This is a really long BLOG today since I am attaching hearings from the Senate for your reading pleasure. Print it out and take it home to read after dinner. You will see why we NEED the Senate in Canada. The Senators know what they are doing. If you actually get through all of this, you will see what I mean.
I must be a bit touchy these days but I am so tired of the Star's Mr. Battagello's smarmy remarks about the Bridge Company.
Does the world revolve around the famous Windsor Star reporter? Does everything have to stop just because Dave Battagello makes a phone call? Why couldn't Dave simply write that Stamper was in a meeting and could not be reached.
"Was said to be.." oh that makes Stamper look guilty of something doesn't it. He probably was not in a meeting but terrified to talk to Dave. Imagine, he did not respond immediately to David. He must have something to hide. I just wish that Battagello would just write the facts and stop editorializing in his news stories.
I was amused by his story "Ont. failing Windsor on bridge plan, lawyer says." It looks like the legal beagle, dynamic duo of Francis and Estrin are trying again to tell us what the Federal Government can and cannot do on the border file.
Perhaps they should contact Brian Masse and ask him what the Act says because he took credit for its passing. If there is a problem, then go blame Brian since he was supposed to introduce the City's amendments to Bill C-3 in the House of Commons. Of course, as you will recall when I posted part of the Hearings, Brian was singularly unsuccessful in doing very much that was meaningful to what City wanted.
Councillor Jones asked a question at Council on Monday about what laws apply to international crossings and especially about Bill C-3. This might help him understand how little power the City really has from the Senate's perspective at least. Blame him for the length of this BLOG!
Here are excerpts from the Senate hearings where Eddie and David made their pitch to get amendments to the statute to try to reduce the powers of the Federal Government.
Read for yourself how unsuccessful they were in convincing Senators of their position. There was no way that the Senate would allow some little municipality to undercut the Federal Government's position on the border. Senator Eyton in particular was quite dismissive of the stand that the Mayor was taking.
I must admit I don't understand what Eddie and David are saying now given the scope of the Act as they themselves admitted. It'll be hard for them to argue against themselves. It makes good copy though.
Here's the problem I'm afraid that Eddie has. He must think that the world revolves around him too.
He is not dealing with the Councillors. He is not dealing with Windsor businesses that depend on Administration granting permission for them to do certain things. He's not dealing with citizens who are not getting the full story from City Hall. He is not dealing with the County. He cannot hide behind the Procedural By-law. In other words, he is not dealing with people whom he thinks he can push around just because he is Eddie Francis, the Mayor of Windsor.
Unfortunately for him, he is dealing with the Bridge Company which is not afraid of him. They do understand what their legal position is and are prepared to assert it and to defend it. Just because Eddie says something is so does not make it so as far as they are concerned.
Here's the excerpt... Enjoy.
THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Wednesday, November 22, 2006
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-3, respecting international bridges and tunnels and making a consequential amendment to another act, met this day at 12 p.m. to give consideration to the bill.
The Chairman: Good morning. We are pleased to have as witnesses today the mayor of the City of Windsor, His Worship Eddie Francis, and his legal counsel, Mr. David Estrin. Welcome to our committee. Please proceed with your presentation.
Mr. Francis: Thank you for taking the time to hear from us. I appreciate the opportunity to appear before you to discuss a very important issue to the City of Windsor as it relates to Bill C-3.
First, the issue as it relates to Bill C-3 from the City of Windsor's perspective deals with two provisions in the bill. Specifically, the provision of Bill C-3 in the interpretation section provides:
“international bridge or tunnel” means a bridge or tunnel, or any part of it, that connects any place in Canada to any place outside Canada, and includes the approaches and facilities related to the bridge or tunnel."
The underlying issue is what the intended meaning is behind the phrase "the approaches and facilities related to the bridge or tunnel." It is our respectful submission that some limitations must be placed on these words.
