Island Tides: Another Liberal promise about to be broken on Canada’s navigable waters?

Elizabeth May
April 27, 2017

This article originally appeared in Island Tides (April 27, 2017). 

Another promise about to be broken?  Will Liberals restore the protections of Canada’s navigable waters?  

On March 23, 2017, the federal Standing Committee on Transport, Infrastructure and Communities released its long-awaited report on how the Liberals will make good on the promise to repair the damage done by the Harper administration’s assault on the Navigable Waters Protection Act.

The Navigable Waters Protection Act (NWPA) is one of Canada’s oldest environmental laws. Of course, when it was passed in 1882, no one thought it was an environmental law.  It was a key piece of legislation to protect rights of navigation.  As it evolved, over more than a century, it became essential to controlling and assessing how projects impacted both the human right to navigate, as well as the protection of water itself. From 1882 until 2009, the NWPA protected 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 2009, former Prime Minster Harper started the process of weakening it, using the clever maneuver of putting the changes in an omnibus budget bill.  With a minority of the seats, putting unpopular legislation into a budget bill forced opposition parties to support the bill, or bring down the government and spark an election for which they were unready.  Budget bills are confidence votes.  Harper would never have managed to gain opposition party support for weakening the law to protect our waterways.  The 2009 omnibus bill changed the definition of “navigable” from an objective one – “navigable” means waters that can be navigated – to navigable became whatever the Minister of Transportation said it was. In 2012, with a majority in Parliament, Harper didn’t need to put destruction of environmental laws into omnibus budget bills to get them passed.  He had the votes, but putting the gutting of the Fisheries Act, the NWPA and the Canadian Environmental Assessment Act in omnibus bills C-38 and C-45 made the passage fast and the study of the changes woefully inadequate.  In 2012, both budget bills C-38 and C-45 wrecked over a century of environmental laws.

Ideally, the Canadian Environmental Assessment Act, the Fisheries Act, and the Navigable Waters Protection Act should have been restored as quickly as possible, returned to the language as it existed in 2006. I pressed for this soon after the 2015 election. I lament that the advice to the government from a number of national environmental law groups was that the Liberals should take a longer time for consultation.  With the restoration of the 2006 framework of environmental laws, the government could than have subjected them to a review to move to modernize and strengthen our legal regime.  Instead, we have had three separate streams of review – one before the Fisheries Committee, one through an Expert Panel on Environmental Assessment and the last, dealing with the laws to protect Canada’s Navigable Waters conducted by the transport committee.

As David Suzuki and Maude Barlow pointedly noted in their column in the Globe and Mail, the transport committee report was released the day after World Water Day.  And “the recommendations allow the federal government to abandon its responsibilities to protect the 31,000 lakes and 2.25 million rivers in Canada and communities’ rights to navigate these waterways.”

The majority report, written by the Liberal members of the committee, proposes to maintain the structure of the damage done by Harper’s omnibus budget bills.  The winnowing down from every waterway that was navigable, to a handful of listed waterways was wholly indefensible.  But now the committee seeks to defend it.

Rather than restore the original NWPA, thus bringing all navigable waters within the scope of the Act, the committee sets out proposals to make it easier to add named rivers and waterways to the schedule at the back of the act.

The solution is not to make it marginally easier to add waterways to the Act.  It is a clear violation of the Liberal platform and election promises.

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.

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, within the framework of the UN Declaration on the Rights of Indigenous People (UNDRIP 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.

Thus far, the Minister of Transport, the Hon Marc Garneau, has not commented on the committee recommendations.  I have written to urge him to reject the committee report. I have endorsed the NDP dissent.  There is still time to repair the damage Harper did to navigable waters.