Navigable Waters Archives | Elizabeth May

Parliament: Will Canada’s lakes and rivers remain unprotected under weak Transport Committee recommendations?

Elizabeth May — Wed, 10 May 2017 20:17:53 +0000

Elizabeth May

Mr. Speaker, in the Liberal platform, it was promised that there would be action on the changes that Stephen Harper made in the omnibus budget bills, particularly the elimination of the Navigable Waters Protection Act. In fact, their platform said, “We will review these changes, restore lost protections, and incorporate more modern safeguards.” Unfortunately, the transport committee came to egregiously weak conclusions, recommending, essentially, keeping in place the Harper regime. Can the Prime Minister commit to restoring protections to Canada’s navigable waters?

Justin Trudeau – Prime Minister

Mr. Speaker, as a government, and personally as a paddler, we are committed to promoting Canada’s sustainable economic development while maintaining a safe transportation system and the protection of our lakes and rivers. Therefore, absolutely, we will consider all input from the independent House of Commons committee on transport, from the public, from indigenous peoples, from provinces and territories, and from a broad range of stakeholders including industry and marine-protection groups. This is something that we feel passionately about and are glad to be moving forward on.

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

Elizabeth May — Thu, 27 Apr 2017 15:39:36 +0000

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.

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Budget Bill Treacherous to Navigation

Craig Cantin — Thu, 01 Nov 2012 20:56:02 +0000

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 http://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.

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Bill C-231 An Act to amend the Canada Shipping Act, 2001

Justin Reist — Thu, 16 Jun 2011 16:28:58 +0000

Essentially, this bill would establish regulations for instances where a vessel is the cause of an obstruction to navigation or may pose a threat of pollution. It would establish measures to be taken for the removal, disposition or destruction of derelict vessels and provides that the Canadian Coast Guard shall be designated as a receiver of wrecks.

Seconded by Elizabeth May February 1, 2012

Click here for the full document

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