Transport Committee on April 29th, 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 number 23. The orders of the day are, pursuant to Standing Order 108(2), 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.

Joining us today from the Federation of Canadian Municipalities are Mr. Don Johnson, who is the president of the Alberta Association of Municipal Districts and Counties; Mr. David Marit, president, Saskatchewan Association of Rural Municipalities; and Ms. Susan Irwin, who is a senior policy and research analyst.

For the committee's information, we have circulated the document. You may see some variance between the presentation and what's in the actual document, but I think it'll all come clear as we go through it. I hope everyone has that.

Dave, please proceed.

[David Marit, President, Saskatchewan Association of Rural Municipalities, Federation of Canadian Municipalities]

Thank you, Mr. Chairman.

It is indeed an honour and a privilege for us to be here today. I want to thank the committee for giving us this time on the agenda.

My name is David Marit, and I am the president of the Saskatchewan Association of Rural Municipalities. With me today is my colleague Don Johnson, who is the president of the Alberta Association of Municipal Districts and Counties. In addition to our regular duties as presidents of these associations, both Don and I are also active on the FCM board of directors. In particular, Don is currently the chair of FCM's rural forum.

I want to thank you very much for inviting the FCM to appear before this committee. We are pleased this committee appreciates the impact of the Navigable Waters Protection Act, or NWPA, on municipalities across Canada and understands the need to amend this 1882 legislation.

The provincial transportation departments and municipalities are jointly responsible for the construction and maintenance of highway and road networks as well as water management infrastructure. For these departments and municipalities, the NWPA is the most problematic of all regulatory legislation. It is the most time-consuming, and in our opinion, the approval process does not often result in substantive positive changes.

We are encouraged that Transport Canada recognizes the burdens of this outdated legislation and has proposed changes to the act. While we are supportive of the intent and much of the content of the amendments proposed, our recommendations go somewhat further.

Representing municipalities, we would like to express our support for the recommendations that Alberta Transportation has established. In particular, Alberta Transportation has indicated several concerns with the NWPA.

First, the current process is lengthy, with approvals regularly taking one year but sometimes extending beyond two years.

Second, the act is applied very broadly to extremely small watercourses that are not used by boaters and have no prospect of being used as such.

Third, Transport Canada often requires accommodation for boat passage, and alternative methods such as portages are regularly rejected. We can give you many examples during the question and answer period. I hope we can discuss it there.

Finally, despite past interpretations of the act, there are no grandfathering mechanisms. To be more specific, for many decades the NWPA was only applied to watercourses having commercial navigation, thus rarely in prairie provinces. However, many of these works in the Prairies are now considered unlawful and are required to go through the application process to become lawful before any repairs are made.

All these points, as made by Alberta Transportation, are relevant to municipalities, as infrastructure ages and works require improvements and repairs. The application of the act is, in our opinion, too expensive and involves lengthy processes that do not benefit water navigation.

I'll now turn it over to my colleague.

[Don Johnson, President, Alberta Association of Municipal Districts and Counties, Federation of Canadian Municipalities]

Alberta Transportation goes on to make 10 specific recommendations to the NWPA. Taken directly from its discussion draft on the NWPA amendments, these recommendations include.... Just to give some context, we worked considerably with the Department of Transportation in the province of Alberta because of concerns over a large number of years, and we support those recommendations we're including. We're not plagiarizing them but we're adding a little bit of a municipal flavour as well. That will come out as we go on.

Number one, include a definition of navigable waters that will preclude the need to assess that on a case-by-case basis.

Number two, amend the definition of work to allow the exclusion of minor works or those that have little or no impact on navigation.

Number three, remove paragraph 5(1)(b), specifying start and completion times for the projects, to allow for flexibility.

Number four, remove the reference to the four named works in subsection 5(2).

Number five, amend subsection 7(2) to indicate that renewals of approvals on expiry are automatic. The onus of expiry should be placed on Transport Canada. If no problems are identified, then the renewal should be automatic.

