Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.
I'm calling to order meeting number 39 of the Standing Committee on Transport, Infrastructure and Communities. I welcome everybody this morning.
Pursuant to Standing Order 108(2), we are continuing our study of the Navigation Protection Act. We have several witnesses with us today.
Emma Lui, water campaigner, from the Council of Canadians, welcome back. You didn't get your full time the last time, so we're trying to make sure that you have your opportunity this morning.
We also have with us Adrienne Davidson, Fulbright visiting researcher at the Center for Canadian Studies at the Johns Hopkins School of Advanced International Studies.
Thanks very much to both of you for being with us today.
Ms. Lui, we'll go to you for very brief opening remarks. If you could, please comment on what you didn't get to finish the other day so that you have time to receive questions from the committee members.
Good morning, everyone. Thanks to the standing committee for inviting back the Council of Canadians. I appreciate the opportunity to continue raising the concerns that I started to raise the other day.
I guess I'll just flag that we had raised concerns about the lakes and rivers that remain unprotected in many of the communities that our 60 chapters are in. We also have many supporters who have expressed concerns about the projects that are threatening navigable waterways in their communities.
In particular, I want to raise concerns about the approvals that the Trudeau government recently put forward for the Trans Mountain pipeline and Line 3 pipeline. Justin Trudeau campaigned on restoring and strengthening many of the freshwater and [Technical difficulty—Editor] but the approvals of these pipelines and of the Site C dam really raise some concerns about the government's commitment to protecting waterways in Canada. Many of our chapters and supporters have expressed concerns about these projects threatening navigable waterways in their communities.
As you likely know, the Trans Mountain pipeline crosses and threatens roughly 1,300 waterways. Oil spills such as the one that happened on the Kalamazoo River impacted navigation on parts of the river, and a nearby lake was closed for two to three years because of the spill, so we are really raising concerns about the potential of spills from the Trans Mountain pipeline and Line 3, as well as the NRG pipeline. These projects were approved with weakened legislation put forward by the former Harper government, and they seriously threaten the local waterways that communities rely on for boating, fishing, recreation, and local tourism.
Local economies rely on healthy and navigable waterways. We urge the standing committee to make recommendations to the federal government to restore and enhance protections for every lake and every river. In particular, we're asking that a new clause be developed so that potential spills or discharges of harmful substances are assessed for their impact on navigable waterways. Again, we're underscoring the importance of respecting and implementing the human right to water as well as the United Nations Declaration on the Rights of Indigenous Peoples.
I'll leave it there. Thank you very much. We really appreciate the time.
Thank you to the committee for inviting me to speak today.
I'm speaking to you today with respect to a research project that I undertook in 2014 with colleagues at McGill University and at the University of Washington. This research investigated the changes to the Navigable Waters Protection Act, and that paper was published in 2015 in the Canadian Journal of Fisheries and Aquatic Sciences.
The changes to the NWPA received considerable public and political attention, particularly as they pertained to the potential environmental impacts. The NWPA itself never had an environmental mandate or role, though its relationship to environmental protection was constructed through the Canadian Environmental Assessment Act of 1992, which used the NWPA as a triggering mechanism.
In 2012, the changes to the CEAA removed that triggering mechanism, and the CEAA adopted the designated projects list. Meanwhile, the changes to the Navigable Waters Protection Act removed comprehensive federal oversight of waterway navigability through the creation of its schedule A list of waters.
What has this meant for oversight?
According to the CEAA online registry, there were 2,400 environmental assessment projects conducted between 2003 and 2012 that were triggered by the Navigable Waters Protection Act. Fifty-eight per cent of these projects were conducted on waterways that no longer receive protection under the Navigation Protection Act. Projects occurring on ocean basins, which remain on schedule A, account for approximately 30% of those environmental assessment projects, while only 11.1% of projects occurred on lakes and rivers that today are included on schedule A.
With respect to oversight, I think it’s fair to say that we’ve seen a pretty dramatic decrease in federal project oversight on lakes and rivers in Canada. However, it is important to note that reducing the NPA oversight does not necessarily mean that there is no federal oversight on a project. Projects requiring environmental assessment, if they appear on the designated projects list, may still occur on non-schedule A waterways. Federal oversight might also be achieved through other legislation, such as the Fisheries Act. However, at this time, I don't have, and I believe the public does not have, a clear sense of what the gaps are under the new regulatory framework. The concurrent changes to the Fisheries Act in 2012 might have had a similar effect in reducing federal oversight, or these parallel pieces of legislation may continue to work together to provide comparable levels. At this point, though, I think it's pretty unclear what that looks like.
