Elizabeth May’s Submission in Response to the Review of the Navigation Protection Act

On Wednesday, November 30th, 2016 in Committees, Uncategorized

Elizabeth May has submitted a brief to the Standing Committee on Transport, Infrastructure and Communities concerning the Committee’s Review of the Navigation Protection Act. The aim of this submission is progress in Canada’s environmental laws and traditional rights to navigation. The text of her submission is available below; or, as a PDF download here.

Submission in Response to the Review of the Navigation Protection Act 

To: The Standing Committee on Transport, Infrastructure and Communities
From: Elizabeth May, O.C.
Member of Parliament Saanich-Gulf Islands  

Date: November 30, 2016 

This brief is prepared as a contribution to the Committee’s Review of the Navigation Protection Act. I greatly appreciate that this committee is undertaking a review of this act, and hope that it will lead to progress in Canada’s environmental laws and traditional rights to navigation.

It would have been preferable to reinstate environmental laws as they existed in 2006 and conduct a review and consultation based on those acts.  The current drawn-out consultation process creates the risk of more projects entering a hopelessly flawed process. The longer these flawed and unworkable laws remain, the more new projects start at the front end of an unfixable and unfair process.

Canada deserves better.

C-45 removed protection for navigation for over 98 per cent of Canada’s lakes and rivers.  The process of unravelling navigation protection began with the 2009 omnibus budget bill.  It was in that act that the thin edge of the wedge was driven in.  Instead of the timeworn definition of navigable waters – waters that could be navigated – the 2009 omnibus bill changed the definition of “navigable” for the first time since the 1870’s.  Instead of an objective definition – “navigable” means waters that can be navigated – navigable became whatever the Minister of Transportation said it was.  Then in 2012, in the fall omnibus budget bill, C-45, the other shoe dropped – the definition of “navigable” became whatever the minister of Transportation said it was.

Buried deep in the 400-plus-page omnibus implementation bill, C-45, was the replacement of the 130-year-old NWPA with the Navigation Protection Act. Just as they had done with the Canadian Environmental Assessment Act and the Fisheries Act, the Conservatives removed another legal barrier to their development-at-all-costs agendaThe Conservatives weakened the NWPA in the 2009 budget when they curtailed the heritage rights of anglers, hunters, cottagers, and paddlers to access our streams, lakes, rivers, and other waterways.  Under the previous version of the NWPA, any body of water deemed navigable could be accessed to the high water mark without that being considered trespassing.

Bill C-45 weakened Canadians’ historic right to navigate the lakes, rivers, and streams of Canada without being impeded by pipelines, bridges, power lines, dams, mining and forestry equipment, and more.

In C-45, the Navigable Waters Protection Act of 1882, considered Canada’s first environmental law, was changed – to the Navigation Protection Act.  If a body of water was not mentioned in Schedule 2 on page 424, it was no longer covered under the NWPA.  It was not the water itself, but the ancestral right to navigation that was no longer protected. No longer was a permit process required prior to blocking navigation through bridges, roads or dams. It was nothing less than tragic for the majority of Canadians who love and respect our waterways from coast to coast to coast.

Under the Harper  version, a natural body of water was considered navigable only when the Minister of Transport deemed it so.  The Minister of Transport was also given arbitrary power to exempt certain “works” from assessment or oversight – like dams, bridges, booms, and causeways – without public consultation, transparent disclosure, or a review of any kind.  The Minister could also set up an arbitrary “class system” for waterways, and exempt them from the Environmental Assessment Act (which was also greatly weakened).

With Bill C-38, changes had also been made to the NWPA through the backdoor of amendments to the NEB Act.  Pipelines and power lines were exempt from the provisions of the Act.  Also, the National Energy Board took control over the NWPA whenever a pipeline crossed navigable water. It continues to be a real threat for thousands of our pristine waterways.

As the government reviews the Navigation Protection Act, it is vital to restore the Navigable Waters Protection Act (NWPA), and repeal the 2009 omnibus bill that re-defined “navigable waters” to a matter of ministerial discretion and the 2012 changes in C-45.  “Navigable” must mean any and all waters that can be navigated. The NWPA must be returned to its pre-2006 condition, and then enhanced to properly protect our country’s waterways.

There is a significant issue of constitutional law at stake.  Navigation is an exclusive head of power under section 91 of the Constitution.  Section 91(10) covers navigation and shipping.  What the Conservatives did in C-45 is unprecedented in Canadian history. The Conservative government opted out of an exclusive federal head of power.  The Harper administration abdicated its role under s. 91 (10). 

Navigation has a critical role in Canada’s history. And for First Nations and Metis, navigation of remote unnamed rivers is a constitutionally protected right.  But C-45 has announced open season for bridges, dams and obstructions of all kinds.  Yet, due to the fact that navigation is an exclusive head of federal power, no provincial government can protect navigation.
In addition, the framework of the UN Declaration on the Rights of Indigenous People (UNDRIP), which this Liberal government has promised to implement, should be incorporated in to the NWPA so that development cannot go ahead without the free, prior and informed consent of Indigenous People.

Canadians expect our government to protect our waterways, which are a keystone of our economies, ecosystems, and cultural identities. It is my sincere hope that this committee’s review will restore the vital protection of our waterways.

Conclusions:

  • Restore the Navigable Waters Protection Act to its pre-2006 condition
  • Define “navigable waters” as any and all waters that can be navigated
  • Repeal the amendments to the National Energy Board Act of C-38 that place pipelines as a priority that nullifies application of the NWPA, Fisheries Act or Species at Risk Act.
  • Incorporate the obligation to obtain free, prior and informed consent of Indigenous People in the NWPA
  • Ensure in review of environmental assessment that any obstructions to navigation undergo a thorough environmental assessment, premised on the principles enunciated in Canada’s original CEAA of 1993.

Thank you for the opportunity to provide these points.  I am very happy to meet with the committee and staff to provide more detailed background to any of these points.

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