The term "approaches" cannot be interpreted to mean any roadway that leads to an international bridge or tunnel, no matter how far away it may be. I will walk you through that with our PowerPoint presentation. To elaborate on the point, it may be useful to look at Windsor's border and consider it in its historical context.
The second issue I will deal is the obligation of the minister to consult with the local municipality.
As I stated in my introduction, one of our concerns is with the interpretation provision of Bill C-3.
Clause 5 of Bill C-3 allows the federal Parliament to use the federal declaratory power in section 92(10)(c) to declare international bridges to be works for the general advantage of Canada.
The minister appeared before this committee on November 8, 2006. Senator Phalen asked him:
I received correspondence from the City of Windsor, dated September 19, in which they outline their concerns that this legislation ignores the municipality in the decision-making process, even though the municipality will be directly impacted by any changes.
Can you or have you addressed any of the concerns of the municipalities?
The minister’s response to the senator's question was:
At the outset I will indicate to you that of course this is federal jurisdiction...
In our submission, Bill C-3 and the provisions that are being tabled whereby the minister will be provided the ability, as well as, through the operative clauses of the bill, the declaratory powers expanded so as to include approaches and facilities, are inconsistent with the case laws and inconsistent with the historical precedents of Parliament.
As a result, a narrow meaning must be applied to that interpretive phrase. The approaches and facilities relating to the bridge or tunnel must be specifically defined and cannot be broad. Otherwise, and as it currently reads, it would be an unlimited application of a declaratory power, which is inconsistent with the precedents as well as with our understanding of the federal state.
Unfettered use of the power could lead to a gutting of the provincial and municipal authority as it relates to local roads in our cities, towns and provinces. That is why past acts have included the provision that municipal consent be sought when talking about construction of facilities.
We do support this bill. There are a number of good elements in it. I have raised one concern we have with regard to the definition of "approach records and facilities."
The second issue I wish to bring to your attention which requires amendment is the assurance that there is consultation with the City of Windsor. It is particularly important that the historic rights of the city be maintained given the private interests at play with regard to the construction of new facilities.
On November 8, the Honourable Minister of Transport stated the following:
The government has closely demonstrated its willingness to consider stakeholder input, and the House of Commons amended the bill during third reading in response to concerns raised by a municipal government.
The issue dealt with the federal government obtaining municipal input into the decision-making process for construction, alteration or change of ownership in an international bridge or tunnel.
This bill as amended includes provisions for the Minister of Transport to consult with other levels of government or individuals who may have direct interest in the matter.
While the city appreciates the minister's understanding that there is a need to consult with municipalities, the amendment as currently written does not reflect this need. Specifically, paragraph 15(2) stipulates that the minister should consult the local authorities or any interested party only if, according to the circumstances, he finds it necessary to do so.
In closing, I wish to turn your attention to our written submissions. We are seeking two amendments. On page 5 of our written submissions we set out the amendments we are requesting to the bill. We wish to have clause 2 amended to amend the definition of "international bridge or tunnel" to clarify that approaches and facilities are those in the immediate area of the crossing, so as to avoid constitutional overreaching. We have provided language in that regard.
The second amendment we are seeking is to clause 8(4). This is to preserve the historical context of the legislation and to preserve the rights and role of municipalities as they relate to roads and traffic crossing through the different jurisdictions.
The Chairman: Thank you, Mr. Mayor.
One of the main objectives of Bill C-3 is to confirm the federal government's responsibility for international bridges and tunnels. Under our Constitution, undertakings that connect one province with another or extend beyond the limits of a province fall within the exclusive jurisdiction of the federal government.
In paragraphs 9, 10 and 11 of the document you submitted to us you say that the federal government lacks the constitutional jurisdiction to authorize how the facility will be integrated into local planning.
Bridges and tunnels are works for the purpose of the Constitution Act, 1867. Section 91(29) and 92(10) grant the federal Parliament jurisdiction over such works. As well, clause 5 of Bill C-3 makes it clear that all international bridges and tunnels are works for the general advantage of Canada.
