Transport Committee on May 29th, 2008

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Volpe.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Thank you very much, Mr. Chairman.

Thank you, Ms. Tully. Let me tell you right off the bat, I find your responses quite refreshing. You've given us a different perspective on the picture. I like the fact that you're able to answer every question without having to refer to notes. I try not to refer to any myself--however, I must.

Ms. Tully, we've been looking at navigable waters protection program applications. Quite some time ago we had representatives from, obviously, the various jurisdictions to give us an indication of the total number of applications in process and the ones that get accepted. I'd like to read off a couple of things for you, if you don't mind.

For example, in 2006, out of the 2,741 applications received and 2,038 carried over, only 46 were rejected. The following year, out of a combined total of 4,432, only 153 were rejected. The reason I give you those two figures--the others are all similar for the previous eight years--is that members of the committee wanted to know what was so pressing that we had to look at some of these considerations. The issue was that the delays were not substance oriented, they were process oriented. So the same thing kept coming up over and over again. Some of the recommendations you see as amendments are ones that, were they to have received approval by Parliament, would facilitate a process that still results in this kind of--i.e., the figures I gave you--acceptance rate.

The second thing I'd like to bring to your attention for reflection is that we've had before us members from the Department of the Environment, Fisheries and Oceans, representatives from the various provinces. You heard one of my colleagues talk about the deputation made by the Province of Alberta in conjunction with other provinces. They came before the committee after having consulted environmental interests, environmental groups, etc., and they came forward with a representation you have critiqued.

Are we missing a disconnect that we should be looking at? Our impression was that we would be looking at facilitating issues of local infrastructure needs rather than issues that were going to be of a larger dimension that are not treated by the act, not envisaged by the act, and don't exclude the intervention of DFO or the environment departments and the provinces and the federal government. What are we missing?

[Krystyn Tully]

I'll answer your second question first.

To my knowledge, none of the Waterkeeper programs has ever been consulted on this, and certainly none of the volunteer organizations that I spoke to in the Lake Ontario watershed has been consulted on this. We were up on the Abitibi River earlier this week taking a trip down the river, recreating a traditional native voyage, and they certainly also were not aware of any of these issues. It's possible that in terms of a disconnect in the earlier consultation process, the grassroots groups or enough organizations weren't captured or weren't consulted. Maybe that's why this perspective is new or newer to the committee.

I would also say that--

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

While you're thinking for a second, it struck me that, because you use the example of Toronto and I too am from Toronto, there's been a proliferation of marinas all along the waterfront, as well as additional fill-in in the Toronto harbour area--all of Front Street and south is all fill-in--all of this would have an enormous impact on the navigable waterway systems and on the quality of the water and the environment. But the amendments to this act don't really envisage doing anything about that. I think it would probably be pretentious to do that anyway, but that's a personal aside.

How do we match up the macro-movement of whatever other activities--whether it's boating pleasure or whether it's industry business and societal needs--with something like this, the navigable waters? I don't mean to simplify it, but essentially it's projected as something that says we need to have a farmer in field A be able to put in a bridge or to make some other adjustments that may be needed at his place, or a small community needs to do some things, that really have nothing to do with the waterfront in Toronto where it seems as if the wild west--no offence to anybody--is the order of the day.

[Krystyn Tully]

Tools are available under the Environmental Assessment Act--the screening report, as I mentioned--so you don't have to do every environmental assessment from scratch. For anything that falls into the class screening, you could have class screenings for small bridges, those kinds of things.

The second point is that in terms of delaying the process, the environmental assessment process itself is not that lengthy on paper. Not every project has to be sent out for public consultation. It's a discretionary decision under the act whether or not to invite the public to participate. Second, when public participation is involved in a screening level environmental assessment, the mandatory period of time to review the documents is only 30 days. Technically, then, under the environmental assessment process, at most you could be looking at a 30-day delay. So I'm not exactly sure if I understand why the EA would be such a deterrent.

In terms of the difference between the number of applications and the number of approvals, it would be interesting to see how often the environmental assessment process actually improved the original proposal. For the most part when we participate in EAs, we're not trying to use the process to stop a project from going forward. We're trying to make sure that whatever somebody wants to do is fine as long as it doesn't infringe on any of the public rights and what terms and conditions should be attached to that proposal to make sure that swimmability, drinkability, fishability, navigation, and these other issues are addressed.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

I appreciate that, Ms. Tully, but I for one on this committee have been wrestling with the various departments whose interest must be triggered before any applications are brought forward. That's why I gave you the numbers about the ones that are carried forward from year to year: 2,000-plus are dealt with every year, and an additional 2,000 plus are not. That tells me the delay is much more than 30 days.

