It was the friendliest showdown Green Party Leader Elizabeth May and Immigration Minister Jason Kenney have ever had.

The two Parliamentarians, accustomed to squaring off across the aisle in the House, instead took turns at the podium last week at the Rideau Club to argue their pick for Canada’s greatest Prime Minister, the debate topic for the third annual Macdonald-Laurier Institute Soirée.

Both of them picked conservative prime ministers as their favourites. Mr. Kenney argued that Canada’s 13th PM, John Diefenbaker, is the tops, while Ms. May argued for a classic, John A. Macdonald, Canada’s first.

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I want to first make a few comments on the subject of omnibus bills and what we have seen in this one year. We essentially have seen budget 2012 used as an excuse for the tabling of 900 pages of legislation largely unrelated to the budget itself. This exercise is both illegitimate and undemocratic in combining 70 different bills in Bill C-38, allegedly related to budget 2012, and now 60 different bills in Bill C-45.

I have fewer amendments today than I had tabled for Bill C-38 and Canadians might want to know the difference. Bill C-38, while a couple of pages shorter, did far more damage to the fabric of environmental laws in Canada. Bill C-38 took an axe to our Fisheries Act, destroying habitat protections; , repealed the Environmental Assessment Act; and put in place a substitute piece of legislation that would be an embarrassment to a developing country. It was absolutely abominable.

In Bill C-38, we also saw the explicit removal of pipelines as a category of obstruction under the Navigable Waters Protection Act. I would have thought that the Conservative agenda toward pipelines was satisfied with Bill C-38, but we go on to Bill C-45 and see that the attack on environmental laws includes the evisceration of the Navigable Waters Protection Act.

In Bill C-38, I made the case, as members may recall, to ask the Speaker for a ruling that the bill was out of order and not properly put together. I think we need to revisit the rules and to create some rules t around omnibus bills because this is clearly illegitimate.

In Bill C-45, we have proof of how appalling the process was in Bill C-38 in that some of what we are voting on this week are remedies for errors made in the drafting of Bill C-38. These were obvious errors that could have been caught if the normal legislative process had taken place.

Now we are asked, in Bill C-45, to correct drafting errors made in Bill C-38 where the English does not accord with the French, or where, under the Fisheries Act, they forgot to protect certain aspects of navigation through the fisheries corridors where there are weirs and other fishing apparatus. We also have changes to the Environmental Assessment Act because of poor drafting the last time around. Why was the drafting poor? It was because 70 different laws were put together in one piece of legislation and forced through the House without a willingness to accept, in 425 pages of legislation, a single amendment.

This is not proper parliamentary process. No previous Privy Council in the history of this country has ever equated an amendment to a bill between first reading and royal assent as some sort of political defeat that must be avoided at all costs. This is a level of parliamentary partisanship that takes leave of its senses. It is essentially a form of parliamentary insanity for the government to decide that it cannot possibly accept an amendment from first reading to royal assent and then to come back and give us this which finally provides some of the corrections.

I will speak to my amendments relatively quickly. I want to stress that neither Bill C-38 nor Bill C-45 are really about jobs, or growth or the budget. I will highlight the things in Bill C-45 that I hope to amend because they will hurt jobs.

Bill C-45, the omnibus budget bill, would hurt jobs in tourism through this quite extraordinary proposal, which is not a proposal but will be passed into law unless we are able to persuade Conservative members of Parliament that they should vote for what they think is right and not how they are told, ordered and instructed to vote.

When tourism in this country is such an important part of our economy, it makes no sense to pass into law a requirement that tourists from around the world, from countries that do not currently require a visa to come to Canada, regardless of whether they have any aspersions on their character, whether they are considered to be a risk, every tourist to Canada, except those from the United States because of our agreements over a shared border security process, would need to fill out a form to find out if they are allowed to come here for a vacation. This is a terrible change and it would significantly hurt tourism.

Another terrible change is reducing the tax credit, the SR and ED, the scientific research and experimental development tax credit. This is where Canada lags. If we listen to the economists, there is tremendous concern about our competitiveness and productivity, which is directly related to research and development, and to why we need to have the scientific research and experimental development tax credit available to Canadians. We think it would be a big mistake to reduce that.

I will now talk about what I like in Bill C-45. The assumption is that every opposition member hates everything in Bill C-45. That is one of the reasons I object to omnibus bills. There are measures here that I would vote for were they not coupled together with so much destruction. I would vote for the actual budgetary measures that one finds at the beginning of Bill C-45, the tax credits to encourage investment in clean energy and energy efficiency. They are too small but I am certainly not against them. Rather, I am for them.