The footnote on page 2 of your document lists court decisions in support of your argument. For instance, the Supreme Court of Canada, in the United Transportation Union decision, found that the Central Western Railway was not under federal jurisdiction. The facts in the United Transportation Union case were very different from the question of international bridges and tunnels.
If Bill C-3 is adopted as is, will the City of Windsor consider making a court challenge on constitutional grounds?
Mr. Francis: Thank you for the question. The position of the City of Windsor is consistent with case law as well as legislation. On your earlier question with regard to facilities, it is not us challenging the authority of the federal government to have oversight over the crossing and even the plaza locations. Our area of concerns is the broad approach that has been given to the approach roads. There is no strict definition given of where they end and where they begin, and where the jurisdiction is. There is a significant amount of case law that underlies that premise.
I am not challenging the declaratory power under the Constitution that allows the federal government to take charge over international traffic. Our concern, as this photogrpah depicts, is the local roads. What limitation will be applied to the ability of the federal government to define how many kilometres of the roads are part of the facility?
The case law and our own precedents clearly show that those are of a provincial nature. Those are thing to which the declaratory power will not be able to be applied, in our humble submission. We recognize that that may be the reason the government in 1921 chose to include specific language to prevent conflict between the use of the declaratory powers and intrusion into provincial or municipal jurisdictions.
Our issue is with the approach roads. Is the City of Windsor prepared? We want to work with the government and will continue to do so, but issues of local concern will be raised in the proper forum. This is not only an issue for Windsor; this will affect cities across the country.
The Chairman: You mentioned "the proper forum." What is the proper forum? Is it a court challenge?
Mr. Francis: I hope it would not have to go that far, but if constitutional issues must be raised, we will exhaust those options.
Senator Tkachuk: To ensure that I am clear on the status quo, if the Government of Canada wished to do something, what would the process be? Since that the Windsor-Detroit Tunnel is half owned by yourself, obviously nothing would happen without the city being involved. That is not an issue. However, the Ambassador Bridge, which is operated by the Canadian Transit Company is an issue.
Mr. Francis: Based on our submission today it is not an issue. Our issue is the language in Bill C-3. Without strict definitions applied to the language, especially the interpretive provision, our issue is with the local roads that run through our city to any crossing, not only today but in the future. Historically Parliament has recognized that local roads fall under provincial jurisdiction and municipal authority.
Senator Tkachuk: Let us say that in the absence of this bill the government decided to change traffic routes. What is the current process for that? What would they have to do? Would they not have to consult with the City of Windsor? Do they not need your permission to do anything?
Mr. Francis: Status quo, they would.
Senator Tkachuk: Why is that?
Mr. Francis: Because former legislation has established that precedent. That is one issue. The second issue is that the status quo would allow them to do that because, under the separation of responsibilities provincially, that falls under the jurisdiction of the province.
Senator Tkachuk: They would have to deal with the province on all those issues?
Mr. Francis: Status quo. This bill would provide them the opportunity, because of its broad definitions, to sidestep that type consultation.
Senator Tkachuk: Even the provincial jurisdiction?
Mr. Francis: In our respectful submission, yes.
Senator Tkachuk: If this bill were passed without your amendments, what do you think would happen?
Mr. Francis: If it were passed without our amendments, it would allow the minister of the day, at his or her discretion, to declare, for the general works and undertakings of Canada, that a particular approach road 10, 20 or 50 kilometres from the border was a necessary part of the facility and could declare for use by international traffic, without input from the municipality, and it would be binding on the province.
Senator Tkachuk: You do not think that, under the bill as it currently, the minister would deem this an important thing to consult you on, considering it is an approach road going through the City of Windsor?
Mr. Francis: I would hope that it would be of such critical importance that we would not be here today asking for the amendment to ensure that its continuity is enshrined in legislation.
