TRAN Committee Meeting

     Good morning. I call to order the Standing Committee on Transport, Infrastructure and Communities of the 42nd Parliament, 1st session. This is meeting number 25.

    We are very pleased to have the minister here this morning. It's too bad that we only have you for 40 minutes. We have asked about that, but you have assured us you have a cabinet meeting and cannot be here any longer. In an effort to get right to business, Minister Garneau, thanks again for coming to speak to us on these issues.

    I'll turn the floor over to you.

    Thank you, Madam Chair.

    Perhaps I could start with a few opening remarks and then take your questions.

    Madam Chair and honourable members, thank you for inviting me to meet with the committee today.

    Let me begin by apologizing for the limited time I have to spend with you. I have a cabinet meeting this morning at 9:30. But please believe me when I say that no disrespect is intended. I very much appreciate the value of the study you are undertaking. The Navigation Protection Act is important to me, to our government, and to all Canadians.

    After my brief remarks, I will be available to answer questions, and once I leave, my representative, Catherine Higgens, will be here to answer questions. You will be able to continue the discussion with her.

    There is one thing I would like to clarify, and that is my role, and the role of Transport Canada, vis-à-vis this committee. There have been comments in the media implying that I have been steering the work of this committee. I want to reiterate as strongly as I can that the witnesses you choose to hear from, the content of your findings, as well as the timeline of your report, are completely under your control.

    My role and that of my department is to inform and assist you, and that is what I hope to do today.

    Ms. Kate Young, my parliamentary secretary, and subject matter experts from my department are also available to assist you and provide any additional information that you might require.

     The legislation you are reviewing, the Navigation Protection Act, gives the Government of Canada the authority to regulate bridges, dams, and other projects that affect the public right of navigation on Canada's busiest waterways. Common law protects the public right to free and unobstructed navigation in all of Canada's waterways.

    The purpose of the act is to balance this right of navigation with the need to construct infrastructure, such as bridges and dams, and to ensure that waterways remain safe at all times. I stress the word “safe” because that is the real objective of this act—safe navigation.

    Over the years, industry and provincial, territorial, and municipal governments have asked Transport Canada to review the former Navigable Waters Protection Act to make it easier for communities to develop resources and build important infrastructure. In 2012 the act was amended to streamline its review processes and refine its scope. Minor work such as replacing culverts was exempted, and a schedule of the waterways subject to the act was introduced. Common law continued to protect the right of navigation on waterways not listed in the schedule.

    The amendments to the Navigable Waters Protection Act came into force in 2014, and the legislation was renamed the Navigation Protection Act to better address the intent of the legislation.

    In the same timeframe the Canadian Environmental Assessment Act was amended to require environmental assessments only for designated types of projects, regardless of whether regulatory approval was required, such as under the Navigation Protection Act. This is one of the changes that I expect will be considered by the panel reviewing the Canadian Environmental Assessment Act.

    In the Speech from the Throne, our government promised to review our environmental and regulatory processes, especially in relation to resource development and infrastructure investment projects.

    And in my mandate letter from the Prime Minister, I was asked to work with the Minister of Fisheries, Oceans and the Canadian Coast Guard to review the previous government's changes to the Fisheries Act and the Navigable Waters Protection Act, restore lost protections, and incorporate modern safeguards.

     In June of this year we delivered on that commitment with the launch of a comprehensive review with three elements: building more trust in our environmental assessments of major projects; modernizing the National Energy Board; and taking a hard look at changes to the Fisheries Act and the Navigation Protection Act.

     Consultation will be at the core of this review. The government believes in a coordinated, open, and transparent process that incorporates scientific evidence and takes into account the views of Canadians. And I have already heard from Canadians—indigenous peoples, industry representatives, waterway users, provinces and territories, and local governments—who have said the changes to the Navigation Protection Act had both benefits and drawbacks. For example, builders and owners of infrastructure, including provinces, territories, and municipalities, appreciated the changes made. It seems the change that evoked the most interest and concern among waterway users was the narrowing of the scope of the act from all waterways in Canada to a schedule of 162 rivers, lakes, and oceans.

    As you know, I suggested that this committee examine the changes to the legislation, including the waterways now covered under the legislation, and the types of barriers to navigation that should be regulated or prohibited under the act to ensure that safety remains paramount.

    It is my hope that the committee could get additional feedback and views beyond our consultations.

    I presume that the committee will hear from a diversity of witnesses and that you will be able to hear a wide range of views from Canadians on this matter. I am conscious of how important it will be to hear from indigenous communities in this context.

    I look forward to seeing your recommendations.

     Thank you for your attention. I would now be prepared to answer a few questions.

    Thank you, Madam Chair.

    Thank you very much, Minister Garneau.

    We will now turn to Mr. Berthold for six minutes.

     Thank you, Madam Chair.

    Minister, Ms. Higgens, thank you for being with us this morning.

     If you don't mind, Minister, I'd like to share our position on the study that the committee was mandated to undertake. You should understand that this study, which totally disrupted the committee's planned business for the fall, strikes us as pointless since the conclusions are already known. Like the Prime Minister, you have repeatedly made those conclusions known.

    Allow me to refer to the mandate letter you, as the Minister of Transport, were given. In fact, you mentioned the letter in your opening statement this morning. I'm going to read you an excerpt from your mandate letter. I know it's something you talk about regularly, Mr. Garneau, and it seems to have guided your work as minister since your appointment. On the issue of rail safety in Lac-Mégantic, I've had the opportunity to see just how important abiding by your mandate letter is to you.

    Sometimes that's a good thing, but sometimes, it can be problematic, especially in this case. Your mandate letter clearly states that you will “work with the Minister of Fisheries, Oceans and the Canadian Coast Guard to review the previous government's changes to the Fisheries Act and the Navigable Waters Protection Act, restore lost protections, and incorporate modern safeguards”.

    As I see it, that priority not only refers to a study, but also, to some extent, dictates the committee's conclusions. Given the mandate letter you received and the information we have, it's clear that the decision has been made, meaning that the lost protections have to be restored. We find that request questionable since the committee already had a very full schedule. The committee had wanted to focus its efforts on a national transportation strategy with a view to accelerating economic development in Canada and building on the recently announced infrastructure plan to make sound investments that would stimulate economic development in every community and region around the country.

    Allow me to read two paragraphs from the letter sent jointly by the two ministers to our chair and committee and, in fact, to both committees concerned. “As part of our mandate from the Prime Minister, 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.” It appears not only in your mandate letter, but it's also repeated in the letter sent to the committee. In other words, the committee is being told, “here are the conclusions you should reach”.

    Here's another excerpt from the letter, in reference to the Navigation Protection Act: “the amendments that came into force in 2014 concentrated the application of the Act on 162 of Canada's busiest navigable waterways. It is suggested you focus on these changes as well as the types of interferences to navigation that should be regulated or prohibited, and how to best implement these under the legislation.”

     In the face of such clear directives, Minister, you should understand why we would assume that the previous studies carried out by the Senate and House of Commons committees were based on sufficient evidence and, hence, why we would conclude that there was no need for a new series of hearings or further evidence.

    I reviewed all the evidence or just about—I wouldn't want to get tripped up on some point I had missed—collected by the two committees, and I was able to see that numerous statements had been made. It was clear that considerable input had been collected, that municipalities, aboriginal communities, and environmental groups had all had the opportunity to comment on the legislation in question.

    Why ask the committee to spend its time and energy redoing work that has already been done multiple times, if not to justify the government's political will to amend acts that were duly amended in the wake of consultation? Why do so if not to undo what the previous government did?

