Transport Committee on June 3rd, 2008

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair.

Thank you to all of you for appearing today.

I want to echo Mr. Masse's concerns about the projects that are already either in the hopper or on the cusp of being submitted. Legislation does take some time, even though I think we're talking about amendments rather than a wholesale replacement of the act.

I want to remind the members of this committee that this is an act that is a century old. It has undergone virtually no change since it was first introduced.

Mr. Osbaldeston, I share your concerns about some of the testimony Krystyn Tully gave last week. She drew on what she claimed was public policy and law going back 2,000 years. The Canada we know today didn't exist 200 years ago, let alone 2,000 years ago. One hundred years ago, when this act was introduced and passed, we didn't have motorboats on our lakes. We didn't have all the environmental assessment processes we have at municipal, provincial, and federal levels, which now are additional layers of protection for our environment.

I'm somewhat frustrated by that kind of approach. I think Ms. Tully did admit that this was an act that addresses navigability, as opposed to the environment. Then she spent 80% of her time trying to convince us that it's actually an environmental act.

I think we need to move forward. We have an old act that no longer meets the needs of a 21st century Canada.

My questions are going to basically use as a platform some of the other questions that have already been asked.

This is a question for you, Ms. Flood, or perhaps for Mr. Leboeuf. You've had a chance to review the Navigable Waters Protection Act, have you? Do you believe that the current act, that particular act, needs to be used as a trigger for environmental assessments?

[Ginny Flood]

I wish you had asked Yves first.

I think the purpose of environmental assessment is that it's really a planning tool. As regulators, before we make a decision we have to assess what the environmental impacts are of those decisions. That is the purpose of the environmental act. I think what happens often is that it's confused as being an approval for a project.

From my perspective, the environmental assessments exist so that whatever is taking place within a project--for instance, if there are going to be negative impacts to fish and fish habitat--we can ensure that we look at ways to make the project better, to mitigate those impacts, and to compensate if there's any loss to fish and fish habitat.

Really, I don't think it's so much whether they should trigger environmental assessment or not, it's the role that environmental assessment plays in helping us decide if there are going to be negative impacts and how we can work with proponents and communities to figure out ways to mitigate those impacts. It should be win-win for everybody.

[Ed Fast, Conservative, Abbotsford, BC]

All right. So the role that you're asked to play in this process is not going to be negatively impacted by the amendments that have been proposed at this committee.

[Ginny Flood]

I don't see that the amendments that are being proposed are going to change our role other than that we may not be interacting with Transport Canada as much as we would normally as a regulator. But that doesn't preclude their interacting with us as a federal authority, as an expert on a navigable water issue, even though it might not be defined as navigable water. There may be issues we might want to talk to them about, and it doesn't preclude us from seeking their advice on certain aspects.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Leboeuf.

[Yves Leboeuf]

I want to thank Mrs. Flood. Her explanation of the objectives of the Canadian Environmental Assessment is as good as what I could have given.

In general, the question is not really whether the authorizations under the Navigable Waters Protection Act should or should not trigger an environmental assessment. In my opinion—and Mrs. Flood alluded to this—it is to go back to the basis of the Canadian Environmental Assessment Act. That basis is to ensure that, before any decisions are made, regulatory or otherwise, the various departments together consider the environmental implications, so that those decisions are not only valid for the purposes of the objects of the legislation in question, but also properly informed with regard to the broader environmental implications. At that point, we'll try to minimize those impacts. As in the case of other types of authorizations, requiring environmental assessments in the context of authorizations under the Navigable Waters Protection Act is definitely entirely consistent with the objectives of that legislation.

As to whether it is appropriate in the context of this proposal to amend the Navigable Waters Protection Act to exclude certain minor projects from the authorization process under that act, I will point out that that is not in itself an environmental issue. As you said, the Navigable Waters Protection Act is related to navigation; its purpose is not to protect the environment. After listening to my colleagues and examining the previous hearings, I will say that, if the motivation behind the proposed amendments is related to valid navigation objectives, the matter poses no environmental problem. If the underlying motivation were instead to eliminate environmental requirements, that would be a different matter, but there is nothing to suggest that's the case.

