I want to thank you for the opportunity to present to the body today and give some of our perspectives on the Navigable Waters Protection Act. Just for a little bit of background, AAMDC, the Alberta Association of Municipal Districts and Counties, represents all the rural municipalities in Alberta. We cover 85% of the land base in this province. We cover the province from north to south, east to west, touching all other borders. We manage almost 4,400 bridges, which account for more than 60% of the total bridge inventory in the province.
For years rural municipalities have been working with the Navigable Waters Protection Act, so AAMDC has a strong position to speak to the impacts of the changes made to it from the 2012 rural municipal perspective. The former NWPA posed considerable challenges for municipalities, including that many water bodies that had not recently supported any navigation still required costly impact assessments. Many water bodies in Alberta are either used exclusively for irrigation or are not high enough to support navigation through seasonal runoffs. They would never actually be navigable, and yet they're still subject to the costs of an impact assessment.
Municipalities are often required to build much costlier bridges than they had originally planned in order to support navigation even though the water body is not actively navigated. In many cases a proposed culvert would have been upgraded to a much more expensive bridge.
Municipalities are often faced with excessive delays in having their applications reviewed and approved by Transport Canada because of the broad scope of the previous legislation.
The definition of navigability has often varied from project to project, which would make municipal costs in complying with the previous legislation even less practical.
Repairs and modifications to older structures would often trigger the need for an impact assessment, even if the water body had not been navigated in recent history.
Rural municipal concerns with the previous act were not about their being closed to navigation or about federal oversight, but rather the unreasonable scope that the previous legislation placed on water bodies that obviously did not support navigation. The previous legislation did not utilize local knowledge on how water bodies were being used and therefore increased the cost to municipalities and to the Government of Canada.
The new legislation balances federal oversight with municipal autonomy. The new legislation allows the minister to add more water bodies to the schedule as they see fit and allows owners of works that have work [Technical difficulty—Editor] subject to the NPA, even if it's not on a scheduled water body, by opting into the process.
Clearly many different organizations manage works that cross water bodies. The municipalities are similar to the federal government in that they operate in the best interests of their constituents. If a non-scheduled water body is used for navigation, it is highly unlikely that the municipality will ignore that function when building a bridge or a culvert. Navigation is important to local economies and the quality of life, and the current NPA empowers municipalities to make those decisions locally.
With this background in mind, the AAMDC has a few recommendations for the committee to consider in reviewing the NPA.
First, the use of a schedule is a good idea and should be maintained. Including every water body in Canada is simply impractical. It showed in the extra work and cost that it caused municipalities and the capacity challenge it caused to Transport Canada.
Second, there may be value in expanding the schedule to include more water bodies, based on conversations with first nations, aboriginal groups, and other stakeholders who may be involved. The development of a formal process to propose and evaluate additions may be an effective compromise.
It is important that municipalities be treated as distinct from other owners and managers of works that cross water bodies. Municipalities make decisions in the best interests of their constituents and typically have a strong knowledge of whether a body is actually being used for navigation.
If the scope of the NPA is broadened to include more waterways, it must be matched by an increase in federal capacity to process the applications in a timely manner. It is important to remember that the NPA is ultimately about the safe navigation of Canada's water bodies. Other acts address environmental and land use concerns associated with works over water bodies, and expanding the NPA to address this will increase confusion among those who interact with the legislation.
Thank you for your time. I'll entertain questions at your call.
Good morning, ladies and gentlemen. Thank you for the opportunity to speak to you about the Navigation Protection Act and its effect on municipalities in Saskatchewan.
My name is Ray Orb and I'm president of the Saskatchewan Association of Rural Municipalities, or SARM. We represent all 296 rural municipalities in the province.
I'm also here today to speak on behalf of the Federation of Canadian Municipalities, or FCM, in particular the rural forum of which I'm currently the chairperson.
SARM's concerns with the Navigation Protection Act are in regard to the added costs to municipal infrastructure projects. SARM's environmental concerns are already looked after by the environment departments, both federally and provincially.
Water quality and other important environmental considerations fall under the responsibility of both the federal and provincial environment departments. SARM is confident that they have the proper legislation and regulations in place to ensure that there is a strong balance between the environment and infrastructure projects.
Before amendments were made to the Navigation Protection Act, RMs, rural municipalities, faced increased costs, project delays, and generally more red tape when planning, designing, and constructing infrastructure projects. This was a result of the requirements to accommodate non-existent public water travel.
