Transport Committee on Nov. 6th, 2012

[Nathan Gorall]

I would argue, if I may, that the issue around us using the most up-to-date data that is available to us, both publicly and within the department.... It was used to evaluate navigation patterns and traffic, so the size of the water body is relatively irrelevant, based on the statistics of whether or not it's heavily navigated.

I'll give you a very specific example. If you look at the waterways that make up the Trent-Severn Waterway, you'll see that it's a series of 43 different lakes and rivers, all very tiny if you look at a map of Canada. But with respect to the amount of traffic that goes on there and the level of charts that cover those waterways, they are clearly among Canada's busiest waterways, whereas there are some lakes in northern Quebec where there's very little navigation, if any.

[Megan Leslie, NDP, Halifax, NS]

Thank you very much.

I'll ask a question for which I'd actually like the answer tabled, if that's possible. Would you be able to provide the committee with copies of any studies that were conducted in the development of this policy? It is a voluntary undertaking, but I'd ask that you provide that to us.

It's my belief that this is going to end up with litigation, right? People are going to try to assert their rights through the courts because they don't have the regulatory framework to turn to. Have you done an estimation of the cost to the taxpayer of taking on these cases where people are going to try to uphold their common law rights to navigation? Have you costed that out?

[Nathan Gorall]

We have had discussions with the Department of Justice on exactly this. We've met with provincial and territorial governments, all 13, and shared with them both the list of waterways and the concept. It did not become an issue—or it did not become an issue there. There is a lot of case law already on the books with respect to public nuisance, private nuisance, and the common law right to navigation.

To respond directly to the question of the cost to the taxpayer, I think what we are doing is creating a more efficient regime for the taxpayer, and we are allowing neighbour disputes, in many instances, to settle themselves in torts.

[Megan Leslie, NDP, Halifax, NS]

Have you made an estimate? Have you performed an estimate of what the cost will be of these court cases?

[Nathan Gorall]

We'd do that on a case-by-case basis.

[The Vice-Chair, Liberal, Denis Coderre]

Your time is up.

[Megan Leslie, NDP, Halifax, NS]

Thank you, Mr. Chair.

[The Vice-Chair, Liberal, Denis Coderre]

Thank you very much.

I would like to have maybe two questions.

First of all, you spoke a lot about accountability, especially with public-private partnerships.

I have a question. We are obviously very wary, and we want to ensure that accountability measures are in place with respect to carrying out contracts. We want to make sure that taxpayers' money is being spent properly.

Is your internal audit currently sufficient to ensure there is no abuse, collusion or corruption? Are you going to put in place new measures to ensure that the taxpayers' money is spent properly?

[Helena Borges]

Thank you, Mr. Chair.

I will answer in English.

Numerous procedures that have been introduced by the Minister of Public Works and Government Services already exist. We will follow all those measures that are currently in place. We will also follow the measures that are part of the Government of Canada contracting policy, Treasury Board policies, and the measures that we are obligated to comply with under international trade agreements.

We are very confident that in the market in which we are going to be launching this project there have been no issues or concerns about collusion in that area. In fact, the Province of Ontario is already constructing the parkway that will connect to this new crossing, and they went out for a request for proposals two years ago. They had significant bids at the expression of qualifications, and three bidders ended up bidding on the request for proposals. That project is currently under way.

Most of the bidders in the public-private partnerships tend to be fairly large international consortia that then are compiled with local construction firms to do the work.

[The Vice-Chair, Liberal, Denis Coderre]

In other words, you will let this work be done, and then you will audit.

Can you audit along the way? Is there any time planned for audits?

[Helena Borges]

In fact, as soon as the bidding process begins, we include in the proposal clauses indicating each qualification that we require from companies. When we review the proposals, we see all this and we look at whether these companies have any legal problems or things like that.

[The Vice-Chair, Liberal, Denis Coderre]

You check the backgrounds. You check the companies that are submitting bids.

[Helena Borges]

This is our approach, basically.

[The Vice-Chair, Liberal, Denis Coderre]

So, in your opinion, the current measures are sufficient. You don't need to add any others.

[Helena Borges]

That's right.

[The Vice-Chair, Liberal, Denis Coderre]

Mr. Gorall, you said that you consulted the provinces and the territories regarding the Navigable Waters Protection Act. Do you have, on paper, something to show that everybody provided some report that the new wording changes are sufficient and that everybody was pleased with the way the government proposed it?

[Nathan Gorall]

I can speak to the discussions that we had with provinces and territories. There were some provinces and territories that were represented by multiple departments. Others were represented by a single department and would then go back and consult with their colleagues across the government. Some provinces wrote in their support at an officials level, and some did at an elected level, for what we are proposing.

I can tell you that we were well received. They had been asking for these changes for a number of years. They represent municipalities that also have been asking for these changes for a number of years. With respect to a particular political position of a government in any of the 13 jurisdictions, I'd defer to them to speak for themselves.

[The Vice-Chair, Liberal, Denis Coderre]

I don't want you to answer politically.

I'm wondering about the kind of situation you witnessed in which people didn't feel à l'aise. Was there anything...? Did they send you back to do your homework? Not at the political level, but were there any kinds of issues that made you feel you needed to make some changes after those consultations?

[Nathan Gorall]

The most commonly used expression—and not hyperbole—about it was that it was a return to common sense.

You have to keep in mind that back in 1992, for the first time, following a Supreme Court decision, we were required to do permits for municipal and provincial governments, not just for industry and private citizens, so there was a feeling that this was a move towards common sense, that it made sense.

With respect specifically to the waterways listed, again, I don't want to speak for any provincial government. I will say that at an officials level, the only pushback we got on the list of waterways, from a couple of provinces that will remain unnamed, was that perhaps the list was too long.

[The Vice-Chair, Liberal, Denis Coderre]

I do believe in common sense and no red tape. You usually call that smart regulation. Do we have an ongoing process to adapt ourselves? You already said that you have some reports regarding litigation or future litigation.

Sometimes it's better to prevent. Do you have that kind of body where people can, on an ongoing basis, discuss something else, or did you already have that conference with all the provinces, territories, and departments?

[Nathan Gorall]

No, and I appreciate that question. It actually allows me to elaborate a little bit on the earlier question.

There is an understanding that we are moving to a new regime and that there are going to be a lot of changes. We don't have it completely 100% mapped out at this point. What we do have is a lot of support from our stakeholders, from what the bill describes.... What we plan on doing as we move to a different regime is to create a series of different publications for public consumption, to describe for builders what their obligations are around protecting the common law, and also what the rights are for boaters. Boaters and builders have been operating in shared waterways for centuries, long before this act came into force in 1882, and they will be long after these amendments are changed by another set of amendments.

We do have a bunch of material that we're going to publish. Our officers are not going away in the short term. They're going to be there to respond to questions in listed waterways or in unlisted waterways.

I have two quick last points. One is that there is a provision for builders to opt in, if they are going to infringe on the common law. It does create some certainty for both builders and boaters. There is an opt-in provision in the bill. The second is that the list of waterways is a schedule to the act. It can be amended in the future by a Governor in Council, by order in council regulation.

[The Vice-Chair, Liberal, Denis Coderre]

So, changes can be made by order.

Mr. Poilievre, you have the floor.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

The point of contention in the Navigable Waters Protection Act is found in division 18 of part 4 of Bill C-45. Is that correct?

[Nathan Gorall]

Sure.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

I'll hereafter refer to that as division 18. Before we discuss amendments to the Navigable Waters Protection Act, let's discuss the act itself.

Can you point to the section in the act where the word “environment” is mentioned now?