[Ed Fast, Conservative, Abbotsford, BC]

Of course, that's not the case. I don't think anyone at this table has suggested we're eliminating environmental overview. That's not happening here.

This question is for Mr. Osbaldeston, or perhaps Ms. Scharf.

What we've just heard addresses the environmental concerns that have been raised by some, a very small minority. There's the other issue, which is navigability.

We haven't actually had the paddlers before us, the canoeists, the people who use the waters for recreational or even commercial purposes. Have you had a lot of push-back from that community? They haven't appeared before us. I believe they've been invited, but they haven't been here.

I would assume it's not a huge issue for them, but perhaps you could comment on what kind of interaction you've had with them.

[David Osbaldeston]

We've not had a lot of push-back from the recreational canoe and kayak associations. I'm aware of the association that has provided the brief--the Friends of the Kipawa--and I think I've mentioned before that we are in litigation with them over a certain situation right now, which doesn't need to be discussed here.

However, I think the essence of the canoe and kayak situation is that the recommendations we have proposed here or the concepts we have here for review we don't think limit their paddling or kayaking capability. Indeed, we outlined to you previously--I believe it was in our March letter, which we sent to you--what type of criteria we would be considering if we were going to take a look at non-navigable waterways, and it would be water that was too shallow to paddle and too narrow to paddle, or you'd be going back and forth and sideways so often in such a short span of time that it wouldn't be reasonable. You wouldn't be going forward or have any forward progress. Or it would be too steep, if it were waterfalls. It's that sort of thing. That's not where the agencies for reasonable canoeists or kayakers are canoeing or kayaking, so we would see a very limited impact, if any.

[The Chair, Conservative, Merv Tweed]

Thank you, Mr. Fast.

I think, just for the record, that we did invite the paddlers and canoeists. It was a late invitation. One group didn't respond to us, and the other responded with a written document, so we do have some of that information for the members.

Mr. Bell.

[Don Bell, Liberal, North Vancouver, BC]

Mr. Leboeuf, you mentioned strategic assessment under cabinet guidelines. I was wondering if you could expand a bit on just what that is.

[Yves Leboeuf]

This is a cabinet directive that was adopted about ten years ago, actually. It's been in place since then. It's not a legally binding instrument, but it's politically binding in the sense that it provides the cabinet's expectations for departments and agencies with regard to what they are required to do prior to submitting the proposal for cabinet consideration.

Essentially, it requires that there be an environmental assessment for any policy plan or program proposal submitted for ministerial approval. That would obviously be at a high level and not at a project level, a qualitative level rather than a quantitative level. That way all the environmental implications--both positive and negative as well as the overall environmental implications of the proposal as it is crafted--can be considered so that when the proposal is submitted for cabinet approval, the cabinet decision can be made with full understanding and knowledge of the environmental implications.

Typically, when a detailed strategic environmental assessment is conducted, options to mitigate the potential adverse impacts resulting from the proposal or proposals or to enhance the positive impacts that may result from the proposal are attached. Again, it's not legally binding, in the sense that even when it goes to cabinet, cabinet is obliged to comply with it in terms of attaching mitigation measures, for instance. The whole purpose, like the project EA process in a way, is to make sure the decisions that are made at the project level or policy level are well informed from an environmental standpoint.

As I mentioned earlier, I was informed a bit earlier by Mr. Osbaldeston that such a strategic assessment of the initial initiative that is before you was done, and the intent is to update that strategic environmental assessment as the initiative is fine-tuned.

[Don Bell, Liberal, North Vancouver, BC]

Okay.

My final question is maybe a bit beyond navigable waters specifically, but it's the whole process, because you alluded to it, of environmental approvals.

We have the port of Vancouver, with some of the extensions that are going on. I was in Shanghai a year or two ago, and I saw, I think, the Donghai Bridge...32 kilometres to the port at Yangshan. I think it was three or four years from concept to completion. After three or four years, we would still be in the preliminary environmental assessment period, I presume.

