Transport Committee on Oct. 4th, 2016

[Sean Fraser, Liberal, Central Nova, NS]

That would be very helpful.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

Mr. Aubin.

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

Thank you, Madam Chair.

I would like some clarification about the amendment to the act that called for administrative monetary penalties. Do you have examples of violations that might be subject to those administrative penalties?

[Catherine Higgens]

Madam Chair, violations under the act could, for example, involve lighting that has not been placed on a works to ensure safety for the users. It could be improper or lack of placement of markers—marking works in the water is extremely important for safety—or buoys that outline where traffic can safely go. These are violations that would lead to enforcement under the act, and there are a range of tools available. Administrative monetary penalties are one. Others are injunctions, removal of the work, or changes in the terms and conditions.

There are a range of tools to address violations of that nature.

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

Since the amendment was implemented, has the Department of Transport used this measure frequently?

[Catherine Higgens]

No, we have not used the administrative monetary penalty. We have used other enforcement tools within the act, but that particular tool has not been used to my knowledge.

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

Has it not been used because the issues were resolved beforehand or because it is the last in a series of measures to be used? If so, what are the measures that come with monetary penalties?

[Nancy Harris]

In the program we do take a graduated approach to enforcement, and for the most part as proponents or owners of works have been identified and approached to correct certain actions, they have taken those corrective actions, so we have not had the opportunity up to this point to use the administrative monetary penalties. Regulatory authority is required, and the department has not exercised that regulatory authority at this time.

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

Thank you.

I would like to come back to the concept of a useless assessment, which we were discussing earlier.

First, it seems to me that useless assessments don't exist, but that perhaps not all projects require the same level of environmental assessment. In response to my question, you gave me the example of culverts. I don't think we would be doing an environmental assessment to change or build a culvert. However, say, a culvert is built next to a spawning ground or something very local that nevertheless gives rise to a specific environmental concern.

Right now, the legislation removes any obligation to conduct an environmental assessment. Perhaps for a simpler project, once the owner of the structure shows that they took that aspect into account, they could obtain a permit. Do we really want to reduce environmental assessments as much as possible? Could we not set up various permits to be issued, which would include an environmental assessment corresponding to the project?

[Catherine Higgens]

Madam Chair, I would perhaps reiterate what the minister said earlier, which is that the questions around which projects should trigger an environmental assessment and for which that is unnecessary are the subject of the expert panel on the environmental assessment review. The current legislation defines designated projects according to the characteristics of the project and if the project has a significant impact on the environment according to the criteria of that legislation, then it is on that designated project list in the regulations.

There's no provision in the Navigation Protection Act for requiring or not requiring an environmental assessment. The focus and the parameters of the NPA are around safety. These are questions that could perhaps be directed to the expert panel in determining whether it has its schedule of environmental assessment projects correct.

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

I imagine that this panel of experts will not submit their report before the end of our study. So should we invite them again?

[Catherine Higgens]

I believe the minister, in his letter to the committee, outlined the importance of collaboration and coordination between those reviews for very much that purpose. There are cross effects and cross issues among all four of the reviews: the pipelines with the NEB, the fisheries reviews with our navigable waters, and then the issue of environmental assessments and which projects should apply. Officials within the public service are working to coordinate information across the reviews and to be able to identify cross issues as they emerge. It might be useful if we could, to the extent possible, make that information available to this committee for its deliberations.

[The Chair, Liberal, Judy Sgro]

Thank you, Mr. Aubin.

Mr. Hardie.

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

Thank you, Madam Chair.

First I have a comment. In the fisheries and oceans committee, I became familiar with the term “the precautionary principle”, which applies particularly to some of our salmon runs, etc. Basically, if there's a doubt, we protect. The NPA appears to have taken exactly the opposite approach: it's out by default unless there's a good reason to have it in. That's a disconnect that maybe as a group we can be thinking about when it comes time to look at potential changes to the act.

For something to be put on the list of protected rivers, lakes, and streams, basically an assessment is done on the basis of the commercial, recreational, and indigenous activities. Are there factors beyond those three that could have been included and that we could now examine as one way of filtering out which rivers, lakes, and streams should be protected?

If you don't have an answer right now, I'd ask that you get back to us with any thoughts on that.