The Navigation Protection Act defines navigation with respect to recreation and commercial uses. How we think about navigation and what types of navigation are important had a major impact on the way that the schedule A list of lakes and rivers was defined.
The best we can tell from the information we received through our ATIP requests is that the schedule A list of lakes and rivers was compiled through a fairly narrowly defined process. That process created a composite score for each waterway’s navigation pressure. Those scores were based on service levels as determined by the Canadian Hydrographic Service's freight movement statistics, on past work that indicated navigation, and on survey scores based on regional managers' knowledge regarding regionally important navigable waters.
Under these metrics, recreational and commercial activities are heightened over and above the natural or environmental importance of certain waterways or their relationship to subsistence activities. Thus, moving forward, I think it's critically important to consider how we define or think about navigation.
Finally, this question about how the schedule A list came about speaks to my final point: we need to think about how to build opportunities for more consultation or transparency into this review process.
The origin of schedule A was of particular interest to our research team, and subsequently, we submitted two ATIP requests.
The first request asked to look at the qualitative assessment of lakes and rivers under review, while our second request asked for the larger quantitative assessment, which marked the first step in the process. Throughout our research efforts, we weren't actually able to get a full picture of the process as the quantitative assessment was held back due to cabinet confidence. Therefore, we've had to speculate a little about some of the metrics that went into this process.
Overall, transparency and clarity appear to be two core issues that face this review and the review of the new environmental and regulatory framework as a whole. I think there's a failure in understanding the gaps that exist now within the new legislative framework, and that uncertainty makes it quite difficult to reach an informed consensus about the public comfort or the public expectations for the environmental regulatory regime.
Thank you very much, Madam Chair. If my questions don't take up the full time, I will share my time with Mr. Berthold.
Thank you very much for joining us again this morning. I appreciate the difference you note between the Navigation Protection Act and CEAA, and the link between them in terms of the trigger that used to exist.
I want to talk a bit about the paper that you wrote entitled “Reductions in federal oversight of aquatic systems in Canada: implications of the new Navigation Protection Act”. It had the following three objectives, as I see it. The first thing was to see how long the average environmental assessment took between 2003 and 2012. Second was the percentage of NWPA-triggered environmental assessments that occurred on water bodies listed in the schedule. Finally there was the impact the changes to the NPA will have on environmental oversight. I noted that your paper didn't discuss whether the actual navigation of waterways had been affected.
In your research were you able to find a single lake or river on which navigation was no longer possible as a result of the changes? You're here testifying before the transportation committee, on the Navigation Protection Act, and yet your paper didn't discuss that aspect. I'm just wondering if you could speak to that, please.
Of course. The research project had some limitations, obviously. Key among them was that we were looking backwards on projects that had already happened rather than forward on new data or new projects that were coming on board. Certainly, the data we had limited our ability to speculate forward, to think about whether there were any new projects that had come on board that no longer had the navigation piece or would no longer be covered by NPA. If we were to do this project today, we would have two extra years of data that we could actually start to use to see what the implications of NPA specifically have been. However, when we were doing this project, the changes had only just been put in place and implementation had not yet occurred. I can't actually at this point speak to any case in which navigation has been impeded since NPA has been implemented. However, we can say, based on the data we have, that, of the environmental assessments or the projects that were triggered under NWPA, 58% would not be triggered under NPA.
As I said, it may be the case that some of these projects would still see oversight in some capacity or another through either the Environmental Assessment Act or the Fisheries Act or some other piece of legislation, but I think it's also important for us to potentially distinguish between navigation as one interest or one role for government to play versus environmental assessments, which may be looking at a different set of implications.
Absolutely, which is why we have the two acts, right? The NPA focuses on navigation and CEAA focuses on environmental assessments.
What I've heard, then, is that your research didn't go beyond 2012 and the changes. In the past four years you've not done any research on the implications of the changes made in 2012 for the waterways here in Canada.
That's correct, mostly because we haven't been able to.... I mean, the implementation took some time, and I believe only since 2014 have the changes to CEAA come into full effect. In terms of accessing new data, it's only in about the last year and a half or two years that we've been able to actually research and look at those impacts over the long term.
From our existing research, however, it appears to be the case that 58% of the projects previously requiring federal review through the Navigable Waters Protection Act would not be considered, under even navigation purposes, through the NPA.
That's a great segue into my next question. How, in your view, are provincial and federal environmental assessments different? Are two always necessary? With regard to the changes that were made, I believe part of the reasoning behind them was to reduce the duplication of environmental assessments. Could you comment on how they're different? As well, are two always necessary?
