TRAN Committee Meeting

    Good morning, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting 12. Pursuant to the order of reference of Tuesday, December 4, 2007, we will consider Bill C-23, An Act to amend the Canada Marine Act, the Canada Transportation Act, the Pilotage Act and other Acts in consequence.

    Joining us today we have Emile Di Sanza, Janet Kavanagh, Guylaine Roy, and Ekaterina Ohandjanian.

    We are doing the clause-by-clause consideration of Bill C-23 today. If I may, I'm just going to ask for a little bit of direction from the committee. Everyone has the order that the clauses and the amendments are in. If the committee wants to deal with the grouping of clauses up to each amendment, we can actually get to the meat of the amendments and discuss them. If that's agreeable, I will proceed that way.

    With that agreement, I will ask, shall clauses 1 to 4 inclusive carry?

    (Clauses 1 to 4 inclusive agreed to)

    (On clause 5)

    Next we have clause 5, NDP-1 on page 1.

    Mr. Masse, you may proceed.

    Thank you, Mr. Chair.

    This amendment here is intended to provide some balance, and also, hopefully, provide better relations between the port authorities in some areas where there are some difficulties. We all heard from testimony that even if you're appointed to the port authority through a municipality--it doesn't matter where, with the federal government, etc.--your loyalty is still, at the end of the day, to the port authority. What I'm hoping through this amendment is that you're going to see a greater weight for people in that area who at least understand the issues and can be sensitive to them. But we heard testimony that--for anybody who is appointed there--the number one priority is to administrate the port.

    I believe that by diffusing some of those political appointments, and by being more inclusive to people from that region, you provide an opportunity to ensure that some problems that are emerging between municipalities and ports are unplugged, so to speak, before they actually happen.

    So the intent of the motion is to provide that greater balance and hopefully prevent problems from happening, and also ensure that there is more of a regional approach to the actual port running the operations. There is a responsibility for many of these ports to serve a national purpose--and that's Halifax, Montreal, and Vancouver--but I think there are enough people from that area with enough knowledge and understanding who can bring some good skills to the board and be seen as somebody within the community who will eventually make the situations better when they do make appointments.

    So that's the reason for the amendment, and I hope members will consider this.

    Thank you.

    I am advised and am prepared to suggest to the member that the submission of the amendment is inadmissible because it is beyond the scope of the bill.

    Shall clauses 5 to 13 carry?

    (Clauses 5 to 13 inclusive agreed to)

    (On clause 14)

    We're moving on to clause 14. We're going to G-1 on page 2.

    Go ahead, Mr. Jean.

    Mr. Chair, this particular amendment actually clarifies a typographical correction that would replace the word “and” with “or”, which would expressly state and make it clear that each of the subparagraphs are stand-alone and independent exceptions to the prohibition. It's to clean up the Vancouver Port Authority. I was speaking to Mr. Bell earlier today about it.

    (Amendment agreed to)

    (Clause 14 agreed to as amended)

    (Clauses 15 and 16 agreed to)

    (On clause 17)

    That brings us to clause 17, NDP-2, on page 4.

    Thank you, Mr. Chair.

    This amendment too is to sever issues, once again related to the port, that may not be necessary for their core operations. The Marine Act calls for the principle of engaging in the goods distribution through marine activity.

    We've seen—say, for example, in Toronto, with the Porter airline—that it can create difficulties. As well, you could have other developments across the country that create problems. What we're saying, through this amendment, is that these wouldn't be part of the port authority; they would be separate to their entity alone. It wouldn't eliminate them entirely, but at the same time it wouldn't make them part of the port authority. The port authority core business, once again, would be the marine transport of goods.

    Are there comments?

    Mr. Jean.

    I'm not sure whether you've had an opportunity to look at paragraphs 28(2)(a) and (b) of the act. From my perspective, reading in light of those would seem to indicate and cause some confusion, because there it is already stated exactly what kinds of businesses they can undertake. I would suggest this is redundant, except, of course, if you want to amend that section.

