Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 7 - Evidence - May 28, 2009
OTTAWA, Thursday, May 28, 2009
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:09 a.m. to examine the elements contained in Bill C-10, the Budget Implementation Act, 2009, dealing with the Navigable Waters Protection Act (Part 7).
Senator W. David Angus (Chair) in the chair.
[English]
The Chair: Good morning honourable senators, witnesses, our listeners on the CPAC network and those persons on the World Wide Web sharing in our deliberations. This is the eighth and final meeting of this study on the provisions of the Navigable Waters Protection Act that were dealt with in Bill C-10, the Budget Implementation Act, which was passed into law.
To review briefly who is present today, I am Senator David Angus from Montreal, Quebec, chair of the committee; our esteemed deputy chair is Senator Grant Mitchell; Senator Richard Neufeld from British Columbia; Senator Bert Brown from Alberta; Senator Daniel Lang from the Yukon; a member of the Steering Committee, Senator Lorna Milne from Ontario; Senator Pana Merchant from Saskatchewan; Senator Mira Spivak from Manitoba; and visiting with us today is the Chair of the Standing Senate Committee on Legal and Constitutional Affairs, Senator Joan Fraser from Montreal. We experienced a bit of identity theft yesterday; she was me and I was her for a brief period.
I will introduce the witnesses in a moment. We had other plans for this meeting this morning. At the end of our meeting of Tuesday evening, a number of confusing elements rose to the surface in our understanding of how this legislation will operate, and the nature and extent of the special discretion granted to the Minister of Transport under these provisions. Further, in the case of minor or small navigable waters where it is permitted to proceed with certain works, what criteria must be observed and applied by the person carrying out the works to avoid possibly having the works undone at a later date?
The members of the committee are all trying hard to understand how this law will operate. We did not want to complete our report to the Senate without understanding this operation. This concern comes from both political parties. The report is due on June 11. We are of the view that we need to have closure on the one hand but understanding on the other, so, with the involvement of the Deputy Chair of the Committee and the steering committee, I took the liberty of asking the parliamentary secretary to come back with the officials. However, he was unwilling to do so. I had lengthy discussions with him but, at the end of the day, I was advised that the minister's office thought it unnecessary for him to reappear before the committee. I felt I should say that.
Furthermore, we were advised by the office of the minister that people from Infrastructure Canada will appear this morning as well. That is why you received the notice advising you that joining us this morning would be Shirley Anne Sharf, Director General, Issues Management Program, Operations Branch; and Keith Grady, Senior Advisor, Environmental Review, Issues Management Program, Operations Branch. However, they are not here. I was told a few minutes ago that they will not be coming. That is all I can say in that regard.
We welcome back Brigit Proulx, Counsel, Legal Services, Transport Canada. In particular, she was involved in drafting this legislation. As well, we welcome Donald Roussel, Director General, Marine Safety, Transport Canada, who has appeared before the committee four times. Mr. Roussel has an oversight role in Transport Canada in respect of the Navigable Waters Protection Act. I hope that the witnesses have a good understanding of the concerns of committee members so that they and their colleagues can demystify us.
We welcome also Ann Gillen, Navigable Waters Protection Officer, Operations and Environment Programs, Transport Canada. I understand that you have been following our deliberations over these eight meetings?
Ann Gillen, Navigable Waters Protection Officer, Operations and Environmental Programs, Transport Canada: Yes, I have.
The Chair: You know that we have been giving the issue a good airing. We are delighted that you could be here to help us find the answers.
Ms. Gillen: Thank you.
Senator Milne: Mr. Chair, in the over 14 years that I have been in the Senate of Canada, this is the first time that government personnel have refused to come before a committee when they have been requested to appear. I do not know why. I do not know what is going on behind the scenes, but I think it is appalling and that it should not happen again.
The Chair: That comment is noted. I do not have the same length of experience but I share your frustration in this case.
Senator Milne: You have a longer experience than I have and I am sure that you have never run into this situation before.
The Chair: I will not comment other than to say that you have made your point. We have on the record my comments of this morning. Does any other senator wish to comment before we begin?
Senator Fraser, you have not been with us in these hearings until today. You represent Senator Banks this morning, who has taken an admirable and leading role in the line-by-line review of the legislation. His questions have been technical in nature in an effort to understand how the legislation works. We are not here to criticize; we want to understand the legislation.
In as much as we have asked the officials to come back, perhaps we should begin. Will someone make an opening statement?
Donald Roussel, Director General, Marine Safety, Transport Canada: Yes, Mr. chair. We are happy to be here this morning. This is our fourth time and, if need be, we will come five or six times. I will return to some of the questions that were asked of us to ensure that we can answer them, after which I will turn it over to senators to ask more questions.
One particular question from Senator Banks, which he returned to many times, was on the latitude permitted regarding reference. His famous quote from the act is that you can make reference to all types of standards, wherever they come from, and amended from time to time inside the act. Senator Banks asked us to get back to the committee on the framework that can be established within this act.
