Transport Committee on Oct. 20th, 2016

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Atkinson.

Now we have Mr. Bloomer from the Canadian Energy Pipeline Association.

Welcome, and thank you very much for taking time to speak to us today.

[Chris Bloomer, President and Chief Executive Officer, Canadian Energy Pipeline Association]

Good morning, and thank you for the opportunity. I wish I were there. I'll be there next week, but couldn't make it today.

I'm going to speak on behalf of the Canadian Energy Pipeline Association. The association represents the 12 major energy pipelines crossing Canada. About 119,000 kilometres move 97% of Canada's oil and natural gas liquids energy.

I want to mention at the beginning that CEPA will be actively participating in all of the federal regulatory reviews under way, including the Fisheries Act, CEAA, and NEB modernization, but today I'll confine my comments to the review at hand, the Navigation Protection Act. First, there are some fundamental principles of good regulation that apply equally to all of those reviews and you will hear us talking about that in the months ahead.

The most effective and efficient regulatory framework for all stakeholders is one that is clear, efficient, and comprehensive. In particular, the process should be science and fact based, be conducted by the best-placed regulator, avoid duplication, outline clear accountabilities, contain transparent rules and processes, allow for meaningful participation of those who have valuable contributions to make, and balance the need for timeliness with other objectives. CEPA supports any efforts the government makes to achieve these outcomes. We are in the process of finalizing our written submission and technical background for this review, which we will be filing by the deadline next week.

My comments today will focus briefly on the purpose of the legislation, the changes made over the past few years that relate to our industry, and how these changes are working today.

Overall, the previous reforms were aimed at modernizing the legislation, reducing duplication and inefficiencies, and clarifying the purpose of the NWPA, Navigable Waters Protection Act, relative to other legislation. With that in mind, the primary intent of the Navigation Protection Act is to ensure that navigation is protected and to balance navigation rights with the need to construct infrastructure.

The NPA is intended to provide oversight of works and undertakings that can interfere with navigation and its priority is to ensure that development can be done safely and with minimal impact on navigation. Other legislation that is also under review by parliamentary committees or expert panels, namely, CEAA 2012, the National Energy Board modernization, the Fisheries Act, consider the impact to habitat and the environment and how pipelines are regulated.

Given the broad mandate of other environmental legislation, we do not believe that environment protection has been watered down or impaired by changes in the NPA. Rather, the pipeline industry project reviews under other legislation, and particularly by the NEB, fully consider the environmental impact of pipelines crossing water bodies.

In addition, the changes implemented in 2012 reduce duplication and allow government, industry, and stakeholders to improve outcomes by focusing assessments on key areas of impact and allocating resources more efficiently. These changes have strengthened, focused, and clarified the purpose of the NPA and other environmental legislation and set the scene for enhanced environmental outcomes going forward.

We are hopeful that this review of the NPA will be mindful of not duplicating the regulations and protections available under other legislation. We are also hopeful that this review will look at the intent and purpose of the changes under the NPA, with a view to which changes are working and which require modification.

Before talking about these changes, I think it would be helpful to understand how pipelines cross watercourses. During construction, there are some, albeit often temporary, disturbances to the water body from both an environmental and navigation perspective. Sometimes it may be necessary to install a temporary bridge, culvert, ice, snow or log fill in the water to allow construction vehicles a safe place to cross. These are fully removed after construction is complete.

Also, we would point out that CEPA members employ world-class watercourse crossing methodology that combines safety, engineering, and environmental expertise. We use the latest available technologies to minimize environmental impacts and, where necessary, employ mitigation measures that are grounded in science to address any remaining concern.

Importantly, for our purpose here, once the crossing is completed, things go back to normal in the watercourse, and there is generally no impact on navigation.

There are three key changes in the legislation that impact the pipeline industry.

The first is delegating authority to the NEB to assess impacts on navigation for federally regulated pipelines. These changes require the NEB to take into account effects on navigation and navigation safety before recommendations or decisions are made for new pipelines. Previously, this was the responsibility of Transport Canada post-NEB approval.

Second, narrowing the scope of the act from all waterways in Canada to a schedule covering 162 rivers, lakes, and oceans is important.

The third is the minor works order of 2009. Provincially regulated pipelines that are not regulated by the NEB are still subject to Transport Canada authorization if they cross a scheduled waterway. However, some of these crossings meet the minor works order criteria for pipelines, so they don’t need a specific authorization.

