Transport Committee on March 11th, 2008

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

Good morning, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting 16.

The order of the day is to study 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.

Just before we get into that, as advice or a heads-up for our committee, Mr. Lewis will be here on Thursday with regard to railway safety, and I'm going to ask that we set aside about 10 minutes at the end of that meeting to have a little further discussion as to where we want to go after we get his report, in regard to meetings. You'll also have received your summary of our rail safety discussions from the committee. They should have been electronically transferred to you this morning.

I had the opportunity to meet with some of the directors of the Federation of Canadian Municipalities this weekend in Brandon, and they're thrilled that we're doing this study. In fact, I think the participation that we're going to see from that level will be very positive. “Long overdue” was the comment I heard many times. So I share that. I'm talking about the navigable waters.

With that, joining us today, from Infrastructure Canada, we have Shirley Anne Scharf, director general, and Keith Grady, senior adviser on environment review; from the Canadian Environmental Assessment Agency, John Smith and Steve Burgess; and from the Department of Fisheries and Oceans, Ginny Flood and Gilles Belzile.

Welcome. I presume we have some sort of presentation. I don't know if you've had any agreement as to who would like to start, but please begin.

Ms. Scharf.

[Shirley Anne Scharf, Director General, Issues Management Directorate, Program Operations Branch, Infrastructure Canada]

I believe we'll begin.

Good morning, Mr. Chair and honourable members. I would like to thank the committee for inviting Infrastructure Canada to present its views on the proposals that have been tabled to modernize the Navigable Waters Protection Act, the NWPA.

With me today, as mentioned, is Keith Grady, our senior adviser on environmental review and approvals at Infrastructure Canada.

We are here today to talk specifically about the implications of this initiative for infrastructure funding programs administered by Infrastructure Canada. I want to emphasize that modernization of the NWPA is an important initiative for us. Infrastructure Canada is in full support of the proposed changes to the Navigable Waters Protection Act as these changes will help the department to provide Canadians with modern, sustainable, and efficient public infrastructure in a timely way.

In my opening remarks, I will talk briefly to programs for which my department is responsible and how the NWPA can affect the delivery of these programs—in particular, how the NWPA can sometimes delay the approval and implementation of both community and major infrastructure projects.

I will also speak to the specific amendments that Transport Canada has tabled for consideration by the committee that will, in our view, improve the efficiency and timeliness of federal funding for public infrastructure projects under these programs. Our two departments work together closely in response to provincial and municipal requests for funding for major transportation infrastructure.

Through Building Canada, the Government of Canada has committed $33 billion in funding over seven years—2007-08 to 2013-14—for public infrastructure projects that promote a growing economy, a cleaner environment, and stronger and safer communities. Building Canada includes base funding for municipalities and provinces, as well as program funding initiatives, including the Building Canada Fund.

A broad range of projects and activities that are eligible for support under Building Canada have implications for navigable waters and thus would require consideration under the Navigable Waters Protection Act. To illustrate, under the Building Canada Fund, projects in the following categories are especially likely to be subject to the NWPA: water and waste water infrastructure, such as water intake pipes and waste water effluent pipes; public transit, the national highway system, local roads, short rail line, and short sea shipping; green energy, such as hydro-electric dams; and disaster mitigation, such as flood control.

The Building Canada Fund is in the process of being implemented across the country. It will generate a large number of community and major infrastructure projects across the country in a broader range of project categories than have been supported under previous federal infrastructure funding programs. Consequently, we anticipate an overall increase in the number of funded projects with NWPA implications in future. It is therefore important to amend the NWPA to reduce and avoid issues that have been encountered in respect of Infrastructure Canada's existing programs.

For example, under the Municipal Rural Infrastructure Fund for 2004-11, approximately 20% of the 1,760 projects approved to date have involved implications for navigation. Similarly, the NWPA has been a consideration for about 25% of non-transport-related projects approved to date under the Canada Strategic Infrastructure Fund. As you can imagine, given Canada's geography, a large percentage of major highway projects in Canada also require NWPA approval due to minor water crossings.

I will now describe some of the challenges the NWPA poses for the approval and implementation of these types of infrastructure projects.

Our experience today indicates that NWPA-related considerations can result in both regulatory uncertainty and delays in the approval and implementation of public infrastructure projects. It is important that amendments to the NWPA proceed expeditiously so that these same issues do no adversely affect the efficient and timely provision of funding to projects under Building Canada.