    The act gives you an opportunity to intervene. You can make the changes yourselves without having to amend the act. It is clearly indicated in the act that you have all the tools needed to respond to the various requests you may receive.

    I remind you what the objective of the first amendment of the act was, in 2009. The legislation was amended to help accelerate Canada's economic development and to ensure that projects can be carried out more quickly.

    As a former mayor, I can tell you that it is sometimes very hard to comply with all the regulations and to overcome all the difficulties just to build a small bridge across a stream. A stream is a stream. We don't need a federal study to check whether boats can pass under that bridge, as the stream is tiny.

    If that is what you want to bring back, if you want to go back to that time....

     Thank you, Mr. Berthold. Your six minutes are up.

    I'm sorry, Mr. Garneau. There is no time right now to respond to Mr. Berthold.

     I now move over to Mr. Hardie.

    Thank you, Madam Chair.

    I was going to give up some of my time so that our opposition friends could ask some questions, but they don't seem to have any questions. I have a couple.

    I will take this opportunity, if you want, Mr. Hardie. No problem.

     The Navigation Protection Act, as many of the other acts, had a very evocative name that might have shielded what it was really all about, which was a pattern that we saw in the last government. In many of these issues where we're asked to look at decisions made in the past, the inference is that, well, something needs to be changed. When we hear from the environmentalists, the first thing they say is, look, roll it all back to the way it used to be.

    My sense is, though, that like anything there are some things that we should step back and consider and say, “Well, that wasn't a bad idea.” Other things we might want to do a bit differently.

     The two areas where I'd like to have some comment from you, Mr. Minister, are about streamlining the process in what you have heard in the consultations that you've had. Clearly, municipalities and people who build infrastructure would appreciate a streamlined process, but has it been too streamlined? Have we actually given up too many opportunities to protect waterways, even if they aren't commercially useable waterways?

    Yes, your comment about the fact that some measures that may have been made by the previous government make sense is one that I perfectly accept. In fact, I said it in my opening remarks.

    The purpose here is not to turn back the clock, unlike what Mr. Berthold was saying, to what existed before. It is actually to look at the act, its intent, what changes were made, which ones make sense and which ones don't make sense in terms of removing protections, and I'm asking this committee to do that.

    I think that's a very worthwhile exercise to do. Unlike what Mr. Berthold said, there was no consultation back in 2012. It was slammed into an omnibus bill, along with changes to the Fisheries Act, and the environment act, too.

    I think this is a golden opportunity for us to, in an intelligent, consultative way, look at the act as it stands at the moment, and to modernize it to ensure that the proper intent is covered and the proper protections are there.

    With respect to streamlining the process, that's a good thing. It should never be an act that is so cumbersome that it takes forever to approve something. Any measures that can be recommended by the committee here would also, I think, be taken into consideration because, yes, we want to make sure, as I said in my opening remarks, that our navigable waters remain navigable, and that they're secure. In some cases, we may want to do an environmental assessment when an obstruction is put in place, but overall we'd like to make the processes as streamlined as possible.

    We would welcome your input with respect to that.

    The other matter has to do with the response or the measures that are available to individuals who, on a piece of unprotected waterway, see something happening that they feel isn't right. The NPA suggests that, well, you have access to the courts, but a local canoe club isn't going to have the time or the money or the inclination to take something into court.

    Can I infer from this that we have an opportunity here to at least examine thoughts and ideas about an alternate system that doesn't involve the time and expense of going to court as a way for people to flag issues that they think need some kind of remedy?

     If that is something the committee wants to draw attention to, yes, by all means, bearing in mind that the Navigation Protection Act's primary intent is to ensure that navigation is protected. As you know, the original notion was any waterway that you could put a canoe in.

    The notion that was brought in by the previous government was that of an aqueous waterway, but the concept is that of allowing navigation. It is something that's important as part of Canada and goes back almost to the beginning of the country. Insofar as something that may have an impact with respect to navigation, if there are ideas that you feel should be considered with respect to somebody having a problem on a navigable waterway, we're open to that.

    The one issue that came up, and this is a strange blend of things because part of it has to do with the preservation of habitat, which is another committee's issue, and it's also one I happen to sit on. In this case, the issue is being able to float a canoe on a farmer's drainage ditch, for instance, something that they dug in order to do what it was intended to do. It seems like we need some clarifications that weren't provided under the original legislation.

    That is precisely one of the things you may want to comment on.

    Thank you very much, Mr. Hardie.

    Mr. Aubin, you have six minutes, please.

    Thank you, Madam Chair.

    Good morning, Mr. Garneau. Thank you for joining us today. Forty minutes is not a lot of time, but we will use it with pleasure.

    I would first like to briefly come back to your department's mandate letter, which says that you should “restore lost protections”, which seems pretty clear to me, “and incorporate modern safeguards”.

    That is probably the element to think about because it seems new to me. The idea of restoring lost protections is fairly clear. However, can you give us an example of what you have in mind when you talk about “modern safeguards”?

    The mandate letter does indicate that lost protections should be restored, but that doesn't mean a word-for-word recreation of the previous legislation. Perhaps the elements of the act that were amended by the previous government did not really have to do with protections, but they make sense. This is about more than just restoring the legislation to its previous incarnation. I clearly said in my presentation that some things seem reasonable. Ultimately, you will be the ones looking into this issue.

    As for modern safeguards, that is a general suggestion. When you hear the testimony of various groups, they may bring forward some aspects that have not been mentioned in the past and are not part of the legislation, but that seem relevant to you in terms of protection. It is up to you to use your report to advise us on this issue.

    My second question is about what comes next.

    We will study the Navigation Protection Act, the goal of which, let's remind everyone, is to strike that balance you were talking about at the beginning of your presentation. It must help ensure a balance between construction on waterways and environmental protection. However, what is the point of doing all this work if we have to use the previous government's environmental assessments, which have been completely discredited?

    As I mentioned, you are currently examining the Navigation Protection Act. Meanwhile, an expert panel will be invited to consider the environmental aspect.

    I will give you an example of one of the measures the previous government removed from the act. When a waterway had to be modified, an environmental assessment was not required. We believe that, in some cases, that assessment would be necessary. The work done to build a bridge, a dam or another structure will have environmental repercussions. That is what the expert panel studying the aspect of environmental assessment is currently looking into, or will look into. However, it is your responsibility to decide whether you feel that the environmental assessment is appropriate. When a change is made to a waterway by a construction project that could have an impact on navigation, it is up to you to decide whether you feel that it is also important to consider environmental factors as part of the overall assessment.

    Thank you.

    Since I have time for one last question, I wouldn't want to let you leave without discussing the elephant in the room.

    Based on the current route, we all know that one of the consequences of the energy east project is that it crosses a good number of waterways that are not subject to the legislation. As I was saying earlier, the environmental assessment related to that is deficient, to say the least.

    Are we doing all this work that could, let's hope, improve both the environmental assessment and the Navigation Protection Act only to set it aside in a project as important as the building of a pipeline? In other words, are we not putting the cart before the horse or doing things in a disorderly manner?

    Thank you for the question.

    I don't know whether you are aware of the fact that, in terms of structures that could cross above, below or on the surface of a waterway, pipelines are excluded, unless those pipelines are not assessed by the National Energy Board.

    When it comes to pipelines, we have decided that the assessment done by National Energy Board would cover any routes likely to be taken by a pipeline, whether it would be going above ground or crossing a waterway. In fact, it is outside the scope of legislation on navigable waters to include pipelines, unless they have not been approved by the National Energy Board. That is how the legislation is currently structured.

