Proceedings of the Standing Senate Committee on
National Security and Defence

Issue 2 - Evidence,  March 29, 2004

OTTAWA, Monday, March 29, 2004

The Standing Senate Committee on National Security and Defence met this day at 6:00 p.m. to examine and report on the need for a national security policy for Canada.

Senator Colin Kenny (Chairman) in the Chair.


The Chairman: It is my pleasure to welcome you to the Standing Senate Committee on National Security and Defence. Having returned from a trip to Washington, where we met with our Congressional counterparts as well as senior U.S. government officials, we will hear testimony this evening relating to border issues. My name is Colin Kenny. I am a senator from Ontario and I chair the committee. We have Senator Michael Forrestall from Nova Scotia. After an early career as a journalist with the Halifax Chronicle-Herald and as an airline executive, he entered politics and was first elected to the House of Commons in 1965. He has served the constituents of Dartmouth for more than 37 years. He has followed defence matters throughout his parliamentary career and has served on various parliamentary committees.

Senator Jim Munson is from Ontario. He is best known to Canadians as a trusted journalist and public affairs specialist. He was nominated twice for a Gemini for excellence in journalism. He reported news for close to 30 years, most recently as a television correspondent for the CTV network. After a brief period of consulting with the Minister of Indian and Northern Affairs, he joined the Prime Ministers Office, first as special communications adviser and then as director of communications. He is also a member of the Standing Senate Committee on Internal Economy, Budgets and Administration and the Standing Senate Committee on Official Languages.

Senator Atkins is from Ontario. He came to the Senate in 1986 with a strong background in the field of communications. He also served as an adviser to former Premier Davis of Ontario. He is a graduate in economics from Acadia University in Wolfville, Nova Scotia. He received an honorary doctorate in civil law in 2000. During his time as a senator, he has concerned himself with a number of education and poverty issues. Also, he has championed the cause of the Canadian Merchant Navy veterans. He is a member of the Standing Committee on Internal Economy, Budgets and Administration and of the Subcommittee on Veterans Affairs.

Senator Michael Meighen is also from Ontario. He is a successful lawyer and businessman who contributed to a wide range of charitable and educational institutions. He is the Chancellor of King's College University in Halifax and was appointed to the Senate in 1990. He has a strong background in defence matters and is the Chair of our Subcommittee on Veterans Affairs. He is also a member of the Standing Senate Committee on Banking, Trade and Commerce and the Standing Senate Committee on Fisheries and Oceans.

Our committee is the first permanent committee mandated to examine security and defence. Since the committee's inception in mid-2001, we have completed a number of reports, beginning with ``Canadian Security And Military Preparedness.'' This study was tabled in February 2002. It examined the major defence and security issues facing Canada. The Senate then asked our committee to examine the need for a national security policy. So far, we have released four reports on various aspects of national security: First, ``The defence of North America: A Canadian responsibility,'' in September 2002; second, ``Update on Canada's Military Crisis: A View from the Bottom Up,'' in November of 2002; third, ``The Myth Of Security At Canada's Airports'' in January 2003; and fourth, ``Canada's Coastlines: The Longest Under-Defended Borders in the World,'' in October 2003.

Now the committee is continuing its long-term evaluation of Canadian security and defence policy and anticipates tabling its next report, on first responders, very shortly. Our witness tonight will be the Right Honourable Herb Gray, who is here tonight as the Chair of the Canadian Section, International Joint Commission, a post he has held since January 2002. Mr. Gray was a distinguished member of Parliament for nearly 40 years and served in a variety of cabinet positions, including Solicitor General and Deputy Prime Minister.

Welcome to the committee, Mr. Gray. I understand you have a short statement you would like to make.

The Right Honourable Herb Gray, Chair and Commissioner, Canadian Section, International Joint Commission: Mr. Chairman, I have taken note of the report you mentioned, entitled ``Canada's Coastlines: The Longest Under- Defended Borders in the World.'' I would like to tell you about further measures that I believe are needed to ensure the safety and security of some 15 dams and other structures that the International Joint Commission oversees in waters along the U.S.-Canada boundary and waters that cross that boundary.

If you look at the map at the back of the 1998 IJC report entitled ``Unsafe Dams?'' you will see that these structures include dams and related power generation facilities that stretch across the border on the St. Croix and St. John rivers between New Brunswick and Maine, the international section of the St. Lawrence at Cornwall and Massena — the entrance to the Seaway — the St. Mary's River at Sault Ste. Marie and on the Rainy River system in Northwestern Ontario. They also include the Peace Bridge between Fort Erie and Buffalo, as wells dams in Canada on the Kootenay and Pend-d'Oreille rivers and dams in the United States on the Columbia — I am referring to the Grand Coulee Dam — and Okanagan rivers.

Also not depicted on the map, but subject to commission orders, are the ice booms on Lake Erie where it goes into the Niagara River and on the international section of the St. Lawrence.

Also not mentioned on the maps are the major structures on the Milk and St. Mary river systems, which form or cross the Canada-U.S. boundary in Western Canada between Montana and Alberta/Saskatchewan. They provide the water for the irrigation of hundreds of thousands of acres in Southern Alberta and Northern Montana.

One of the International Joint Commission's responsibilities under the Boundary Waters Treaty of 1909 is to respond to applications to issue orders of approval for the construction of projects in, over or under rivers and lakes that flow along or across the Canada-United States border — projects that can affect water levels or flows in the other country. There have been very few applications for new structures since the 1960s, when the St. Lawrence Seaway was completed. However, the IJC oversees, through control boards reporting to the commission and created under commission orders, the operation of the structures I mentioned. This is done to ensure that their operations follow requirements for water flows and the apportionment of water that the commission originally imposed as conditions for allowing the projects to be built in the first place.