The only act we can refer to that gives this kind of framework is the Canada Shipping Act, in section 32. This section provides a framework that will answer the query of Senator Banks. Within the Canada Shipping Act, 2001, there is an entire section regarding incorporations by reference. It talks about ``Externally produced material'' and it says:
A regulation made under this Act may incorporate by reference material produced by a person or body other than the minister who recommended to the Governor in Council that the regulation be made, including by
That text is followed by a series of frameworks that include:
(a) an organization established for the purpose of writing standards, including an organization accredited by the Standards Council of Canada;
I am giving you a bit more context. Continuing, it says:
(b) an industrial or a trade organization; or
(c) a government, a government agency or an international body.
That gives a bit more of what Senator Banks was looking for. We will leave that with you. It is up to you to make the recommendations but this is one of the answers that Senator Banks requested.
The Chair: I will quote from an email to me:
It is my view that it is too broad, that sitting to incorporate any material from any source by reference is too broad. I asked Mr. Osbaldeston to give us some examples of the kind of thing that he meant. He said, ``I will send you some examples.''
He continued, ``Maybe I misunderstood him but I would like us to have examples . . . ''
Do you have some concrete examples?
Senator Banks gave the reductio ad absurdum saying that section 13 would incorporate by-laws of any town, which is an exaggeration to give you a sense of our frustration with this provision. How far can it go?
Mr. Roussel: It can go far; that is clear. The one contained in the published order is referred to in section 5 of the orders. It is called ``work met to the design and construction requirements of overhead systems Canadian Standards Associations, C22.3.'' This is an example of what we are talking about.
Senator Banks was looking for something that will limit what is contained in the act as it is written. The only reference we found from the perspective of Transport Canada is section 32 of the Canada Shipping Act 2001. Currently, we use that section when we make regulations. That is the framework we use when we make reference.
The Chair: It is section 32 of the Canada Shipping Act, 2001?
Mr. Roussel: Yes.
The Chair: Do you want to make other statements?
Mr. Roussel: No, that is the one I wanted to make in response to Senator Banks while it was fresh in my mind.
The Chair: Does anyone have any questions on this item?
Senator Spivak: I have one on another point but not on this particular point.
The Chair: This is our opportunity to ask questions on any point that needs clarification.
Senator Spivak: As we heard at the last meeting, the number of enforcement officers is woefully minimum. The way in which the act is written, they do not have to apply but they must abide by standards. For minor works, there is no public notice of what is to be done. Therefore, it is up to the surrounding communities of thousands of lakes and rivers to see if something is amiss. However, if a minor project impedes navigation, how will the community know about it? How will this reactive kind of regimen work?
Mr. Roussel: Are you asking about minor works?
Senator Spivak: Yes.
Mr. Roussel: It will work by complaint, if the navigable water is obstructed.
Senator Spivak: Yes; however, if no notice is given of what work is being done, how will anyone know about it? Is it your understanding that obstruction will be dealt with only by complaint, with no notice?
Mr. Roussel: That is the way it will work, yes.
Senator Spivak: You have answered my question.
The Chair: To be clear, thousands of these types of minor works, under the old law, had to go through a process that was criticized by many for being cumbersome and time consuming. At the end of the day, the projects either never happened or they delayed the entire system.
If I understood the evidence well — and we need to clarify this point — after research, the government has decided to exempt those works from the notice and permit process and to allow people to proceed with these works, subject to general rules that, if not followed, will generate a complaint, resulting in them having to undo the work.
I believe that is the difference.
Senator Spivak: Mr. Chair, I am well aware of that point.
The Chair: I am sorry to be redundant.
Senator Spivak: No; I thank you for putting it on the record so clearly. However, this provision is reactive. I am not talking about the millions of little things that can happen in ditches. However, remember that the minister has sole discretion to determine what is a minor work. How do we know?
Mr. Roussel: To add to the explanation, in the past there were no standards, no orders, no way of knowing how this project could be done. It was all subjective. We now have the orders that clearly state what applies and what does not apply.
Under this law, people in the oil and gas industry, and owners of golf courses, playgrounds or camping establishments will know what they can do. It is in the public domain. They will read the orders and standards to determine whether they can build a bridge over a creek or a small river. They probably can if they build it in the required fashion.
The Chair: Senator Spivak, Senator Lang and Senator Neufeld wish to raise points of order.
Senator Lang: First, we are not here to argue with the witnesses. The witnesses are here to give their evidence.
Second, my understanding is that a framework will be set up outlining stipulations for building a bridge, for example, and if I go outside those criteria, I can be subject to sanctions.
I am looking for the criteria within which I must work to abide by the law and to avoid having to wait for two years for a review. That is my understanding of the purpose of legislation.
My philosophy is that there must be more freedom in this process. It is currently almost impossible to do anything. If they do not get what they want through a provincial or federal environmental process, in some cases the Navigable Waters Protection Act is seen as another way of preventing something from happening, and eventually the decision must be taken.
Is the criteria for the various definitions of ``works'' available? I do not think I have seen it.
Senator Milne: It is not in the orders.
Mr. Roussel: Let us go back to that bridge. Previously, every bridge was subject to a request and approval. I talked about camping grounds, golf courses and all sorts of small things happening left, right and centre. Under this legislation, those works can proceed if people follow the criteria established in the standards.
The Chair: That is the question. What are those criteria established in the standards? You refer to ``the order,'' and the order is fairly open-ended. In my modest understanding of this subject, the criteria are not set out. Rather, the provision is an enabling one that will lead to the enactment of regulations, which you are in the process of drafting. Is that correct, sir?
