Budget Bill Treacherous to Navigation

On Thursday, October 18, Jim Flaherty tabled yet another Budget Omnibus Bill. C-45 has some similarities with last spring’s C-38. Both are omnibus bills. Both purport to implement aspects of the March 2012 budget. Both include measures never mentioned in the budget. Both are over 400 pages long. This one is similarly branded as Jobs and Growth Act 2012. But unlike the spring omnibus bill, C-45 came with lots of advance hype—leading me to expect it would do less damage than C-38, which arrived by stealth.

It could hardly equal C-38 in negative environmental impact. There are only so many environmental laws to be trashed. With the Fisheries Act gutted and the Canadian Environmental Assessment Act already eviscerated, and changes to give pipelines priority over navigable waters and endangered species, the remaining environmental laws are not a long list. There’s the Species at Risk Act, the Canadian Environmental Protection Act (CEPA), which deals primarily with toxic chemical management, and the already damaged Navigable Waters Protection Act.

There had been many rumours last spring indicating that the Species at Risk Act (SARA) would be included in the next omnibus bill and for similar treatment. Then, in late summer, it was reported that Environment Minister Peter Kent would introduce stand-alone legislation on SARA. Apparently, the provinces were unhappy with the extent of damage and change in SARA. It was not ready in time for C-45. I fear that SARAwill be wrecked soon, but at least it will receive the consideration accorded a piece of legislation in its own right.

Thus far, it seems that Stephen Harper does not have CEPA in his sights, but he clearly wants to call a full retreat on federal responsibilities over wild areas, streams, fish habitat, and the rules that require a full understanding of what is happening to nature due to federal projects. The Navigable Waters Protection Act (NWPA) was the big loser in this Act.

C-45 is the third omnibus budget bill introduced under Prime Minister Harper to take aim at this venerable piece of legislation. It was originally passed in 1882, when Sir John A Macdonald was Prime Minister. It applied to any water in Canada considered ‘navigable’. Until Stephen Harper came along, ‘navigable’ meant capable of navigation—by freighter or by canoe. But in 2009, in Harper’s first omnibus budget assault, the meaning of navigable was altered to whatever the Minister says it is. Not content with that weakening, three years later, C–38 took another run at the NWPA. As you may recall, ‘pipelines’ were excluded from the definition of ‘works or undertakings’ that block navigation. Thus the NWPA was trumped in any instance when a pipeline might impede navigation.

It would have seemed that his work was done, but the Prime Minister was not content. Along came C-45. In this omnibus bill, the Act is renamed. No longer the Navigable Water Protection Act, it is now the Navigation Protection Act. The meaning of ‘navigable’ has been fully destroyed. It has been reduced to a list: three oceans, 97 lakes and 62 rivers. If a waterway is not listed by name in the schedule to the Act, it no longer has any rights to navigation. It no longer requires a permit from the Minister of Transport before impeding navigation. Considering that Canada has tens of thousands of rivers and millions of lakes, the list produced is stunningly inadequate. While it is true that, depending on the jurisdiction, other laws may be in place to protect aspects of waterways, the right to travel by waterway (a limited right admittedly since the Minister of Transport could grant permits to reduce navigation) is now gone for 99% of our inland waters.

Provinces will usually have some requirements for permits before rivers can be dammed or bridges constructed. But there are gaps. And certainly the federal responsibility for navigable waters, one stemming from our Constitution, has been made a mockery. For the first time in Canada’s history, most of our waterways have been removed from federal oversight. (You can find the list of waterways on my website https://www.elizabethmaymp.ca/is-your-lake-safe.)

Given the removal of protection for navigation, C-45 includes amendments to the Fisheries Act. To protect the ability of fish to swim through rivers no longer protected by the NWPA, the Fisheries Act is amended to prohibit the use of fishing gear (weirs, nets, seines) over more than two-thirds of the width of a waterway.

The bulk of the Act deals with changes to pensions. Due to a joint effort by Opposition Parties, the reduction of benefits for MP pensions moved quickly through unanimous consent. As a result, those portions of the Actare considered passed as C-45a. Meanwhile, pension changes affecting thousands of public sector workers remain to be reviewed.

Other changes are made to the Canada Labour Act, changing the approach to holiday pay, temporary steps to refund small business tax credits, changes to the Indian Act, changing voting procedures to reverse a lease, and the elimination of several agencies: the Hazardous Materials Information Review Commission, the Grain Appeals Tribunal, the EI Financing Board.

It also authorizes the new Windsor-Detroit bridge, and that project’s exemption from the Fisheries Act, NWPA (since the Detroit River is one of the listed 62), SARA and CEAA.

There are many things yet to receive attention in C-45. One will require foreign visitors, even tourists, to fill out forms requiring more information, including their state of health.

I will keep taking a fine-tooth comb to this bill. I am confident I will find nothing as outrageous as the destruction of Sir John A Macdonald’s law to protect navigable waters.

Elizabeth May is the Leader of the Green Party of Canada and the Member of Parliament for Saanich-Gulf Islands.
Originally printed in the Island Tides.