In 1998 — almost six years ago — the commission recognized the potential transboundary and domestic impacts of a dam or bridge failure on the border for whatever reason. Therefore, it advised the Canadian and U.S. governments in that year, in the report entitled, ``Unsafe Dams?'', that none of the structures that the commission oversees in Canada involving boundary waters were subject to regular Canadian federal safety inspections. They also did not all have continuously updated emergency protocols that, at the same time, were regularly tested. The report also noted that most of the portions of the structures in the United States were being inspected by U.S. government agencies, principally the U.S. Federal Energy Regulatory Commission, FERC, and the U.S. Bureau of Reclamation. In some cases, where dams cross the international boundary, FERC inspections end in the middle of the dams. For example, that happens at the Moses-Saunders Dam at Cornwall/Massena on the St. Lawrence River.

Last July 30, my U.S. counterpart, IJC Chairman Dennis Schornack, and I met in Montana with John Keys, Commissioner of the U.S. Bureau of Reclamation. Among other topics, we discussed the bureau's procedures for the security of the structures for which it is responsible. Senators may be aware that the bureau administers 348 reservoirs and operates 58 hydroelectric generating facilities across 17 Western U.S. states. One of the largest is the Grand Coulee Dam on the Columbia River, over which the IJC exercises oversight under a commission order.

The bureau's current dam security program was officially implemented in September 2002 with the opening of a special security, safety and law enforcement office. It is responsible for, ``protecting the public, bureau employees and bureau facilities through the development and implementation of a integrated security, safety and law enforcement program.'' The commission's 1998 report recommended that the U.S. and Canadian governments oversee the safety and, by implication, the security of the structures that the commission had approved. It also recommended they require regular inspections by independent experts, implementation of recommendations in inspection reports, and the establishment and regular testing of emergency action plans. In addition, the commission called for public access to all reports and documentation relating to safety issues, something that may no longer be advisable in the light of the September 11 attack.

The commission's other recommendations remain sound, and are, if anything, even more compelling following the September 11 attack. These include a recommendation that the Canadian and U.S. federal governments put in place suitable coordinated arrangements for joint oversight of structures that extend across the border. As far as I am aware, the Canadian government does not seem to have implemented any of the recommendations in the commission's 1998 report. I might say that recently, we directed our staff to update the information in the 1998 report, and this is underway.

Following the attack on the World Trade Center on September 11, 2001, the commission, through its boards, asked the operators of facilities that the commission oversees about the contingency and emergency action plans they had developed. The reports were that some structures still did not have such plans. The commission passed this information on to the Department of Foreign Affairs and International Trade on December 10, 2001.

That department had said in the past that the Canadian government was not responsible for the security of these facilities, which DFAIT said were provincial responsibilities. However, no province had or has such a comprehensive program, as far as I know. In any event, I believe this should be a matter of federal government responsibility and action because these structures are on the international Canada-U.S. border.

I met with the then associate deputy minister of National Defence who was responsible for the Office of Critical Infrastructure Protection and Emergency Preparedness, OCIPEP, which is now known as Public Safety and Emergency Preparedness Canada, or PSEPC, and some of his officials to brief them on this situation. I understand that PSEPC is working with Transport Canada, Environment Canada, Natural Resources Canada, the provinces and its U.S. counterparts to promote the protection and assurance of critical infrastructure. I am also told that PSEPC has initiated consultations under the National Critical Infrastructure Assurance Program to engage all stakeholders in discussions on how best to protect critical infrastructure. It regards water and dam safety as matters of critical infrastructure.

It has been working with U.S. authorities to give operators of publicly owned Canadian dams the opportunity to make use of restricted U.S. government-developed risk assessment methodologies for dams. PSEPC has completed a study of water and critical infrastructure protection that included examination of provincial dam safety regulatory mechanisms and actions. I note that the Office of Critical Infrastructure Protection and Emergency Preparedness has been integrated into the new Department of Public Safety and Emergency Preparedness to maximize emergency procedures and responses to natural disasters and security emergencies. I note that there is a new position in the Prime Minister's Office, of a National Security Advisor. I also note the creation of a new cabinet committee on security, public health and emergencies — all of this since Prime Minister Martin took over on December 12, 2003.

However, I ask: What specific implementation action has been created as of April 2004 in respect of the creation of a federal program to ensure the safety and security of the infrastructure in question and that program's implementation? Unlike the United States, currently, there is no integrated federal regime in Canada to oversee the safety and security of critical infrastructure at the Canada-U.S. border, including the structures over which the commission has oversight. I should make clear that it is beyond the present capacity of the commission to undertake this role.

I am not saying necessarily that there is anything missing in what the individual operators are doing to protect their own facilities. However, I am saying that our federal government is not coordinating the oversight of safety and security at these facilities on our borders with the U.S. or carrying out a federal program for this purpose, yet. Therefore, there is no assurance that consistent standards are being applied. I believe that this should be a Canadian federal government responsibility.

I did meet last year with the Director of Maritime Policy Operations and Readiness in the Department of National Defence. He told me that the Interdepartmental Marine Security Working Group, IMSWG, acting within the scope of the marine security responsibilities and programs of its member departments and agencies, is a forum for identifying and coordinating federal government actions and support of Canada's objectives concerning public security and anti- terrorism in the maritime realm. A member of the IJC staff, by invitation, has attended one of these meetings. In addition, the IMSWG held a workshop, in which an IJC staff member participated, to examine marine security vulnerability gaps in the Great Lakes and the St. Lawrence waterway.