Number six, replace the term “bridge” with “work”, and in section 8, replace the date May 17, 1882, with January 1, 1995. This would help to address the grandfathering issue, as we discussed earlier, and we'll talk a little bit more about that later.

Number seven, delete the expensive and ineffective advertising requirements in section 9.

Number eight, delete the words “in the opinion of the Minister” from subsection 10(1) to avoid the necessity of approvals for routine repairs.

Number nine, amend the act to include inspection powers for navigable waters protection officers, as proposed by Transport Canada.

Number ten, avoid the unnecessary increases in maximum fines as proposed by Transport Canada, since it already has the authority to demolish works.

While municipalities agree with these recommendations, we would like to take this opportunity to draw your attention to the importance of definition. This is one of the key areas of our presentation today. This was Alberta Transportation's first recommendation and, in our opinion, the most important to municipalities. Currently the term “navigable waters” is very poorly defined and is generally interpreted as being any body of water on which a canoe can be floated. This broad definition leads to significant and, in our opinion, unreasonable impediments to legitimate and necessary undertakings by municipalities. As such, we recommend the following elements be included in a revised definition of navigable waters for the NWPA.

A navigable water is a water body designated by a government authority as a navigable water for the purposes of managing development over, under, and adjacent to it in a manner that will reasonably protect the navigable water for transportation, commercial, or recreational uses.

For further clarity, a navigable water:

(a) must be, for at least three consecutive months of the year, capable of supporting typical transportation, commercial, or recreational type floating vessels that draw a draft of at least one metre;

(b) must be at least two kilometres in length and contain no fixed and permanent restrictions for floating vessels referred to earlier, and may include a single body of water, or only a specific section of a water body—for example, a continuous two-kilometre stretch of a stream—which is in total five kilometres long, or a two-kilometre continuous stretch of connected water bodies—for example, a lake plus a river plus another lake;

(c) may be a man-made or naturally occurring water body—in Saskatchewan and Alberta in particular, because of irrigation, we have a number of man-made reservoirs that are fairly extensive in length and width and require bridges across them.

In addition, a water body meeting all these criteria may be nominated for designation as a navigable water by one level of government only, either municipal, provincial, or federal.

A nominated water body must be designated as a navigable water body through a process of public review and provincial approval. A joint federal-provincial approval process would apply for nominations in which there are interprovincial or international navigational issues associated with a designation or a non-designation of a nomination. Once a water body is designated as a navigable water, it may be de-designated by following a process similar to that which led to the designation in the first place.

We strongly believe that if these components of a definition were adopted, the act would be clearer and more practical and would ensure safe and effective navigable waterways for Canadians.

In conclusion, we would like to stress that the Alberta Transportation recommendations have been developed after comprehensive research, and we support the direction in which they have gone. Our proposed definition was developed through discussions with and feedback from municipalities that have been and that are adversely affected by the act's current application. We have heard many stories from communities that have dealt with serious time delays and cost overruns, and we'd be more than happy to share a few of these stories with you when we answer your questions.

We want to thank you again for taking the time to listen to our concerns. We are confident that your committee will make the appropriate recommendations to the government for the necessary changes to this specific piece of legislation. We really do appreciate--and Dave mentioned this at the start--the opportunity to appear before the committee, and we further appreciate the government opening up this act to review, because it's problematic for a lot of us at the provincial, federal, and municipal levels.

Thank you, Mr. Chair.

[The Chair, Conservative, Merv Tweed]

Mr. Bell.

[Don Bell, Liberal, North Vancouver, BC]

Thank you, Mr. Johnson.

I noted in your presentation, further to your discussion about the changes to definitions, you made the following recommendation: “Remove the reference to the 'named' works from the Act to allow for the exemption of those works...”. Can you expand upon that?