We believe that these changes have had a positive impact, without watering down navigation protection or environmental protection.

Previously, there was duplication of authority, with the NEB having authority to regulate pipelines under the NEB Act, and the Minister of Transport having duplicate authority under the NWPA for water crossings. The 2012 changes consolidated that authority, with the NEB as a one window or best-placed regulator. CEPA believes this is a positive step that will create not only a more efficient permitting process, but also a better outcome by reinforcing accountability with a single regulator. It also builds on the industry's record of safety and performance in construction and operation of watercourse crossings. An integrated approach, taking into account the full range of safety and environmental concerns of a pipeline watercourse crossing, allows the industry and the regulator to work together more effectively to achieve the best results.

The NEB takes navigation and navigation safety into account with the same rigour as previously carried out by Transport Canada. The NEB conducts an independent, fair, and publicly accessible regulatory review process. It employs experts on staff who are familiar with pipeline construction and operation. They have the expertise to identify safety and environmental effects that are potentially significant. Although other federal government departments have specific expertise, none have experience related to pipelines.

[The Chair, Liberal, Judy Sgro]

Mr. Bloomer, I don't want to cut you off, but you can get the balance of your comments in when you are answering questions from the members. They have many questions.

[Chris Bloomer]

Sure. Understood.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

Mr. Hardie, go ahead.

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

Thank you to the folks for being here.

I guess we'll start with you, Mr. Atkinson.

What we mentioned to the previous panel probably bears repeating, that my colleagues' standpoint on this review isn't necessarily to roll back everything that was done before; we don't want to throw out the baby with the bathwater. We have heard that there are some definite benefits resulting from the changes. What was missing from the previous process, in our view.... The way this was brought in, in the middle of a very large omnibus bill, involved very little consultation with proponents and opponents of the idea, so the purpose of this is basically a fair process, in order to give people a chance to tell us what they think and to get everything on the table so that we can go forward not just based on what we perceive to have happened—because the public communication that we heard after this was brought in tends to be quite different from the actual one that we've heard since having a chance to hear from people like you.

Mr. Atkinson, to what extent would you say the construction standards that your members follow remain influenced by the previous legislation?

[Michael Atkinson]

To a great degree.... I am talking about changes that were made not just to the NPA but to environmental assessment generally. A lot of those changes put back into play more certainty and predictability. For example, if a provincial highway—

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

I'm sorry, sir. You are going down the wrong road here.

I am talking about the construction standards they use. I'll be a bit more specific. A concern I would have is that.... Say you have a waterway that is now not listed, basically, not protected, to use that expression. Previously, there were some limitations, prohibitions about throwing stuff into the water, chunks of concrete, whatever, or depositing material, etc. Now, if that waterway is no longer protected in terms of the Navigable Waters Protection Act, does this happen?

[Michael Atkinson]

Dumping construction waste into a waterway would not be allowed under most of the standard specifications that we would see in a municipal or provincial project and would be covered by other legislation. Whether or not it was covered under the old legislation or the new legislation here, it would have been covered under other legislation or city bylaws, etc., because these would deal with the treatment of construction waste.

From that perspective, I wouldn't see any change in those standards as a result of changes to this act. This would be something that was a requirement in our contract specifications, which would be developed by the municipality or by the provincial owner requiring the work. As a matter of contract, we would be required to follow those specifications. In addition, there would likely be other either municipal bylaws or other provincial laws that would prevent it from happening.

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

Would the same apply to the pipeline industry, Mr. Bloomer?

[Chris Bloomer]

Of course. In this case we're talking about navigation. The pipeline industry is regulated under CEAA. It's continually inspected and managed. This in no way affects the protection or future impacts on the waterways, as it falls within the other environmental legislation.

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

I would say that in some quarters, not all, but in some quarters, there's deep suspicion about what you get when you have self-regulation and self-management of things. When we have the recreational users in to talk about any proposed changes to this act, what are they going to tell us about your performance out there under a self-regulatory regime?

[Michael Atkinson]

Well, it's not self-regulatory. As contractors or builders we're still required to follow the rules and regulations through other legislation, bylaws, regulations, and we're also required to perform the work in the standards that are specified by the municipality or by the province in the particular specifications related to that work. Noise, for example, dust emissions, many other items that come from construction, are all regulated in other forms, so it's not self-regulation. We still have to deal with standards, requirements, bylaws, regulations that are imposed by other pieces of legislation.