    This could seriously compromise the existing activities in support of port operations, including activities of mutual benefit between, for instance, ports and municipalities. For instance, the Quebec Port Authority actually did some work in lead-up to the 400th anniversary—the Quebec birthday, in essence—and other things. My understanding is that the Saint John Port Authority has worked with the municipality sometimes. This would eliminate any opportunity for that.

    Monsieur Laframboise.

    That's the question I wanted to ask Mr. Di Sanza.

    Nothing in the Act, as it reads now, would forbid port authorities to create equipments that could be used by communities for any other purpose than passenger transportation. Am I right?

    Do you have some specific examples? For instance, the Vancouver-Fraser Port Authority said that they set up a system to facilitate transportation outside their facilities. We have heard of other examples too. As a matter of fact the Québec Port Authority also put into place equipments that benefit the entire community.

    Okay. That is why we shall not support it. This is already covered elsewhere, and some communities already asked for such arrangements.

    Indeed the Act contains some provisions to this effect.

    Mr. Masse.

    This doesn't stop there being partnerships. It says the port authority itself cannot be the one that actually engages in those activities, but that doesn't prevent others, through an agreement, from engaging in activities with the port authority. This is a prohibitive clause, so that the port authority itself is not the proprietor of that operation.

    Mr. Volpe.

    Mr. Chairman, I'm not sure this committee should be engaged in discussions that prescribe what a particular port authority might do by legislating what all port authorities have to do. I think we're getting into a redefinition of letters patent.

     I notice that Mr. Masse has indicated that nothing prevents any of these authorities from engaging in a relationship with other jurisdictions that may be of mutual benefit. I don't think you can legislate that somebody engage in activity that's of mutual or reciprocal benefit, because that definition changes as you go forward.

    The legislation, as it currently exists, encompasses that possibility for the authorities—in fact encourages it, as we heard some of the other port authorities suggest. A classic example of it, of course, comes from the Lower Mainland of Vancouver, where we have three port authorities, which might have been considered to be in competition with each other at one point, who have come forward saying, we want to amalgamate and want to make sure we are compliant with the legislation, because we see things that are of reciprocal benefit to us and see that there is reciprocal benefit to the municipality or municipalities adjacent to our own authorities.

    They didn't come and say, pease put further restrictions on us. They didn't say, please come and redefine our letters patent. They simply said, we want to be able to be compliant; let us do our business.

    I think that's what the legislation was intending to do. That's why we support it. I find that something like this goes beyond the intent of the legislation. I don't know whether you've ruled this in order, but I would find it difficult to believe that it is in order with the legislation; however, your decision is yours.

    I don't think we're going to support this.

     I did rule it admissible; that's why we are having the debate.

    Is there no further comment?

    (Amendment negatived)

    (Clauses 17 to 21 inclusive agreed to)

    We have a proposed new clause, NDP-3, page 5.

    Mr. Masse.

    Thank you, Mr. Chair.

    The reason we've submitted this amendment is for greater accountability by our ports. With this legislation there would be significant borrowing available to both the small and large ports, be it short- or long-term borrowing--billions of dollars, in fact. We've heard testimony that there are billions of dollars of required updating of our ports.

     For port authorities there would also be access to at least one piece of government funding, through the border infrastructure fund of the Department of Transport.

    We're requesting that this provide the opportunity for the Auditor General of Canada to audit a port authority. That doesn't mean it will automatically happen, but it will provide the opportunity for the Auditor General to examine those business practices, especially given that we will see greater applications from ports for government funding. I suspect we haven't seen all the programs fleshed out by the government. Those programs will of course be eligible for the Auditor General to look at. I think it is a better strategy to have the entire port looked at and audited by the Auditor General so they're not doing piecemeal auditing.

    Hence this is submitted. I believe there would be greater accountability and greater confidence, especially when we look at security issues around the ports and the fact that they are going to have partnerships with third party operations and so forth. It will be done through the Auditor General, very sensitively, and through the Government of Canada. That's why this amendment has been submitted.

    Thank you, Mr. Masse.

    Again, I would have to rule that inadmissible. The amendment seeks to amend section 43 of the Canada Marine Act. Since it is not being amended by Bill C-23, it is therefore inadmissible.

    This moves us to clause 22.

