Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue No. 21 - Evidence - February 14, 2017
OTTAWA, Tuesday, February 14, 2017
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill S- 229, An Act respecting underground infrastructure safety, met this day at 5:41 p.m. to give consideration to the bill.
Senator Richard Neufeld (Chair) in the chair.
[English]
The Chair: Good evening. Welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
My name is Richard Neufeld. I represent the province of British Columbia in the Senate and am chair of this committee.
I wish to welcome all those with us in the room and viewers across the country who may be watching on television or online. As a reminder to those watching, these committee hearings are open to the public and also available online at the new Senate website at sencanada.ca. All other committee-related business can be found online, including past reports, bills studied and a list of witnesses.
I would now ask senators around the table to introduce themselves. I will start by introducing the deputy chair, Senator Paul Massicotte from Quebec.
Senator Galvez: Rosa Galvez, Quebec.
Senator Fraser: Joan Fraser, Quebec.
Senator Wetston: Howard Wetston, Ontario.
Senator Black: Doug Black, Alberta.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator Patterson: Dennis Patterson, Nunavut.
The Chair: I would also like to introduce our staff, beginning with the clerk to my left, Maxime Fortin; and our Library of Parliament analyst, Sam Banks.
Today we begin the study of Bill S-229, An Act respecting underground infrastructure safety. This bill was introduced in the Senate on September 29, 2016, and referred to our committee on December 6.
On February 3, our clerk sent all members of the committee a copy of the bill, along with the committee's December 2014 report entitled Digging Safely: One-call Notification Systems and the Prevention of Damage to Canada's Buried Infrastructure. I hope you have had an opportunity to review the bill and the report.
To begin our study of Bill S-229, the short title of which is "Underground Infrastructure Safety Enhancement Act,'' I am pleased to welcome the sponsor of the bill and former deputy chair of this committee, the Honourable Grant Mitchell, senator. He is joined by Mike Sullivan, Executive Director at Canadian Common Ground Alliance. Welcome back, Senator Mitchell. Thank you for joining us. Mr. Sullivan, it is a pleasure seeing you again. You last appeared before us on this very subject almost exactly three years ago. Time flies.
Gentlemen, please proceed with your opening statements, after which we will go to a question-and-answer session.
Hon. Grant Mitchell, Senator, sponsor of the bill: Thank you very much, chair, for the warm welcome. Thank you to each of you for the consideration you are giving this bill. I must say it's great to be back. I've missed this committee and working with each of you.
Bill S-229 is the direct result of work done by this committee. During the committee's study of safe transportation of dangerous goods undertaken a number of years ago, we discovered — I say "we'' because I was a member at the time — that there was only one jurisdiction in the country, Ontario, that had legislation requiring excavators — diggers — to call before they dig and owners of underground infrastructure to register their infrastructure with a call centre and to provide timely locates for excavators.
This was startling because the risks are so high when it comes to excavators, ranging from construction companies to homeowners, digging before they know what is under their feet. It is also startling that Canada should be so far behind the U.S., which has a comprehensive call-before-you-dig system, including all 50 states and the federal government.
This committee, your committee, went on to do a study of this issue entitled One-call Notification Systems and the Prevention of Damage to Canada's Buried Infrastructure. It was presented to the Senate in December 2014, and its recommendations form the basis of Bill S-229.
The underground infrastructure that we are referring to includes pipelines, electrical transmission lines, telecommunication, TV and Internet wires and cables, water mains and sewage pipes, all critical to the functioning of our day-to-day lives and our health and safety. The bill applies to infrastructure under federal lands and to infrastructure under federal jurisdiction, for example, interprovincial pipelines.
The risk of digging without knowing what underground infrastructure might be in the way is measured in enormous societal, business and economic costs, as well as the great risk of serious injury and death to members of the public.
In 2015 there were over 10,000 voluntary reports of damage to underground infrastructure in Canada, 40 damage incidents every day. That is just what is reported in a regime where there is no requirement to report. Of those, 79 per cent caused a severe disruption in service.
Some effort has been made to estimate the total cost of digging damage, unreported and reported, in Canada. Estimates run as high as $5 billion per year. Even if it's 20 per cent of that, it is still extremely significant. The cost of disruption to business, repairing the damage, deployment of first responders and environmental cleanup is extremely high.
There are many examples, and I'll cite a couple of specific incidents that emphasize the risks and costs of inaction. In August of 2016, a telecommunications line in northern B.C. was damaged, knocking out services to most of Yellowknife, including 911. One business owner alone estimated the loss of business to be around $35,000. In June of 2015, a gas line was damaged by a contractor digging in Canmore, Alberta. Escaping gas exploded, leveling two homes and damaging 15 others. Four hundred people were evacuated, 50 from a senior's home; 40 people were injured; and 3 were hospitalized.
Most, if not all, of this type of damage is preventable if excavators call for locates and owners register their underground infrastructure with call centres.
Moreover, the provisions called for in Bill S-229 — and this is one of the really good parts — will essentially cost government and Canadian taxpayers nothing and will require essentially no administrative effort from our public service. Non-profit, private-sector call centres that already exist across the country will essentially administer this program. The cost of running call centres is covered by a nominal fee of one dollar or so paid by infrastructure owners each time a call is made to a call centre by someone about to dig and asking for a locate. The cost of the locates is borne by the infrastructure owner.