The reason we have these figures is that the committee demanded from the department a collection of all the delays or any of the applications that were being held up and the rationale for them being held up, so we could deal with a problem that was real rather than one that was perceived.

At least four departments federally must be engaged whenever there is a serious question, and none of them is necessarily triggered by the other one. They can be triggered independently, and their respective provincial departments do the same. I think Monsieur Laframboise gave you an indication earlier on about the frustration at provincial levels about how all of the departments that are activist--so activist departments--in the maintenance of the environment are all engaged in the process. Unless I've read them all wrong, they have asked this committee to come up with a mechanism for not necessarily discarding issues so we can move forward, but to see if we can collect all the precedents that come forward that are constantly repeated one after the other, so from an administrative perspective we could both safeguard environmental issues, or, to use the most egregious one, the Petitcodiac River causeway and all the others that really don't fit into that category.

I don't know whether I'm making myself clear, Ms. Tully. I'm asking whether the philosophy and ideology of social development and economic development that may have prevailed or been non-existent 30, 40, 50, or 60 years ago and as prevalent today can go hand in hand with the immediate needs that others have come forward and identified from the institutionalized grassroots philosophical positions you've outlined.

Were you ever consulted by them?

[Krystyn Tully]

No. We found out about this from the letter from your chair. We do read the Canada Gazette, but no government department has ever reached out to us to consult on this issue.

I don't doubt that there may be an administrative problem with the way this act is being administered. I would suggest the solution is not in changing the legislation. The legislation itself is okay. The problems are not inherent in the wording. The problems may be in the way it's being interpreted or the way the programs are being administered within the government, but for every suggestion that has been put forward, actual amendment of the legislation is unnecessary to deal with the problem.

So I don't doubt for a second that the problems or the concerns that you've raised are legitimate. I'm just saying that I don't believe, and it doesn't appear to be the case, that changing the legislation is the only available solution.

[The Chair, Conservative, Merv Tweed]

Thank you.

We'll go to Mr. Carrier.

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

Thank you, Mr. Chairman.

Good day, Ms. Tully.

I want to come back to the distinction that needs to be made between the environment and the navigability of waterways. I'd like to hear what you think about my interpretation. In my opinion, whether or not a waterway is navigable is an environmental consideration. It comes down to a question of our natural environment. To navigate a waterway is to take advantage of our environment. Protecting our navigable waters is also a matter of protecting our environment.

How do you feel about my proposed definition?

[Krystyn Tully]

I think that's fair. For the most part, we don't find that our communities are divided between environmentalists and non-environmentalists. We find that, for the most part, everybody cares about where they live. Whether they consider themselves environmentalists or not, clean water and access to water in their community are vital to the success and the health of that community.

Navigability is one indicator of whether a public or a community is still controlling and still accessing its water body and whether its relationship with that waterway is healthy.

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

Thank you.

In the list of recommendations at the end of your submission, you refer to proposals 1 to 3. You recommend that the government engage in public consultations , including outreach to non-profit organizations and the academic community. In your opinion, is the current level of consultation inadequate? You have read what previous witnesses have said. Do you believe that there is a need for broader consultation? Are you recommending that consultations be held across the country, rather than just here in Ottawa?

[Krystyn Tully]

Yes, that's definitely what we would recommend. As I've said, the issues of navigation and navigability change dramatically from community to community. So I would never, from Lake Ontario, want to recommend or suggest that I represent a maritime community on an ocean waterfront where the issues--with tides, estuaries, that kind of thing--would be very different.

Also, with due respect, the committee process, for the most part, is difficult for individuals to participate in. There's not a lot of notice about when the committee hearings are going to be. There's not a lot of opportunity to get written submissions in. For individuals who are not necessarily professional environmentalists or professionals working for the navigation transportation industry, this isn't always the best forum for them to bring their concerns to government. Also, I think the academic community, in this particular case, because we are dealing with a legal issue and a philosophical issue in some respects, could make a valid contribution talking about why this right is so important to people and what can be done to protect it.

We are a charity. We are an education group. We're a group that's of assistance to the public. We're not a lobby organization. So I'm not here today to try to tell government what it should be doing or shouldn't be doing or to exert any power or any influence. We wouldn't come and say that you can't make these changes. But we would strongly recommend that there be a national consultation if the committee or the government is interested in pursuing changes to those first three proposals. We think you would learn a lot, that the community has a lot to say, and that there may, in fact, be more concerns on the ground than the government is aware of at this time.

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

Thank you.