It is surprising to me that the language in this bill leaves it to the discretion of the minister to consult, if the circumstances so allow them, with local municipalities. However, when it comes to tolls and to private operator, it says "shall consult." There is no discretion. There is a stark contrast there. When it comes to cities, it is at their discretion, but when it comes to the private sector they must consult.
We are only asking to have continued that which has been recognized in legislation since the early 1920s and to ensure that that the municipalities, which have jurisdiction for roads and for the local communities, are consulted not at the discretion of the minister but mandatorily.
Senator Tkachuk: Is the fear that, under the current bill, the minister would not see it necessary to consult or that you do not find the provision sufficiently explicit?
The only reason that provision is there is if it affected the city of Windsor; otherwise, why would it be there? I do not know why you would worry that the minister would not consult. How can he go about doing something without you being involved in it in the city of Windsor?
Mr. Francis: The way Bill C-3 is drafted will provide him or her the ability to do that.
Senator Tkachuk: They can expropriate property?
Mr. Francis: Yes. They will declare it as a general work undertaken for the Government of Canada and they can expropriate property. Right now, status quo, they not only have to consult with the city but they need to seek the agreement of the city as it relates to our municipal bylaws and other jurisdictions.
Senator Tkachuk: So I make it clear, they can expropriate property anyway, correct? For any reason, any city.
Mr. Francis: Yes.
Senator Tkachuk: Do they?
David Estrin, Legal Counsel, City of Windsor: The special parliamentary legislation that created the facilities that now exist in Windsor specifically says what those undertakings can do. They approved a specific bridge and a specific tunnel and, by reference, incorporated the expropriation provisions of federal legislation for those purposes. As things are today, without Bill C-3 there is no authority to do any other bridge or tunnel. Without Bill C-3, there would have to be another act of Parliament.
Senator Tkachuk: That is right.
Mr. Estrin: With Bill C-3, it is meant to facilitate changes to bridges and tunnels. As the mayor said -- and I think you are also getting at this -- if a tunnel or a bridge were authorized under the new legislation, the powers of expropriation would come to it under this bill. You come back to the question of the definition: What are the approaches and the things that are necessary to go with the bridge and tunnel? The city does not quarrel with the bridges or tunnels, it is the definition found in clause 2 of the proposed bill. If you look up the term "international bridges and tunnels”on page five of the written submission, you will see” International Bridge or tunnel means a bridge or tunnel and includes approaches and facilities." It is the concern that "approaches and facilities" is very vague. That is why we are suggesting that it is in the interest of this bill constitutionally, as well as in the interest of municipalities like the see city of Windsor, that you say what you mean. That is, that these are approaches and facilities directly related to the bridge or tunnel and are in the immediate vicinity thereof but excluding local or provincial roads. That would help keep the Constitution respected and ensure that the consultation was had.
The Chairman: Did you appear of the House of Commons committee to submit amendments?
Mr. Francis: We provided written submissions.
Senator Phalen: When I raised the questions last week about your legislation, the bills that you quoted, 1927 and 1921, witnesses before us indicated to me that they spoke to you about your concerns. I then asked them, kind of jokingly, "Were you happy?" The answer I got was that, "Additional consultations were added to this bill at the request of the city of Windsor in two or three different clauses to give another advice to Windsor in the consultation process. I do not know if they are happy, but I would argue we have accommodated the request very well." What were the accommodations?
Mr. Francis: I have not spoken with the minister, but I believe when it came to the House they inserted the provision that "at the discretion of the minister, they shall consult."
Mr. Estrin: May consult.
Mr. Francis: Yes, "may consult."
Senator Phalen: That leads me to another part of a question. He said in answer to the same question that, "The concern in Windsor, as you spell it out in their letter, they would like to have -- pause -- I do not want to call it a veto power -- pause -- a right to approve construction and operation. The way the government addressed that concern was through amendments that were made in the House committee to have the minister consult with the municipalities that are implicated through the construction operation."
It appears to me that you are saying that "consult" is not a strong enough word. Is that correct? Are you saying that "consult" should be "shall"?