These requirements made sense in 1882 when the act was created. However, our modes of transportation have evolved drastically and the need for ensuring passage of canoes has decreased significantly.
This used to mean that projects involving culverts were required to be large enough to allow passage of canoes or other similar vessels. Municipalities were told by Transport Canada to redesign and alter their projects, which resulted in delays and increased costs. Unfortunately, these alterations were required even though there was no public travel on these waterways.
Take the example from the RM of Insinger, in the east central part of Saskatchewan. In 2005 they faced a series of delays in attempting to replace a bridge on the Whitesand River. A representative from Transport Canada deemed that the waterway was navigable, despite the many beaver dams, rocks, brush, and no one living in the area could recall a canoe attempting to travel this waterway.
The original project cost was $125,000, and that proposal from Transport Canada would have cost $400,000, an increase of $275,000 from the original design. The RM and Transport Canada discussed this issue back and forth until SARM became involved in late 2005. Discussions continued until eventually the original project design was allowed to continue as planned. This delayed the project for well over a year.
A second example comes from the RM of Meadow Lake, in the northwest area of the province. In 2010 the RM applied for approval to construct a new road and bridge to cross Alcott Creek. The application was submitted in April 2010, and approval wasn't received until November 2011. In Saskatchewan our construction season ends in November, resulting in the RM of Meadow Lake having to wait two full construction seasons to start the project.
Upon receiving approval, the RM was required to raise the bridge above the existing road-top elevation to accommodate canoe traffic. This resulted in a hump in the road that is now experienced by several vehicles per day and will only accommodate a recreational canoe once every five years.
The amendments that came into force in 2014 addressed these concerns and allowed for municipalities to carry out their infrastructure projects without these unnecessary delays.
SARM and its membership are appreciative of these changes and are concerned that a review of these changes may result in a reversal. This would bring back the same old challenges that I have highlighted to you this morning.
We suggest that any amendments made as a result of this review take into consideration the positive effect that the amendments from 2014 have had on municipalities. SARM recommends that the federal government remain committed to these amendments which reduced the financial burden on municipalities.
On the FCM rural forum, I would also like to add the following points to consider.
The FCM rural forum is mandated by FCM to deal with real specific issues, and it's composed of member municipalities all across rural Canada.
The FCM welcomed changes to the Navigation Protection Act brought about in 2012, which eliminated unnecessary requirements to accommodate non-existent public water travel. The amendments allowed the existing legislation to be brought up to date and into line with the country's current transportation routes.
By reducing project delays and higher building costs to municipalities, while at the same time providing protection to these important waterways, the changes to the Navigation Protection Act directly related to municipal concerns aimed at improving the capacity of local governments to build infrastructure and to deliver essential services. To make environmental planning easier, the federal government also recognized the limited capacity of rural municipalities and ensured that these communities have access to rural-specific resources, including tools, expertise, and financial capacity.
At this moment when the federal government has committed to community building as nation building, rural municipalities must be full partners in plotting the path forward. It will take continued dialogue to build Canada's future, with durable growth and more livable communities. Through FCM, rural Canada will continue to have a full seat at the table.
Thank you for the opportunity to speak this morning.
Good morning. I'm Scott Pearce. First, I would like to thank the committee for this consultation and their interest in the opinion of the Quebec federation of municipalities.
I have the pleasure of sitting on the FCM board of directors with Mr. Kemmere and Mr. Orb. The three of us make up the chair and two vice-chairs of the FCM rural forum. While Quebec's opinion may differ, for different reasons, I support everything they've said so far today.
As I said, I am here representing the Quebec federation of municipalities, which is 1,200 municipalities in Quebec, with over three million lakes and rivers.
I'll be as brief as I can, given the time allotted to us. I would like to summarize what we've retained from the 2014 amendments: a name change to better reflect the intention of the act; addition to the law of an appendix that lists navigable waters for which necessary regulatory approval is required to build structures that might interfere with navigation significantly; the public right to navigation; and the right to use navigable waters as a road, which continues to be protected in Canada under common law, whether the waterway is or is not included in the annex of the act.
We are here to comment on the four points related to these changes. Our concerns are more environmental. Comments from the FQM will be pretty much just on that. Regarding the effectiveness of the changes globally from a user perspective, with other laws that affect all users, we want to actually talk to the committee about the overall effectiveness of these changes in the context of the management of boating.
The change of name clearly indicates that we want to protect navigation instead of navigable waters. FQM has focused its priorities on the issue of regulations on boating. On September 29, we had a resolution, which we have forwarded to you.
