Transport Committee on Oct. 20th, 2016

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

I call to order meeting number 27 of the Standing Committee on Transport, Infrastructure and Communities to discuss the study of the Navigation Protection Act.

Today we have with us the representatives of the Alberta Association of Municipal Districts and Counties, the Saskatchewan Association of Rural Municipalities,

the Fédération québécoise des municipalités

and the regional municipality of Argenteuil as well.

Thank you very much for taking the time to speak to us today and to add your comments on the Navigation Protection Act.

I will ask you to introduce yourselves as we go forward. Who would like to go first?

Mr. Kemmere, please go ahead.

[Al Kemmere, President, Alberta Association of Municipal Districts and Counties]

I want to thank you for the opportunity to present to the body today and give some of our perspectives on the Navigable Waters Protection Act. Just for a little bit of background, AAMDC, the Alberta Association of Municipal Districts and Counties, represents all the rural municipalities in Alberta. We cover 85% of the land base in this province. We cover the province from north to south, east to west, touching all other borders. We manage almost 4,400 bridges, which account for more than 60% of the total bridge inventory in the province.

For years rural municipalities have been working with the Navigable Waters Protection Act, so AAMDC has a strong position to speak to the impacts of the changes made to it from the 2012 rural municipal perspective. The former NWPA posed considerable challenges for municipalities, including that many water bodies that had not recently supported any navigation still required costly impact assessments. Many water bodies in Alberta are either used exclusively for irrigation or are not high enough to support navigation through seasonal runoffs. They would never actually be navigable, and yet they're still subject to the costs of an impact assessment.

Municipalities are often required to build much costlier bridges than they had originally planned in order to support navigation even though the water body is not actively navigated. In many cases a proposed culvert would have been upgraded to a much more expensive bridge.

Municipalities are often faced with excessive delays in having their applications reviewed and approved by Transport Canada because of the broad scope of the previous legislation.

The definition of navigability has often varied from project to project, which would make municipal costs in complying with the previous legislation even less practical.

Repairs and modifications to older structures would often trigger the need for an impact assessment, even if the water body had not been navigated in recent history.

Rural municipal concerns with the previous act were not about their being closed to navigation or about federal oversight, but rather the unreasonable scope that the previous legislation placed on water bodies that obviously did not support navigation. The previous legislation did not utilize local knowledge on how water bodies were being used and therefore increased the cost to municipalities and to the Government of Canada.

The new legislation balances federal oversight with municipal autonomy. The new legislation allows the minister to add more water bodies to the schedule as they see fit and allows owners of works that have work [Technical difficulty—Editor] subject to the NPA, even if it's not on a scheduled water body, by opting into the process.

Clearly many different organizations manage works that cross water bodies. The municipalities are similar to the federal government in that they operate in the best interests of their constituents. If a non-scheduled water body is used for navigation, it is highly unlikely that the municipality will ignore that function when building a bridge or a culvert. Navigation is important to local economies and the quality of life, and the current NPA empowers municipalities to make those decisions locally.

With this background in mind, the AAMDC has a few recommendations for the committee to consider in reviewing the NPA.

First, the use of a schedule is a good idea and should be maintained. Including every water body in Canada is simply impractical. It showed in the extra work and cost that it caused municipalities and the capacity challenge it caused to Transport Canada.

Second, there may be value in expanding the schedule to include more water bodies, based on conversations with first nations, aboriginal groups, and other stakeholders who may be involved. The development of a formal process to propose and evaluate additions may be an effective compromise.

It is important that municipalities be treated as distinct from other owners and managers of works that cross water bodies. Municipalities make decisions in the best interests of their constituents and typically have a strong knowledge of whether a body is actually being used for navigation.

If the scope of the NPA is broadened to include more waterways, it must be matched by an increase in federal capacity to process the applications in a timely manner. It is important to remember that the NPA is ultimately about the safe navigation of Canada's water bodies. Other acts address environmental and land use concerns associated with works over water bodies, and expanding the NPA to address this will increase confusion among those who interact with the legislation.

