Transport Committee on Feb. 28th, 2008

[Marc Grégoire]

No. It's like a menu, but we would like to have it all. These are the seven most important things for us if we are to keep this piece of legislation.

The first three go together in a sense, but the next four are pretty distinct. The definition of water, the definition of works, and the de-naming of the four “named” works are pretty well together, while the inspection power, the fines, and all that are pretty distinct, but they make a total group of what would be very advisable to do with this act.

[Jeff Watson, Conservative, Essex, ON]

Your answer actually confuses me now, because you say the first three have, if I understand you correctly, some interconnectedness, and the other four are distinct. Let me ask the question, then: if we were to define navigable waters and take your first recommendation, but didn't do the other two, would that have impact on the other two? Do you understand what I'm saying?

[Marc Grégoire]

It has no impact, but what I meant is that they are more related to each other than the next four.

[Jeff Watson, Conservative, Essex, ON]

Is the goal of removing the four works—boom, dam, bridge, causeway—to increase the discretion of the department on whether or not to engage a process?

[David Osbaldeston]

Yes. It's to gauge the length of the process, which therefore extrapolates into time and cost.

[Jeff Watson, Conservative, Essex, ON]

If those are removed to the discretion of the department, what criteria do you follow then in making your assessments? Are you going to follow current regulations, are new regulations needed, should we be prescriptive in the legislation about some of these things, or are you following court interpretations—or is it a combination of those?

Can you give us a sense of how you'd make your decision, based on—

[Marc Grégoire]

That would really depend on the definitions we came out with. To answer your question from a philosophical perspective, we would very much prefer performance-based legislation or regulation to prescriptive. This act is probably as prescriptive as can be. It prescribes everything. There are no performance indicators in it at all.

[Jeff Watson, Conservative, Essex, ON]

The idea of increasing discretion is similar to the process in the United States in that respect, if I understand it correctly.

[Marc Grégoire]

No. Today, for instance, we came out, using the discretion we have on minor works, with a series of exclusions, which are described in the little blue pamphlets. Getting rid of the four named would increase the possibility of extending that. As well, depending on the definition we came out with, we could further extend exemptions.

[Jeff Watson, Conservative, Essex, ON]

Should there be an appeal mechanism for claims that are denied?

[Marc Grégoire]

The number of denials is very small, and even though there is no appeal mechanism, nothing prevents a proponent from re-submitting a new application with a set of different mitigation measures. In the case of those we couldn't accept, as David mentioned, it's either because the mitigation measures were not accepted by the proponent or what the proponent proposed was not acceptable to us.

But there's a discussion, and if we can't agree on what's needed.... For instance, if vessels need to continue to pass during the construction and the proponent doesn't want that, well, it's unlikely we'll resolve this. But in the vast majority of cases, there is always a compromise possible from both sides.

[Jeff Watson, Conservative, Essex, ON]

You're asking about explicit inspection powers. Currently there are fines under the act, but no enforcement. Is that fair to say?

So if somebody was fined, who does the fining, or who follows up on whether the fine is paid? Explain how it is currently.

[David Osbaldeston]

Fortunately at this point in time people who want our approvals are more than willing to welcome us onto their land and their water and up in the air to take a look at the sites they're proposing to put the work on.

The problem arises when we have a complaint about somebody else's work, which may be unlawful, and we need to go to see what they're talking about. We do not have inspection powers whereby we can just come onto the land or onto their waterway in order to access the site to view it. We're forced to stop and to make a formal request—which we normally would like to do anyway, but in some situations it's not possible: there's nobody on the land, and/or it's a remote area.

So the answer to your question is that there's nothing. The word “inspection” isn't even in our legislation.

[The Chair, Conservative, Merv Tweed]

Thank you.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Chair.

[The Chair, Conservative, Merv Tweed]

Mr. Volpe.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Merci, Monsieur Grégoire and Mr. Osbaldeston.

I have some difficulties getting a firm handle on this. I don't normally admit to weakness like that, and I hope this will be the last time.

I listened to you and I read the documentation and I recall what I tried to get at when we were here at the steering committee. That is, if we proceed according to course A, small definitions, etc., or course B, what will be the impact on cases that are outstanding that might be in the courts or that are in process in terms of being dealt with according to the status quo? I don't think I've had a good enough answer to that. I'm looking at your charts, and it appears very roughly that about 50% of the applications get dealt with satisfactorily over the course of the year in one way or another, but they're dealt with.

Very roughly, again, very rarely do you have more than 5% rejection. So I ask myself this, and maybe, Monsieur Grégoire, you're the best person to answer this. Is a solution to this problem additional staff?