Mr. Roussel: The orders for different types of works describe how to move forward with them or how they cannot move forward with them. I used the example of a bridge. I can use the example of a winter crossing or aerial cables. The orders refer to a Canadian Standards Association standard for how an aerial cable is installed across a river or a creek.
Senator Mitchell: We are talking about two things. One is the definition of a minor work, but this definition is of a minor navigable water. These are two different issues.
I understood the other day that once a navigable water is determined to be a minor navigable water, people can build whatever they want on that water, and that there are no standards. They do not have to comply with what otherwise would have been the standards that determined how a project can be built over that water.
That issue is different from how high the cable must be, because once the navigable water is determined to be minor, there is nothing that says how high the cable or the bridge must be or how wide the pylons must be.
Let us not mix apples and oranges. That is the issue. This is what is not clear with Senator Spivak's question.
Senator Spivak: He did not let me finish it.
Senator Mitchell: You imply that if I build something on what would now be a minor navigable water, and Senator Spivak wanted to complain about it for whatever reason — she may say that it was navigable, that she used to canoe down it, or that the structure is wrong — there is no criteria, standard or basis upon which she can complain, because you have already declared the water to be exempt from the act.
On what basis can she say, I used to canoe down there and now I cannot? You will say, that is too bad, but we exempted it before the bridge was built.
Second, who exempts that river? Do I apply to have that minor navigable water exempted, or do I guess? If I have to apply to have it exempted, how will that application speed anything up?
By definition, if I do not have to apply to ensure that that river is established as minor, how do I know if it is minor? When Senator Spivak comes to complain, saying that she wants to canoe there and that she does not think it is a minor water, do you say, after the fact, it is minor, too bad?
Do you see what I am getting at? It is wheels within wheels.
Mr. Roussel: Yes, I see where you are coming from.
Ms. Gillen: Clarity is needed here. Criteria, terms and conditions are listed in the order for both minor works and minor waters. The difference is that the criteria for minor works are specific to the work we are talking about, whether it is a water intake or a winter crossing, et cetera. Then we look at the minor waterways where the criteria are based on the characteristics of that specific waterway.
I will use the example from Dr. Kenny, the Canadian Energy Pipeline Association witness here a couple of weeks ago. She gave excellent examples of the types of waterways we are looking at. These waterways are the types defined under the terms, conditions and criteria in the order. We are not allowing structures to go up on rivers or large lakes. Program officers go out to the field and look at the water. They cannot assess a work because it is not there so they assess what is there, which is the body of water. They have specific criteria and a methodological approach to define whether there is navigability.
Senator Mitchell: Is that approach under this new act?
Ms. Gillen: It is under the order. There is methodology behind that assessment.
Senator Mitchell: The company must still have an inspector go out.
Ms. Gillen: No, they will take the criteria available and use their expertise. We are talking about a combination of science, expertise and common sense. These organizations, these proponents, and our officers and managers who have 25 years, 30 years or more of experience in dealing with these types of waterways will take the methodology and criteria to ensure that the water falls under the definition of a minor waterway.
Senator Mitchell: Your inspector will do that?
Ms. Gillen: They would. It is not necessarily our inspector. In the past, our inspector would go and use these criteria and methodology to determine whether the water was minor. We have worked with the proponents to build that specific criteria and methodology.
Senator Mitchell: The proponent will not apply; they will simply make the decision.
Ms. Gillen: It is based on the criteria.
Senator Mitchell: Yes, right. If Senator Spivak complains about the fact that the structure they built — which can be major, not minor — impedes her ability to canoe three months of the year, are there any criteria upon which her complaint can be based? Alternatively, because it has been exempted, is there no basis upon which she can complain? The complaint solution does not work in that case.
Ms. Gillen: If there is reason to believe that this waterway is definitely navigable and someone made a grave error, we go back to that site and assess it. We would say this work is out of class and now must go through the formal process.
What is missing here is the understanding that there is an extensive methodological approach to assessing whether a minor waterway is minor. We do not simply go out and stick something in the middle of the water. A large structure in a minor water will not likely happen because the level of navigability in that water is deemed minor. We would not have a huge bridge.
Senator Mitchell: The difference is not that there are new criteria. There are criteria now, and criteria under the new act. The difference is an inspector will not make the decision about whether those criteria apply or do not apply; the proponent will.
Ms. Gillen: Yes.
Senator Mitchell: Then, all that is left is complaint.
Ms. Gillen: I want to state for the record that there is a methodological approach that is used by professionals and the department in determining minor waterways. We take that approach seriously. We do not simply throw things up in waterways where we know there is a great potential for navigation or things that have environmental considerations. We look at the relevant factors within that body of water.
There is a list of criteria, terms and conditions in the order. However, I can see the confusion because the methodology behind the list is not necessarily there for it to make sense. That is what our brochures are for.
Senator Spivak: I want to make clear that we understand there must be a balance between development and the long standing right to navigation, which is an important right in Canada. I am not arguing with the witnesses, Senator Lang, if this is what you are saying; I am trying to obtain information. My point is not on the complaint or the methodology; it is on enforcement.