Thank you for your time. I'll entertain questions at your call.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Kemmere. We very much appreciate your being very direct and to the point and making your comments as brief as possible.

Mr. Orb, would you like to go next?

[Raymond Orb, President, Saskatchewan Association of Rural Municipalities]

Yes.

Good morning, ladies and gentlemen. Thank you for the opportunity to speak to you about the Navigation Protection Act and its effect on municipalities in Saskatchewan.

My name is Ray Orb and I'm president of the Saskatchewan Association of Rural Municipalities, or SARM. We represent all 296 rural municipalities in the province.

I'm also here today to speak on behalf of the Federation of Canadian Municipalities, or FCM, in particular the rural forum of which I'm currently the chairperson.

SARM's concerns with the Navigation Protection Act are in regard to the added costs to municipal infrastructure projects. SARM's environmental concerns are already looked after by the environment departments, both federally and provincially.

Water quality and other important environmental considerations fall under the responsibility of both the federal and provincial environment departments. SARM is confident that they have the proper legislation and regulations in place to ensure that there is a strong balance between the environment and infrastructure projects.

Before amendments were made to the Navigation Protection Act, RMs, rural municipalities, faced increased costs, project delays, and generally more red tape when planning, designing, and constructing infrastructure projects. This was a result of the requirements to accommodate non-existent public water travel.

These requirements made sense in 1882 when the act was created. However, our modes of transportation have evolved drastically and the need for ensuring passage of canoes has decreased significantly.

This used to mean that projects involving culverts were required to be large enough to allow passage of canoes or other similar vessels. Municipalities were told by Transport Canada to redesign and alter their projects, which resulted in delays and increased costs. Unfortunately, these alterations were required even though there was no public travel on these waterways.

Take the example from the RM of Insinger, in the east central part of Saskatchewan. In 2005 they faced a series of delays in attempting to replace a bridge on the Whitesand River. A representative from Transport Canada deemed that the waterway was navigable, despite the many beaver dams, rocks, brush, and no one living in the area could recall a canoe attempting to travel this waterway.

The original project cost was $125,000, and that proposal from Transport Canada would have cost $400,000, an increase of $275,000 from the original design. The RM and Transport Canada discussed this issue back and forth until SARM became involved in late 2005. Discussions continued until eventually the original project design was allowed to continue as planned. This delayed the project for well over a year.

A second example comes from the RM of Meadow Lake, in the northwest area of the province. In 2010 the RM applied for approval to construct a new road and bridge to cross Alcott Creek. The application was submitted in April 2010, and approval wasn't received until November 2011. In Saskatchewan our construction season ends in November, resulting in the RM of Meadow Lake having to wait two full construction seasons to start the project.

Upon receiving approval, the RM was required to raise the bridge above the existing road-top elevation to accommodate canoe traffic. This resulted in a hump in the road that is now experienced by several vehicles per day and will only accommodate a recreational canoe once every five years.

The amendments that came into force in 2014 addressed these concerns and allowed for municipalities to carry out their infrastructure projects without these unnecessary delays.

SARM and its membership are appreciative of these changes and are concerned that a review of these changes may result in a reversal. This would bring back the same old challenges that I have highlighted to you this morning.

We suggest that any amendments made as a result of this review take into consideration the positive effect that the amendments from 2014 have had on municipalities. SARM recommends that the federal government remain committed to these amendments which reduced the financial burden on municipalities.

On the FCM rural forum, I would also like to add the following points to consider.

The FCM rural forum is mandated by FCM to deal with real specific issues, and it's composed of member municipalities all across rural Canada.

The FCM welcomed changes to the Navigation Protection Act brought about in 2012, which eliminated unnecessary requirements to accommodate non-existent public water travel. The amendments allowed the existing legislation to be brought up to date and into line with the country's current transportation routes.

By reducing project delays and higher building costs to municipalities, while at the same time providing protection to these important waterways, the changes to the Navigation Protection Act directly related to municipal concerns aimed at improving the capacity of local governments to build infrastructure and to deliver essential services. To make environmental planning easier, the federal government also recognized the limited capacity of rural municipalities and ensured that these communities have access to rural-specific resources, including tools, expertise, and financial capacity.

