Transport Committee on Nov. 6th, 2012

[Helena Borges]

That's correct. Any approval that's given by a federal agency can be challenged in Federal Court for judicial—

[Jeff Watson, Conservative, Essex, ON]

The Bridge to Strengthen Trade Act removes those, thereby removing the basis for judicial review challenges, leaving a constitutional challenge as the only real challenge against the bill itself, if this bill is passed. Is that correct?

[Helena Borges]

Under this law, yes, it's for the environmental—

[Jeff Watson, Conservative, Essex, ON]

You said that the EA has already been conducted. How does the Bridge to Strengthen Trade Act ensure compliance? What parts of the act...?

[Helena Borges]

There are several portions in the act, several clauses, that refer to a plan having to be filed under the Fisheries Act, the Species at Risk Act, the Canadian Environmental Assessment Act, and the Navigable Waters Protection Act.

[Jeff Watson, Conservative, Essex, ON]

Clauses 7 through 12: is that correct?

[Helena Borges]

Correct.

[Jeff Watson, Conservative, Essex, ON]

Michigan Governor Rick Snyder's reaction to the introduction of the Bridge to Strengthen Trade Act was that he was calling for a similar bill on the U.S. side. Is that correct?

[Helena Borges]

He was. He would like to be able to have that kind of flexibility on the U.S. side.

[Jeff Watson, Conservative, Essex, ON]

Are you satisfied that by removing the process points that are the basis for judicial review, this bill sufficiently, or very comprehensively, I should say, insulates the DRIC from these types of nuisance lawsuits that we have already encountered?

[Helena Borges]

Yes. We are trying to provide as much certainty as possible to the P3 market that, as the project moves forward to construction, these are the permits that are required to proceed with construction. By having this bill passed, that certainty will be provided to them, and there will be no mechanism for appealing a decision.

[The Vice-Chair, Liberal, Denis Coderre]

Ms. Borges, Mr. Gorall, I would like to thank you, as well as the other witnesses.

We will suspend the meeting for a few moments to allow the other witnesses to arrive. Thank you for sharing your thoughts with us.

[The Vice-Chair, Liberal, Denis Coderre]

We are starting the second part of our meeting.

Thank you very much.

We have with us Mr. Marit, from the Saskatchewan Association of Rural Municipalities.

Welcome, Mr. Marit.

We have, on video conference, Mr. Tony Maas, from the World Wildlife Fund of Canada.

Also, we have with us Mayor Eddie Francis, from the Municipality of Windsor.

Gentlemen, thank you very much. We have the capacity for 10 minutes for each of you. Because of the timeframe, I would urge you to be more specific so you can answer more questions.

We will start with Mr. Marit, for 10 minutes.

[David Marit, President, Saskatchewan Association of Rural Municipalities]

Thank you, Mr. Chair.

My name is David Marit. I'm president of the Saskatchewan Association of Rural Municipalities, and first of all I would like to thank the committee for inviting us here to present our views on the Navigable Waters Protection Act.

SARM represents all 296 rural municipalities in Saskatchewan and allows us to act with a common voice for all of rural Saskatchewan. SARM serves as the principal advocate in representing the municipal governments of the province on priority issues, including changes to the Navigable Waters Protection Act being proposed through Bill C-45. We are encouraged that Bill C-45 proposes to rename this act the Navigation Protection Act and appropriately refocus the legislation.

The Navigable Waters Protection Act was enacted in 1882 and is creating unnecessary obstacles that are preventing municipalities in Saskatchewan from building cost-effective transportation infrastructure. SARM believes the act needs to be updated to recognize that a significant amount of water transportation on lakes and rivers today is recreational in nature. It is no longer a common means of everyday transportation of goods and people, as it may have been in 1882, when the act was created.

As a result, the existing legislation has become outdated and an unnecessary obstacle to the transportation of those very same goods and people. As currently written, the Navigable Waters Protection Act applies to a very diverse set of waters, including everything from oceans to farmers' ditches. The result is that municipalities in Saskatchewan are often forced to spend time and money to build infrastructure that responds to requirements to accommodate non-existing public water travel. In many cases, this means that municipalities are required to install abnormally large culverts or bridge structures where roads cross water, and they must be large enough for a canoe to pass through.

An example I would like to share with you comes from the Rural Municipality of Insinger in Saskatchewan regarding a bridge replacement project on the Whitesand River. In January 2005 the rural municipality applied to Transport Canada to build a structure to cross the river. In April of that year, Transport Canada determined that the waterway was navigable. This determination was made in spite of the fact that the stream bed was blocked by beaver dams, rocks, and brush, and no one living in the area could recall a canoe ever attempting to travel the waterway.

In July Transport Canada advised the rural municipality that their proposed design for two 2,700-millimetre and one 3,000-millimetre culverts for a total cost of $125,000 did not meet the minimum clearance requirements to accommodate navigation. The RM was also advised that it would need to install a multi-plate culvert that would cost the taxpayers of the rural municipality over $400,000.