[Catherine Higgens]

Madam Chair, we could look at whether we have something we could bring forward to show specifically where challenges have occurred in the act in terms of defining which waterways are in or out.

I would also perhaps highlight that some of the difficulties we've heard about and we've had conversations about over the time since the amendments came into force have focused on which waters are in or out of the schedule but also on the treatment and protection required in relation to obstructions that are not in scheduled waters, because the minister's authority to deal with and quickly address obstructions applies only to the scheduled waters. So in such a case, we could ask what the instructions for protections should be outside of those scheduled waters. That again requires a decision regarding where it is critical that obstructions be dealt with. Is it only in busy waterways or could witnesses bring forward other criteria that would help inform that question as well?

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

If I were to stand in the shoes of staff who are tasked with administering the act and ask them which new provisions in the new act actually appeared to work well, what would that list look like?

[Catherine Higgens]

I believe on that list of what worked well would be streamlining the process and focusing resources on busy waterways that have significance. There were more authorities for the minister to respond to emergencies. There was more authority for enforcement and compliance. There were important tools that were put into the act, including the administrative monetary penalties.

Challenges for the department have revolved, for example, around definitions and clarity of definitions. For example, what is substantial in relation to interference with navigation and what is non-substantial? That affects how a project is treated under the act. Clarity for owners of projects as well as users of the waterways is an area that has perhaps posed some challenges.

There has been an issue with being able to inform the public regarding decisions that have been made. There is not a great deal of guidance and authority in the act regarding communication of decisions around navigation.

These are issues that have perhaps posed some challenges. There are questions regarding obstructions in non-scheduled waters. Most of all, there has been the question of whether we have the right waterways and whether we have the right types of protections, and whether we are protecting the right thing in the right way under the act.

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

Right now the only recourse—if somebody has an issue with something going on in what is a river or body of water that is not protected—is to go to court. Do you have any sense as to the number of those processes that have been launched, how they have turned out, and the cost?

[Catherine Higgens]

This is not an area that we have been monitoring. We have not been monitoring unscheduled waters, and so we don't have the information on the number of Canadians who have used the courts as a remedy. We don't have that information.

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

May I cede any extra time to Mr. Tootoo. Is there any left?

[Hunter Tootoo, Independent, Nunavut, NU]

Thank you, Madam Chair.

Thank you, Ken.

It's been brought up that subsection 29(3) allows the minister the discretion to add or not. I think one of the concerns that I've heard is that in some governments the ministers will talk to you, while in other governments they won't. I guess even though that mechanism is there, the fact is that it's at the whim of whoever is the minister. Is one of the things you've heard from an indigenous group or the public as a whole that they want something a little more certain than the whim of the minister of the day?

[The Chair, Liberal, Judy Sgro]

Just give a short answer.

[Catherine Higgens]

Yes, the current sections in the act don't provide a framework under which the public and indigenous people and others would have certainty of which waters could be, in fact, included. There's a great deal of discretion in that authority.

[The Chair, Liberal, Judy Sgro]

Thank you, Ms. Higgens.

Go ahead, Mr. Badawey.

[Vance Badawey, Liberal, Niagara Centre, ON]

In 2009, Ms. Higgens, the act was amended with the intention of streamlining the process, as you mentioned earlier. The minor works and waters order was taken with the intention to exempt minor waterways and minor works from the formal approval process and consider them pre-approved. I'm assuming that was based on some special interests that were brought to the government of the day's attention, and with those concerns they then championed—for lack of better word—the recommendations that came forward.

To expand on that, in 2012, amendments were introduced that later came into force in 2014. The act was renamed the Navigation Protection Act. I might add that the minister made it very clear earlier that the Navigation Protection Act focuses on safety—not special interests, but safety.

Having said that, back in 2014 multiple sections were amended. The most substantive amendment was the introduction of a schedule of listed navigable waters where approvals are currently required prior to the building, placing, altering, etc. of works that interfere with navigation.

Fast forward to 2016, where we are today. I'm hearing once again—with the focus based on safety and, of course, this process being taken and being brought forward—that concerns have been expressed, not necessarily by special interest groups that want exemptions and things of that nature but with the focus on safety to ensure that groups such as the indigenous groups can bring forward concerns. Of course with those concerns being attached to safety, we are now into this process. Can you expand on that?