[The Chair, Liberal, Judy Sgro]

Mr. Hardie, your time is up.

Ms. Block.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Madam Chair, quickly, before I ask my questions, I've been hearing some rumours that the Minister of Transport is going to be rolling out a transportation strategy over the next few months. Would you or perhaps the parliamentary secretary be able to provide us with a bit of an update at the end of this committee meeting?

[The Chair, Liberal, Judy Sgro]

Possibly that could be done at our next committee meeting, but certainly not today, just because of the fact that we have our witnesses and we haven't allocated any time.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Okay. I was thinking about at the very end.

We know that the minister has the ability to both add or remove waterways under subsection 29(2) of the act. We heard from departmental officials and municipalities that there have only been two requests to add waterways and that to the best of their knowledge, there have been no complaints filed in Quebec, Alberta, and Saskatchewan in regard to projects undertaken. If you look at the act, you know that it's not just municipalities and provinces that could ask for a waterway to be added, but first nations would be included in that as well.

I really appreciate the clarity, Mr. Atkinson, that you have provided with respect to the focus of the Navigation Protection Act, and the reminder that there are other pieces of legislation that speak to some of the concerns that were raised by different groups at the time the Navigable Waters Protection Act was changed.

We've heard a lot from members across the way that perhaps they're not really focusing on the legislation but more on the process that was undertaken. I know that we have another panel coming next week, which I think is largely environmental groups—interestingly enough, given your observations, coming to speak to the Navigation Protection Act.

I also want to follow up, Mr. Bloomer, with some questions that my colleague asked of the municipalities about the change, in respect to pipelines under the Navigation Protection Act, over to the NEB. I believe that was done through Bill C-46, the Pipeline Safety Act. I wonder whether you can speak to that.

Then I have perhaps two questions. Do these changes in any way reduce the environmental oversight of projects? How has commercial navigation been affected by the changes that were made?

[The Chair, Liberal, Judy Sgro]

Mr. Bloomer, would you like to respond?

[Chris Bloomer]

Thank you.

The move to the NEB, as I said in my statement, was basically.... Before, the transportation board would opine on navigation aspects after the NEB; now, it's incorporated in the whole process, and the navigation piece is taken as seriously with the NEB, as probably the best-placed regulator to do that and more efficient.

I think that was the key thing, to move it to where the science and technical expertise was, to make it more [Inaudible—Editor] and incorporate it into the overall process.

With respect to reducing protections and so on, under CEAA 2012 those protections in the Fisheries Act and so on are still there; it didn't diminish the protections at all, as this is focused strictly on navigation.

If there's any impact on navigation, there has not been any impact due to the changes on any kind of navigational aspects of pipeline projects.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you.

Mr. Atkinson.

[Michael Atkinson]

As I understand it, some of the concern is with the automatic trigger for an assessment based on a navigable water. Part of the whole reform with respect to CEAA was to look at some of those triggers and to make sure that we didn't have a duplication. If the provincial government, for example, has already done an environmental assessment, why does it have to be assessed again federally just because somebody has floated an idea and thinks a drainage ditch is navigable? It just didn't make a lot of sense.

With respect to what the impacts have been on commercial navigation, we certainly aren't aware of any problems or concerns with structures being constructed on navigable waters that have changed or made them different in any way from the previous legislation.

[The Chair, Liberal, Judy Sgro]

You have half a minute left.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

I'm going to take this half a minute to summarize what I see the issue as being. I appreciate my colleagues' comments. I believe each one of them is genuine in their attempts to understand the Navigation Protection Act and what led us up to the changes that were made in 2012.

I guess I would suggest, as my colleague has formerly, that we're studying this because it's in the minister's mandate letter to restore the protections that were removed by the previous government. I think that has been our biggest concern. The conclusions, what this committee may choose to recommend, may not even be considered, because there's a foregone conclusion about what needs to happen, which is why we have opposed this study right from the beginning.

I appreciate so much the clarity that you've brought today.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

Mr. Aubin.

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

Thank you, Madam Chair.

Gentlemen, thank you for being here this morning. Your expertise is appreciated.

Without further ado, I’ll turn to Mr. Bloomer.

As an overview, could you provide us with an estimate, even a rough one, of the number of Canadian navigable waterways where pipelines cross, either in or under the bodies of water?