For example, you have about six navigation officers for the entire western and Arctic regions. That means enforcement is reactive. There could be all kinds of things happening that you do not know about in advance for minor waters. The work might have damaged the waterway by the time you know about it and there is a complaint. This enforcement is reactive and that has changed the way things were done before.
There is no question in my mind that we had to reform the system where they had to apply for every minor work, but we are talking balance. My question is about the balance of enforcement.
Mr. Roussel: We will enforce where we need to enforce.
Senator Spivak: How will you do that?
Mr. Roussel: We have the capacity to enforce the laws under our program. I have said to this committee that the NWPA program has about 65 people across the country. Approximately 40 of them are officers. We have told the committee that we are adding about 10 per cent additional resources. One focal point will be to conduct a lot of awareness and education as part of the implementation of the act.
If all hell broke loose, we can bring the Atlantic people here and send a couple there. We will build a legal case against those rogue individuals causing problems to Canadians. NWPA is one act and the Canada Shipping Act is another that we apply. Marine Safety is an organization of 650 employees. I can tell you we will not be pushed around when it comes to compliance and enforcement. That is what we do for a living. You can count on me.
Ms. Gillen: I wanted to clarify that the concept of minor works is not a new concept in a sense.
Senator Spivak: We are talking about minor waters.
The Chair: There are two different things.
Ms. Gillen: Yes, exactly. The overall concept I am talking about for exemptions is not a new concept. Section 5(2) of the old act spoke to the same types of works and orders.
Senator Milne: My question follows on that point. Nowhere in these orders can I see a definition of minor works. That definition is left up completely to the discretion of the minister.
The Chair: The definitions are in the main body of the act, not in the order. The order has been made under the main act.
Senator Milne: Is there a definition in the main body of the act?
Ms. Gillen: There are eight classes of the minor works, which are listed in the order. If there is a structure not listed in the order, they are not a minor work.
Senator Milne: Nothing in here says ``minor works.'' Okay, I found ``Minor Works and Waters.''
Senator Milne: Docks and boathouses, to begin with, do not have to be minor works.
Ms. Gillen: No, they do not.
Senator Milne: What will be the breakdown? As I was pointing out to someone yesterday in defining ``navigable waters,'' when building a dock or a boathouse, it cannot be less than 15 metres, I believe, from a lot line. On many of our older lakes, many cottage lots are not 30 metres wide. Anything built in front of a cottage, on Lake Simcoe, for example, will be within 15 metres of their neighbours, which would be a prohibited work, according to this definition. Therefore, all the docks around Lake Simcoe, every single one of them, is now illegal. Look at the patterns of settlement in French Canada, where the rivers served as the roads. Every landowner was given frontage on a river and the landowner divided that frontage between successive generations. Today, those strips of land might be only 10 metres to 15 metres wide; and they all front on the river. According to the material before us, the river must be more than 30 metres or 50 metres from its route of navigation but many of those rivers are not 100 metres wide.
Ms. Gillen: We are focusing on the work and not on the water with minor works. If someone builds a dock, it must fall under the criteria listed under docks and boathouses criteria. They can build that dock on a lake but they have to ensure that they do not impede navigation substantially. Those are the types of docks —
Senator Milne: According to this definition, it cannot be within 15 metres of the lot line.
Ms. Gillen: Correct.
Senator Milne: If their lot is only 15 metres wide, what will you do? There might already be a dock in place that they want to extend by one foot.
Ms. Gillen: Then they have to apply. It becomes a situation where they have to apply.
Senator Milne: I hope that you are mounting a massive public relations campaign about this situation because you are applying the law and I have not seen any public relations campaign about it, Mr. Roussel.
Ms. Gillen: Minor works that are docks and boathouses are popular. We have been at boat shows and trade shows and found the topic to be popular. We have had absolutely no issues with it at all. In fact, people are happy to have the criteria.
Senator Milne: What do you mean by ``popular?'' Have people been concerned about this issue?
Ms. Gillen: The concern is about having to apply to build a dock that has no impediment to navigation. This situation is where the criteria come in handy for dock owners who want to build a dock on their property without going through the onerous process. The program has been going on for two years and has been successful.
Senator Milne: Say I own a cottage on Lake Simcoe and my lot is perhaps 20 metres wide. The cottages are cheek by jowl along the shore in some places. Say the dock is rotted away and has to be replaced. Do I have to apply?
Ms. Gillen: Can you repeat the question?
Senator Milne: Whatever I build will be within 15 metres of my neighbour. I recently bought the cottage, the dock has rotted away and I want to replace it. Do I have to apply?
Ms. Gillen: Is it a minor work? Is it a dock that you have received an application for? Has it been approved?
Senator Milne: That is what I am asking.
Ms. Gillen: Was it approved in the past — the original state of the dock.
Senator Milne: Who knows? I just bought this place.
Ms. Gillen: It depends. If the work is obviously unlawful and needs to be reconstructed, you will have to apply. If it is a minor work, you can redo it, in accordance with the criteria again.
Senator Milne: I do not think that information will be much help to the property owners.
Ms. Gillen: If the work is not in compliance with the criteria, you will have to redo it. Otherwise, you will have to go through the formal process.
Senator Milne: It is not in compliance with the criteria because it cannot be in compliance.