There is provision for the federal government to provide grants to provinces and territories. That was a recommendation in this committee's report. That would be used to encourage the work of call centres in accommodating this legislation and building upon it in their jurisdiction. These grants are completely discretionary and would be, I would anticipate, nominal.
Bill S-229 is enthusiastically and broadly supported by industry. The Canadian Energy Pipeline Association, the Canadian Gas Association and the Canadian Common Ground Alliance, all representing many companies, are actively supporting this bill.
While this bill applies to federal jurisdiction, it is hoped that it will inspire more provinces to draft similar legislation. I've already met with ministers in the B.C. and Alberta governments to discuss this bill and encourage them to follow suit. Mike Sullivan and his organization are doing the same across the country.
Bill S-229, in summary, can enhance public safety, reduce costs to business and reduce social and environmental costs, all at no expense to the taxpayer. Thank you very much. I'll turn to Mike Sullivan for some detail.
Mike Sullivan, Executive Director, Canadian Common Ground Alliance: Thank you, Senator Mitchell. Mr. Chair and senators on the Standing Senate Committee on Energy, the Environment and Natural Resources, on behalf of the Canadian Common Ground Alliance, I wish to express my appreciation for the opportunity to address the committee today.
As you know, I am Michael Sullivan, the executive director of the Canadian Common Ground Alliance and also president of Alberta One-Call Corporation. Both are non-profit organizations.
The Canadian Common Ground Alliance, or CCGA, works to reduce damage to buried infrastructure on a national scope to ensure public, worker and community safety, environmental protection and the integrity of services by promoting effective damage prevention practices across Canada.
Once again, I come before you today to offer further support for Bill S-229, the underground infrastructure safety enhancement act, and to respond to any questions you might have about the bill.
Our goal is simple: prevent damage to underground infrastructure. When a collective goal is a single outcome, a common starting point is critical. For example, how effective would a simple stop sign be if it was a different colour and shape in every city, province, state or country around the world? It wouldn't be effective at all and the risks would be unimaginable.
Damage prevention legislation is just like that. It needs to be consistently applied across jurisdictions to be effective, and Bill S-229 delivers that by providing a consistent and symmetrical regulatory starting point and process for excavations occurring near and across various underground infrastructure governed by multiple federal agencies, something that has been long desired by damage prevention stakeholders across Canada.
The underground infrastructure safety enhancement act is based on three fundamental principles: First, federally regulated underground infrastructure must register with a notification centre or a one-call centre; second, locate requests must be made to a notification centre prior to ground disturbance; and third, response from the underground infrastructure owner in relation to those locate requests is required.
It sounds simple enough and in many respects it is, but there's a lot more to the damage prevention process than these three fundamental points, and that is the added benefit of Bill S-229.
Beyond addressing the specifics of damage prevention governance for federally regulated underground infrastructure, Bill S-229 simply makes sense and meets the expectations of Canadians by unifying the damage prevention process and providing enhanced and consistent excavation safety protocols across Canada, as well as a pathway to significantly reduce the financial burden associated with damaging underground infrastructure and to greater certainty of service from those utilities for Canadians and ultimately the ability to further prevent serious injury or even death caused by uncontrolled excavations.
The bill also further complements recently promulgated federal regulations requiring registration of underground infrastructure with a notification centre. It delves deeper into the damage prevention process, introducing mandatory notification centre and response requirements. These added elements add a layer of certainty to the safety process that, when followed, will reduce damages and will save lives.
The act also provides that federal departments governing underground infrastructure will cultivate a damage prevention mandate to further govern and promote the integrity of Canada's buried network that is so critical to our everyday lives.
There are also provisions for penalties and enforcement. However, education and awareness aimed at preventing a recurrence and not monetary penalties is the goal.
In our quest for clarity, the CCGA does have one amendment it wishes to suggest. Therefore, included with my testimony, I wish to draw your attention to clause 12(1) of the bill and request a minor amendment the CCGA believes will help clarify the three response options available following receipt of notification of a ground disturbance in the vicinity of a respective member's underground infrastructure.
The CCGA is of the view that introducing the word "or'' after clause 12(1)(a) and removing the words "any other'' in clause 12(1)(b) offers additional clarity to those governed by the legislation.
Senators, in closing, let me remind everyone that damage prevention is a shared responsibility. Nationwide damage prevention legislation protecting all underground infrastructure in Canada does not exist but, over the past four years, this standing committee has opened the door for the CCGA to realize this critical and pivotal goal. By influencing the development of balanced legislation across all jurisdictions, requiring buried infrastructure to register with a notification centre and excavators to request a locate from the notification centre prior to any excavation, this standing committee will bring positive change to the damage prevention process in Canada.
Bill S-229 is the type of smart policy that all decision-makers can get behind. It will save taxpayers hundreds of millions of dollars in repairs and societal costs, enhance public, worker and community safety, and, ultimately, you will save lives, all with inconsequential costs to government.
On behalf of the Canadian Common Ground Alliance, its board of directors, the Canadian Common Ground Alliance regional partners, the thousands of damage prevention stakeholders across Canada and the millions of Canadians who rely on the integrity of this great nation's buried infrastructure, thank you again for the opportunity to appear before the committee, and I urge you all to help me bring Bill S-229 to the finish line.