At this moment when the federal government has committed to community building as nation building, rural municipalities must be full partners in plotting the path forward. It will take continued dialogue to build Canada's future, with durable growth and more livable communities. Through FCM, rural Canada will continue to have a full seat at the table.

Thank you for the opportunity to speak this morning.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Orb.

We will now move to teleconferencing with Mr. Pearce.

[Scott Pearce, Administrator, Fédération québécoise des municipalités]

Good morning. I'm Scott Pearce. First, I would like to thank the committee for this consultation and their interest in the opinion of the Quebec federation of municipalities.

I have the pleasure of sitting on the FCM board of directors with Mr. Kemmere and Mr. Orb. The three of us make up the chair and two vice-chairs of the FCM rural forum. While Quebec's opinion may differ, for different reasons, I support everything they've said so far today.

As I said, I am here representing the Quebec federation of municipalities, which is 1,200 municipalities in Quebec, with over three million lakes and rivers.

I'll be as brief as I can, given the time allotted to us. I would like to summarize what we've retained from the 2014 amendments: a name change to better reflect the intention of the act; addition to the law of an appendix that lists navigable waters for which necessary regulatory approval is required to build structures that might interfere with navigation significantly; the public right to navigation; and the right to use navigable waters as a road, which continues to be protected in Canada under common law, whether the waterway is or is not included in the annex of the act.

We are here to comment on the four points related to these changes. Our concerns are more environmental. Comments from the FQM will be pretty much just on that. Regarding the effectiveness of the changes globally from a user perspective, with other laws that affect all users, we want to actually talk to the committee about the overall effectiveness of these changes in the context of the management of boating.

The change of name clearly indicates that we want to protect navigation instead of navigable waters. FQM has focused its priorities on the issue of regulations on boating. On September 29, we had a resolution, which we have forwarded to you.

It is so important that priority be given to bodies of water and their environmental protection before protecting pleasure boating. The law on merchant marine and the office of boating safety doesn't protect lakes adequately, because these laws deal with navigation without a clear distinction between pleasure and commercial transport and relegate the water as a secondary consideration. The lakes and rivers of Canada are our natural wealth, and once the watershed is damaged, we have a long way to come back.

Concerning navigable waters, the new annexes remove the largest share of Quebec lakes to keep only three: Lac des Deux Montagnes, Lac Memphrémagog, and Lac Saint-Jean. Besides the Saint Lawrence River, five of our major rivers are also included: Rivière des Mille-Îles, Rivière des Prairies, Richelieu River, Rivière Saint-Maurice, and Saguenay River.

Those bodies of water have one thing in common: they are navigable and they all have serious environmental problems related to pleasure boating. They're not alone. All the navigable lakes not listed on this list have the same problems, often exacerbated due to their less extensive surface areas.

On the public right to navigation, the FQM considers that boating is not a right. The public right to navigation, a principle of common law, comes from an antiquated thought process mainly based on trade. Boating should not be considered a right. It's not economically feasible nor safe, and is less sustainable. It's a privilege that has otherwise endangered and degraded the lakes. The FQM hopes to address this issue further with the Minister of Transport as soon as the opportunity arises. It is for us, absolutely fundamental.

The right to use a waterway as a road is unsustainable. Supporting this principle is to ignore that each lake or river has its own morphology and its weaknesses, banks, shallows, swamps, and spawning areas, just to name a few.

Imagining that a lake is a road is unthinkable as to believe we could move either by car, bike, or walk in any area of a Canadian park without restriction, arguing that the place is public. This idea would not occur to anyone, even if their right to travel is essential. So this is not the case of navigation.

There are rules in parks and there must be rules on lakes. It should be added that on the roads there are limits, and national and provincial standards governing the roads and highways. In the case of lakes, not only is the water considered a road, but in addition, there are very few restrictions, obtained in each case through a very long and expensive procedure, which makes it almost impossible for local municipalities to regulate their own bodies of water.

Many of the lakes are suffering severe problems because there are no protections.