That's a weighted question, and it's not one I'm particularly well equipped to answer. Quite frankly, I'm not as familiar with the provincial regulatory framework and how it intersects with the federal framework.
That said, I think this question of federal oversight for navigation purposes and where it falls relative to either provincial environmental regulation or federal environmental regulation is an important question for this committee to consider. I'm not necessarily saying that the triggering mechanism should be reintegrated into a future regulatory framework, but it's possible that by downloading or requiring the provinces to do their environmental assessments, the role of the federal government in reviewing navigation principles or navigation of waterways is being lost in that mix.
So it's a question of potentially figuring out how to—
I want to preface my comments by saying how much I appreciate you folks taking the time to be part of this. This study is being undertaken as a way to allow the public to comment on legislation that's of this importance, so I want to thank you folks for being here.
With that, I will ask my first question. This act is about access and navigation and/or impediments to navigation. I'm wondering if you would offer your thoughts on the adequacy of the 2012 changes when it comes to artificial or manmade obstructions to navigation.
It's hard to assess how a project impacts navigation when a lot of the lakes and rivers aren't being included in the act. As you know, the schedule focuses on a very small number of lakes and rivers. I just don't think that assessment is happening, because so many of the lakes and rivers are not under the purview of the act.
Related to the previous question and some of the points that have been raised, I think it's important to flag that with regard to the navigable waters protection program, one of their original goals was environmental protection. I'll read from the previous website, and this is a quote: “The Navigable Waters Protection Program...is responsible for the protection of the public right to navigation and the protection of the environment through the administration of the Navigable Waters Protection Act.” That language has been scaled back since the changes in 2012, but it does say that the program still considers the safety of navigation, access to waterways, recreational and traditional use of navigable waters, and environmental effects when reviewing a project for approval.
I just want to highlight that. People are talking about how this act doesn't have anything to do with environmental protection, but on the website it clearly did state that, and it still does. So if that's not the case, the language on that website needs to be changed, because that's the public's understanding right now.
Speaking of responsibility, the previous government and the Conservative MPs on this committee have repeatedly stated that the smaller NPA means less red tape and greater efficiency for those navigating our waterways. In your opening statements, both of you indicated otherwise. Could you please explain why you think the reduced scope of the act would negatively impact accessibility in some areas and how we can fix those problems?
Sure. The previous government and our sitting MPs here from the Conservatives have repeatedly stated that the smaller NPA means less red tape and greater efficiencies for those navigating our waterways. Earlier, both of you indicated otherwise.
Can you please explain why you think the reduced scope of the act would negatively impact the environment? I'm talking about accessibility in some areas and conditions related to some of the comments you already made with regard to respecting the environment and what the actual act is supposed to attach itself to.
With respect to reducing red tape, this was one of the pieces we were quite interested in looking at in our research projects. It was part of the rationale utilized in the dialogue around the discussions of the NPA changes. I think it is important to note that the number of NWPA-triggered EAs accounts for only approximately 5.8% of all of the federal EAs in that 10-year period. So in terms of the overall impact on environmental assessments, it's a relatively small number of all environmental assessments occurring in Canada.
As for the length of time the environmental assessments took, 53% of environmental assessments triggered by NWPA were completed within six months, and 73% were completed within a year.
That's what this side of the table is actually trying to do, as opposed to the other side of the table, who are sitting there signing Christmas cards. At the same time, this is something that's very important. Once again, I want to express my appreciation to you folks for participating.
I thank the witnesses for being here with us this morning.
I'd like to extend special thanks to Ms. Lui, who for the second time has gotten up in the wee small hours to take part in our committee's work. We appreciate it very much. I also want to thank my colleagues, who agreed to this additional meeting so that we may hear all of your testimony.
This act, according to what you tell us, does not appear to be reaching its objectives. In my questions, I'd like to go from the general to the specific. First I'd like to talk about how the situation could be corrected, particularly as regards environmental assessment.
In your opinion, since you are familiar with the previous act, the Navigable Waters Protection Act, would it be preferable to start with that act, or go back to the previous act to amend the current one?
Right now I think it's important to revert back to the old act. We need to restore protections, because a lot of projects are going forward and being approved without assessment of navigable waterways, but we recognize that there is definitely room for improvement of the previous act. I would call for the restoration of the act up to the 2012 standards, putting protections back on all the lakes and rivers, and then holding a full public consultation on new changes to the act.
We're seeing public consultations with the Canadian Environmental Assessment Act, which is great, with a lot of cities being visited and a panel going to each of the cities to hear people's concerns, so we would ask that the same happen for this act. I can talk about examples.
