reasonable. That is your feeling. In other words, this would have been the first big general order issued under this new power, and you feel that it does not violate any basic principles.

Mr. Kruhlak: No, it is twofold. The substance in the ministerial order seems to be welcome, at least in trying to give us some areas of clarity where perhaps approvals are not necessary. However, with respect to the format of using ministerial orders, my preference would be to see that in a regulation. However, to address some of the concerns with respect to the mechanics and operations of the act, that is where I say that the ministerial order appears sound.

The Chair: I would like to thank you very much, sir, for coming down.

We now have a new panel before us, and we will continue our hearing and deliberations respecting the Navigable Waters Protection Act. I do not think you gentlemen need any further explanation of what we are up to. In fact, Mr. Roussel, not only were you involved in the briefings of some members of the committee before the hearings but you also have been here on at least two days, I believe, or more.

Mr. Roussel and your colleague, Mr. Gowe, welcome to you both. You are both with Transport Canada, and you are both involved with the navigable waters project.

Bob Gowe, Manager, Navigable Waters Protection, Transport Canada: It is the Navigable Waters Protection Program.

The Chair: I am assuming that you follow our proceedings closely, have reviewed the transcripts and noted that from time to time we have said that perhaps we had better call the officials back to put some dots on the i's and cross the t's, and make sure that we understand what we are hearing and doing.

Thank you very much for that. You will be our last two witnesses, and it is our intention to prepare our report and to comply with the deadline that has been given to us by the Senate, as a body, to file our report no later than June 11.

We want to be sure we have it right. We have a number of colleagues who have questions. Gentlemen, would you like to make a statement based on what you have heard so far, anticipating, no doubt, some of our concerns, which is fair ball? We welcome that.

Donald Roussel, Director General, Marine Safety, Transport Canada: We have no specific comments, but we have supplied you with some material. We have followed the transcript and we are here to give clarification to the senators if it is required from a program perspective, and to the actual act and now the order that has been published since we began this review.

The Chair: Mr. Gowe would be of like mind? We have not heard from you up till now.

Mr. Gowe: I am pinch-hitting for Mr. Osbaldeston tonight. I have been involved in the project from the beginning so am probably the next best person to speak to some of the technical nuances of the information, but I have no opening remarks.

The Chair: Both of you would be happy if we proceeded directly to questions? That is fine. Senator Banks, I thought of you possibly as the first questioner because you were drilling down a couple of times on a particular point that you felt you would like to ask again of these gentlemen.

Senator Banks: Thank you. I would like to ask that question. In fact, there are two questions that I would like to ask. Ministerial orders are referred to a number of times in the act. One assumes that there are times when ministerial orders can stand by themselves, but there are other times when they appear to be taking the form of regulations. My second question is: Do you think that they will some day become regulations?

However, my first question is that ministerial orders of this kind, which sort of substitute for regulations, I think it is fair to say, would be statutory instruments and, therefore, susceptible to scrutiny by the Standing Joint Committee on Scrutiny of Regulations if this act did not say that, for the purposes of the act, they are not statutory instruments. I have been racking my brain to think of another reason, other than the one that immediately comes to mind, that the act would go to the trouble of saying ``These ducks are not ducks for the purpose of this act,'' other than to avoid parliamentary scrutiny. That is the only reason I can think of to have those words contained as many times as they are in this act. Can you think of another reason?

Mr. Gowe: That was largely a drafting item, and if you do not mind I would like to consult with Ms. Brigit Proulx, who is the legal counsel, to get some clarification on that point before I respond.

Senator Banks: I would be grateful for that because I have great reservations about it if that is, in fact, the reason. If there is another reason, I would like to know it.

The Chair: I am comfortable, as the chair, to invite Ms. Proulx to the table and have you introduce her.

Mr. Roussel: The order that has been published — and I answered that in front of this committee — should form the basis of future regulations, and we have no doubt about that. If they are not well drafted or they need to be adjusted, that should be part of the process in the future. We are on new ground on numerous elements.

We are flexible from the perspective of how we will use the orders, not in the sense of evading scrutiny but in the sense of getting them out there and getting the discussions going. It is entirely new. This act never had any regulatory- making power, so the orders now there can be used by the industry, and if they are inappropriate we can adjust them, and, of course, there are regulatory-making powers. This is the better route. We all agree with that.

Senator Banks: Mr. Roussel did say that in his previous appearance here, and I have no doubt that the good intentions, sooner or later in one way or another, under some provision or other, will have them become regulations. In the meantime, however, they are not regulations. They are ministerial orders that have been declared not to be statutory instruments, so my question remains: that language which says this statutory instrument is not a statutory instrument exists in the act, and I am assuming it was put there for a reason. The only reason I can think of is to avoid parliamentary scrutiny. Is there another reason?

Mr. Roussel: We have the lawyer to talk about that.

Brigit Proulx, Legal Counsel, Marine Safety, Transport Canada: I am sorry, would you repeat the question?

The Chair: First, we heard that this witness's name is Brigit Proulx.

Ms. Proulx: Yes.

The Chair: Would you give us your occupation at the department?

Ms. Proulx: I am a legal counsel in Maritime law at the Department of Justice, and my clients are Marine Safety, Transport Canada.