    To come back to your previous question, I mentioned the environmental assessment if there are changes with respect to a waterway. If you have questions on that, I encourage you to put them to the expert panel in charge of the environmental issue.

     Thank you very much. Sorry, Mr. Aubin, your time is up.

    Mr. Sikand, you have six minutes.

    I would like to thank our esteemed minister for being here. We understand how valuable your time is. In keeping with that, I would like to offer, reluctantly, the rest of my time to Mr. Berthold and his colleagues.

    I know you ran your time out.

    In terms of the non-scheduled waterways could you speak to the utility of the opt-in, opt-out mechanisms please?

    As you know, currently there is a schedule and it has 162 lakes, rivers, and waterways. That's hardly all of the lakes, rivers, waterways, or oceans that are part of Canada. If someone wishes to undertake a project that will impact a waterway in terms of crossing it in some way, but it's a non-scheduled waterway, then they have the option to opt in, which would mean that they have the option of submitting themselves to the regulatory process that would normally exist for scheduled waterways. In other words, they may feel that just to be 100% on the safe side, they want to go through the regulatory process that we would apply in the case of a scheduled waterway. That's an option to opt in.

    Thank you.

    Thank you very much for volunteering your remaining four and a half minutes. Mr. Berthold, did you want to pick up on that opportunity?

    Thank you very much, Madam Chair.

    I want to thank my colleague for sharing his time with me. I understand that about four minutes are left.

    Minister, four minutes should be enough for me to ask you at least one question. I appreciate the fact that you gave me the time to say something earlier. So I will put a question to you. I will not just use this time to continue to explain what my thoughts and conclusions on the committee's work are.

    Minister, the letter you sent to our committee mentions consultations the two departments will undertake. I think that should be the preliminary step before this kind of a request is sent to our committee. It would be very useful to know what consultations the Department of Transport will hold and with whom the department will meet, so that we don't ask those people to talk about the same issue twice.

    The letter even talks about a website where people could share their comments. Could you give the committee members some information on that and tell us what the status of your department's consultations is and how the website implementation process is going?

    We are currently not holding formal consultations. We have received a lot of comments from many people who had something to say about the piece of legislation put into force in 2014. Many of them did not agree, others did, and they said so.

    We believe in democracy. You said that this issue had already been dealt with and asked why, in these conditions, we were pretending to consult the committee. But as I told Mr. Aubin, the issue has not been dealt with, on the contrary. Provisions that were implemented as part of the 2014 amendments could be reconsidered and potentially reintegrated in the legislation, but others could disappear forever because the amendments made no sense.

    We are asking you to do this work. It's up to you to decide whether you will do it and, if so, how you will proceed. This is an all-party committee, and that is a reflection of democracy. As you already said, you have many other important issues to address, and I am happy about that, since many of them have to do with transport.

    At the end of the day, I am very happy you have decided to dedicate some time to a study on the Navigation Protection Act.

    It should be noted that we were not all in agreement, around the table, to study these amendments. We felt that the Canadian Transportation and Logistics Strategy was more of a priority. I was surprised to hear you say that there was no consultation currently underway. However, that was very clear.

    Here is what the letter the committee received says:

    It's very clear. So I'm extremely surprised to hear you say that no consultation is currently underway. Once again, it would have been much more beneficial for us, in committee, for you to first hold consultations, so that we could have their conclusions before we begin considering these amendments.

    What would have happened if the committee had refused to study these proposals? Would you have held consultations, as is the case for all bills?

    As we know, practically all departments are now consulting the public.

    In reality, we always hold consultations as a general rule. We have a group that works with the provinces, with the goal of getting their views on those projects and the legislation. I consult first nations a great deal on certain issues. The Navigation Protection Act is something that comes up fairly often, since aboriginal peoples have their say on the issue.

    In reality, we are always in consultation because a piece of legislation, even if it is adopted, can eventually be amended. In addition, as this is a democratic process, various interest groups always have a say. Consultation continues to be part of the life of a government.

    In this case, we are asking you to consider this legislation and make the amendments you consider useful and justified. I personally appreciate the fact that you have agreed to do the work.

     Thank you very much.

    Mr. Iacono, you have six minutes.

    Thank you, Madam Chair.

    Thank you, Minister Garneau, for making the time to come to our committee to clarify some issues.

    Madam Chair, I would also like to give up some of my time to my friend on the other side, Mr. Robert Aubin.

    I have just one little question for you, Minister.

     One challenge of this committee is to separate navigation issues from environmental issues. Do you have any advice?

    As the Minister of Transport, I thank you for your question.

     My focus is on the act itself, but, as I mentioned in a previous statement, one of the things that you may wish to consider is one of the changes that was made in the past. When a request was made to build a structure that would potentially impede navigation, there was a trigger that existed for an environmental assessment to be conducted at the same time. That's something that used to exist. It's your call whether you think that that continues to be something.... You may wish to bring that matter up with the expert panel that is studying the issue of environmental assessment.

    The two are separate in the sense that they each come under different jurisdictions, but when a project does come forward, it may have implications on both sides, both with respect to navigation and with respect to the potential impact on the environment.

    It's your judgment that I'm looking to.

     Mr. Aubin, for the next three and a half minutes.

    Minister, thank you for the clarification on pipelines, but perhaps my question was not clear.

    If the committee undertakes this study, I don't think we will spend a long time arguing over the issue of culverts. In fact, I wanted to know whether infrastructure as important as pipelines, which cross dozens and dozens of rivers and larger waterways, is included in the wording of modern safeguards that could be included in the act?

    My answer won't differ from the one I already gave you. The National Energy Board is responsible for assessing a pipeline's entire route, whether it crosses waterways or simply runs underground. We think that it is important for an integrated assessment to be carried out in such cases. Transport Canada is always ready to give its opinion if the National Energy Board asks for it. That said, the board controls the process.

    If I may, I would point out that you are telling me that, on the one hand, the decision has been made, and, on the other hand, concerning another issue, that the government is in ongoing consultations, that not everything is cast in stone and that things can change. I am having a hard time reconciling those two positions. As far as I understand, if things go in the direction you want, they can change, but if they do not go in that direction, they are halted.

    Perhaps I should clarify that pipelines are handled by the National Energy Board.

    I understood that.

    We are relying on a memorandum of understanding established with the National Energy Board when it comes to transportation or the potential impact on navigation. The Board is responsible for the review. It does not fall under the Navigation Protection Act directly. We are asking that the act be reviewed in line with what is included in the mandate of the act.

    Thank you.

    I have no further questions.

    There's still a minute and a half remaining.

    Does Mr. Tootoo have a question that he would like to put on the floor? There is a minute and a half left on the Liberals' time.

    On a point of order, I don't know who is giving time to Mr. Tootoo. It's not your role to give time to an independent member on our committee.

    It certainly is, and he had indicated he had a question for the minister.

    It's Mr. Iacono's time—

    It's my time.

    On a point of order, please.

    Okay, remember that the minister is here for approximately five minutes, the way I look at my clock.

    I think if you ask the clerk he'll say you need unanimous consent to allow that to happen.

    It's Mr. Iacono's time, so, Mr. Iacono, what would you like to do with the last minute remaining of your time?

    Madam Chair, I'd like to give my last minute to Mr. Tootoo.

    Yes, Ms. Block.

    Madam Chair, I believe that in order for a member to be able to be given time to ask questions there has to be unanimous consent if that member is not a member of the committee.

    Let's ask the clerk.