The Chair: That is one of the reasons we have the five-year review. Experience will tell whether it is workable.
Senator Lang: For the record, one of the most significant sections of the bill applies to penalties. We have all forgotten this provision. Until now, as I understand, for $5,000, I can do almost anything I want to do. An officer can show up, fine me $5,000 and I carry on with what I am doing. My understanding is that the penalty has increased to $50,000, which could apply per day if I do not cease and desist the work. For the record, we have to understand that this legislation is an important move forward from the point of view of ensuring that people adhere to the rules in respect of navigable waters.
The other point is that in reading this legislation and following what Mr. Roussel has said, it seems to me that the department has a good understanding of working in conjunction with companies involved in this kind of activity. I take as an example the oil and gas business in Alberta realizing certain things can be done fairly expeditiously as long as they adhere to the criteria. The criteria have been identified in a general sense, for both minor navigable waterways and minor works. My experience has been in the construction business building bridges. On a minor waterway when trying to complete construction of a public works project within a certain time frame, they receive a penalty if they are late. This legislation will aid and abet a small contractor knowing that they are working on minor navigable waterways; and the term is defined.
We must give credence to both the department and industry that things can proceed with the understanding that rules are in place and if the rules are not met, they will be heavily penalized.
Senator Neufeld: Everyone looks in every corner they can possibly look to find out what might go wrong when rules or regulations are amended to modernize an act that came into force in 1882. I appreciate all the questions.
I know the point about the number of people has been raised by me and a number of others so I will not belabour the point. However, approximately 70 people have been responsible for this type of work over the last 10 years. Has that number changed dramatically in the last five years or is it the same?
Mr. Roussel: That is a good question. The staff within the NWPA program is stable. We are at the average of the public service renewal with a natural attrition of roughly 5 per cent per year. In general, the number of people who have worked for us has been the same for a good decade, at least. Some people have 20 years to 25 years of experience in the NWPA program.
Senator Neufeld: That point is important for all of us to remember. It is not a new phenomenon that this number of people has regulated this act for many years. Other than the frustration of having to apply for everything, both for your staff and for proponents out there, you are trying to alleviate that frustration a bit so that you can watch the things that should be watched more. I am a firm believer in that type of regulation. We hit the ones who are doing things wrong with a hammer rather than hitting everyone.
I go back to docks and boathouses. What happened before the ministerial orders? What happened before the changes? Were there any regulations? Did people do whatever they wanted to? Were they allowed to build their docks and boathouses however they wanted, or was there something similar previously?
Maybe I should not ask that question. I will ask only the first question.
Ms. Gillen: I think it is both. Docks, boathouses and other such structures could have gone through the section 5(2) process, which means they would have been exempt from the provisions of the act if there was no significant impact on navigation.
Second, people put them up with no criteria and we would not know about them until we received a complaint or came upon them during another assessment.
Senator Neufeld: In that case, there has not been a dramatic change, other than, as Mr. Roussel said earlier, over the next several years you will attempt to bring regulations into force so that these ministerial orders will no longer be required. I fully understand that change, too. There must be millions of rivers, waterways and lakes across the country, and it must be difficult to create a regulation that applies to each of them. One-size-fits-all does not always work.
I am happy with those two responses, chair. I think these people are doing exactly what they say they are doing under the act, which happens to be not much different from what we are talking about today. We may be searching too much for something wrong. If we do not make some mistakes, we are not moving forward or changing things for the betterment of everyone. I think we should be happy that they are attempting to improve legislation from 1882, when all our needs have changed.
I do not say we should dam every river, but there must be a middle-of-the-road way to move ahead. I think they are trying to move ahead in a rational way without moving too fast. They could write a lot of regulations for us tomorrow, and we would not be happy with them either. Give them a chance to work out this matter and consult with the people so we can have a system that will work for everyone.
Ms. Gillen: Thank you for that, senator. You raise an excellent point. Something has changed in that we now have terms and conditions on minor works. Before, under section 5(2), there were none. Safety provisions are increased with that one change alone. That point is important.
Senator Lang: I will change gears for a second. Under aerial cables and power communications under the minor works and waterways interpretation order, we talked about charted navigable waters. Do we have a list of charted navigable waters?
Ms. Gillen: The Canadian Hydrographic Service carries a full databank of those waters.
Senator Lang: Would that be 200,000 rivers?
Ms. Gillen: They have the whole gamut on their website. Their website is an excellent resource.
Senator Lang: Does that databank assist a proponent in learning whether a waterway is a minor navigable water or a major navigable water?
Ms. Gillen: Yes, that source would be a good place to start.
Senator Mitchell: Have you received many new applications as a result of the economic stimulus initiative? Have you suddenly been overwhelmed with new applications for projects?
Ms. Gillen: I am not an expert in this subject. I think we are all still learning in the program; we are trying to catch up. It has been a challenge, but with the major resource management office and the infrastructure push, we are speeding up. It is not a matter of a lot applications coming in; rather, we are trying to speed up the process. We are playing a bit of catch-up right now.
Mr. Roussel: The figures change every day. We tabled with this committee, at your request, a sampling of infrastructure projects that might be affected by the NWPA amendments. You also asked for specific examples of how this amended act will benefit those projects, and we produced those examples.
