Transport Committee on May 6th, 2008

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

If I understand correctly, you have already examined the characteristics of Alberta waterways as they relate to navigation and you would be able, if we adopted a new definition, to identify all the waterways in the province that have to comply with the regulations. If I understood correctly, the act should be complemented by a schedule naming all the waterways in order to make things much clearer. Is it correct?

[Ron Middleton]

Absolutely. I would also say you could even do it by reference to a map, recognizing that there are many unnamed waterways and that the list might be very long by the end of the day.

In Alberta we have done the same thing, again with respect to fisheries, and in fact there are maps referenced in the act itself. These can be updated as well, in a similar way to how a regulation can be updated. So if our original map were found to be deficient, we could amend it as well.

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

On number 9, you say you would not object to amending the act to include inspection powers for Navigable Waters Protection Officers or having your construction sites inspected by any regulatory inspection agency.

[Ron Middleton]

Absolutely. We routinely have inspectors appear on our sites. In fact, navigable water protection officers have appeared on our sites periodically, although they have often appeared in the company of fisheries officers as well, and now perhaps I understand why that was the case.

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

As far as the application of the Navigable Waters Protection Act is concerned, could you give us some examples of processing delays that would not be acceptable considering the type of work you would undertake?

[Ron Middleton]

Yes, I do. I can name a couple off the top of my head, if you like. One is the Athabasca River bridge near Fort McMurray, which we are just getting under way. I believe that the approval took in the order of two years.

There is another one we're working with right now, the Western Headworks Weir. We are in Calgary and are actually proposing to modify it to make it safer for navigation. It's currently a drowning hazard, and we are proposing to modify it to make it safe for boaters. That is another one that's been in the works for two years, and we are desperately trying to go to tender right now.

[The Chair, Conservative, Merv Tweed]

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

Thank you, Mr. Middleton, for appearing today.

Going through your recommendations, I have some questions based upon what you submitted, some clarification.

On number three you are suggesting to drop the time completion and start dates for the project. Six months to three years is not appropriate, in your submission.

The concern I would have, and maybe you can answer this, is that a permit could be issued and two and a half years later nothing happens with it. Perhaps the conditions have changed during that time. Why should there not be a process to go through again, or have a review, or something different?

My concern would be that if the work didn't get done for a long time, things change.

[Ron Middleton]

I thoroughly understand that. We wouldn't object even to having a clause that says “within such time as the minister may require”.

The inclusion of those arbitrary dates that end up being the default on approvals is what causes us the problem. Certainly we appreciate that approvals may become stale-dated, but as I say, it's often the case that the start date can be problematic for us. Through the negotiation process with Transport Canada, we can affix dates that are mutually acceptable.

[Brian Masse, NDP, Windsor West, ON]

Okay. That was helpful.

With regard to number seven, you are requesting the deletion of advertising, noting that it's expensive, ineffective, and outmoded. What types of advertising requirements are there right now? Maybe you can refresh us on that.

[Ron Middleton]

What's required now is to file plans at the land titles office or its equivalent, which in many cases, including Alberta, doesn't really exist any more, since we've gone to electronic registries. It's to advertise in the Canada Gazette, which I don't think is on the standard reading list for most Canadians, and advertise in two local newspapers.

That may or may not be appropriate, because again, as I think Transport Canada has noted, if you're dealing with a location where there are a lot of cottagers, for example, or something like that, or if you're advertising in the winter, they probably won't see the local papers.

Advertising appropriate to the project we think would be better.

[Brian Masse, NDP, Windsor West, ON]

Right. But then they wouldn't get anything at all under your proposal, so if it wasn't there--

[Ron Middleton]

I think it might be a case of advertising in such manner as the minister may require. Something of that sort would be quite acceptable to us.

[Brian Masse, NDP, Windsor West, ON]

You're giving a lot of power and discretion to the minister. The minister may not want that, either.

[Ron Middleton]

We have similar requirements in other legislation. I would point out again that CEAA has its own advertising approach as well, which is normally adequate.

[Brian Masse, NDP, Windsor West, ON]

Okay.

On number 10, with regard to the fines, I guess what would be concerning is that you're saying it should be a sufficient deterrent for you to demolish the works. The question I would pose is if somebody went ahead with works they were not legally entitled to do and they were demolished, and it had to be done by the government or the municipality for whatever reason, why should the public have to pick up that cost?

[Ron Middleton]

The public should not have to pick up that cost. I think the act allows them to recover the cost, and hopefully the municipality or whoever is involved would come good. I know that the current fines have not been used significantly, and perhaps that's because they're so low that Transport Canada doesn't feel it's worth pursuing.

We don't have a strong feeling about this, but I would point out that there are things, and I shouldn't be saying this from my seat here, under the act that probably should be infractions that aren't. For example, failure to apply under this act to receive an approval is not a violation of the act itself. Under most legislation, it would be.

[Brian Masse, NDP, Windsor West, ON]

Preventing these things would obviously be better, yet you're open to some type of penalty system but are suggesting this one may not be the most effective.

[Ron Middleton]

It's probably not, because the act as it's structured is somewhat outmoded concerning where the penalties are levied. In my view, they are almost post facto, and there should be deterrents to doing the wrong thing in the first place. As it is, the whole order of enforcement doesn't come in until you've done something wrong and they've ordered you to change it and you've refused do so.

[Brian Masse, NDP, Windsor West, ON]

You may not be able to answer this, and it might be more appropriate for Transport Canada, but it was interesting to hear you say that they don't really apply the fines right now. Their argument is that they're not sufficient to make it work—or that's one of the suggestions.

Of those who aren't compliant with the act, are there particular companies, or is there a particular field that predominates in non-compliance, or is it just in general? I'm wondering whether there are particular types of work or a particular sector causing some of the compliance issues.

[Ron Middleton]

In my experience, and I'm not involved in industry end-resource crossings and that sort of thing, probably the biggest issues I see are minor crossings on minor streams, things that would probably more often fall to the municipalities, even, than to us; cases in which they believe that a stream is not used for navigation and that a small culvert crossing or low-level crossing is adequate to meet their traffic needs and is economical and, since nobody paddles here anyway, wonder who the heck cares whether a canoe could theoretically get under it. That's where I see most of the conflicts right now.

[Brian Masse, NDP, Windsor West, ON]

Would those be ones that are somehow approved by the municipality, or just cases of private individuals going ahead with works that...?

[Ron Middleton]

It's more often what I see from the municipalities.

[Brian Masse, NDP, Windsor West, ON]

Thank you very much for your testimony today, Mr. Middleton.

[The Chair, Conservative, Merv Tweed]

Mr. Shipley.