I'm not suggesting that China's approach to environmental assessment is the right approach. I'm the critic for the Pacific gateway strategy, and one of the concerns we have is maintaining our competitiveness in terms of expansion of our port facilities, whether it's Prince Rupert, which we've done, or in the port of Vancouver--combined port with Fraserport--and ensuring that we have the capability to handle the volumes that are there.

Otherwise, if we don't show we have that capacity, we will have those shippers bypassing us and automatically going south to U.S. ports. It's really important that the ports of Vancouver and Prince Rupert have that capacity, as the gateway to Canada from the Asia Pacific, in a significant market that's growing.

The comparison to the navigable waters is as you're dovetailing.... I think the question Mr. Masse asked earlier related to how you coordinate these to try to minimize delays, to ensure you're doing the job that has to be done, but that you don't end up with sequential considerations, you end up with parallel considerations, which I think Ms. Scharf talked about. That's what I would hope we would look at.

[Shirley Anne Scharf]

Perhaps I might respond to both dimensions of that.

On the port aspect, while I am not administering the gateways fund, as that lies with Transport Canada, I just wanted to point out as well that there is strong recognition of the delays that series of regulatory approvals can bring, especially even when we're not funding federally, but it just triggers a number of approvals. Port authority is a perfect example, and Yves can speak to this as well.

There is a major projects initiative being led by Natural Resources Canada, in which we are intimately involved, that is now looking at that issue, ensuring that we do remain competitive and that we do have ways of ensuring coordination.

I won't use the word “streamlining” because I think other witnesses have misinterpreted our meaning of that. Coordination is the key.

With respect to us--and Keith can comment as well--one of the things we do when we do our environmental assessment is we can be dealing with fish spawning, so we're dealing with DFO. If there are aboriginal burial sites, we could be dealing with INAC or with Parks Canada federal land, as well as with navigable waters.

We try to bring all of these groups together early on in the process to get a sense of how long this is going to take, because for us, as the committee well knows, this all has a real cost. Promoters of projects and proponents are lined up and ready to go, and once we have the go ahead we have to get into our contribution agreements.

I'm wondering if you two might have any other further comments on that.

[Keith Grady, Senior Advisor, Environment Review and Approvals, Issues Management Directorate, Program Operations Branch, Infrastructure Canada]

Just from a practical perspective, the coordination issue is really key. One of the things—and I think it comes back to Mr. Masse's question as well—is the flow of information. The information that Transport Canada requires for NWPA purposes to determine whether or not they need to issue a licence can be quite detailed, and therefore quite far along in the project planning process. It may be out of sync with the rest of the assessment work that's going on, and it creates confusion, because we're never quite sure.

There may be situations where we're not sure whether or not Transport Canada is a responsible authority under CEAA with respect to one of our projects because that information is not available at that point in the project planning assessment process. That becomes an issue that it's not within government control, it's with the proponents to go through their normal planning process. But it does affect our ability to coordinate and it does affect the timing of our assessments as well.

[The Chair, Conservative, Merv Tweed]

Monsieur Carrier.

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

Thank you, Mr. Chairman.

Good morning, ladies and gentlemen. I am pleased to see representatives of the three departments involved in the environmental study of various projects. I would like to ask Mr. Leboeuf a question concerning the Canadian Environmental Assessment Agency.

Under your mandate, are you required to officially issue a report on the projects you examine, in which you are involved?

[Yves Leboeuf]

First of all, as my colleague Mr. Smith explained at the March 11 hearings, the process put in place under our act is a self-assessment process. Our agency is not responsible under the act for conducting environmental assessments, but rather the various departments and agencies that are required to make decisions concerning the projects. Our agency does not prepare the environmental assessment reports, but rather the various departments.

The purpose of those reports is to inform federal decision-makers. Ultimately, the process put in place under our act is not a decision-making process. Its purpose is to generate environmentally relevant information and to bring it together in a report containing findings and recommendations. At that stage, it is up to the various federal decision-makers to consider those recommendations and to determine to what extent it is appropriate to incorporate them in their decisions.