The amendments to the act on the protection of navigation overall, interrelated with the Canada Shipping Act and the regulation on restrictions on the use of buildings, are inefficient and have serious implications for users: ecological damage, harm to public health, security problems, economic concerns, engagement of public access, and reduced quality of life.

For the FQM, it is urgent to find solutions to manage boating efficiently, ecologically, and in ways that are economically profitable. This natural resource must become safer and remain accessible to all Canadians before the damage observed today is irreversible.

The municipal sector is very interested in supporting the government in this task. We need to work together to find solutions. We have proposed a working group led by the federal government, including municipalities and watershed management folks, who are the closest stakeholders on the ground, and it would be a first step towards the necessary changes to be considered for the management of recreational boating on inland waters in Canada.

I have now stated what the FQM professionals have put together for me to discuss with you. I'll just go on a more personal level for the next 30 seconds.

I am a fisherman. I am the mayor of my town and the warden of my region and I sit on the FQM and the FCM. We have a serious problem. The way our laws are, people can bring boats of any size onto small lakes across the country. What it's doing is damaging our shorelines in ways we've never seen. I am not a hard-line environmentalist; I am an average Canadian. Frankly, we need the government's help, because the damage that is being done is going to be irreversible.

The FCM as well as the FQM passed a resolution regarding the boating, but I often talk to people in what I think is a simple way to look at it. An average person takes a bath in their bathtub at home, and it's not really a problem, but when you put a 1,000-pound person into a regular bathtub, you have a problem. This is exactly what's happening on our lakes throughout this country at this point. We need the federal government to work with municipalities to protect our water for all Canadians.

I thank you so very much for taking the time to listen to us.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

Thank you to all of you. As you would know, we have a lot of members interested in asking some critically important questions.

I'm going to turn to Ms. Block for six minutes.

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

I want to welcome all of our witnesses here today. Even though it's through video and teleconferencing, it's good to hear the testimony you bring.

I also want to acknowledge the background briefing material we received from our analyst the week before we broke to be in our ridings. I think it reminded us that the changes to the Navigable Waters Protection Act actually started long before they were enshrined in legislation; I think she noted it as being back in 2009.

I also recognize that a number of you have appeared before this committee two or three times to share your thoughts, your concerns, and perhaps your recommendations on how this legislation needs to be changed.

I have in my hand an article that was published in The Hill Times on September 14, with the headline “Leave Navigation Protection Act 'as is,' say municipalities”. That article sparked quite a lively debate here in committee and in the media, as both the parliamentary secretary, Kate Young, and a departmental official indicated that the study would be done and a report would be tabled in early 2017, even before the committee had decided to undertake this study.

We know that undertaking this study is in the minister's mandate letter and that the letter is pretty clear about restoring the protections that were changed in 2014. We know that there is a view to do this in early 2017.

I agree with the headline of that article, which says to leave the Navigation Protection Act as is. I think there was a lot of good work done to get that act to where it is so that it could remove the barriers that many municipalities were facing when dealing with the issues they have to deal with, in rural Canada especially. We know that there is ministerial discretion built into the act whereby waterways can be added or removed, if a municipality applies to have that done.

Because I agree with the headline in this article and believe that we got it right, I am going to offer the rest of my time to my colleagues across the table. Most of them are new to this committee, and it's obvious that they are the driving force behind this study, so I'm going to offer them the rest of my time to ask questions of the municipalities.

[The Chair, Liberal, Judy Sgro]

That's excellent. Thank you very much for being so co-operative, Ms. Block, as we move forward on this.

We'll go to Mr. Hardie.

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

Thanks, Ms. Block, I appreciate that.

As Ms. Block noted, everybody on the Liberal side of the table is new. We were consuming negative public feedback when the changes to the act were brought in. I am from British Columbia, where there's a very robust environmental sector. There was doom and gloom being spread everywhere about the implications of this. However, when we really looked at taking on a review of the Navigation Protection Act , it was more to fulfill what we saw was a missed obligation to actually go out and consult.