Senator Banks: Several times in this act, that is to say the amendments to the Navigable Waters Protection Act that were contained within Bill C-10, the words occur in relation to ministerial orders issued under the act that, for the purposes of the act and the act of regulatory instruments, these ministerial orders are not statutory instruments. In other words, the ministerial orders substitute, if I can use that word, in these cases for regulations. They have the same effect as regulations, and we heard from Mr. Roussel that they will probably become regulations. However, in the meantime, they are ministerial orders which, absent the language that is contained in the act, would, as a matter of course, be statutory instruments; but the act says in several places that, for the purposes of scrutiny, these ministerial orders are not statutory instruments.

I am looking for reasons for the inclusion in the act of that language. The only one I can think of is so that ministerial orders will escape parliamentary scrutiny. I am hopeful that there is another reason.

Ms. Proulx: We have experts in the Department of Justice working in the regulations unit at Transport Canada, and we discussed that point with them, since they are the subject matter experts. I will give you, to the best of my knowledge, an explanation.

For section 13 — and the ministerial order is in section 13 — it was a policy decision. Maybe the officials here can discuss more on the point that they were not to be statutory instruments in order to expedite the process of having orders in place. As we know, regulatory processes are lengthy, and that was already discussed.

In order to streamline and expedite infrastructure, a policy decision was taken that for section 13, for the ministerial order, it would be done through the orders.

For the other types of orders, I assume you are referring to section 6?

Senator Banks: I am referring mainly to section 13.

Ms. Proulx: I can give you more detail because I know this point has been of interest. Many of you have asked these questions. I will look at my notes to ensure that I am reflecting the position of the Department of Justice.

Basically, the fact that they are not statutory instruments means that they are not subject to the usual regulatory process. The usual regulatory process is governed by the Statutory Instruments Act. We have to understand that the Statutory Instruments Act is a procedural statute. Mainly, the regulatory process includes the development of regulatory proposals by a responsible department. They include registration, publication and, of course, parliamentary scrutiny. We know that.

To develop these facets, there are three main process requirements under the SIA. The first main requirement is examination. Examination is really that the orders or the regulations that are developed are made under the enabling authority. They are authorized by the act to be made.

The second main requirement under the SIA is that you have registration. Registration is mainly a tracking method. It does not add much. The publication we already have, because it is mentioned here. The act must be published in the Canada Gazette, and it was. What is left is parliamentary scrutiny. You are right: for that purpose, that is the main difference.

For parliamentary scrutiny, we need to understand that that is also an examination after the fact. It is after the order or the regulation is made. It is really rare that the examination happens before. Sometimes when it happens before, it would be something specific, like a tabling requirement and, yes, it is done but it is really rare and it has to be in the specific statute.

I would also like to talk about the fact that the main difference for stakeholders between orders and the making of regulations is really also prepublication and the ability to comment before regulations are made. Sometimes people confuse that because the prepublication is a policy requirement under Treasury Board policy. It is not a legal requirement under the Statutory Instruments Act. The ability to comment before regulation, that goes with the prepublication of an order or a regulation.

I do not know if that helps in understanding the differences between regulation and orders.

Senator Banks: It does. You have made my point. We did not expect that the ministerial orders would be examined before they were issued by the minister. We did not expect that there would be pre-examination of the ministerial orders in the sense of regulations because that is very rarely done, if ever, by the Standing Joint Committee for the Scrutiny of Regulations. However, the effect of this act is, as you have pointed out, that statutory instruments are ordinarily examined after the fact by the Standing Joint Committee for the Scrutiny of Regulations to ensure that the regulations published in the Canada Gazette are consistent with the act, enabled by the act, brought about by the act and do not contravene the act. Is that correct?

Ms. Proulx: Are you talking about the examination by the Department of Justice?

Senator Banks: I am not talking about that. I am talking about the Standing Joint Committee for the Scrutiny of Regulations. They always examine regulations after the fact.

This act precludes their doing so. You have, I think, confirmed that the reason for that language in the act is to avoid scrutiny of regulations.

Ms. Proulx: I do not think it is to avoid Parliament's scrutiny. It was to take away or to dispense from the regulatory process, which can be quite lengthy.

Senator Banks: I am sorry to interrupt. Here is my point: Ordinarily, regulations, or, in this case, ministerial orders, after they have been published in the Canada Gazette, are susceptible to scrutiny by the Joint Committee for the Scrutiny of Regulations, always, except that in this act they are not. I agree; it is all after the fact. We are not talking about examination or any advance notice of anything. We are talking about scrutiny after the fact. The words in this act say that the Joint Committee for the Scrutiny of Regulations, if I understand the words correctly, may not give scrutiny to these ministerial orders because they are declared not to be statutory instruments. The reason that I take from that is to avoid parliamentary scrutiny. Have I got that right?

Mr. Gowe: I would like to take a stab at answering your question.

It was not to avoid the scrutiny necessarily, or per se. It was really to ensure that the orders came into effect as soon as possible. When we decided to put that clause in there, it was not to circumvent the oversight, per se. We were not afraid of what was in there. We were trying to meet the goal of expediting infrastructure and we felt that that clause would help us with that.