A number of specific problems have been encountered to date. The first is that proponents cannot determine whether their projects are subject to the Navigable Waters Protection Act until NWPA officials visit the site and confirm that the impacted water body is navigable. Depending on the season, site access, and availability of NWPA staff, this can take considerable time.

Detailed project and site plans necessary to confirm application of the act are often unavailable in the early stages of project planning, so the status of Transport Canada, as a responsible authority in the review of the project under the Canadian Environmental Assessment Act, can be unclear until late in the assessment.

There are also delays in getting input from NWPA officials during the Canadian Environmental Assessment Act review and in issuing an NWPA authorization following the Canadian Environmental Assessment Act review and approval.

In turn, this regulatory uncertainty and process delays can add to project costs if construction cannot proceed as scheduled. As well, there can be added pressure for Infrastructure Canada to work with the parties to resolve issues and ensure that project approvals are timely.

Transport Canada has identified seven key concepts relating to potential changes to the NWPA. Of the seven, three will be particularly important in addressing the above-noted problems: amending the definition of “navigable waters” to allow for the exclusion of minor waters from application of the NWPA; amending the definition of “work” to allow for the exclusion of minor works from application of the NWPA; and removing the reference to the four named works—bridge, dam, causeway, and boom—in the act to allow for exemption of those works from the requirement to obtain approval pursuant to the NWPA.

Specifically, the proposal to exempt minor waterways and minor works will benefit infrastructure projects such as pipelines (water and sewers) and overhead power lines as they will no longer be required to apply for approval if they meet specified criteria. This will speed up the project approval process.

In addition, the proposal to remove the named works from the NWPA would also allow for quicker approval of those named works that are not a significant interference to navigation, such as small bridges, causeways, and micro-hydroelectric projects. The approval process would be quicker, because the projects would not be subject to the requirements of the full approval process as defined in the act.

The time required to complete federal environmental assessments of these projects would also be shortened in some circumstances. This would be especially beneficial for infrastructure projects that are subject to the Canadian Environmental Assessment Act only as a result of the Navigable Waters Protection Act.

Infrastructure Canada would also suggest that the committee consider another amendment to the NWPA that would benefit the timely review and approval of public infrastructure projects. This additional amendment would be to remove the current requirements in the NWPA to deposit plans in a land titles office and to advertise in the Canada Gazette. We are in agreement with Transport Canada that these are antiquated provisions that no longer serve to provide adequate notification of a proposed project. A more flexible notification scheme is required.

To conclude, modernization of the NWPA is long overdue, and Infrastructure Canada fully supports the proposed amendments in the legislation. It is our department's belief that these changes will allow Infrastructure Canada and our public and private funding partners to implement both the small-scale community projects and the major infrastructure projects in a timelier manner without negatively affecting navigation in Canada or significantly impacting the environment.

Finally, it is our hope that these legislative changes will be accomplished expeditiously so that Building Canada can realize the benefits of a modernized NWPA as soon as possible.

We look forward to your questions and comments.

Merci.

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Smith.

[John Smith, Director, Legislative and Regulatory Affairs, Policy Development, Canadian Environmental Assessment Agency]

Thank you, Mr. Chairman, and thank you for the opportunity to be present. I am the director of legislative and regulatory affairs at the Canadian Environmental Assessment Agency. I am joined by Steve Burgess, acting vice-president, program delivery. Mr. Yves Leboeuf, who is the vice-president, policy development, was originally scheduled to be here today but is unfortunately sick, so he couldn't be here.

We'd like to provide a brief overview of environmental assessment and the Canadian Environmental Assessment Act before concluding with some remarks on how it links to the Navigable Waters Protection Act and the proposed changes to the act. I'll be following a short deck, which I understand has been distributed.

[The Chair, Conservative, Merv Tweed]

Just for your information, it hasn't been distributed. It has to be in both official languages.

Oh, it's in both languages? All right, go ahead. I apologize.

[John Smith]

Thank you.

To start with slide three of the deck, at its simplest, environmental assessment, or EA for short, is a process that's used to predict and evaluate possible environmental effects of proposed projects and to propose measures to mitigate any adverse effects that are identified. By considering environmental effects early in the planning process and developing mitigation measures, EA can contribute to reduced risk and reduced liability for both government decision-makers and proponents of those projects.