I understand that there was a sense of urgency on the part of the previous government to get economic activity going and to get construction projects under way and completed. You can't disagree with that, but at the same time, we come in. I think I can speak for the whole group. We are not ideologically bent on rolling something back just because somebody else did it. We think, in fact, that, as you've noted, there have been some benefits to these changes. We want to preserve those while at the same time perhaps taking a little extra time to reflect on others' views of what should happen. With that in mind, I have a number of questions.

First, we'll go to you, Mr. Kemmere. Has there been enough time for municipalities to experience the new regime, the new Navigation Protection Act? Have you had a chance to see the difference in how your projects are conducted under the new act?

[Al Kemmere]

Municipalities already shared with us their ability to move forward on works that are crossing the rivers and streams. They have been able to be expedited. Rather than taking a year and a half, they're down to a four-month process of approvals for all the environmental aspects. At the same time, the structures that are being dealt with are adequate to the municipality and also adequate to look after the environmental health of the streams. Our members are sharing with us that there have definitely been improvements.

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

Great, thank you for that.

We'll swing to you, Mr. Orb.

In terms of the projects that have gone forward, is it customary that the individual municipalities adopt some kind of standardized mechanism for getting public input before a project goes forward? In other words, do you open the doors to hear from the public on a proposal to build a culvert instead of a bridge, for instance?

[Raymond Orb]

It's not necessary other than going through the standard procedure of doing tendering and things like that. If it's an existing bridge or a culvert, there isn't a consultation period unless, I suppose, they're looking at altering waterways, the flow of water, and things like that. If it is kind of business as usual, there is not a consultation period that's needed. The exception would be, of course, with first nations. If it affected a first nations reserve, or it affected a waterway on a reserve or something like that, there would be a consultation done. The duty to consult would be a standard procedure.

It's not a standard procedure to have to consult. In a lot of cases, the water only runs for a few weeks during the spring runoff. It's not considered by us to be a navigable water. That's the issue, because before the regulations were changed, we were forced to go through all of the stringent regulations that were in place to have access for watercraft to go down the stream. These are simply streams that don't run very much during the year, so it's something that we see as a low priority.

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

I'll open this up to everybody on the teleconference or on the video conference.

Has there been any adverse public reaction that you have on record to any of the projects that you've taken forward?

[Al Kemmere]

From an Alberta point of view, I am not aware of any adverse push-back or any adverse concerns that have come forward.

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

What about Saskatchewan?

[Raymond Orb]

I would say the same thing. We've only had positive feedback from our members. Of course, we've since speeded up the process.

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

Okay.

What about Quebec?

[Scott Pearce]

There has not, at this point. Everything seems to be going well.

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

There is a principle that I've learned to respect even more over time, the principle of fair process, whereby, when you have the doors open and you allow for public input on issues, if there is none, you can take that as a signal that things have been going along pretty well okay.

The one thing that popped out to me in the new act that might be problematic is that the only recourse for somebody who really does have an issue with what's being proposed or with what has already been done is the courts, which can be—it's the same thing you spoke about in terms of the old process—time-consuming and expensive.

Would you be agreeable to a perhaps more amenable system for public input and public objections to a particular project that didn't involve somebody having to wait until it's done and then go to court?

[Raymond Orb]

May I comment on that?

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

Go ahead. We'll go to Saskatchewan first.

[Raymond Orb]

I would comment on that to say that our municipal council meetings are all open to the public. In the case of tendering, which applies to most of the construction infrastructure projects, either culverts or bridges, they are advertised to the general public. People see that.

I think that if people have issues, whether we're changing or taking out a bridge and installing a culvert, people would get back to our local politicians pretty quickly if they had concerns about it.

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

Is it possible to send along to us a couple of examples of these processes that have been advertised in a given municipality so that we can go back and look at the minutes of those meetings, etc.? I would like to familiarize myself with the process that's being used right now. This may not be the greatest analogy, but the changes to the act were made for a reason, and we don't want to throw out the good reason—the baby with the bathwater kind of thing.

Has the—

[The Chair, Liberal, Judy Sgro]

Mr. Hardie, I'm sorry, but your time has is up.