Transport Committee on Oct. 27th, 2016

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

I'm calling the meeting to order.

Pursuant to Standing Order 108(2), this is the study of the Navigation Protection Act.

The witnesses today from 8:45 on are the Ontario Federation of Anglers and Hunters and Paddle Canada. I welcome you both.

Our other witness is coming to us by teleconference from British Columbia. She would have been on this panel. I'll suggest that we'll allow the panels to roll forward if there are questions. She's getting up at six in the morning to be able to be with us by teleconference this morning as it is. We'll allow those to continue on, if we have questions on a variety of different ways.

I'll turn it over to Mr. Farrant, manager, government affairs and policy, Ontario Federation of Anglers and Hunters, and for Paddle Canada, we have Jay Morrison, director of the Quebec branch. Gentlemen, thank you very much for coming and contributing to this important study.

[Greg Farrant, Manager, Government Affairs and Policy, Ontario Federation of Anglers and Hunters]

Good morning, Madam Chair, and members of the committee.

On behalf of the Ontario Federation of Anglers and Hunters, our 100,000 members, and the 740 member clubs across Ontario, thank you for the courtesy of inviting us here this morning to address our concerns with the Navigation Protection Act.

Maintaining safe and navigable waters is critically important for providing access to angling and hunting opportunities. Despite Transport Canada's insistence that the impacts to these activities would be minimal when changes were made to the former legislation, the OFAH remains concerned that the reduced scope of this act as it now appears could negatively impact on accessibility.

The previous act applied much more broadly to all bodies of water capable of being navigated by any type of floating vessel for transportation, recreation, or commerce, whereas the current act only applies to 162 of Canada's waters, oceans, lakes, and rivers, that are listed under schedule 2 of the act. In essence, this means that the right of navigation on all waters not listed in schedule 2 is no longer protected under the current statute.

The Canadian public right of navigation on waters not listed under the act is only protected under common law, meaning that infringements on navigation rights, for example, a private or public nuisance complaint, would have to be addressed through the courts, which are already backlogged.

We live in a society that is increasingly litigious, but for most individuals, using the courts to ensure navigation is cost and time prohibitive. Whether intentional or not, the common law provision in the NPA may in fact prove to be even more cumbersome and inaccessible for the majority of Canadians than the system it replaced.

Having to seek remedy through the courts will do nothing to prevent obstructions to navigation from occurring, and it put the onus on the angler, hunter, canoeist, or paddler to identify and challenge infringements on their right to navigation, which means that the infringement has already occurred. Having to resort to the common law is an adversarial, cumbersome, and ineffective means of protecting navigation rights in unlisted waters.

In the past, there was considerable discussion regarding the removal of environmental protection for unlisted waters in the NPA. In our experience, the former act was not entirely intended to be used as a primary legislative tool for environmental protection. There are other federal, provincial, and municipal statutes that are specifically designed to provide protection for aquatic ecosystems, such as the Fisheries Act, the Fish and Wildlife Conservation Act, and the Canadian Environmental Assessment Act, among others.

Another agency will have the resources to effectively deal with navigation concerns, so expecting them to address the shortfalls in the act is moot.

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

Madam Chair,

I have a point of order.

[The Chair, Liberal, Judy Sgro]

Mr. Ferrant, could you hold for a second. My apologies for interrupting your flow of thought, but a point of order has been raised.

Mr. Berthold.

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

It's not really a point of order, Madam Chair.

The witness is speaking too fast, and the interpretation is having some difficulty in following. If he would speak slowly, it would be easier for me to understand what he is saying.

[Greg Farrant]

My apologies. I'm trying to get in under the five minutes.

[The Chair, Liberal, Judy Sgro]

Thank you, Mr. Berthold.

Mr. Farrant.

[Greg Farrant]

I'm sorry for that. I will certainly try and slow it down.

[The Chair, Liberal, Judy Sgro]

You have lots of time.

[Greg Farrant]

As I was saying, another agency will have the resources or expertise to effectively deal with navigation concerns, so expecting them to address the shortfalls in the act is moot.

