Transport Committee on Oct. 4th, 2016

[The Chair (Hon. Judy A. Sgro (Humber River—Black Creek, Lib.)), Liberal, Judy Sgro]

Good morning. I call to order the Standing Committee on Transport, Infrastructure and Communities of the 42nd Parliament, 1st session. This is meeting number 25.

We are very pleased to have the minister here this morning. It's too bad that we only have you for 40 minutes. We have asked about that, but you have assured us you have a cabinet meeting and cannot be here any longer. In an effort to get right to business, Minister Garneau, thanks again for coming to speak to us on these issues.

I'll turn the floor over to you.

[Marc Garneau, Liberal, Minister of Transport]

Thank you, Madam Chair.

Perhaps I could start with a few opening remarks and then take your questions.

Madam Chair and honourable members, thank you for inviting me to meet with the committee today.

Let me begin by apologizing for the limited time I have to spend with you. I have a cabinet meeting this morning at 9:30. But please believe me when I say that no disrespect is intended. I very much appreciate the value of the study you are undertaking. The Navigation Protection Act is important to me, to our government, and to all Canadians.

After my brief remarks, I will be available to answer questions, and once I leave, my representative, Catherine Higgens, will be here to answer questions. You will be able to continue the discussion with her.

There is one thing I would like to clarify, and that is my role, and the role of Transport Canada, vis-à-vis this committee. There have been comments in the media implying that I have been steering the work of this committee. I want to reiterate as strongly as I can that the witnesses you choose to hear from, the content of your findings, as well as the timeline of your report, are completely under your control.

My role and that of my department is to inform and assist you, and that is what I hope to do today.

Ms. Kate Young, my parliamentary secretary, and subject matter experts from my department are also available to assist you and provide any additional information that you might require.

The legislation you are reviewing, the Navigation Protection Act, gives the Government of Canada the authority to regulate bridges, dams, and other projects that affect the public right of navigation on Canada's busiest waterways. Common law protects the public right to free and unobstructed navigation in all of Canada's waterways.

The purpose of the act is to balance this right of navigation with the need to construct infrastructure, such as bridges and dams, and to ensure that waterways remain safe at all times. I stress the word “safe” because that is the real objective of this act—safe navigation.

Over the years, industry and provincial, territorial, and municipal governments have asked Transport Canada to review the former Navigable Waters Protection Act to make it easier for communities to develop resources and build important infrastructure. In 2012 the act was amended to streamline its review processes and refine its scope. Minor work such as replacing culverts was exempted, and a schedule of the waterways subject to the act was introduced. Common law continued to protect the right of navigation on waterways not listed in the schedule.

The amendments to the Navigable Waters Protection Act came into force in 2014, and the legislation was renamed the Navigation Protection Act to better address the intent of the legislation.

In the same timeframe the Canadian Environmental Assessment Act was amended to require environmental assessments only for designated types of projects, regardless of whether regulatory approval was required, such as under the Navigation Protection Act. This is one of the changes that I expect will be considered by the panel reviewing the Canadian Environmental Assessment Act.

In the Speech from the Throne, our government promised to review our environmental and regulatory processes, especially in relation to resource development and infrastructure investment projects.

And in my mandate letter from the Prime Minister, I was asked to work with the Minister of Fisheries, Oceans and the Canadian Coast Guard to review the previous government's changes to the Fisheries Act and the Navigable Waters Protection Act, restore lost protections, and incorporate modern safeguards.

In June of this year we delivered on that commitment with the launch of a comprehensive review with three elements: building more trust in our environmental assessments of major projects; modernizing the National Energy Board; and taking a hard look at changes to the Fisheries Act and the Navigation Protection Act.

Consultation will be at the core of this review. The government believes in a coordinated, open, and transparent process that incorporates scientific evidence and takes into account the views of Canadians. And I have already heard from Canadians—indigenous peoples, industry representatives, waterway users, provinces and territories, and local governments—who have said the changes to the Navigation Protection Act had both benefits and drawbacks. For example, builders and owners of infrastructure, including provinces, territories, and municipalities, appreciated the changes made. It seems the change that evoked the most interest and concern among waterway users was the narrowing of the scope of the act from all waterways in Canada to a schedule of 162 rivers, lakes, and oceans.

As you know, I suggested that this committee examine the changes to the legislation, including the waterways now covered under the legislation, and the types of barriers to navigation that should be regulated or prohibited under the act to ensure that safety remains paramount.