Senator Banks: Would you be okay with it, then, if, at this point, now that the bill is law, this instrument, this ministerial order, were to be examined by the Joint Committee for the Scrutiny of Regulations?

The Chair: They have said that now that they have the order there, everything in the future will be done by regulation, pursuant to that order. That is an enabling provision for enacting regulations in the future. Am I not correct on that? In other words, any other thing done under that order will be by regulation and therefore subject to the normal process. That is how I understood the evidence before.

Senator Banks: Is that right?

Mr. Gowe: We may add to the orders document if we find other classes of works or waters that we feel appropriate to add to that.

Certainly, our intent is not to continue using orders. They were an interim measure to meet the government's goal of accelerating infrastructure. In fact, I think we are on the record as saying that our intention is to have regulations in place in the next three or four year — by 2012, we have said. We have commenced with that project already. Certainly, our intent is to use the orders as an interim measure only.

Senator Banks: I do not think they have quite agreed with what you have said, chair, because I think there will be further ministerial orders, additions to this ministerial order given before there are any regulations, and that those will, like this, escape the scrutiny of Parliament.

Mr. Gowe: We do not have any on the books at this point. We may.

Senator Banks: You are saying that there might be some more?

Mr. Gowe: Yes, we may.

Mr. Roussel: If I may, we have a program to run. We have work under way. The program people — and you have here a lot of witnesses talking about the program people — need to have the proper tools to do their work. With the Royal Assent of Bill C-10 in March, the orders are out there. Our folks are using this material now. We know it is far from perfect, but there is a need for it and they are using it in their day-to-day activities at answering clients who are looking for what I am doing with this famous work, and applications.

Mr. Gowe is the manager in B.C. and he is already using, now, today, those orders, sending those requests that fit within the orders back to the proponent and saying ``You go ahead with that.''

Regulation was the main goal, when we looked at the drafting, and Ms. Proulx mentioned that it was a policy decision. It is a policy decision not to escape scrutiny from the joint committee. We are far from that. We are doing a good dozen regulations every year, and we are taking Standing Joint Committee recommendations. I think we did 36 last year, just in marine safety. We do the work that parliamentarians request us to do. We have a lot of experience in developing regulations, and we know that when developing regulations Canadians will not have in their hands, as we speak, the standard that is being developed in the form of orders. This is clear.

We are currently working to develop such regulations. We are committed to developing the regulatory regime, but it will take a minimum of a year or two. We cannot tie our hands by saying that we will no longer use the order mechanism. We do not know what the specific needs are overall, and we may need to publish additional ones. However, this is not our goal for tomorrow. The goal for tomorrow is to deal with the backlog, to move forward with the new requests and to accelerate permit authorizations within a knowledgeable framework.

The Chair: Senator Banks, I think you have the answer.

Senator Banks: I do.

The Chair: It has been quite clear all along that this was to avoid, in the first instance, parliamentary scrutiny and review in order to enable them to move forward. They are saying that it is their intention that this be a one-off, and that they will not do it in the future. You are saying that it is in the law and it might happen again. They are saying that it might happen, but they do not intend that it will.

Do you have a supplementary question, Senator Spivak?

Senator Spivak: Yes, I want to clarify something following up on Senator Banks' questioning.

Unusual procedures were followed with this legislation. First, it was put into the budget. Second, there was no ability for the Senate to review the legislation. Third, these are ministerial orders that now have the force of law. You are saying that all of this was done — and I want to be very clear — in order that things should go quickly. Here is my problem with that: As Senator Mitchell has been asking, how many projects in the stimulus program require this unusual expediency that does not follow usual parliamentary procedure?

Mr. Gowe: I do not have the exact numbers, but there would be some works.

Mr. Roussel: No, we have numbers, and they have numbers in the answers provided.

Senator Spivak: I looked at that, but I am sorry; I am just not. . .

Mr. Roussel: In the Building Canada Fund project —

Senator Spivak: Yes, I looked at that.

Senator Milne: That is an old program. That is not the same.

The Chair: Excuse me. We can only have one person talking at a time.

Mr. Roussel, you are responding to Senator Spivak's intervention?

Mr. Roussel: Yes. We sent you this document.

The Chair: For the record, this week the committee received, in response to our various requests for supplementary materials, a letter with a number of documents attached. The letter is addressed to me, as chair of the committee. It is from Mr. Donald Roussel, the witness currently before us.

This letter is dated May 26 and is addressed to me. It is from Mr. Roussel and says:

Further to the meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources on April 23, 2009, I am pleased to provide the enclosed documents in response to questions raised by various members of the Committee.

That is what he is referring to, and that is what you have in your hand, Senator Spivak.

Senator Spivak: Yes. Could I pursue this a little bit?

The Chair: A little.

Senator Spivak: You are saying that of 431 projects, 163 required this unusual, fast track parliamentary process, and you are saying that this was a policy decision?

Mr. Roussel: No, we are not saying that. We are saying that the amendment that has been made to the act benefits those projects. That act will benefit those projects.

Did we have specific projects with specific portions of the act? Yes, we have a list of projects that receive specific benefits from the act.

Senator Spivak: But this is not the list?

Mr. Roussel: These are the numbers.

Senator Spivak: The numbers?

Mr. Roussel: We do not have Project A, B, C and D.