    The Standing Orders say that non-members may participate in public proceedings to the extent that the committee allows. That, to me, means it's a question that's decided by a majority vote, not by unanimous consent.

    All right, I'm going to ask the question.

    I move that we bring this to a vote to allow Mr. Tootoo to speak.

    I call the question on allowing Mr. Tootoo to have the last minute of the questioning.

    (Motion agreed to)

    The Chair: Mr. Tootoo, you have just over a minute.

    Thank you, Madam Chair, and thank you, members.

    I won't use all the time. I have just a quick question for the minister.

    Thank you for coming this morning.

    On this issue of the Navigable Waters Protection Act and the cuts that were made, it's something that a lot of aboriginal groups across the country were rather upset about, to put it mildly. Unlike some people who say a stream is just a stream, that stream feeds aboriginal people and sustains them.

    My quick question for the minister is, since being in, I wonder if he can highlight any concerns that he has heard from different aboriginal groups across the country from coast to coast to coast with regard to the changes that were made.

    Thank you, Madam Chair.

    There is no question about this. I can confirm to you that certain first nations have said, “Hey, you've removed from the schedule what in our minds is a navigable water. Therefore, we would like it to be put back in.” There are a number of first nations that have applied to have their waterways considered as navigable waters under the schedule, and of course we look at that. We are in the process of looking at some.

    I will also point out that there have been some—I think—40 private members' bills that have come from within the Parliament of Canada, most of them from the NDP, that have indicated that they would like us to reconsider certain waters that they consider to be navigable. I think the impetus in the case of some of these came from first nations. Yes, first nations have reacted to the current schedule of 162 and said, “You've left out an important waterway, our waterway.” So we look at those.

    Minister Garneau, thank you very much for coming.

    I believe your time is up, according to my clock. You're certainly welcome to stay if you can skip a cabinet meeting.

    I'll get in trouble with the Prime Minister, Madam Chair, if I don't leave right away.

    Okay.

    I understand we have the departmental officials who will be here to answer the questions of the committee. Thank you very much.

     We have with us from the Department of Transport, Catherine Higgins, the assistant deputy minister of programs.

    Thank you very much for being here this morning. We appreciate the information I'm sure.

    It is now Ms. Block's turn for six minutes.

    Thank you very much, Madam Chair.

    I know that at the beginning of the meeting you expressed some disappointment that the minister could only stay with us for 40 minutes. In his absence, would the parliamentary secretary be willing to answer some of the questions that we have about the amendments that are being considered for the Navigation Protection Act?

    I don't know since she's not terribly welcome at this committee sometimes. I'm not sure if she would or not.

    Mr. Clerk, is it in order for me to ask that question of the parliamentary secretary? Is it appropriate, since we now have departmental officials who are here to give us the answers from the department's perspective?

    These are public proceedings and Ms. Young is free to participate in any way she sees fit.

    It's up to Ms. Young if she chooses to answer.

    Certainly, I will attempt to answer but I will refer to staff as well. They are here to answer your questions so I'm sure they'll have the answers that you need.

    Okay. Thank you very much.

    Reflecting back on what the minister said about several private member's bills that have been put forward. He cited, in particular, members of the New Democratic Party, in regard to adding waterways back into the Navigation Protection Act.

    Could the parliamentary secretary or any of the officials comment on the fact that subsection 29(2) of the act gives the minister the authority to amend the schedule and add lakes and rivers to it as requested by any community? I know that there have been two added in the last 11 months.

    Is the parliamentary secretary aware of that authority the the minister already has? Perhaps the officials could speak to what has transpired in order to add the two waterways that have been added. Have any other communities come forward and asked for waterways to be included?

     Yes, I am aware of the two that have been added. Possibly Catherine Higgens or Nancy Harris can express how they actually made it to the list.

    I would be pleased to speak about the two rivers and where they are in the process of being added to the schedule of the Navigation Protection Act.

    There are two rivers that were brought to the department, one in northern Ontario and one in the Nisga'a nation territory in British Columbia. These rivers were brought to our attention because it was felt that they met the criteria for being included in the schedule of waters. An analysis was done by the department, and the regulatory process is now under way to complete the process and add them to the schedule, on the basis that they did meet the criteria that were originally applied for the schedule of waters.

    Given that there are criteria within the legislation that are in place for communities, should they wish to have a navigable waterway added back into the act, and given that it's happened twice before, why would the minister not just continue adding waterways as communities raise them with him? Again, my question to the parliamentary secretary would be this. On June 20, 2016, the Minister of Transport said the following, concerning the Navigation Protection Act, “some of them [meaning measures] we definitely will change”.

    Given the fact that we've launched into this study.... He stated quite eloquently that he was looking forward to the work of this committee and the recommendations that would be made, yet, already on June 20, he knew there were some measures that were definitely going to change. What measures was he referring to? Why is there the need for a study like this, if he already has the ability to add back in waterways that meet the criteria outlined in the legislation?

    I think one of the concerns would be that to be put in a position to just add rivers, streams, or whatever on an ad hoc basis probably isn't the best way to handle such an important act. Certainly, that would be one of the reasons that I think it is necessary for this committee to take another look at the act and decide which areas should be changed, if at all.

    The two rivers that have come forward are rivers that meet the current criteria for the schedule of waters. The minister has posed the question more broadly: Do we have the right, appropriate waters in the schedule, including the criteria that were established to put those waters on the schedule? It's a broader question. Have we broadly got it right, in terms of the waters that should be afforded the protection under the Navigation Protection Act?

    We have heard from groups that have raised concerns with their waterways not being on the schedule, and that's a broader conversation about the particular concerns, the nature of the concerns, and the nature of the approach that could be followed to respond to those concerns.

    There would be a number of ways in which you could approach covering additional waterways, and those are the broader questions that the minister has asked the committee to hear from Canadians and provide advice on.

    Now we are on to Mr. Badawey.

    Thank you, Madam Chair.

    My first question to Mrs. Higgens would be with respect to the process and some of the concerns that were raised about how the previous omnibus legislation was implemented. How will this process address some of those concerns? That was included within the previous omnibus legislation, which was implemented by the previous government.

    The previous legislation was put in place with consultation with provinces and territories, particularly on the waterways: which waterways it would make sense to include and which waterways it would make sense to leave outside of the schedule. There were some technical briefings to inform of the approach of moving to a risk-based framework, but there was not a deep discussion with indigenous people on which waterways and what concerns were raised in terms of protection under the act. There was less conversation about the recreational, non-commercial users of the waterways.

    There were some areas in which there wasn't a full airing of views in the protections afforded under the act, and this committee provides an opportunity to broaden that discussion and allow those users—particularly the recreational users, indigenous communities, and some of the smaller commercial users—to come forward with their views.

    Although I do appreciate the comments made by Mr. Berthold with respect to endorsing the national transportation strategy as well as endorsing its priority within the committee, I have to say that with this on our plate now there are reasons for it, and you just outlined some of those reasons.

    I want to dig a bit deeper with respect to the dialogue, I guess, for lack of a better word, with indigenous people as well as other folks who may have an interest in this. How deep does the minister or your department intend on going with respect to that consultation...the direction the previous government had taken?

    Madam Chair, the department has opened up a dialogue with national associations to outline clearly the changes in the legislation from the 2014 amendments, so that there's a clearer appreciation, I believe, with indigenous people across the country of what those changes were and what they could signify for their particular concerns and traditional rights. We have understood that information will be disseminated more broadly within indigenous communities, and we would look to have a dialogue at a more granular level on what those changes mean in specific circumstances. The conversations we have had to date with indigenous people have indicted a concern with the schedule, and a concern broadly with waterways in their geographical region. But we have asked them to come back with specific concerns so we can understand the nature and specific concern and what would be potential avenues to address them. We can make that information available.