The Chair: Thank you, gentlemen, for those presentations.
Senator Massicotte: Thank you, Mr. Sullivan, and thank you in particular to Senator Mitchell. This is very good work on your behalf, not to suggest that your other work is not very good. This is a good initiative.
Do you agree with the amendments to the bill that Mr. Sullivan is proposing?
Senator Mitchell: I do. It's actually designed to make the English parallel the French, as much as anything. There was just concern on the part of some of the industry that the implied "or'' — this is pretty specific — wasn't adequate.
Senator Massicotte: One other minor question: When I look at the bill and read interpretations and definitions, "damage prevention organization'' means a non-profit organization. Why non-profit? Why not "an organization''?
Mr. Sullivan: Traditionally across Canada, damage prevention notification centres, one-call centres, have all been non-profit. In one case or maybe two cases going back a little ways, the board of directors was non-profit but the entity running the one-call centre was for-profit. Whether that was the right mix is debatable. In my professional opinion, having done this for a long time, the non-profit element of damage prevention ensures that you're always getting the best available, whether it's technology-wise, system-wise or process-wise, for the safety of the underground infrastructure and also for public safety. There's no element of profit that is going to fill somebody else's pockets. You're filling the pockets for safety.
Senator Massicotte: I'm not sure I agree, because non-profit means you're not going to make any money. Sometimes companies have more money to spend. I don't understand why you have that limitation, but be that as it may.
When I read the act, I have the understanding that anybody — I forget the right words — who is going to dig beyond the X centimetres that you describe under your definition must call the centre. If I'm sitting in the Arctic Circle up in Churchill, very far north, in the middle of nowhere, I cannot dig beyond 42 centimetres. Maybe it's permafrost; maybe I'm fishing. Am I reading that right? Does anybody, even if they're in the middle of nowhere, have to find a cell and call before they dig?
Senator Mitchell: First of all, there isn't a call centre for the North yet. It remains to be seen. It's a good question. Essentially, you would have to call and they would tell you right away you have nothing to worry about there. And that wouldn't cost anybody anything.
Senator Massicotte: That's about it, chair. Thank you very much.
Senator Griffin: I have a couple of questions. It seems like a no-brainer to me, not a problem. What are you hearing from any sources of a downside of this proposed legislation? Is the other penny going to drop? What are you hearing?
Senator Mitchell: One of the most significant parts of this bill is the support from industry. It is industry who, on the one hand, bears the cost of the damage that occurs and, on the other hand, pays for this process. That is a telling observation. By and large, industry is extremely supportive of this, the pipeline industry, the telecommunications industry and so on. I don't really see that there is any downside to it at all. I know that sounds remarkable.
Senator Griffin: That's why I'm asking.
Senator Mitchell: There is really nothing but upside. The question that may follow from your observation is, why haven't we done this sooner? Why haven't we kept up with the United States? There are a lot of reasons to do this, as we've outlined. We're trying to break through that delay by doing this and just get it done. There just seems to be upside.
Senator Griffin: Okay. What percentage of the underground infrastructure would this bill be applicable to?
Senator Mitchell: It's very difficult to assess that, but the federal government is the largest landowner in the country. This would cover national parks, Crown lands, ports, airports, military facilities, which is a huge amount of land as well. If somebody wants to dig on this property, they'd have to call. With the government building we are in this afternoon, meeting with government officials on this very bill, the parking lot, if somebody wanted to dig there, all of that is covered. It's an enormous amount of infrastructure.
What percentage of that compared to the rest of the infrastructure that comes out of provincial jurisdiction? I don't know that we know.
Mr. Sullivan: In terms of the actual linear kilometres, it is enormous. If we were to look at telecommunications infrastructure and the number of kilometres that we'd be looking at, a footprint of one city, whether it's Ottawa, Calgary or Montreal, I don't know if I have that much data. Alberta One-Call receives data updates on a monthly basis from TELUS. To run that data takes about 18 hours every month because there's just so much of it, as opposed to if it was a transmission pipeline that might cross the province, which could take 10 minutes. It shows just the disparity between the linear kilometres of infrastructure that is federally regulated.
Senator Griffin: Thank you.
Senator Fraser: Thank you very much. Just about everybody thinks this sounds absolutely fantastic, but I have a couple of picky questions.
In terms of your amendment, changing "any other'' to "and'' seems like a good clarification. My understanding of legal drafting is you don't have to add the "or'' that you're proposing to add. If a bill says something says "A, B, or C,'' the other "or'' is included. We might ask the clerk to do a very quick check with table officers to see if there is any reason why they might object. I can understand that to a construction person caught on the fly, it would be nice to have the extra "or,'' but given that legislative drafting is the most arcane field imaginable, maybe we could just check that there's no downside to including that.
Senator Mitchell, I'm confused about a couple of things. First, in your remarks, you said no fees, except maybe a dollar a call, something like that. Then when I read the bill, it basically says that most times no fees at all. I don't see any reference to a dollar a call or some modest thing like that.
Senator Mitchell: I'll refer that to Mike.
Mr. Sullivan: The way it works, to place your locate request, there's no cost. You can do it all day, every day, because you're digging. There's no cost. When the one-call centre receives that request, it processes it using the mapping software, which will tell us that in the vicinity of that excavation, you've got one, two, ten different companies, whether it's fibre optic, sewer, pipeline, water, whatever it is. They are notified, and they pay the one-call centre per notification. So every time they're notified, they pay the one-call centre. As you can imagine, the closer you are to the centre of any major municipality, the more notifications you're going to receive.