[Don Johnson]

One of the previous presentations talked about the fact that when the original act was put together you had bridges, dams, and those kinds of things, which were impediments to boat traffic, commercial or otherwise. That was in 1882, and things have changed since then. When you get into dealing with that definition, if you change that up, there are other kinds of structures that might be impediments as well.

As well, when you have department staff who have to administer that, they have no flexibility, because those works are clearly defined, so they have to deal with that as specified. So if you change that definition of work to allow the exclusion of minor works, then that allows more flexibility in dealing with it.

Coupled with that are some prescriptive directions for the responsibilities of the officers, so they don't have too much latitude in coming up with new and creative ideas, which has been one of the problems we've had in the past.

I don't know if that helps to clarify it.

[Don Bell, Liberal, North Vancouver, BC]

You also make reference to the environmental assessments, indicating that this adds a significant cost to municipalities, whether for David or you, Don. I wonder if you could amplify on that.

[Don Johnson]

One of the real challenges we have in rural communities is a capacity issue. We've shared with Minister Cannon some of the concerns we have, for example with tripartite funding programs into which the federal government puts in a third, the province puts in a third, and we put in a third.

One of the challenges we have with this is that once you make an application and you get the grant.... You make the application, and then the navigable waters people come and assess it, and it takes a little bit of time to do that. Once they've completed their assessment, it goes to the environment department for their assessment, and that takes another period of time. We also end up dealing with provincial regulations, and their departments of environment and transportation become involved. In some cases, we've gone a year to two years past the original approval date of the grant. Now the cost has changed significantly, particularly in Alberta right now, and you could double or triple those costs. In some cases it has added an additional $500,000, which for a small municipality is a fairly significant cost. We have some examples of those kinds of things in the case of bridgeworks.

One of the challenges we have in the irrigation area is that irrigation canals, under the definition, are navigable waters, but the legislation under which irrigation districts operate does not allow any kind of vessel traffic on those waters. So they're not navigable by the local definition, but by the federal definition they are. So there is a conflict there.

We have significant bridgeworks. For example, in Alberta we have 10,000 bridges. The rural municipalities I represent have responsibility for 97% of those bridges. There are 9,700 bridges. Many of them are the irrigation district bridges, and it really ties up our timeframe and adds significant cost to it. At the end of the day, if you look at what's happening with provincial auditors general as well as the federal Auditor General, there is a lot of discussion about value for money. Are we truly getting good value for that money when we're adding significant costs with these kinds of delays?

If we could retool the definition, I think it would probably eliminate a lot of the applications and, if we had more local responsibility for that, the necessity of coming forward.

Does that help?

Dave, I don't know if you want to add anything.

[Don Bell, Liberal, North Vancouver, BC]

Yes, it does.

Mr. Marit, you were going through your list of ten points. I think it was you who had the ten points.

[David Marit]

Alberta had the list.

[Don Bell, Liberal, North Vancouver, BC]

It was Mr. Johnson.

I presume you will be submitting that to us, because we don't have a copy of it.

[Don Johnson]

Yes, and I apologize for that. We've made arrangements, and we're having a draft translated into both official languages. We will have a copy of these ten specifics as well as the municipal request for further clarity on the definitions that I added at the end.

[Don Bell, Liberal, North Vancouver, BC]

On item 9, you talked about deleting the reference to the minister in subsection 10(1). Item 10, as I recall, was to delete the fines, as the power to remove the work exists. I'd like clarification on item 9, your reference to the minister. On item 10, in regard to deleting the fines because you feel the power to remove those works exists, doesn't a fine act as a deterrent? Removing the works means that the cost is lost to the person who put the works there. Speaking as a former municipal politician, in municipal terms that somehow doesn't seem adequate.

Could you could comment on those?

[Don Johnson]

I'll deal with item 10 first. The other one is item 8. You don't have that in front of you, and I apologize for that.

On increases in fines, I've read some of the discussion that you've had so far and some of the comments by Transport Canada on this. It seems to us that the current $500 to $5,000 is not really an impediment for a lot of people. If you look at what the cost is, particularly with delays, $5,000 is very insignificant. For you and me and our pocketbooks, that's a lot of money, but on these kinds of things it's not.