Senator Spivak: Again —

Mr. Roussel: Let me finish. Those are now coming daily by the dozens to the department. Tomorrow we can produce another list, and another each week thereafter, because municipalities and provinces are tabling their projects. We see the benefit immediately.

Senator Spivak: These are major projects which now are not subject —

Mr. Roussel: They are not necessarily major projects.

Senator Spivak: They are minor projects?

Mr. Roussel: They are projects as a whole.

Senator Spivak: Mr. Chair, this is a key question: that is, was expediency and urgency necessary in order to avoid the regular parliamentary processes?

I would like more information on this. You do not need to give me all the information. Give us some examples of what you are talking about.

Mr. Roussel: I can.

Senator Spivak: Wait a minute. I am not through, because the chair is going to cut me off at any minute.

You say that these ministerial orders are not meant to operate forever and that there will be regulations, but that is not a legal requirement under the act, is it?

Mr. Gowe: To change them into orders, do you mean?

Senator Spivak: To change them into regulations. If it is not, could we have a letter from the minister or the deputy minister to the committee saying that this has been done often before, specifying the time period and the intention to change these orders into regulations, which can then go back to the parliamentary process?

Mr. Roussel: These are specific questions that I cannot answer, that need to go to the minister regarding how we will use the orders.

The Chair: Senator Spivak asked whether you might be able to furnish a letter of intent.

Mr. Roussel: We will leave it to the appropriate authorities within the department to answer that.

The Chair: You will check, in other words?

Mr. Roussel: Yes.

The Chair: Thank you.

Mr. Roussel: I need to answer Senator Spivak's questions regarding specific projects.

In the document we produced to you today, in question 4 there is attachment B. Inside attachment B are those famous specific projects within specific sections of the act that benefit the projects. They are listed per region.

Senator Spivak: I am sorry. Since we just received this, no one has had a chance to look at it.

Mr. Roussel: That is fine. The answer to your question is in the package.

Senator Spivak: Thank you.

Senator Banks: In his appearance previously, Mr. Osbaldeston undertook to provide examples that would help us understand what I am about to ask.

This act says that the minister may incorporate, by reference, any material from any source. It is an ambulatory importation of materials that could come from any source, meaning that if that source changes those specifications, whatever they are, those changes, which might be made in Lithuania — I am being absurd — become part of the regulations and part of the act.

It is my view that that is too broad; that saying to incorporate any material from any source, whatever, is too broad. I asked Mr. Osbaldeston to give us some examples of the kind of thing that he meant, and he began to do that and then said, ``I will send you some examples.'' Maybe I misunderstood him, but I would like us to have some examples so that we can undertake to suggest, if the committee decides to do so, ways in which that might somehow be circumscribed so that it is not quite such a completely open-ended capacity being granted to the minister.

Mr. Gowe: I would only add that I think the one example he did provide was the Canadian Standards Association for overhead power line clearances. That is certainly one standard that we often use. It gets amended from time to time, and so to then have to reproduce the regulation or order, the problem is that people tend to hang on to documents in a drawer or file. If they do not get a new document, then they are using old information. That is why we wanted it to be incorporated by reference. There are other standards that exist as well, such as engineering standards, et cetera.

Senator Banks: I understand why it must be subject to those changes. I understand that.

What I would like to have, and what I asked Mr. Osbaldeston to give us by way of example, if he could — and maybe I misunderstood his undertaking to do so, and if I did, I would appreciate it if you would — a list of things, for example, here are the things we would like to incorporate, and then find some language to expand that in some way but to draw a circle around it so that we will not know that you will import by reference the environmental laws of Northern Slobovia.

The Chair: Are you expecting an answer to that, Senator Banks? You just made a statement.

Senator Banks: That was a statement. I am asking whether such a thing could be obtained as a means for us to look into during the making of our recommendations, if the committee were to decide to do so, and to recommend that that capacity to import be somehow described and circumscribed so that it is not so open-ended. If you can help us with that, it would be better for you to suggest how that might be done than for us to try to make it up.

The Chair: In that regard, if it is possible under your authority, Mr. Roussel, I will invite the clerk and/or our researcher from the Library of Parliament, Mr. Marc Leblanc, who is working on our report, to call you. We are working under a tight deadline now.

Mr. Roussel: Very well.

The Chair: It either exists or it does not. If it can be made available, we would like to have that information. If it cannot be, that is fine as well.

Mr. Roussel: I think we named a few, and we usually use the CSA or other internationally known standards.

I have explained to this committee, if I recall, that we cannot refer to standards in which we do not participate, in general, in the development thereof. That is based on the rules when we create regulations. We need to be part, for example, of ISO; we need to be part of CSA; and we need to have people developing those standards. We must have a say in it.

Senator Banks: That description would be perfect.

Mr. Roussel: I think it is in the regulatory rule-making where we get into how we refer them. I am not a lawyer, so I will be careful.

Senator Milne: Mr. Roussel, you have talked about this list, and I thank you for producing it for us, these Building Canada Funded Projects and the community components thereof. One hundred and sixty-three of them are within 30 metres of the water. This is obviously cleaning up your backlog, really, because the Building Canada community projects were in an earlier budget and was an earlier program. How many of those are actually under way now?

Mr. Roussel: I cannot answer that.