I understand that the Rush-Bagot Treaty says that neither country shall maintain armed naval vessels in the Great Lakes. However, the U.S. Coast Guard, with some 6,000 employees in its Great Lakes district, has armed vessels on the lakes. I also understand that the maritime safety and security teams are a new U.S. Coast Guard rapid response force assigned to vital ports on the U.S. side and capable of nationwide deployment. Also, there are U.S. Coast Guard port security units, which provide waterborne and limited land-based protection for U.S. shipping and critical port facilities.

To move to my conclusion, I ask, does PSEPC already have all the required responsibility in this matter, such that it has the authority to direct the operators of the structures I have mentioned on security matters? If it does not, I would encourage you to recommend the measures, or their equivalents, I will now set out. I do so on my own behalf, since the commission as a whole is updating its 1998 report, although I believe its recommendations were, and will be, consistent with the following recommendations to this committee.

One: an appropriate agency of the federal government be designated to be responsible for ensuring that there are regular federal security and safety inspections of all the infrastructure I mentioned, as well as ports and ships operating in boundary waters and waters that cross the boundary, principally the Great Lakes.

Two: that effective and regularly tested and updated emergency response plans are in place.

Three: that there is appropriate monitoring of these facilities for the purposes described.

Four: the federal government should ensure that there are suitable arrangements for joint oversight applying similar security and safety criteria with the United States of structures that extend across the border.

To sum up, I believe the security and safety of the critical infrastructure listed in our report ``Unsafe Dams?'' and the other infrastructure I have mentioned is a federal responsibility. I say that as it involves an international boundary and our foreign relations with our closest neighbour, ally and best customer, the United States.

Let us remember what is at stake here — the hydro-generated electricity for millions of people and vital transportation links for billions of dollars in trade, as well as the water needed for major agricultural production and processing, all of which are dependent upon these structures operating continuously and safely. This concludes my remarks. I would welcome your questions and comments. I thank you for the invitation to be here and for your attention.

The Chairman: Thank you, Mr. Gray. Your remarks were very much to the point and the committee looks forward to asking you questions.

Senator Forrestall: For a moment, Chair, I thought I was back in the House of Commons, listening to those words of wisdom, carefully considered and forcefully delivered.

We have been struggling with the problem of the IJC for a long time. Could I start by trying to understand what you are getting at, perhaps, a little better? You say that many of these matters should be a Canadian federal responsibility. Is that relative to provincial responsibilities? Where do you fit the province in these? It would seem to me, particularly on the St. Croix River or on the Saint John River, where we have several dams, they are largely within the province of New Brunswick, yet you describe them as federal responsibilities.

Mr. Gray: Under the waters treaty between Canada and the United States, the International Joint Commission has a role with respect to all the waters that form the boundary between the two countries, or which cross the boundary. The St. Croix River forms the boundary between New Brunswick and Maine — those parts of Canada and the United States — and therefore the dams on the St. Croix come under the Boundary Waters Treaty. The International Joint Commission has oversight of them pursuant to orders the commission made many years ago. There is a control board that oversees the carry-on of the orders, principally regarding the allocation of water for the uses of the dams, whether they are hydro-power dams or dams that simply hold back water to facilitate the movement of logs. Of course, the municipalities close to the area make use of the water for sanitary and sewage purposes.

Therefore, there may well be a provincial role with respect to regulation and sale of hydro power, and provincial and state entities may well carry out their own inspections. However, on the American side of the boundary, there is an oversight regulatory jurisdiction of the federal government, operated by what is called the Federal Energy Regulatory Commission, except in the 17 Western states, where it is operated by the Bureau of Reclamation of the Department of the Interior.

I am talking about a federal role of oversight to make sure that there are regular inspections for safety and regularly tested emergency protocols for either the structures on the boundary waters on the Canadian side or, as is the case with the St. Croix, the structures that cross the boundary. At present, you will find that these structures are inspected, or the local operators make reports to the FERC regularly, but the FERC only inspects up to the middle, which seems rather strange to some people. All I am saying is that there should be an equivalent federal responsibility on the Canadian side.

I am not talking about dams that are not on the international boundary. They would come clearly within provincial jurisdiction. I am talking about structures that are on or across the waters that form part of the boundary between Canada and the United States.

Senator Forrestall: Was that not part of the original mandate of the IJC, to rectify this oversight — or perhaps not to rectify an oversight, but rather to make coherent plans for instituting a form of federal jurisdiction, oversight and control?

Mr. Gray: These structures are what we call regulated structures, regarding which the commission has issued orders of approval to allow them to be built in the first place. The orders of approval had conditions attached; and the commission, as was its practice since it started in 1911, set up a control board in each case to ensure the orders and the conditions were carried out. In a sense, we are dealing with matters over which we exert some form of specific regulation pursuant to orders the commission issued years ago. The commission has always felt it has what we call an alerting function, to bring to the attention of the two governments — or in some cases, just one government — transboundary air and water matters that we think they should take into account. This is one of them.

Senator Forrestall: Is there an expanded role for the commission itself in this regard?

Mr. Gray: We are not seeking one. We are urging the Canadian government to adopt its own equivalent of the American inspection of regulatory procedure.

I suppose that the government could ask the commission — and provide the funds for that purpose — to undertake the inspection role to ensure that there are security procedures in place and that they are regularly checked for purposes of safety. However, we are not asking for that. We are really saying to the Canadian government, ``Look, this is being done on the American side as a matter of federal jurisdiction and it only makes sense to have something equivalent on the Canadian side, particularly where the structures extend across the boundary.''

Senator Forrestall: To your knowledge, Mr. Gray, does the Homeland Security ongoing enterprise contemplate any kind of joint administrative authority in this regard?

Mr. Gray: As far as I am aware, they are looking at this but they have not implemented anything. I might note that the commission first brought this to the attention of the Canadian authorities in 1998. It did so again in the fall of 2001. When I became chair, because of my work and experience as Solicitor General, I began raising this with the appropriate federal agencies. We are continuing our dialogue. We have been invited to do so by new committees that have been set up to look into port and coastline security issues.