Of our sampling of about 438, about 160, or close to 35 per cent, can be affected by the NWPA. We do not have the specific details. You have to give the public servants the time to go through the pile. One of the last figures on the infrastructure stimulus is that approximately 700 files came in.
Senator Mitchell: As a result of the —
Mr. Roussel: Not as a result of the amendment; as a result of the government initiatives and the different infrastructure projects.
Senator Mitchell: One argument in defence of these amendments is that they will allow for a more streamlined process so that we will not inhibit this enormous number of capital infrastructure projects that have been initiated as a result of the economic stimulus package.
Have you received a lot of new applications?
Mr. Roussel: We have received applications. Because the amended act and the orders are new, we are receiving all sorts of things that our staff must triage and send back to the proponents. We have provided specific examples. If you look at the chart in Annex B of what we produced for you on May 26, we are talking about 60 bridges in Ontario that can go ahead with resurfacing work and so forth. That is a tremendous number of projects — 60 bridges. For contractors or governments to be able to say they are complying with the NWPA portions, these resources are not being spent on that requirement. It frees up time for us, and we are happy with that situation.
Senator Mitchell: You said that you have 10 per cent more staff. Is that number roughly 70 people?
Mr. Roussel: I mentioned eight new staff for this fiscal year. We will analyze that requirement during the year and will probably have that number for the next fiscal year.
Senator Mitchell: Are they all inspectors?
Mr. Roussel: There will be a mix of officers and support staff to put the new regime in place.
I will take this opportunity to respond to Senator Milne on the portion regarding awareness and education of our stakeholders. Marine Safety has two national forums each year, called the Canadian Marine Advisory Council, CMAC. Last May, close to 400 people attended. Two specific sessions led by Ms. Gillen in various standing committees were well attended.
Two regional CMACs take place annually in the five regions of the country, and NWPA will be there. As Ms. Gillen said, we are at most of the boat shows. Our staff also meet associations of municipalities, the oil and gas industry and various groups that request specific information sessions. We will not be short on awareness and education. We know it is key to making this legislation work properly.
Senator Lang: I have a couple of things. First, there was the ballpark figure of 700 applications from the infrastructure push. That statistic is interesting. I believe it was debated yesterday in the Senate whether these projects were moving ahead quickly to move the money into the economy. I am encouraged by the numbers to know that things are moving ahead.
I want to be sure I understand this number. Is it that maybe three-quarters of the 700 applications apply to the minor navigable waters section of the act, or are these 700 applications over and above those applications?
Mr. Roussel: In the documents we gave you, we say that roughly 30 plus per cent can be affected by the NWPA. We will not have the exact figures from the 700 structures until we process them. These applications are only a pile of applications. The historical average shows that about 38 per cent are affected by the NWPA, as we provided to you in our answer on May 26.
Ms. Gillen: I can add to the minor works and waters portion of that answer. Some of these large infrastructure projects that have water crossings not necessarily defined in the list associated with the project may benefit from the minor waters order.
The Chair: I will go to a second round of questions after I explore a couple of points with a view to clarification, which I feel is now going well. Thank you for returning this morning.
One issue that arose frequently on Tuesday concerned the use of the word ``policy.'' A number of times, Mr. Roussel you indicated, that appeared in these amendments ``as a matter of policy.''
There is cabinet and the minister's office, but I understand that within Transport Canada and within the Navigable Waters Protection Program, you have a policy process. Can you outline that policy for us and clarify what you meant?
I went away from here thinking it might be necessary to bring ministers here to tell us about the policy. However, I want you to outline that process for us.
Mr. Roussel: ``Policy'' is a broadly used, misused and abused word.
I explained the concept of functional and line directions to the committee. We explained also that by ``policy'' we have established those pamphlets that are the genesis of the orders in the past. We are taking risks internally when we do this. Our legal advisers will say, You can go in that direction, but the law does not give you the latitude to do so. However, it will facilitate your work.
Therefore, we move in that direction. That position is not a comfortable one for public servants. We have to go to bed and sleep at night. We are taking a risk.
That risk must be mitigated at some point by proper legislative amendment that will support the policy decision. When we move forward and say, all this patchwork of pamphlets needs to merge into something that makes sense, we publish orders that have a legal framework attached to them. This framework removes the burden from the public servants and puts it into the appropriate legal framework.
That is what I meant when I said that we followed ``policy.'' We established a series of policies from 2006. We worked with them; they worked well. We then formed the orders from those policies after they had been tested and worked. We put them in the appropriate framework. The next step is to see if we can make a regulation out of them. They are stable and do not need to be fine-tuned further. That is how we want to work with those policies.
The Chair: Is your point on this matter, Senator Spivak? I had several other matters to cover. I know one will please you.
Senator Spivak: My question is on this matter.
The Chair: Do you mind if I finish my three points?
Senator Spivak: Yes, go ahead.
The Chair: Another area of confusion was from Senator Banks. He later told me he might have had a misunderstanding on the constitutional right of Aboriginal people to consultation in advance. You were asked if you consulted with certain people and, if, in your opinion, you had violated any trust. We cannot leave it on the record that these people were or were not consulted, or that there was a violation of sacred rights. Can you comment on that area?