To avoid this substantial cost increase, the rural municipality attempted to prove to Transport Canada that the river was not navigable by sending them 56 pictures of barriers to navigation along the Whitesand River. This visible evidence that the stream was not navigable made no impact, and Transport Canada upheld their earlier decision. The RM's hands were tied. The RM then approached SARM in December 2005 to work with Transport Canada for their approval. In February 2006, after many meetings and phone calls, Transport Canada agreed to approve the original three-culvert design. This approval came more than a year after the RM's initial application. This is just one example of many.

SARM believes that the proposed amendments to the act included in Bill C-45 should help mitigate situations such as the one I have just described. The new Navigation Protection Act will clearly list major waterways for which regulatory approval is required for construction projects. It will also allow proponents of construction projects in unlisted waters, such as the Whitesand River, to proceed without approval by the federal government. The list will provide much-needed clarity to municipalities and their residents across Canada.

For years, SARM has been advocating for this distinction, as Saskatchewan municipalities have, for far too long, been required to install larger culverts and bridges to accommodate the passage of canoes and other watercraft, whether it was on a significant navigation route or not. SARM does believe that waters that are used for navigation should continue to be protected and believes the act will do just that. The waterways will all be protected under existing acts.

I will conclude by saying that roads and bridges are the lifeline for commerce and prosperity in Saskatchewan rural municipalities. Removing unnecessary requirements such as those imposed by the current Navigable Waters Protection Act will help ensure that much-needed repair and replacement of the rural road network is done in a timely manner and without unnecessary additional costs. This in turn will help ensure that rural businesses in Saskatchewan remain in their communities and prosper, which of course creates positive economic spinoffs for those communities and for all levels of government.

SARM thanks and supports the federal government for the amendments they are proposing to the Navigable Waters Protection Act as a result of the benefits these amendments will provide to our municipalities.

Once again, I want to thank you for this opportunity to appear today. I'll be pleased to answer any questions.

Thank you.

[The Vice-Chair, Liberal, Denis Coderre]

Thank you very much, Mr. Marit.

Since we have less than half an hour left, I would ask our colleagues to prepare short questions. I will not have any questions myself. So we could divide this in two.

Mr. Maas and Mr. Francis, could you please be as brief as possible so that we can ask you some questions?

Mr. Maas, it's your turn.

[Tony Maas, Director, Freshwater Program, World Wildlife Fund (Canada)]

Thank you, Chair.

My name is Tony Maas. I direct the freshwater program for WWF-Canada. We are one of Canada's oldest and largest conservation organizations. We have staff and offices across the country. In our 40-plus years working in Canada, we have partnered often with governments, business and industry, and others in the not-for-profit sector to protect ecosystems and sustainably manage natural resources.

I am going to limit my comments today to issues related to the changes to the Navigable Waters Protection Act included in Bill C-45. For reference, that is clauses 316 to 350.

I want to start by saying that I do believe there are some positive amendments to the Navigable Waters Protection Act proposed in Bill C-45—for example, prohibiting dewatering of any navigable water, and relating to new enforcement mechanisms—but it is my opinion that the positives are quite limited. Overall, I believe, the proposed changes to the act are likely to result in negative consequences for navigation, for people, and for the waters that make navigation possible.

Let me just give you three specific concerns. I'll shorten my presentation a bit, just to allow time for questions.

The first, which we've heard some conversation about already, is the separation of navigation from the health of the aquatic environment. That Canadians depend today—often unknowingly—on the protection of navigation rights as a means for protecting the health of our rivers and lakes is really, in my view, a simple reflection of a natural fact: the two are inseparable.

Picking navigation apart from the waters that enable it is very much artificial. The two are part of a bigger whole. Their separation is as artificial as thinking you can protect a fish without protecting its habitat—the waters in which it lives—or suggesting that our economy and the sustainability of the natural resources our environment provides are unrelated or inseparable.

I do have some concerns in this respect—that the changes to the Navigable Waters Protection Act proposed in Bill C-45 may leave unforeseen gaps in environmental protections when piled on top of the changes proposed in Bill C-38, in particular changes to the Fisheries Act. The provinces and territories may lack the capacity, including the financial, technical, and human resources, to effectively protect aquatic ecosystems.

More importantly, I think, my deeper concern is what this means inevitably for the health of ecosystems and people. What I am still not quite clear on is if these gaps have been assessed by the federal government, and, if gaps exist, how they are working with provinces and territories to address them.

The second point I would like to raise is the narrowing of the geographical scope of the act to those waters listed in schedule 2 of Bill C-45. Limiting the scope of the act to the country's so-called most significant waterways stands to leave, in my view, a pretty significant gap in protections for navigation and, yes, for the environment in most of the nation's waters. I'm confident in suggesting that most if not all the waters not listed in schedule 2 are frequented by navigators of some sort.