    (On clause 22)

    We have amendment NDP-4, page 6.

    Mr. Masse.

    Thank you, Mr. Chair.

    Once again, this amendment is to build better relationships with the ports and municipalities. It's intended to ensure that when there are land use changes, especially given that ports can now enter into 99-year leases for their property for anything beyond condominium development.... This is going to change the land use practices of the ports as well as adjacent private sector owners of lands next to the ports, as well as municipal land, potentially.

    The goal is a cooperative approach, so when land use planning comes into effect there will be support and, hopefully, compromise and the addressing of issues, be they environmental or planning, for the uses of the land. It could be a whole host of things, as we've seen. This legislation is opening up a wide chasm of different types of usage that are new to these areas.

    The intent of this amendment is to make sure there are going to be cooperative developments with the port authority and also with the municipalities and the provinces.

    Thank you, Mr. Masse.

    Once again, I'll have to rule it inadmissible, as it against the principle of the bill.

    Monsieur Laframboise.

    I have nothing against it being ruled in order but it is not for the reason you just gave that we would have ruled it inadmissible.

    Mr. Laframboise, if I may, I'm sorry, we cannot have debate if I've ruled it inadmissible.

    Do you have a legal opinion, Mr. Chairman? You are not the Almighty, you know. Do you have an opinion from the legal counsel of the House? Could it be tabled?

    Yes, I do. I can either share it with you or read it to you in English. I can share the French. Would you prefer I give you the document or just read it?

    I'll read it to you. It basically says, “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.” It's my opinion that the introduction of this framework for consent is contrary to the principle of Bill C-23 and therefore inadmissible.

    Are you going to send us the counsel's opinion in both official languages?

    Oui.

    Mr. Masse.

    I have a point for clarification. It is the call of the chair?

    Absolutely, and you can challenge that call if you choose to.

    I think we know the result of that, but I want it to be clear for the record that it is the call of the chair, of discretion.

    Absolutely.

    Thank you.

    (Clauses 22 to 26 inclusive agreed to)

    We go to clause 26.1, a new clause, NDP-5, page 7.

    Mr. Masse.

    Thank you, again, Mr. Chair.

    Once again, this is the lesser of the previous amendment that was ruled out, but this is calling for consultation with the municipalities by the port authority when they're looking at letters of patent for their development.

    I'm not going to repeat the previous comments I've had. But once again, the intent here is to provide some type of systemic address to some potential conflict that can come out of this bill with planning development, for environmental as well as for the protection of other property owners, so that's why this amendment is asked for.

    Thank you, Mr. Masse.

    Once again I will have to rule that this amendment is inadmissible since section 23 of the Canada Marine Act is not being amended by Bill C-23. It is inadmissible to propose such an amendment.

    (Clauses 27 to 32 inclusive agreed to)

    (On clause 33)

    We have NDP-6 on page eight.

    Mr. Masse.

    Thank you, Mr. Chair.

    We've suggested to change two clauses here related to the issues of national security and the port authority itself.

    The first is to request that the Minister of Public Safety have the opportunity to have a security audit at the ports. To support this, we've looked at different ports in the United States and their suggestions. As well, there are the issues over development, again, with third party arrangements, and hence the second proposed subsection is to call for a relationship with the Investment Canada Act.

     The Government of Canada has already issued that they are going to clarify rules on foreign investment in this particular act. What we're suggesting with these two amendments is, first, that once again the Minister of Public Safety has the opportunity to examine security. Since we have had the ports basically dismantle their policing operations, and there's no standardization of that, you have several different ports that have different agreements with local security branches as well as a different hiring of municipal police officers and so forth. This would provide the opportunity for the Minister of Public Safety to at least have an opportunity to analyse the different ports and determine whether or not they are sufficient as security measures.

    We know from evidence that's presented through other committees as well as in the general public and also from CBSA that there's actually a lesser degree of scrutiny of some of the actual containers and cargo coming into our ports. That has repercussions when it comes to everything from public safety, be it merchandise, etc.

     Just last night there was another meeting of the all-party intellectual property committee, where we were discussing this very issue with the Chamber of Commerce as well as with the Manufacturers & Exporters. There was concern over the fact that different types of merchandise are getting into Canadian ports without the proper scrutiny. CBSA admittedly does not have the resources right now to be able to deal with those issues.