Other federal agencies, provincial agencies, and municipalities have relied on Transport Canada for their guidance and advice related to navigable waters to effectively implement their own laws and regulations. For example, some in-water obstructions to navigation, dams for example, are subject to Ontario's Lakes and Rivers Improvement Act, but we are not aware of similar legislation that prevents out-of-water obstructions or in-water obstructions that do not impede water flow or levels to navigation, such as fences, wires, zip lines, and other.

The focus on commercial navigation in the NPA largely removes consideration of most recreational activities that occur on what are now unlisted waters. In its current form, the NPA effectively separates the protection of navigation from the protection of navigable waters. For most recreational activities that occur on lakes or rivers, the waterways that Canadians use to pursue these opportunities are largely excluded from schedule 2 of the NPA and thus excluded from federal oversight.

The waters no longer listed in schedule 2 provide for a diversity of fishing, hunting, recreational boating, kayaking, canoeing, and other opportunities. If there are gaps in the legislation that allow for the obstruction of navigation in unlisted waters, access to traditional uses could be restricted. This in turn reduces the potential social, cultural, ecological, and economic benefits gained by these same opportunities. For instance, hunting, fishing, trapping, and outfitting in Canada contribute $15.2 billion annually to the national economy, and it's fair to say that the restrictions left in place in the NPA could have a negative impact on that bottom line. Changes to the former NWPA also potentially impact public safety, given that fences, wires, and other obstructions across waters can be extremely dangerous, especially in high-flowing waters where the majority of navigation issues occur.

In closing, I want to touch briefly on one of the most puzzling aspects of the changes that were made. For the purposes of the former act, minor works and minor waters were certain classes of works and navigable waters that could already be exempted from the application process under the act. This was introduced originally to streamline the federal approval processes to save time and effort for some of the proponents. An exemption would be granted when the physical characteristics limited any realistic potential for practical navigation. Since the mechanism already existed in the NWPA to allow for an exemption to address these circumstances, surely the legislation could have been refined to respond to the concerns that had been raised and make it clearer rather than simply gutting the process entirely, leaving 99.7% of Canada's lakes and almost 100% of its rivers unprotected. Although it appears that changes made to the NWPA several years ago were not intended to restrict public access, the fact remains that we may lose access to thousands of lakes, rivers, and streams across the country.

We believe that changes are needed to the current statute to ensure that the right to navigation is fully protected, and encourage members of the committee to take another look at what was done, and seek a better way to accommodate the concerns raised in connection with the previous legislation, while restoring the right of access for all those who use waterways for economic, cultural, and social benefit.

Navigable waters not only helped to shape early Canadian commerce, but also our culture and our identity. Many Canadians continue to have a strong desire to experience this great country through the use of our navigable waters. Let's not put up legislative barriers that keep them from exercising that right.

Thank you again, Madam Chair and members of the committee, for your time and courtesy this morning.

[The Chair, Liberal, Judy Sgro]

Thank you, Mr. Farrant.

Mr. Morrison, you're next.

[Jay Morrison, Director, Quebec Branch, Paddle Canada]

Thank you, Madam Chair.

I'd like to thank Greg for that very thorough treatment. I, on the other hand, reviewed my opening remarks many times to get them down below the five-minute barrier. That was a very thorough treatment of the legal issues and, I think, very useful.

Paddle Canada is a non-profit organization with a mission of promoting paddling instruction, safety, and environmental awareness as related to recreational canoeing and kayaking. We have over 2,000 instructor members, some of whom work in more than 200 organizations, businesses, and clubs from coast to coast.

Over 25,000 people attend Paddle Canada courses and events every year. We support federal government programs to promote safe outdoor activity through the PaddleSmart and AdventureSmart programs. We are the national voice of recreational paddling.

How many Canadians paddle canoes? Who knows? Nobody knows. The boating industry doesn't know. It's certainly in the many millions.

I'm the Quebec representative. There's not a Quebec branch. I'm actually the Quebec board member on Paddle Canada and a certified instructor in a number of canoeing disciplines. I'm also president of the chapter for west Quebec and eastern Ontario of the Canadian Parks and Wilderness Society, CPAWS, which, as some of you may know, is Canada's foremost wilderness conservation organization.

I claim no particular expertise in the environmental assessment process, which of course was an integral part of the former Navigable Waters Protection Act, but I assume and I hope that you will be hearing from people who are. I did testify on behalf of CPAWS in 2009 before the Senate subcommittee that was examining changes to the Navigable Waters Protection Act, so I'm quite familiar with the history of the legislation.