    Thank you.

    Madam Chair, I'll pass the rest of my time on to Mr. Fraser.

    How much time do I have?

    You have two and a half minutes.

    Thank you, Madam Chair.

    Ladies, thank you for being with us today.

    Just quickly, I'm afraid of duplicity here. I understand there are parallel proceedings going on with respect to the Fisheries Act. What can we focus our efforts on to avoid doing the work twice?

    Madam Chair, this committee is considering the Navigation Protection Act, which is primarily a safety act. It ensures the oversight of works that can interfere with navigation, and its priority is to ensure this can be done safely and with minimum impact on navigation.

    There are other legislations that also provide regulatory approvals. There's a review of the Fisheries Act under a separate committee, and it would look at the fish and fish habitat impacts in many of the same waters, but from a very different lens in terms of looking at the changes that were made to the Fisheries Act, which defined the scope of that act and the protections it affords for fish and fish habitat.

    While they both concern waterways, they take a very different focus and approach in terms of the purpose of the legislations.

    The environmental expert panel will be looking at the environmental assessment process, and it will be posing questions: what are appropriate projects to be subject to the environmental assessment, how should those assessments be done in a way that builds confidence and trust in the process, and are there gaps in the way that legislation is currently functioning?

    These are very different lenses, Madam Chair. I think the minister has stressed that, for the Navigation Protection Act, the top priority is safe navigation for Canadians.

    Thank you.

    Would it be best to focus on things like which waterways are covered by the act, which obstructions might interfere for the purpose of the act, and what tools the department or the minister might have to deal with those obstructions?

    These are exactly the tools and the advice that would be critical for the minister in responding to restoring lost protections and modern safeguards.

    Mr. Miller, you have five minutes.

    Thank you very much, Madam Chair.

    Thanks to Ms. Young for taking some questions.

    First of all, maybe for your own interest and benefit and that of the other members, do any of the members here know the history of why changes were made by the previous government to the Navigable Waters Protection Act? I was chair of the rural caucus at the time, and we had a number of groups, organizations, and individuals approach us wanting those changes, and probably the first one was SARM, the Saskatchewan Association of Rural Municipalities. Madam Chair, one of your staff here was in the room and used to live in Huron County in Ontario, just southwest of my own riding. We had multiple requests from farmers there because of the problems with the act. The changes were brought about in consultation and with suggestions from a lot of groups out there. They weren't just brought in unilaterally, and I think with all due respect, if the government were to spend as much time listening to those groups and figuring out why we made the changes instead of just wanting to change everything that the previous government brought in, I think it would be more valuable.

    I'm not going to pretend that any piece of legislation is perfect, but I can tell you it's a lot better than it was. There were cases, I can tell you, one not very far from my own farm. I am a beef farmer in my other life, and there was no common sense or urgency. When farmers are wanting to get on the fields either to put a crop in or to take it off, the last thing they need is a bureaucracy that doesn't work. I can tell you that the bureaucracy behind the Navigable Waters Act didn't give a damn—pardon my French—as far as getting the job done was concerned and making decisions, and farmers and rural municipalities across this country suffered because of it.

    Having said that, to the minister, what kind of specific changes is this government hung up on changing, and where did those complaints come from? Was it people who thought that the changes in it were actually a detriment to the environment and what have you, because I can tell you that it was not the intent and I don't believe anything in the bill took waters, actual navigable waters, out of protection. And I want to ask Ms. Higgens too to comment on that. That wasn't the intent and I don't believe it to be. I'd like to know where that consultation is coming from, what national organizations or what have you. Ms. Higgens, could you comment on that and Ms. Young as well?

    I'll start. I don't want to give the committee any sense that we're saying that there are major problems with the act that need to be changed. What we're saying is that, when it was first brought in, the consultation process wasn't as robust as it should have been. This is giving the committee an opportunity to take a second look.

    There are also provisions in the act that are a challenge to implement, and I think that's an area that Ms. Higgens will be able to comment on.

    Thank you. Yes, I would be happy to speak to some of the areas that we've heard are challenges.

    Just in terms of the question of whom we've been hearing concerns from, we have heard obviously a significant concern from indigenous groups across the country that are concerned that their waterways no longer are under the protection of the act and there is therefore no opportunity for a dialogue or consultation with the crown and with the government on those waterways as works are developed in them. This is an opportunity lost that indigenous people have brought to our attention in multiple forums.

    Ms. Higgens, could you name a couple of bodies of water, specific rivers or lakes that are excluded, because I believe this is not a valid issue.

    We have asked various indigenous groups to come back to us with specific areas of concern, specific waters, and that dialogue is under way. I'm not in a position to provide specific rivers and waterways, by indigenous group, at this time.

     Will indigenous groups and communities be treated the very same?

    Your time is up. See if you can get a fast answer to that question.

    Sorry, which question?

    I was asking if indigenous groups would be treated identically to any other stakeholder.

    No. The crown has committed to a nation-to-nation dialogue with indigenous people, and we have established a participant funding program, which...

    The answer is no; they won't be treated identically.

    Participant funding is available to indigenous people, so that they can participate in the consultations and in the review. That is available to them in all four of the reviews the government has launched. This is important funding to allow them the capacity to understand the changes and to be able to express their concerns and views.

    The answer is no.

    Thank you very much.

    I have just one last point, not a question.

    Mr. Miller, can I just say I really appreciated your information for the committee? We try to do this in a non-partisan way, so sharing some of that background was helpful.

    Ms. Higgens said, Ms. Sgro, that they asked the natives for some specific waterways, and I just wondered if those could be reported back to the committee when they come in.

    Ms. Higgens, if you can provide that information to the committee members, we would appreciate it.

    Mr. Aubin, you have three minutes.

    Thank you, Madam Chair.

    Given that we dove into this study, let us go back to its source. People often say that ministers come and go, but that the public service remains.

    I would like to understand the beginning of the process. We know that the previous government brought the number of protected lakes and rivers down from 30,000 to less than 100. There is probably no connection, but when we look at the map, we see that about 90% of the lakes and rivers that remained protected were in Conservative ridings.

    Ms. Higgens, what were the criteria that made it possible to keep those 100 or so lakes and rivers?

    Madam Chair, under the previous legislation, prior to the amendments, all waterways in Canada were subject to the protections of the act, and this included some 17,000 named waterways and unnamed waterways, and it was virtually impossible for the department to implement the act for such a broad scope.

    So, moving to a risk-based framework under the amended Navigation Protection Act defined the criteria with which efforts would be focused on Canada's busiest waterways, and there were criteria established to define what those waterways were. They were threefold. The first was that there was charting available for those waterways, which is an essential support to navigation. The second was Statistics Canada information about the level of commercial activity and freight activity on the waterways. And then there was historical information from the program about recreational use on the waterways.

    Those were the criteria, Madam Chair, that were used to establish the new boundaries and the new scope of the act.

    The amendments made to the legislation reportedly helped reduce the pressure of useless assessments, among other things.

    I must admit that I have a hard time imagining what a useless assessment is. Perhaps not all construction projects on a river require the same type of environmental study in light of the scope of the project. However, are there really any useless projects? If so, give me some examples of what those might be.

    Examples of projects that consumed resources under the program that were not seen as a significant impact on navigation would be seasonal ditches where you could technically float a canoe, but they were not used for the purposes of navigation; or repairs to culverts. Very minor works in minor waters of this nature were seen as consuming review resources where there was very little or no impact at all on navigation.

