Transport Committee on Feb. 12th, 2008

[The Chair (Mr. Mervin Tweed (Brandon—Souris, CPC)), Conservative, Merv Tweed]

Thank you, and good morning, everyone.

Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting 13. The orders of the day, pursuant to Standing Order 108(2), are a study of the current status of navigation protection of the Canadian waterways, including their governance and use and the operation of the current Navigable Waters Protection Act.

As previously mentioned, we have asked the department to attend today to give us a briefing and then answer some questions.

Joining us today is Marc Grégoire, who is the assistant deputy minister, safety and security; and David Osbaldeston, who is the manager of the navigable waters protection program.

I welcome you both. I know you have a somewhat lengthy presentation, but I think it's in the best interest that we hear it, and then we'll proceed with questions. So please begin.

[Marc Grégoire, Assistant Deputy Minister, Safety and Security, Department of Transport]

Thank you very much, Mr. Chair. It's a great pleasure to be back here today.

Thank you for providing me with the opportunity to speak to you today on a topic that is very high on my minister's agenda and I'm sure will be of great interest to you as well.

With me today is David Osbaldeston, Manager, Navigable Waters Protection Program. David has been working in this capacity since 2003 and no doubt he will be able to provide detailed answers to your questions.

Our appearance today follows the request made by Minister Cannon to this committee on January 31.

We have provided you a deck and a guidance document. If you don't mind, I will flip through the deck as I speak. We're now on page 2.

We're here to discuss the modernization of the Navigable Waters Protection Act. We would like to solicit your views and hopefully your assistance in undertaking public consultation on a proposed framework for new navigation protection legislation.

I will call to mind certain facts and give you a brief overview of the Navigable Waters Protection Act. In addition, I will highlight some of the problems associated with the legislation. Lastly, I will detail the efforts my department plans to devote to this initiative. Throughout my presentation, I will also be highlighting some of the things we have done over the past year.

On slide 3 you will note that Transport Canada administers this act.

First, let me point out that this act is one of the oldest pieces of legislation in Canada. Many of its provisions have not been altered since 1882. It no longer meets ever-changing navigational needs, as evidenced by the massive increase in the number of recreational watercraft that use Canada's navigable waters and the industry's calls for clear regulations.

The legislation was originally enacted to protect the right to navigate in Canada. As you see on that slide, the legislation was expanded to include construction, alteration, or removal of obstacles.

Provincial, territorial, and municipal governments, industry, and the Canadian public with interests in Canadian navigable waterways have raised concerns for many years regarding the challenges of working within the parameters of an outdated act.

You will note on page 3 of the deck that although the act has remained virtually unchanged since initially drafted, over the years, the courts have broadened their interpretation and application of the expressions “navigable waters” and “works”. This is an important point since the Act, as interpreted in this manner, has required the integral approval of all secondary works built on small waterways, as well as environmental assessments, to all intents and purposes unnecessary, of these works.

The provisions of the existing act are extremely rigid and in particular, very normative. Developers are required to file their plans for proposed works with a land title office and to announce that they have done so in the Canada Gazette.

As you can imagine, this situation has imposed unnecessary burdens on proponents of these minor works and at the same time has caused ineffective use of our departmental resources.

My department is trying, to the greatest degree possible, to alleviate the existing pressures on the act by focusing on high-priority projects and conducting class screening for environmental assessments whenever feasible. In addition, the current act does not contain any clear inspection powers to ensure compliance, and the penalties for non-compliance are inadequate to make any real difference.

Stakeholders have called for changes to the act to reflect today's reality and ensure that we provide regulatory oversight only when and where required. We deal with a wide range of stakeholders when we talk about this act.

I would highlight that over the years many Canadians have expressed concern about the NWPA impeding their ability to conduct business in a predictable and timely manner. Their complaints are valid, as the current act has no ability to adapt to changing uses of our waters. Significant delays have been experienced in the approval of new aquaculture sites. Others protest that we are regulating works that have very little if any impact on navigation. That is the very imbalance we want to correct with a review of this act.

No longer can we take into account solely the interests of commercial navigation. The recreational boating industry has grown dramatically in the past 20 years and the growth is continuing unabated. New legislation must promote the shared use of our waterways.

In keeping with the cabinet directive on streamlining regulations, we need to ensure in the new act that our departmental resources are focused on those waters and works that require oversight and provide real value to Canadians.

Natural Resources Canada reports that over $300 billion will be spent on new infrastructure and resource projects in the next 10 years. The large number of complex infrastructure and resource projects, along with the need for growing aboriginal consultations, have put tremendous pressure on the regulatory system. The existing backlog of approvals is impeding both economic growth and the actual construction of transportation infrastructure, which in turn is putting the government's Building Canada plan at risk.