I do claim expertise in what constitutes a navigable waterway. I have paddled the over 8,000 kilometres from the Gulf of St. Lawrence to Inuvik using the traditional routes of the indigenous people and the fur traders who followed. Parts of these routes involve traversing swamps, wetlands, beaver dams, and rapids, and the definition of navigable waters that was established by the Privy Council in 1906 and affirmed by the courts quite recently is still absolutely relevant.

If it floats a canoe, it's navigable, and if it is navigable, then the public's common law right to navigate it should be protected by the government. The Navigation Protection Act fails to do that.

We have been looking forward to the work of this committee since 2009, when the previous government, through an omnibus bill and without parliamentary debate, began dismantling the provisions of the Navigable Waters Protection Act. This act had served for more than 100 years the dual purpose of helping to protect the environmental quality of Canada's waterways and the common law right of the public to safely navigate these waterways.

These changes were opposed by a broad coalition comprising many of Canada's leading environmental groups, boating associations, hunting and fishing organizations, cottage and property associations, and first nations. The primary concern was the government's removal from the NWPA of provisions automatically triggering an environmental assessment whenever a significant work was to be constructed on a navigable waterway.

I may say that it was not until one of the very last hearings at the Senate subcommittee that the senators began to realize what the implications of that were. They did not realize that not only would there be no duplication of environmental assessments between provinces and the federal government, as was claimed by the government and which was not occurring, but there would be no environmental assessments when these major works were contemplated over navigable waterways.

While not succeeding in getting the changes to the bill, the exercise was not a complete failure. An opposition MP promised to look into the changes to the NWPA should his party form government. His name, of course, is Justin Trudeau. The Navigation Protection Act, which superseded the NWPA in 2014, further eroded the public right to navigation by establishing that only for two lists of 100 oceans and lakes and parts of 64 rivers would the government continue to fulfill its duty to protect the public right of navigation, leaving to individual citizens the nearly impossible task of suing those who had interfered with that right on the tens of thousands of large lakes and rivers in Canada.

It is interesting that the schedules of favoured waterways include lakes and rivers in the cottage playgrounds of the rich and famous, while excluding those that are the lifeblood of first nations and small communities that might oppose large projects threatening their way of life.

In all of Quebec, for example, only three lakes are listed, and the Gatineau River, on the doorstep of Parliament, is excluded, the citizens of its communities left to fend for themselves.

This is just a summary of the shortcomings of the NPA. While the paddling community might be expected to be concerned about maintaining its right to navigate Canada's waterways, we are equally concerned about the impact of works on the environmental quality of those waterways and the people who live there. For a more thorough treatment of the legal aspects of this subject, I recommend that the committee reference the Ecojustice background paper of 2012.

As a former senior manager in the public service, I understand that processes need to be streamlined and taxpayers' dollars used wisely, but this can be done without abdicating the government's responsibility to protect the environment and the public right of navigation. In my view, the current government should repeal the NPA in its approach of selective application of rights, restore the protections of the pre-2009 NWPA, and properly resource the transportation ministry based on a more efficient application and enforcement regime. We can protect all our waterways and provide timely approval of sustainable projects.

Thank you.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Morrison.

We will now shift to our respective members. Mr. Berthold, you have six minutes.

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

Thank you, Madam Chair.

Mr. Farrant and Mr. Morrison, thank you kindly for being with us today.

We would have much preferred to meet with you with draft legislation to amend the Navigation Protection Act in hand, legislation the government could have introduced. Unfortunately, however, the government chose to do the opposite in its review of the Navigation Protection Act.

We, the committee members, received a letter from the Minister of Transport and the Minister of Fisheries and Oceans compelling the committee to undertake consultations even before learning what the Minister of Transport's intentions were with respect to the proposed amendments to the Navigation Protection Act.

I'd really like you to understand the position we, on this side, are in at this stage in the committee's study and to tell you about the mandate given by the Prime Minister. At the time, Mr. Trudeau made quite clear, or just about, that he wanted to restore lost protections. In fact, you talked about that in your presentation, Mr. Morrison. I'd like to read an excerpt from the document you sent to us:

While not succeeding in getting changes to the bill, the exercise was not a complete failure; an opposition MP promised to look into the changes to the NWPA should his party form government. His name of course, was Justin Trudeau.

