Who Won The Bill C-3 War

The corks must have been flying from the bottles of "Baby Duck" at Transport Canada headquarters in Ottawa after the Senate hearings. Except for some insignificant amendments, the Bill got through unscathed! Now what?

It should not have been a big surprise. The Liberals introduced Bill C-44 which was changed slightly when the Conservatives took power and was transformed into Bill C-3. The Conservatives had to support it since it was one of the first bills to be introduced by the Harper Government and the Liberals would be hard pressed not to support a Bill that was virtually the same as theirs. That's pretty much how it played out EXCEPT...

The exception is that a number of the members in the House on both sides and certainly more in the Senate understood what the Bill was really trying to do and by their questioning forced Transport Canada to make major concessions to the position of the Ambassador Bridge Co. That Company was the target as became perfectly clear. Those concessions will not only be useful at the Regulations stage but can also be used in any Court challenges when the Courts look for the interpretation of a section of the Act.

After the hearings last week I must admit that I expected several amendments to clean up some of the confusing the language in the Bill but they did not happen. Didn't Senator Eyton who introduced the Bill in the Senate ask for a "de minimis suggestion?" There must have been some interesting arm-twisting going on behind the scenes given the positions of certain people last week and then this week to prevent any wording changes. Some new players also entered the scene this week as well to play a surprisingly dominating role in the hearing. It was an interesting political exercise to watch.

My view--the Legislators were prepared to accept the word of Transport Canada as to what their intentions under the Act were. I guess that I am just more cynical than they are after having lived the border fiasco for 4 years. It turned out though to be the perfect Canadian compromise. Everyone got what they wanted in the end.

Transport Canada will take what happened as a win. The Bridge Co. will ignore the Act since their view will be that it is inapplicable to them as they move forward under their EA process or that if it applies, the concessions given and the Observations made give them a great deal of comfort.

In the end, all it means is that Tranport Canada and the Bridge Co. have to negotiate. Nothing has really changed from before. It now means that Minister Cannon has no excuse NOT to meet and can come out of hiding after being invisible on this file. The time is now to do a deal or we will have years of litigation.

Why do I say that one has to look at more than just the Act. Here is what the Senate Report and Observations state:

OBSERVATIONS
to the Sixth Report of the
Standing Senate Committee on
Transport and Communications

Recognizing that international bridges and tunnels are of national interest, members of your Standing Senate Committee on Transport and Communications support the intent of Bill C-3, the International Bridges and Tunnels Act, which is to reinforce the federal government’s constitutional jurisdiction and to ensure the smooth flow of people and goods over and through them. Furthermore, your Committee agrees that it is necessary to apply consistent rules and policies to these international crossings, large or small, regardless of who owns or operates them; especially those to ensure the safety and security of the structures. However, despite its decision to support the bill, your Committee would like to address some of the particularly resonant concerns of stakeholders regarding certain provisions of the bill and to state that it hopes that this bill will not impede international crossing projects for which agreements have already been concluded.

Your Committee heard that the provision in this bill that would allow the Minister of Transport to make regulations respecting the types of vehicles that may use an international bridge or tunnel may negatively affect the financial position of existing crossings. In response to questions about this concern, federal officials unequivocally stated that the Minister of Transport would divert traffic only to avoid congestion. To quote one official, “redirecting traffic would only be used where there is a need to allow free movement of goods and people.” Your Committee supports the Minister of Transport’s use of this provision to alleviate traffic problems if and when required, but not to interfere otherwise.

Your Committee also heard that the confidentiality of proprietary information that the Minister of Transport may request from international bridge and tunnel owners and operators may not be adequately protected under this bill. During their second appearance before your Committee, however, federal officials assured Senators that the existing federal legislative framework is adequate for protecting the confidentiality of bridge and tunnel owners’ information. To quote one official, “the Privacy Act contains provisions that very effectively protect the confidential information provided to the government.” The official also noted that the purpose of section 51 of the Canada Transportation Act, which stakeholders gave as an example of the type of explicit protection sought, is actually to permit the Minister of Transport to divulge proprietary information, not to protect it. Furthermore, when departmental legal advisors contemplated the particular stakeholder needs under this bill and whether additional protection was needed, they concluded that existing provisions in other Acts were adequate. However, your Committee still questions why the reinforced protection used in the Canada Transportation Act was not included in this bill.

On the question of the federal government’s potential involvement in future international crossing projects, your Committee heard suggestions that the provisions in the bill that allow the Minister of Transport to recommend to the Governor in Council whether or not to approve a project would lead to a substantial conflict of interest for the Minister. On this point, officials noted that Transport Canada currently does not own or operate a single international bridge or tunnel. The existing federal structures belong to Crown corporations, which are autonomous even if the Minister of Transport is responsible for them. To quote an official, “the Minister has absolutely no authority over the day-to-day activities of these organizations, including those dealing with safety and security.” Therefore, given the autonomous ownership and operational arrangements established for existing federal structures, your Committee is confident that the Minister of Transport will not be in a position of conflict of interest in the future. However, the Minister of Transport should be particularly sensitive to any situation where the federal government is in a situation where there is an appearance of conflict, especially when the interests of a private enterprise are at stake.

Finally, your Committee very seriously considered a stakeholder’s allegation that municipalities would not be guaranteed to be heard regarding international crossing projects affecting their community. When questioned on this point, officials explained to your Committee that municipal consultation is obligatory during the environmental assessment process, which would certainly be triggered by a proposal to build a new international crossing, under the Canadian Environmental Assessment Act. Therefore, to impose an additional obligation on the Minister of Transport to consult municipalities in this bill would frustrate the bill’s intent to streamline processes. While a comprehensive framework for municipal consultation exists in other legislation, it should be noted that the bill was also amended in the other place to make reference to municipal consultation. Your Committee agrees that more emphasis was needed on the importance of consulting with municipalities and addressing their concerns, given that bridge and tunnel projects can have a tremendous impact on the urban planning of local communities.