To give you an example, Alberta One-Call processes roughly 500,000 locate requests per year. We notify an average of 4.1 times per locate request. That's how we make our revenue, based on the notification fee.
Senator Fraser: Okay. Assuming this system takes hold, is that going to place great demands on the capacity of the notification centres?
Mr. Sullivan: No, it will not.
Senator Fraser: In paragraph 12(5), you talk about a fee fixed by regulation. If the operator was required to respond to multiple notifications related to the same ground disturbance but didn't in fact do the ground disturbance, how many is "multiple?'' I didn't find a definition of "multiple.'' It seems to me you could be in deep trouble there.
Mr. Sullivan: If I understand it, it's under 28(c) apparently.
Senator Fraser: It's on page 7 of the copy of the bill I have.
Mr. Sullivan: Yes, but fixing the fees is under the regulations in 28(c), and multiple notifications is addressed in that section.
Senator Fraser: Is it?
Mr. Sullivan: Yes.
Senator Mitchell: It's designed to prevent diggers from being frivolous and a nuisance.
Senator Fraser: I understand that. I just wanted to know. So we still don't know what "multiple'' is except that we give the Governor-in-Council the authority to determine what multiple is.
Mr. Sullivan: Yes, by regulation.
Senator Fraser: On the basis of your experience, how many would you expect "multiple'' to be? This doesn't bind anybody to anything. I'm just trying to learn.
Mr. Sullivan: Six might be valid, and two might be invalid. It depends on the nature of the situation, and also the party requesting to locate. There are some parties out there that will abuse the system, and we know who they are. If it's a situation like that, six might be four too many.
Senator Fraser: Thank you very much.
Senator Galvez: Thank you very much. It's true it seems to be an easy one.
The efficiency of the one-call service is going to be based on the accuracy of the inventory of the underground infrastructure and the cartography. I didn't find a place where it says whether it's on-service infrastructure, out-of- service infrastructure or both of them. Depending on whether we are talking about petroleum pipelines or aqueducts or water, we can find many underground infrastructures that are not in service and it could be there but not necessarily in your inventory.
Senator Mitchell: It's a very good question. Most of that infrastructure will still be owned. You're saying infrastructure that's no longer being used versus infrastructure that is being used?
Senator Galvez: Yes.
Senator Mitchell: Most of it will still be owned, so there will be some company to come out and locate it. You still don't want to break it, even if it's an empty pipeline. It's a very good question.
There is a phenomenon where, for example, pipelines are sold and resold and resold by energy companies or pipeline companies. Three or four sales later, it may be that they're not absolutely certain where it is, which is why it's very important that these companies be required to register this information with the call centre so that there is a repository of it, it is protected and it can be referred to.
Just as an aside, if there is complete and good information — and it will take some time to get there — then the call centre can say there are no pipelines around there, and I'm thinking of the North, so there's no need for to us say, "Okay. Go ahead and dig,'' making the process even more efficient.
Senator Galvez: Thank you very much for your answer.
Apart from the code, depending on the type of infrastructure, are you going to give some notice about the priority or dangerousness on specific underground infrastructure? It's very different if you punch aqueduct water than if you hit an electrical line or pipeline. Apart from the type of infrastructure, are you going to define also by priority or by dangerousness?
Mr. Sullivan: The simple answer is no. You're absolutely right: the consequence of damaging whatever might be beneath the ground can be very different. However, until we identify what is below the ground in the vicinity of that infrastructure, then it really depends on that owner. All we do is notify, whether it's the City of Montreal, Enbridge pipelines, Gaz Métro or whoever it might be. Once they receive notification that something is going to be occurring near their infrastructure, it's up to them to protect it. That is their opportunity. They've been notified. It's now their opportunity to do exactly what you're suggesting, to communicate the consequence and mitigate the danger.
The Chair: Who pays for the orphan pipelines and those kinds of things? We all know that they're around. Alberta and British Columbia both have orphan well funds, but for pipelines, who pays?
Senator Mitchell: Who pays the dollar for the call?
The Chair: Yes, for an orphan. No one knows who the owner is, and they are there.
Senator Mitchell: I expect the call centre will have to eat it.
Mr. Sullivan: Technically, yes, or it could be the regulator of that underground infrastructure. For example, for orphan pipelines under the Alberta Energy and Utilities Board, there's an agreement there that they do something with that. I'm not sure exactly who pays, but we continue to notify.
The Chair: I don't know who you notify when no one knows who owns it, first off.
I could see that being drug out for quite a while. It's easy to say it's maybe this organization or that organization, but that's something you should put your head around to figure out how you actually handle it, so that if someone wants to go in and do some work, they can get a response or get someone to come out and actually mark where the lines are. That is just a suggestion.
Senator Seidman: Thank you very much, Senator Mitchell, for your initiation of this piece of legislation. It is indeed the case that I was part of the committee when we examined this issue and wrote our report on its importance. I'm pleased to be here today to ask you a couple of questions about the legislation.
First of all, if I can just ask about the data that you referred to in your presentation, just to understand what it means. You say that in 2015, there were over 10,000 voluntary reports of damage to underground infrastructure. Where did that data come from? Is it 10,000 on federal lands, which would mean there would be more?
