Transport Committee on March 11th, 2008

[Ginny Flood]

Unfortunately, I am not completely familiar with this project, but I can enquire as to the status of our approval. I will provide the community with that information later.

[The Chair, Conservative, Merv Tweed]

Thank you.

Go ahead, Mr. Watson.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Chair.

Thank you to our witnesses for appearing. I think I'm finally getting a handle on some things here, but I have a few questions.

With respect to minor works, I've been reading some of the brochures you've put out on submarine cables, dredging, aerial cables, and docks and boathouses, for example. Currently for minor works, if I understand correctly, there are two tracks. There are those that are excluded under the Navigable Waters Protection Act, and therefore they do not trigger a federal environmental assessment. By inference, from these brochures, if it doesn't meet certain criteria, it's an excluded work. If it does meet the requirements, it's not excluded from an NWPA application, and it therefore triggers a federal environmental assessment.

Do I have that correct? Is that currently how it operates with respect to minor works?

[Ginny Flood]

It may not trigger a Navigable Waters Protection Act permit, but it may trigger a Fisheries Act authorization. Therefore, in that case they would actually still do an environmental assessment. But with respect to navigable waters, they possibly would not.

[Jeff Watson, Conservative, Essex, ON]

I thought I understood it, but it's far more complicated than even that.

[Ginny Flood]

There are other regulators.

[Jeff Watson, Conservative, Essex, ON]

I guess I'm talking about NWPA specifically. I thought that's what we were....

Go ahead, Mr. Burgess.

[Steve Burgess]

I'm not sure I can clarify that, but I could add to it, I think.

The way our environmental assessment process works is that if a federal permit is required for a project—as defined in regulations, there are certain permits that trigger the act—then before that permit can be issued, there needs to be an environmental assessment undertaken. What perhaps is a bit confusing is that there can be more than one federal permit or decision related to an individual project. Notwithstanding that there may not be an NWPA permit required, there may be a Fisheries Act authorization or funding that would trigger—

[Jeff Watson, Conservative, Essex, ON]

The definition of “minor work”, for example, could vary depending upon the department. Transport Canada may have a different understanding of a minor work than Fisheries or someone else. Is that fair to say?

Ms. Flood, you're nodding your head.

[Ginny Flood]

I think that would be fair to say in that regard, and that's where I think you have some opportunities to start aligning some of the definitions we're using, even with respect to CEAA's wording. That would be a way of helping, maybe, to reduce some of the confusion.

[Jeff Watson, Conservative, Essex, ON]

You may be answering my next question. As I read through Transport Canada's pamphlets, I wonder why, if they're already excluding minor works, we need legislative change, if it's already being done.

That may be one way of addressing the concerns of other departments, then, specifically. Maybe there are two approaches. One is to define “minor works”, and the other is to exclude them.

Am I on the right track with that? If Transport Canada is doing it already, the question is, why do you need us to do a legislative change to “minor works”? It may be for other departments.

Who wants to weigh in on that?

[Shirley Anne Scharf]

Mr. Chair, this may be something we'd want to specifically bring back to our colleagues at Transport Canada, to have them provide a written response to committee members on this particular question. I think they're most expert in the definitions in the act and how it currently applies and how their current risk management approach applies.

[Jeff Watson, Conservative, Essex, ON]

That sounded like a bureaucratic answer, but okay.

I have another question, and it's just one to clarify. I'm looking at the Canadian Environmental Assessment Agency's deck. They say, “Often, the Navigable Waters Protection Act applies to a project component associated with a larger development proposal.” That seems to fly in the face of what we heard: that most of the applications in fact are for small works, and that, therefore, is why we need to exclude them.

Can somebody square the circle for me? It sounds like a contradiction.

[Steve Burgess]

I can do that, and hopefully I don't go over time. It's not a simple question, unfortunately.

Essentially, very often what we have is a situation in which we have a major development proposal. Let's take a mine, for example, or a pipeline project. The federal decision with respect to that overall development relates to perhaps just a stream crossing for the pipeline rather than the whole project itself, or water intake with respect to the mine. There are situations where the federal environmental assessment will relate to those subcomponents of the overall project rather than to the entire development proposal.

[The Chair, Conservative, Merv Tweed]

Ms. Flood.

[Ginny Flood]

Yes, Steve's right that there are components. We do not regulate an entire project. Often provincial processes under environmental assessment will regulate an entire project. We may be authorizing one piece or one component or activity related to that project. I think that is a fairly significant differentiation between our roles and the provincial roles, and it does become confusing.

[Shirley Anne Scharf]

Might I respond to the earlier question? Our understanding of the minor works provisions and the reasons for this was that there was not a formal exclusion list in the current legislation and the exclusions that were occurring were happening on a risk management basis.

I would defer to my Transport colleagues to confirm that, but that is my understanding on that issue, Mr. Chair.

[The Chair, Conservative, Merv Tweed]

Before I go to Mr. Maloney, would we be better to be looking, as part of this review, to eliminating the automatic environmental assessment if government funding is involved? I have experiences where we're talking about $1,000 or $1,500, and because there's federal money involved the assessment has to take place. It does seem to take forever to get that done.

Is that something we should be considering as a committee, putting a value on whether or not it kicks in? Because you're talking small projects; you're not talking big money.

[John Smith]

The funding trigger--in other words, a decision that needs a funding that triggers an EA--is something that's in the legislation. In terms of considering whether to suggest changes in that area, it would involve a legislative change.

There are various mechanisms within our current legislative framework that we use as much as we can to try to focus the system on the more significant projects. I mentioned an exclusion list regulation. We have a process of class screenings where you have a project that can't be excluded but can be dealt with through a routine manner, and that streamlines the system as well. So within that overall system, there are some ways that we try to use as much as we can to put the focus on the bigger projects.

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Maloney.

[John Maloney, Liberal, Welland, ON]

Ms. Scharf and Mr. Grady, in your presentation you referenced the suggestion of removing named works from the Navigable Waters Protection Act for quicker approval because they're now a significant interference to navigation, and then you referred to causeways, dams, and booms. I can think of no greater interference to navigation than a dam, a causeway, or a boom. What am I missing here? If you do that, then we don't have a Navigable Waters Protection Act at all.

[Keith Grady]

I think the point is that in my understanding, the way the act is currently structured, the named works are dealt with in a very specific manner, even though in some cases those very works may not be of concern from a navigation safety point of view. The proposed change, as I understand, involves providing Transport Canada with greater flexibility to decide how the review and approval of particular projects should proceed, and there could be situations where they would not need a review and approval that is as in-depth as they currently receive.

It's not to take them off completely, but it's to provide greater flexibility to the department in order to design the assessment and approval process to match the project circumstances.

[Shirley Anne Scharf]

Mr. Chair, if I might add to that--I believe Mr. Osbaldeston certainly made the point with me, but I believe he made it with the committee as well--right now they must go through that full approval process. So if you're redecking a bridge or putting guardrails in on a bridge, which is not interfering with navigable waters and is a very small type of project, it must be considered and go through that approval process. It's not at all to suggest that major causeways and bridges wouldn't be subject to the act and subject to the full approval process, but it's to take the smaller stuff out of that, which currently creates a queue and holds things up.

[John Maloney, Liberal, Welland, ON]

But even a small causeway or a dam is significant.

[Shirley Anne Scharf]

Absolutely, and that discretion wouldn't be lost. It's more in these things I gave as examples, redecking a bridge or putting guardrails in. There might be--