    Thank you very much.

    Your time is up.

    Ms. Block you have six minutes.

     Thank you very much, Madam Chair.

    I have to admit that I feel like we are getting conflicting messages from the minister and from the department in terms of consultations. In the beginning of the minister's statement, he suggested that he had not launched any sort of formal consultations on the Navigation Protection Act and that was why he was really looking forward to the work of this committee to inform him in terms of what changes need to be made—yet we know that on June 20 he already identified that there were definite changes that were going to be made. We asked what those were, and Ms. Young could not provide us with an answer on that.

    We also know that in response to Mr. Fraser's question, when he basically outlined some tools that perhaps we could focus on, your own response, Mrs. Higgens, was that those would be absolutely the tools needed, critical to restoring the lost protections in the Navigation Protection Act. One is led to believe that it is a foregone conclusion that there will be a restoration of the lost protections in the navigable waters act based on the comments that the minister has made publicly, based on the comments that you have made here today, and based on the mandate letter that was given to the minister.

    Something else I heard from you, Mrs. Higgens, was that you were reaching out to first nations communities to identify for them what is problematic in the act to their communities at this time. I'd like you to clarify. It sounds to me like the department is actually out looking for evidence to make the point that the Navigation Protection Act needs to be changed and that the protections that were changed need to be restored.

    I'm wondering if you would comment on that.

    Yes, thank you for the opportunity to clarify.

    We have heard concerns from indigenous communities, and also from other users of the waterways, that focus primarily on the focus of the schedule of waterways: are the appropriate waterways covered or not? Concerns have been brought to our attention. We maintain, as the minister outlined, an ongoing dialogue with indigenous people. That's appropriate for the crown, and for us as stewards of the legislation. That is an ongoing conversation. We have asked them, in the course of that dialogue, to bring precision to their concerns, and where particular waterways might be of concern. We are asking them, in the course of a conversation, for clarification and precision. We aren't directing in any way that conversation or the outcome of that conversation. The minister, I think, is aware that the concerns that have come forward have been of this nature.

    Thank you very much. I think I have the answer I need.

    I want to follow up, then, with subsection 29(2). You mentioned that the concerns that have been raised with the department are, in effect, the fact that a certain waterway within a community has been left off the schedule, left off the table of waterways identified to fall under these certain protections, yet we know that subsection 29(2) gives authority to the minister to amend the schedule 3.

    If this is the case, and we know that waterways have been added already, perhaps you would highlight why this undertaking hasn't been provided to those communities that are raising concerns about their own waterways. Contrary to what Ms. Young has characterized as an ad hoc basis for adding waterways to the schedule, it's articulated in legislation how that can happen.

    When a community comes to you and says they are concerned that a certain waterway within it isn't on the schedule 3, do you advise them that there is a way of getting that waterway put on the schedule? If you have issues with the process, what would those issues be?

    Madam Chair, for information, the Governor in Council may add waterways to the schedule if he is satisfied that it's in the national or regional economic interest, that it's in the public interest. These are broader questions. The minister, I think, is asking the question, “What do Canadians feel are the gaps? Which are the types of waterways and the types of protections that should be encompassed by the act?” That would inform, in fact, a decision to change which waterways are covered. Those are the questions the committee has been asked to provide advice on. There is authority to add a waterway, and two waterways have been initiated for the process to add them, but that doesn't answer those broader questions that will inform the public interest.

     Your time is up, Mrs. Block.

    Mr. Fraser, for six minutes.

    Thank you very much. I'll start by spending some additional time on the schedule.

     Ms. Higgens, I believe it was you who discussed some of the criteria the department considered when coming up with what waterways should be on the schedule. I'm curious. Is there a certain metric that was used to measure the commercial activity, the recreational traffic, or freight? What were you measuring to determine what should get onto the fee schedule?

     The available information at the time provided information on the level of freight movements on a waterway. We used that as an indication of the level of commercial activity.

     The information around the recreational use was less detailed and less informative. We drew upon information the program had on where projects had been engaged in on waterways and where users had come forward to indicate that they were using the waterways.

     It was information that was perhaps more precise for the freight and more precise for which waters were charted or not charted. The information around the recreational users, I would say, was of a less comprehensive nature, if that answers your question.

    That's helpful.

    Is there a way that the department or perhaps Stats Canada could get more information about recreational traffic other than measuring freight?

    It's a very difficult area to get at. It does rely in part on users coming forward and raising concerns on specific waters and providing that information proactively. It's not a captured body of statistics that's easy to measure.

    That's helpful.

    Being an east coast member of Parliament, I have two separate coasts in my riding alone, on the Northumberland Strait and on the eastern shore. Here's one of my big concerns. The commercial fishery often has very small harbours. A lot of the small marinas that the tourism industry depends on may be impacted by this.

     I'm curious. Would it be a simple exercise to expand the criteria to capture the kinds of bodies of water that impact people in my community? Would there be an easy fix to simply extend the metrics we're talking about?

    My answer would be that it is something that perhaps that the committee could advise on as to whether that's a fruitful area to develop that information and statistics to inform the criteria.

    From the question, perhaps you know where my preference lies.

    Madam Chair, how much time do I have left?

    You have two and a half minutes.

    Shifting gears for a moment, I'd like to chat about abandoned vessels and how they may impact navigable waters. There are communities throughout Nova Scotia, such as Marie Joseph in my backyard.... The member for South Shore—St. Margarets actually has a private member's motion on this right now in the House. What is Transport Canada doing about abandoned vessels?

    The issue of abandoned vessels is partially addressed in the Navigation Protection Act. The Navigation Protection Act does not provide the full set of tools to deal with abandoned vessels. To a large extent, abandoned vessels are the responsibility of the vessel owners to deal with.

     Through the Navigation Protection Act, there are some provisions to deal with obstructions to navigation. In the event that abandoned vessels are obstructions to navigation, there are provisions that would allow for those vessels to be managed. There's also a provision in section 20 of the act that allows for abandoned vessels to be addressed, provided there's a third party who would like to take ownership of that vessel.

    There are some provisions within the NPA, but there are also broader considerations and the responsibility of the vessel owners that need to taken into account.

    Are there any powers of Transport Canada or the federal government more broadly if the owner is known and is unwilling to move an abandoned vessel that's been sitting there for years? Is there any power of the federal government to impose a solution to that situation?

     I'm just asking if the federal government or Transport Canada has the ability to require an owner of an abandoned vessel who's unwilling to dispose of it or move it.... Can we make an owner take action?

     Perhaps we could get back to the committee with that information with regard to exactly where the boundaries of the authorities lie, and what is possible and not, so that we provide precise enough information.

    That would be very helpful.

    Thank you very much.

    Mr. Aubin.

    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?

    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.

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

    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.

    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?

    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.

    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?

    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.

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

     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.

    Thank you, Mr. Aubin.

    Mr. Hardie.

    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.

    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?

    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?

    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.

     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?

    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.

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

    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?

    Just give a short answer.

    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.

    Thank you, Ms. Higgens.

    Go ahead, Mr. Badawey.

    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?

    In 2009 the amendments were primarily around the works that were coming forward and how they should be treated, looking very much to streamline the process. Many of the concerns came from the provinces and territories, which were maintaining and building infrastructure and experiencing two- to three-year delays in the approvals under the legislation. Those are some of the origins of the concerns around which works and how they were treated. So a standardized approach to minor works was developed that could treat them as a class; and as long as they complied with basic safety requirements, they could move forward.