Mr. Sullivan: Those voluntary damages are reported into a system that's called — you're going to love this — DIRT, the Damage Information Reporting Tool. There's no one owner, but the Canadian Common Ground Alliance manages it, to that effect.
Those are not just damages on federally regulated underground infrastructure. It could be anything. We know, however, that those damages are not three or four times reporting the same damage.
The other part of your question was about the data. Ten thousand were voluntarily reported across the country, and the societal costs, as Senator Mitchell mentioned, could be just the repairs, which are very nominal costs, but the other societal costs could be evacuations, emergency response, environmental contamination, loss of business, loss of data, and the list goes on.
For example, we figure there's about $300 million worth of damage in Alberta alone, whereas across the country, it would easily be over a $1 billion and could be as high as $5 billion.
Senator Seidman: These are voluntary reports of damage. We should emphasize that as well.
Mr. Sullivan: Yes.
Senator Seidman: That leads me to my next question. I must say I must be remiss because I'm not sure if I noticed in the legislation any compulsory kind of data collection system.
Mr. Sullivan: There isn't. We actually struggled with that, whether or not to include it. At the end of the day, we did not include it. There are a few reasons for that, but generally the reason is that when you have a voluntary system, the data tends to be far more real. So even though it might not be everything, the data we're capturing is far more real.
Senator Seidman: What does that mean, "far more real''?
Mr. Sullivan: The reasons for the damage, mitigating measures. We can find out who did it. We don't care why. Well, we do care why, but we're not out there to lay blame. That was another reason why we didn't include it. The damage reporting wasn't to be used as a tool to lay blame. It was to be used as a tool to prevent a recurrence.
Senator Seidman: That's helpful.
Mr. Sullivan, moving right along to the very end of the process, you say in your presentation to us that the act provides that federal departments governing underground infrastructure will cultivate a damage prevention mandate to further govern and promote the integrity of Canada's buried network. What does that mean exactly?
Mr. Sullivan: I'll give you an example. I used to work with the National Energy Board for many years. The NEB has a very strong damage prevention mandate. It requires its governed pipeline companies to promote awareness and education of the presence of the pipeline and how to work and live safely near it and what to do in the event of an emergency. It's the only regulator of any underground infrastructure that I'm aware of that requires that.
If we had a similar provision, a damage prevention mandate, for fibre optics or signals and communications near railways or anything of that nature, then we're all promoting that same click before you dig or call before you dig and make that initial trigger to trigger the rest of the damage prevention process, then the outcome would be far greater, far better.
Senator Wetston: Thank you for the information that you're providing today. I appreciate it.
Mr. Sullivan, I used to work for the National Energy Board too, but it's very clear I worked there before you worked there. I was there when Chairman Edge was chair. I was associate general counsel at the NEB. That dates you, obviously. I agree that the NEB is a progressive regulator and has done a lot of good things on the safety side, particularly with stranded assets. That's kind of getting close to your question, chairman.
How close is this legislation to the Ontario legislation? Is it similar? Are there differences? If there are, what would the major differences be?
Mr. Sullivan: It is similar. At the end of the day, we're really asking for the same thing for federally regulated underground infrastructure — that it be registered and that locate requests and responses be mandatory. It's not a difference. It's more of an added benefit of this bill. As we go to a little more depth, we want the information, the registration data that goes along with that mandatory registration requirement, to have a little more integrity, if you will. It's not just simply saying you must register with the one-call centre. You must register, but it has to register like this.
There are reasons for that. We're looking for the longevity of this bill. Data is king. The better data we have, the better likelihood that we can begin to streamline the process without compromising the integrity of the underground infrastructure. It's perhaps a little bit more robust from that perspective.
Senator Wetston: This bill, as you suggest, would cover interprovincial pipelines, hydroelectric, transmission lines, I suspect. There's even a steam pipeline between Ontario and Quebec, as you may recall. The NEB regulated it, strangely. In that context, you're not just dealing with federal land.
Mr. Sullivan: No.
Senator Wetston: As you know. You'll be dealing with a lot of provincial land and private land. I wanted to get a better sense of the application of this bill in that context.
Mr. Sullivan: This is where this bill presents some of the same requirements of the NEB's Pipeline Damage Prevention Regulations, which were recently released — I mentioned that in my presentation — back in June. They essentially replaced the Pipeline Crossing Regulations that had been there since 1988, and now the new regulations require registration with the one-call centre, where those centres exist. That's where the commonality exists.
For the NEB, their jurisdiction is 30 metres from the pipe in the prescribed area, as it's called now. It used to be referred to as the control safety zone. So if Joe landowner is working within 100 feet, 30 metres, of that pipeline, he would have to request a locate. Prior to the DPR, the Damage Prevention Regulations, coming out, they could request that locate directly from the pipeline company but now they have to do so from the one-call centre.
In that perspective, there is a consistency between the two pieces of legislation, and this bill applies to all federally regulated underground infrastructure. If they're working, they don't know where the buried infrastructure is, so they have to find out, and how they find out is making that locate request. Whether it's Enbridge or Bell or TELUS or Shaw that's notified, it's up to them to prevent the damage to their infrastructure.
Senator Mitchell: They will be calling the same call centre. It's transparent to them. If there's something there, they call it, whether it's provincial or federal.