I wanted to ask a question about proposal 3 which calls for the removal of the four named works from the Act, namely bridges, booms, dams and causeways. These are major works to be sure. In Quebec, when any major work is involved, the Bureau d'audiences publiques sur l'environnement initiates an environmental assessment. In that respect, this afford us some measure of protection.

Have you looked at the situation in each province? Do you feel that the legislation in Ontario provides adequate protection, or do you believe that the federal legislation is key?

[Krystyn Tully]

In Ontario the federal legislation is key. For the most part the provincial environmental assessment requirements only apply to provincial undertakings. A private proponent, a corporation, for example, that wished to build a bridge or put in a causeway, might not necessarily trigger the provincial environmental assessment process, so the community here relies very heavily on the federal statute.

I know the environmental assessment requirements vary from province to province, so the people of Quebec are quite lucky that they already have that protection in place. But having this national standard ensures that every community across the country enjoys those same opportunities.

[The Chair, Conservative, Merv Tweed]

Thank you, Monsieur Carrier.

Mr. Watson.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Chair, and thank you to our witness for appearing here.

We've heard from municipalities on the study we're doing. We've heard from provinces and territories. Though we may not have heard the testimony at the committee, many of us have heard from the farming community. In our own communities we've heard from neighbourhood groups looking to build pathways and increase the livability of their communities. We've heard from a broad range of people, and now we have your testimony today.

The overwhelming weight of the testimony is that the act needs to be changed, it needs to be modernized. You may be sensing some of the committee's skepticism about your testimony today. That's because the overwhelming weight of what we're hearing is that the act itself doesn't function properly; that the act should function to protect navigation; that it's not necessarily an environmental piece of legislation; and that we may have other environmental protections, both within federal legislation and at different levels of government, that would cover off those particular issues. Your testimony today is taking a much different perspective.

I'm reading the brief that was submitted to the committee--your executive summary and comments--and if I'm understanding your brief correctly, you essentially want to leave the act the way it is, except for making the enforcement provisions stronger and tougher. Am I understanding your brief correctly?

[Krystyn Tully]

Yes. We were responding to the seven proposed changes. We went through each of the changes and gave you our comment on each one. That's with the exception of the wreck removal convention. We had no comment on that issue.

Essentially this is what we did: we looked at the proposals, we looked at the projects we're involved in, we spoke with some of the communities we work with and tried to understand how the changes could affect them, and then we gave you our analysis and our commentary for each of the seven changes that came from the transport department, I believe.

[Jeff Watson, Conservative, Essex, ON]

That was a long, meandering answer. Do I understand that Lake Ontario Waterkeeper essentially believes the act as it currently exists functions well except on the enforcement and the inspection side? Is that correct?

[Krystyn Tully]

I think we would suggest that we have no major concerns with the act in its current form; that, in response to the seven proposals presented by the transport department, this is our commentary; and that the first three proposals could have impacts on the community.

[Jeff Watson, Conservative, Essex, ON]

Let me take this a step further, then. If the act, as you say, functions well, and the thrust of the changes is to adopt some of the punishment provisions of the Fisheries Act and to beef up inspection powers, you want to make this a more environmental piece of legislation and move it further away from the issue of navigation. Is that correct?

[Krystyn Tully]

No, I wouldn't say that's correct at all. First and foremost, the Navigable Waters Protection Act is there to recognize the right of every citizen to navigate and to access our public waterways.

We looked at the seven proposed changes. If the department believes the current range of fines needs to be increased, then we've offered an example of a piece of legislation that was recently amended, or modernized to use your term, such as the Fisheries Act. That's not something that's a priority or a campaign of our organization; that was our response to the proposal in our efforts to be helpful to the committee.

[Jeff Watson, Conservative, Essex, ON]

Are there any other changes you'd want to make to the act? We're looking to modernize the act--

[Krystyn Tully]

I'm sorry, I missed the first part.

[Jeff Watson, Conservative, Essex, ON]

I'm asking whether there are any changes that you would propose. Your brief responds to the seven recommendations of Transport Canada. I don't necessarily see that what your brief proposes will modernize the act, only in the narrow cases of inspection and enforcement.

Are there any other ideas you have to modernize the act, beyond just responding to the seven recommendations? How would you foresee modernizing it? Or do you want to leave this the way it is essentially?

[Krystyn Tully]

I think it's fair to say that we wouldn't have an opinion one way or the other on the Navigable Waters Protection Act, except for the fact that the committee itself is reviewing it, and we had some expertise and some information to offer to the committee at this time. We are not, as an organization, seeking to change the Navigable Waters Protection Act or its purpose.