Lake Ontario Waterkeeper comments on Review of Toronto Port Authority Terms of Reference
Note: Our original submission can be found online.
Executive Summary
Lake Ontario Waterkeeper has identified four features of the legislation that have caused problems in the Toronto Harbour. These features are as follows:
1. The mandate of the CMA is too narrow.
2. The requirement that the TPA be financially self-sustaining further limits its activities.
3. The agency status of the TPA renders it unaccountable to the public.
4. Canadian Environmental Assessment Act Regulations fail to create a clear process for public participation or oversight.
These four problems have resulted in a lack of accountability of the TPA to the public and a lack of compatibility of the TPA with the city as a whole. These problems are systemic and result from the structure of the scheme and the letters patent.
Background:
Legislative history of the TPA
The Toronto Port Authority was established on the 8th of June 1999, under the authority of the Canada Marine Act ("CMA"). The TPA replaced The Toronto Harbour Commissioners, ("THC") which was constituted as a corporation under the Toronto Harbour Commissioners Act, 1911.
Prior to the enactment of the CMA public harbours were governed by the Public Harbours and Port Facilities Act ("PHPFA"). The PHPFA envisioned port authorities that worked together with municipal governments and residents to govern port activities. For example section 7 of the 1911 Act provided for five commissioners, three of which were to be appointed by the City of Toronto and section 15 provided that the Corporation would administer all lands "on behalf of the City of Toronto". When the airport lands were placed under the administration of the THC under the Toronto Harbour Commissioners Act, 1939 for the creation of the Toronto Island Airport, it was on behalf of the City of Toronto and subject to the terms of an agreement with the City in the schedule to the Act. The PHPFA scheme also included residents. For example the PHPFA provided that:
.3. (1) It is hereby declared that the objective of the national ports policy for Canada is to create a system of public harbours that (a) is an effective instrument of support for the achievement of Canadian international trade objectives and of national, regional and local economic and social objectives;
An identical provision remains in the current Harbour Commissions Act which continues to govern those commissions that were not converted to port authorities under the CMA. This scheme permits commissions to regulate land use generally.
With the enactment of the CMA in 1999 port authority activities were limited to other matters of core federal jurisdiction such as shipping, navigation, transportation of passengers and goods and storage and other activities necessary to support port operations. Section 28 provides:
28. (1) A port authority is incorporated for the purpose of operating the port in respect of which its letters patent are issued and, for that purpose and for the purposes of this Act, has the powers of a natural person. (2) The power of a port authority to operate a port is limited to the power to engage in (a) port activities related to shipping, navigation, transportation of passengers and goods, handling of goods and storage of goods, to the extent that those activities are specified in the letters patent; and (b) other activities that are deemed in the letters patent to be necessary to support port operations. (3) The activities that a port authority may engage in under paragraph (2)(b) may be carried on by the port authority directly or through a wholly-owned subsidiary of the port authority. The port authority and the subsidiary are not agents of Her Majesty in right of Canada for the purpose of engaging in those activities. (4) A port authority shall not carry on any activity or exercise any power that it is restricted by its letters patent from carrying on or exercising, nor shall it exercise any of its powers in a manner contrary to its letters patent or this Act.
The letters patent of the TPA provide in article 7.1 that the TPA may undertake the activities in s.28 to the extent that they are in connection with
7.1(c)(iii) (A) uses related to shipping, navigation, transportation of passengers and goods, and storage of goods; (B) provision of municipal services or facilities in connection with such federal real property. ... (D) government sponsored economic development initiatives .... (i) the operation or maintenance of a marina, floatplane airport, heliport, hydrofoil terminal, bus depot, railway, cruise ship passenger terminal (i) within the port or (ii) within the City of Toronto if for users of the port...
Under article 7.3 subsidiaries may engage in activities necessary for supporting the other port operations (which are all transportation related) including
7.3(m) carrying out of the activities including the provision of such services as follows: (vii) multi-modal facilities and services; outside the port or in connection with persons who are not users of the port.
With the sole exception of article 7.3(m) the letters patent permit the TPA to undertake the operation and maintenance of airports, and other transportation only if it is for users of the port. Under article 7.3 of the letters patent, the TPA itself is not allowed to engage in activities that have as their purpose of providing services to non "users".
Section 5 of the CMA defines "users as "a person that makes commercial use of, or provides services at, the port". The CMA has a transportation-oriented focus that forces the TPA to engage in activities that favour industrial land uses for persons who fit within the user definition only. For example, families who use free or city-run harbourfront recreational facilities such as centre island park are not "users". Residents who live in the waterfront area are not "users". In Schedule D of the letters patent, "users" are set out to include at the broadest, hotel operators, tour boat operators and retail businesses. The residents and customers who use the goods and services of those users are not included. The City and the province are also not "users".