It is my hope that the committee could get additional feedback and views beyond our consultations.

I presume that the committee will hear from a diversity of witnesses and that you will be able to hear a wide range of views from Canadians on this matter. I am conscious of how important it will be to hear from indigenous communities in this context.

I look forward to seeing your recommendations.

Thank you for your attention. I would now be prepared to answer a few questions.

Thank you, Madam Chair.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Minister Garneau.

We will now turn to Mr. Berthold for six minutes.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Thank you, Madam Chair.

Minister, Ms. Higgens, thank you for being with us this morning.

If you don't mind, Minister, I'd like to share our position on the study that the committee was mandated to undertake. You should understand that this study, which totally disrupted the committee's planned business for the fall, strikes us as pointless since the conclusions are already known. Like the Prime Minister, you have repeatedly made those conclusions known.

Allow me to refer to the mandate letter you, as the Minister of Transport, were given. In fact, you mentioned the letter in your opening statement this morning. I'm going to read you an excerpt from your mandate letter. I know it's something you talk about regularly, Mr. Garneau, and it seems to have guided your work as minister since your appointment. On the issue of rail safety in Lac-Mégantic, I've had the opportunity to see just how important abiding by your mandate letter is to you.

Sometimes that's a good thing, but sometimes, it can be problematic, especially in this case. Your mandate letter clearly states that you will “work with the Minister of Fisheries, Oceans and the Canadian Coast Guard to review the previous government's changes to the Fisheries Act and the Navigable Waters Protection Act, restore lost protections, and incorporate modern safeguards”.

As I see it, that priority not only refers to a study, but also, to some extent, dictates the committee's conclusions. Given the mandate letter you received and the information we have, it's clear that the decision has been made, meaning that the lost protections have to be restored. We find that request questionable since the committee already had a very full schedule. The committee had wanted to focus its efforts on a national transportation strategy with a view to accelerating economic development in Canada and building on the recently announced infrastructure plan to make sound investments that would stimulate economic development in every community and region around the country.

Allow me to read two paragraphs from the letter sent jointly by the two ministers to our chair and committee and, in fact, to both committees concerned. “As part of our mandate from the Prime Minister, we have been asked to work together to review the previous government's changes to the Fisheries Act and to the Navigable Waters Protection Act to restore lost protections and incorporate modern safeguards.” It appears not only in your mandate letter, but it's also repeated in the letter sent to the committee. In other words, the committee is being told, “here are the conclusions you should reach”.

Here's another excerpt from the letter, in reference to the Navigation Protection Act: “the amendments that came into force in 2014 concentrated the application of the Act on 162 of Canada's busiest navigable waterways. It is suggested you focus on these changes as well as the types of interferences to navigation that should be regulated or prohibited, and how to best implement these under the legislation.”

In the face of such clear directives, Minister, you should understand why we would assume that the previous studies carried out by the Senate and House of Commons committees were based on sufficient evidence and, hence, why we would conclude that there was no need for a new series of hearings or further evidence.

I reviewed all the evidence or just about—I wouldn't want to get tripped up on some point I had missed—collected by the two committees, and I was able to see that numerous statements had been made. It was clear that considerable input had been collected, that municipalities, aboriginal communities, and environmental groups had all had the opportunity to comment on the legislation in question.

Why ask the committee to spend its time and energy redoing work that has already been done multiple times, if not to justify the government's political will to amend acts that were duly amended in the wake of consultation? Why do so if not to undo what the previous government did?

The act gives you an opportunity to intervene. You can make the changes yourselves without having to amend the act. It is clearly indicated in the act that you have all the tools needed to respond to the various requests you may receive.

I remind you what the objective of the first amendment of the act was, in 2009. The legislation was amended to help accelerate Canada's economic development and to ensure that projects can be carried out more quickly.

As a former mayor, I can tell you that it is sometimes very hard to comply with all the regulations and to overcome all the difficulties just to build a small bridge across a stream. A stream is a stream. We don't need a federal study to check whether boats can pass under that bridge, as the stream is tiny.

If that is what you want to bring back, if you want to go back to that time....

[The Chair, Liberal, Judy Sgro]

Thank you, Mr. Berthold. Your six minutes are up.

I'm sorry, Mr. Garneau. There is no time right now to respond to Mr. Berthold.

I now move over to Mr. Hardie.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Thank you, Madam Chair.