One of the challenges coupled with that is that over the last 100 years there have been a lot of bridges constructed in Canada that would be termed unlawful under the legislation. In order to do repairs on those, they have to be made lawful, but how can you make them lawful without doing the repairs? You get into a circular argument with that. Do the fines really offer any impediment?

In terms of the legislation, if it were changed Transport Canada would have the authority to demolish a bridgework if it didn't meet the requirements or the standards. To me, that's a more significant penalty than a $5,000, $10,000, or even $50,000 fine. I don't know what level you would put the fines at to make it a serious impediment. I think the removal of a structure would be more of a penalty and would really make people pay attention to it, so that when they're doing their engineering and their bridgeworks they're going to adhere to what the legislation says and make sure it's adequate so they don't have any chance of that happening.

[Don Bell, Liberal, North Vancouver, BC]

Again, from my experience in dealing with things municipally...and I'm speaking now of North Vancouver, where I was the mayor at one point. And I'm not talking about navigable waters; I'm talking about fines against items that should have been approved appropriately but were built incorrectly. It's sort of “go ahead and do it, and beg for forgiveness later”, but then arguing that removing something—which is always the ability of a municipality, at least under B.C. provincial law, where they have the right to remove structures that have been built but not approved with a building permit, for example—is an unnecessary burden and it's better to allow some kind of post-approval process. The fine seems to be an extra incentive in many cases, and that's the reason I asked the question.

[Don Johnson]

I think that's a fair comment about a municipality. I've dealt with the same thing. If somebody is building a structure that doesn't meet the code or the zoning requirements or whatever, then you have a stop work order issued and you give them some time to correct it. If you had a fine in there, it could have some deterrence. I've gone through the stop work order or removal of the structure as well, and it's been quite effective where we've had that done.

I'm not sure I can transfer that experience to the municipal side, because I've been exactly where you are, to a bridgework, when you're dealing with an order of government. Typically, even with irrigation canals, it's the municipality or the province that builds those structures.

Does the penalty apply the same way philosophically with an order of government as with a private citizen, where a fine might be a more effective deterrent? Does that make sense?

[Don Bell, Liberal, North Vancouver, BC]

Do you want to comment on number 8?

[Don Johnson]

Number 8, yes, the opinion of the minister.

If you make some of the changes that have already been recommended, where you're a little bit more prescriptive in terms of the powers of the officers, then you're not dealing with the minister. How many times is it going to come back to the minister? Is the bureaucracy going to come back, are the approval officers going to come back to the minister and get his opinion on that, or is it more effective to leave it at the other level, with the approving officers dealing with the municipal and provincial governments? That's what we're saying there. Does it kind of gum up the works, and is it necessary to have “in the opinion of the Minister” there and give him that responsibility? Ultimately, the minister has responsibility anyway.

[The Chair, Conservative, Merv Tweed]

Monsieur Laframboise.

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

Thank you, Mr. Chair.

First of all, thank you for being here. Before getting into federal politics, I had the opportunity to work at municipal level. I was the mayor of a small village of 750 people for 18 years. I was president of the Union des municipalités du Québec from 1997 to 2000. So I understand your position.

My first question goes to Ms. Irwin of the FCM. I for one want to see the act amended. On the subject of environmental assessments, the FCM text says that, when a project is approved, the assessment can result in significant costs for municipalities. I understand that, but I think that you should mention that, just because the federal government is out of the picture, it does not mean that there will be no environmental assessments. You have other regulations to comply with. In Quebec, for example, you have the environment ministry. Municipalities often have to go through two assessments, one by the province of Quebec and a federal one.

When you produce a document, you cannot send the message that you want to save time and money at the expense of the environment. You have to meet environmental standards. The situation has become very complex. The legislation has been amended and things have been added. But the definition has not been amended, meaning that, for small works, there are huge delays and a good deal of money that has to be spent.