I was delighted to see your report last October. Since that time, I think some of the things you recommended have been picked up on by the new administration that came into place December 12. We have been invited to attend meetings of the port security working groups insofar as they deal with Great Lakes issues. In fact, Mr. Koop, on my left, is a senior member of our staff who represents us at meetings of these groups when invited to do so.

The Chairman: Mr. Gray, could you elaborate on one answer you gave? You talked about the Federal Energy Regulatory Commission, FERC, inspecting half the dam, and you were encouraging Canada to inspect the other half. That is not what you are really proposing, is it? You would like to see a single inspection unit made up of representatives of both sides inspect the whole dam?

Mr. Gray: Well, there are various options. We are not picking a particular model. I think, first, it would be preferable if there were to be an integrated inspection group. However, there is coordination now on various matters on both sides of the border in other areas, such as Department of Transport, the U.S. and Canadian coast guards, and the two seaway authorities. If there were equivalent standards and responsibilities and, say, the Moses-Saunders Dam was inspected on the same day or days, there would not necessarily have to be one binational, integrated body. However, if the two governments agreed to a binational body, I would not object to that.

The Chairman: My question is, what is your preference?

Mr. Gray: My preference would be whatever could be up and running fastest. An integrated, single agency might well require congressional approval, and you know from your own visit to Washington the pace at which congressional matters can proceed. On the other hand, a decision by the new homeland security department supported by the relevant cabinet committee might get going relatively quickly.

I would suggest whatever happens first and fastest. As time goes on, one can build in other aspects and end up, perhaps, with a single body. I go back and forth to Washington frequently in this job. I support my American counterpart in contacts with senators and congressmen. The U.S. may well think that they are giving up sovereignty or sharing sovereignty, and in that case, the congressmen are apt to take a second look. Trying to create a single body may slow down what I think is needed, and that is a protocol administered by the federal government for the regular inspection of the critical infrastructure on that map. I mentioned in my statement the protocol for security-checking as well.

Senator Meighen: Mr. Gray, a point of clarification: In terms of inspection of dams straddling waters that separate the two countries, as I understand it, you referred to many of them as being inspected by U.S. authorities only halfway, but there is Vanceboro, the Forest City, and the Iroquois Dam at Cornwall. My information is the inspections are carried out entirely by the United States. Is my information correct? If so, why do they inspect some so-called joint dams entirely and others only to the mid-point?

Mr. Gray: I must have Mr. Koop to assist me. I think a lot of it is a matter of historical accident. A practice developed and it continues.

As I said in my statement, I am not saying that none are inspected, particularly on the Canadian side, by their operators. However, I think there must be some overarching-accountabilities regime that is federal.

Senator Meighen: Presumably then, the alternative to a joint team would be an agreement with the Americans, ``You do the following dams in their entirety and we will do the following dams in their entirety.''

Mr. Gray: That is an option. A precedent for that is ice breaking on parts of the Great Lakes. If you look at the Detroit River, there are some areas in Canadian waters in which, by agreement, the American icebreakers operate. There are other areas in which, by agreement, Canadian icebreakers may operate in American waters. There is a precedent that might be applied there.

Senator Atkins: I know that the Saint John River originates in Maine, but what dams are you referring to on that river?

Mr. Gray: Grand Falls.

Senator Atkins: That is not on the border, is it?

Mr. Gray: Well, it deals with boundary waters. Perhaps Mr. Koop could speak to that.

Mr. Rudy Koop, Research Adviser, Canadian Section, International Joint Commission: The Grand Falls Dam is under the authority of the International Joint Commission, IJC, because it backs up water across the boundary. That is why the owners came to the commission with an application.

Senator Atkins: You are not talking about Beechwood or —

Mr. Koop: No, Grand Falls is the only one.

Senator Atkins: All right. As you know, we just returned from the United States. I think it is fair to say that this committee is surprised by the lack of initiative with regard to infrastructure in both Canada and the U.S. We know that in Canada there is a budget of $300 million for infrastructure initiatives, but we found in all our discussions with Homeland Security that even though the Detroit-Windsor border is probably at maximum capacity at the moment, if there were an instance of any type, there is no reserve plan or future consideration for how they could take the pressure off the tunnel and the bridge. Do you have any comment on that?

We found out that there does not seem to be a joint committee or some similar initiative to move this along.

Mr. Gray: It is my understanding that there was a joint task force, Canada-U.S., state and provincial, looking into this matter and developing options to be presented to the government and to the public. They have been operating for perhaps two years.

They recently announced that because of the need for environmental assessments, their report on options for relieving the pressure of use on the bridge and the tunnel would be out later than had been foreseen. There is work ongoing. There is a joint U.S.-Canada, Ontario-Michigan task force.

On the Canadian side, the Government of Ontario and the federal government have recently agreed to join the City of Windsor in some short-term measures to relieve the pressure, not in terms of building another crossing — they cannot do that without the consent of the American authorities — but in terms of overpasses, holding areas and so on. They will spend about $40 million. This is not part of the work of the commission; I am speaking about trying to keep up on the developments in the area. There are things going on.

There are those in Windsor who say that the work of the task force is moving too slowly. They need to come up with proposals for additional crossings, where they will be and so on, faster. Inevitably, there will be difficulties when there are all these jurisdictions in two different countries, plus requirements that may not have existed previously. When the Ambassador Bridge was built in 1929, I do not think it would have been possible to suggest an environmental assessment. I do not think it is realistic, if we are talking about crossing the Detroit River, that something could be proposed and construction started in a couple of months.

What, I understand, will be started soon are overpasses to deal with level railway crossings and pedestrian overpasses over the main routes, but those are supposed to be interim measures.