The Problems:
The mandate of the Toronto Port Authority is too narrow under the CMA
Ultimately, the structure of the CMA scheme favours the creation of infrastructure for industrial harbour users over other harbour projects. This is an anti-social mandate. The structure of the Act and the letters patent are very inhibiting to the TPA. It prevents the TPA from undertaking projects for, or even taking into consideration the needs of any non-commercial use of the harbour, including the City and residents.
The definition of "user" in the CMA envisions harbours only as transportation hubs, primarily for shipping and railways. While some harbours included in the CMA may be primarily used for transportation uses, this vision ignores completely and absolutely recreational and environmental importance of harbours to local residents by excluding these interests from the mandate of port authorities.
Ports, especially the Toronto port are multi-stakeholder environments with municipal, recreational, tourism and many other interests. Previous federal statutes such as the PHPFA recognized this. Section 6(1) of the PHPFA provided for resident advisory groups to assist the Minister in administering public ports. The City was once in control of the Toronto Harbour Commission. There is no similar protection for competing uses in the current CMA scheme.
The requirement that the TPA be financially self sustaining further limits its narrow mandate
The narrow mandate of the TPA is exacerbated by the requirement that port authorities be financially self-sustaining. Section 49(3) of the CMA provides that the fees charged to “users� of the harbour must allow port authorities to run on these fees alone. This is an incentive for the TPA to promote transportation activities for which it can charge fees, potentially at great capital costs and without any social or economic need.
The requirement that port authorities be financially self-sustaining is harmful to the public interest. It promotes the interests of commercial users over other users. It would have this effect even if the definition of "users" was changed. It forces the TPA to engage in activities solely for the purpose of obtaining revenue. The narrow mandate means that the TPA has extremely limited options when it seeks new sources of revenue. The CMA scheme fails to treat public harbours as a valuable investment that should be made in the public interest.
In Toronto, this provision has been counterproductive. It has acted as an incentive for the TPA to engage in capital projects that happen to fit within its mandate in order to create new sources of revenue. These projects have not produced the anticipated returns because they do not reflect economic and social needs in the area.
Agency Status exacerbates the lack of accountability and causes confusion
Section 7(1) of the CMA provides that a CPA is the agent of Her Majesty the Queen in right of Canada for the purposes of shipping, navigation , transport, and the handling and storage of goods. When a CPA conducts activities that are indirectly related to these purposes it is not acting in an agency role. The TPA conducts the vast majority of port activities as an agent of the Crown.
Agency Status is used to shield the TPA from Provincial laws
A 2003 Transport Canada Guidance Document indicates that agency status provides the TPA with the "benefit" of not being subject to municipal laws and provincial environmental and other regulations. The TPA land use plan indicates that the TPA will have "due regard for" the City of Toronto Official Plan, but it does not commit the TPA to comply with municipal planning.
Lake Ontario Waterkeeper submits that provincial laws of general application - including municipal official plans under the Planning Act and provincial environmental laws – do apply to the TPA, notwithstanding its status as an Agent or "servant" of the Crown under applicable statutes. Provincial laws bind the Crown, Federal or Provincial, including its agents. Nevertheless the belief that the TPA is outside the scope of these laws persists.
The letters patent provide for the TPA to create a land use plan. Due to the narrow mandate of the TPA, this land use plan provides that the TPA will facilitate recreational activities on the waterfront only to the extent these are "consistent with" its airport responsibilities. This means that when contemplating the fixed link for example, the needs of recreational harbour uses like Harbourfront Centre, the Music Garden and residents who may have noise-related concerns with airport traffic are rendered irrelevant to the TPA's interpretation of its mandate and plans.
Canadian Environmental Assessment Act ("CEAA") regulations fail to create a clear process for public participation or oversight for the TPA.
The EA process is unclear
The TPA is subject to the Canada Port Authority Environmental Assessment Regulations by virtue of s.9(1) and s.59(k) of the Canadian Environmental Assessment Act ("CEAA"). These regulations provide fewer procedural rights to the public for comments on proposals by the TPA. For example under s.11(1) of the regulations the public only has an opportunity to comment if in the opinion of the port authority there are "special circumstances" that would make the project of interest to the public. However the regulations under the Act are not a complete code, and do not exempt port authorities from the Act as a whole. The TPA is still subject to other provisions of the Act, such as the requirement to maintain a public registry under s.55(1) of the CEAA. It is not clear what, if any parts of the CEAA the regulations are intended to supercede.
For example, in 2003, during the EA for the fixed link to the city centre airport, the TPA failed to maintain a public registry in accordance with the Act. Without a registry, the public was denied access to documents at times and was therefore unable to make meaningful comments. During that EA the TPA refused to answer numerous questions from the public and failed to respond meaningfully to comments.