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

I wanted to assess the impact that you have on the recommendations. If they remain internal, we don't know them. The departments remain responsible for their decisions. You merely give them advice and opinions. That takes away a lot of importance from a public agency that seems to advocate broad environmental responsibility.

[Yves Leboeuf]

I can understand why you see it that way. Moreover, a number of people initially understand, if only from the name of our organization, that our mandate is to conduct environmental assessments or to give scientific advice in the context of environmental assessments. However, that is not the case.

The agency's role is really to provide support in training the various departments involved in environmental assessments and to advise the Minister of the Environment, where the minister has to make decisions in the context of the process. The scientific advice that the various departments conducting environmental assessments must obtain comes instead from what we call the expert departments. If Transport Canada, for example, has concerns about fish habitat in the context of an environmental assessment, it will turn to Fisheries and Oceans, not to the agency, to get that expertise. If it has concerns about migratory birds, it will turn to Environment Canada. The agency's role is not to provide scientific opinions.

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

In that case, every department, whether it be Transport Canada or Fisheries and Oceans, has expertise and competencies. It would be difficult for you to advise Fisheries and Oceans on the displacement of fish habitat. If the department decides that everything is fine as it is, your opinion becomes secondary.

[Yves Leboeuf]

Our opinion doesn't necessarily become secondary. That's where you see the importance of public participation in environmental assessments, particularly for more controversial projects. The public, environmental groups and others will give their views and express their views on the expert opinions issued by the departments. All that ultimately weighs in the balance.

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

I would like to cite a specific case. In my riding, I've been trying for a number of months, if not years, to obtain information on the Highway 25 bridge. I find the information I have obtained to date confused. I asked Mr. Grégoire, the Assistant Deputy Minister, Safety and Security, of the Department of Transport, some questions. He told me there were conditions for the installation of permanent structures in the habitat of the lake sturgeon, which would have to be moved to the Assumption River basin.

I spoke to the minister, since we don't really know who to turn to. On April 25, I received a letter from Fisheries and Oceans stating that the sturgeon spawning ground had ultimately been moved to the Ouareau River basin, which is located approximately 50 kilometers away. From the standpoint of the immediate environment, that intrigues me because we're talking about the Rivière des Prairies.

That letter stated that the environmental assessment had been completed on February 28 under the Canadian Environmental Assessment Act. It's very reassuring to read that kind of thing. The end of the letter states that work on a pillar on the north bank has been authorized and that a second authorization will be issued for other work later. So that seems to indicate that the present authorization is incomplete. Perhaps that's because of the sturgeon spawning ground.

I can't find out where this project stands. As an MP, I would at least like to provide electors with assurances that the Canadian government has played its role properly and that everything has been complied with, but it is hard to do that for the moment, since there are two departments, one agency—

[Shirley Anne Scharf]

Is that project also funded by the federal government?

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

No, it's a provincial project funded by the Quebec government.

Mr. Leboeuf, in your document, you say that there are special federal-provincial collaborations. You say that, under agreements, only one environmental study was done. It was done in Quebec by the Bureau d'audiences publiques sur l'environnnement (BAPE).

Is this a case that you are virtually not concerned with, since the study has been done? The documents I have state that you are handling it.

[Yves Leboeuf]

It's a preliminary review, which is the simplest type of environmental assessment under our act, in the context of an environmental self-assessment process. As you emphasized, two federal departments, in the context of that project, have decisions to make: the Department of Transport, Infrastructure and Communities, under the Navigable Waters Protection Act, and the Department of Fisheries and Oceans, under the Fisheries Act. Those two departments are acting as authorities and are responsible for conducting the environmental assessment of the project, which, as you said, was completed in February or early March, according to the information I have. I'm going by the date that you have, which is February 28.

As for the coordination which was or wasn't done from the BAPE hearings, or from the provincial assessment, which was conducted by the provincial environment department even before the BAPE hearings, there again, I'm relying on my Transport Canada and Fisheries and Oceans Canada colleagues, who probably have more information than I do on the nature of that collaborative effort.