Transport Committee on Nov. 6th, 2012

[Nathan Gorall]

Not to me personally, no.

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

Okay.

Can you tell me, under the existing Navigable Waters Protection Act, what is the definition of a “navigable water”?

[Ekaterina Ohandjanian]

The definition is really pointing to the common law, so it has to have all the elements that our common law typically uses to define “navigable water”. That would mean that it's not a depth issue; it's more one of access by the public, it's used for recreational and commercial purposes—

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

Are you talking about under the bill or under the act?

[Ekaterina Ohandjanian]

In both cases.

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

Okay.

I've heard stories of Transport officials literally using a canoe to determine if a waterway could be navigated. Is that related in any way to the definition?

[Ekaterina Ohandjanian]

This is one component that leads you to a definition of whether a water is navigable water within the meaning of the common law. It's a navigability issue that you're referring to, and that's based on principles established by an Ontario case called the Coleman case.

[The Vice-Chair, Liberal, Denis Coderre]

Thank you very much.

Mr. Watson, you are the last speaker.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Vice-Chair.

Thank you to our witnesses for appearing.

I want to focus a little bit more on the Bridge to Strengthen Trade Act. This relates, of course, to the next step around the DRIC process, the DRIC being the Detroit River International Crossing, or the proposal to build an international bridge between Windsor, Ontario and Detroit, Michigan. The current corridor supports a lot of economic activity. I think the current bridge span, which is four lanes wide, two in each direction, supports about $1 million per minute in two-way trade.

Briefly, Ms. Borges, can you explain why the project is important in terms of economic security and national security?

[Helena Borges]

Yes, with pleasure.

Just to reconfirm some of the figures you mentioned, every day 400,000 people cross at this crossing, and that's almost $2-billion worth of goods and services crossing at Windsor-Detroit on a daily basis. On an annual basis, this corridor handles almost 30% of all surface trade between Canada and the United States. It supports hundreds of thousands of jobs, not only in Ontario but also in numerous states across the United States.

[Jeff Watson, Conservative, Essex, ON]

I raised the issue of national security in terms of a redundant downriver crossing. DRIC arises from a long binational process begun post-9/11 to address issues like border gridlock. In the aftermath of 9/11, I was working on the assembly line at Chrysler. The Pillette Road Truck Assembly Plant was shut down within days because the border was shut down. They were ferrying limited supplies of car parts across the river for as long as they could.

I believe this binational process examined 18 possible corridors for a crossing. Is that correct?

[Helena Borges]

The process examined 15 corridors—

[Jeff Watson, Conservative, Essex, ON]

Fifteen? Okay.

[Helena Borges]

—between what we'll call southwestern Ontario and to the south, east, and north of Detroit. We narrowed it down to three options in the vicinity of where the bridge is going to be located now. That was following the environmental approval processes in both Canada and the U.S.

In terms—

[Jeff Watson, Conservative, Essex, ON]

The environmental assessment was conducted and concluded. Correct?

[Helena Borges]

It was concluded and approved, yes.

[Jeff Watson, Conservative, Essex, ON]

In June of this year we had an agreement between Canada and Michigan to move forward on a P3 to link, more specifically, the communities of Delray on the Michigan side and the Brighton Beach area of the City of Windsor.

Before I get to the Bridge to Strengthen Trade Act, this binational process has encountered numerous legal challenges along the way. Can you tell us how many, first of all, and how many NAFTA challenges have been launched against the binational process and the DRIC?

[Helena Borges]

I'll just mention the numbers against Canada, those that involve Canada directly. We had, up until last year, eight challenges in total: six legal challenges and two trade challenges. At present we are still defending the two trade challenges and three ongoing legal challenges, for a total of five.

[Jeff Watson, Conservative, Essex, ON]

Who is primarily behind these legal challenges?

[Helena Borges]

Except under the previous eight, where we had one environmental group on the environmental assessment, all of them have been launched by the owners of the Ambassador Bridge—

[Jeff Watson, Conservative, Essex, ON]

An American who is on the Forbes list of billionaires and who has a virtual monopoly over the truck crossing....

I'm asking you to characterize this. Were these legal challenges intended to ensure that the DRIC was to proceed to its completion in compliance with Canadian laws, or were they intended to delay or eliminate the DRIC from competition with this monopoly?

[Helena Borges]

They definitely are not meant to speed up the project, that's for sure. Most of them are aimed at stopping or delaying the project, and that's why we are defending them so vigorously.

[Jeff Watson, Conservative, Essex, ON]

A P3 bidder who wants to construct this bridge has to consider many variables. The legal certainty or uncertainty around a project moving forward is one of those variables. Is that correct?

[Helena Borges]

It's a huge variable. When we consult with the P3 market, they ask us to address certain conditions: to ensure that we have the environmental assessments completed, that we have acquired all the properties that are required for a project, and that all the risks related to the project moving ahead—any legal uncertainties or approvals required, such as approvals, permits, and those kinds of things—be in hand as well. This is what we're trying to—

[Jeff Watson, Conservative, Essex, ON]

Permits approvals are the basis points, if you will, for seeking judicial review to either delay or eliminate the DRIC bridge. Is that correct?