Senator Atkins: The problem is that they do not alleviate the flow into the main core of Detroit or Windsor.

I understand that there are a number of jurisdictions that would have to be involved in the proposal for a new crossing, but we get the feeling that there seems to be no attempt to move the puck down the ice and make that happen.

Mr. Gray: This task force is working. You should invite people from the federal Department of Transport and the Ontario Department of Transport to give you a report on that.

I can only indicate what I have learned in conversation and from reading the local media. What I have conveyed to the committee is an accurate depiction of the current state of play.

Senator Atkins: It is true that our committee has concluded that if there were additional roadways or other ways of connecting the two countries, it would relieve some of the security problems that exist today.

Mr. Gray: There are a number of options. There is an option for additional bridge spans downriver. One group wants to build a special, dedicated tunnel for trucks under the river. The operators of the current bridge want to put an additional span next to it. There are those who say that much of the traffic is not for the benefit of industry on the Detroit or Windsor side, it is through-traffic from Montreal to Mexico, and why should that not cross at places like Sarnia, to ensure that the truck traffic that goes between Windsor and Detroit is for just-in-time delivery to the plants on both sides?

People are busy debating these options. As you can see, I am following with interest matters involving cross- boundary water quality or quantity, or when related air matters come up that the commission will be called upon to look into.

Senator Atkins: I do not think we heard about the task force in our discussions.

What would your recommendations to a task force be on how to alleviate the potential danger?

Mr. Gray: It would not be appropriate for me, in my present position, to recommend one of the options being looked at. They are all controversial. They all involve, in some way, going through existing municipal areas. Whatever the option is, there are people who say that one of the other options is better, or vice versa. There is controversy there. Many well-meaning people are looking into and living with the matter because it involves investment in their homes, local businesses and so on.

It would not be appropriate at this stage for me to say that I have a view on a particular option. I may be called upon in the years hence, if I am in this job at a certain point in the future, to deal with it in a more formal way, along with colleagues on the commission. That is another reason for me to have more of a watching brief than one where I express a view.

Senator Atkins: I have a feeling you have a view, but you are not sharing it.

Mr. Gray: That could well be. I hope we are all here 10 years from now and I will come back and give you an update.

Senator Atkins: We talked about Detroit-Windsor, but you could talk about Calais-St. Stephen when you think of the amount of traffic that Atlantic Canada and Northern New England depend upon going through that one entry point. That is also a big problem.

Mr. Gray: That is right. We think that we are close to the United States in Windsor, but you need only visit that area to realize that there are people who live even closer to the U.S., and vice versa.

Senator Atkins: You spoke about the security and under whose authority these matters should be. Does it not seem that most of these security questions, if they were to come under one umbrella, would fall under the new department?

Mr. Gray: Yes, that is right.

Senator Atkins: In your view, is this clearly a federal responsibility?

Mr. Gray: I do not see how it could be otherwise. We are talking about an international boundary and international waters. These waters are navigable. You are familiar with the Navigable Waters Protection Act, for example, the federal fisheries acts and the Boundary Waters Treaty. The legislation that bans the removal of water in bulk from the Canadian side of the Great Lakes Basin is really a series of amendments to the act that was passed many years ago to implement Canada's obligations under the Boundary Waters Treaty.

If you want a consistent system and criteria for inspection and monitoring, I do not see how you could do it otherwise than through some form of federal coordination and oversight.

Basically, that is what is happening on the American side.

Senator Atkins: We were somewhat surprised to see that this new homeland security department is slow in getting its act together, and there are many disconnects. Do you sense that from what you see in your position?

Mr. Gray: I would rather not go down that pathway. I wish them well. I will say that it seems to me that many areas of the new department are the existing agencies of the former Solicitor General's department. They are ready to do their jobs.

It is inevitable that when you set up a wide-ranging, new administrative structure, it takes some time to get going. The Americans found that with their homeland security department. This probably was reported to you when you visited the U.S.

The new arrangements in Canada have only been underway since they were announced when the new Prime Minister and cabinet took over on December 12. I am sure they are working hard to get everything in place and operational.

Senator Atkins: My comment was not intended to be a criticism, but rather that putting together the homeland security department has become a larger job than anyone envisioned.

You are talking about 23 different agencies and 160,000 people.

Mr. Gray: That is in the U.S. I like to think that they have made a lot of progress in the past year and a half since their legislation was passed. We have to hope that their structure is operating effectively right now and will in the future.

I have not had the benefit of your detailed briefings on the U.S. You may have more to say on that in due course.

Senator Munson: Mr. Gray, what about another pathway and our own pathway? In your 12th point you talk about the IJC recommending that they require regular inspections by independent experts, implementation of recommendations and inspection reports, and the establishment of regular testing of emergency action plans. In the 14th point you say that as far as you are aware, the Canadian government does not seem to have implemented any recommendations along this line.

Six years is a long time. You were part of that government. Who was listening? What will it take to get things done, another disaster?

Mr. Gray: I certainly hope not.

In fairness, one must look at the situation in 1998 and the atmosphere that existed then. What precipitated the report was not primarily security issues but the risk of a dam collapsing due to major weather events, or a dam falling apart through the passage of time and so on. The fact that there is a security implication to this really arose as a secondary matter.

In all fairness, when this was raised and this report was written in 1998, I do not think people had in mind what we all learned about in the light of the World Trade Center disaster on September 11, 2001.

As I say, what led my predecessors to develop this report was looking at some dams in the St. Croix area and seeing what looked like leaks in certain areas. We make site visits and familiarize ourselves with areas where we have a role. The commissioners decided, because these structures were under their regulatory control in certain areas, there were measures to report on by whom and when these dams were being inspected, first, for safety purposes and, second, for security purposes.