[Marc Grégoire]

No, not from where I sit today. As I just explained, we are doing a study to see if that is the case. From what we have looked at now, the most acute problem is on the portion of environmental assessments. Within the department we have the navigable waters program within my responsibility under safety and security. This program is led by David here. Another part of the government within the programs group, here in Ottawa and throughout the regions, has the responsibility of doing the environmental impact assessment and the environmental analysis.

So if David or one of his staff is dealing with a project and receives an application under the Navigable Waters Protection Act, they do the navigation safety analysis and then they send the project to our colleagues in programs, who then do the environmental analysis. On bigger projects this is multi-departmental. Many times another department will be the lead to do the environmental analysis and a large number of people will be consulted. The navigable water becomes only a small component of it.

The answer doesn't appear to be, from what I've learned of this program, to throw more people at the program. It would be far more efficient to do the blue pamphlets that we did to get rid of these small little things and put our attention elsewhere, and to do those seven things that we've outlined today.

I will remind you that our preference is to repeal this act entirely and to come out with a new piece of legislation. Should that not be possible in the near future, the best thing to do is to make those improvements that could significantly not only improve our life, but more importantly from where you stand, I believe, would improve the life of the stakeholders of the various citizens across the country who want to do projects. That would relieve them of one burden, one legislative or regulatory burden. It would be one less to deal with.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

I appreciate that. The colour of my hair is due in part to the fact that I had teenage children--they passed that very crucial period--and the other is having to deal with some of the bureaucracies to which you have just made allusion. I can resolve the first one. It's a personal thing and it's chronological. The other one is a little more difficult.

I'm wondering, Mr. Grégoire, whether in fact your suggestion that we come forward with brand-new legislation isn't the best route, especially given the answers that I've heard from Mr. Osbaldeston.

Did I pronounce that correctly?

[David Osbaldeston]

Close enough.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

For every question that he's answered, he's introduced a nuance that, to my ears, has resonated as another authority coming into play with a definition that the questioner would not have contemplated, given the fact that there isn't the body of experience leading up to the question that the respondent was prepared to provide. This, I suppose, is more of a rhetorical question for all colleagues, but it's more directed to you, in all honesty, and I don't want to compromise you. I'm wondering whether this is the right thing for the committee to do: to attempt to redefine the minutiae for the purposes of getting something done partially, quickly, or whether it is best left to the department and the minister to come up with the legislation for this committee to respond to as it conducts its study.

[Marc Grégoire]

I will respond to that, and I will redirect you to the letter sent to the committee by the minister. It is Minister Cannon's wish that the committee work on this legislation, so it's not our decision. There are a variety of ways we can look at various pieces of legislation, and within the department I can say we've touched on all of them. We can use a panel. The minister can name a panel, as he did for the Railway Safety Act; the panel would go around the country and come back with a report with a number of recommendations on legislative changes. Or we can do it ourselves, as we did for the Aeronautics Act, for instance. We can go around the country and consult, assemble a number of recommendations, and then propose legislation. Or the minister can ask this committee to review it, which he has done.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

I appreciate that, and I don't want to put you in an unfair position as a departmental official disagreeing with the request of the minister. That's not my intention, because I was one of those who asked whether this committee shouldn't ask the minister to give us the bill on first reading so that we could shape the bill and then bring it more clearly and more quickly and expeditiously for approval into the House. I'm actually just simply asking, from an efficiency and experience perspective, whether the most practical thing for this committee to do would be to rely on that vast body of data and knowledge that you have, in order to give us the insights that we're going to need.

From what I can decipher from what you're telling us, we're going to go into a minefield of interdepartmental competitiveness. And I don't mean that negatively, but in your last response to me, Monsieur Grégoire, you said the application comes in to you, you say what it is, once you give your approval off it goes to environmental assessment, and then maybe from there to something else.

I think if we want to do things appropriately for our fellow citizens, we probably want to be able to make sure that the safety measures associated with some of that process are dealt with in as quick a way as possible. I'm not sure that's going to be done by us. You've quite rightly pointed out three alternatives.

Again, I don't want to put you on the spot, and if you don't want to answer, that's fine. You've given us three alternatives, but I'm just wondering whether this committee's going to be spinning its wheels for several months when the answers are already there.

[Marc Grégoire]

No, the answers are not there. It's not a minefield, certainly, but these are all difficult issues to deal with. I think it was extremely appropriate for the minister to task this committee to do that, because if this committee is able to come up with a consensus on recommendations to the minister, it would certainly make things far easier for the minister then to get the approval to draft a piece of legislation.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

There's nothing to prevent him from doing that now.