    The changes in 2012, which were implemented in 2014, were more around the waterways, around which waterways should be protected and which should be subject to different protections—for example, scheduled waters, protected works. It granted approvals, it maintained those streamlined processes, but it also gave greater focus.

    There were other provisions of the act. There are essentially three parts. One is to deal with works and protecting safety through regulating those works. The second is obstructions, dealing with obstructions that pose safety to the public, and dealing quickly with them. The third is a series of prohibitions of harmful activities, and those apply in all waters, actually. So there was really a sense in the amendments in 2014 of how to refine and focus efforts on those waterways and situations that most required it. There were various groups that came forward. We receive, primarily, applications from private industry and the public, and about a third is from provinces, if that gives a bit of a breakdown.

    I have a final question. Essentially, when you look at that legislation being amended in 1906, 1927, 1956—it goes back to 1882, actually—1966, 1994, 1995, 2009, 2012, and then finally in 2014, you see that this is an act that breathes. It's not something that is simply put on the shelf, is there for life, and is not touched. There are interests that come forward.

     That is what the previous government did, based on some of the special interests they heard, and it's of course what we're doing based on some of the concerns we're hearing, particularly from the indigenous folks we're dealing with on a daily basis.

    That said, I have a simple question. It is appropriate, of course, that from those concerns and the public input we receive, we do come back, we do address these concerns, and that we do at times make amendments based on those concerns.

    Madam Chair, I would agree with that. There were very significant transformations made in 2012. The question is, did we get those right? Did we get the schedule of waters right? Did we get the protections right? Those are the questions that would normally be posed with such a significant change to legislation.

    To put the doors open a bit wider to allow more folks to actually participate in the process?

    With a broad consultation process, yes.

    Madam Chair, I'm going to give the rest of my time to Mr. Sikand.

    Mr. Sikand, please.

    Thank you. I'll be quick.

     Thank you again for making yourself available today.

    I'm really glad that my colleague had that line of questioning. I'd like to contrast that a little with a climate change approach. I'd like to know if we could get information on bodies of water that have been created and have disappeared, and on some that have become navigable or not because of perhaps the levels of the water, not necessarily from the perspective of safety but of their actual existence.

    Madam Chair, if I'm understanding the question, it's a request for information about the condition of navigability in Canada—

    Mr. Gagan Sikand: Yes.

    Mrs. Catherine Higgens: —and where changes are happening. We could see what information we might have on that.

    Thank you.

    Thank you very much.

    Mr. Berthold.

    Thank you very much, Madam Chair.

    To thank him for his generosity of allowing me some time just now, I will give Mr. Sikand the following answer.

    The three oceans, the Arctic Ocean, the Pacific Ocean and the Atlantic Ocean are already waterways protected under the current act. So you don't have to worry about activities in your region, Mr. Sikand.

    I will ask two questions quickly, because many things have been said. The first one is for the parliamentary secretary.

    Can you tell us when the Department of Transport will be holding consultations with the public on reviewing the Navigation Protection Act?

    I'm sorry. That got cut out at the end. I think your question is about when the—

    When will the Department of Transport hold its own consultations with the public on the amendments to the Navigation Protection Act?

    I think what the minister was stating earlier is that he speaks with indigenous groups on a continuous basis and that navigable waters would be a part of that discussion.

    Thank you, Ms. Young.

    Here is my second question.

    Could you forward to the committee the address of the website where the consultations between the four departments will be accessible to the public?

    Yes, we can make that information available as soon as we have it.

    Is the site already accessible?

    Yes, it is.

    Okay.

    So, to sum up, here is my understanding of the issue. I will then be sharing my time with Mr. Miller.

    Ms. Young, you have just confirmed that, in the letter that the minister sent to the committee, he misled the members of the committee by stating the following:

    You mentioned the indigenous peoples only. So the minister misled the committee when we made the decision to study the review of the Navigation Protection Act.

    I will be sharing the rest of my time with my colleague Mr. Miller.

    Thank you.

    Ms. Higgens, you mentioned a few minutes ago that some municipalities were getting back to you and complaining that it was taking two to three years to get approval for a project. I had one that was a joint one in my riding, on the town line between Bruce and Grey counties. A bridge there took exactly 10 and a half years to finally get approval.

    The point I want to make about this is that these were some of the reasons why the act was changed in 2009. Are you saying that in 2012 you were still getting complaints from municipalities that these projects were taking two to three years?

     Yes. Following the 2009 amendments, there were improvements in the timeliness of the NPA approvals. There was a significant reduction in applications, but then they began to increase again, so the demand for navigation protection approvals as a result of infrastructure projects and expansion in infrastructure works led to increased pressure, so there was continued pressure after the 2009 amendments.

    I'm not sure that I'm clear. The changes were put in to speed it up. It sounds like they did speed up the approval process, but all of a sudden the time started to lengthen again, so my assumption from that is somewhere in the bureaucracy all of a sudden they decided to start delaying these projects again. Is that true, or is there a further explanation?

    No, I don't believe there was any desire to delay the projects. I believe it was an increase in workload because all 17,000 named waterways in Canada were subject to the act, so the workload.... In fact, streamlining the projects was an important process improvement, but there was still too little focus of the resources under the legislation to allow the department to fully implement that legislation for all waterways.

    Can you tell me exactly what tools the department did not have to keep up to those? Putting back the delay time to get approvals.... It doesn't matter how many are coming in, the department has to deal with them. You can't just expect municipalities or anybody to wait, so what tool were you lacking?

    I would say the tool that was introduced in 2014 was a move to a risk-based framework, which is consistent with other safety legislation where you assess the risks of different waterways and focus resources on the types of works and the types of waters that pose the greatest risk to safety and navigation, and that is the tool that was introduced in 2014. The questions on the table today are, were they optimized, were they done in the best way, and were the right waterways identified according to risk?

    In your opinion, has that change of 2014 been working? Has it reduced the time?

    Applications have reduced, obviously because of the narrowed focus of the legislation. The timeliness has increased. We don't have a backlog currently, and we are able to meet the timelines that we've committed to as part of the broad government review process, so there have been important improvements in the administration of the act.

    What we've been hearing from stakeholders is concern that they haven't had the opportunity to express their views on the schedule and the implementation of the risk-based approach.

    Thank you.

    Mr. Fraser.

    I'd like to pick up where part of my prior questions left off, particularly turning my mind to the recreational industry in navigable waters. Were there any steps taken to encourage users to request being added to the schedule if they thought they were going to be impacted by the changes when it was last amended?

    I'm not aware of specific initiatives that have been undertaken to gather up that feedback at the time.

    As part of the consultation process, independent of whatever this committee does, are there going to be efforts made to engage the public proactively by saying, “If you think you're impacted by this, let us know so you can be part of it”?

    As part of the broad review of regulatory processes, there is the public portal. There was a survey of Canadians done not simply on the Navigation Protection Act but on all four pieces of legislation that are subject to a review, and the public was encouraged to provide views through that mechanism, and we're going to provide access to that site.

    There was also an online survey. There is regular information disseminated through this site, so there are opportunities for recreational users to provide views, and they also have the opportunity of this committee to come forward.

    I guess it's as much a PR exercise as anything and making sure that everybody knows about what's going on. Rather than ask a question, I'd made a suggestion that the department invite local representatives to reach out to groups in their communities across the country to say that, if you have a small river with a marina, you might want to consider having some feedback in the process.

    I'm sorry, did you—

     No.

    Just to shift gears for a moment, I have some questions following up on Monsieur Aubin's earlier comments about pipelines. I apologize if we've covered this, but I didn't quite pick everything up.

