Transport Committee on Oct. 20th, 2016

[Chris Bloomer]

Do you mean the absolute number of the pipeline crossings? Well, there are probably hundreds if not thousands of different water crossings and so on. Different techniques are used for each crossing, depending on the size. Directional drilling is a key thing, whereby we don't affect the bed at all, but there are quite a number, obviously.

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

Thank you.

What advantage do you see in the transfer of assessments from Transport Canada to the National Energy Board?

Are the assessments simpler, more effective?

Could you give us one or two examples that would enable us to compare the new system with the old one?

[Chris Bloomer]

I think the whole purpose of making the change was to make it less cumbersome, put it in a place where you had the technical capability within the NEB, to make sure that the process was not creating redundancies in evaluations, and so on. As I said, before, the transportation board would provide their opinion post the NEB's opinion. Now, it's incorporated into the process, and the same considerations are in the NEB process as were in the previous process.

In the past, as Mr. Atkinson mentioned, it was the triggers that really created the issue. By defining in a schedule the types of water bodies that are included in the assessments I think greatly indicates where the issues should be focused.

In some cases, where you had small ephemeral waterways, ephemeral ponds, and so on, it was an automatic trigger that created a tremendous amount of regulatory burden to deal with those things. It really wasn't dealing with navigation per se, and it was not really dealing with how the pipelines affect those areas.

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

Now that the entire environmental study process falls under the National Energy Board, can you tell whether it has helped achieve the much sought-after social licence that is essential now that the time has come to carry out major infrastructure projects such as yours?

[Chris Bloomer]

I think we have to put the pipeline piece into context. There is the project approval piece. A lot of discussions are happening around that right now, obviously. Then there's the life cycle aspect of it. The NEB, having the environmental reviews within the regulator, has the technical expertise to deal with it, and they also manage the pipeline throughout its life cycle after it's built. Rather than having it spread out in competing jurisdictions, it's in one spot where you have the best technical expertise that manages it throughout the life of the pipeline.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

I'm sorry, Mr. Aubin, your time is up.

Mr. Rayes.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Thank you, Madam Chair.

My thanks to both witnesses for being here today.

In a previous life, before I was elected to Parliament a year ago, I was the mayor of a municipality of 45,000 residents.

Mr. Atkinson, I confirm that there are many bylaws, many environmental regulations—particularly at the provincial level—that stand in the way of people who want to create wealth and to develop the various municipalities across Canada.

In any case, I can confirm that this is the reality in rural areas. It often causes more problems than anything else. As mayor, I had to play the role of mediator, to deal with provincial authorities to try to untangle projects that were subject to excessive regulations for all sorts of reasons. I could prepare a whole list, but I don't think this is the objective today. For anyone wondering, I confirm that there are a lot of them.

Let me ask you both some simple questions.

First of all, on a scale of one to 10, what is your level of satisfaction with the existing legislation and with the amendments that were implemented in 2012?

[Michael Atkinson]

As far as bringing certainty and predictability and timeliness is concerned, it's at seven, eight, or nine, but the truth will tell. We haven't had enough real experience with the changes, but certainly the intent to ensure that is so important.

We are not the proponents of these projects. We're the builders. When we get the green light, assuming the environmental assessment has been properly done and scrutiny with all the regulations, etc., being contractors we want to go from A to B as fast as possible and get the project done in the quality and time and budget that the proponent has asked for.

The worst case is that we start with a bunch of uncertainty hanging over us. The chance that the project could be stopped or delayed because of a challenge based on, “Oh, there should have been another assessment” or “This has been triggered now” frankly was our biggest concern.

It appears to me that the changes that were made with respect to this legislation would diminish that probability substantially, from a builder's perspective.

Frankly, under the old regime the definition of navigable water was anything you could float an opinion on. That was the uncertainty we would often start projects with which had already received environmental assessments. They would have started it, and somebody would have said, “Wait a minute; that's navigable”, even though it might be a dry drainage ditch in July and August. That was the problem we the builders had: the lack of certainty, the lack of knowing that we had now received the green light to proceed and could now proceed.

[Chris Bloomer]

I would echo those comments. I would say that the principles that underlie the objectives of CEAA 2012, and certainly the changes to the Navigable Waters Protection Act, of certainty, clarity, and reducing duplication in the process are still valid today. While nothing is perfect, I think that proceeding with the way things were thought of in 2012 is the corporate way to go.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Great.

My understanding is that—just answer yes or no, unless you want to elaborate—the minister's mandate letter is quite clear. He wants us to go back, despite what has been said in terms of not “throwing out the baby with the bathwater.” From the minister's various comments, we feel that the Liberals want to destroy what was done by the previous government. Do you think we should go back, before 2012?