It is so important that priority be given to bodies of water and their environmental protection before protecting pleasure boating. The law on merchant marine and the office of boating safety doesn't protect lakes adequately, because these laws deal with navigation without a clear distinction between pleasure and commercial transport and relegate the water as a secondary consideration. The lakes and rivers of Canada are our natural wealth, and once the watershed is damaged, we have a long way to come back.
Concerning navigable waters, the new annexes remove the largest share of Quebec lakes to keep only three: Lac des Deux Montagnes, Lac Memphrémagog, and Lac Saint-Jean. Besides the Saint Lawrence River, five of our major rivers are also included: Rivière des Mille-Îles, Rivière des Prairies, Richelieu River, Rivière Saint-Maurice, and Saguenay River.
Those bodies of water have one thing in common: they are navigable and they all have serious environmental problems related to pleasure boating. They're not alone. All the navigable lakes not listed on this list have the same problems, often exacerbated due to their less extensive surface areas.
On the public right to navigation, the FQM considers that boating is not a right. The public right to navigation, a principle of common law, comes from an antiquated thought process mainly based on trade. Boating should not be considered a right. It's not economically feasible nor safe, and is less sustainable. It's a privilege that has otherwise endangered and degraded the lakes. The FQM hopes to address this issue further with the as soon as the opportunity arises. It is for us, absolutely fundamental.
The right to use a waterway as a road is unsustainable. Supporting this principle is to ignore that each lake or river has its own morphology and its weaknesses, banks, shallows, swamps, and spawning areas, just to name a few.
Imagining that a lake is a road is unthinkable as to believe we could move either by car, bike, or walk in any area of a Canadian park without restriction, arguing that the place is public. This idea would not occur to anyone, even if their right to travel is essential. So this is not the case of navigation.
There are rules in parks and there must be rules on lakes. It should be added that on the roads there are limits, and national and provincial standards governing the roads and highways. In the case of lakes, not only is the water considered a road, but in addition, there are very few restrictions, obtained in each case through a very long and expensive procedure, which makes it almost impossible for local municipalities to regulate their own bodies of water.
Many of the lakes are suffering severe problems because there are no protections.
The amendments to the act on the protection of navigation overall, interrelated with the Canada Shipping Act and the regulation on restrictions on the use of buildings, are inefficient and have serious implications for users: ecological damage, harm to public health, security problems, economic concerns, engagement of public access, and reduced quality of life.
For the FQM, it is urgent to find solutions to manage boating efficiently, ecologically, and in ways that are economically profitable. This natural resource must become safer and remain accessible to all Canadians before the damage observed today is irreversible.
The municipal sector is very interested in supporting the government in this task. We need to work together to find solutions. We have proposed a working group led by the federal government, including municipalities and watershed management folks, who are the closest stakeholders on the ground, and it would be a first step towards the necessary changes to be considered for the management of recreational boating on inland waters in Canada.
I have now stated what the FQM professionals have put together for me to discuss with you. I'll just go on a more personal level for the next 30 seconds.
I am a fisherman. I am the mayor of my town and the warden of my region and I sit on the FQM and the FCM. We have a serious problem. The way our laws are, people can bring boats of any size onto small lakes across the country. What it's doing is damaging our shorelines in ways we've never seen. I am not a hard-line environmentalist; I am an average Canadian. Frankly, we need the government's help, because the damage that is being done is going to be irreversible.
The FCM as well as the FQM passed a resolution regarding the boating, but I often talk to people in what I think is a simple way to look at it. An average person takes a bath in their bathtub at home, and it's not really a problem, but when you put a 1,000-pound person into a regular bathtub, you have a problem. This is exactly what's happening on our lakes throughout this country at this point. We need the federal government to work with municipalities to protect our water for all Canadians.
I thank you so very much for taking the time to listen to us.
I want to welcome all of our witnesses here today. Even though it's through video and teleconferencing, it's good to hear the testimony you bring.
I also want to acknowledge the background briefing material we received from our analyst the week before we broke to be in our ridings. I think it reminded us that the changes to the Navigable Waters Protection Act actually started long before they were enshrined in legislation; I think she noted it as being back in 2009.
I also recognize that a number of you have appeared before this committee two or three times to share your thoughts, your concerns, and perhaps your recommendations on how this legislation needs to be changed.