That resulted in the letter that the two ministers wrote and sent to the committee. The letter contains the following statement:

As part of our mandate from the Prime Minister [the very same Mr. Trudeau you mentioned], 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.

You said the message had been received, coming in loud and clear. Unfortunately, we still don't know what those amendments will entail. We don't know which protections exactly the people in the Liberal Party want restored. We don't know what the government's intentions are. As I see it, it's premature to think that you will get back all the rights you had previously because we don't know what the government is going to propose.

There is another point I absolutely want to mention. The ministers, on their end, committed to consulting the various stakeholder groups to ascertain their interests and plans. Unfortunately, we found out from the Minister of Transport, himself, and the parliamentary secretary that he would not be undertaking any consultations apart from the general consultations a minister engages in when meeting with groups on specific issues in the usual course of their mandate.

Our preference would have been to have the proposed amendments before engaging in this exercise with the various groups who were in agreement on the amendments put forward and adopted in the previous act. It is a shame, but the government's approach sheds absolutely no light on its reasons or motivation or, more importantly, the proposed amendments.

I just wanted to give you a bit of context. We don't object to studying the amendments. What we object to is the process being followed. We object to the way the government is using the committee to justify a position that is hardly justifiable.

Now, I have some questions for you, Mr. Farrant.

In the wake of the changes to the rules under the Navigation Protection Act, what problems have the hunters and anglers you represent encountered?

[Greg Farrant]

Sure. Thank you, sir, for the question. I appreciate that.

I'll give you a couple of examples, if I may. For instance, a zip line has been erected across the Thames River in London, Ontario, and it poses a threat to anybody who is using those waters for recreational fishing, canoeing, and paddling. There is no protection against that kind of thing. Also, in many cases on smaller rivers and streams, especially in the spring when the waters are high and flowing quickly, there are farm fences erected right through the water, from both banks right through the middle of the water. Whether you are on those rivers trout fishing, duck hunting, whatever it may be, you can appreciate, if you're coming down the river and you come around the bend and there's a fence suddenly in the middle of the river, not only is it a bit of a public safety issue, but what do you do then? Where do you go?

Those are examples of the types of thing that have been occurring.

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

Mr. Farrant, how would the previous legislation have made it possible for you to intervene? We didn't receive any complaints on the matter. Transport Canada told us that none of the cases you mention were reported. No complaints made their way to the appropriate authorities. In the absence of complaints, there is no real problem, is there?

I can appreciate that a fence in the middle of the river can certainly be quite dangerous for those using the river. It's similar for snowmobilers. If someone decides to block a trail with a wire rope, it can pose a tremendous danger. We've seen very serious snowmobile accidents, but in—

[The Chair, Liberal, Judy Sgro]

Your question, sir.

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

Pardon me?

[The Chair, Liberal, Judy Sgro]

What is your specific question? Your time is up.

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

Oh, I did not know that.

[The Chair, Liberal, Judy Sgro]

I was giving you a little bit of extra time to get to your question.

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

Okay. Sorry.

What were you able to do under the previous legislation that you can't do under the current legislation? I don't see the difference. The barriers you're talking about don't constitute major works on waterways. Instead, they would be considered equipment for recreational use.

[Greg Farrant]

As I stated during my comments, other levels of government look to this legislation in order to enforce it in their own jurisdictions. Under the previous legislation, the provincial or municipal levels of government would have been able to act to stop barriers like that, to stop that kind of intrusion on the waterways which, under this act, is not allowed except on those that are listed. It's now up to individuals, as opposed to previously when it was not up to individuals under the common law, to try and effect change themselves as individual people. You saw other levels of government stepping in to effect change and to stop obstructions from occurring.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Farrant.

Maybe if you want to get additional comments, you'll have to do it in the subsequent time.

On to Mr. Hardie.

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

Mr. Farrant and Mr. Morrison, as Yogi Berra would say, this is déjà vu all over again. It would appear that the government of the day, back in 2009, was pretty reluctant to hear from folks, and we're still experiencing that in this room. Were you consulted in advance of the changes to the Navigation Protection Act?