The St. John River in New Brunswick, where we at WWF have an active project, is a case in point. According to schedule 2 of Bill C-45, only the portion of the river that runs from below the Mactaquac dam to the Atlantic Ocean is currently deemed significant for navigation. I can attest that there's certainly navigation upstream of that dam, despite the barrier it presents. There are tourists and recreational fishers who keep houseboat operators and marina owners in business. We are helping send a group of youth down the river by canoe next summer.

All of this, of course, depends quite clearly on the protection of navigation in the waters upstream and downstream of the dam.

[The Vice-Chair, Liberal, Denis Coderre]

Mr. Maas, perhaps you could slow down. I feel for the interpreters.

[Tony Maas]

Sorry—most certainly.

[The Vice-Chair, Liberal, Denis Coderre]

Thank you.

[Tony Maas]

I'll just pick up my final point and slow down. I do only have a couple of minutes left.

The third point is that I'm deeply concerned that Canadians are being told, not asked, if their waters are significant.

I am a believer in participatory democracy. While I appreciate the opportunity to speak to the committee today, I do not claim to be, and should not be considered, a representative voice for conservation organizations or for others whose navigation rights and waters may be negatively impacted by the changes in the proposed bill.

Groups like the Waterloo-Wellington Canoe Club, who I met with just last week, would have a strong interest in these changes, but they may not even be aware of them. I think the same can be said for the business owners and recreationalists on the St. John River, which I mentioned earlier.

In closing, I would like to just make it clear that I do believe that changes to how the Navigable Waters Protection Act is administered are worthy grounds for discussion. Can the implementation of the act be made more effective, more efficient? Very likely. I have suggested the same before committees studying Bill C-38 on reforms to the Fisheries Act. But I do not believe that the reforms proposed in Bill C-45, and the approach to making them, will result in the best legal and policy framework for maintaining the navigation rights of Canadians while also protecting the waters on which those rights depend.

Thank you so much.

[The Vice-Chair, Liberal, Denis Coderre]

Thank you very much for your understanding, Mr. Maas.

I will now turn the floor over to the mayor of Windsor, Mr. Francis.

Welcome, Mr. Francis.

The floor is yours.

[Eddie Francis, Mayor, Municipality of Windsor]

Thank you, Mr. Chair, and good afternoon. Cognizant of time, I'll keep my statements brief.

I appear before you today in support of the Bridge to Strengthen Trade Act. As you and the committee members are well aware, Mr. Chair, the main objective of this legislation is to ensure the successful and timely construction of the Detroit River International Crossing project, in that this legislation will allow us to bring certainty to the P3 market and to the private sector for the construction of this project through the terms that have been articulated.

This is the single most important project and it is an economic lifeline. As you heard earlier, 30% of all surface trade between Canada and the U.S. crosses through the Windsor-Detroit gateway. We are very proud to host and to be the gateway to Canada. Also, we're very understanding of the fact that these economic linkages extend far beyond the Windsor-Detroit corridor, reaching all the way from Montreal down to the I-75 backbone, with many, many jurisdictions, cities, and regions dependent on trade and the flow of trade.

Up to now, that trade has been carried on infrastructure built by our grandparents, so it's with a tremendous amount of support that our region and our community participated in a thorough and comprehensive environmental assessment process, undertaken by all levels of government on both sides of the border, for well over four years.

The majority of this region supported the announcement made by the Prime Minister when they entered into the signatory agreement with the State of Michigan and the governor. We are in support of this piece of legislation. We are in support of it because it provides the certainty required to complete this project and to get it built in a timely fashion. It provides for the certainty that is needed in the P3 market to ensure that we have a competitive process. It provides for the establishment of the authority to allow for the work to be done on the American side.

In closing, the most important thing we can do is ensure that the economic viability, those economic lifelines, and that economic artery continue to function and to function well, with modern infrastructure, so as to support the hundreds of thousands of jobs and the industries that are dependent on this piece of legislation and this piece of infrastructure.

Thank you for your time.

[The Vice-Chair, Liberal, Denis Coderre]

Thank you very much, Mayor Francis.

We have 20 minutes for questions.

We will start straight away with Ms. Leslie.

Ms. Leslie, you have the floor.

[Megan Leslie, NDP, Halifax, NS]

Thank you, Mr. Chair.

Thanks very much to all of you for your testimony. We're trying to learn as much as we can about these changes.

My first question is to Mr. Maas. What do you think the chances are of public interest organizations pursuing litigation to enforce the right to public navigation if these changes go ahead?

[Tony Maas]

Thanks for your question.

Let me clear that for an organization like ours litigation is always the last straw. It's not a desired strategy, in part because of the costs associated with it. Given the significant dependence that would be placed on the common law, under the changes proposed to the Navigable Waters Protection Act, this affects not only public interest groups per se, but also citizens and small businesses that rely on navigation. They may find themselves left only with that option of protecting their rights to navigation.