In all fairness, we must apply not the lens of hindsight but the lens of the atmosphere and circumstances.

Senator Munson: However, six years has gone by.

Mr. Gray: That is right.

Senator Munson: Has the federal government done enough? Is the federal government listening to your recommendations?

Mr. Gray: I am saying that I think they are listening. What we need now is action by way of response.

Senator Munson: In your mind, what kind of response would be appropriate?

Mr. Gray: There are different ways of approaching it. One is to have an agency similar to the Federal Energy Regulatory Commission operating on the Canadian side, or a bureau similar to the Bureau of Reclamation in the Western U.S. One of our existing departments could be tasked to work cooperatively with the private operators or the provincial governments.

Speaking of things not happening, if you look in the report, you will find that it is stated that back in 1998, the Province of Ontario was developing criteria for the inspection of dams under its jurisdiction. When, two years ago, I met with the then Minister of Natural Resources of Ontario, he said, ``Oh, we are still working on these regulations.'' I met with the current Minister of Natural Resources and found that his officials are still on working on these regulations.

This is not simply a matter to which more attention could be given at the federal level. There is a provincial responsibility for dams not on the boundary as well.

What this committee recommended last October, in terms of the new security and structure, has been picked up in many ways. Perhaps a recommendation from this committee will precipitate some earlier action than would otherwise be the case.

Senator Forrestall: You imparted excerpts from ``Unsafe Dams?'' You say that:

The existing situation in which some Regulated Facilities are not subject to comprehensive government safety inspections and oversight by governments is unsatisfactory. Without government oversight there is no ensuring accountability for activities that can put the lives and property of Canadians and United States citizens in jeopardy.

To what degree are you concerned about the age of facilities such as dams and other structures? Is aging a major factor?

Mr. Gray: I presume it is a factor. I would ask Mr. Koop to assist. That is why regular, consistent inspections are important.

Could you speak to that, Mr. Koop?

Mr. Koop: The Grand Falls Dam that we talked about, on the St. Croix River, is the dam that prompted this 1998 report. I do not remember the exact date now, but I think it was built around 1915. Of course, if the dams are not maintained properly, then problems arise.

Senator Forrestall: It just follows that if the utility is aging, then someone should be looking at it more frequently.

Mr. Gray: That is certainly something that the operators must take into account. Certainly this is an area in which your committee might consider making a recommendation.

We are calling for an overall regime of inspection, both for the effects of aging through such things as natural weather events, and the risks of human intervention, which can have the same effect as a major event or a collapse through aging. We do not feel that we have the technical expertise to pick one model of oversight over another. We feel that there should be a consistent, national oversight mechanism from one end of the continent to the other on the Canadian side. This could be done jointly with the private operators, especially where they are provincial. This could be done jointly with the provincial government entities, or it could be done solely by the federal government.

I do not think that I am ready, on behalf of the commission or personally, to say this is the only or preferred option. I do not see why we cannot have a unified approach at the federal level, as exists in the United States.

Senator Forrestall: Do you, from time to time, draw to the attention of the operators of these facilities your concerns in this regard; or do you feel the IJC is restricted to communicating with the operators of these facilities through the federal authority?

Mr. Gray: We have control orders. As we do on other matters involving control orders, we communicate directly with the operators.

They do not hesitate to contact us when it comes to how our control orders affect their ability to operate their facilities. This is not the same as a reference on matters like how to prevent bulk water removals from the Great Lakes. This is under another jurisdiction in the treaty where, because of previous applications, we have control orders that provide certain responsibilities that enable us to be in direct contact with the operators.

Mr. Koop: For each of these dams where the commission has an order, there is probably also an IJC board, which is sort of the on-the-spot group that looks to ensure that the dams are operated in a fashion consistent with the commission's orders. They are in constant contact with the owners as well.

Senator Forrestall: I do not know about many of them, but that one in Grand Falls built on those rocks looks as if it will be there for another millennium.

Senator Munson: I am sure other senators will follow up on the seaway system, and I am sure you will have comments for us on the system, whether it is the Welland Canal connecting Lake Ontario and Lake Erie, or the one at the south shore of Montreal. From your studies, do you think that the St. Lawrence Seaway Authority, which operates the canal, has an emergency preparedness plan in case of an accident or a disaster? I ask you this in light of the fact that on our trip to Washington, it seems to be on everybody's mind, post-Madrid, that something is going to happen somewhere — not if but when — and there is a guessing game going on. Do you feel that Canadian authorities, and their Americans counterparts, are prepared for any possible attack or incident?

Mr. Gray: It is my impression that they do have emergency protocols, which they test periodically, certainly at the dams at Cornwall and Massena.

One of the reasons we decided as a commission to update our 1998 report was to find out exactly, and state in that report, just what these two seaway corporations have done since the September 11 attack and what the situation is as of today, 2004. I would not say they are in a position to give you a comprehensive answer, but I think that they do have both inspection and emergency protocols. Let us say that they do. I think that you need someone in the Department of Transport, or the homeland security department, to say, ``Yes, we have reviewed these protocols and they are just what we need at this point in time.'' That does not exist.

Senator Meighen: Mr. Gray, as usual, when you are the last questioner, you do a little bottom-fishing, and I am just looking for some clarifications. The important questions have been asked. One of the things that did occur to me, and would be important to this committee, is when you expect that the update of the 1998 report will be completed.

Mr. Gray: Mr. Koop is the principal officer in the commission working on this. We would hope it would be later this year, because we are building on what we have already done. We certainly want to see this completed at an early date, to help answer the kinds of questions that you are putting to me here today. I do not want to put any pressure on you, Mr. Koop, but how are things going?

Mr. Koop: I do not think I can give you a date. We are working on it. We had hoped that we might have something by summertime.