Agency status and the narrow mandate of the TPA are constraining when the TPA is conducting an EA. The narrow mandate of the TPA limits its consideration of alternatives in its Environmental Screening Report. This prevents the TPA from considering alternatives that may be beneficial to residents and other non "user". The TPA's belief that it need not consider land use conformity or provincial environmental laws takes this narrow mandate a step further, rendering the EA a mere formality instead of a tool for improving its projects.
Federal departments and agencies fail to give adequate oversight to the TPA
Another example of the gaps and problems created in this scheme is the omission of clear oversight provisions for Federal Agencies. Many activities of the TPA require environmental and other approvals by federal departments. Normally the CEAA begins with an application for approval under some other statute, and the EA process is triggered as a precursor to that approval. The department that would give approval is normally the “Responsible Authority� for the purposes of the CEAA. For example, the fixed link proposal required authorizations under the Navigable Waters Protection Act and Fisheries Act. The Department of Fisheries and Oceans issues these approvals, and should be a responsible authority under s. 11(1) of the CEAA:
11. (1) Where an environmental assessment of a project is required, the federal authority referred to in section 5 in relation to the project shall ensure that the environmental assessment is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made, and shall be referred to in this Act as the responsible authority in relation to the project.
When the fixed link EA was conducted in 2003, LOW confirmed that there was no responsible Federal Authority. The regulations applying to port authorities under the CEAA do not exempt proposals by port authorities from s.11 of the Act. In spite of the legal obligations of the responsible authority under the Act, the Federal Department of Fisheries and Oceans was not listed as a responsible authority and merely sought to "give input" to the TPA. The oversight role of a responsible authority is essential to ensuring that the project proponent/permit applicant completes the EA in compliance with all applicable legislation. This includes insuring that the proponent
a) establishes and maintains the public registry b) requests that the Minister of the Environment refer the project to a review by mediator or panel c) accurately determines the scope of the EA d) makes a determination on the impact of the project
If a project is approved, responsible authorities are charged under the CEAA with ensuring that all appropriate mitigation measures and follow-up programs are implemented.
Normally, the EA process would go to some length to force the responsible authority and the proponent to consider and mitigate the impact of transportation infrastructure expansion on both the environment and all users of the harbour. At a minimum then, the EA processes in place must involve the meaningful oversight of Federal Agencies to ensure that the TPA environmental screening report does include the interests of non “users� under the CMA. Preferably however, the CMA would be amended to include stakeholders whose needs are considered under the CEAA to make the acts fully compatible.
The lack of a flexible mandate is compounded severely by the lack of any Federal oversight in the conducting of its EAs. As an arms-length agency it is not responsible to or accountable to the public for its conduct during the EA process. There is therefore no one during the EA process to make truly political decisions and trade-offs about the proposal.
Instead, under its CMA mandate the TPA must give priority to the interests of transportation infrastructure, often at the expense of all other harbour users. It cannot therefore engage in a neutral EA process and it understandably becomes disinterested in the concerns of other harbour users.
Conclusion and Options
The frustration of other harbour users is the result of a Port Authority mandate that excludes non industrial, non commercial harbour users. This situation is worsened by the lack of oversight from accountable political decision makers, and the importance of financial considerations.
If the TPA weighed the concerns of other users and modified their proposals accordingly they would arguably be outside their mandate under the CMA. The TPA is placed in what may be a difficult conflict when it even attempts to engage with non "users" as part of the EA process. It is not difficult to understand why the TPA might become uninterested or practice avoidance under these circumstances.
The Toronto Harbour is too important to the City of Toronto to be reduced to a dock and an airport by the Toronto Port Authority. The people of Toronto have a vision for the waterfront, a vision that is constantly frustrated by systemic problems in the Canada Marine Act. In order to resolve the conflict over the Toronto Harbour, Lake Ontario Waterkeeper offers the following options:
Options to improve the CMA:
1. Expand the definition of "user" in s.5 of the CMA to include non-commercial users of public harbours.
2. Broaden the mandate of the TPA to include such activities as furthering the interests of other federal and provincial agencies and departments who have interests in the harbour.
3. Require port authorities' land use plans to conform to municipal official plans and the Planning Act generally so that their activities could be integrated into the wider local land use planning process.
4. Under the CMA and the TPA letters patent, require the TPA to comply with all municipal, provincial and federal environmental laws to provide further clarity.
5. Eliminate the requirement that the TPA be financially self-sustaining above all else.
6. Replace the CEAA port authority regulations with the usual CEAA process.
7. Consider devolution of the TPA to the relevant provincial and municipal authorities.
Note: Our original submission can be found online.