Senator Wetston: I'm trying to understand who the underground infrastructure owner might be in an interprovincial context and then who has the legal responsibility to do what's being suggested in the bill, particularly when you have offence provisions in the bill.
You're providing a due diligence defence, and I would question why you're doing that, given the nature of the kind of offence that you're talking about here. We all recognize there are different offences. It's not mens rea and it's not absolute, so you're giving a due diligence defence. I don't know why you're providing that for this. Maybe there's a good rationale for that. I'll leave it with you.
I'm trying to understand how you deal with that situation because it's not necessarily the federal government that is the underground infrastructure owner.
Senator Mitchell: Not at all.
Mr. Sullivan: No, but in this case, the interprovincial pipeline would be regulated by the federal government, in a sense, with NEB. So therefore they would fall under this bill.
Senator Wetston: So they don't have to own it, I guess that's the point.
Mr. Sullivan: They're governed by it.
Senator Wetston: I would ask to you think about the due diligence issue. You get it anyway; you don't need to put it in. Why put it in for this? Maybe Justice would disagree with me.
Senator Mitchell: I think it's in there for the comfort of industry, because they're doing their best, as it were.
Senator Wetston: But the law operates, in any event.
I wanted to ask one other quick question. What if, in this context of the offence provision, you don't get a response from the underground infrastructure owner? I liked Senator Massicotte's question. If I'm up in the tundra, who do I call? I don't have any battery life left. Suddenly now I'm going to be prosecuted, and now I'm going to rely on my due diligence defence because my mobile phone lost battery power. I realize I'm being a bit dramatic here, so forgive me. But what if the owner doesn't respond?
Mr. Sullivan: The bill says they have to, obviously. It says that. If they don't, then they could be facing penalties as well. Depending on who they might be governed by, as I understand it, the regulating agency or the department for that infrastructure would be the one that would be pushing to have the penalty —
Senator Wetston: My only point is you have to be very careful with legislation being overbroad and as a result of that not having applicability, and therefore not being able to be enforced, which led me to the question you were raising before. That's another issue.
What does Ontario do for this? Does it have a similar provision?
Mr. Sullivan: They have —
Senator Wetston: I'm not challenging you. But being an Ontario senator, I'm interested in that.
Mr. Sullivan: I'm answering to the best of my knowledge, but it might not be completely correct. I know that they have an MOU or something with the Technical Standards and Safety Authority, the TSSA, and their inspectors have the ability to fine, to a certain dollar amount.
Similarly, for federal regulated, the administrative monetary penalties provisions came out a couple of years ago, which is more broadly applied than the NEB with the sections they have in their act, 49 to 51, I think. The opportunity to fine anybody within those sections of the NEB Act are so narrow, I don't think it's ever happened.
There are better tools today than there were even just five years ago for enforcement and penalties.
Senator Wetston: Thank you.
Senator Mockler: To follow up on Senator Wetston's comments and questions, are we not duplicating what other provinces or jurisdictions are doing? When I was looking at the bill, I was thinking, for example, of New Brunswick Crown land.
Mr. Sullivan: The short answer is no, not provincially. For example, Ontario is anxiously hoping we get this because now they would have literally full governance over underground infrastructure in that province.
There is the duplication, perhaps, with the NEB's Damage Prevention Regulations where it says their governed pipelines must register with the one-call centre where they exist. That's very new language. It was promulgated just back in June. We are knowledgeable that we have duplication there, but our bill goes much further than that. It doesn't conflict, in our view, but it goes even further than that.
We have a provision in here that if there is a conflict between this bill and the NEB Act, then the NEB Act would prevail. The reason why we've kept it in this bill and we haven't pulled it away is the digging community across Canada — I say that from the professional excavators or landowners across the country — who are supporting this bill. They are looking for that all-inclusive requirement, that symmetrical, parallel governing language that applies to all underground infrastructure. We have to look at it from a federal perspective first.
Senator Mockler: What about the agricultural community? Have you had any concerns flagged by them?
Mr. Sullivan: No. With my board of directors, the Canadian Common Ground Alliance, I have 25 members on my board. The Canadian Alliance of Energy Pipeline Landowner Associations is on that board of directors. This is an organization that has been very engaged in various NEB regulated matters over the last 20 years, and we've been working with them. In fact, their lawyer was probably the most heavily engaged party, outside of our own, that worked with us to make sure the language was absolutely going to fit perfectly with the NEB requirements.
Senator Mitchell: Essentially, we determined the level to which you can plow, and you don't have to call.
Mr. Sullivan: That's right.
Senator Mitchell: So it protects agriculture.
Senator Mockler: I have a supplementary. With that said and looking at some of the parameters that you've identified, do some buried infrastructure sectors such as telecommunications — you mentioned it — or municipalities resist mandatory membership in the notification centre? I know a case in Atlantic Canada where this has happened.
Senator Mitchell: That's a very interesting point. The municipalities do tend to resist this, but federal jurisdiction doesn't have many municipalities so it's not a huge issue, we would argue. Certainly you have Banff and Jasper, and they would come under this, but you don't have a broad range of municipalities.
Ironically, they are concerned about cost generally, but the cost of not doing this outweighs — the cost of them having to locate, for example, is nothing compared to the cost of the breaks and the damage that's done as a result.