Senator Meighen: Summertime? That is wonderful. Mr. Gray is known for being cautious, so I am delighted you took the other tack. In all seriousness, the sooner you get the report out, the sooner these matters can be brought to our attention.

Mr. Gray: The work he is undertaking has to be reported to all six commissioners, and we review it and make a decision by way of consensus, much, I presume, like your committee. If we can get it out by the summer, I would be delighted to come back here and discuss its conclusions.

Senator Meighen: That would be wonderful. Senator Munson touched on canals. Are there any other facilities that come directly, or perhaps even indirectly, under your jurisdiction that are worthy of being assessed in terms of their security?

Mr. Gray: Yes, I would mention three that, for some reason that I cannot explain because I was not in this position in 1998, are not mentioned and listed on the map. I refer to the so-called ice booms, one at the outlet of Lake Erie, going into the Niagara River, and the other on the St. Lawrence. Apparently, if the ice boom on the outlet of Lake Erie was not there, the crush of ice might cause one or more of the bridges to collapse. I think that happened once. Am I right, Mr. Koop?

Mr. Koop: Yes.

Mr. Gray: That is a structure subject to a commission order. Another area that seems remote from here, but which is substantial, is the system of irrigation works and canals using the waters from the St. Mary's and Milk rivers, which cross and recross the Canada-U.S. boundary between Northern Montana, Southern Alberta and Saskatchewan. As you may know, around Lethbridge, and the border in areas like Taber and Milk River, there are hundreds of acres where they grow specialty crops like canola, sunflowers, fruits and vegetables and other things that I thought were mainly concentrated in areas like Essex County near Windsor. However, they have hundreds of thousands of acres growing these crops, and processing plants. There are large acreages on the American side, though not as large as on the Canadian side. Thousands of people earn their livelihoods from growing these crops and processing them. I think McCains, from Atlantic Canada, has a major potato processing plant in the area. Most people are surprised to find that structures of that size exist there, but the structures that move the waters into irrigation canals and hold the waters back as required, are under commission orders. In fact, a dispute about how those waters should be divided helped the Canadian and U.S. governments to engage in the negotiations that led to the treaty being signed in 1909. The St. Mary's and Milk River matter is one of two issues mentioned specifically in the treaty. The other is waters in the Niagara River. This area has quite a history. As I say, that is another area that I think has great relevance.

Senator Meighen: Does the commission have any responsibility for the safety of international pipelines or hydroelectric transmission lines?

Mr. Gray: There are many pipelines that touch the boundary waters, and that go over and under. Unless the two governments signed a separate binational agreement, then it is my understanding there would have to be applications to the commission for approval orders.

An example of a binational agreement is the Columbia River Treaty. The commission does not operate along the whole Columbia area.

For reasons that history will explain better than I could, the Grand Coulee Dam has a board overseeing its operations. There is also a dispute settlement mechanism written into the Columbia River Treaty that has never been invoked. Hypothetically speaking, let us say that new pipelines were built from Alaska to Yukon in a way that would affect boundary waters. We would have a role to play in respect of boundary waters in the North. Unless there was a separate management agreement, it is my understanding that an application would have to be made to the International Joint Commission.

Senator Meighen: It would have to involve waters.

Mr. Gray: It would have to affect water. If they could build it without affecting the flows and quantities of water, then we would not get involved. However, we might get involved temporarily if they had to put cofferdams in the Yukon River to build the pipeline. It is premature to go into further detail. I have exhausted my technical competence.

Senator Meighen: It has been very helpful. The committee might wonder sometimes what safety precautions have been taken, not by the IJC, but by whoever is responsible for such things as transmission lines that run across the border.

The Chairman: Surely the answer to that would be the FERC and the National Energy Board, NEB.

Senator Meighen: That would be the obvious answer, but I am not aware of what precautions, if any, have been taken.

I think you said that construction of dams that cross boundary waters requires the approval of the IJC. What about the removal of dams from waters? There was a famous removal of a dam for environmental reasons on the Penobscot River in Maine. Perhaps there might be a call for removal of dams on the St. Croix River. Would that necessitate an approval by the IJC?

Mr. Gray: That is an interesting legal question. My informal view is that it may well do so if the removal of the structure could have effects on the Canadian or the American or both sides of the border. There is quite a movement in respect of natural rivers. Whether the dams that we are talking about would ever be subject to that kind of activity, in view of the hydroelectric power they provide or the way in which they facilitate agriculture, water for drinking or sanitary facilities, might be more hypothetical. In such a case, we are dealing with remote structures that were useful in the lumbering age 100 years ago, but not today.

Certainly in my time, we have not had to consider the implications of removal of a structure. Mr. Koop, has this come to your attention in your many years as a member of the staff of the commission?

Mr. Koop: No, I do not think we ever discussed this. Perhaps we should have brought our legal adviser along with us.

Mr. Gray: I will undertake to ask if our legal advisers can tell us something about such a scenario. I could write a letter to the committee with the information.

Senator Meighen: I do not think it is of earth-shattering importance, but my own untutored opinion would be that if you have to give approval to build a dam, why would you not have to give approval to remove it?

Mr. Gray: Personally, I would not disagree, but I cannot give an opinion based on considered legal or engineering advice.

Senator Meighen: To press the point, I cite the removal of the Veazie Dam on the Penobscot River, which caused quite a stir. It was one of many dams on the river and was removed mainly to improve fishing and environmental conditions. Perhaps that could be considered on another day and in another place.

My mind went back to history classes in high school when you mentioned the Rush-Bagot Agreement. If I am not mistaken, that goes back to the early 19th century?

Mr. Gray: It goes back to the 1840s.