I would vote for the closing of some of the tax credits to encourage oil and gas development, such as the Atlantic investment tax credit for oil, gas and mining, and for the corporate mineral exploration and development tax credit. I would also vote for the closing of the loopholes in transfer pricing and foreign affiliate dumping that have been used by corporations to avoid paying their fair share of taxes. Those are the measures I would vote for.

What deeply disturbs me in this bill, in addition to the measure that I had mentioned to create a new requirement for filling out a form to come to Canada under immigration, is the elimination of the Hazardous Materials Information Review Commission. My amendments would keep that commission in place.

As well, we could do more with the hiring credit for small business.

The changes to the Fisheries Act are largely to repair mistakes made by the Conservatives to the Fisheries Act that had weakened it. They are now fixing some of what they did not need to weaken so desperately. However, we have suggested an amendment to allow for the definition of “aboriginal fisheries”, on the basis of first nations advice, to ensure that the definition is fully respected and takes into account the constitutional and treaty rights of first nations in any definition of “aboriginal fisheries”.

Before moving on to the Navigable Waters Protection Act, I wish to speak to the Canada Grain Act. My amendments oppose a move to take away the independent bond actors in terms of looking at Canadian grains. The third party inspection that is now being proposed would create a conflict of interest between the private sector and the grain companies. We think that would be a mistake. We have certainly learned from the XL Foods beef scandal that it is important to ensure that inspections are truly independent.

The bulk of my amendments deal with the Navigable Waters Protection Act. The Conservatives have taken three runs at it through three different omnibus bills, the first being in 2009. The objective definition of what is “navigable” was changed to a discretionary definition wherein “navigable” would mean whatever the Minister of Transport says that it means.

In Bill C-38, just this past spring, the Conservatives took another run at the Navigable Waters Protection Act with the specific exclusion of pipelines as works or undertakings. Pipelines are no longer in the Navigable Waters Protection Act. These new amendments are certainly not about pipelines because the Conservatives took care of that in Bill C-38.

What this does is it takes an act that we have had since 1882 that directly comes from the Constitution of this country, that being the federal responsibility for navigation. The Navigable Waters Protection Act, which was brought in by Sir John A. Macdonald, has protected the rights of Canadians to put a canoe or kayak in any body of water and paddle from there to wherever they want to go. As Canadians, we have a right to navigation. This is now being superseded with the false story that there is somehow a burdensome regulatory amount of red tape that offends people in municipalities. Therefore, we need to blow apart the Navigable Waters Protection Act to say that a body of water is only navigable if it can be found in the schedule at the back of the act. Ironically, the 99.5% of Canadian waters that are not listed there are not ones near municipalities, cottages and people who want to build wharfs, but are in our wilderness areas where, without the Navigable Waters Protection Act, nothing stands in the way of obstructions to navigations for Canadians.

The government will tell us that is all right because Canadians have a common law right. If people have a couple of hundred thousand dollars and are prepared to go to the Supreme Court of Canada to defend their right to use a waterway that is not listed, they can do that. However, this is an egregious abdication of responsibility for a federal head of power that no other level of government has the right to step up and fill the void.

I urge my colleagues on all sides of the House to give due consideration to these serious and important amendments.

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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-45, a second Act to Implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, the Conservatives’ latest omnibus bill, has 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.

The Navigable Waters Protection Act (NWPA) of 1882, considered Canada’s first environmental law, has been changed – to the Navigation Protection Act.  If a body of water is not mentioned in Schedule 2 on page 424, it will no longer be covered under the NWPA permit process from the rampant resource development being advocated by the Harper Conservatives.

“This is nothing less than tragic for the majority of Canadians who love and respect our waterways from coast to coast to coast,” said Green Party Leader Elizabeth May, MP Saanich-Gulf Islands.  “Even rivers like the Margaree River in Cape Breton, a National Heritage River, will no longer be covered by the NWPA. The only river listed in the entire Yukon is the Yukon River.

“Our inland harbours, including Shoal Harbour in my riding, and gulfs, including the Gulf of St. Lawrence, will be vulnerable.”

The Conservatives first 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.

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 (now greatly weakened too).

With Bill C-38, further changes to the NWPA made pipelines and power lines exempt from the provisions of the Act.  Also, the National Energy Board took control over the NWPA whenever a pipeline crossed a navigable water.

“This is a real threat for thousands of our pristine waterways,” said May.

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