Transport Committee on May 6th, 2008

[Martha Hall Findlay, Liberal, Willowdale, ON]

I was trying to allocate the level of responsibility that this has for the stoppage, but that's helpful.

Thank you.

[The Chair, Conservative, Merv Tweed]

Monsieur Carrier.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Thank you.

Welcome, Mr. Middleton. I am glad to meet a representative of the Governement of Alberta.

Every province of Canada try their best to make sure that their regulations are as clear as possible. You brought to our attention that the major problem was delays due to the approval of works being built on waterways. The objective of our present study is to clarify various cases where legislation applies, in order to at least be able to find a quicker way to solve real problems that come under the purview of the Department.

I would like in particular to stress recommendation 6 which goes like this:

Replace the term “bridge” with “work” in Section 8 and replace the date “May 17, 1882” with “January 1, 1995”.

Section 8 is then an exemption to the whole approval rule pertaining to bridges built before this act was adopted. One can easily understand this exemption, but the amendment you propose means more or less that the present act and the obligations it conveys would not apply to anything built before 1995. It seems to me that this exemption is a significant change.

I would like to hear what you have to say about that.

[Ron Middleton]

Yes, it is a significant change. We are suggesting not to exempt works that were created before the act was passed, but rather to exempt works created before the act was significantly applied.

In fact, the vast majority of works on waterways that would today be regulated were effectively unregulated for the best part of a hundred years. This does not seem to have created a great deal of difficulty. In our view, we add a lot of time to routine repair and maintenance works by requiring them to be made lawful under the act before they can go ahead.

I point out that there are still options within the act, safeguards that would allow Transport Canada to identify hazards and have us deal with them during repairs or rebuilding. I think this would be a way of eliminating a great deal of paperwork that is providing very little good for us today.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Rather than using the word "work", which is very general and which would allow anything built up until now, don't you think that it would have been more appropriate to replace the exemption pertaining to the word "bridge" by more specific works having a more obvious importance? Whether they be bridges, dams or weirs.

You mentioned that you discovered, while doing a review on navigation obstructions in 2004, that the vast majority of those were built by the Government of Canada. It is rather surprising to realize that the Government failed to comply with the act they are now reviewing. However, you mentioned this:

If you believe there is a need to have a least a cursory review of works built without an approval, amending Section 6(4)[...]

Don't you think that we could ask the Department to be stricter in the reviews they do? As long as we add precisions to the act, why don't we make mandatory a review of the works that did not get previous approval from our own Government?

[Ron Middleton]

You asked two questions. Certainly in generalizing that phrase to deal with works rather than simply bridges, we have included everything that was built prior to 1995. I acknowledge that. Perhaps my friends in Transport Canada can better advise as to whether there are a significant number of works as opposed to dams, bridges, and that sort of thing out there that do pose a difficulty that we would allow to slip through under this.

Under the second part of your question, I'm not entirely certain what we're getting at here. Certainly if you have difficulty with our first suggestion, something that would allow a cursory review by Transport Canada of every work when we replace it, without the need to undergo advertising, and so on, would be much more palatable than the way the act currently sits. I do not think it's feasible for Transport Canada to look at everything that is out there. First, they don't know, because they weren't approved; and second, there are an awful lot of them.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Shouldn't we be stricter and ask for a complete review by the Department of works already approved, rather than using imprecise phrases like “If you believe there is a need”.

Do you think we should accept all the works already built, even though they do not comply with the legislation?

[Ron Middleton]

Not necessarily. I would in fact like to see Transport Canada's staff be allowed to have more time in the field actually dealing with waterways and boating clubs and folks like that, rather than processing applications in an outmoded approvals process. Right now, I feel that they are buried under paper, and it's unfortunate that they do not spend more time looking at existing works.

As I said, we have a list of hazards and instructions that were identified, and perhaps we should set those up, that sort of thing, on a priority basis. So I certainly agree that there should be a mechanism to allow them and to encourage them to be proactive.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Could you make this list available to committee members?

[Ron Middleton]

I certainly could.

[The Chair, Conservative, Merv Tweed]

Mr. Fast.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair.

Mr. Middleton, I'd like to continue on that line of questioning regarding the grandfathering of certain works. You've suggested that you'd like to see the removal of the requirement for approvals prior to undertaking repairs and reconstruction. I don't have any difficulty with the repairs, especially if they're cosmetic. There's reference to a railing being installed. That makes sense. That should be done without a formal approval process.

However, reconstruction is a different matter. I can imagine that, with today's design standards, if you were going to replace an existing structure such as a bridge, the footprint might not be the same any more, or the navigability characteristics might not be the same.

It seems to me that if the focus of the act right now is to make sure we protect navigation, and if in fact we intend to continue with that focus, why would we not have some kind of involvement by the government when it comes to reconstruction, especially if there's a change in the characteristics of that structure?

[Ron Middleton]

Let me make it clear. The wording I latched onto is the wording that is in the act right now. And from the context in the act, “reconstruction” means putting it back the way it was, not modifying it.