We wrote a report recently, “Every Lake, Every River: Restoring the Navigable Waters Protection Act”, in which we looked at four key studies of projects that were going forward that would have impacts on navigable waters. The Ajax mine in B.C., for which the Jacko Lake cofferdam is not being assessed, is one example. Under the old act, normally it would have been assessed. The local community has raised serious concerns about what the project is going to do to Jacko Lake. A lot of fly-fishing happens there. It's actually termed the best fly-fishing in B.C, so there are concrete examples out there that underscore that protections need to be put back on right now, and then a fuller consultation process needs to be implemented, including a review panel.
I think there are two things to consider. One would be that, by returning to the old legislation, I think a lot of the concerns about the regulatory or red tape burden would not be realized, in part because the Navigation Protection Act in its current form no longer triggers the Canadian Environmental Assessment Act, so you would not necessarily get the duplication question around environmental assessment. You could continue forward with a more robust federal oversight on waterways without actually impacting the degree to which you have to do lengthy or duplicate environmental assessments.
Alternatively, one option would be to have a sort of backwards triggering mechanism whereby any environmental assessment that occurs throughout Canada would trigger a review through the Navigation Protection Act specifically regarding navigability. This would probably keep the overall regulatory burden down relative to the previous model.
I'm sure we can all agree that we don't need a three-year study before building a culvert in a brook.
Major projects have not been approved, however, such as the Kinder Morgan and Energy East pipelines. Does it seem appropriate to you that the environmental assessments were entrusted to another independent organization, the National Energy Board? In the context of amending the act, why not take advantage of the opportunity to bring back the environmental assessments of these major projects to the Department of Transport?
I would definitely say that Transport Canada has the responsibility, and I would also say a lot of expertise is needed to conduct this type of assessment. It's no secret that there are a lot of concerns about the National Energy Board and its being possibly co-opted by the energy industry, which raises questions and concerns about its actual independence.
I think the federal government really does have the responsibility to do this and really needs to think about how navigable waterways are impacted. I would hate to see the department not have a role or responsibility in protecting these waterways.
And thanks to our witnesses, especially those from British Columbia, because I know how early it is out there.
I'll start with you, Ms. Lui. You are aware, of course, that both the Trans Mountain line and Line 3 are following existing corridors, so it's not as though we're blazing a new trail through the wilderness with them.
I'm wondering if your group has any background information on how the existing pipelines have performed in those two places with respect to spills, accidents, etc. If you don't, that's fine.
Sorry, ma'am, I'd ask you to keep your answers short. I know the two of you are just brimming with information, but I have a few questions I need to get in.
I want to build on Mr. Aubin's question, because having been involved in the other side of this study, on the fisheries and oceans committee, I asked the same question of the pipeline industry with respect to the National Energy Board versus the DFO being involved in environmental assessments.
Ms. Lui, you mentioned that Transport should do it. Other people believe it should be DFO. There is a compelling reason for the NEB to continue to do what it does. Do you have any preference? I think you signalled one, but I just want to give you an opportunity to say what you think should be in place and why.
If it comes to navigable waters, I would say it should be Transport Canada. I think there needs to be better coordination among the federal departments in that there is obviously overlap in some of the projects. There is an obvious link between navigation and fisheries, and we've raised concerns about some of the projects impacting not just boating or recreational paddling but fishing as well.
I think it's not either/or; in some cases it might need to be both. It would have to be on a case-by-case basis, but we can't do that assessment if the Navigation Protection Act doesn't even look at most of the lakes and rivers in Canada.
One thing further on the NEB process—and this was highlighted in another meeting I was in—is that rather than just looking at potential environmental impacts during the construction period, the NEB oversees the environmental performance, if you will, of a pipeline for its whole life, so there is ongoing inspection and ongoing concern with that. It's something to tuck away as a wrinkle that may speak to keeping the NEB as part of that process.
Ms. Davidson, both of you have said that triggering an environmental assessment through the NPA, or the Navigable Waters Protection Act, if we go back there, is still the preferred way you'd go. Are there other trigger mechanisms that you would want us to be thinking about?
Again, I'd ask you to keep your answer fairly short. I'm sorry. Go ahead.
I'm not sure that the triggering mechanism is necessarily the best way forward. I think the biggest thing to think about is that at the moment we and the public aren't clear on what gaps exist under this framework as compared to the previous framework. It's difficult for us to reach a consensus on what that looks like or on what the Canadian public is comfortable with under the new framework.