The EA process also provides a meaningful opportunity for the public to become aware of projects in their communities, to provide their views and provide information, and to influence decisions about those projects. In factoring environmental considerations into the planning and decision-making process at an early stage, EA is an important tool for promoting sustainable development.

We'll move on to a couple of slides about the Canadian Environmental Assessment Act. The EA process for the federal government is set out in this piece of legislation, which has been in force since 1995, although federal EA processes date back to the 1970s through various other instruments.

Basically, what the act requires is an examination of environmental effects of proposed projects before a federal authority makes a decision that enables that project to proceed. The decisions they make are often referred to as the triggers of the federal EA process.

Specifically, there are four types of triggers. They are decisions by a federal authority to either proceed with a project as a proponent; to provide financial assistance to the proponent of a project; to sell, lease, or transfer control of federal land for the project; or to issue certain licences, permits, or other regulatory approvals. For example, as we'll see later, certain approvals under the Navigable Waters Protection Act trigger the requirement for an environmental assessment.

Federal EA is what we call a self-assessment process. What this means is that the federal authority that has a decision to make about the project is also responsible for ensuring that the environmental assessment is conducted. Under this system there are approximately 8,000 environmental assessments conducted each year by over 30 federal departments, boards, agencies, and 41 parent crown corporations. There is a wide range of projects, from hiking trail construction in national parks to large natural resource developments, such as mines and hydroelectric dams.

Under the act there are three different types of assessment, which correspond to the risk of significant adverse environmental effects. The vast majority, over 99%, of those assessments are conducted as screening assessments.

Another level of assessment is a comprehensive study; they are conducted for a smaller number of projects. They consider some additional factors in the assessment, they have more opportunity for public participation, and the process involves decisions at some key stages by the Minister of the Environment.

Finally, review panels provide an independent review and public hearings for those projects that are likely to have significant adverse environmental effects or for projects with significant public concern.

On slide six we talk a little bit about federal, provincial, and territorial cooperation. There are provincial and territorial requirements for environmental assessments as well. We have bilateral agreements and project-specific arrangements in place to coordinate those processes. The aim is, when both provincial and federal environmental assessments are triggered, to have a coordinated process so that we can have a single environmental assessment that meets the needs of both governments. These types of arrangements affect about 150 to 300 projects per year. Some examples of recently completed cooperative review are shown on the slide, but there are others.

These coordination processes generally work well, but we are participating in work under the Canadian Council of Ministers of the Environment to develop both short- and long-term initiatives to further improve timeliness and coordination of our cooperative processes.

I'd like to turn now to a few brief words about our organization, the Canadian Environmental Assessment Agency.

We are part of the environment portfolio, but we are a distinct and separate agency from Environment Canada. Among our roles, we provide advice and support to the Minister of the Environment on his responsibilities under the act; for example, on the adequacy of comprehensive study reports prepared by responsible authorities.

We have some key administrative functions under the act, such as managing and providing administrative support to the independent review panels and administering a participant funding program.

We have an important role as the federal environmental assessment coordinator for comprehensive studies and those assessments that involve provincial jurisdictions. It's not infrequent that a number of departments have a decision whereby they're involved with the environmental assessment of a specific project, and the coordination role is very important.

Until recently we did not have responsibility for actually managing or conducting the environmental assessments. There is a new initiative called the major natural resource projects initiative, which is aimed at improving the overall regulatory process for major natural resource projects. Under this effort, our agency is actually taking on a role of managing the EAs of those major natural resource projects, amounting to about 200 environmental assessments per year.

Now I'd like to turn to the links of this process to the Navigable Waters Protection Act.

Potential decisions under the NWPA for approval of physical work trigger the requirement for doing an environmental assessment. Our act, the Canadian Environmental Assessment Act, links to the NWPA in a few ways.

First, the environmental assessment legislation establishes the duty to consider environmental effects before decisions are made on projects. Second, it links by allowing conditions to be attached to NWPA approvals to ensure mitigation of environmental effects where necessary. Finally, it links Transport Canada's approval to the results of the environmental assessment. Specifically, as a result of the Canadian Environmental Assessment Act, Transport Canada can issue an approval where the project is not likely to cause significant adverse environmental effects. Or alternatively, if it is likely to cause significant adverse effects but those effects can be justified in the circumstances, they can issue the approval. That latter circumstance requires approval by the Governor in Council.