Senator Meighen: It was post-War of 1812. The agreement seems to be honoured more in the breach. If you are not supposed to have armed vessels on the Great Lakes but the Americans do, then presumably there would be no impediment to Canadians following one of the recommendations of this committee, to arm certain members of the Coast Guard and certain vessels of our Coast Guard.

Mr. Gray: It is my understanding that the Rush-Bagot Agreement applies to naval vessels. There is a distinction in law between naval and Coast Guard vessels. That is why, technically, the Americans are not in breach of the treaty in having armed Coast Guard vessels. They have two fleets: the white and the black. One deals with marine safety and navigation, as our Coast Guard does, and the other is comprised of armed vessels. Technically, the Coast Guard vessels are not naval vessels. In fact, until U.S. Homeland Security was in place, those vessels reported to the U.S. Secretary of the Treasury during peacetime.

It is my opinion that if at some time, following your recommendations, our Coast Guard was reconfigured and staff trained in the use of arms, rather than acting as a temporary platform for the RCMP, it would not be classed as a breach of the Rush-Bagot Agreement.

Senator Meighen: I tend to agree with you. The American Coast Guard is often considered the third-, fourth- or fifth-largest navy in the world. Certainly they have taken a much more naval approach on the high seas than we have. Whether we change our practice remains to be seen. Mr. Gray, your comments have been very helpful.

The Chairman: Mr. Gray, to round out your presentation, could you briefly comment on your resources, staff and budget?

Mr. Gray: That of the IJC?

The Chairman: Yes.

Mr. Gray: The commission operates with a relatively small staff and budget. We have, between our offices in Ottawa, Washington, and our Great Lakes regional office in Windsor, about 50 people, including expert advisers and administrative staff. Our budget, if you look at both sides of the boundary, would be about $3 million, voted by each government. There is a special allotment for a current major study on whether the control orders for Lake Ontario and the St. Lawrence River need to be updated. That separate allotment is about $30 million spread over five years.

It is remarkable that the commission operates from one ocean to the other, along 8,000 kilometres of boundary between the U.S. and Canada, and another 1,000 kilometres in the North. It operates with a relatively small full-time staff in its offices in Ottawa, Washington and Windsor. It also has several hundred people working on its control boards and expert scientific boards, but they are seconded from departments of the U.S. and Canadian federal governments, as well as U.S. state and Canadian provincial governments, to work part time as required. They are supported by secretarial services provided by the International Joint Commission. There are another 100 people involved in the Lake Ontario-St. Lawrence study, which will be complete in two years. We cover a vast territory and the commission has a record of resolving disputes between the two countries, dating back to 1911, in respect of close to 100 different issues.

There are those in Foreign Affairs who say that the work of the commission is doing a lot to maintain an overall positive climate in U.S.-Canada relations, not just in the specific areas that we are talking about, but through the example of its efforts.

I should mention that it has an unusual governance structure. The U.S., in spite of having the larger economy and population, has the same number of commissioners as Canada — three U.S., three Canadian. The Americans do not have more votes or greater weight in decision-making than the Canadians, and there has to be at least one person from the other country present to make a decision or a recommendation. We work by consensus.

We have been able to get along, knock on wood, in a constructive way for almost 100 years. Hopefully, our example will help instruct ongoing relations between our two countries.

The Chairman: Are the 50 you mentioned American and Canadian, or is that just the permanent Canadian staff?

Mr. Gray: It is both offices.

The Chairman: How many days per year does the commission meet?

Mr. Gray: The commission meets every two months for three days at a time, alternating between Ottawa and Washington. It meets twice a year for a week at a time, again alternating. We communicate by teleconference and videoconference in between as required, and we also meet face to face in between these formal meetings as required, perhaps while in a city to take part in a conference or a symposium.

This is very much a full-time activity. The commission is not just an advisory body, but also one that oversees full- time professional staff in its offices. That includes the work of its control boards and the work of its 19 boards as a whole — the control boards and scientific boards.

The Chairman: Are you satisfied with the authorities you have? Does the commission have sufficient authorities to carry out its job?

Mr. Gray: I think that, insofar as the treaty is concerned, we have authority. The issue always is matters of budget and staffing and so on, but that is the case with any governmental or quasi-governmental body in Canada and the U.S., and elsewhere in the world.

I should mention, before this meeting ends, that the commission is not an agency of either the Canadian or U.S. governments. It is an international organization based on the treaty. Therefore, we do not account to ministers in either country. We communicate with them formally through the Secretary of State in the United States, and the Minister of Foreign Affairs in Canada, but we work very closely with at least six federal departments in Canada and their U.S. counterparts.

For example, in Canada, we work especially closely with Foreign Affairs and Environment, but also with Transport, Fisheries and Oceans, Health, Agriculture, Natural Resources — and their American counterparts. We are in touch with provincial counterparts as well.

The Chairman: I take it that if you are an international body, your compensation is tax-free?

Mr. Gray: No, unfortunately not. We travel on diplomatic passports and have diplomatic immunity while we are in the other country. I have yet to invoke it. I do not intend to do anything that would cause me to invoke it, and the same is true for my American counterparts here. However, our stipends are not tax-free, but are subject to the tax obligations in both countries.

The Chairman: Thank you for appearing here. You raised a number of issues that the committee has not had an opportunity to consider prior to this. We are grateful for the insight that you have given us into the issues that you oversee on the Canada-U.S. border.

Without any question, the U.S. file is the most important external one that faces us. On behalf half of the committee, I not only commend you but thank you for the excellent work that you and your colleagues do on behalf of Canadians to ensure the border runs smoothly.

If you have any questions or comments, please visit our Web site by going to We post witness testimony as well as confirmed hearing schedules. Otherwise, you may contact the clerk of the committee by calling 1- 800-267-7362 for further information or assistance in contacting the members of the committee.

The committee adjourned.