Mr. Roussel: Mr. Jean was also in this committee, if I recall correctly. He mentioned that during the House of Commons Standing Committee on Transportation, Infrastructure and Communities, First Nations were requested to present their positions, which they did not do.
We have been having a dialogue with an array of First Nations people in the past several years. We asked for legal advice when it was time to amend the act. Brigit Proulx presented that legal advice to this committee at our previous session. I will not put words in her mouth; she explained that legal advice.
Having said that, we have been clear that First Nations need to be consulted. They need to be consulted when they are affected. I have mentioned to this committee that for each project tabled, we need to assess if there is a portion related to Aboriginals. Consultations will take place where projects affect Aboriginal groups.
The Chair: Thank you. That information clarifies the matter. I think Senator Neufeld talked to me on that same issue. Are you comfortable now?
Senator Neufeld: Yes, that is the correct way to do it.
The Chair: That was always my understanding. I think it would be incorrect if we wrote in our report that we violated some basic principle.
Senator Fraser: Based on profound ignorance, might I pose a supplementary question?
The Chair: You may.
Senator Fraser: Is there a non-derogation clause in this bill?
Mr. Roussel: I do not know. I am not a lawyer.
Ms. Proulx: There is no non-derogation clause.
Senator Fraser: Why not?
Ms. Proulx: What exactly do you mean by a non-derogation clause? What would you expect to be in the amendments?
Senator Fraser: As you know, non-derogation clauses say that this bill does not detract from Aboriginal constitutional rights. It occurs to me that for greater security and safety, it might have been advisable to include one.
Ms. Proulx: As I explained before, I am not the subject matter expert with regard to Aboriginal law. We have experts in the Department of Justice. I was not sure if you were referring to non-derogation clause in particular for Aboriginals. There is none in the NWPA amendments. I am not in a position to comment on this point.
The Chair: I think you will find this is all part of a larger body of legislation. If you have anything that you could add on that point, please let us know.
My next point concerns the question Senator Spivak asked you, Mr. Roussel, on whether you could obtain a letter from the minister or the deputy minister to our committee indicating that this process has been followed often before, and specifying the time period and the intention to change these orders into regulation that then can go back to the parliamentary process. Our general concern is that these orders can be made and are not subject to the parliamentary review process. We had a lengthy discussion on that point, and you explained why the orders are in place. You said that you had to put them in place because these are emergency times, et cetera, and that they were properly spelled out. However, the concern is about their open-ended nature and the principles that will be applied going forward.
We asked for some comfort on that matter. Your answer was that there are specific questions you could not answer that need to be asked of the minister regarding how you will use these orders.
I said, ``Senator Spivak has asked whether you might be able to furnish a letter of intent.''
Mr. Roussel replied, ``We will leave it to the appropriate authorities within the department to answer that.''
I said, ``You will check, in other words.'' You replied, ``Yes.''
Mr. Roussel: The answer is easy. This committee needs to ask the minister the specific questions on that item. He is the person who will make the decisions on how to respond to the committee. I cannot answer for him.
The Chair: However, you can check within the department, can you not, and go to your deputy minister to see whether we can have a letter of intent?
Mr. Roussel: Yes.
The Chair: It happens all the time, rather than bring the minister to the committee.
Mr. Roussel: Yes, we will check. You do not have to bring the minister here but we prefer that you put this in your report.
The Chair: I see, yes. It would be nice if we had the letter. I ask that because of Senator Spivak's concern.
Mr. Roussel: We are fully aware of the concerns of the committee. They are clear. We are fully aware also of the particular nature of the orders and how careful we need to be in executing them. This matter falls under the Minister of Transport, Infrastructure and Communities, so it is for him to say how he wants these orders to be used.
The Chair: Thank you for those answers.
Senator Milne: This side issue was raised by some of the canoeing organizations that appeared before the committee. One witness stated that the Credit River, which is a few miles from my home, is navigable for its entire length except for a dam across it. The landowner who holds land on both sides of the river refuses them permission to portage around the dam, so they have to paddle back upstream, walk over one mile to the next concession road, walk down a mile and a half and back over if they are to paddle the river.
When I looked into it, I discovered that this landowner has something called ``mill privilege,'' which is an ancient common-law right. At one of the headwaters of the Credit River, there is a little town called Alton, where seven or eight mill privileges are held on the stream that feeds into the Credit River. Do you know how many navigable waters can be impeded in Canada because of landowners on both sides of the river holding mill privilege?
Mr. Roussel: I do not have this information.
Ms. Gillen: I do not have this information either.
Senator Milne: Have you ever heard of it?
Ms. Gillen: I have never heard of it, except that it was mentioned here a couple of weeks ago.
Senator Milne: We are still in the dark.
The Chair: Senator Milne taken a personal interest in that item. We will find out.
Senator Milne: Yes.
Senator Spivak: You do not have to answer now but perhaps you can let us know why there is no non-derogation clause. Is it because these amendments are embedded in a budget act?
Mr. Roussel, the issue was raised before committee that the trigger to environmental assessment, which existed under the Navigable Waters Protection Act, has been severely eroded by these amendments. In your policy discussions, was there examination of this issue?
Mr. Roussel: Are you asking about the environmental triggers under the NWPA?
Senator Spivak: Yes.
Mr. Roussel: Yes, we looked into this item.