In reality, of course, if we were going to make significant investment in a structure, we would probably be, at a minimum, modifying it to modern standards, and possibly replacing it, in which case it would be caught under the act.

We get into the problem of semantics when we ask when repairs stop and reconstruction begins, which is always the case. Where does maintenance stop and repair begin? Those are the kinds of things we are always caught in. Certainly I agree with you, in principle, that if we are going to make a major change or invest significant dollars in a structure, that's the time to look at any changes that we might make to better accommodate navigation, fish passage, and all of those kinds of things.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you for that clarification.

I'd like to talk a little bit about the fines you'd like to see either removed or left as they are. I think you admitted right here earlier that perhaps the fines aren't significant enough to provide the kind of deterrent to have municipalities and provincial governments and other authorities comply with the law.

We've just finished a study of rail safety in Canada, and we reviewed a report by Doug Lewis, which was prepared for the government. One of the strong recommendations in that report is that there be a system of administrative monetary penalties as sort of a medium approach to discipline. In that system right now, you have a heavy-handed approach under which you can revoke a licence, and then you have a very light approach, which really has very little effect.

I would apply the same reasoning to navigable waterways legislation. We want to have some moderate form of discipline or penalization that actually allows government to step in and make sure that authorities--municipal authorities, provincial authorities--actually comply with the law.

So I would raise the issue of a major construction work that is undertaken, which might be three-quarters finished, and which might represent an investment of many millions of dollars by taxpayers, but for which the taxpayers themselves have no say in the process of getting approvals. Let's say that an authority didn't get the required approvals, and now the only remedy is demolition. I would suggest to you that's probably, in some cases, a remedy too extreme to be realistic. There has to be some other way of making that authority--that municipal council--accountable for that poor decision, one that would not impose millions of dollars of costs to taxpayers but that would still raise accountability, and make the community aware of a failure to comply. Would you agree with me?

[Ron Middleton]

I probably would agree with you. I find it, of course, a little amusing, in that most of us who are involved in the business of trying to get things built recognize that there are many approvals that we have to get and many opportunities for the public to express their opinion on a given project.

However, with respect to this act, I would favour something that would kick in well in advance of our getting to the stage of a project, whether wholly or partially completed, that would be unacceptable. And as a lawyer pointed out to me once before, failure to apply under this act is not a violation of the act itself, whereas if that were something that was dealt with, that might well ensure that we would deal with things up front.

Certainly for anything that involves significant federal funding, as many transportation projects do, kick in the entire CEAA process, ensure adequate consultation at the beginning and middle of a project, and ensure public comment on the project.

[Ed Fast, Conservative, Abbotsford, BC]

In my experience as a municipal councillor before my current role here in Ottawa, I heard a lot of residents come to council saying, “Listen, you're driving us to a point where it's easier for us to ask for forgiveness than to ask for permission”. And I'd hate to see that standard applied when we're trying to approve public works of a significant nature across Canada.

It seems to me--and I think I'm supported by other members at this committee--that a system of fines, provided they're substantial enough to be a deterrent, is something we'd still want to leave in the legislation to make sure we don't have to just use the severest form of penalty, which is demolition.

[Ron Middleton]

I don't disagree. Certainly with respect to the other regulatory legislation we're working under, substantial fines, jail sentence, personal liability, and creative sentencing are all standard, as well as making the law binding on the crown.

[The Chair, Conservative, Merv Tweed]

Is there anyone else? I can open the floor up again for questions. Are we satisfied? All right.

We thank you very much for your presentation. I think Mr. Volpe summed it up: it was very thorough and very informative. Thank you, Mr. Middleton.

[Ron Middleton]

I express our appreciation for being allowed to come to speak to you about this. Good luck with your deliberations.

[The Chair, Conservative, Merv Tweed]

Thank you.

As a heads-up for the committee, on Thursday we'll be doing main estimates with the minister. Once again I remind you to have your hair combed and your smile on right, because it will be televised. It will be held in Room 269.

We have two meetings left after that before the break, on May 13 and May 15. I would like the committee to revert to the railway study, with the hope of concluding it on the final Thursday.

Mr. Bell.

[Don Bell, Liberal, North Vancouver, BC]

Will we deal with the railway study on the 13th?

[The Chair, Conservative, Merv Tweed]

Yes, that will be on the 13th, and on the 15th if necessary.

[Don Bell, Liberal, North Vancouver, BC]

I noted in the media today the issue from the Auditor General on air transportation safety. The Auditor General's report is coming out, and there are criticisms of the application and monitoring of safety management systems. I wonder if that's an issue we should discuss at some point, because it's in our purview here, obviously.

[The Chair, Conservative, Merv Tweed]

I'd like to reserve the last 15 or 20 minutes of that Thursday meeting to determine our future business. Obviously one topic will be navigable waters, but what's next? I suspect there may be some legislation coming forward too.

Is that okay?

[Don Bell, Liberal, North Vancouver, BC]

Okay.