I have in my hand an article that was published in The Hill Times on September 14, with the headline “Leave Navigation Protection Act 'as is,' say municipalities”. That article sparked quite a lively debate here in committee and in the media, as both the , and a departmental official indicated that the study would be done and a report would be tabled in early 2017, even before the committee had decided to undertake this study.
We know that undertaking this study is in the minister's mandate letter and that the letter is pretty clear about restoring the protections that were changed in 2014. We know that there is a view to do this in early 2017.
I agree with the headline of that article, which says to leave the Navigation Protection Act as is. I think there was a lot of good work done to get that act to where it is so that it could remove the barriers that many municipalities were facing when dealing with the issues they have to deal with, in rural Canada especially. We know that there is ministerial discretion built into the act whereby waterways can be added or removed, if a municipality applies to have that done.
Because I agree with the headline in this article and believe that we got it right, I am going to offer the rest of my time to my colleagues across the table. Most of them are new to this committee, and it's obvious that they are the driving force behind this study, so I'm going to offer them the rest of my time to ask questions of the municipalities.
Thanks, Ms. Block, I appreciate that.
As Ms. Block noted, everybody on the Liberal side of the table is new. We were consuming negative public feedback when the changes to the act were brought in. I am from British Columbia, where there's a very robust environmental sector. There was doom and gloom being spread everywhere about the implications of this. However, when we really looked at taking on a review of the Navigation Protection Act , it was more to fulfill what we saw was a missed obligation to actually go out and consult.
I understand that there was a sense of urgency on the part of the previous government to get economic activity going and to get construction projects under way and completed. You can't disagree with that, but at the same time, we come in. I think I can speak for the whole group. We are not ideologically bent on rolling something back just because somebody else did it. We think, in fact, that, as you've noted, there have been some benefits to these changes. We want to preserve those while at the same time perhaps taking a little extra time to reflect on others' views of what should happen. With that in mind, I have a number of questions.
First, we'll go to you, Mr. Kemmere. Has there been enough time for municipalities to experience the new regime, the new Navigation Protection Act? Have you had a chance to see the difference in how your projects are conducted under the new act?
Thank you very much, Madam Chair.
I also thank our guests for being here this morning.
You are our eyes and ears on the ground. In the span of a few minutes, we are going to be able to cover more municipalities than anything we would be able to do during the hours devoted to the study.
My first question has two parts and is for all of you. For the first part, I would ask that you provide a yes or no answer. If the answer is yes, an explanation will be required.
When the minister appeared at the very beginning of our study, he said that no less than 40 bills, most of which I suspect were private members’ bills, have been introduced to add a waterway to the list set out in the legislation. Have the members you are representing asked that a body of water be added to that list, yes or no?
If the answer is yes, what was the process to add that body of water, river or lake to the list set out in the legislation?
Perhaps you could answer in the same order in which you made your presentations this morning.
Let’s start with Alberta.
I'd like to answer that.
In Saskatchewan we have the municipal roads for the economy program, and our province allocates funding to the rural municipalities that can apply. The ones that meet the criteria for the program can actually receive funding. We can send to the committee the list of the projects that have gone ahead. I think those projects could have gone ahead before the rules were changed on navigable waters, but as I stated, they would have been delayed, and they would have been very costly. I think a lot of those projects would not have been able to go ahead if the regulations had not been changed.
Right now, the process is working the way we would like it to work. As I mentioned, we still have the checks and balances along the way with Environment, but we can certainly forward that list.
I'd just like to make a comment. Part of the problem is municipalities across the country only receive about eight cents out of every tax dollar. Those are the funds that we operate with. That's not unique to Saskatchewan. I think it's very common across the country. We need funding from Building Canada. Saskatchewan municipalities, the smaller ones, like the rural municipalities, haven't received much funding, in most cases none from Building Canada. We're using our own provincial money. So we're making a pitch, of course, to have the criteria changed so that rural municipalities and smaller communities can qualify for the funding.
We can certainly send you the list of the projects that we're doing now.
Thank you so much for your question, sir.
First of all, there is no conflict in terms of the right of navigation to bring our products to market or to perform infrastructure work needed on the waterways.
Here’s the problem. Based on the way the legislation is worded, there is no limit on the size of vessels on our waterways, which means that the waterways are dying.
There are several ways to look at the problem. A number of experts have conducted studies on the issue. Clearly, we must start with the damage caused by a boat that is too large for a waterway and that may create waves five or six feet high, destroying the shoreline.