Mr. Francis: Yes, it should be "shall". "Shall consult; shall not be at the discretion."
Senator Phalen: Is that what you are saying?
Mr. Francis: That is part of it. We are seeking to maintain what has been provided not only to the city of Windsor but also to municipalities across this country. Specifically in the city of Windsor's case, it was recognized in 1921 -- and subsequently in 1928 in every other act -- that municipal authority and municipal approvals would need to be satisfied as it deals with issues of a local nature. It is our submission that Bill C-3 has failed, in its definition and interpretive provision, to specifically identify what is meant by "approach roads." That broad definition violates constitutionally what otherwise would be afforded to the municipality.
Senator Phalen: If they are forced by legislation, and if the clause says "they shall consult," that does not mean you will get satisfaction; it only means that they have to talk to you.
Mr. Francis: That is right.
Senator Eyton: To me, the bridges and tunnels that are the subject of the act are clearly vital national works. They have an importance much beyond the City of Windsor, and they have a terrific importance for southern Ontario. I think something like 25 per cent of the goods traded between Canada and the U.S. go over the single bridge, the Ambassador Bridge. It is clearly a national work. That says to me it is clearly federal jurisdiction. It is clearly a federal responsibility to bring in Bill C-3. In fact, I fail to understand why it was not brought in many years ago. In particular, it seems to me in the circumstances, the federal government has paramountcy. It can consult or not. Obviously, consulting is a good thing; it is better to coordinate if it can, but essentially it should have the last word.
I have looked at the definition. In your submission, you refer to the 1921 act, and it is interesting that, even then, when it was relatively less sophisticated, the provision read
The Company shall not construct or operate, any of the works mentioned in section eight of the Act along any highway, street or other public place …
-- and I emphasize "or other public place" –…without first obtaining the consent, expressed by by-law, of the municipality having jurisdiction over such highway, street or other public place, and upon terms to be agreed upon with such municipality...
Then it adds:
…and failing such consent then upon such terms as are fixed by the Board of Railway Commissioners for Canada.
Even back in 1921 there is a provision saying, "We will try to work it out but essentially, if there is a disagreement or dispute, then it will go to a federal body, that is, the Railway Commissioners for Canada.
The point was made then, but if you accept my argument that paramountcy matters, then the federal government was saying, "We would like to work with you if we can, but if we cannot, there is a final opinion that goes to a federal authority."
The definition in Bill C-3 of "international bridge or tunnel”
…means a bridge or tunnel, or any part of, that connects any place in Canada to any place outside Canada…
It then goes on to read:
…and includes the approaches and facilities related to the bridge or tunnel."
That is a much narrower definition than that in the 1921 act, where it just said "or other public places," without any definition. Under Bill C-3 there has to be a direct relationship.
Mr. Francis: Thank you for those points. On your last point, the difference between Bill C-3 and the interpretive provision you read in 1921 is that there was no discretion given to the minister. There was no declaratory power given. It was that you must sit down and you must talk.
Senator Eyton: I was focused on the definition of bridges and tunnels. We can get on to the approval section.
Mr. Francis: However, there was a mechanism in place that would not give him or her sweeping declaratory powers to come in and designate approach roads. The bridge and facilities were defined as bridges and facilities. This piece you just referenced --
… “international bridge or tunnel” means a bridge or tunnel, or any part of it, that connects any place in Canada to any place outside Canada, and includes approaches and facilities…
-- we submit that that is a broad category. That is sweeping.
Senator Eyton: It says bridges and tunnels "related to."
Mr. Francis: It includes “the approaches and facilities related to the bridge or tunnel.”
Senator Eyton: It reads "related to." In the previous legislation, it simply said "or other public place."
Mr. Estrin: Senator, I think the reason that it was not a concern then is because it was a specific bridge or a specific tunnel, as opposed to legislation that allowed anything to be built anywhere in Canada, as this legislation does, without really any consultation.