Senator Milne: Why?

Mr. Roussel: Because I am not in the program division of the people who fund the money. We are the regulatory end of Transport Canada. We do not fund the money. The program is responsible for that, not Transport Canada.

Senator Milne: Then you will be unable to answer my next question, as well, because in this budget it was the stimulus package, which was the whole idea of this ministerial order to get things going quite quickly. You will have absolutely no idea of how many of those projects are under way or how many of them have actually been approved?

Mr. Roussel: No, I do not have that information, but it is available from the department.

Senator Milne: Is there any way that we can get that information, Mr. Roussel?

Mr. Roussel: We can check with the department.

Senator Milne: I thank you for that at least, I suppose.

The Crown has a duty under section 35 of the Constitution Act, 1982 to consult Aboriginal groups in situations where there is possibly an infringement of their treaty rights, and their treaty rights include the right of navigation. Why did the department not consult with Aboriginal Canadians? We heard from them one evening and we heard very compelling evidence.

Mr. Roussel: I think Mr. Gene appeared before this committee. He pointed out the list of people who were called to come before the committee, and those people did not show up.

Senator Milne: They may not have shown up, Mr. Roussel, but the Crown has a duty to consult them.

Mr. Roussel: I do not deny that.

Senator Milne: They were not consulted.

Mr. Roussel: I cannot —

Ms. Proulx: I think Mr. Gene already spoke to that in the sense that the Budget Implementation Act did not allow for consultation. It was a government decision. Again, I am not the subject-matter expert in Aboriginal law, but I can provide you with a bit of information.

With respect to the amendment to the NWPA, it is not expected to infringe on Aboriginal rights. The consultation is not addressed in the legislation, and I am informed that it is usually not incorporated into legislation. To the best of my knowledge, there is no federal statute that refers to Aboriginal consultation. The department has processes in place to determine when Crown conduct may give rise to the legal duty to consult with Aboriginal groups.

Senator Milne: Are you actually telling me, then, that their only recourse is to take the government to court?

Ms. Proulx: No, I am not telling you that. I wanted to add that the intention is to develop regulations that will entail consultation with Aboriginal groups as well.

Senator Milne: However, we do not have regulations; we have a ministerial order.

Ms. Proulx: Yes, but the intention of Transport Canada is to —

Senator Milne: Eventually, some time in the future?

Ms. Proulx: I cannot speak to when regulations will be made, but it is the intention, as we have said previously, from a policy perspective that — I think maybe Mr. Roussel can add to that.

Mr. Roussel: Yes. We will consult, as we are doing, with the Aboriginal groups. We consult with Aboriginal groups on every single project that is presented to us when it is required, and there is a full series of staff who do just that.

Mr. Gowe may talk about the different numbers of projects that he has in the province of British Columbia that require consultations with Aboriginal groups. The act is one thing and the regulations are another, but for each and every single specific project that is presented, you can be reassured that they are consulted.

Senator Milne: Well, that is good to hear, and I am sure they will be glad to hear that as well. Why did you not say that in the beginning, Mr. Roussel?

The Chair: In fairness, if I may, Senator Milne is very smart. Many of us have been talking at cross purposes. Before you said otherwise just now, like Senator Milne I thought you were not going to consult these people as required by the law. In the fullness of your evidence, you are saying that in each and every case where it is legally required, proper consultation is taking place. Is that your evidence?

Mr. Roussel: Mr. Chair, if I may, we were talking about the legislation and the regulations. Now, we are down to each individual project that is presented, and the process is thorough.

Senator McCoy: On a clarification of that, you say ``that is presented,'' but you have eliminated the necessity of the presentation of a whole class of works. Those projects that are exempt under the NWPA would not be presented. Is that correct?

Mr. Roussel: Yes. They will not be presented but they are built in correspondence with the standards. I do not think it removes the obligations of the individuals to ensure that they do not infringe on First Nations rights.

Senator McCoy: It is the Crown that has the fiduciary duties, not individuals. I do not wish to pursue the issue further. I am trying to point out that one should not be too relieved at this time.

Senator Adams: I have a supplementary to Senator Milne's question. I am sorry to come in late. We have three recognized Aboriginal groups: First Nation, Metis and Inuit. Which group are you talking about? Is it all three? Are you talking about the AFN and the Inuit? We settled our land claim that includes harvesting rights for Nunavut. Are you saying that we will no longer have those rights to hunting? Right now, our hunting is not restricted by season. You are allowed to catch three fish a day but I live up in Nunavut, and I have no limit.

They say that Aboriginal people have no right to say anything and that they will be charged. Is that right?

Ms. Proulx: No, we were not saying that.

Senator Adams: What about section 35 of the Constitution, 1982?

Mr. Roussel: Senator Adams, the bill passed on March 12, 2009. We are not dealing with hunting and fishing. We are dealing with the construction of projects. We were on the subject of Aboriginal consultations. The three groups that you mentioned are subject to consultations. We will consult with them where there is a project that affects them. That is the only thing we can say.

Senator Adams: I am sorry. I was late and I heard Senator Milne only when she said that those people had no rights to consultation after the bill has been passed. That is how it sounded.

With the settling of our land claims agreement, we have our rights. It was signed by the government. Now, they have a new bill that says there will be charges for everyone that goes through the river.

