Transport Committee on Nov. 6th, 2012

[Megan Leslie, NDP, Halifax, NS]

Thanks for that.

In looking at the proposed changes to this act, can you give an example of a project or a work that would have been covered by the existing act but will be exempt if this bill passes?

[Tony Maas]

The exemptions that most concern me have to do with the list of rivers, lakes, and oceans. It seems to me that everything outside that list is to some degree exempt, unless a citizen, a public interest group, or a business is willing to broach the situation via the common law.

[Megan Leslie, NDP, Halifax, NS]

So lake by lake, river by river, and case by case: that's the approach they'd have to take?

[Tony Maas]

So it seems to me, but I think a lot of these are questions that all of us are trying to get to the bottom of.

[Megan Leslie, NDP, Halifax, NS]

Thanks.

I'd like to share my time with Mr. Masse.

[The Vice-Chair, Liberal, Denis Coderre]

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

Thank you very much to the witnesses for being here.

Your Worship, Mayor Francis, thank you for your work on this file.

I'll be quick because I have shortened time, but I think there's a couple of things that are important to note.

First of all, you're the only witness from the public who is appearing for this. We've heard about the million-dollar man; you're the two-billion-dollar man now. I think it's important that we have this restriction noted, because it's a big issue for all of us.

Quickly, what types of community consultation have taken place in the past with regard to DRIC? That's important to the thoroughness in terms of what the city and the DRIC processes have been doing in the past.

Second of all, what other lawsuits has the city faced with regard to the Ambassador Bridge? We know that recently we won a decision against the Ambassador Bridge and the Sierra Club because the process was thorough. My concern is in deviating from that right now, but I'd like to hear what other lawsuits the Ambassador Bridge is suing the city on.

[Eddie Francis]

With regard to the first part of your question, the DRIC process undertook a very extensive environmental assessment process, which was conducted and sponsored by all levels of government—Ontario, Canada, the State of Michigan, as well as the U.S.. A couple of things, as you heard earlier.... They looked at the new bridge position, location, a new plaza, and new roadway connections.

As you can appreciate, building a new bridge, a plaza, and roadway connections in a predominantly large urban centre obviously led to very extensive public awareness and public engagement. We led that process, as a city council. We were out there front and centre on behalf of our community. There were hundreds and hundreds of workshops and many, many opportunities for the public to offer opinions. Those were organized by us, as well as by others, so there was an extensive consultation here.

This issue has gripped this community for the last four to five years. There were a lot of opinions expressed, a lot of feedback given, and a lot of suggestions made, to the point where we also hired our own environmental and transportation experts to inform the process, all of which culminated in the support of the final product. That final product, obviously, was announced once the environmental assessment was completed in 2009. There's a tremendous amount of support for the work and for the DRIC work, and a tremendous amount of support for the environmental assessment process that took place and the result.

With regard to the lawsuits from the Ambassador Bridge, I don't think there's enough time allocated for us today to talk about the number of lawsuits levelled against us by the Ambassador Bridge, but it is a routine occurrence. During the DRIC process, because we had our own team of experts and we were informing the process both on the Canadian side and on the U.S. side, they tried to sue us on the U.S. side unsuccessfully. Most recently, we were involved in a protracted case with them as it relates to zoning and bylaws and to properties they own. We were successful in that as well, but it's routine to be sued. It's also routine for us to be successful.

[Brian Masse, NDP, Windsor West, ON]

Your Worship, with regard to what's happening in proposal 6, today there's a big decision over in Michigan. What's your opinion about what's going to take place with the Ambassador Bridge on the U.S. side? Do you think they'll have more lawsuits on the U.S. side as well, whether or not proposal 6 is successful? Maybe you could highlight the consequences if the yes side actually goes forward. For those who are not aware, proposal 6 is allowing people in Michigan to vote on a referendum.

[Eddie Francis]

I think there are probably more learned experts to speak to it, but proposal 6 is the Ambassador Bridge's attempt to take the decision away from elected officials by bombarding the local communities with false advertising as to what is being suggested will be completed here. At the end of the day, there are always going to be lawsuits. It's ensuring that the proper process has been followed...,

I can say, from my involvement with the environmental assessment process on DRIC, that good care and extensive diligence...I think they've gone to the nth degree to ensure that community consultation was included, was listened to, and was responded to in order to ensure that they are presenting the best product from an environmental perspective as well as from a transportation perspective.

I think this bill, this piece of legislation, allows you to go one step further to allow for the type of certainty that the P3 market is looking for. It allows for the timelines and the successful completion of the project. I think it's a very significant step forward. Also, as you heard earlier, I also believe that the State of Michigan is looking with a very interested perspective at what may happen with this piece of legislation. That's why we're very supportive of it.

[The Vice-Chair, Liberal, Denis Coderre]

Thank you, Your Worship.

I have just a small question. You feel that the bill in front of you right now will facilitate for the rest of the project itself, and that's why you're supporting it?

[Eddie Francis]

Absolutely, Mr. Chair. That's why I'm here.