    Having the minister able to get in and provide that audit is important, because what it does is take away some of the concerns and provide a degree of analysis that is necessary, especially given the scrutiny we're getting with the United States. We do know we're going to see a continued thickening of the border if we do not have some of our port operations adjusted appropriately to meet some of the needs of security that are coming in. Once again, we believe the Minister of Public Safety has the proper tools to be able to provide that oversight, to provide that audit, and then to provide suggestions as to how to fix that.

    Secondly, to conclude with the Investment Canada Act, the reason that clause is in there—and there's nothing stopping us from adding this in the bill today, even though the government is examining it now—is that we've seen non-democratic governments actually purchase Canadian companies. In the United States recently we've seen the situation with their ports and purchasing, with the issue over Dubai, and we've seen them wrestle with this issue.

     Hence, having this oversight would give some comfort, especially when we have issues surrounding national security. It's an important opportunity that gives the government the tools to actually have part of that oversight administered through the House of Commons.

    Thank you, Mr. Masse.

    As there is a lot of discussion, I am going to allow debate on this and a vote.

    Mr. Jean.

    That was my question. I'm surprised at the admissibility.

    No disrespect, but the Canada Marine Act deals with economic policy and this is about security, which is already covered under the Marine Transportation Security Regulations. The enabling statute, of course, is the Marine Transportation Security Act. It would be duplicitous, at the very least.

     I will give you some examples, Mr. Masse. Section 351 of the regulations--and thanks to the department for this--requires audits to be conducted annually at these facilities, including a security plan that contains a security procedure for each marine security level, continuous monitoring of a marine facility, and continuous monitoring of approaches, including land and water, as well as specific restricted areas in a marine facility and vessels that interface with the marine facility.

     Other requirements under the regulations are that the minister conduct security assessments that take into account threats, types of security incidents and other elements, particularly in relation to foreign ownership. Any time a change in operator occurs, there is already a requirement to obtain a new statement of compliance from Transport Canada that looks at the review of a security assessment and security plan.

    This is already actually in a statute. I don't know why it wouldn't be ruled inadmissible, to be honest, Mr. Chair, because quite frankly, it's totally inappropriate for this.

    Mr. Masse.

    Thank you, Mr. Chairman.

     It would maybe be helpful for the committee members.... I appreciate the parliamentary secretary's discussion, but I believe there's a role in this bill for this provision and I think it enhances the opportunity for national security, especially when we have the increased amount of capacity that will happen at our ports, be it through their operations or through their investments, be it their private investments that they're having or the foreign investments or be it the public investment as we look at more money.

    I can maybe be helpful here. For example, the task force of the Port Authority of New York and New Jersey examined the situation and has made recommendations similar to the United States', and they actually do have some policies in place for national security. I know, as of June 2008, the government is looking at coming at the issue of foreign investment, and once again I would hope that for the sake of oversight this committee would adopt the recommendations.

    Once again, the United States and different ports are already looking at it. They're actually making recommendations to have that oversight from their perspective in their ports, calling on greater scrutiny. So it's coming from both directions in the United States, and this amendment would help us here.

    Thank you.

    Mr. Volpe.

    I'd like some clarification from the officials. Again, with all due deference to those who are very concerned about security in the United States—I am no less—I'm not surprised that there would be great focus on this. There's been a huge industry built around security and paranoia, most of it directed to us.

    I would like whichever official, perhaps Mr. Di Sanza, to explain one thing for me, if you will. The proposed amendment to section 61--that's proposed subsection 61(1)--says that “a port authority shall take the appropriate measures” but ends off with “including having an annual security audit performed by the Minister of Public Safety.” Is this obligation on a port authority to constrain another minister from another department to fulfill his or her duties consistent with this legislation?

    On this particular point, I would ask our legal counsel to respond.

    If we follow the lead in the national security policy and we recognize that the Prime Minister was clear to distinguish between the responsibilities of the Minister of Public Safety and those of the Minister of Transport, and in that regard focused the attention on marine transportation security in the Marine Transportation Security Act and kept matters of national security separate, then it would not be consistent to bundle these together in this instance. It would not be consistent with the government's national security policy.