There is no limit. Take the example of a person who has a cottage or a house in Quebec City by a lake that is three kilometres long and 7.5 metres deep. Legally, the person has the right to bring a 60-metre-long boat on the lake from Lake Ontario. The municipality cannot do anything to stop them.
This means that there are no constraints on the navigation on our waterways. There are no constraints on the size and weight of the boats or the waves they make. Unfortunately, as they say, it’s the wild west on our lakes and rivers. The sky’s the limit. Without a limit, of course people will take advantage and think bigger and bigger.
Does that answer your question, sir?
Thank you very much, Madam Chair. I am pleased to join your committee.
I support what my colleague, Mr. Berthold, said about the last topic that was discussed. I think Quebec’s ministry of sustainable development, environment and the fight against climate change and the federal Department of Environment and Climate Change could help a great deal in that area.
I would like to turn to the mandate letter to go back to the crux of the matter. Minister Garneau’s mandate letter states:
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...
Personally, I think that, if the idea is to restore that, there’s nothing to discuss as the Liberals simply want to reverse all measures put in place and return to the past. But as I listen to you, I don’t feel that you want to backtrack and undo what has been done in the previous amendments.
The quotation continues as follows: “...and incorporate modern safeguards.” If that's the case, perhaps the minister can tell us what he wants to do. The committee could then do its study, consult experts to confirm it, and say whether it’s good or not.
Gentlemen, I would like to hear what you have to say about that. First, those from Alberta and Saskatchewan, followed by the representative from the Fédération québécoise des municipalités.
Madam Chair and honourable members, it is a pleasure to be here with you today.
The Canadian Construction Association represents the non-residential sector in the construction industry in Canada. We build Canada's infrastructure: shopping malls, industrial facilities, schools, hospitals, and condominium developments. Essentially, we build everything except single-family homes.
We have an integrated membership structure of some 70 local and provincial associations from coast to coast to coast, with a membership of just over 20,000 firms, more than 95% of which are small and medium-sized businesses.
As a whole, the construction industry employs approximately 1.4 million Canadians and accounts for 7% of Canada's overall gross domestic product, so it's fair to say that we're an essential element of the economic viability of Canada.
We very much appreciate the opportunity to be before you and to share some of our views on the Navigation Protection Act.
Let me start by saying that our members were very pleased with the changes made in 2012 in conjunction with amendments made to both the Fisheries Act and the Canadian Environmental Assessment Act. It has been said that the 2012 changes to the Navigable Waters Protection Act reduced environmental protections across the country. We couldn't disagree more.
To begin with, the amended act was no longer a trigger for the environmental assessment under the Canadian Environmental Assessment Act. Any change to that would have to be taken into consideration with the changes that were made to CEAA. To do that unilaterally with respect to this act without taking into consideration the changes that were made to CEAA to ensure that the triggers were reasonable would be a gross oversight.
Protecting the right to navigate waters in Canada has nothing to do with—nor should it have been, as I've just mentioned—a trigger for environmental assessment and the protection of the environment, which is already within the mandate of the federal government.
The federal government already has the Fisheries Act to protect fisheries and fish habitat; the Canadian Environmental Protection Act to protect water rights and land from the dumping of chemicals and other substances; the Species at Risk Act to protect threatened and endangered species; the Migratory Birds Convention Act for the protection of migratory birds; as well as a number of related regulations and policies specific to various industries, such as pulp and paper, mining and petroleum refining, and the protection of wetlands.
Furthermore, it is a little disingenuous on the part of motivated stakeholders to think that only the federal government protects the environment. Provinces, territories, aboriginal governments, and municipalities have a full suite of laws and regulations that also protect the environment.
With all that said, I come back to my basic premise. The Navigation Protection Act is about protecting the common law right to commercial navigation in Canada. It is not about environmental protection. As the minister himself stated in his appearance before you, “The purpose of the act is to balance the right of navigation with a need to construct infrastructure such as bridges and dams.”
Since it is our members who build those infrastructure assets, our work is often regulated under this act. Under the current system, proponents are able to self-assess, and since most of our products are designated works as defined by the minor works order, there is no need for Transport Canada to issue a permit. This clarity, certainty, and predictability is good for our industry.
I'll give you one example under the Fisheries Act. The Fisheries Act will issue guidelines as to how culverts and other structures need to be built over fish habitats. Knowing that in advance allows us to design and propose designs in construction with respect to those structures. It is a clear process. It can become a very timely process, because we can work that into our own designs.
Under the previous act, there was no ability to self-assess, so all decisions to proceed with construction required Transport Canada approval, and the attendant bureaucratic processes and delays, as you have heard from the other witnesses earlier today, happened in almost every case. They were the rule rather than the exception.