Senator Eyton: I hear you. I do not necessarily agree, but I hear you. Then I will go on to your own suggestion on definition of bridge and tunnel under your submission.
You try to be more particular. You say "directly related," which I guess is more focused and precise, "to the bridge or tunnel." You then go on to say, "and in the immediate vicinity thereof," again narrowing it down a little bit, and then you go on to say, "but excludes local or provincial roads."
By any stretch of the imagination, it seems to me that guts the entire definition of bridges and tunnels. In fact, it allows therefore the municipalities or the provinces to assert that their roads have to be excluded from the act.
It seems to me it makes the definition of an international bridge or tunnel meaningless with that last tag, not necessarily with "directly related" or not even "in the immediate vicinity." Those seem to be sensible suggestions, but it seems to me that the last guts it.
Mr. Francis: We provide that to illustrate what we are asking for. There needs to be some limitation placed on those words. There needs to be a limitation placed on the word "approaches." Our submission is that the interpretive provision that references "approaches" cannot be interpreted as "any roadway." We are saying that there needs to be some restrictions put in place.
I agree with you, in terms of the jurisdiction that the federal government has over general works for the advantage of Canada -- the bridge, the plaza, the facility, and the immediate area -- but the issue for us is defining what "approach roads" means. Clearly, a 20 kilometre road removed from the facility does not fall within the federal jurisdiction.
Senator Eyton: What you have submitted is overreaching by a good deal.
Mr. Francis: We provided as an example to illustrate the point that some restrictions need to be put on that operative provision.
Senator Eyton: I go on to your next submission, which was the addition of section 8(4). Again, I would make the same comment. There may be some legitimate concern about the consulting requirement built into Bill C-3. That is fair enough, but enacting anything like your suggestion would in fact gut the entire bill. Again, it is overreaching. Would you make the same response?
Mr. Francis: We are trying to provide language that would be consistent with the previous acts that have established the crossings in the area, understanding that the challenges that this bill will take the authority from the legislator and will put the authority in one minister. We are trying to put the protections in place that were protections that we otherwise could have been afforded through legislation through special acts.
I do not know if Mr. Estrin has anything to add.
Senator Eyton: I do not want to go through it in detail, but there is the notion that the federal government in that circumstance would be subject to arbitration or to many other tests that you have included in here.
Mr. Francis: You earlier referenced the 1921 act, and there was a mechanism whereby, if the municipality and the federal government could not agree, there would be some third party that would provide an opinion. That same body is no longer in existence.
Senator Eyton: That third party was a federal body.
Mr. Francis: At least, it is a body. We are trying to suggest some mechanism be put in place so if there is a dispute, there is a mechanism that will allow for a resolution of that dispute by someone independent, whether it is federal or not, a body there that would actually hear the dispute and then provide a decision. Our position is that if that body were still around, we would have suggested that earlier body be the dispute resolution mechanism, but our language is just to provide some dispute resolution mechanism.
Senator Eyton: I can see where you could make some smaller amendments to Bill C-3 and make more precise the definition of international bridge or tunnel so that it answers at least part of your concern. I can see where you might want to change the consulting provisions that are now I think mostly in section 7 (1.1), to make that a little more mandatory and more direct. It is a very subtle nuanced kind of approval.
With respect to both your submissions, they reach way too far, and, in my view, are not workable.
Mr. Francis: I appreciate that, senator. That is the purpose of our visit here this afternoon. Any assistance that we could gain by making those amendments to deal with those issues, whatever that specific wording may be, so long as the principles or the concerns that we have raised have been dealt with, would be greatly appreciated.
The Chairman: Mr. Mayor, we were pleased to accommodate you and hear from you today. Unfortunately, you could not do it in the House of Commons but we are quite pleased to have had your presence here. Feel free to send us any other information you think necessary to our work. We will be studying this bill very closely and seriously. We thank you again for your presence, and Mr. Estrin, to our committee.
The committee adjourned.