The Chair: We invited and heard from representatives of the Assembly of First Nations at another meeting. We were doing a follow-up only tonight. With all due respect, we have only four minutes. You know I will give you as much time as you need but we need to stay on point. I am insisting on that.

Senator Merchant: Mr. Roussel, I refer to your letter to the Chair of the Committee. I note a question at page three:

Question 3 — Provide stats re: complaints, what is the ratio of approvals initiated due to complaints vs. inspection.

You said that unfortunately the information is not available. Why is that?

Mr. Roussel: We do not have it.

Senator Merchant: You do not keep those kinds of statistics?

Mr. Roussel: No.

Senator Merchant: When you carry out the five-year review, what exactly will you be reviewing? Will you not be dealing with the complaints that you have received? You will not have any statistics to look at.

Mr. Gowe: Perhaps I could answer that question. Currently, the way in which complaints are logged in each region is slightly different because our database allowed for too much individual discretion. We are finishing the final month of a new database that will allow us to collect this kind of information much more effectively. It is a huge undertaking to go through and look at each entry manually in the database to determine whether it was logged as a complaint or as something else.

The intent of ``unfortunately this information is not available,'' was to say that it is not available in a readily recallable format for us at this time. Certainly, we will be improving our data collection and our ability to generate reports on different kinds of statistics in the coming year or two.

Senator Merchant: Your review will not be complaint-driven when you are reviewing. You do not say how you will set up this review and what you will use as your basis for arriving at your conclusion.

Mr. Gowe: We do receive complaints. Every region receives various complaints, whether related to works, or obstructions to navigation, or that they do not like the colour of their neighbour's house. All kinds of complaints come into the department. We sort through them to determine which complaints fall within our mandate and we take corrective action where appropriate.

The problem is that we are not very good at logging those in a way that we can enter an inquiry into our database and retrieve them with absolute confidence. We have recognized that deficiency and have worked to improve it. The information is not available today.

Senator Merchant: Good, thank you.

Senator Milne: I have a short supplementary that is more a comment than a question. From now on, anything to do with minor works or minor waters will be complaint-driven. I sincerely hope that from now on you will log these and keep track of them because it will be even more important in the future.

Mr. Gowe: Yes.

Senator Banks: You may want to respond to this in writing to the clerk instead of now, because we are running out of time.

Ministerial orders establish classes of minor works and major works. In the ministerial order that we have, the criteria for minor works are set out clearly and are detailed. There are standards for how the various defined works must be built. However, with respect to how works on minor navigable waters must comply with the act, it is silent. How will someone know whether they are in compliance with the act when they are building such works on minor navigable waterways? Are there guidelines? Will there be a ministerial order that sets that out? Is it defined elsewhere? I do not know if you can answer that now or if you want to answer it in writing later to the clerk. Your choice, chair.

Mr. Gowe: I was just about to point out that the exclusion is of the waterway itself, so where we have excluded certain works on navigable waters and certain minor waters, we have not contemplated what works would take place on those minor waters that have been excluded. There was no intention to limit what activities took place on those excluded waters.

Senator Banks: Maybe I do not understand the answer properly. If I were to build a work on a minor waterway now, how would I know that I was complying with the act?

Mr. Gowe: If the water that you are contemplating the work on met the criteria, then there is no need to apply for the work.

Senator Banks: I know that.

The Chair: He is wondering how he will know that he is complying. We had this discussion. There must be a place where he can look. Or, as someone else said, perhaps a farmer who does not have access to all the law books and documents, how does he know that he is in sync with these criteria?

Mr. Gowe: Even with the minor works?

Senator Banks: No, not a minor work; a work on a minor waterway. A minor work is clearly defined. I know that I do not have to apply, but I also know that I must comply. How will I know that I am complying if I build a work on a minor waterway?

Mr. Gowe: We are not attempting to guide what gets built on the waterway. We are excluding the waterway.

Senator Banks: So I can build anything I want on it?

Mr. Gowe: Yes.

Senator Milne: You can build a four-lane highway over a creek that trickles down a bit in the spring and then is dead for the rest of the year?

Mr. Gowe: Certainly, from a navigational perspective, yes. There would be other laws that would apply. By saying ``minor waters,'' we are not attempting to dictate what occurs on those waters. If you are talking about a larger, navigable water and you are wanting to put a minor work on it, we have clear criteria that you have to meet.

Senator Banks: I want to confirm what you said, that on a waterway that has been defined by a ministerial order as a minor waterway, I can build whatever I want?

Mr. Gowe: As long as that waterway meets the criteria in the minor waters order, yes.

Senator Banks: So I could impede navigation on a minor waterway?

Mr. Gowe: The whole idea of these minor waters being excluded was that there was not reasonable navigation possible on these waterways. That is the bar we have set with the minor waters policy.

Senator Mitchell: It is referred to as ``minor navigable waterway.'' So what you are saying is a waterway that is navigable, once it is declared minor navigable, is then vulnerable to having whatever anyone would like to build on it, over it, under it, to do that without any regard for the standards that otherwise would have applied under the Navigable Waters Protection Act. In fact, in excluding that waterway, even if it is navigable, it excludes the application of standards that would have applied otherwise?