Furthermore, many of these assessments were only carried out after an environmental assessment approval had been completed and the project approved for development. If there's one thing we builders can't stand it's inconsistency; it's a green light turning amber going red. We want certainty, we want schedule, we want timeliness. The more the legislation and regulation can give us that, the better for all parties.
In summary, we would recommend, first, to keep Transport Canada's focus under this legislation on bodies of water most utilized for commercial and important recreational navigation.
Second, enhance the self-enhancement process by expanding the list of projects on the minor works order, providing design performance criteria that are clear. Many of these projects are perfunctory and should be able to proceed without any type of permitting circumstances.
Third, do not recommend the Navigation Protection Act be used as a means to trigger the Canadian Environmental Assessment Act because the protection of commercial navigation has nothing to do with protecting the environment, and the amendments to triggering CEAA 2012 using a list-based approach has massively improved the timeliness and certainty of federal environmental assessments. That goes back to my opening point that anything you were to do in that area with respect to this act must be considered in conjunction with the amendments that were made in the Canadian Environmental Assessment Act about the same time.
That concludes my remarks. I would be happy to take questions.
Good morning, and thank you for the opportunity. I wish I were there. I'll be there next week, but couldn't make it today.
I'm going to speak on behalf of the Canadian Energy Pipeline Association. The association represents the 12 major energy pipelines crossing Canada. About 119,000 kilometres move 97% of Canada's oil and natural gas liquids energy.
I want to mention at the beginning that CEPA will be actively participating in all of the federal regulatory reviews under way, including the Fisheries Act, CEAA, and NEB modernization, but today I'll confine my comments to the review at hand, the Navigation Protection Act. First, there are some fundamental principles of good regulation that apply equally to all of those reviews and you will hear us talking about that in the months ahead.
The most effective and efficient regulatory framework for all stakeholders is one that is clear, efficient, and comprehensive. In particular, the process should be science and fact based, be conducted by the best-placed regulator, avoid duplication, outline clear accountabilities, contain transparent rules and processes, allow for meaningful participation of those who have valuable contributions to make, and balance the need for timeliness with other objectives. CEPA supports any efforts the government makes to achieve these outcomes. We are in the process of finalizing our written submission and technical background for this review, which we will be filing by the deadline next week.
My comments today will focus briefly on the purpose of the legislation, the changes made over the past few years that relate to our industry, and how these changes are working today.
Overall, the previous reforms were aimed at modernizing the legislation, reducing duplication and inefficiencies, and clarifying the purpose of the NWPA, Navigable Waters Protection Act, relative to other legislation. With that in mind, the primary intent of the Navigation Protection Act is to ensure that navigation is protected and to balance navigation rights with the need to construct infrastructure.
The NPA is intended to provide oversight of works and undertakings that can interfere with navigation and its priority is to ensure that development can be done safely and with minimal impact on navigation. Other legislation that is also under review by parliamentary committees or expert panels, namely, CEAA 2012, the National Energy Board modernization, the Fisheries Act, consider the impact to habitat and the environment and how pipelines are regulated.
Given the broad mandate of other environmental legislation, we do not believe that environment protection has been watered down or impaired by changes in the NPA. Rather, the pipeline industry project reviews under other legislation, and particularly by the NEB, fully consider the environmental impact of pipelines crossing water bodies.
In addition, the changes implemented in 2012 reduce duplication and allow government, industry, and stakeholders to improve outcomes by focusing assessments on key areas of impact and allocating resources more efficiently. These changes have strengthened, focused, and clarified the purpose of the NPA and other environmental legislation and set the scene for enhanced environmental outcomes going forward.
We are hopeful that this review of the NPA will be mindful of not duplicating the regulations and protections available under other legislation. We are also hopeful that this review will look at the intent and purpose of the changes under the NPA, with a view to which changes are working and which require modification.
Before talking about these changes, I think it would be helpful to understand how pipelines cross watercourses. During construction, there are some, albeit often temporary, disturbances to the water body from both an environmental and navigation perspective. Sometimes it may be necessary to install a temporary bridge, culvert, ice, snow or log fill in the water to allow construction vehicles a safe place to cross. These are fully removed after construction is complete.
Also, we would point out that CEPA members employ world-class watercourse crossing methodology that combines safety, engineering, and environmental expertise. We use the latest available technologies to minimize environmental impacts and, where necessary, employ mitigation measures that are grounded in science to address any remaining concern.
