Eco Justice Comments on the Burying of Changes to the NWPA within the Omnibus Bill c-10

Ecojustice Memorandum
Re: Proposed amendments to the Navigable Waters Protection Act and the
erosion of public navigation rights on Canadian waterways

Date: February 9, 2009

Author: Will Amos, Staff Lawyer, uOttawa-Ecojustice Environmental Law Clinic, with research assistance from Yolanda Saito and Sam Sonshine

SUMMARY:
The Budget Implementation Act, 20091, an omnibus bill tabled by the Conservative Government on Friday, February 6, 2009, proposes a radical transformation of the
regime that protects the navigability of Canada’s rivers and streams. The proposed
amendments to the Navigable Waters Protection Act2 (NWPA) would create a “tiered” or
“class system” for Canadian navigable waterways, granting the Government a
discretionary authority to identify waterways deemed worthy and unworthy of federal
protection. Those waterways that are declassified would not be subject to the existing NWPA requirement that all works impacting navigable waters undergo an approval process. This approval process, which includes public notification and which triggers a federal environmental assessment, is at the core of the federal government’s clear constitutional jurisdiction over navigation and pursuant to s. 91(10) of the Constitution Act, 1867. The amendments are intended to limit the applicability of the Act and hasten the approval process for works that interfere with the right of navigation.

In the opinion of the author, these changes are an unnecessary form of deregulation that would undermine the government’s public trust duty to protect Canadians’ right to navigate waterways in a fair and transparent manner.

These proposed NWPA amendments will:
· Limit navigation rights by impacting the long-standing right to navigate and
enjoy free access to Canada’s waterways;

· Deregulate the protection of navigable waterways by significantly narrowing
Cabinet and the Transport Minister unfettered discretion to further exempt
certain “classes of works” and “classes of waterways” from the approvals
process under the Act;

· Reduce transparency and accountability by eliminating the need for public
notification and consultation on all projects that the Government determines not
to “substantially” interfere with navigation.

CONCLUSION
The author concludes that the proposed NWPA amendment will negatively impact the
free access of Canadians to navigable waterways, and will lessen the degree of federal oversight on projects that impact this area of federal jurisdiction. Furthermore, by reducing requirements for federal approvals of works that interfere substantially with navigation, the streams and creeks (capillaries and veins) of our lakes, wetlands and rivers will be negatively impacted.

Although the purpose of the NWPA is the protection of public navigation rights, this
important objective indirectly contributes to the protection of Canada’s environment
through the triggering of the Canadian Environmental Assessment Act (when an NWPA
approval is required). The net result is less navigational and environmental protection, less accountability, and less consultation. Such changes are inappropriately achieved through omnibus budgetary legislation, and ought to be debated in a fulsome manner before Parliament and appropriate standing committees.