But, just because the federal government is going to get out of the area, it does not mean that you are going to be able to put up all kinds of infrastructure on the banks of your waterways. Cities and provinces have to meet environmental standards. You know Alberta's situation better, but that is the message I would like to hear.

[Don Johnson]

Merci, monsieur Laframboise.

That's a fair comment. I'm not sure we're suggesting at all that we not be subject to environmental responsibility; we're saying the process should be simplified. If you change the definition, with some of the recommendations we're making, that will simplify it and shorten up the timeframe. You will still have responsibility on the environmental side to meet the requirements.

I think one of the challenges we have is that many times we really don't know what the rules and regulations are, and there seem to be differing interpretations across the country. I've read some of the background. When we went through with DFO the last three years.... We now have a memorandum of understanding. The chairman was in Brandon in February, and we finally reached an agreement on how to make that more workable and more effective.

In Quebec there has been some discussion—I think it went to the Quebec Superior Court, and I apologize that I don't have that information directly in front of me—about the definition of navigable waters and the challenges they have, in the same way we're talking about today.

While I'm sensitive to what you're saying, as a municipality we're not saying we don't have that responsibility, because we clearly do. We need to have some clarity of the definition so we know what the rules are. If we can avoid some of the long and complicated assessment procedures...and to me there's no reason. Even for a good environmental assessment, it doesn't take a year to do an environmental assessment.

We also get involved with DFO, so there are provincial regulations on the environment, federal regulations on the environment, provincial regulations on engineering standards, and federal standards. There's a whole mix of regulations we need to be responsible to in making certain we do this correctly.

I absolutely agree with you that we need to be environmentally responsible, and we're endeavouring to do that. We're just saying to clarify the definitions.

We don't have the Environment folks here today. Maybe we need to talk to those folks about that to get some clarity on what their requirements are. We have had discussions. I think it will simplify it, shorten up the timeframe, and reduce the cost. At the end of the day, you and I get to pay.

I don't know if that answers your question.

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

Go on.

[Don Johnson]

I'm not abrogating our responsibility.

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

It is OK. That is what has to be clarified. Of course, we are going to ask provincial representatives to appear, but municipalities must not get the message that we want to save money at the cost of the environment. That is not the case at all.

You gave the example of Quebec, with which I am very familiar. Some naysayers use every possible piece of legislation, the Navigable Waters Protection Act, for example, or other provisions, to try to oppose projects. That has to stop. You are right, the rules must be clear so that environmental standards can be developed in a climate of respect. And we do not want to create a maze that would allow naysayers to use almost anything in order to oppose a development project.

Are you able to answer, Mr. Marit?

[David Marit]

I could say a lot on this one, because I've been taking the lead for a couple of years to have this act changed and reviewed. It goes back to examples of what has happened in provinces. We have many examples in our province of projects that have been delayed, and not for environmental reasons. That's the ironic part of all this. They were approved by the federal and provincial departments of environment, and fisheries and oceans.

I will give the example at this time of a bridge replacement at Whitesand River, located in the rural municipality of Insinger. The Department of Transport staff were insisting on a multi-plate culvert, at a cost of $400,000 to the municipality, to accommodate possible canoe travel. The Department of Fisheries and Oceans had already approved the use of three culverts, at a total cost of $125,000. The project was held up for over a year and was only settled after the federal election. We came down and presented our case to the navigable waters staff and said that it made no sense. It was on a waterway that only ran for about three to four weeks of the year, but they were insistent that we had to have it for canoe travel.

That's why we're here today to have changes to the definition of what is a navigable waterway. It's important, and if we can move this small part of it, as far as we're concerned, it will be huge for our members, but it will be small as far as what's in the act and the legislation is concerned.

We have numerous examples of where the approval process has been done in different departments and ministries, but it's held up because of the Navigable Waters Protection Act. That's why we're here today talking to Transport on this issue.