I was going to give up some of my time so that our opposition friends could ask some questions, but they don't seem to have any questions. I have a couple.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

I will take this opportunity, if you want, Mr. Hardie. No problem.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

The Navigation Protection Act, as many of the other acts, had a very evocative name that might have shielded what it was really all about, which was a pattern that we saw in the last government. In many of these issues where we're asked to look at decisions made in the past, the inference is that, well, something needs to be changed. When we hear from the environmentalists, the first thing they say is, look, roll it all back to the way it used to be.

My sense is, though, that like anything there are some things that we should step back and consider and say, “Well, that wasn't a bad idea.” Other things we might want to do a bit differently.

The two areas where I'd like to have some comment from you, Mr. Minister, are about streamlining the process in what you have heard in the consultations that you've had. Clearly, municipalities and people who build infrastructure would appreciate a streamlined process, but has it been too streamlined? Have we actually given up too many opportunities to protect waterways, even if they aren't commercially useable waterways?

[Marc Garneau, Liberal, Notre-Dame-de-Grâce—Westmount, QC]

Yes, your comment about the fact that some measures that may have been made by the previous government make sense is one that I perfectly accept. In fact, I said it in my opening remarks.

The purpose here is not to turn back the clock, unlike what Mr. Berthold was saying, to what existed before. It is actually to look at the act, its intent, what changes were made, which ones make sense and which ones don't make sense in terms of removing protections, and I'm asking this committee to do that.

I think that's a very worthwhile exercise to do. Unlike what Mr. Berthold said, there was no consultation back in 2012. It was slammed into an omnibus bill, along with changes to the Fisheries Act, and the environment act, too.

I think this is a golden opportunity for us to, in an intelligent, consultative way, look at the act as it stands at the moment, and to modernize it to ensure that the proper intent is covered and the proper protections are there.

With respect to streamlining the process, that's a good thing. It should never be an act that is so cumbersome that it takes forever to approve something. Any measures that can be recommended by the committee here would also, I think, be taken into consideration because, yes, we want to make sure, as I said in my opening remarks, that our navigable waters remain navigable, and that they're secure. In some cases, we may want to do an environmental assessment when an obstruction is put in place, but overall we'd like to make the processes as streamlined as possible.

We would welcome your input with respect to that.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

The other matter has to do with the response or the measures that are available to individuals who, on a piece of unprotected waterway, see something happening that they feel isn't right. The NPA suggests that, well, you have access to the courts, but a local canoe club isn't going to have the time or the money or the inclination to take something into court.

Can I infer from this that we have an opportunity here to at least examine thoughts and ideas about an alternate system that doesn't involve the time and expense of going to court as a way for people to flag issues that they think need some kind of remedy?

[Marc Garneau, Liberal, Notre-Dame-de-Grâce—Westmount, QC]

If that is something the committee wants to draw attention to, yes, by all means, bearing in mind that the Navigation Protection Act's primary intent is to ensure that navigation is protected. As you know, the original notion was any waterway that you could put a canoe in.

The notion that was brought in by the previous government was that of an aqueous waterway, but the concept is that of allowing navigation. It is something that's important as part of Canada and goes back almost to the beginning of the country. Insofar as something that may have an impact with respect to navigation, if there are ideas that you feel should be considered with respect to somebody having a problem on a navigable waterway, we're open to that.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

The one issue that came up, and this is a strange blend of things because part of it has to do with the preservation of habitat, which is another committee's issue, and it's also one I happen to sit on. In this case, the issue is being able to float a canoe on a farmer's drainage ditch, for instance, something that they dug in order to do what it was intended to do. It seems like we need some clarifications that weren't provided under the original legislation.

[Marc Garneau, Liberal, Notre-Dame-de-Grâce—Westmount, QC]

That is precisely one of the things you may want to comment on.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Hardie.

Mr. Aubin, you have six minutes, please.

[Robert Aubin, NDP, Trois-Rivières, QC]

Thank you, Madam Chair.

Good morning, Mr. Garneau. Thank you for joining us today. Forty minutes is not a lot of time, but we will use it with pleasure.

I would first like to briefly come back to your department's mandate letter, which says that you should “restore lost protections”, which seems pretty clear to me, “and incorporate modern safeguards”.

That is probably the element to think about because it seems new to me. The idea of restoring lost protections is fairly clear. However, can you give us an example of what you have in mind when you talk about “modern safeguards”?