[Michael Atkinson]

I would not want to see a return to a system that had uncertainty and the ability for a project that had already received the green light to be derailed because somebody floated an opinion.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Great.

[Chris Bloomer]

I think we are now in a process wherein we have an NEB modernization review, a review of CEAA, fisheries, and navigation. Those processes are under way right now. We're obviously going to participate in those things. As I said before, we're going to reinforce in our views that the principles of CEAA 2012 are still very valid and positive.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Thank you.

I'll give the 50 seconds I have left to my colleague.

[The Chair, Liberal, Judy Sgro]

You have 45 seconds.

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

Thank you very much, Madam Chair.

Given the testimony, given the minister's mandate letter that is very clear on the expected outcome, given the letter to the committee in which the minister had promised to hold consultations—and we have learned that there will not be any—given his testimony before us, I move the following motion, Madam Chair:

Whereas the minister of Transport has already decided the changes to be made to the Navigation Protection Act and following the hearing of the Canadian Energy Pipeline Association and the Canadian Construction Association. I ask that the Committee suspend the study until the minister of Transport submits his own modifications to the Navigation Protection Act to this Committee.

I'm submitting a copy of that motion to the clerk. Thank you very much.

[The Chair, Liberal, Judy Sgro]

I think we've all heard it.

What are the wishes of the committee? It's 48 hours' notice that is required.

It looks as though this will be a continuation filing.

[Sean Fraser, Liberal, Central Nova, NS]

Madam Chair, I think, given that we have witnesses here and still have time to ask questions, if we could defer this and deal with it more than 48 hours from now, that would be my preference.

[The Chair, Liberal, Judy Sgro]

There's no consent.

Mr. Fraser, go ahead.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you very much to our witnesses. I did appreciate your testimony here today.

To provide a bit of context, there was some discussion about this potentially being more about process than substance. I appreciate my colleague, Ms. Block's, comments that she is taking this as being genuine.

I have to say, though, I have some problems with the legislation itself. There's no preordained outcome, but I don't expect my feedback will be offensive to you. I'm not here to conflate navigation concerns with the need to conduct environmental assessments on drainage ditches. When we say there were some good things in there, I don't think anybody should have to pay hundreds of thousands of dollars to hire environmental consultants because it rained too hard one Tuesday. That's not what this is about to me. Perhaps it's my own lived experience that has informed my opinion.

My concerns with the revisions to the act are primarily economic. I'm worried that we've shrunk down the number of scheduled waters significantly. There's some good and bad in there. My real concern is that it's going to interfere with marine tourism and trade on significant, but not necessarily large from a national perspective, rivers and streams that actually serve the economic purposes of the people and businesses in my own community. I also come from a litigation background. Before my career in politics, I usually got involved in projects when somebody didn't do what they were supposed to do.

I'll start by dealing with some of the obstructions that could land on what was previously navigable water, but is no longer scheduled. From the pipeline industry, we heard that the typical practice is that if you have to erect a temporary bridge or some infrastructure to allow you to complete your project, it's removed.

If you're dealing with an unscheduled water, do you think the minister should have some power to enforce the behaviour of somebody who is constructing a pipeline, but doesn't do what is supposed to be done? What should the government's role be when saying that the obstruction has to be removed?

[Chris Bloomer]

Are you asking if the pipeline company leaves stuff in the waterway?

[Sean Fraser, Liberal, Central Nova, NS]

The company or one of its subcontractors. Is this regulated elsewhere?

[Chris Bloomer]

Under the NEB, there's a leave to construct, and then there's a leave to operate. Once the pipeline is constructed, the NEB will review everything. If that's not taken care of, they won't be able to operate the pipeline or start it up. There is a very strict process for dealing with those things and to make sure all those things are done. After construction, the NEB will say, “Well, you didn't do this, you didn't do that.” If that's the case, then they have to do it before they start up. It's very well scrutinized.

[Sean Fraser, Liberal, Central Nova, NS]

Sure.

From the construction industry, we started to go down this path a little bit, but more in the context of construction standards. Let's forget standards for the moment and just think that sometimes there may be a naughty subcontractor out there who leaves materials in the waterway. If we're dealing with perhaps a strategically important river for an exporter, is there authority that already exists, or is there authority that should exist, so the minister or the government could help ensure that there's commercial access to these waterways?

[Michael Atkinson]

If we're working for a municipal owner, absolutely. There is a lot of leverage in the construction contract itself that can be brought to bear to ensure that proper construction methodology and standards are complied with. I don't think we need a federal piece of legislation to ensure that that happens with respect to bodies of water that are important to other levels of government.

Right now, that's the case for any earthmoving as well that's related to a riverbank or for highway or road construction. Those regulations, standards, requirements, etc. are very much standard in the construction contracts and specifications that a municipality or a provincial government would have in those circumstances.