This is a very important bill. It's more than just words on paper; this is the economic lifeline. I believe this piece of legislation will go a long way to really strengthening the position and really reflecting the hard work that has been done and culminated in the announcement by the Prime Minister and the governor in the summer of this year.

[The Vice-Chair, Liberal, Denis Coderre]

Do you believe also that with that implementation for the auditing to make sure that...? Because sometimes with the P3s, with all those extras and all of that, you have all the tools to make sure that the taxpayers' money is well spent and you won't have what we're witnessing right now in my hometown of Montreal, for example.

[Eddie Francis]

Yes, I really do. I can speak of the experience that you heard about earlier today. The Province of Ontario is well into the construction of the billion-dollar-plus roadway. That went to a public-private partnership through the consortium, and obviously there are measures in place there. So far, the public accountability has been pretty transparent, and they've been very forthright in communicating where they are in the process, timelines, and budget. I'm sure the province, like the federal government, will ensure that the adequate checks and balances are in place.

[The Vice-Chair, Liberal, Denis Coderre]

We'll check it out. Thank you.

Mr. Watson, it's your turn.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Chair.

Thank you to our witnesses for appearing.

Mayor Francis, I will come to you very shortly on the DRIC, but first let me welcome Mr. Marit to the table.

Mr. Marit, you were last in front of this committee in April of 2008 as we were looking at the Navigable Waters Protection Act at length for several weeks back then. In anticipation of Build Canada, we were looking at how we might amend the navigable waters act for greater efficiency while those projects were being carried out. At the time, many of the witnesses recommended a complete rewrite, and I think that now that Build Canada is quite far down the road, we're now looking at that.

I want very quickly to put a question on the intent of the Navigable Waters Protection Act. I'm going to quote a witness we had, Ron Middleton, who at the time was the director of environmental management services for the Ministry of Transportation of the Government of Alberta. In his testimony, he said that he had checked this testimony with seven provinces and two territories prior to appearing before committee. Here's what he said:

For much of the 20th century the Navigable Waters Protection Act was only applied to major waterways and major projects across this country. Both the federal and provincial governments assumed that was the intent of the act, and that's how it was applied. As a result, very few approvals were issued for about 100 years.

He's talking about navigable waters permits. First of all, is that your understanding of what the Navigable Waters Protection Act is about? Secondly, in your estimation, do the amendments before us right now in Bill C-45 return it to that intention with great clarity?

[David Marit]

Thank you for the question.

To answer the second part first, on the amendments, I would hope that's where it gets us to, to our idea of what the act did have in it. An example I gave is that any time we had a municipality doing a bridge project in the Province of Saskatchewan, we had to have approval from the Navigable Waters Protection Act on any work we did on any bridge.

I can give numerous examples to this committee of bridges that are 50 or 60 years old and are not used for navigation in any shape or form. When we look at bridge replacements of over half a million dollars per bridge on these waterways that only flow for three to six weeks in the spring, to us it becomes very expensive and very outdated to have to do that. We can do the same thing with steel pipe and still respect the environment. I will assure this committee that many people in rural Canada and rural Saskatchewan who I will speak for will make sure they do that. We will do that.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Marit.

Speaking of bridges, Mayor Francis, obviously the Detroit River international crossing is a substantial project in terms of immediate construction jobs and the long-term business investment that will come from having predictable redundant crossing at the Windsor-Detroit corridor.

We heard in testimony earlier from Ms. Borges at Transport Canada that the Ambassador Bridge Company has been part of eight lawsuits and two NAFTA challenges, and that the Bridge to Strengthen Trade Act is looking to address having any future nuisance lawsuits.

You have some legal understanding I think as well in terms of your background. The key to launching a legal challenge is the process approvals that can be subjected to judicial review in the Federal Court. Is that also your understanding?

[Eddie Francis]

That is my understanding.

[Jeff Watson, Conservative, Essex, ON]

Okay.

The Bridge to Strengthen Trade Act specifically removes these process approvals, the sources of judicial review, while still requiring a compliance plan under federal oversight for environmental and other concerns. Those are clauses 7 to 12 in division 5. Is that also your understanding?

[Eddie Francis]

Yes, in my review of clauses 7 to 12, and based on the information I have, that is correct.

[Jeff Watson, Conservative, Essex, ON]

This protection also extends not just to the DRIC bridge crossing, but to the current construction of the Windsor-Essex Parkway. Can you comment not just on the importance of the project, but on extending that same coverage to that construction?

[Eddie Francis]

The building by the province of the Windsor-Essex Parkway is currently under way, which is perhaps one of the major elements of the DRIC process and the DRIC environmental assessment. The parkway, to my understanding, also would be exempt from requiring certain permits and approvals under the number of applicable federal acts, which further reinforces the earlier testimony given.

[Jeff Watson, Conservative, Essex, ON]

Now, Michigan Governor Snyder, if I'm correct, is on the record as calling for similar legislation on the U.S. side. Is that your understanding?

[Eddie Francis]

My understanding is yes, and there is a slight difference between what is required on the U.S. side and what is required on our side. The U.S. side does not require as many permits as are requisite here. On the U.S. side, they simply need the U.S. Coast Guard permit and a presidential permit to proceed.