We recommend the creation of new provisions to facilitate provisional approval of emergency works such as temporary bridges or the temporary closure of an area to navigation in the interest of public safety.

We face a formidable challenge today, and that is ensuring that we do not fall behind because of requests for a review, within a set timeframe, of resource projects worth several billion dollars — projects such as the Alaska and Mackenzie Valley pipelines.

Not only do these projects require the review and approval of hundreds of works over waterways, they also require extensive consultations with Aboriginal peoples. New navigation protection legislation would help us to meet our responsibility to hold meaningful consultations with Canada's Aboriginals.

To reflect this new direction, we propose to change the name of the act from the Navigable Waters Protection Act to the Navigation Protection Act. There are some new provisions that we would like to see in this new act.

A key proposal is to remove the term “navigable waters” from the act and replace it with “waters in Canada”. Although this sounds like a minor change, it is actually the most significant element of the new proposed framework.

This would streamline the regulatory process by eliminating the need to determine the navigability of a waterway. It would allow for the exclusion of certain bodies of water or classes of water from application of the act, a move that many resource developers and rural municipalities have requested and would wholeheartedly support.

Transport Canada is currently conducting many unnecessary environmental assessments in light of how certain works are designated in the act. However, because certain works are expressly designated in the act, we can establish a link between the approval process, or the requirement for an environmental assessment, and how that work will impact navigation. New provisions would enable us to use those resources now assigned to environmental assessments for projects that carry a greater risk of being harmful to the environment.

Our research into other pieces of legislation related to navigation brought to light some unnecessary duplication in the way in which certain sectors are managed, for instance, port authorities which are governed by the Canada Shipping Act, or national parks which are administered by Parks Canada. We recommend that unnecessary duplication be eliminated by exempting these sectors from the provisions of the new legislation.

This recommendation has the backing of the authorities and departments concerned. In terms of compliance and application, the current legislative provisions are inadequate. We would like the new act to include new compliance instruments and more stringent enforcement provisions to correct this oversight, as we have seen with other pieces of legislation reviewed in recent years by your committee.

It is proposed that we charge fees for certain services we provide, such as conducting inspections and issuing approvals, to establish a derelict vessel removal fund. There are hundreds if not thousands of smaller derelict vessels that have been abandoned on our shores, where there is no significant threat of pollution and no owner is known. There are some just here near the river.

Due to the cost of removal of these vessels and lack of funding, very little has been done until now to remove these blights on our community and wilderness shorelines. The establishment of a fund that can be accessed by navigable waters protection program staff to clean up these vessels in a timely manner would be welcomed by Canadians, especially the smaller coastal communities and lakeside municipalities.

On behalf of Minister Cannon, I am here to request that members of this committee take a lead role in the development of new navigation protection legislation that is so vital to all Canadians at this time. From the massive investment in transportation and resource infrastructure to the emergence of Canada as a world leader in the aquaculture industry, there is no better time than now to modernize this act.

This committee is the ideal forum in which to seek the viewpoints of stakeholders who have a vested interest in a new Navigation Protection Act. The committee would provide Transport Canada with an unbiased consideration of the issues and could look at solutions from a fresh perspective. This would be vitally important to the initiative's outcome. Lastly, the recommendations arising from the committee's consultations would constitute the basis for new legislation.

On page 9 of the deck, we look at the scope of future consultations. The Navigation Protection Act impacts a wide range of Canadians and areas.

This vast area includes resource developers in the north, cross-border issues on the Great Lakes, emerging aquaculture industry on both coasts, and farmers in the prairies, so it's extremely diversified.

On the key areas of focus, new legislation must balance the needs of those wishing to construct works on our waterways with the needs of those who use the waterways. There are several key areas that we believe need to be assessed in order to develop new legislation that meets the needs of Canadians.

First and foremost is the need to ensure that the purpose and scope of the new act meet the needs of both proponents of works and mariners to allow for a balanced approach to the shared use of our waterways.

The application and approval process should be predictable and should be undertaken in a timely manner so that Canada's economy remains competitive globally. Conversely, sufficient notice must be given to users of our waterways.

The new legislation must provide the authority to intervene when the safety of Canadians is threatened and the guarantee of ongoing access to vital waterways. Canada's interior and coastal waterways are strewn with abandoned or derelict vessels. We need effective measures to remove these hazards from our waterways. The onus for removing these hazards should be placed on the owner or, when the owner is unknown, steps should be taken to minimize the cost to taxpayers.