Importantly, for our purpose here, once the crossing is completed, things go back to normal in the watercourse, and there is generally no impact on navigation.
There are three key changes in the legislation that impact the pipeline industry.
The first is delegating authority to the NEB to assess impacts on navigation for federally regulated pipelines. These changes require the NEB to take into account effects on navigation and navigation safety before recommendations or decisions are made for new pipelines. Previously, this was the responsibility of Transport Canada post-NEB approval.
Second, narrowing the scope of the act from all waterways in Canada to a schedule covering 162 rivers, lakes, and oceans is important.
The third is the minor works order of 2009. Provincially regulated pipelines that are not regulated by the NEB are still subject to Transport Canada authorization if they cross a scheduled waterway. However, some of these crossings meet the minor works order criteria for pipelines, so they don’t need a specific authorization.
We believe that these changes have had a positive impact, without watering down navigation protection or environmental protection.
Previously, there was duplication of authority, with the NEB having authority to regulate pipelines under the NEB Act, and the Minister of Transport having duplicate authority under the NWPA for water crossings. The 2012 changes consolidated that authority, with the NEB as a one window or best-placed regulator. CEPA believes this is a positive step that will create not only a more efficient permitting process, but also a better outcome by reinforcing accountability with a single regulator. It also builds on the industry's record of safety and performance in construction and operation of watercourse crossings. An integrated approach, taking into account the full range of safety and environmental concerns of a pipeline watercourse crossing, allows the industry and the regulator to work together more effectively to achieve the best results.
The NEB takes navigation and navigation safety into account with the same rigour as previously carried out by Transport Canada. The NEB conducts an independent, fair, and publicly accessible regulatory review process. It employs experts on staff who are familiar with pipeline construction and operation. They have the expertise to identify safety and environmental effects that are potentially significant. Although other federal government departments have specific expertise, none have experience related to pipelines.
Okay. I was thinking about at the very end.
We know that the minister has the ability to both add or remove waterways under subsection 29(2) of the act. We heard from departmental officials and municipalities that there have only been two requests to add waterways and that to the best of their knowledge, there have been no complaints filed in Quebec, Alberta, and Saskatchewan in regard to projects undertaken. If you look at the act, you know that it's not just municipalities and provinces that could ask for a waterway to be added, but first nations would be included in that as well.
I really appreciate the clarity, Mr. Atkinson, that you have provided with respect to the focus of the Navigation Protection Act, and the reminder that there are other pieces of legislation that speak to some of the concerns that were raised by different groups at the time the Navigable Waters Protection Act was changed.
We've heard a lot from members across the way that perhaps they're not really focusing on the legislation but more on the process that was undertaken. I know that we have another panel coming next week, which I think is largely environmental groups—interestingly enough, given your observations, coming to speak to the Navigation Protection Act.
I also want to follow up, Mr. Bloomer, with some questions that my colleague asked of the municipalities about the change, in respect to pipelines under the Navigation Protection Act, over to the NEB. I believe that was done through Bill , the Pipeline Safety Act. I wonder whether you can speak to that.
Then I have perhaps two questions. Do these changes in any way reduce the environmental oversight of projects? How has commercial navigation been affected by the changes that were made?
The move to the NEB, as I said in my statement, was basically.... Before, the transportation board would opine on navigation aspects after the NEB; now, it's incorporated in the whole process, and the navigation piece is taken as seriously with the NEB, as probably the best-placed regulator to do that and more efficient.
I think that was the key thing, to move it to where the science and technical expertise was, to make it more [Inaudible—Editor] and incorporate it into the overall process.
With respect to reducing protections and so on, under CEAA 2012 those protections in the Fisheries Act and so on are still there; it didn't diminish the protections at all, as this is focused strictly on navigation.
If there's any impact on navigation, there has not been any impact due to the changes on any kind of navigational aspects of pipeline projects.
Thank you, Madam Chair.
My thanks to both witnesses for being here today.
In a previous life, before I was elected to Parliament a year ago, I was the mayor of a municipality of 45,000 residents.
Mr. Atkinson, I confirm that there are many bylaws, many environmental regulations—particularly at the provincial level—that stand in the way of people who want to create wealth and to develop the various municipalities across Canada.
In any case, I can confirm that this is the reality in rural areas. It often causes more problems than anything else. As mayor, I had to play the role of mediator, to deal with provincial authorities to try to untangle projects that were subject to excessive regulations for all sorts of reasons. I could prepare a whole list, but I don't think this is the objective today. For anyone wondering, I confirm that there are a lot of them.