Senator Fraser: Plowing. I betray my ignorance here, but back when I was a small household gardener, I quite often dug down below 45 centimetres, depending on what I was trying to do. What is the average normal depth for plowing a field?
Senator Mitchell: The 45 centimetres does it. As an example, there were two people killed in Edmonton, where I live, in 2002. They were pounding rebar in their backyard and hit a gas line. The gas seeped into their house and eventually blew up and killed them. It's better to be safe than sorry in any event.
Senator Fraser: I was just thinking about digging.
Senator Mitchell: But it's plowing.
Senator Fraser: You figure 45 centimetres does it?
Mr. Sullivan: Yes. We mirrored the NEB's requirements in that regard to maintain that consistency. Working with not only the language from the NEB but also with the lawyer from the landowner association I mentioned moments ago, we made sure that what we're going to have in here satisfied the agricultural community, and it does.
The Chair: Senator Patterson has the next question, and I should suggest this is the guy you phone. He lives in Iqaluit. If you want to know anything about Iqaluit and where the pipes are, phone Dennis.
Senator Patterson: Speaking of the territories, the act doesn't apply to the territories, in my reading of it. The territories cover about 40 per cent of the landmass in Canada. They're underpopulated, but they do contain a very high proportion of federal Crown lands.
You mentioned the cut to the fibre optics line that impacted Yellowknife. I think that happened in Alberta or B.C. But as we speak, the government of the Northwest Territories is building fibre optic line from Yellowknife to Inuvik — a huge distance. Yukon has an extensive fibre optic line there.
Have you given up on the territories ever having a call centre? I know the territories don't have call centres right now, but the bill says that you have to report digging: "You must register underground infrastructure with the notification centre of each province.'' It doesn't say "each province or territory.'' I'm hoping that maybe someday the territory will have a call centre.
Senator Massicotte asked about digging in Churchill. That's in Manitoba, but if you move a little further north — by the way, there is talk of building a hydro line from Churchill north into the Keewatin region. There is talk of building fibre optic lines from various locations in southern provinces into the territories. This great piece of legislation won't apply. Did you think about that?
Mr. Sullivan: I apologize if I'm wrong here, but my interpretation is that the only reason it wouldn't apply to the territories today is because there isn't a contact notification centre that has any jurisdiction there, for example.
One of your questions was: Is there a plan to have one? I took over Alberta One-Call over five years ago, and now Alberta One-Call operates Manitoba, British Columbia and Saskatchewan after hours. Our goal is to provide those services to the territories as well. There's no reason why we couldn't. All it takes is some willingness on behalf of the underground infrastructure owners up there to work with us to do so. We've reached out to them a number of times. To make that happen? Four months. We can make it happen.
My view is that the only reason the bill doesn't apply today is because there isn't a notification centre that has any members in the Yukon or any of the territories.
Senator Patterson: I understand that, but if it could be done quickly and relatively easily, why wouldn't we say "notification centre of each province or territory in which the infrastructure is located''?
Senator Mitchell: That's a good point.
Senator Patterson: As I say, that's 40 per cent of Canada. We don't have many people, but we have a lot of federal lands and we have quite a lot of federal infrastructure. By the way, it's pretty vital stuff, as Senator Mitchell's presentation pointed out.
Senator Mitchell: We could certainly consider an amendment in that regard. That's a good point. We will. Thank you.
Senator Patterson: One other quick one, if I may. It doesn't apply to underground infrastructure on reserves and land under the Indian Act. Could you explain why that is?
Senator Mitchell: Yes. We were concerned that we would be imposing a regime on Aboriginal peoples. We met with AFN, for example, and discussed that. What we decided we would do is open the possibility for them to choose. So it's open, but we're not forcing them to become part of it. We would argue that it's in the interests of their communities to be part of this, but we just felt it was not appropriate for us to impose that on Aboriginal peoples. That would be their choice.
There are hundreds of bands, reserves and so on, and some work has been done in Alberta, I think, and in the West. You have to do one band at a time, so it would be a big effort. We just felt, given the nature of the relationship, that we weren't in a position to impose it.
Senator Patterson: When we studied this, I recall that there was some concern that telecommunications companies weren't with the program, shall we say. But I note they're certainly clearly covered in the bill. We have now, especially with fibre optics I think, some very vital infrastructure in this country, not to mention cable and other. Is this legislation going to be welcomed or followed by telecommunications companies? Have we made some progress, if I'm right about some resistance?
Senator Mitchell: Not to mention any names, but three of the major ones are fundamentally behind this and one of them isn't — the fourth. That's not a particularly tenable situation, but already, because of this bill, we've noticed that representatives of that company have been at a conference. We're doing conferences all across the country. Mike and I will be in Quebec next week, doing one there. That suggests that they're warming up to the idea in any event and anticipating that this legislation would apply to them. By and large, the industry — certainly the biggest part of it — is very much in favour of this.
Mr. Sullivan: If I can add to that, Ontario brought in their legislation. The company that Senator Mitchell is referring to was one of the first to register.
Senator Mitchell: So it got them onside.
Senator Patterson: I'd like to just quickly congratulate Senator Mitchell. I think every senator involved in a study hopes the study will lead to change, and we have it here through one of our colleagues. I know you've worked very hard on this, with passion, and I'm delighted to support the bill.