Compliance and enforcement provisions in the current act are so outdated that they are completely, totally ineffective at promoting compliance or acting as a real deterrent.

A report on the consultation efforts, containing recommendations to meet the goals I have just outlined, would be used as a basis to draft new navigation protection legislation.

Continuing on page 11,

we outline the support that we can give to the committee. If the committee does decide to hold consultations, it can count on the support of Transport Canada experts.

The committee may also wish to take advantage of the 18 months of internal policy development that has already taken place. Most of the work has been led by David here. A guidance document that outlines our proposed approach has been prepared, and I believe you were given copies of this document.

Thank you for providing me with this opportunity. We look forward to your questions, comments, or suggestions, but, more importantly, we hope you will accept the task.

[The Chair, Conservative, Merv Tweed]

Thank you, Mr. Grégoire.

I think you'll probably find as you go around this table that there are a lot of people who would agree this is long overdue, and hopefully we can come to some agreement that works. I think we all have personal experiences of it being nothing but a headache to try to deal with these issues. I think it's a timely move.

Mr. Zed.

[Paul Zed, Liberal, Saint John, NB]

Thank you, Mr. Chair.

I may end up running out of questions, but I'll share time with Mr. Bell, if necessary, and if not, then I will in another round.

Thank you very much for being here today.

Do you have any information you want to share with the committee at this early stage about what other jurisdictions in other countries might be doing as it relates to this subject area? Obviously, Canada, from the information you've presented, is somewhat behind, given the fact that it hasn't renovated its act in a period of time. Are we alone? Are we consistent with other countries? That was something I was interested in.

[David Osbaldeston, Manager, Navigable Waters Protection Program, Department of Transport]

We do have a report that was prepared over the course of the last year, which takes a look at other jurisdictions that may have similar pieces of legislation and responsibilities. None are identical in nature. Norway comes to mind. The U.S. or the U.S. Coast Guard has some. But we will make the results of that report available.

[Paul Zed, Liberal, Saint John, NB]

Okay, and on that subject--

[David Osbaldeston]

Excuse me. It's in no way an extensive report. It was just a sampling we took, with some information provided with respect to responsibility and jurisdictional scope.

[Paul Zed, Liberal, Saint John, NB]

On that, would that document also contain any issue on Canada's competitiveness as it relates to, say, the aquaculture industry? In my region of southern New Brunswick there's a great interest in aquaculture. Minister Thompson and I have ridings in a zone where there's a large aquaculture industry.

I just wondered if there were some comparisons that inhibited or affected our competitiveness in that industry.

[David Osbaldeston]

There are none within that report. Those studies have not been conducted internally. However, Saint John is going to be host of the Aquaculture Association of Canada's annual general meetings and conference this year.

We attend the navigable waters protection conference. It's always a heated topic down there. We sit on the aquaculture task group committee that is representative of all of the provinces. The provinces and the provincial aquaculture associations have come to us time and time again and said this is not working for them.

Their key concern, from a competitiveness standpoint on the aquaculture front, is the duration of permit. Duration of permit, in accordance with our regulations, is five years for the aquaculture industry. They have identified--and we do have a report on that--that this is insufficient time for them to provide financiers to give them the financial backing they require and the payback period they require to get their money in order to put their operations into place.

Making that change requires regulatory and legislative change.

[Paul Zed, Liberal, Saint John, NB]

Thank you.

In your presentation you talked about a number of vessels, derelict vessels. Does the department have an estimate as to how many of those vessels there are in Canada, where those vessels are, and how much it would cost to have those vessels repaired, removed, or restored?

[David Osbaldeston]

No, we don't have a study in place at this point in time identifying the scope of the problem. We are aware of the problem. It has been somewhat of a jurisdictional battle as to whose responsibility it is to clean up the problem, between the provincial jurisdictions, municipal jurisdictions, and federally. We do not have a complete tally on the scope of that particular problem. It's definitely in the thousands.

[Paul Zed, Liberal, Saint John, NB]

Is that right?

[Marc Grégoire]

They are everywhere. I personally am on the water quite often, and I see them everywhere. I've seen them in lakes. There is a big ship, larger than from here to the wall over there, that sank just on the river. You take the Ottawa River and turn left on a small river going north towards the casino. On a small river that doesn't go anywhere, there is a big ship that sank there. It's abandoned. There are things abandoned there, cables and all kinds of things abandoned over the years, that could be a problem for navigation. We don't know anymore who's the owner, and there's no way to make an inventory.

[Paul Zed, Liberal, Saint John, NB]

But I can remember, in the maritime provinces, we had the Irving Whale. It was off the coast of Prince Edward Island and it was abandoned. There were all kinds of jurisdictional issues about whether it was the responsibility of the Department of Transport or the Department of the Environment.