    Okay, I'm going to suggest that I'm not a lawyer, so please correct my understanding of what I heard you say, which is that the Minister of Transport's dependants—in this case it would be those who report to him—aren't in a position where legally they can supervise the discharge of responsibilities of the minister of another department when they want to do things in their own department.

    In a way, yes. And besides, the Marine Transportation Security Act and the regulations already address this. This matter is already addressed through the Marine Transportation Security Act. There are annual audits pursuant to regulations.

    So I'm not sure how we would duplicate this and the implications it has, both policy and legal. If both ministers are responsible, how do you separate the responsibility and accountability?

    I appreciate that and I want to make sure we always do the right thing. I'm wondering whether the message I get when I read this is the correct one.

    The message I get is that a port authority, for example the new Port of Vancouver, would have the responsibility to ensure that the minister for national security conduct an annual security check on its port before it could do anything else. And if the minister for national security, through his officials, were delinquent in that exercise, what penalties would there be for the port authority for not having ensured that the minister for national security refrain from his delinquency?

     I will ask Laureen Kinney, director general of marine security at Transport Canada, to respond.

    Thank you. I'll address part of the question, and then perhaps the legal representative may have something further to add.

    There might be some distinction of interest in the terminology. The Minister of Transport, as well as requiring that the port authorities carry out annual audits triggered by a number of different things or on an annual basis, has the authority to carry out security assessments. So the minister, through the delegated authorities and inspectors who are in my group, carries out those assessments to look at the overall quality.

    When a security audit is carried out by the port authority, the results of that audit may amend their security certificate. It is reviewed by the Minister of Transport's delegated employees, and at that point there may be a change to the security certificate.

    To conclude on that area, as mentioned earlier by the parliamentary secretary, the triggering of the audit and the carrying out of annual audits by the port authority are monitored and supervised, and the results are assessed by the Minister of Transport. One of the triggering items for an audit is a change of ownership, which requires a full security assessment by the Minister of Transport.

    So those functions are carried out. I believe that your point about obligating the port to ensure that the Minister of Public Safety carries out a function is challenging.

    Thank you.

    Before I recognize Mr. Laframboise, I want the record to show that Ms. Valerie Devlin is at the table as well as Ms. Kinney, who just answered that last question.

    Monsieur Laframboise.

    Thank you, Mr. Chair.

    If I am not mistaken, the purpose of my colleague's amendment is to have this audit conducted by the department of National Safety, rather than by TC as is presently the case. Am I right?

    Not necessarily, because this provision does not go beyond the scope or the strength of the Marine Transportation Security Act. It does not alter the scope of the Act but rather adds to it.

    So, it would be a different audit.

    Yes, and we wonder how it would work because the Marine Transportation Security Act already provides for the same thing.

    Except that it would not be inconsistent with the Act. It would simply add another layer of audit. Is that it?

    It is not that clear. My colleague might answer you.

    Port authorities must apply policies and here they are required to ask the Health minister to do what is described. Frankly, I think that it might be difficult to do this within the confines of the Act and, furthermore, authorities could have difficulties in discharging two responsibilities.

    Mr. Bell.

    Thank you.

    It's just a minor thing. I notice in the English version of the first proposed amendment it says, “including having an annual security audit performed the Minister of Public Safety”. I presume the word “by” is supposed to be in there. It is correct in the French version.

    Thank you for pointing that out. I understand that “by” should be in there, just for the correct terminology.

    Mr. Masse.

    Thank you.

    Quite simply, this provides a third party--the Minister of Public Safety--to be a participant to oversee and provide some type of analysis and review of the actual port authority's security. That's the clear intent of it.

    Mr. Jean.

    To put it simply, as Mr. Masse would say, what you're asking for is really a duplication of what's already there.

    Now let's go on to the next stage and talk about the conflict of laws, interpretation, and litigation, because that's what it's going to create. You have two parallel procedures that are asking almost identical things, and you want to talk about litigation? Who's going to decide this? It will have to be interpreted by courts—

    An hon. member: Especially on security.

