Thank you.
We really appreciate the opportunity to speak to this. I think you've all discovered that this act is one that many of us involved in the implementation of infrastructure projects have found problematic over the years; hence the high degree of agreement that changes are required. We are all largely on the same side. The differences are probably more of degree than substance.
We agree with Transport Canada that a total rewrite of the act is something that is well worth doing, but we also are rather desperate to see some quick fixes if these are in fact possible. There's a lot of work under way, and this particular act is resulting in significant delays in important infrastructure projects right now. I'm sure you've heard that from other witnesses.
We believe the objective of any amendments you undertake should be to eliminate the need for approvals where no significant public good is being achieved. This should allow Transport Canada to speed up the processing of projects that warrant its attention and undertake activities that are of benefit. This would also remove the automatic triggering of environmental assessment and consultation requirements that further delay the approval process.
We are, both provincially and nationally, working with Transport Canada on cooperative ventures to improve the approvals processes within the existing act. However, we believe significant change is needed to the act; only so much can be achieved through goodwill and cooperation.
Specifically, we are looking for an improvement in the timeliness of approvals, the application of the act to areas where it does produce some good, a reasonable accommodation of navigation, and regulation of activities where they are warranted, not where they are not.
I'm skipping over the introductory material here to get to the meat of the matter in an effort to improve the timeliness of this. I'm going to cut to the chase here and talk about the recommended changes or the kinds of changes we would like to see in the act.
The first is the inclusion of a definition of “navigable waters”. I've provided some handouts here. Number one is the definition as it exists in the act. As you can see, it provides virtually nothing by way of guidance to anybody. We believe a clear definition, or at least a clear statement of intention of what the act is meant to regulate, should reduce the ambiguity and allow us to skip the first of the approvals process steps, that of determining whether the act applies.
We believe this can be done in any number of ways. We provide some examples. You can do it by reference to the purpose of the navigation, the type of vessel that you wish to accommodate, the physical characteristics of the channel, the actual use for navigation, or some combination of these. I provide some examples in my brief.
At a minimum, we believe, the changes should eliminate the need for a project proponent to first ask Transport Canada if the act applies to a given stream, and, only after that determination is made, submit an application, recognizing that each of these steps--in our recent experience--will take at least six months.
As an example, a few years ago Alberta undertook a little project to determine whether in fact it would be possible to look at all the waterways in the province. We talked to the canoeing guides for the province. We talked to all the boating clubs. We took over 4,000 previous determinations of navigability that Transport Canada had made on streams in the province. We looked at the natural characteristics of the streams. Using those, we set up some objective criteria, classified all the streams in Alberta, and in fact produced a map of navigable waters. Now, this map of course at the present time has no status, as it were, but it certainly demonstrates that it is quite feasible to do this. I did this with one staff member working part-time for about a year.
Second, we agree with Transport Canada on amending the definition of “work” to allow the exclusion of minor works and works that have little or no impact to navigation. That's a very simple change, and we agree with that one. As to what kinds of works those might entail, that could be worked out through regulation and discussion.
One that I don't believe Transport Canada has put before you relates to the second figure I have provided you, and that relates to the act itself that specifies start times and completion times for works approved under the act. We're not likely to see that sort of thing in legislation nowadays, as you don't usually enshrine those kinds of things in the act, and it is problematic for us, particularly the start date. We are attempting to tender projects well in advance of six months of the start of a project. Sometimes due to project delays we must put things off. We like to put things on the shelf. We have no difficulty with putting timelines within an approval, but having these rigid dates enshrined in the act itself we think is unproductive.
We agree with Transport Canada's suggestion to remove the four named works, and this is in figure 3 showing the section of the act that's involved. Naming these works requires them to go through an extensive approval process that may not be required. I noted some discussion of this in previous transcripts, and I can certainly provide examples of where this may apply, if the committee so wishes later on.
Next, we would like to see approval renewals become automatic unless there is a reason to do otherwise. Again, every time a decision has to be made, that adds work to Transport Canada's staff, requires another decision, and by and large is not necessary. So that might require an amendment to subsection 7(2), but it also might involve subsections 11(1) and 11(2), where renewals are mentioned.
Next is a significant one that relates to the grandfathering of projects. For much of the 20th century the Navigable Waters Protection Act was only applied to major waterways and major projects across this country. Both the federal and provincial governments assumed that was the intent of the act, and that's how it was applied. As a result, very few approvals were issued for about 100 years. As a result, many of the projects out there are considered unlawful. That means that before you can even do routine maintenance you must apply for an approval, and they must be given post facto approval, which requires the same process as an initial approval--again, a very long and cumbersome process just to do routine maintenance on an existing structure that's been there for many years.
There already is a grandfathering clause in the act, and we propose to modify that by effectively grandfathering every project that was built prior to 1995. We picked that date largely because that was the date Transport Canada, or its predecessors in the administration of the act, became much more active in looking at new projects, and I believe that related to the Oldman River Dam court case.
The other one we certainly agree on--and these are figures 6 and 7 in the deck I provided you--is that the advertising requirements in the act are outmoded and largely ineffective. They add time. They ask you to file plans and advertisements in places where nobody ever looks. Again, this is not the sort of thing I would expect to be enshrined in an act today. It can be dealt with in regulation and should be dealt with on a project-by-project basis. It may well be the case that individual notification of affected landowners in some cases may be more effective than advertising in the Canada Gazette.
The next one we would suggest, and this is relating to figure 8, is removing the phrase “in the opinion of the Minister” from subsection 10(1). This is the one that says “any lawful work may be rebuilt or repaired if, in the opinion of the Minister, interference with navigation is not increased...”.
Now, in our view, the requirement for that “in the opinion of the Minister” means that you must obtain separate approval even for routine maintenance and repair. Again, that's another decision that has to be made. Routine maintenance and repair is only intended to return the structure to its existing state, not to modify it. That's dealt with elsewhere in the act.
I would like to perhaps provide you with some comfort, if you believe we are going too far in trying to deregulate certain activities, by pointing out that under subsection 10(4)—and this is figure 9 in your deck, the last one—the minister, where he has seen that a structure is causing an impediment to navigation, may identify that. At the time when it comes up for repair or reconstruction, he may at that point require you to apply as if it were a new project and make whatever conditions are required at that time. That's similar to an arrangement we have with the Department of Fisheries and Oceans--Fisheries and Oceans Canada. Culverts that were built in the old days, when we didn't worry much about fish passage, we have identified between us, and when they come up for repair or replacement we are dealing with passage issues at that time.
The second-last one is that Transport Canada has proposed amending the act to include inspection powers for their officers. Quite frankly, it never occurred to us that they didn't have those powers, and we have no objections to their having them. We cooperate with all officials of all regulatory agencies when they show up on our sites.
And the last one is that Transport Canada has recommended an increase in the maximum fines under the act. Frankly, we believe this to be unnecessary at this time. It's not anything we feel strongly about, because we don't propose to get on the wrong side of the act, but we would point out that they do have, under the existing act, the authority to order you to remove structures that you install unlawfully, and that's a pretty potent deterrent in itself.
I think there are a number of issues regarding what constitutes infractions under the act, as well as the level of fines and responsibilities that should probably be addressed in a thorough rewrite of the act.
I'll leave it there. Thank you.