Senator Mitchell: I want to thank you very much. I want to say that, being on this side of the table and listening to the questions, I'm very impressed by the quality of the questions and the analysis, and you've made us think of a number of things. Thank you very much for your consideration of this.
Senator Massicotte: I have three minor technical questions. The depth of the plowing worries me. You remember we had, I think, the Quebec UPA that did not agree with the National Energy Board's depth of the plow because they're saying that, when they go over the pipeline, they go deeper than the NEB reference you made. Did you talk to them? Are you very sure? It would be a significant hindrance if they had to call every time they were plowing a field because most of this infrastructure is on their lands, but they have to plow them. Are you very comfortable that the adequacy is there relative to the centimetres?
Mr. Sullivan: For deep plowing, I worked with Alliance Pipeline for eight years, applying a lot of the knowledge I had from the NEB to that pipeline company. It crossed a lot of agricultural land across Alberta, Saskatchewan and into the U.S. That pipeline was built deeper in the U.S. to accommodate deep plowing. It's not even plowing anymore; it's deep ripping.
When we're talking about plowing, that's one thing. Does it meet the expectations for plowing? Yes, it does.
Senator Massicotte: The farmers are happy?
Mr. Sullivan: Have we spoken to the UPA specifically? No, they have not engaged us at all. We addressed transparently twice with the landowner association. They got back to us to make sure we were consistent with the NEB. Again, that's for deep plowing. My knowledge of deep plowing from my pipeline experience is that it's adequate. If we're talking about deep ripping, that's something else.
Senator Massicotte: Let me jump to another issue. On page 3 of the act, you talk about exclusions, underground infrastructure for a non-commercial basis. This act does not apply to underground infrastructure that's privately owned and does not operate on a commercial basis.
I'm thinking of those words. Let's go through this. The sewer pipe and the electrical wire coming into my home are owned by me. Therefore, that's excluded. The natural gas that's connected to my home is owned by a private company. It's not the government. When we use the word "private,'' it's not whether it's a private company. Anything not owned by the government is considered private. That natural gas pipe connected to my home is not operated on a commercial basis. It's just for me. I'm not using it to resell. The same thing would go to other forms of infrastructure.
If I interpret that correctly, that means that there's a major omission and a major cause for error, and all of those pipes are privately owned and are not being operated on a commercial basis. They're servicing my home, which is a residence.
Mr. Sullivan: And they're not federally regulated either. That would be where the initial gap would be. They wouldn't be federally regulated. They may be provincially or even municipally governed, but not federally regulated.
The intention of that exclusion was that, as a private homeowner, if I have my home and then my barn and my quonset, if I have utilities running between them but I'm on federal land or on Crown land, for example, or whatever the case might be, reserve land perhaps, if they wanted to register, they wouldn't have to register that privately owned infrastructure. It doesn't preclude them from doing so. If we have a landowner that wants to register their private underground infrastructure with Alberta One-Call, they certainly can. If they're selling it, they certainly could do that.
Senator Massicotte: So I am interpreting it right. Okay, thank you.
Senator Fraser: Royal recommendation? I'm assuming that your requirement here for the governor to have recommended the appropriation of monies in Parliament, to have appropriated them, is what has become pretty well standard boilerplate cover to avoid any conflict with the House of Commons over who has jurisdiction. Am I right about that? We are not expecting this to cost Parliament money?
Senator Mitchell: No, we're not, unless they choose to do that, because we do provide for grants to promote the efforts of call centres. We're not anticipating very much. I think, in our study, we came across $50,000 or something because there is some precedent for that in the United States, where it's slightly different. I don't think this will run; it's purely at the government's discretion.
Senator Fraser: And this is just the standard head-off-conflict-at-the-pass kind of thing?
Senator Mitchell: I expect it is. Yes.
The Chair: Thank you, gentlemen, very much for your presentations and your answers, and I thank everyone for their questions. Senator Mitchell, thank you for taking this forward. It was your idea to bring it to our steering committee to do a study on it, and you've taken it through to legislation. We wish you the best of luck in the next step that you have to do, to work with the people across the way in the other place.
Senator Mitchell: Thanks, chair. Thanks to all of you. It was very invigorating.
The Chair: Before we go, I just want to remind everyone of tomorrow night's reception with Minister McKenna. I think everybody has the address and whatnot. Somebody asked me today about transportation. Arrange your own. Get a taxi or walk, one of the two.
Also, if you haven't done so already, by the end of today, provide Maxime with suggested site visits in Eastern Canada. We have a number of suggestions about where we go over there, but, if there are any more, please send them to Maxime. The steering committee will meet tomorrow. You still have time. We're not going to totally settle what's going to happen tomorrow because we have to get these ideas out, but, as you think about it, please, the sooner the better.
Senator Griffin: Yes. I have suggestions.
The Chair: That's great. That would help us.
Senator Patterson: Mr. Chair, sorry, I should have asked earlier, but what will our process be with respect to this bill?
The Chair: We're not going to do clause by clause because, right now, Senator Mitchell has to work with the other place a bit to do whatever he has to do to get the blessing. When that is done, it will have to come back to us to do clause by clause and the amendments, and then we'll send it off to the house.
Senator Patterson: Very good. Thank you very much.
The Chair: That's what I understand will take place.
Senator Mitchell: Thanks for your patience.
(The committee adjourned.)