Slide nine lists the approvals that can be granted under the NWPA that trigger the requirement for an environmental assessment. They include sections 5 and 6, relating to work to be built on, over, or near a navigable waterway, and sections 16 and 20, relating to removing vessels from a navigable water body.

It should be noted--I mentioned that very often there's more than one department involved--that often the NWPA applies to project components that are associated with a larger development proposal. For example, a bridge leading to a mine, highway construction, or marine terminal can have a navigable waters component as well as much larger issues around the project.

Finally, in terms of the proposed changes, I mentioned near the beginning of my presentation that some 8,000 federal EAs are triggered every year. In 2003 there were amendments to the Canadian Environmental Assessment Act as well as the implementation of other initiatives that were designed with the goal of better focusing our efforts on those projects with a greater potential for environmental effects. The proposed changes to the NWPA would mean that minor works and projects in minor waters would not require NWPA approval; consequently, they would not trigger an environmental assessment.

Based on past experience, it's reasonable to expect that those types of projects would not result in significant environmental effects. So the proposed initiative with respect to the NWPA would be consistent with our efforts to focus environmental assessments on those projects that have greater potential to result in significant effects and to reducing the number of environmental assessments for smaller projects.

I would note that some consideration could be given to whether the proposed changes could lead to a situation where a larger project would not become subject to environmental assessment because it's considered a minor work with respect to its effect on navigation. Having some mechanism in place to allow for discretion in dealing with such projects could eliminate this eventuality. However, we think this would occur in exceptional cases. It's not something that we anticipate happening often. Generally where there's a larger project, the environmental assessment process is triggered by something other than the NWPA. But as the initiative moves forward, this is one issue we'd suggest giving some attention to.

Finally, I also note that the proposed modern enforcement provisions of the NWPA would benefit environmental assessment, because the Environmental Assessment Act relies on instruments in other laws to ensure that mitigation measures are implemented.

Mr. Chairman, this concludes my remarks.

Thank you.

[The Chair, Conservative, Merv Tweed]

Thank you.

Ms. Flood.

[Ginny Flood, National Director, Environmental Assessments and Major Projects, Oceans and Habitat Sector, Department of Fisheries and Oceans]

Fisheries and Oceans does not have opening remarks, but we would like to thank you for inviting us to participate in this panel.

I'm Ginny Flood. I'm the national director for environmental assessments and major projects for DFO. I am joined by my colleague Gilles Belzile, director general, legislation and intergovernmental affairs, DFO.

DFO is another key federal regulator that works closely with Transport Canada. Most of the projects we deal with in and around water implicate both the Navigable Waters Protection Act and the Fisheries Act in terms of the authorizations required. We work closely together with respect to conducting environmental assessments. This act is almost as old as the Fisheries Act.

We would welcome any questions that you may care to pose to us.

Thank you.

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Volpe.

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

Thank you, panellists, for coming to give us an insight into what we're wrestling with—whether to overhaul the act or amend it.

I gathered from Ms. Scharf's and Mr. Smith's presentations—I hope I'm not misreading you—that you prefer something quick and dirty. You'd like to make some necessary adjustments right now, and you've given us an indication of some. But your preferred approach is to go with something immediate rather than something comprehensive. I hope I'm not wrong, but I'll let you explain in a second.

Ms. Flood, I wonder whether that perception would apply to you as well. You're here with the other two. Does your being here and not making a presentation mean that you want the committee to move ahead with amendments to the legislation as opposed to overhauling it?

[Ginny Flood]

We haven't had time to review this thoroughly. Based on our preliminary analysis, we're looking at our role with respect to Transport Canada. We would be looking forward to working with them on whatever they are looking to propose. At the moment the proposal is seven amendments. However, if it were broader, we would certainly be willing to work with them. There are opportunities to streamline and provide benefits for economic development and more timely decision-making.

I'm not sure whether I answered your question.

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

I don't know. I'm waiting to hear from Mr. Smith and Ms. Scharf.