Senator Spivak: You looked at it?
Mr. Roussel: Yes, but that matter was not the main point of our discussion.
Senator Spivak: I am sure that it was not.
Mr. Roussel: Let me finish. This act is about navigation.
Senator Spivak: Right.
Mr. Roussel: An array of other organizations in town deal with environmental assessments, including Environment Canada and Fisheries and Oceans Canada, as well as provincial departments. We try to concentrate on the efficiency portions of the Navigable Waters Protection Act — navigation, full stop.
Senator Spivak: Yes, I understand that is your primary obligation. However, as someone who has sat here through various stages of study of the Environmental Assessment Act, I am aware that there is no way of separating the Environmental Assessment Act from the triggers. One of them is Fisheries and Oceans Canada; another one is the provinces; and another one is the Navigable Waters Protection Act .
If you have any additional information to give us regarding your discussions on this issue, it would be helpful.
The Chair: Are you comfortable with that request, Mr. Roussel?
Mr. Roussel: Yes, that is fine.
The Chair: I thank you very much for coming here this morning to clarify several points.
I ask you collectively one final omnibus question. You have had an opportunity to follow our proceedings and to participate in our proceedings. Does anyone wish to clarify any points that you feel we do not understand? Otherwise, we will have closure on this topic.
Mr. Roussel: From the departmental perspective, we know that we have an amended act, not a completely new act. We know that we have specific powers under the act. We know that we have a better act and better tools to serve Canadians. Is the amended act perfect? The answer is, no.
The five-year review clause is a wonder. We will need to use it appropriately. It will be not only a legislative review but also a review of the operational portions of the act, which I am charge of. We will take great care to ensure that our review will take into account the report of this committee and everything that has been said during the eight meetings of this study. The meetings are considered special sessions because they have occurred post-Royal Assent.
I thank you, Mr. Chair and senators, for these vivid discussions and good questions. We have a lot of work ahead of us in the next five years.
The Chair: The five-year review clause and your approach to it give us comfort.
I believe that Senator Spivak and Senator Brown wish to add something.
Senator Spivak: I want to thank you as well for coming here this morning. I have no doubt that you are working in all sincerity. There is no question about that.
In the testimony, there were recommendations for improvement of these amendments. Have you looked at the recommendations? If so, what is your opinion of them? Perhaps you can let us know in writing so that if we want to incorporate those recommendations in our report, we will have your opinion.
Mr. Roussel: You are looking for my words of wisdom?
Senator Spivak: Yes, absolutely, your wise opinion.
Mr. Roussel: It is a little early to conduct a thorough analysis of everything that has been said. This debate has been long, but you have the main elements. Taking care of the stakeholder groups is key. We have reviewed that issue.
You understand, as I said in my opening statement, that there are six million recreational boaters and three million recreational boat owners. The spectrum of Canadians involved is enormous. This act looks like a small piece of legislation, but it touches many people: brothers-in-law, sisters-in-law and cousins.
Senator Spivak: Absolutely.
Mr. Roussel: We must be cognizant of that importance. This committee is fully aware of it, and the rest of the world has probably realized that this legislation is more complicated than we thought.
We cannot review the recommendations in a year. This task is a challenge. The country is enormous and the number of stakeholders is huge. This legislation is unique. We need to take that into account. There is the important element about consulting Aboriginal peoples that exists in the Constitution and affects our day-to-day activities.
We will observe how the act works in the next five years and be careful to adjust it appropriately. That is all I can say.
Senator Milne: You have spoken about a parliamentary review. Unfortunately, the act provides for a ministerial review that must be tabled in both houses of Parliament. I do not know what happens in the House of Commons, but when something is tabled in the Senate, it does not necessarily come before a Senate committee unless the committee obtains the permission of the Senate to study it.
I have concerns about that portion of the act. The intent is that the review be a parliamentary review, and it should be a full parliamentary review, but if it is only tabled and the Senate allows it simply to sit there, nothing will happen.
The Chair: We will mention that concern in our report. I am sure you would be pleased if we did.
Mr. Roussel: Yes.
The Chair: We are so open minded.
Mr. Roussel: It is privy to the Senate.
Senator Brown: You may have answered this question already, but I want to ensure that this item is on the record.
It is my understanding that the amended Navigable Waters Protection Act allows works to proceed, providing they do not hamper navigation. At the same time, the act provides for substantial penalties on a daily basis for projects that trigger complaints. Is that understanding a fair assessment?
Mr. Roussel: I missed the last portion of your question.
Senator Brown: Is it correct that the amended act provides for substantial financial penalties on a daily basis for projects that trigger complaints?
Mr. Roussel: Yes, the fine is a maximum of $50,000 per day of offence.
Senator Brown: Thank you.
The Chair: On behalf of the committee, thank you very much for coming here this morning.
It was nice to have you here, Ms. Gillen. You clearly have been listening. Your interventions were clear and helpful.
Ms. Proulx, likewise: I am sure you will go through your derogation file on your way home, and that will give us all comfort.
[Translation]
Mr. Roussel, you were present at all the hearings. We are pleased and thank you sincerely for your contribution.
Mr. Roussel: Thank you very much.
[English]
We will proceed in camera.
(The committee continued in camera.)