Surely, between the Department of the Environment--for which this could be an issue, clearly, as every colleague would know--and the Department of Transport, you must have some idea. More importantly, rather than the number, from an anecdotal perspective, are there a lot of other environmental disasters—“disasters” is a strong word—or instances that might be out there that we as a committee, or you as a department, or we as a society should be concerned about in terms of vessels, large or small?

[David Osbaldeston]

There are federal bodies and response mechanisms to deal with any environmental hazards associated with the wrecks, and indeed they come in and clean them up pretty readily once they're known.

I think where the difficulty arises is the fact that our particular legislation with respect to ultimately getting rid of the hulk deals only with when that particular vessel creates a hazard to actual navigation.

In your particular riding again, for example, you had the Canima in Shediac Bay. It sat there and was an eyesore for that particular community forever. The province tried to do something about it and the town council tried to do something about it, and they asked us if we could do something about it. But it was sitting there on the sand, in the middle of the bay, causing nobody a problem, other than the fact that it was an eyesore and it was going to get worse.

We would hope that with these types of proposals, creating the cost-recovery mechanism through the fees and thus creating the disposal fund, the removal fund...it would have helped in that instance to get rid of the Canima, get it out of the way of things, because what we end up with is municipalities or individuals saying, “Fine”, and then in the middle of the night, all of a sudden, these things show up in the middle of the navigational channels, now becoming a hazard, and it's just not what we want to—

[Paul Zed, Liberal, Saint John, NB]

I just want to put two more quick questions on the record.

Would the fund you're proposing or talking about in your presentation operate a bit like the ship-source oil pollution fund? Is there money in that fund that we might be able to pirate out of that isn't being used currently?

The ship-source oil pollution fund, as I understand it, is not specific. There are actual dollars there, as opposed to something like the employment insurance fund where it's part of the consolidated revenue of the government. There are segregated funds there. Is that correct?

[Marc Grégoire]

Yes.

[Paul Zed, Liberal, Saint John, NB]

Would that money be available for something like this, or are you proposing a brand-new fund? Is it something we as a committee could pursue?

I think my time is up.

[Marc Grégoire]

The proposal is for a new and distinct fund. The ship-source oil pollution fund is there for a very good reason. If there is a sinking of a tanker in our waters, it's going to be very costly.That's what that fund would be used for.

What we're talking about is something more modest. It's an interesting fund, but certainly it is more modest than the one you're talking about. It's totally distinct. It's to remove the shipwrecks and the things that don't necessarily generate pollution. They're just sitting there. Many of them are just wood structures sitting there, and they're ugly. They don't create a problem for navigation and they don't generate pollution.

[The Chair, Conservative, Merv Tweed]

Thank you.

If I may, I would ask that you table with the chair for distribution any studies or documents you refer to. I know you've made reference to a couple of them already.

Before I go to Mr. Laframboise, I want to say that it's beyond my imagination that this type of derelict vehicle would be allowed to be there. If you tried to do that on land, you'd have every jurisdiction in the country challenging you to clean that mess up. Yet we ignore it.

[Marc Grégoire]

There is one just out here.

[The Chair, Conservative, Merv Tweed]

Yes. I find that almost unbelievable and unacceptable, for sure.

[Marc Grégoire]

That's why we need to change the act.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Thank you, Mr. Chairman.

My questions are about the process. I am trying to understand why you insist on having the committee travel across the country. I do not have a problem with that, because I think we've come to that stage. As you undoubtedly know, duplication between Quebec and Ottawa has often been deplored. This is one case where Quebec, through its Department of Sustainable Development, Environment and Parks, could very well issues the necessary approvals without the federal government having to intervene. That is not a problem and I think the consensus in Quebec is that the time has come to modernize the act.

However, I do see a problem with the table in guidance document. You note that in 2007, Transport Canada received approximately 5,000 applications. Between 2,500 and 2,800 of these applications were approved and some, fewer than 1,000 I believe, required environmental assessments. That means that 2,300 applications were not approved. You say you received 4,500 applications. So then, several thousand applications were rejected. Correct?

[David Osbaldeston]

No, and I understand the reasoning behind your question.

What this is showing is that in those particular cases we may have received the applications in that given year, but it may take longer than a year to review them and provide a decision. Many of our applications transcend a year of study. Some need 18 months. Some are two years long, for the larger projects. Others are received, for example, in the eleventh month of the twelve-month cycle, so they would be marked as received applications in that given calendar year, but they might only be approved the following year.