TRAN Committee Report

The Conservative Party Members of the Standing Committee on Transport, Infrastructure and Communities unequivocally do not support the committee report on the review of the Navigation Protection Act.

This dissenting report will outline how the study came about, Transport Canada’s interference in the committee process, what evidence was heard, and the contradictory recommendations that do not draw their inspiration from any of the evidence that the committee heard.

How this study came about

From its inception, the review of the Navigation Protection Act was disingenuous.  The committee was asked to consider future amendments to the Navigation Protection Act without being told what those future amendments would be.

A number of witnesses, including the Métis National Council, noted with concern the structural problem of being asked to comment on changes to legislation that have not yet been announced. They remarked that “the opportunity to comment doesn't occur before something happens, but after the fact.”

The outcome of the committee’s review of the Navigation Protection Act is already pre-determined and the actions the Minister of Transport will take have been set in stone long before the committee even began its study. Even the timeline for this entire review has been tightly scripted.

On June 20^th 2016, the Minister of Transport and the Minister of Fisheries and Oceans wrote to TRAN requesting that the committee study the Navigation Protection Act. This study was to contribute to the Minister’s mandate letter commitment concerning the Navigation Protection Act to “restore lost protections and incorporate modern safeguards”.

In order to fulfill the Liberal timeline, it was asked that the study be completed by early 2017.

There was no ambiguity in these instructions.

Even before the committee met to discuss whether it would conduct a review of the Navigation Protection Act, the media reported that the then Parliamentary Secretary, Kate Young,  indicated that the Committee would undertake this review and a Transport Canada Official stated that the committee would report back to Transport Canada by early spring 2017.

Not only did the Government dictate what the committee should do, but it gave the committee a compressed timeline to report back. This compressed timeline became the source of complaint from many stakeholder who wanted to participate, but could not under the timelines set by the government.

This entire exercise was a screen for the Minister to make unilateral changes to the legislation under the guise of having consulted Parliament.

Transport Canada’s interference in the committee process

Beyond dictating the terms of the study, this committee study was also exceptional in that Transport Canada directly intervened in the committee process by directing witnesses to submit briefs to the committee, and provided them with funding to do so.

In a letter to the Hiltsuk First Nations, Transport Canada Deputy Minister encouraged them to provide testimony to the committee and indicated that his department would encourage the committee to listen.

“We will contact and encourage the committee to listen to what the Coastal First Nations and the Hiltsuk First Nation have to say.  A member from your organization could still take the opportunity to reiterate your interest in giving testimony before the committee.”

This is important. It is not for Transport Canada to determine or influence what witnesses the committee hears from. That responsibility belongs to the Members who sit on that committee.

Furthermore, many of these submissions to the committee were contingent on approval of participant funding from Transport Canada’s participant funding programs.

Typically, committee members choose what witnesses they want to hear from and do not under any circumstances pay for witness testimony beyond reasonable expenses for travel and accommodation.

The government had a major role in determining what evidence the committee received because groups that were approved for Transport Canada Participant funding were more likely to submit evidence.

As Transport Canada was running a parallel review of the Navigation Protection Act, it is a normal practice for them to be disbursing participant funding to encourage the participation of groups that are unlikely to come forward to share their opinions as part of their review process.

But because it is critical that Parliament remain independent from government, participant funding from a government department has never been used to facilitate participation in the work of a parliamentary committee.

In the long term, the precedent the government has set with its complete disregard for the independence of a parliamentary committee, whether by dictating a committee’s agenda or by choosing what witnesses the committee hears from may have a long term negative impact once this review is complete.

What the committee heard

The Navigation Protection Act was amended for the first time in several decades in June 2009 because project proponents, whether rural municipalities or cottagers, faced increased costs, project delays, and unnecessary red tape when planning, designing, and constructing critical infrastructure projects near and around bodies of water.

These amendments gave the government the authority to pre-approve certain types of works in order to streamline the construction of important works.

The Navigable Waters Protection Act was amended again in 2012 to remove the federal requirement to accommodate non-existent public water travel on waterways such as flooded fields, seasonal streams, and other smaller bodies of water that have never historically seen navigation.