[Shirley Anne Scharf]

We support the immediate modernization of the act. We feel that, from our mandate, the minor waterways and minor works are particularly important. That's not to say we may not need a full-scale review in five years. The advantage of doing it now is that the Building Canada Fund and the plan will be rolling out. There will be a lot of pressure to move those projects. By having these immediate changes, we'll be able to implement those projects more quickly and successfully. We see this as an immediate benefit. We may want to monitor the impacts, however, and this could feed into a larger legislative review at a later time.

[The Chair, Conservative, Merv Tweed]

Mr. Smith.

[John Smith]

Thank you.

I am somewhat neutral on the question. I'm not sure we have strong feelings about one approach versus the other. We haven't had time to consider the implications of a more major change. However, the immediate impact that would benefit environmental assessment would be the focusing of our efforts on more significant projects. The more targeted amendments would seem to contribute to this. Since they could be dealt with more quickly, there is probably some advantage in going that way.

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

I was pleased to hear that we're talking about streamlining the process, because I think that's one of the causes of some of the observations that have been passed on to the committee and to the department.

With all due deference to Transport Canada officials, some of whom are here, I thought I heard, two weeks ago, Transport Canada prefer a much more comprehensive approach.

You're kind of tentative there, Ms. Flood, but Mr. Smith seems to be telling me more or less the same thing, that the agenda that your two organizations have might be a bit more consistent with the impression I had of Transport Canada's position, which is, let's move in a comprehensive fashion so that we make sure we dot all the i's and cross all the t's. That might not necessarily be confluent with Infrastructure Canada's decision to roll out moneys for projects in a much more timely fashion.

Am I misrepresenting what you're saying, Ms. Flood?

[Ginny Flood]

No, I don't necessarily think so. I think we are open to whatever approach, if it's a comprehensive approach. Certainly I think we could look at some further streamlining opportunities that probably wouldn't avail themselves if we take a very narrow approach.

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

Mr. Smith.

[John Smith]

As I indicated before—and I hope this doesn't sound too much like sitting on the fence—I don't think we have strong views on one approach versus the other. Certainly there are some immediate benefits in terms of streamlining that could be achieved.

In terms of looking at an overall review of the act, the kinds of benefits we'd get in terms of focusing our efforts on the more significant projects, that we'd get from the proposed focused amendment, I'm not sure what more we'd get from an overall review of the act. I haven't had time to consider that.

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

Just a second, Mr. Burgess. Maybe you can follow up on this.

You don't see too many difficulties, then, with making some of those changes that flow from redefining things like “minor works”.

[John Smith]

That's right. That I can be clear on. We think it's a good idea, and we don't see any problems with that.

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

But Ms. Flood might, though, because I think that might have some implications for the kind of work that DFO does in assessments in certain parts of the country. I'm not familiar with what they do in all parts of the country, but in my province they have some overlapping responsibilities or shared responsibilities with the province, and so on. They're very much involved in infrastructure-type programs.

So I wonder, Mr. Burgess, when you answer in terms of where you want to go, whether we wouldn't be—I don't know how to put it delicately—putting the cat amongst the pigeons by making some of these decisions on a quick, short-term basis.

[Steve Burgess, Acting Vice-President, Program Delivery Sector, Canadian Environmental Assessment Agency]

Perhaps I can respond to that by prefacing my remarks a little bit.

From our perspective, from an environmental assessment perspective, there are two aspects of the process that we see as being important. One is that the quality of the assessments are there, that an appropriate quality of assessment is done, and to ensure that projects that could have adverse environment effects are assessed. From the other perspective, we look for an efficient and effective environmental assessment process.

I guess what we see with respect to this proposed approach is the opportunity to address that in some way. Concerns we've seen with respect to how the NWPA acts as a trigger for environmental assessment have to do with, in part, defining which waterways are navigable. There are a great number of waterways in Canada, as we all know. Many of them—very small ones, in fact—have been seen as navigable at times.

The other aspect is that it's difficult to know, starting out, before you do an assessment, whether or not there might be interference with navigation as a result of a particular project.

So to the extent that this initiative, these legislative amendments, can address those concerns, I think we'd be quite satisfied.

[The Chair, Conservative, Merv Tweed]

We'll go to Mr. Laframboise.

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

Thank you, Mr. Chairman.

My first question is for Ms. Scharf.

If my information is correct, there has been no agreement signed between Quebec and the federal government under Building Canada. Is that right?