Let me ask you both some simple questions.
First of all, on a scale of one to 10, what is your level of satisfaction with the existing legislation and with the amendments that were implemented in 2012?
As far as bringing certainty and predictability and timeliness is concerned, it's at seven, eight, or nine, but the truth will tell. We haven't had enough real experience with the changes, but certainly the intent to ensure that is so important.
We are not the proponents of these projects. We're the builders. When we get the green light, assuming the environmental assessment has been properly done and scrutiny with all the regulations, etc., being contractors we want to go from A to B as fast as possible and get the project done in the quality and time and budget that the proponent has asked for.
The worst case is that we start with a bunch of uncertainty hanging over us. The chance that the project could be stopped or delayed because of a challenge based on, “Oh, there should have been another assessment” or “This has been triggered now” frankly was our biggest concern.
It appears to me that the changes that were made with respect to this legislation would diminish that probability substantially, from a builder's perspective.
Frankly, under the old regime the definition of navigable water was anything you could float an opinion on. That was the uncertainty we would often start projects with which had already received environmental assessments. They would have started it, and somebody would have said, “Wait a minute; that's navigable”, even though it might be a dry drainage ditch in July and August. That was the problem we the builders had: the lack of certainty, the lack of knowing that we had now received the green light to proceed and could now proceed.
Thank you very much to our witnesses. I did appreciate your testimony here today.
To provide a bit of context, there was some discussion about this potentially being more about process than substance. I appreciate my colleague, Ms. Block's, comments that she is taking this as being genuine.
I have to say, though, I have some problems with the legislation itself. There's no preordained outcome, but I don't expect my feedback will be offensive to you. I'm not here to conflate navigation concerns with the need to conduct environmental assessments on drainage ditches. When we say there were some good things in there, I don't think anybody should have to pay hundreds of thousands of dollars to hire environmental consultants because it rained too hard one Tuesday. That's not what this is about to me. Perhaps it's my own lived experience that has informed my opinion.
My concerns with the revisions to the act are primarily economic. I'm worried that we've shrunk down the number of scheduled waters significantly. There's some good and bad in there. My real concern is that it's going to interfere with marine tourism and trade on significant, but not necessarily large from a national perspective, rivers and streams that actually serve the economic purposes of the people and businesses in my own community. I also come from a litigation background. Before my career in politics, I usually got involved in projects when somebody didn't do what they were supposed to do.
I'll start by dealing with some of the obstructions that could land on what was previously navigable water, but is no longer scheduled. From the pipeline industry, we heard that the typical practice is that if you have to erect a temporary bridge or some infrastructure to allow you to complete your project, it's removed.
If you're dealing with an unscheduled water, do you think the minister should have some power to enforce the behaviour of somebody who is constructing a pipeline, but doesn't do what is supposed to be done? What should the government's role be when saying that the obstruction has to be removed?
However, the answer is very simple, Madam Chair. We are studying a piece of legislation that initially covered the pipeline work. Now, that’s no longer the case. I guess that modernization could also mean that we can go back to it someday, if it is the best solution. I think it's quite relevant.
Mr. Bloomer, let me go back to the principle of modernization of the National Energy Board, because, first, you're talking about 2012, which I understand. However, to talk about the elephant in the room, we have a situation—such as with one of the largest projects, Energy East, not to mention any names—in which, for now, the National Energy Board does not seem to have the credibility needed to move the matter forward and enable all citizens to express themselves clearly and precisely to achieve social licence.
Would it not be more objective to refer this matter to Transport Canada, or do you really think the National Energy Board can modernize its way of doing things to accommodate the wishes of the public?
Thank you, Madam Chair.
I just want to make a clarification for my colleagues opposite.
We often hear that we Liberals want to change and destroy what was done by the previous government, but that is not the case. On a number of occasions, we have said that we just wanted to make sure that the changes that were made without prior consultation—let me stress that—are effective and meet the needs of Canadians. I don’t understand what is so difficult to grasp about that.
This is a transparent and honest process to gather the views of different organizations. You can see that we have asked questions and the organizations responded today. We are here to hear from witnesses, not to introduce partisan motions that slow down our work.
I’m sorry, but I just had to say that.
Let’s now move to my question. In your opinion, would it be possible to improve the process of adding waterways to a schedule without undermining the certainty you have mentioned and without affecting the speed of the approval process?