This requirement to protect every single body of water for navigation made some sense in 1882 when the act was created but over time, as the means for transportation have evolved, the need for ensuring the passage of canoes has decreased.

Prior to the 2012 amendments, all 17,000 named waterways and thousands of unnamed waterways in Canada were subject to the Navigable Waters Protection Act. In effect, this meant that Transport Canada first had to verify that the construction of any work would not affect the navigability of the waterway, even if that waterway had never seen navigation.

As a consequence, municipalities and other project proponents were told by Transport Canada to redesign and alter their projects to win regulatory approval, which resulted in delays, and increased costs, regardless of whether the potentially affected body of water was used or would ever be used for navigation.

The NWPA was so vast in scope that it was impossible for Transport Canada to give its approval for projects within reasonable timelines, as was testified by Transport Canada officials: “it was virtually impossible for the department to implement the act for such a broad scope.”    

The 2012 changes to the Navigable Waters Protection Act introduced a schedule of waterways that would be protected for navigation. This schedule was drafted taking into consideration historical shipping data and future population trends so that navigation would be protected.

Seasonal streams and flooded fields were not included in the schedule as these had not and never will be used for navigation.

If a waterway that was not listed in the schedule began to see navigation – the Governor in Council could add any waterway to the schedule through the Canada Gazette.

Subsection 29(2) of the Act is very clear:

The Governor in Council may, by regulation, amend the schedule by adding to it a reference to a navigable water if the Governor in Council is satisfied that the addition

• (a) is in the national or regional economic interest;
• (b) is in the public interest; or
• (c) was requested by a local authority.

These changes were sound policy that sped up project approvals while ensuring that the common law right to navigation was protected.

Throughout the committee’s work – not one witness could name a single waterway where navigation was no longer possible because of the 2012 changes to the Act.

So why the government is steadfast in its determination to gut these practical modernizations to the act remains a mystery.

Recommendations

The committee’s recommendations are contradictory. They are not based on any testimony that the committee heard. For all intents and purposes, the majority on the committee synthesized what they wished witnesses has said, and made that the basis for the report.

Recommendation #1 recommends that the government maintain the schedule, while recommendation #9 recommends the creation of an administrative tribunal within Transport Canada to adjudicate complaints related to all waterways, regardless of whether they are on the schedule or not.

Therefore recommendation #9 is basically a backdoor way of getting rid of the schedule by making it irrelevant.

This administrative tribunal would further muddy the waters because the tribunal would be able to order a project proponent to stop construction upon receipt of a complaint.

Under this recommended system– a municipality looking to build a work near a waterway, that is presently on the schedule, would first have to get approval from Transport Canada to begin construction, and then hope that no opponent of the project files a complaint to the tribunal to stop it.

This would duplicate processes for both Transport Canada and project proponents.

Furthermore, the governing party has consistently misunderstood that the Minister has the power to add any waterway he/she chooses to the schedule as highlighted by the following recommendations to:

“Rapidly improve the process of adding waterways to the schedule” as recommendation #1 states or “update the schedule in consultation with First Nations, provinces, territories and other relevant stakeholders” as is stated in recommendation #5.  This makes no sense as the Governor in Council already has the power to add as many waterways as it chooses through regulation.

The criteria that Cabinet must consider before adding a waterway to the schedule is quite broad and not an impediment should the government see a public policy justification for increasing the number of waterways included in the schedule.

Recommendations #1 and #5 also contradict testimony made by then Parliamentary Secretary to the Minister of Transport, Kate Young, who stated that adding more waterways to the schedule in the manner described by these recommendations was unwise: “I think one of the concerns would be that to be put in a position to just add rivers, streams, or whatever on an ad hoc basis probably isn't the best way to handle such an important act”.

Conclusion

In conclusion, none of the recommendations made by the governing party will improve the NPA.  If implemented, these recommendations will simply add additional layers of bureaucratic red tape to an already challenging process of building works near waterways.

It is the hope of the Conservative Party that the Government will note the testimony of numerous witnesses who indicated that there has been no proof of navigation on waterways being impeded; only a better more efficient process for approving works.

The goal of the Act is, and should remain to protect navigation, while avoiding any unnecessary negative economic impacts on municipalities and other proponents of works being built near waterways.