The big picture of Harper’s assault on the Constitution

Despite the clever website research of the media and the NDP, the fact that permits under the Navigable Waters Protection Act used to trigger federal environmental assessment, does not, in itself, prove the NWPA has been an environmental measure. There were other triggers that do not go to environmental laws — triggers such as federal land being involved or federal money (both now disappeared with most of CEAA).

The issue is far more fundamental than erasing the word “environment” from the NWPA website. Like the Fisheries Act in C-38, dismantling the Navigable Waters Protection Act takes a hatchet to federal constitutional powers that have been foundational in environmental law for generations. And in both cases, the Conservative talking points are the same. “This act was never about the environment, it was about fisheries — not fish; it was about navigation — not waters.”

If I have heard it once, in C-38 and C-45 debates, I have heard it a hundred times — “This act was never designed to (fill in the blank — protect fishery habitat, protect free flowing rivers.)”

And that’s why I wanted to pull out my old Constitutional Law textbook. What was in the mind of the drafters of the British North America Act in 1867 is completely irrelevant to 21st Century constitutional heads of power. The powers set in 1867 do not change, but their application moves with the times. Otherwise we should repeal all criminal laws that deal with internet crime. There is no way Sir John A. Macdonald was worried about cyber crime, so out it goes!

Here’s what my old law school text book, says, by Canada’s still leading Constitutional law expert, Prof. Peter Hogg:

“It is well established that the general language used to describe the classes of subjects (or heads of power) is not frozen in the sense in which it would have been understood in 1867. For example, the phrase “undertakings connecting the provinces with any other or others of the provinces,” (s. 92(10(a)) includes an interprovincial telephone system, although the telephone was unknown in 1867; the phrase “criminal law” (s. 91(27)) “is not confined to what was criminal by the law of England or any other province in 1867; the phrase “banking” (s. 91(15)) is not confined to “the extent and kind of business actually carried out by banks in Canada in 1867.” On the contrary, the words of the Act are to be given a “progressive interpretation”, so that they are continuously adapted to new conditions and new ideas.”

Often cited is this quote from Lord Sankey in 1930, “The B.N.A. Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Again, the hatchet image comes to mind. Harper is cutting into the very essence of the Constitutional law powers over the environment.

So it is clear that whatever was intended in 1867, the Fisheries Act has been the primary tool for the protection of healthy eco-systems that support fish populations across Canada for decades and the NWPA has been the lynchpin in any effort to protect free flowing water ways, for navigation — including recreational navigation and access by canoeists and kayakers to the nations waterways — for fish, and for the health of the ecosystem.

And here’s another Constitutional reality — cutting into the federal authority does not give the provinces the authority to take over. It is the principle of “exclusiveness.” Again, here’s Peter Hogg: “… if either the Parliament or a Legislature fails to legislate to the full limit of its power this does not have the effect of augmenting the powers of any other level of government.”

So, with C-45 corrupting the NWPA to such a degree that something like 98 per cent of our waters within Canada (ie: excluding oceans) will no longer be covered under any federal navigation laws, who can ensure the right to move along our waterways? The answer in Constitutional terms is no level of government. No one.

The Conservative talking points say “Don’t worry. Rights to navigation are still covered by Common Law.” In the technical briefing, officials actually said that rights to navigation go back to ancient Rome. (So do Emperors and bread and circuses, but I digress).

So how does common law protection help a home owner on a brook who wants to be able to paddle to the river down from their home when someone proposes (or just builds) a dam or an obstruction? Under the pre-C-45 NWPA, the person building the obstruction is breaking the law. A permit was needed by the Minister of Transport to block that stream. The RCMP can be called. Canadians have a right to navigate waterways. Post C-45, unless the waterway is one of the 62 listed rivers or 97 listed lakes, the homeowner cannot call the RCMP. It is not clear the person building a dam is breaking the law until the homeowner goes to court to prove it. Common law cases are much harder to pursue than statutory or administrative reviews. Cold comfort indeed.

Ironically, the changes to the Fisheries Act in C-45, making it an offence to block two-thirds of the width of any river or stream with fishing gear or block the passage of fish with fishing gear was needed now that the impact of the NWPA is being wiped out on most waterways.

This is not streamlining. This is dismantling Constitutional heads of power entrusted solely to the federal level of government. Does Stephen Harper really think Canadians care nothing for our history? For our constitution?

Elizabeth May is the Member of Parliament for Saanich-Gulf Islands and Leader of the Green Party of Canada.
Originally published on