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, 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 , you have repeatedly made those conclusions known.
Allow me to refer to the mandate letter you, as the , 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 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....
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.
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, Madam Chair.
I want to thank my colleague for sharing his time with me. I understand that about four minutes are left.
, 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.
, 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.
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 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?
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.
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?
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?
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.
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.
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:
That the Committee, after noting that the Minister of Transport has reached his own conclusions on the necessary amendments to the Navigation Protection Act, immediately cease its study of the Navigation Protection Act.
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.
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—