There was obvious concern by the previous government about the buildup of reviews. There were something like 3,000 in the lineup for review by the DFO alone, and it took a long time to get them through. In the meantime important public works were held back and made more expensive, etc.
Here's a quick open question to both of you. What would you recommend to streamline this so we're not holding people back from things that the public needs?
I would have to ask members of the committee to rethink the way this is being framed. I know there was a lot of talk about red tape, and I recognize that there are infrastructure projects that need to go forward, but I'd ask you to think about what we're trying to protect here, and that's water. It's people's drinking water. It's the source of people's livelihood. If people can't fish...there are a lot of communities that rely on that for their jobs. It's also needed for watersheds and people's drinking water.
I think it's quite important to take our time and to make sure projects aren't going to negatively impact waterways. If we hold up pipelines, a potential spill, such as we saw with the Husky oil spill in Saskatchewan, which directly affected.... We knew people in those communities who weren't able to drink their water for a number of days.
I would ask members of the committee to really rethink that. We need some of these safeguards, and we need to take our time to make sure projects aren't going to be impacting people's drinking water.
If I'm understanding the question correctly, I would say that protecting the public's right to navigation is oftentimes protecting the environment. Oftentimes we see projects.... I'll refer back to the report that we recently released. We saw a very intimate link between protecting water and protecting navigation. I raised the example of the Kalamazoo spill, or even the Husky oil spill, in which people weren't able to navigate the waterways, and there was obviously a link to environmental protection as well.
Currently the act doesn't include any assessment for potential spills, and those can definitely impact waterways. I would ask that a new clause be included in the act, so that when there is an assessment on a project, it looks at what a potential spill could do to navigation and the environment as well.
Ms. Davidson, perhaps this is a question for you, although I'll open it up.
One of the complaints we heard previously was that although the public's right to navigation is still protected under the common law, going to court to seek a remedy is not a possibility for many of the users of waterways.
Is it your view that an administrative complaints process that is more efficient and cheaper would be a good thing?
It's not something I've looked at, and so I don't feel as though I'm prepared to comment on that specifically.
I think it's a question for the committee. Do we want to create a regulatory framework that is forward-facing or a complaints process that is backwards-facing? That's something I think this committee should be thinking about, moving forward.
So if we were to have a forward-facing regulatory framework, one of the issues that I see popping up is that it's not necessarily that difficult for a provincial government or municipality to have a waterway added, but the user of a waterway doesn't necessarily have the authority to get a waterway added to the list. Should we be expanding the ability of the actual end-users of waterways to have their waterways added to the list if they can make the case that doing so is sensible?
I think this speaks to how the schedule was initially constructed, which was really around commercial use and heavy navigation use for recreational activities. It would be a time-consuming process to do so, but engaging with communities, engaging with indigenous groups, engaging with perhaps individuals who were not able to participate in the previous process in order to construct a list that was a little bit more comprehensive might be one way forward.
It should also be noted that in the two-step process of the schedule, the initial quantitative assessment came up with a list of, I think, 1,070 potential lists to be included in the schedule. That number was whittled down through the qualitative assessment to around 240. So there's a larger list out there that could also be considered a starting point when we're thinking about the schedule.
When we are trying to build a list that more adequately protects the traditional use by indigenous communities and those in the north, is there any advice you have to ensure that those voices are heard so we can protect their traditional use of waterways? I'll ask for a quick response. I don't have much time left.
I think in those cases—and maybe you could piggyback onto the current CEAA consultations—you do have to engage in a nation-to-nation consultation with those groups and actually have them at the table while you're preparing that list.
I think it's quite notable that if you look at the territories, there are barely any rivers or lakes being protected, and many of those rivers are used for navigation, for recreation, and for subsistence on a regular basis.
The liaison committee went through that process, but in the end, it still requires House approval from all of the parties. It requires unanimous consent. Evidently at this particular time, it has not been dealt with in that way.
It hasn't received unanimous consent. I'm not even sure if it's been asked for. It's been talked about maybe within the system, but as the clerk said, we don't have unanimous consent right now. We don't have approval, period. Until we get approval, you're not able to book the flight or do any of the other logistics.
Madam Chair, unanimous consent, I'm assuming, means of the three parties. I thought we had already discussed this and nailed down a date, so who in this room is not in support of us going? I was under the impression that before it went to the House, we had unanimous consent.
Just before we conclude the public hearing, I'd like to reply to Mr. Badaway by reminding him that even within the committee, there was no unanimous consent on the trip. The NDP and the official opposition voted against it. There was a vote in the House on this and you voted in favour of it.