Mr. Gowe: Right.

Senator Mitchell: It is not just that you do not have to apply for an approval, but you can also do whatever you want to it.

Mr. Gowe: Right.

Senator Mitchell: There is the nut of the problem.

Senator Banks: Oh.

Senator Mitchell: We thought that was not the case, so thank you for the clarification.

Senator McCoy: First let me congratulate, you, Mr. Roussel, for your continuing patience and good humour.

Welcome, Mr. Gowe, and I dare say you will look forward to coming back frequently, as will Ms. Proulx, perhaps.

I have three questions, one of which is with respect to your organization chart. We requested that, and you provided it today, so thank you very much.

I am thinking, Mr. Roussel, that you are in the third spot on page 1. There is the Deputy Minister; then there is the Assistant Deputy Minister, Safety and Security; and then there is the Director General, Marine Safety, and that would be you. I am presuming that Mr. Osbaldeston is two boxes further down, because he is the manager of the Navigable Waters Protection Program, and you are all in Ottawa.

Mr. Gowe, did I hear that you are from British Columbia?

Mr. Gowe: Yes, that is correct. I am manager of navigable waters protection.

Senator McCoy: If I turn to page 4, I would be looking at the Pacific region. You are the manager of navigable waters protection, so you are reporting through the Regional Director, Marine; Regional Director, General Pacific; and then to the ADM, Safety and Security, who is in Ottawa?

Mr. Gowe: Correct.

Senator McCoy: So you do not actually report to Mr. Osbaldeston?

Mr. Gowe: No.

Senator McCoy: And you do not report to Mr. Roussel, or through Mr. Osbaldeston?

Mr. Gowe: Maybe not directly.

Mr. Roussel: I can explain this. That is a very good question, Senator McCoy, once again.

There are two notions there. The first notion is that the public service is a functional authority. Functional authorities are the ones developing policy, procedures and work instructions, and this is all established at the national level. I am the national functional director-general, and Mr. Osbaldeston is the national functional manager.

Then there are the line authorities, which are down in the regions, for operational purposes. We have regional directors general. We have the regional director of marine safety, and then Mr. Gowe is the regional manager. He executes the program in the fashion that it is developed from the functional perspective. However, overall, from a marine safety perspective, I am in charge of the entire budget, functional and line authorities, and we all report at the end to the deputy ministers in Ottawa.

Senator McCoy: Yes. Not to be particularly facetious, but being from Alberta, one of the regions, or part of a region, whenever an Ottawa civil servant refers to ``down in the regions,'' it makes the hair on our necks rise, so forgive my sensitivities when I pursue this line of questioning.

One of the regions here is Prairie and Northern region. Would that actually comprise Manitoba, Saskatchewan, Alberta, Northwest Territories and the Yukon?

Mr. Roussel: Yes.

Mr. Gowe: And Nunavut.

Senator McCoy: And Nunavut? That is six: three provinces and all three territories. I have counted on this organization chart, in the region — and we will just say ``out in the region,'' if you do not mind — one superintendent of navigable waters protection and then six protection officers. One of those protection officers is designated ``Edmonton'' and the other ``Ed,'' which I presume is also Edmonton. I am assuming, then, that there are two protection officers for all of Alberta. Do you think that is a good assumption on my part in interpreting your organization chart?

Mr. Roussel: Yes, that is a good assumption on your part. The Prairie and Northern region is quite large. We have an office in Winnipeg, which is the main headquarters. There is a team there and another team in Edmonton. There are two staff in Winnipeg, but the manager is in Edmonton.

Senator McCoy: We have been a very busy province. This may have been part of the reason for our constant observations on the administration of the Navigable Waters Protection Act. Your attachment B gave examples of projects that will be sped along by virtue of these amendments. I was very disappointed to see that Alberta is not mentioned anywhere in the examples. Therefore, you may continue to suffer from active Albertans on this file.

For some time you were administering the act by telling people that if they were developing or building a minor work, and then as long as they complied with certain standards of construction, they need not apply. You were doing that for some time prior to this act coming into force. Is that not true?

Mr. Roussel: We have developed a booklet applicable to different types of work and we did that by policy. I think we mentioned that to this committee. Doing it by policy, it is then the public servant who takes the risk without the legal framework to support their decision. We do not like to live in those kinds of situations because we are subject to potential prosecutions.

Senator McCoy: How long had you been administering the act in that fashion?

Mr. Gowe: The policies had been in place for two years.

Senator McCoy: It was well documented on your website and it had some clarity. All of the examples that Mr. Osbaldeston first gave us when I met him at the Finance Committee were all being followed.

Mr. Roussel: They were the inspiration of the first orders that were published. The pamphlet was by policy rather than the final orders. We had to make significant adjustments in redrafting the pamphlet to include the legal orders. However, the original inspiration is from the policy.

Senator McCoy: Did any of our officers suffer any legal liability as a result of this policy decision?

Mr. Roussel: I cannot say we were sued, to my knowledge. We considered ourselves lucky.

Mr. Gowe: No complaints were tracked.

Senator McCoy: It is perfectly legitimate for you to make policy decisions of that sort. The nature of this act had nothing prohibiting you from doing so. I am not complaining. I am pointing out that you had the ability to carry on in that fashion without legislative changes.