    Mr. Brian Jean: Yes. If you want to deal with security, let's deal with the Marine Transportation Security Act and deal with security. If you want to deal with economic policy, it's inappropriate in this particular case, which I hope is why the chair almost ruled this out of order.

    I would like to call the question.

    Mr. Carrier.

    Thank you, Mr. Chair.

    Much was said lot about the first part of the amendment dealing with security but has anyone checked whether or not the second part, the one regarding foreign investments, is in conflict with other existing legislations.

    If I read this well, dealing with this issue will be a rather complex and difficult proposition. It has to do with many ports and assessments.

    My question relates to the second part of the amendment, which reads as follows:

    You certainly analyzed this amendment, which seems interesting at first blush. I would like to know whether these provisions are found in an other existing act because that would make the implementation of this sub-section more difficult not unlike the part on security that we just covered.

    To tell you frankly, we have not studied the potential impact of other acts but the fact of the matter is that this issue is governed by the Investment Canada Act. We had this kind of concerns with other attempts to use C-23 or the Canada Marine Act to cover issues already dealt with in the Investment Canada Act. I'm talking here about a broader issue, the threshold reporting requirements found in the Act, which may not necessarily apply to the ports.

    We cannot fully assess the impact of this provision nor what it would mean for the Public Safety minister. Legally speaking it is not appropriate to include this provision in a piece of legislation that deals with economic policies.

    Okay, I understand.

    If there are no further comments, shall the amendment carry?

    (Amendment negatived)

    (Clause 33 to 66 inclusive agreed to)

    Shall the title carry?

    Some hon. members: Agreed.

    The Chair: Shall the bill as amended carry?

    Some hon. members: Agreed.

    The Chair: Shall I report the bill as amended to the House?

    Some hon. members: Agreed.

    The Chair: Shall the committee order a reprint of the bill?

    Some hon. members: Agreed.

    The Chair: Thank you, one and all.

    Good work, to the committee and to our staff here.

    Before I adjourn the meeting, we have just a brief discussion as to what will happen on Valentine's Day, and Bibiane has offered to take...oh no, she hasn't.

    We do have the department coming forward on Tuesday of next week to discuss the navigable waters issue. We do not have any witnesses scheduled for Thursday, and I am looking to the committee for some direction on that, or perhaps we would want to have a committee of the whole just to discuss the future after the break.

    Mr. Volpe.

     Mr. Chairman, I think that when we last spoke about this we talked about the possibility of the minister considering sending the bill to the committee before second reading. So perhaps after the discussion with the officials on Tuesday, we might have a discussion in our committee about the advisability of how to best proceed.

    Would the committee be in agreement? I suspect it won't be a full two-hour committee.

    Why don't we just have a steering committee meeting?

    We could do that. I'm trying to make work for you, Mr. Zed. Just kidding.

    Mr. Jean.

    Indeed, I'd prefer the work as well, Mr. Chair.

    But I'm wondering whether or not anybody has talked to their whips about the opportunity of travelling on navigable waterways. I think this is an option that we should seriously consider. As you know, I haven't proposed it before on any other piece of legislation, in two years on this committee. But in this particular case, I think Canadians would have a say on this. I know that the Conservative rural caucus certainly has a say on it, as have many people over the last two years. I ask people to talk to them about that possibility, so we can move forward as soon as possible with that at the next meeting.

    Mr. Masse.

    Thank you, Mr. Chair.

    I'd like to have a subcommittee steering meeting on our future business. I think that would be an appropriate way to hash out what to do next, because I have some suggestions too.

    Well, then I would ask that the subcommittee meet on the February 14 committee meeting and be prepared to discuss where we're going forward with the navigable waters review.

    Mr. Bell.

    I would just like to ask when we're going to be bringing back rail safety.

    It is my understanding that we have agreed that we would wait for the final report to come in. And I'm not too sure when it's coming, but I think it's....

    Any day.

    Can we find out more particulars?

    I can try. We are interested in that too. Obviously we need to get that report first, though. I'll walk past the minister's department.

    The meeting is adjourned. We'll see you on Tuesday.