    Why was there a transfer of responsibilities from Transport Canada to the NEB for the approval of some pipelines?

    There was at the time a duplicate authority. There was authority under the Navigation Protection Act for the minister to regulate pipelines and there was also a duplicate authority to regulate pipelines under section 108 of the National Energy Board Act. The changes streamlined and consolidated those authorities with the National Energy Board as a one-window regulator so that these crossings,... Primarily they were minor impacts on navigation, such as directional drilling, which goes under the waterway rather than through it.

    There was a series of discussions with NEB on how we could consolidate those authorities and provide a more comprehensive safety oversight supported, of course, by Transport Canada under a memorandum of understanding to make sure that our expertise was made available to them.

    Does Transport Canada still have a role in regulating non-NEB pipelines that may have an impact on navigable waters?

    The National Energy Board regulates interprovincial and international pipelines. Where a pipeline remains within the boundaries of a province, it falls under the Navigation Protection Act.

     Ms. Harris, perhaps I could ask you this question, although Ms. Higgens might be in a better position to answer. I'm not sure.

    As part of the consultation process, we heard about this website. Any time you embrace the online community, that's great. Could you share a few more details as to what this website is going to include or does include presently?

    The website, the portal that Catherine mentioned, did include a questionnaire that was open during the summer timeframe to collect some preliminary views from Canadians on their overarching perspectives with respect to the review. The information received through that questionnaire is currently being collated and can be made available if that is of interest to the committee.

    We are currently looking at putting additional questions onto the website to seek some additional views from Canadians. We're currently planning and designing some questions that would get at the issues that were discussed here today regarding the kinds of things the department would be interested in hearing about from Canadians in relation to the NPA. For example, what is their experience with the act? Do they think, as Catherine mentioned earlier, that the balance is right in terms of the changes that were made?

     I'd suggest that you invite local representatives in both houses of Parliament to share this with their own communities online as well.

    Madam Chair, do I have any time left?

    You have 45 seconds.

    If there is an obstruction to a navigable water, does the minister currently have the tools required to respond quickly if that obstruction is going to interfere with navigation or business?

    In terms of obstructions to navigation in scheduled waters, there are tools available now through the program to respond in those situations. As was mentioned, those obstruction provisions in the act apply to scheduled waters.

    There are no powers that the minister should have, in your opinion, that aren't there presently for scheduled waters?

    I'm sure I'm over time, by the way.

    You are. Thank you.

    Mr. Berthold.

    Thank you very much, Madam Chair.

    I listened carefully to what the people had to say. I listened to the comments made by the parliamentary secretary and the minister. My sincere thanks to the officials for the clarifications.

    After this first meeting, my opinion has not changed. My colleague pretty much confirmed that what we are seeing right now is a public relations campaign. It is very unfortunate that we are using the committee resources for an exercise like that.

    The parliamentary secretary told us earlier that she did not want to suggest that major changes be made to the Navigation Protection Act. However, the departments seem to be so interested in doing so that they must be made right away. Our committee's agenda has been turned upside down just so that we can study those amendments immediately.

    The amendments seem justifiable only by the will to change what the previous government had set up. However, those things are working well according to this morning's testimony. Everything is going well. The delays have been reduced and the municipalities can proceed more quickly.

    Those requests for amendments were made by Transport Canada at the time. Once again, I don't understand why we are using up so much time and so many resources from the House, when this consultation could have been held by the department alone. The two ministers misled us. I think that's serious. The letter to us clearly states that the department will be consulting the public. However, we have learned that it will consult only the indigenous peoples. That's good, but that's not what we were told.

    There's a serious lack of respect for the committee. I urge my colleagues to talk about the department's or the minister's insensitivity toward the committee.

    Madam Chair, why ask our committee to do the work that is normally done by the department? Why add another consultation when the department already has the means to act and to respond to all the requests and when it seems that it has no issues or complaints? It is able to take action. There is no current request for amendments. What is so urgent? What are the changes expected? What is the problem? I have no idea, and no one here this morning has been able to tell me what the problem is with the Navigation Protection Act. No one was able to say.

    Madam Chair, that is why it will come as no surprise to you that I move the following motion to be studied by the committee:

    Why take more time to study things that are working well? That's what we have heard this morning. It makes no sense. There will be no consultation. So we have been misled. The minister has already made a decision. The groundwork has been laid by the mandate letter that he received from the Prime Minister. I think the committee has much more important things to do than to serve solely as a pawn in the government's PR campaign to the various interest groups it wants to serve.

    I will provide a copy of the motion to the clerk. We can probably talk about it, if the members of the committee unanimously agree to do so.

     Mr. Berthold, you have a minute and a half left. Are you asking that the committee vote on that motion now?

    Yes, absolutely

    Mr. Clerk, do we need unanimous consent in order to deal with the motion now?

    As it hasn't met the notice requirements.

    Exactly.

    Is it the will of the committee to deal with Mr. Berthold's motion now?

    Could we have a recorded vote?

    Of course.

    All those in favour of dealing Mr. Berthold's motion now please raise your hands.

    Just for clarity, Mr. Clerk, are we voting on whether we deal with the motion now?

     Yes, because it needs unanimous consent.

    I count nine yeas.

    Would you please read the motion out before we vote on it again?

    

    Madam Chair, I think I can speak to the motion right now.

    Yes, you may if you choose to, very shortly if you would like us to vote on it. We have five minutes left to our meeting.

    Next will be Mr. Badawey.

    Thank you, Madam Chair.

    My thanks to the members of the committee for agreeing to talk about this issue publicly. I think it's important.

    Let me reiterate that we have seen that this study was not needed for the committee's work. In fact, we had the proof that, in his letter, the minister misled us when he said that the department would hold public consultations on the issue.

    We have seen that the current legislation makes it possible to address the complaints filed by the municipalities, stakeholders and various indigenous communities whether or not a waterway is included on the list.

    In addition, it would have been useful if the minister had read the 2012 testimony of Nathan Gorall, the director general of the Navigable Waters Protection Task Force. He appeared before the Standing Senate Committee on Energy, the Environment and Natural Resources. Mr. Gorall was very clear. In 2012, Transport Canada—

    May I interrupt? Just for clarification, is it your intent to talk out the clock, or are you prepared to allow for Mr. Badawey's comments and to vote on your motion? We only have two minutes left.

    Okay, just let me read that quote and after—

    I have two minutes left. If it's ten forty-five the game is over.

    Mr. Gorall said that Transport Canada was still grappling with a backlog of requests. The situation improved, as evidenced by Ms. Higgens' testimony.

    In his testimony, Mr. Gorall reminded us:

    That is why I think the legislation meets the needs, and I urge my colleagues to vote in favour of ceasing this study and that we finally move to the items we had all agreed on for our business this fall.

    Thank you very much, Mr. Berthold.

    Mr. Badawey, be very short.

    Thank you, Madam Chair, essentially, I won't be supporting the motion. The motion makes assumptions that aren't true.

     Again, I want to reiterate what was mentioned earlier by both the minister's staff as well as myself with respect to the focus of the direction we're taking; that's safety. This is a process we're embarking on, which is different from the process that was embarked on before by the previous government. We are simply opening the door a bit wider so that folks can come out and participate in the process, including those who didn't the last time around, such as indigenous peoples.

    Thank you, Madam Chair.

    Thank you very much.

    We have a motion on the floor, and I'm going to ask that all those in favour of—

    I would like a recorded vote, Madam Chair.

    Yes, of course.

    (Motion negatived: 6 nays; 3 yeas)

    The meeting is adjourned.