This last question also relates to Alberta. We were given an example of an approval for a weir in Calgary that took two and a half years from application to issuance of the approval.

I am sure your Alberta counterpart is happy that you volunteered to be here, Mr. Gowe. I do not want to put you on the spot, but I want to bring this matter to life because we can imagine, by staring at this, what you are dealing with.

I have had my civil servants design administration programs like that. I have talked to others in the federal civil service who have done that as well. Do you have any intention to, or have you put time lines on your average response targets in designing your processes?

Mr. Gowe: It was considered in our policy work. It simply did not make it into this round of amendments.

Senator Mitchell: I feel the chair's tension and I understand how lenient he has been.

On this chart we were looking at earlier, Mr. Roussel, you are saying it would apply to these kinds of projects. Are you telling me that of 431 projects under the Building Canada program, 163 are within 30 metres of water and all of those would be affected directly by this bill, or only some subset of those 163?

Mr. Roussel: We are saying to you that these amendments benefit 163 projects in one way or another.

Senator Mitchell: Every one of the projects that is within 30 metres of water is affected by this?

Mr. Roussel: Yes.

Senator Mitchell: I thought it would only affect those that were over —

Mr. Roussel: We are saying that it benefited 163 projects. I do not have the details of how it was done. We did not provide to you the details of every single project.

You had two questions. You asked us to tell you the figures regarding the number of projects that will benefit from this act. We gave you those numbers. Then you had a subsequent question asking us to tell you specifically on some projects — not all of them, some projects — how this act benefits them. We have produced those two documents for you. One is a general answer and the other one is a more specific answer.

Senator Mitchell: This implies that there are 431 total national projects, all of which do not affect water. There are 163 that are within 30 metres of water and all of those, you are saying, are affected by the act. I need to talk to you afterwards to get some clarification.

Finally, even if this act does streamline or get rid of some projects — and undoubtedly it will — you are still left with 42 analysts or officers across the country. If there is this large push — as there should be — to get these projects moving to stimulate the economy, and if we are intending to streamline that process a little with this law, there will still be a huge pressure on 42 people. If they are putting billions of dollars into capital projects, do you not think that it would be reasonable that they might hire 20, 30 or 40 more people for you on a short-term basis? Is there any chance that that would help?

Senator McCoy: On the record, please; that is a great question.

Mr. Roussel: I have been quoted in this committee and I will be quoted again. I have said to this committee that 10 per cent additional workforce has been approved for the department.

Senator Mitchell: Four people.

Mr. Roussel: No, it is eight overall, across the country. They are to help Mr. Osbaldeston and their team in putting together things like databases, policies, procedures or constructions and other work in the regions. We think for this fiscal year, and potentially for the next fiscal year, that that should be sufficient. I have also said to this committee that we expect 15 per cent reductions in a number of inputs. Our goal this year is to get over the backlog, move forward into the new stuff, and to be able to adjust the program as we are moving forward. No, you will not get me to say we need zillions or billions of dollars. We need to see how this will all work.

Senator Mitchell: We do not have any time left. Do we not have to get these projects out? Of course, we only have 6 per cent out so far; that is okay.

The Chair: You cannot resist.

Senator Mitchell: No, I know. I am sorry. Thank you.

The Chair: Colleagues, these folks have come here tonight for us to ask additional questions and obtain clarification. It is my sense, as the chair, that we are not totally clear on some aspects. We have another hearing at eight o'clock on Thursday morning, and I would ask if you could be standing by in case we need you then, and I will ask Senators Milne and Mitchell to be available at some point tomorrow and we will have a conversation as to whether you feel that we should call these people back. Other members of the committee should get in touch with one or the other.

That at least gives us an opportunity to think through what we have heard tonight. I do not like the record to be left with Senator Mitchell getting his clarification by talking to the witness afterwards. We can stay here all night. I am being told by many different sources that it is time we adjourn this particular part of the proceeding. Senator, I know you cannot resist, so I will recognize you.

Senator Spivak: On your question as to whether we should get them back, my answer is that some of the issues raised here are policy issues, which should be answered by the political masters, whether it is the parliamentary secretary or the minister. They are policy issues. It is not fair that these people are here to carry out the policy. Maybe we do not like the way they are doing it, but that is what they are tasked to do.

The Chair: Thank you for that comment, and again, I am trying to provide as much facility for us to have the proper tools with which to write a good report on this matter.

Mr. Roussel, will you be standing by and then the steering committee will decide? I want to thank all three of you very much for coming tonight. I think you know where the issues are that are troubling the members of this committee, and I think you have done your best to give answers that are within your own comfort zone, but they may not go far enough in some cases.

The last little line of questioning I think is self evident. Everyone knows it would be nice to have more inspectors, so we understand that. There obviously are not enough. The answer was self evident.

Some of the issues are about how far these orders go, what are the criteria for the exercise of this extraordinary discretion. You will write us a comfort letter about that, for example, so that we know when and if there will be other orders. This is troubling us all, and those kinds of things. We will be in touch with you, Mr. Roussel, directly on this, and it may well be that we meet again on Thursday morning.

I would ask all senators to remain. I am suspending the meeting.

(The committee continued in camera.)

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