[Marc Garneau, Liberal, Notre-Dame-de-Grâce—Westmount, QC]

The mandate letter does indicate that lost protections should be restored, but that doesn't mean a word-for-word recreation of the previous legislation. Perhaps the elements of the act that were amended by the previous government did not really have to do with protections, but they make sense. This is about more than just restoring the legislation to its previous incarnation. I clearly said in my presentation that some things seem reasonable. Ultimately, you will be the ones looking into this issue.

As for modern safeguards, that is a general suggestion. When you hear the testimony of various groups, they may bring forward some aspects that have not been mentioned in the past and are not part of the legislation, but that seem relevant to you in terms of protection. It is up to you to use your report to advise us on this issue.

[Robert Aubin, NDP, Trois-Rivières, QC]

My second question is about what comes next.

We will study the Navigation Protection Act, the goal of which, let's remind everyone, is to strike that balance you were talking about at the beginning of your presentation. It must help ensure a balance between construction on waterways and environmental protection. However, what is the point of doing all this work if we have to use the previous government's environmental assessments, which have been completely discredited?

[Marc Garneau, Liberal, Notre-Dame-de-Grâce—Westmount, QC]

As I mentioned, you are currently examining the Navigation Protection Act. Meanwhile, an expert panel will be invited to consider the environmental aspect.

I will give you an example of one of the measures the previous government removed from the act. When a waterway had to be modified, an environmental assessment was not required. We believe that, in some cases, that assessment would be necessary. The work done to build a bridge, a dam or another structure will have environmental repercussions. That is what the expert panel studying the aspect of environmental assessment is currently looking into, or will look into. However, it is your responsibility to decide whether you feel that the environmental assessment is appropriate. When a change is made to a waterway by a construction project that could have an impact on navigation, it is up to you to decide whether you feel that it is also important to consider environmental factors as part of the overall assessment.

[Robert Aubin, NDP, Trois-Rivières, QC]

Thank you.

Since I have time for one last question, I wouldn't want to let you leave without discussing the elephant in the room.

Based on the current route, we all know that one of the consequences of the energy east project is that it crosses a good number of waterways that are not subject to the legislation. As I was saying earlier, the environmental assessment related to that is deficient, to say the least.

Are we doing all this work that could, let's hope, improve both the environmental assessment and the Navigation Protection Act only to set it aside in a project as important as the building of a pipeline? In other words, are we not putting the cart before the horse or doing things in a disorderly manner?

[Marc Garneau, Liberal, Notre-Dame-de-Grâce—Westmount, QC]

Thank you for the question.

I don't know whether you are aware of the fact that, in terms of structures that could cross above, below or on the surface of a waterway, pipelines are excluded, unless those pipelines are not assessed by the National Energy Board.

When it comes to pipelines, we have decided that the assessment done by National Energy Board would cover any routes likely to be taken by a pipeline, whether it would be going above ground or crossing a waterway. In fact, it is outside the scope of legislation on navigable waters to include pipelines, unless they have not been approved by the National Energy Board. That is how the legislation is currently structured.

To come back to your previous question, I mentioned the environmental assessment if there are changes with respect to a waterway. If you have questions on that, I encourage you to put them to the expert panel in charge of the environmental issue.

[The Chair, Liberal, Judy Sgro]

Thank you very much. Sorry, Mr. Aubin, your time is up.

Mr. Sikand, you have six minutes.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

I would like to thank our esteemed minister for being here. We understand how valuable your time is. In keeping with that, I would like to offer, reluctantly, the rest of my time to Mr. Berthold and his colleagues.

I know you ran your time out.

In terms of the non-scheduled waterways could you speak to the utility of the opt-in, opt-out mechanisms please?

[Marc Garneau, Liberal, Notre-Dame-de-Grâce—Westmount, QC]

As you know, currently there is a schedule and it has 162 lakes, rivers, and waterways. That's hardly all of the lakes, rivers, waterways, or oceans that are part of Canada. If someone wishes to undertake a project that will impact a waterway in terms of crossing it in some way, but it's a non-scheduled waterway, then they have the option to opt in, which would mean that they have the option of submitting themselves to the regulatory process that would normally exist for scheduled waterways. In other words, they may feel that just to be 100% on the safe side, they want to go through the regulatory process that we would apply in the case of a scheduled waterway. That's an option to opt in.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

Thank you.

[The Chair, Liberal, Judy Sgro]

Thank you very much for volunteering your remaining four and a half minutes. Mr. Berthold, did you want to pick up on that opportunity?